American Farm Bureau Federation v. Block

No. 80-5070 (D.S.D. May 14, 1984)

The court holds that plaintiffs are not entitled to mandamus to force the government to control prairie dog populations, but that prairie dog control was not committed to agency discretion and so the court can review agency actions. For mandamus to lie, the duty to be compelled must be ministerial, not discretionary, and must be clearly compelled by law. None of the eight statutes cited by plaintiffs provide a non-discretionary duty to control prairie dog populations. The court holds that the actions of the federal agencies are reviewable — that is, are not committed to agency discretion by law — because there is law to apply to this case in the statutes plaintiffs list. The arbitrary and capricious standard of review will apply, and review will be limited to the administrative record.

[The court's earlier opinion in this case appears at 14 ELR 20763.]

Counsel are listed at 14 ELR 20763.

[14 ELR 20766]

Bogue, J.:

Memorandum Opinion

The "prairie dog case" continues. This Court will address the remainder of the issues and motions pending in this matter.

Mandamus

28 U.S.C. § 1361 provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The duty must be ministerial, not discretionary, in nature. Columbia Transit Corp. v. Jones, 572 F.2d 168, 170 (8th Cir. 1978). Additionally, the duty must be a positive command so plainly prescribed as to be free from doubt. Keeny v. Secretary of the Army, 437 F.2d 1151, 1152 (8th Cir. 1971). In other words, the administrative action must be clearly compelled by law, rather than mandated by broad, general statutory language. Sansom Committee v. Lynn, 366 F. Supp. 1271, 1279 (E.D. Pa. 1973).

Ostensibly, Plaintiffs seek mandamus relief in Counts 1, 2, 3, 5, 7, 9, 11, 12, 14, 15 and 16 of their Second Amended Complaint. Specifically, Plaintiffs seek to compel Federal Defendants to control prairie dog populations. This Court has reviewed all statutes cited by Plaintiffs as a basis for mandamus relief. Further, the Court has examined Plaintiffs' factual allegations in the context of each statute. None of these statutes provides a non-discretionary duty under the facts as alleged. Specifically, none of these statutes provides a ministerial duty to control prairie dog populations. Possibly, one or more of the statutes provides a duty to exercise discretion. See Kenny, 437 F.2d at 1152, quoting Rural Electrification Admin. v. Northern States Power Co., 373 F.2d 686, 694 n. 4 (8th Cir. 1967), cert. denied, 87 S. Ct. 2079 (1967). Cf. Heim v. United States, 680 F.2d 564, 566 (8th Cir. 1982) (language in 21 U.S.C. § 114a that "the Secretary of Agriculture . . . is authorized to control and eradicate communicable diseases . . .," (emphasis added), does not require Secretary to do anything). However, Plaintiffs have not alleged facts sufficient to enforce any such duty that may exist. See Alamo Navajo School Board, Inc. v. Andrus, 664 F.2d 229, 232 (10th Cir. 1981). Accordingly, Plaintiffs' request for mandamus relief will be denied.

Judicial Review

Plaintiffs' thirty-four page, sixteen count Second Amended Complaint resolves itself to whether this Court has jurisdiction to review agency action. In their jurisdictional statement, Plaintiffs aver that "[j]urisdiction . . . is predicated upon . . . [the Administrative Procedures Act,] 5 U.S.C. § 702 in that Plaintiffs are persons aggrieved and adversely affected by agency action." Plaintiffs' Second Amended Complaint, p. 4. Federal Defendants counter that agency action in this case is committed to agency discretion by law and is, therefore, unreviewable. 5 U.S.C. § 701(a)(2). Consequently, Federal Defendants assert that this Court lacks jurisdiction.

The exceptionto reviewability urged by Federal Defendants is very narrow. Citizens to Preserve Overton Park, Inc. v. Volpe, 91 S. Ct. 814, 820 [1 ELR 20110] (1971). It is applicable only in those rare instances where "statutes are drawn in such broad terms that in a given case there is no law to apply." Id. at 821, quoting S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945). Additionally, there is a basic presumption of reviewability for one adversely affected or aggrieved by agency action. Sabin v. Butz, 515 F.2d 1061, 1065 (10th Cir. 1975), citing, Abbott Laboratories v. Gardner, 87 S. Ct. 1507, 1511 (1967).

There is law to apply in this case. Applicable statutes include the Animal Damage Control Act, 7 U.S.C. § 426, the National Park Service Organic Act, 16 U.S.C. § 1 et seq., the Bankhead-Jones Farm Tenant Act, Title III, 7 U.S.C. § 1010 et seq., and the Indian Reorganization Act, 25 U.S.C. § 466. The nature of the authority and discretion granted under these statutes does not place prairie dog control within the class of unreviewable actions committed to agency discretion. This Court has subject matter jurisdiction pursuant to the Administrative Procedures Act. See Sabin, 515 F.2d at 1065.

The Supreme Court in Overton Park clearly delineated the standard of review applicable in the instant case. "In all cases agency action must be set aside if the action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Overton Park, 91 S. Ct. at 822, quoting 5 U.S.C. §§ 706(2)(A), (B), (C), (D). For the reasons stated in Overton Park, the above standard is applicable in this case and neither the substantial evidence nor the de novo review standards are applicable. Id. at 822-23.

Although the substantial evidence and de novo review standards are inapplicable, this Court must engage in substantial inquiry. Id. at 823. The basis for this inquiry is the "whole record" compiled by the agencies. Id. at 825. Consequently, this Court must conduct a plenary review based on the full administrative record that was before the respective agencies at the time of their decisions regarding prairie dog control. Id.

[U]nless an inadequate evidentiary development before the agenc[ies] can be shown and supplemental information submitted by the agency does not provide an adequate basis for judicial review, the Court in conducting the plenary review mandated by Overton Park should limit its inquiry to the administrative record already in existence supplemented, if necessary, by affidavits, depositions, or other proof of an explanatory nature.

Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 239 (8th Cir. 1975), cert. denied, 96 S. Ct. 1461 (1976); National Pork Producers Council v. Bergland, 631 F.2d 1353, 1359 (8th Cir. 1980), cert. denied, 450 U.S. 912 (1981).

Federal Defendants represent to this Court that they are prepared to submit a complete administrative record for each agency involved in this matter [Forest Service (Buffalo Gap National Grasslands), National Park Service (Badlands National Park), and the Bureau of Indian Affairs (Pine Ridge Indian Reservation)]. Memorandum in Support of Federal Defendants' Motion to Limit Review to the Administrative Record, pp. 6-7. Upon review of these administrative records, this Court will decide whether further explanation is necessary. Overton Park, 91 S. Ct. at 825, Madison Co. Bldg. and Loan Ass'n v. The Federal Home Loan Bank Bd., 622 F.2d 393, 396 (8th Cir. 1980); Camp v. Pitts, 93 S. Ct. 1241, 1243 (1973). At this point, however, review will be limited to the administrative record.