FILED
NOT FOR PUBLICATION
APR 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEVADA ASSOCIATION OF No. 15-15620
COUNTIES; et al.,
D.C. No. 3:13-cv-00712-MMD-
Plaintiffs - Appellants, WGC
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
THE INTERIOR; et al.,
Defendants - Appellees,
AMERICAN WILD HORSE
PRESERVATION CAMPAIGN; et al.,
Intervenor-Defendants -
Appellees
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 14, 2017**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.
Nevada Association of Counties, Nevada Farm Bureau Federation, Nevada
Bighorns Unlimited, and Crawford Cattle (collectively, NACO) appeal from the
district court’s judgment of dismissal of their action based on Administrative
Procedure Act (APA) and Fifth Amendment due process claims. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court dismissed NACO’s APA claims for lack of subject matter
jurisdiction. We review such a dismissal de novo. ONRC Action v. Bureau of Land
Mgmt., 150 F.3d 1132, 1135 (9th Cir. 1998). The district court’s conclusion that
NACO failed to state a due process claim is also reviewed de novo. Butterfield v.
Bail, 120 F.3d 1023, 1024 (9th Cir. 1997).
The district court did not err in dismissing NACO’s APA claims. Federal
courts lack jurisdiction over an APA claim that “does not challenge final agency
action.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 802 (9th Cir. 2013). Here,
NACO has failed to identify a specific final agency action, see Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 882 (1990), or discrete action unlawfully withheld,
see Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–64 (2004) [hereinafter
SUWA], that allegedly harmed it. Instead, NACO seeks judicial oversight and
direction of virtually the entire federal wild horse and burro management program
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in Nevada. This sort of programmatic challenge is foreclosed under the APA. See
SUWA, 542 U.S. at 66–67; Lujan, 497 U.S. at 892–94.
Dismissal of NACO’s due process claims for failure to state a claim was also
proper. In its amended complaint, NACO alleged only that “Defendants violated
the Due Process rights of Plaintiffs under the Due Process Claus[e] of Fifth [sic]
Amendment to the Constitution in that Defendants failed to follow their own
procedures contained both in the Act and in 43 CFR Part 4700.” This conclusory
assertion is wholly insufficient to carry NACO’s burden of providing “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” (citation omitted)). Nor
did the district court abuse its discretion by denying leave to amend since NACO
had already amended its complaint once. See Allen v. City of Beverly Hills, 911
F.2d 367, 373 (9th Cir. 1990) (“The district court’s discretion to deny leave to
amend is particularly broad where plaintiff has previously amended the
complaint.” (citation omitted)).
AFFIRMED.
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