American Farm Bureau Federation v. Block

No. 80-5070 (D.S.D. March 12, 1984)

The court holds that the federal government is not liable to plaintiffs for its alleged failure to control black-tailed prairie dog populations. The court first holds that it is without subject matter jurisdiction over the counts involving claims for money damages against federal defendants in their official capacities because those defendants are protected by sovereign immunity. Plaintiffs failed to plead or fulfill the requirements of the Federal Tort Claims Act by which they might have overcome the sovereign immunity defense.The court proceeds to reject plaintiffs' taking claim. First, a mere tortious invasion of property is insufficient to work a taking. Second, the government has not reduced the ferae naturae prairie dog to ownership by skillful capture or any other affirmative action. As to plaintiffs' claims that federal defendants violated eight federal statutes, the court holds that, though the Tucker Act might have provided a waiver of sovereign immunity, none of the statutes involved expressly provide a substantive, private right to recover money damages. The court can find no reason to imply a private right of action. Finally, the claims seeking damages from government officials in their individual capacities for negligence and nuisance torts fail for three reasons: plaintiffs failed to allege diversity jurisdiction; the prairie dogs were not reduced to the defendants' possession; and none of the federal statutes creates a private right of action.

[A second opinion in the case appears at 14 ELR 20765.]

Counsel for Plaintiffs
Gary G. Colbath
Banks & Johnson
3202 W. Main St., Rapid City SD 57701
(605) 348-7300

Richard L. Krause
American Farm Bureau Federation
225 Touhy Ave., Park Ridge IL 60068
(312) 399-5700

Counsel for Defendants
Philip N. Hogen, U.S. Attorney; Reed Rasmussen
P.O. Box 1073, Sioux Falls SD 57101
(605) 336-2980, ext. 395

Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352

[14 ELR 20763]

Bogue, J.:

Memorandum Opinion

This action involves an animal named Cynomys ludovicianus, the black-tailed prairie dog, which inhabits federal and private lands in the state of South Dakota. Plaintiffs allege generally in their sixteen-count Second Amended Complaint that Defendants failed to control the black-tailed prairie dog population on certain federally administered lands. As a result, Plaintiffs contend that the proliferation and expansion of prairie dog populations from federal to private lands has damaged and will continue to damage Plaintiffs' grazing permits and private property, directly affecting their farming and ranching operations. Further, Plaintiffs claim that Defendants' action/inaction regarding allegedly uncontrolled prairie dog populations on the certain federally administered lands constitutes violations of numerous federal statutes, negligence, an unconstitutional taking, a nuisance, and arbitrary and capricious action and an abuse of discretion, or action otherwise not in accordance with law. Plaintiffs seek declaratory and mandatory relief and damages.

Parties

The Plaintiffs include the American Farm Bureau Federation (AFBF), the South Dakota Farm Bureau Federation (SDFBF), Dave Cuny, Doug Temple, Don Jobgen, and Rueben Deutscher. Plaintiffs AFBF and SDBF are agricultural organizations composed of farmers and ranchers. The four individual Plaintiffs are engaged in farming and ranching in South Dakota. Additionally, each of the individual Plaintiffs allegedly hold livestock grazing permits on unspecified federally administered lands and own private lands adjacent to or near such federal lands.

The Defendants (Federal Defendants) include the United States of America, the Secretary of Agriculture and the Secretary of the Interior, both in their official and individual capacities, certain federal agencies, and certain federal officers in these agencies, also in their official and individual capacities. These Federal Defendants moved to dismiss Plaintiffs' complaint for lack of subject matter and personal jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(1), (2), and (6).

[14 ELR 20764]

Federal Lands

The federal lands involved in this case, and the agencies and officers allegedly administering these lands, are most easily grouped into three categories:

1. The Buffalo Gap National Grasslands, administered by the Forest Service, which is an agency of the Department of Agriculture.

2. The Badlands National Park, administered by the National Parks Service (NPS), which is an agency of the Department of the Interior.

3. The Pine Ridge Indian Reservation, administered by the Bureau of Indian Affairs (BIA), which is an agency of the Department of the Interior.

Damages

United States, its Agencies and Officers Acting in their Official Capacity

In any case where a party seeks money damages against the United States, its agencies and officers, the issue of sovereign immunity arises. "The United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980), citing United States v. Sherwood, 312 U.S. 584, 586 (1941); Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174, 177 (8th Cir. 1978). Moreover, to constitute a waiver of the United States' sovereign immunity, the consent "cannot be implied but must be unequivocally expressed." Id., citing United States v. King, 395 U.S. 1, 4 (1969). It is fundamental that the absence of clear congressional consent constitutes a basic jurisdictional defect, depriving this Court of its power to entertain a suit against the United States. 14 C. Wright & A. Miller, Federal Practice and Procedure, § 3654, pp. 156-57 (1976).

Soverign immunity extends to actions against federal agencies and officers of the United States when the conduct in question is on behalf of the government. Id. § 3655, p. 172. Conduct is on behalf of the government and "a suit is against the sovereign 'if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' . . . or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.''" Johnson v. Mathews, 539 F.2d 1111, 1123-24 (8th Cir. 1978), quoting Dugan v. Rank, 373 U.S. 609, 620 (1963), quoting Land v. Dollar, 330 U.S. 731, 738 (1947) and Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949).

The Supreme Court in Dugan recognized two exceptions to the sovereign immunity doctrine's applicability to federal officials' actions: "(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void." 372 U.S. at 621-22. Therefore, insofar as a suit is against a federal agency or official and the relief sought would require a judgment that falls with the Dugan rule, the suit is unquestionably against the United States. Simons v. Vinson, 394 F.2d 732, 736 (8th Cir. 1968), cert. denied, 89 S. Ct. 398 (1968).

In Counts 4, 6, 8, 11, and 16, Plaintiffs seek damages for alleged tortious conduct. Plaintiffs do not contend that the federal officers acted beyond their statutory powers or that the powers themselves are constitutionally void. So, any judgment for money damages against the federal agencies and its officers would expend itself on the public treasury. Consequently, to the extent that these Counts allege tortious conduct against federal agencies and officers in their official capacities, such conduct is on behalf of the government. Johnson, 539 F.2d at 1123-24.

Plaintiffs do not plead the Federal Tort Claims Act, 28 U.S.C. § 1346(b), in the jurisdictional statement of their Second AmendedComplaint, as a basis for this Court's jurisdiction. However, the FTCA is the exclusive remedy for a damage claim against the United States sounding in tort. Bor-Son Bldg. Corp., 572 F.2d at 177. Moreover, not only is the FTCA a jurisdictional statute, it provides the necessary waiver of sovereign immunity which empowers this Court to assume jurisdiction over all claims properly instituted under the Act. 28 U.S.C. § 1346(b) provides in part:

[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

It is settled that if the United States waives its sovereign immunity and consents to suit, Congress may limit the waiver by imposing conditions. Lunsford v. United States, 570 F.2d 221, 224 (8th Cir. 1977); Peterson v. United States, 428 F.2d 368, 369 (8th Cir. 1970). Furthermore, such consent is to be strictly construed. Sherwood, 312 U.S. at 590. 28 U.S.C. § 2675(a) of the FTCA specifically conditions such waiver and consent on proper presentation and denial of the claim by the appropriate federal agency and denied before an action can be brought in federal district court. Lunsford, 570 F.2d at 24. The Eighth Circuit Court of Appeals has repeatedly held that the filing of such administrative claim is a jurisdictional prerequisite. Id.; Bor-Son Bldg. Corp., 572 F.2d at 177; Melo v. United States, 505 F.2d 1026, 1028 (8th Cir. 1974); Meeker v. United States, 435 F.2d 1219, 1220 (8th Cir. 1970).

Plaintiffs argue that they have satisfied the administrative claim requirement of the FTCA. Implicit in this argument is Plaintiffs' concession that their claims in Counts 4, 6, 8, 11, and 16 against government employees in their official capacity is actually against the United States.

Plaintiffs argue that they informed the Federal Defendants of their claims for money damages allegedly caused by the expansion of prairie dog colonies from federal land onto Plaintiffs' private land. Plaintiffs state that they have written letters to the Federal Defendants and to Congressmen, made phone calls, and held meetings, including a prairie dog workshop, all with the intention of achieving a satisfactory resolution of their claims.

The question raised is whether Plaintiffs' acts satisfies the administrative claim requirement of 28 U.S.C. § 2675(a). Without belaboring the issue, this Court holds that Plaintiffs' purported administrative claim falls painfully short of meeting the statutory requirements, for the reason set forth in Melo v. United States, 505 F.2d 1026 (8th Cir. 1974). See Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977). Suffice it to say that the record before this Court shows no administrative claim filed with the Department of Agriculture or the Department of Interior by Plaintiffs, stating the nature of Plaintiffs' damage or injury and a sum certain or dollar amount claimed therefor. Melo, 505 F.2d at 1029. See Smith v. United States, 588 F.2d 1209, 1211 (8th Cir. 1978).

Consequently, insofar as Plaintiffs' claim in Counts 4, 6, 8, 11, and 16 for money damages against these Federal Defendants in their official capacities is concerned, this Court is without subject matter jurisdiction for two reasons. First, Plaintiffs failed to comply with the pleading requirements of Fed. R. Civ. P. (8)(a)(1). Second, Plaintiffs failed to file a proper administrative claim.

Additionally, Plaintiffs' claim for money damages in Counts 4, 6, 8, 11, and 16 and the takings claim in Count 10, fails to state a claim upon which relief can be granted. Plaintiffs' theory rests on the proposition that Federal Defendants are legally responsible for damage caused by prairie dogs. Plaintiffs' position is untenanble.

First, Count 10 involves an eminent domain theory based on an inverse condemnation claim.¹ Specifically, Plaintiffs aver that Federal Defendants, as agencies or agents of the United States, unconstitutionally took Plaintiffs' property in violation of the fifth amendment to the Constitution. Further, Plaintiffs assert that Federal Defendants accomplished such taking by their negligent actions and by their conservation and protection of the black-tailed prairie dog.

A distinction in . . . to be drawn between mere tortious invasion of one's property rights and an appropriation of sufficient magnitude to amount to a taking (citation omitted). Although there is no concise rule readily applicable to all cases, a taking must at least amount to a substantial interference [14 ELR 20765] with the property so as to destroy or lessen its value.

Harris v. United States, 467 F.2d 801, 803 (8th Cir. 1982). Insofar as Plaintiffs' taking claim is based on mere tortious conduct, such claim must fail. Id. See Annot., 2 A.L.R. 2d 677 (1948).

Second, Plaintiffs' theory in Counts 4, 6, 8, 10, 11 and 16 is grounded upon ownership of prairie dogs. Specifically, Plaintiffs assert that prairie dogs exist in such a localized setting that they are effectively reduced to the control or possession of the federal government on federal lands.

It is fundamental that the federal government neither owns nor has title to animals which are ferae naturae until they are reduced to possession by skillful capture. Douglas v. Seacoast Products, Inc., 97 S. Ct. 1740, 1751 [7 ELR 20442] (1977). Indeed, "it is pure fantasy to talk of 'owning' wild fish, birds, or animals." Id. In the "wild geese" case, Sickman v. United States, 184 F.2d 616 (7th Cir. 1950), cert. denied, 71 S. Ct. 999 (1951), reh'g denied, 72 S. Ct. 21 (1951), the court disposed of an "ownership" argument similar to Plaintiffs' in the instant case.

In Sickman, the United States established a game preserve which served as a wintering ground for migrating geese. Farmers with land bordering preserve sought damages for destruction of their crops by the migratory waterfowl. The farmers argued that the United States was the owner of the wild geese. Consequently, the farmers alleged, inter alia, that the federal government, was liable for any depredations committed by the geese. The court concluded that the government does not own any free roaming wild animals. 184 F.2d at 618.

In Counts 4, 6, 8, 10, 11 and 16, Plaintiffs did not allege that the Federal Defendants skillfully captured the prairie dogs. Indeed, Plaintiffs do not allege that the government affirmatively acted to encourage, entice or transport prairie dogs onto Federal or private lands. Cf. Sickman, 184 F.2d at 617 (Plaintiffs alleged that government keep geese stirred up.). These prairie dogs exist in their natural habitat and were not reduced to the Federal Defendants' possession. Douglas, 97 S. Ct. at 1751. Consequently, the Federal Defendants are not liable for the money damages demanded. See Loge v. United States, 662 F.2d 1268, 1275 (8th Cir. 1981); cert. denied, 102 S. Ct. 2009 (1982); Bishop v. United States, 126 F. Supp. 449 (Ct. Cl. 1954).

Plaintiffs' in Counts 1, 2, 3, 5, 7, 9, 12, 13, 14, and 15, claim that the action/inaction of Federal Defendants violates certain federal statutes.² Again, for Plaintiffs to recover money damages against the United States and its agencies or officers, Plaintiffs must establish an express waiver of sovereign immunity. King, 395 U.S. at 4. Apparently, Plaintiffs contend that the Tucker Act, 28 U.S.C. § 1346(a)(2) (Supp. 1983), constitutes the required waiver.

28 U.S.C. § 1346(a)(2) provides in pertinent part:

(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:

(2) Any . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort . . . .

The Supreme Court has made it clear that "[i]f a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit." United States v. Mitchell, 103 S. Ct. 2961, 2967 (1983). Consequently, if properly invoked, the Tucker Act provides Plaintiffs the necessary waiver of sovereignimmunity for a damage claim. Id.

To fall within the terms of the Tucker Act, Plaintiffs' claims must be founded upon the federal statutes and may not exceed $10,000. 28 U.S.C. § 1346(a)(2). Plaintiffs allege in the jurisdictional statement of their Second Amended Complaint, that damages do not exceed $10,000. The question, therefore, is whether Plaintiffs' claim is founded upon the federal statutes.

To be founded upon the federal statutes, the substantive right enforceable against the United States for money damages must be found in such statutes, since the Tucker Act itself creates no substantive rights. Mitchell, 103 S. Ct. at 2967-68; United States v. Mitchell, 100 S. Ct. 1349, 1351 (1980); United States v. Testan, 96 S. Ct. 948, 953 (1976). The test is whether the statutes "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Testan, 96 S. Ct. at 954, quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967). The Eastport court recognized that the substantive source of law, may grant a claimant a right to recover damages either "expressly or by implication." 372 F.2d at 1007.

None of the federal statutes in Plaintiffs' Second Amended Complaint expressly provide a substantive private right to recover money damages. Thus, the Court must decide whether such right should be implied.

The Supreme Court in Cort v. Ash, 422 U.S. 66 (1975), set out four factors for implying a private right of action.

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to creat such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action solely on federal law?

Id. at 78 (citations omitted). Recently, the Supreme Court has primarily relied on congressional intent, using the Cort factors as evidence of that intent. Touch Ross & Co. v. Redington, 442 U.S. 560 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979).

Plaintiffs cite no authority indicating that Congress implied a private right of action for damages under any of the federal statutes cited. This Court thoroughly examined each statute cited by Plaintiffs and concludes that none create a private right of action for money damages.

United States Officers Acting in Their Individual Capacity

In Counts 4, 6, 8, 11, and 16, Plaintiffs seek damages from government officials in their individual capacity for negligence and nuisance torts. Plaintiffs, however, failed to allege diversity jurisdiction. 28 U.S.C. § 1332 (Supp. 1983). Additionally, because the prairie dogs were not reduced to possession, these Defendants are not liable for money damages.

Lastly, this Court held that none of the federal statutes create a private right of action. Consequently, these defendants are not liable for money damages under Counts 1, 2, 3, 5, 7, 9, 10, 12, 13, 14, and 15.

1. Presumably, Plaintiffs assert jurisdiction in this Court under the Tucker Act, 28 U.S.C. § 1346(a)(2) (Supp. 1983), for their takings claim.

2. Specifically, the federal statutes cited by Plaintiffs in their Second Amended Complaint are as follows: Count 1 — The Organic Administration Act of June 4, 1987, as amended 16 U.S.C. § 551 et seq. (1974), Count 2 — The Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq. (Supp. 1976), Count 3 — alleges statutory violations of the three federal statutes cited in Counts 1, 2, and 12, Count 5 — The FLPMA, Count 7 — The Indian Reorganization Act of 1934, 25 U.S.C. § 466 (1983), County 9 — The Animal Damage Control Act of 1931, 7 U.S.C. § 426 (1980), Count 12 — The Bankhead-Jones Farm Tenant Act, 7 U.S.C. § 1010 et seq. (Supp. 1983), Count 13 — same as in Count 12, Count 14 — The Forest and Rangeland Renewable Resources Planning Act of 1974 and Count 15 — The National Park Service Organic Act, 16 U.S.C. 1 et seq. (1974).