County of Harney v. United States

No. 79-526BU (D. Or. November 10, 1982)

The district court holds that the Department of the Interior's expression of an interest in acquiring property adjacent to the Malheur National Wildlife Refuge is not a proposal for a major federal action requiring preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court denies plaintiffs' motion to amend its complaint. It rejects plaintiffs' first proposed amendment, which alleges that defendants' present refuge management policy is a major federal action requiring an EIS, because an EIS is required only if the action alters the status quo. It rules that plaintiffs' second proposed amendment, which alleges that defendant Fish and Wildlife Service created a nuisance by allowing noxious weeds to spread to plaintiffs' land, is outside its jurisdiction because tort claims against the U.S. government must comply with the Federal Tort Claims Act. The third proposed amendment, which alleges that defendants violated 43 U.S.C. § 1241 et seq. by not cooperating with the state in its weed abatement programs, states no claim under the statute. Finally, the court denies plaintiffs' fourth amendment, which alleges that the Fish and Wildlife Service violated plaintiffs' constitutional due process rights by expressing an interest in their property without providing an opportunity to be heard, because defendants have not taken any condemnation action that affects plaintiffs' property. Finally, the court holds that defendants' recommendation for acquisition of the property is not a proposal for major federal action requiring preparation of an EIS. Federal interest in future condemnation of property near the wildlife refuge is too indefinite to amount to a proposal.

Counsel for Plaintiffs
Irvin D. Smith, Dist. Attorney
P.O. Box 548, Burns OR 97720
(503) 573-2851

Ben A. Wallis Jr.
2400 Tower Life Bldg., San Antonio TX 78205
(512) 226-2331

Counsel for Defendants
Charles H. Turner, U.S. Attorney;Thomas C. Lee
312 U.S. Cthse., P.O. Box 71, Portland OR 97207
(503) 221-2101

[13 ELR 20300]

Burns, J.:

Opinion and Order

Plaintiffs seek declaratory and injunctive relief to halt condemnation of land in Harney County by the United States until the government can show compliance with the National Environmental Policy Act, of 1969 (NEPA), 42 U.S.C. § 4331 et seq., by preparing an environmental impact statement (EIS).

Plaintiffs are Harney County, Ranchers for Conservation, Harney County Stockgrowers Association and National Association of Property Owners. The latter three are non-profit groups. Defendants are the United States, Secretary of Interior James Watt,¹ U.S. Fish and Wildlife Service (FWS) and Robert L. Herbst, assistant interior secretary for Fish, Wildlife and Parks.

At the time this complaint was filed in May 1979 the government had condemned a 1,518-acre tract of agricultural and grazing land owned by Walt McEwen. The property since has become part of the Malheur National Wildlife Refuge, which consists of more than 183,000 acres in Harney County in southeastern Oregon. [13 ELR 20301] Plaintiffs allege the government plans to condemn other land near the refuge to serve as a buffer zone separating refuge land from property used for farming and grazing.

Plaintiffs claim the allegedly contemplated condemnation constitutes a major federal action that will significantly affect the quality of the human environment, thus requiring an EIS pursuant to 42 U.S.C. § 4332(2)(C). They further allege defendants have violated NEPA provisions by failing to consult with local government officials in determining whether an EIS should be prepared.

In their answer, filed in September 1979, defendants deny the substantive allegations and assert two affirmative defenses: failure to state a claim and lack of standing.

Defendants moved for summary judgment, and a hearing was set. Shortly before the hearing, plaintiffs responded to defendants' summary judgment motion, moved for leave to amend their complaint to add four new causes of action and filed their own summary judgment motion.²

A. Plaintiffs Motion to Amend

Plaintiffs seek to amend their complaint to add four new causes of action and to add plaintiffs pertinent to each cause. First, plaintiffs propose to allege that present management policy of the refuge constitutes a major federal action requiring an EIS and request an order enjoining defendants from further implementation of that policy until an EIS is filed. Second, plaintiffs propose to allege, on behalf of themselves and four additional individuals who seek to become parties to this action, that defendant Fish and Wildlife Service has allowed noxious weeds to multiply on the refuge and spread to plaintiffs' land, creating a nuisance. On this claim, they seek damages and injunctive relief. Third, plaintiffs propose to allege that defendant FWS has violated 43 U.S.C. § 1241 et seq., which requires federal cooperation with state programs to control noxious weeds. They seek an order enjoining FWS from further violation of that statute. Fourth, plaintiffs propose to allege that their constitutional due process rights have been violated by defendants' land acquisition procedures. They seek a declaration that the procedures are unconstitutional and an order enjoining defendants from acquiring additional land in Harney County. Laurence Dunn seeks to become a party with respect to the fourth new cause of action. Harney County Farm Bureau and Oregon Farm Bureau Federation, both nonprofit corporations, seek to become plaintiffs generally.

Leave to amend a pleading shall be given freely when justice so requires. FED. R. CIV. P. 15(a). The decision to allow amendment is committed firmly to the discretion of the district court, which may deny leave to amend as long as justifying reasons appear in the record. Foman v. Davis, 371 U.S. 178, 182 (1962); Hurn v. Retirement Fund Trust of the Plumbing, Heating and Piping Industry of Southern California, 648 F.2d 1252, 1254 (9th Cir. 1981). See also United States v. Webb, 655 F.2d 977, 980 (9th. Cir. 1981) (remanded because record showed no reason for denial). In Forman v. Davis, the Supreme Court suggested several grounds for refusal to allow amendment:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc. — the leave sought should, as the rules require, be "freely given."

371 U.S. at 182. (Emphasis added.) Where a proposed amendment fails to state a claim, however, it would be futile to allow it. Gilbertson v. City of Fairbanks, 262 F.2d 734, 740 (9th Cir. 1959); Baker v. Pacific Far East Lines, Inc. 451 F. Supp. 84, 89 (N.D. Cal. 1978). See also Simons v. United States, 497 F.2d 1046, 1049 (9th Cir. 1974); Alghanim v. Boeing Company, 477 F.2d 143, 149-50 (9th Cir. 1973). Cf. Breier v. Northern California Bowling Proprietors' Association, 316 F.2d 787, 789-90 (9th Cir. 1963) (dictum). Thus, I examine each of plaintiffs' proposed amendments to determine whether allowing them would be futile for failure to state a claim.

1. Present management policy:

The proper test to be applied when determining the legal sufficiency of a proposed amendment is whether it would withstand a motion to dismiss. If there is no set of facts that, if proved, would constitute a valid claim, leave to amend should be denied. E.g., Baker, 451 F. Supp. at 89.

In Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115 [10 ELR 20681] (9th Cir. 1980), the Court of Appeals refused to require an EIS for ongoing activities:

An EIS is not required, however, when the proposed federal action will effect no change in the status quo. (Citation omitted). An EIS need not discuss the environment effects of mere continued operation of a facility. (Citation omitted.)

Id. at 116. Further, in discussing a similar result in City & County of San Francisco v. United States, 615 F.2d 498 [10 ELR 20346] (9th Cir. 1980), the court distinguished between first-time establishment of industrial complex and the essentially continuous activity of maintaining a shipyard. By their amendment, plaintiffs do not propose to allege a major change in management policy that may require an EIS pursuant to NEPA. 42 U.S.C. § 4332(2)(C). They simply complain generally of present policy and allege no facts that would amount to a violation of NEPA. I find, therefore, that plaintiffs' first proposed amendment fails to state a claim.

2. Nuisance:

Plaintiffs seek to allege that FWS, in managing the refuge, has allowed noxious weed to grow, multiply and spread to their land, constituting a nuisance for at least four years. They propose to request damage and an injunction forbidding FWS from allowing unregulated growth of noxious weeds on the refuge.

The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., contains only the waiver of sovereign immunity for claims sounding in tort against the United States.³ Failure to comply with the procedural requirements of the Act, 28 U.S.C. § 2675, precludes jurisdiction in the district court. Wright v. Gregg, 685 F.2d 340 (9th Cir. 1982); Blain v. United States, 552 F.2d 289 (9th Cir. 1977). Plaintiffs' proposed amendment does not allege the filing of an administrative claim or denial of relief by FWS. Therefore, if I allowed the amendment, I would lack jurisdiction over the nuisance claim.⁴

Plaintiffs attempt to avoid the jurisdiction bar created by their failure to comply with FTCA by invoking jurisdiction under federal common law and 28 U.S.C. § 1331. Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91 [2 ELR 20201] (1972). While the extension of federal common law jurisdiction to nuisance claims still is unsettled in many circumstances, one circuit has observed that the question need not be addressed in cases where the United State is being sued. Sovereign immunity, waived only under the FTCA, bars the action. Massachusetts v. U.S. Veterans Administration, 541 F.2d 119 [6 ELR 20666] (1st Cir. 1976). Cf. Weiss v. Lehman, 674 F.2d 1320 (9th Cir. 1982) (owner of property destroyed by U.S. Forest Service had an adequate remedy under FTCA and could not have a federal common law action implied under due process clause for negligent destruction of his property).

3. Statutory violation:

Plaintiffs propose to allege that FWS is violating 43 U.S.C. § 1241 et seq., which directs heads of federal agencies to allow [13 ELR 20302] state officials to enter land under federal jurisdiction to destroy noxious plants growing there. Plaintiffs seek to ask for an injunction enjoining further violation of the statute.

This proposed amendment fails to allege any facts sufficient to state a claim under the statute.

4. Due process:

Finally, plaintiffs propose to allege that the land acquisition procedures of FWS are unconstitutional in that they provide no notice or hearing to landowners whose property the agency has expressed an interest in acquiring. This seems to be a claim that a landowner's due process rights are violated when his property is condemned if he does not have an opportunity to contest the agency's decision to take his land. Plaintiffs seek a declaration that the FWS procedures are unconstitutional and an injunction preventing acquisition of land in Harney County.

Plaintiffs proposed amendment does not describe any alleged deprivation of property rights. It alleges only that landowner Laurence Dunn was notified that FWS had an interest in acquiring a parcel of his land. An expression of interest is not a taking, nor is it a deprivation of property. Further, the existence of FWS' internal land acquisition procedures does not constitute a deprivation of property requiring the due process that accompanies a condemnation proceeding. Constitutional rights are not violated by an expression of interest in one's land. No property rights are even affected until condemnation proceedings are initiated, at which time affected landowners receive notice and have an opportunity to be heard.Wolff v. McDonnell, 418 U.S. 539 (1974); Grannis v. Ordean, 234 U.S. 385 (1914). The case law does not point to the conclusion that affected landowners have due process rights to a hearing on the issue of whether their land should be condemned. See Berman v. Parker, 348 U.S. 26 (1954); United States v. 80.5 Acres of Land, 448 F.2d 980 (9th Cir. 1971).

Because they seek to allege no facts that would support a claim that a deprivation of property requiring due process occurred, their amendment would be futile.

In summary, because all four new proposed causes of action fail to state a claim or contain jurisdictional defects, I find that the amendment would be futile and deny plaintiffs' motion for leave to amend the complaint.⁵

B. Summary Judgment

The complaint, excluding the proposed amendments, alleges that defendant FWS has a master plan for the future condemnation of land in Harney County and that the plan constitutes a proposal for major federal action significantly affecting the quality of the human environment, requiring an EIS pursuant to 42 U.S.C. § 4332(2)(C). Plaintiffs seek a declaration to that effect and an injunction preventing defendants from condemning more land in Harney County.

Defendants move for summary judgment under FED. R. CIV. P. 56(c) on grounds there is no evidence supporting plaintiffs' argument that a master plan exists and therefore no proposal exists for major federal action requiring analysis under NEPA.

1. Genuine issue of material fact

Plaintiffs contend a genuine issue of material fact exists as to whether there is a master plan to condemn land in Harney County. Briefly, some background is in order.

The Malheur National Wildlife Refuge was established in 1908 by presidential executive order setting aside public lands as a reserve and breeding ground for native birds. Moore land was acquired later for the refuge, which currently contains more than 183,000 acres of land and water. Most of the land contiguous to the refuge is owned by the government and administered by the Bureau of Land Management. According to the deposition of refuge manager Joseph Mazzoni, FWS officials identified 20 or 30 years ago key tracts in private ownership that potentially could affect management of the refuge. Some of those tracts were acquired by FWS. Others remain in private ownership.

FWS continue to have an interest in activities on 12 privately owned tracts adjacent to the refuge. The refuge manager has recommended acquisition of seven of the tracts as an eventual solution to management concerns about wildlife habitat, potential private development and administration of the refuge boundary. Acquisitions must be approved by FWS officials at five administrative levels above that of refuge manager. Mr. Mazzoni stated in his deposition that acquisitions occur through purchase, exchange, donation and, when other means fail and a change in land use threatens management of the refuge, condemnation. Mr. Mazzoni also stated that FWS currently does not plan to condemn the tracts in which the agency has expressed an interest.

Plaintiffs apparently view a list of the 12 properties in which FWS has expressed an interest as a master plan to condemn those properties. (Defendants' Response to Plaintiffs' Interrogatories, Appendix D). I do not view the list as evidence supporting such a contention. Plaintiffs also point to letters in August 1979 from Mr. Mazzoni to owners of the 12 properties expressing the FWS' interest in the tracts as evidence of a master plan to condemn. I do not consider the letters evidence supportive of the existence of a master plan to condemn those lands. Finally, plaintiffs submit an affidavit from Laurence Dunn, owner of one of the 12 properties. Mr. Dunn's affidavit states that Mr. Mazzoni told him in 1975 that FWS intended to take his lands within five or six years. I do not interpret Mr. Dunn's statement as evidence supporting the existence of a master plan to condemn land in Harney County.

I find, after examining all papers submitted and construing the evidence in favor of plaintiffs, that the record contains no evidence contradicting defendants, factual assertion that no master plan exists for the condemnation of land in Harney County. Therefore, there is no genuine issue of material fact to be decided at trial, and I proceed to a determination of whether defendants are entitled to judgment as a matter of law.

2. Judgment as a matter of law

The only legal issue before me is whether the refuge manager's recommendation for acquisition of the properties constitutes a proposal for major federal action significantly affecting the quality of the human environment. If the recommendation is such a proposal under 42 U.S.C. 4332(2)(C), an EIS is required and defendants' motion must fall. If the recommendation is not a "proposal" or a "major federal action significantly affecting the quality of the human environment," an EIS is not required and defendants are entitled to summary judgment.

Preparation of an EIS is limited to situations where an agency has proposed a specific action. Otherwise, nothing exists that could be the subject of the analysis envisioned under the statute. Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976). Even the issuance of leases for exploration of geothermal resources in the Oregon desert did not amount to a proposal for agency action that required an EIS at that stage. Sierra Club v. Hathaway, 579 F.2d 1162 [8 ELR 20736] (9th Cir. 1978). I agree with defendants that the dimensions of any future condemnation of property within or near the Malheur National Wildlife Refuge are too indefinite at this stage to amount to a proposal of major federal action. An expression of interest in acquiring one to 12 properties in the event change in land use threaten the management of the refuge for wildlife habitat does not rise to the level of a proposal to condemn any or all of those properties. My conclusion is buttressed by evidence that the refuge manager's identification of parcels of concern and recommendation of acquisition has progressed only through the two or three lower levels of the FWS review process, not to the FWS director, who would make the decision to propose such action. Further, the refuge manager's testimony and inhouse FWS policy indicate that condemnation, as opposed to other means of acquisition, is a last resort.

Because I rule that no proposal exists for agency action, I need not address the issue of whether condemnation of any or all of the properties would constitute a major federal action significantly affecting the environment. It is simply premature to require preparation of an EIS where no proposal exists. Therefore, summary judgment is granted in favor of defendants.

IT IS SO ORDERED.

1. The name James G. Watt is substituted as successor to former Secretary of Interior Cecil Andrus.

2. Plaintiffs moved for summary judgment only on the proposed due process claim. Because leave to amend the complaint is denied, there is no due process claim upon which plaintiffs can move for summary judgment and therefore I do not address it. To the extent the pending motion must be disposed of, I deny it.

3. Federal agencies cannot be sued eo nomine. Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d 455 (9th Cir. 1976); Romero-Barcelo v. Brown, 643 F.2d 835 [11 ELR 20391] (1st Cir. 1981). Absent any allegation that the federal officials named as defendants acted outside their official capacities, they also enjoy the immunity of the sovereign. Barr v. Matteo, 360 U.S. 564 (1959); Miller v. De-Laune, 602 F.2d 198 (9th Cir. 1979).

4. Even if plaintiffs had complied with the procedural requirements of the FTCA, they could not sue the United States to enjoin a nuisance or other tort. Moon v. Takisaki, 501 F.2d 389 (9th Cir. 1974). Only money damages are available in actions against the United States.

5. Because I do not allow plaintiffs to amend the complaint and to include their proposed due process claim, I do not address the merits of their summary judgment's motion.