Gordon v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 25 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STEPHEN M. GORDON; DIAMOND
G RANCH, INC., a Wyoming
corporation,

Plaintiffs - Appellants,
No. 01-8102
v.

GALE NORTON, Secretary of the
Interior; UNITED STATES
DEPARTMENT OF INTERIOR;
UNITED STATES FISH AND
WILDLIFE SERVICE,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 98-CV-1025-D)

John C. Martin, Patton Boggs LLP, Washington, D.C., (Susan M. Mathiascheck,
Alexandra V. Butler, Patton Boggs LLP, Washington, D.C.; Richard E. Day,
Williams, Porter, Day & Neville, Casper, Wyoming, with him on the briefs), for
Plaintiffs-Appellants.

Katherine J. Barton, U.S. Department of Justice, Washington, D.C., (Margot
Zallen, Of Counsel, U.S. Department of the Interior, Denver, Colorado;
Thomas L. Sansonetti, Assistant Attorney General, Washington, D.C.; David C.
Shilton, U.S. Department of Justice, Washington, D.C., with her on the brief), for
Defendants-Appellees.
Before MURPHY, ANDERSON, and O’BRIEN, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Appellants Stephen Gordon (“Gordon”) and the Diamond G Ranch, Inc.

(“Diamond G”) challenge the Fish and Wildlife Service’s (“FWS”) control of gray

wolves introduced under the Northern Rocky Mountain Wolf Recovery Plan

(“Recovery Plan”) near the Diamond G in the Dunoir Valley of northwestern

Wyoming. Seeking declaratory and injunctive relief, they filed this action in

federal district court alleging violations of the Fifth Amendment Takings Clause

and the regulations promulgated under the Endangered Species Act (“ESA”). The

district court dismissed the takings claims for lack of subject matter jurisdiction

and the ESA claims as not yet ripe for review. This court has jurisdiction under

28 U.S.C. § 1291 and affirms.

II. BACKGROUND

A. The Northern Rocky Mountain Wolf Recovery Plan

The ESA is designed to protect and conserve endangered and threatened

species and the ecosystems upon which they may be conserved. 16 U.S.C. §

1531(b). To accomplish this, the ESA authorizes FWS, acting as proxy for the

Secretary of the Interior, to identify endangered or threatened species and issue

-2-
regulations to conserve such species. Id. § 1533(a), (d). The ESA also authorizes

the designation of nonessential, experimental populations of threatened species

and the promulgation of rules concerning the management of such populations.

Id. § 1539(j); Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1229 (10th Cir.

2000).

The gray wolf has been listed as an endangered species in the lower forty-

eight states, except Minnesota, since 1978. 50 C.F.R. § 17.11; Wyo. Farm

Bureau, 199 F.3d at 1228. In 1994, the Secretary of the Interior adopted an

updated Recovery Plan which called for the annual reintroduction of fifteen gray

wolves in Yellowstone National Park and central Idaho, two nonessential,

experimental population areas. Wyo. Farm Bureau, 199 F.3d at 1228-29. The

Department of the Interior also adopted regulations to manage these populations.

50 C.F.R. § 17.84. These regulations authorize FWS to designate as problem

wolves those animals that attack livestock once within a calendar year or attack

domestic animals twice within a calendar year and to “take” such wolves. Id. §

17.84(i)(3)(vii). Authorized “takes” include: aversive tactics, nonlethal control,

relocation, and lethal control. Id.

B. Reintroduced Wolves on the Diamond G Ranch

In 1997, two reintroduced wolves and their five pups, a pack known as the

Washakie Pack, traveled to the Diamond G in the Dunoir Valley. On October 8

3
-3-
and 11, 1997, the Diamond G reported potential wolf depredation of cattle to

Wyoming Game and Fish personnel. None of the kills were confirmed as wolf

kills. While no wolf depredation had been confirmed, FWS personnel joined

Wyoming Wildlife Services (“WS”) personnel to assist in controlling the

Washakie Pack on October 16 because the adult male wolf had been observed

chasing Diamond G cattle. FWS decided to try to trap the pack and move them to

a pen in Yellowstone National Park. FWS and WS personnel also monitored and

harassed the wolves in an attempt to deter them from Diamond G cattle. On

October 19, another calf killing was discovered, and it was determined that

wolves were responsible. FWS decided to kill the adult male wolf after observing

it actively hunting cattle and determining that it had been involved in prior

depredations in Montana. FWS also recommended, however, to observe the adult

female wolf and the pups before making a decision regarding further control

actions.

The adult female wolf and her pups remained together and were reportedly

chasing cattle in November. No new depredations were reported and the cattle

were moved to a lower elevation for winter. FWS continued to monitor the adult

female wolf and the pups throughout the winter of 1997-98.

In a letter to FWS dated March 16, 1998, Gordon’s attorney expressed his

client’s concern regarding the management of wolves on the Diamond G. Jaime

4
-4-
Rappaport Clark (“Clark”), Director of FWS, responded in a letter dated April 24,

1998 (“Clark Letter”). In this letter, Clark described the objectives of the

Recovery Plan and FWS’ efforts in minimizing wolf depredation of livestock;

summarized the wolf depredation that occurred on the Diamond G in October

1997; described compensation plans; and described future plans for wolf

management on the Diamond G.

The Diamond G Ranch Manager reported that a guard dog was attacked in

April 1998. This attack was not confirmed as a wolf attack. Two other dogs,

however, were confirmed to have been killed by a wolf in late April 1998.

Gordon and Diamond G filed this action on June 2, 1998.

Three cattle kills were reported in June 1998, one of which was confirmed

as a wolf kill and the other two were determined to be “highly probable” wolf

kills. FWS decided to take further action to control the Washakie Pack and on

June 21 killed the adult female wolf and one yearling pup. The Diamond G

Ranch Manager reported additional cattle losses in July and August. No

investigation occurred, however, because the carcasses were not reported for

several days after they were found. By August 25, 1998, the remaining wolf pups

moved to the Yellowstone National Park about 25-30 miles from Diamond G.

5
-5-
 After the remaining wolves of the Washakie Pack dispersed, other wolves

moved into the area near Diamond G. It is expected that these wolves may also

depredate on Diamond G livestock.

III. ANALYSIS

A. Takings Claims

This court reviews de novo the district court’s decision that it lacked

subject matter jurisdiction over plaintiffs’ takings claims. See Madsen v. United

States ex rel. United States Army Corps of Eng’rs, 841 F.2d 1011, 1012 (10th Cir.

1987).

The Takings Clause of the Fifth Amendment provides that “private property

[shall not] be taken for public use, without just compensation.” U.S. C ONST .

amend. V. It is clear from this text that governmental interference with private

property rights is not limited per se. First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304, 314-15 (1987). Rather, the Takings

Clause is understood only to require compensation for a “proper interference

amounting to a taking.” Id. at 315. Accordingly, equitable relief is not available

to enjoin a lawful taking when a property owner can subsequently sue the

government for compensation. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016

(1984).

6
-6-
 Generally, compensation for a taking may be obtained under the Tucker

Act, which confers jurisdiction on the United States Court of Claims. 28 U.S.C. §

1491; Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 11-12 (1990).

Thus, if a Tucker Act remedy is available, plaintiffs must first avail themselves of

the process provided by the Tucker Act and file suit in the Court of Claims for

compensation. Preseault, 494 U.S. at 11-12; E. Enters. v. Apfel, 524 U.S. 498,

520 (1998). A remedy is available under the Tucker Act unless Congress

expresses an “unambiguous intention to withdraw the Tucker Act remedy.”

Preseault, 494 U.S. at 12. The ESA contains no language to indicate a

Congressional intention to withdraw a Tucker Act remedy. Accordingly, the

Court of Claims retains jurisdiction over takings claims that arise under the ESA.

See id.

Plaintiffs argue, however, that the district court has jurisdiction over a

takings claim when a plaintiff alleges irreparable harm from a continuing

violation and seeks only equitable relief. Plaintiffs argue that the United States

Supreme Court decision in Eastern Enterprises is dispositive of this issue. In

Eastern Enterprises, the Supreme Court addressed the constitutionality of the

Coal Industry Retiree Health Benefit Act of 1992 (“Coal Act”), 26 U.S.C. §§

9701-9722, which mandated the contribution of money to a benefit fund

established for retirees and their dependants. 524 U.S. at 503-04. Seeking

7
-7-
declaratory and injunctive relief, the claimant company in Eastern Enterprises

filed a complaint in a federal district court alleging due process and takings

claims. Id. at 517. A majority of the Court held that the Coal Act was

unconstitutional. Id. at 538 (plurality opinion); id. at 539 (Kennedy, J.,

concurring in the judgment and dissenting in part). A different majority,

however, concluded that the Takings Clause was not implicated by the Coal Act

and that, instead, the controlling question was whether the Coal Act violated the

substantive component of the Due Process Clause. See id. at 539-47 (Kennedy, J.,

concurring in the judgment and dissenting in part); id. at 554-58 (Breyer, J.,

dissenting). Accordingly, plaintiffs’ argument that Eastern Enterprises is

dispositive of their takings claims is unavailing. 1

Moreover, plaintiffs’ takings claims fail even under the plurality’s analysis

in Eastern Enterprises. The plurality in Eastern Enterprises noted that a claim

for compensation under the Takings Clause must be brought first in the Court of

Claims unless Congress expresses a clear intention to “withdraw[] the Tucker Act

grant of jurisdiction.” Id. at 520. The plurality reasoned, however, that the

presumption of Tucker Act applicability is “reversed where the challenged statute,

rather than burdening real or physical property, requires a direct transfer of funds

mandated by the Government.” Id. at 521 (quotation omitted). The plurality

1
The Plaintiffs did not raise a due process claim.

8
-8-
reasoned that Congress could not have contemplated providing Tucker Act

compensation for liability under the Coal Act because such a compensation

scheme would require a dollar for dollar return of actual funds paid under the

Coal Act. Id. By permitting claimants to seek a declaration of the

constitutionality of the governmental activity prior to the taking, the plurality

reasoned, an “utterly pointless set of activities” is avoided. Id. (quotation

omitted). Accordingly, the plurality held that “[b]ased on the nature of the taking

alleged” the district court had jurisdiction over the takings claim and the power to

award declaratory and injunctive relief. Id. at 522.

The nature of the taking as discussed by the plurality in Eastern Enterprises

is clearly distinguishable from the alleged taking at issue in this case. Unlike the

claimant company in Eastern Enterprises, the lawfulness of the government

action is not at issue. See Wyo. Farm Bureau, 199 F.3d at 1241 (holding that the

Wolf Recovery Plan neither violated the ESA nor the National Environmental

Policy Act). Cf. Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir.

1984) (holding that because the alleged taking was not lawful, the plaintiff was

entitled to equitable relief and, moreover, the federal district court had

jurisdiction over the plaintiff’s claim), vacated on other grounds, 471 U.S. 1113,

1522-23 (1985).

9
-9-
 Furthermore, the alleged taking in this case is not similar to the alleged

statutory taking discussed by the plurality in Eastern Enterprises. Plaintiffs

allege takings of physical property, such as cattle, dogs, and horses. The plurality

in Eastern Enterprises distinguished takings of physical property and recognized

that a Tucker Act remedy is available for such takings. 524 U.S. at 521.

Accordingly, there is no reason to reverse the presumption of Tucker Act

applicability to plaintiffs’ takings claims for the loss of physical property.

Plaintiffs also allege the taking of their business and lifestyle and argue that these

takings are similar to the taking discussed by the plurality in Eastern Enterprises.

This argument lacks merit. The nature of the alleged taking in Eastern

Enterprises was noteworthy because it was clear that Congress had not

contemplated that a plaintiff who alleged the taking of a sum of money would be

required to sue the government under the Tucker Act for the return of the sum of

money. Id. The plurality reasoned that in such a circumstance it was appropriate

to permit the claimant company to forego the futile process of seeking Tucker Act

compensation and to challenge the constitutionality of the government action

directly. Id. By contrast, no such “utterly pointless set of activities” is created by

requiring plaintiffs to seek Tucker Act compensation for the taking of business

and lifestyle. See id.

10
-10-
 Plaintiffs also argue that the district court has jurisdiction over takings

claims when compensatory relief is inadequate. Plaintiffs, however, fail to

present any persuasive support for this argument. They rely on Southeast Kansas

Community Action Program Inc. v. Secretary of Agriculture, 967 F.2d 1452 (10th

Cir. 1992), and Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272 (10th Cir. 1991).

No takings claims, however, were raised in those cases. Plaintiffs also cite

United States Fidelity & Guaranty v. McKeithen, 226 F.3d 412 (5th Cir. 2000),

cert. denied, 532 U.S. 922 (2001); and Washington Legal Foundation v. Texas

Equal Access to Justice Foundation, 270 F.3d 180 (5th Cir. 2001), rehearing en

banc denied, 293 F.3d 242 (5th Cir. 2002). Those cases are also easily

distinguished. Id. The challenged takings in United States Fidelity & Guaranty

and Washington Legal Foundation, similar to the alleged taking in Eastern

Enterprises, involved the statutory taking of monetary assets. United States Fid.

& Guar., 226 F.3d at 417 (alleged taking arose from a statute under which

insurers were charged based on benefits paid under insurance policies written

before the statute’s effective date); Washington Legal Found., 270 F.3d at 184

(alleged taking arose from IOLTA program under which the state seized the

interest earned on client-funds in IOLTA accounts). The nature of the property

allegedly taken in this case is decidedly different from the liquid funds in Eastern

11
-11-
Enterprises, United States Fidelity & Guaranty, and Washington Legal

Foundation.

Therefore, because a Tucker Act remedy is available, the district court

lacked subject matter jurisdiction over plaintiffs’ takings claims. Plaintiffs must

file their claims in the Court of Claims for compensatory relief.

B. ESA Claims

1. The administrative record

As a preliminary matter, the plaintiffs argue that the district court erred in

denying their motion to supplement the administrative record with the following:

the government’s Wolf Control Plan concerning endangered wolves; videotape of

its investigation of a calf kill; evidence relating to attacks on Diamond G dogs in

April 1998; information on a meeting between FWS personnel and ranchers in

April 1998; verbal information provided to the government; evidence of

depredations prior to the fall of 1997 and after the April 24, 1998 letter; and

evidence of harm to the Diamond G. While the plaintiffs argue that this evidence

is pertinent to a review of the merits of their claims, they do not argue that it is

relevant to determining whether this case presents issues ripe for review.

Accordingly, because this court holds that it lacks subject matter jurisdiction over

the plaintiffs’ ESA claims on the grounds of ripeness, this issue need not be

resolved.

12
-12-
 2. Ripeness

Under the ESA citizen-suit provision, “any person may commence a civil

suit . . . to enjoin any person, including the United States and any other

governmental instrumentality or agency . . . who is alleged to be in violation of”

the ESA “or regulation issued under” the ESA. 16 U.S.C. § 1540(g)(1)(A). The

APA governs judicial review of agency action challenged through the ESA

citizen-suit provision. Coalition for Sustainable Res., Inc. v. United States Forest

Serv., 259 F.3d 1244, 1249 (10th Cir. 2001). A claim, however, must be ripe for

a federal court to maintain subject matter jurisdiction. Park Lake Res. Ltd Liab.

Co. v. United States Dep’t of Agric., 197 F.3d 448, 450 (10th Cir. 1999). In

determining whether a case is ripe for review under the APA, the following

factors are considered:

(1) whether the issues in the case are purely legal; (2) whether the agency
action involved is “final agency action” within the meaning of the
Administrative Procedure Act, 5 U.S.C. § 704; (3) whether the action has or
will have a direct and immediate impact upon the plaintiff and (4) whether
the resolution of the issues will promote effective enforcement and
administration by the agency.

Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243 (10th Cir. 1991). The district

court applied the Ash Creek factors and determined that the plaintiffs’ ESA claims

were not ripe.

This court reviews the district court’s dismissal of the plaintiffs’ ESA

claims for lack of jurisdiction on ripeness grounds de novo and “findings of

13
-13-
jurisdictional fact for clear error.” Coalition for Sustainable Res., 259 F.3d at

1249. The plaintiffs bear the burden of providing evidence of ripeness. Id. If a

party challenges the factual basis for jurisdiction, the truthfulness of the factual

allegations contained in the complaint are not presumed. Id. This court may

consider evidence not contained in the pleadings and may resolve jurisdictional

questions which do not also resolve substantive issues. Id.

Application of the Ash Creek factors to this case requires dismissal for lack

of jurisdiction over plaintiffs’ ESA claims.

1. Purely legal issues

If an issue is not purely legal, the court must exercise “greater caution . . .

prior to concluding that [it] is ripe for review.” Coalition for Sustainable Res.,

259 F.3d at 1250 (quotation omitted). Several issues involved in the review of

plaintiffs’ ESA claims require the interpretation of ESA regulations. For

example, the parties dispute whether FWS is required under ESA regulations to

relocate wolves that attack domestic animals twice within one year and remove

chronic “problem” wolves that attack livestock. 50 C.F.R. § 17.84(i)(3)(vii). If

this court were to conclude that the FWS has unfettered discretion to determine

issues related to the control of wolves, plaintiffs’ claims would fail as a matter of

law. Coalition for Sustainable Res., 259 F.3d at 1250. If, however, this court

were to conclude as a matter of law that 50 C.F.R. § 17.84(i)(3)(vii) imposes

14
-14-
substantive requirements on the FWS, this court would then be required to

examine related issues which require further factual development, i.e. what

constitutes a chronic problem wolf and satisfactory removal of a wolf. See id.

Accordingly, this case does not involve purely legal issues.

2. Finality of agency action

To determine whether an agency action is final, this court examines

“whether its impact is ‘direct and immediate,’ whether the action ‘mark[s] the

consummation of the agency’s decisionmaking process,’ and whether the action is

one by which ‘rights or obligations have been determined, or from which legal

consequences will flow.’” Colo. Farm Bureau Fed’n v. United States Forest

Serv., 220 F.3d 1171, 1173-74 (10th Cir. 2000) (citation omitted) (quoting

Bennett v. Spear, 520 U.S. 154, 178 (1997) and Franklin v. Massachusetts, 505

U.S. 788, 796-97 (1992)). The FWS has not yet formally interpreted its

regulations pertaining to the control of depredating wolves. See 50 C.F.R. §

17.84(i)(3)(vii). Because this court defers to an agency’s interpretation of its own

regulations and the FWS has not finalized its interpretation of such regulations,

consideration of this factor suggests the controversy is not ripe and the federal

courts lack jurisdiction over plaintiffs’ ESA claims. See Roberts v. Colo. State

Bd. of Agric., 998 F.3d 824, 828-29 (10th Cir. 1993) (holding that the agency’s

15
-15-
interpretation of its own regulations are accorded substantial deference especially

when the regulations are “effectively legislative”).

An agency’s failure to act, however, can also become a final agency action

in three situations: 1) if the agency “affirmatively reject[s] a proposed course of

action”; 2) if the agency delays unreasonably in responding to a request for

action; and 3) if the agency delays in responding until the requested action would

be ineffective. Coalition for Sustainable Res., 259 F.3d at 1251.

Plaintiffs argue the following instances of inaction by FWS constitute final

agency actions: 1) FWS’ decision, evidenced in the Clark Letter, not to remove

problem wolves without further evidence of depredation; 2) FWS’ failure to

uphold commitments made in the Clark Letter; and 3) FWS’ failure to confirm

kills as wolf kills.

Plaintiffs’ argument that FWS’ decision not to remove problem wolves, as

evidenced in the Clark Letter, is a final agency action lacks merit. There is no

affirmative language in the Clark Letter indicating a decision by FWS not to

remove problem wolves. Rather, the language of the Clark Letter supports FWS’

contention that it was still in the decision-making process and was continuing to

gather information on wolf activity and depredations. This is evidenced by the

statement that FWS would “continue to . . . closely monitor[]” the wolves and by

the inclusion of a list of possible future actions, including the removal of the

16
-16-
wolves. Moreover, the Clark Letter does not purport to support an interpretation

of the ESA or relevant regulations. See Student Loan Mktg. Ass’n v. Riley, 104

F.3d 397, 405-06 (D.C. Cir. 1997) (holding that under certain circumstances an

agency letter that adopts an interpretation of law is a final agency action).

Finally, FWS’ postponement of its decision to remove the wolves did not create

an unreasonable delay in agency action. FWS explained in the Clark Letter that

the decision to continue monitoring the wolves prior to making a decision about

future action was based upon the recent removal of the adult male wolf and the

uncertainty whether the adult female wolf and the pups would continue to

“localize activity near the [Diamond G] Ranch.” Accordingly, FWS’ failure to

commit to removing the wolves in the Clark Letter was not a final agency action.

Plaintiffs’ argument that FWS’ failure to act on commitments made in the

Clark Letter constituted a final agency action is similarly unavailing. FWS did

not commit to any action in the Clark Letter, but rather expressed an intention to

continue to monitor the wolves and develop more information before deciding to

act. Additionally, any delay in FWS’ decision-making process after the issuance

of the Clark Letter was not unreasonable. FWS continued to monitor the wolves

after Diamond G cattle returned for grazing and did take active steps to stop the

depredation including the lethal removal of the adult female wolf and one

yearling.

17
-17-
 Finally, plaintiffs’ argument that FWS’ failure to confirm specific kills as

wolf kills constitutes final agency action also fails. While the decision to

designate a kill as a wolf kill may factor into FWS’ decision-making process

regarding future control actions, it does not have any immediate impact standing

alone. Plaintiffs also argue that FWS has a policy of using a 100% certainty

standard to confirm wolf killings and that use of this policy is a final agency

action. After reviewing the record and the materials that are the basis of

plaintiffs’ motion to supplement, evidence of such a policy has not been

presented. Accordingly, FWS’ failure to designate specific kills as wolf kills is

not a final agency action.

3. Direct and immediate impact from the agency inaction

The district court found that the direct and immediate impact on the

plaintiffs from any agency inaction was uncertain because the Washakie Pack

ceased to exist. Given the record before the court, the district court’s decision

that the Washakie Pack ceased to exist after August 1998 is not clearly erroneous.

Plaintiffs, however, argue that because of FWS’ refusal to remove problem

wolves, they have suffered harm from wolf depredations and will continue to

suffer harm from other reintroduced wolves. Given that the district court found

that the Washakie Pack ceased to exist, it is unclear whether FWS’ delay in

formulating a decision regarding the control of depredating wolves on Diamond G

18
-18-
will immediately impact the plaintiffs. Because there is no immediate threat to

the plaintiffs from the FWS’ delay, this case is not ripe for review. See Coalition

for Sustainable Res., 259 F.3d at 1252.

4. Promotion of effective administration

Addressing the merits of this case at this time will not promote efficacy in

the administration of the Recovery Plan by FWS. As discussed above, FWS has

continued to monitor the activities of the Washakie Pack on the Diamond G and

to evaluate whether to take future action against the wolves. FWS has specialized

expertise in the conservation and reintroduction of the wolves and should be

permitted to decide how to appropriately balance the interests of the plaintiffs and

the wolf recovery efforts. Id. at 1253. FWS has not yet formulated a definitive

course of action will only undermine these efforts. Accordingly, addressing the

merits of this case at this time will not increase the efficacy of the administration

of the ESA.

IV. CONCLUSION

For the foregoing reasons, this court affirms the district court’s dismissal

of plaintiffs’ takings claims on the grounds that it lacks subject matter jurisdiction

and plaintiffs’ ESA claims as not yet ripe for review.

19
-19-