Flathead Irrigation District; Flathead Joint Board of Control v. RYAN K. ZINKE, Secretary of the Department of Interior

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLATHEAD IRRIGATION DISTRICT;
FLATHEAD JOINT BOARD OF
CONTROL,
Plaintiffs-Appellants,
v.
RYAN K. ZINKE, Secretary of the
Department of Interior; STANLEY
SPEAKS, Portland Area Direct Bureau of
Indian Affairs; JOSEPH MORAN, “Bud”,
Superintendent, Flathead Agency, Bureau of
Indian Affairs; U.S. DEPARTMENT OF
THE INTERIOR; BUREAU OF INDIAN
AFFAIRS,
Defendants-Appellees,
CONFEDERATED SALISH AND
KOOTENAI TRIBES,
Appellee-Intervenor.
No. 15-35701
D.C. No. 9:14-cv-00088-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Submitted February 7, 2018**
Seattle, Washington
Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,*** District
Judge.
Plaintiffs-Appellants Flathead Joint Board of Control and Flathead Irrigation
District appeal the district court’s dismissal of Counts One, Two, Four, and Five of
their Amended Complaint (AC) and the court’s denial of leave to amend. Because
we lack jurisdiction and because the district court did not abuse its discretion in
denying leave to amend, we affirm.
As the facts and procedural history are familiar to the parties, we do not
recite them here.
1. The district court properly dismissed Counts One and Four for lack of
subject matter jurisdiction. First, the district court confined itself to the limits of
Defendants-Appellees’ Federal Rule of Civil Procedure 12(b)(1) facial challenge,
accepting as true all factual allegations in the complaint and the attachments
thereto. See Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014)
(affirming that court must accept complaint’s factual allegations as true when
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Eduardo C. Robreno, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by designation.

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resolving a facial attack); Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.4
(9th Cir. 2014) (noting that requirement to accept alleged facts as true extends to
“factual allegations in the exhibits attached to [a] complaint”).
Next, the court correctly determined that Defendants-Appellees’ ongoing re-
assumption of control was not subject to judicial review because it was an act
committed to agency discretion by law. Though the Administrative Procedures
Act (APA) provides a general waiver of sovereign immunity that renders
reviewable any “final agency action for which there is no other adequate remedy in
a court,” 5 U.S.C. § 704, the APA’s § 701 carves out from this category of
reviewable conduct any “agency action” that “is committed to agency discretion by
law,” id. § 701(a)(2). This narrow exception applies here because the 1908 Act “is
drawn so that a court would have no meaningful standard against which to judge
the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985);
see also Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944, 954 (9th
Cir. 2017).
The 1908 Act’s Turnover Provision provides that upon full repayment, the
Flathead Project’s management and operation “shall pass to the owners of the
lands irrigated thereby, to be maintained . . . under such form of organization and
under such rules and regulations as may be acceptable to the Secretary of the
Interior.” 35 Stat. 444, 450. Even accepting Plaintiffs-Appellants’ parsing of the

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statute—separating its “shall” component from the clause involving the
Secretary—is proper, the relevant portion of the statute is the latter. The 1908 Act
directs that the Flathead Project’s management and operation “shall pass to the
owners of the lands irrigated thereby” upon repayment, and there can be no dispute
that such a transfer was effected in 2010.
However, the latter part of the statute provides that the lands are to be
managed and operated “under such form of organization and under such rules and
regulations as may be acceptable to the Secretary of the Interior.” 35 Stat. at 450.
This clause plainly confers oversight of the Project’s management and operations
to the Secretary’s discretion upon transfer. Here, the Secretary determined that it
was acceptable that the Project be managed and operated according to the terms of
the Transfer Agreement. One of these terms allowed for the BIA’s “emergency
reassumption of the operation and management of all or part of the Project.”
Acceptability to the Secretary affords us no meaningful standard against which to
judge the Secretary’s decision to manage the Project in this way. Thus, we lack
jurisdiction pursuant to § 701(a)(2).
We likewise lack jurisdiction under § 706(1) of the APA. This section
permits a court to compel agency action that has been “unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). Thus, for a claim to proceed under this
section, a plaintiff must “assert[] that an agency failed to take a discrete agency

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action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55,
64 (2004); see also Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923,
932 (9th Cir. 2010). “Absent such an assertion, a Section 706(1) claim may be
dismissed for lack of jurisdiction.” Alvarado v. Table Mountain Rancheria, 509
F.3d 1008, 1019-20 (9th Cir. 2007).
Here, the Secretary performed the discrete action legally required under the
1908 Act: The Secretary transferred the operation and management of the Flathead
Project upon full repayment in 2010, and acted to ensure that its management and
operation were then “under such form of organization and under such rules and
regulations as may be acceptable to the Secretary.” Plaintiffs-Appellants provide no
authority for their claim that the Secretary’s refusal to return the operation and
management of the Flathead Project after re-assuming it pursuant to the Transfer
Agreement, to an organizational entity not acceptable to the Secretary, constituted a
failure to take a legally required action. We thus lack jurisdiction under § 706(1).
2. The district court properly dismissed Counts Two and Five for lack of
jurisdiction. Dismissal was proper because the AC failed to identify a particular
“agency action” that the panel could review. See, e.g., City of Las Vegas v. Clark
County, 755 F.2d 697, 704 (9th Cir. 1984) (holding that complaint that does not
point “to a particular agency action or administrative record for the court to
review . . . is ‘insufficient to state a claim for judicial review of agency action’”

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(quoting Scott v. City of Hammond, 741 F.2d 992, 995 (7th Cir. 1984)). With
regard to the taking of land into trust, Plaintiffs-Appellants allege only that the
United States “has been taking land irrigated by the Project out of fee status and
moving it into trust status, rendering it untaxable by the Districts, in violation of
the proviso that land within a reclamation project, which the Flathead Project is,
shall not be taken into trust.” This allegation is devoid of specificity and not
sufficiently particular to confer jurisdiction under the APA.
The AC also fails to identify a final agency action. See 25 C.F.R. § 2.6(a)
(requiring exhaustion of department appeals prior to judicial review under § 704);
Hells Canyon Pres. Council, 593 F.3d at 930 (“To bring a claim under 5 U.S.C.
§ 706(2), plaintiffs must identify a final agency action upon which the claim is
based.”); Stock W. Corp. v. Lujan, 982 F.2d 1389, 1393-94 (9th Cir. 1993)
(collecting cases affirming dismissals of unexhausted claims). The apparently
ongoing nature of the alleged transfers undermines any purported finality, about
which Plaintiffs-Appellants have alleged no facts.
3. The district court properly denied Plaintiffs-Appellants’ motion for leave to
file a Second Amended Complaint on the basis of futility. After methodically
addressing each of Plaintiffs-Appellants’ proposed amendments, the court
determined that none of Plaintiffs-Appellants’ proposals would remedy the flaws
that were the basis of the district court’s dismissal. We agree, and therefore hold

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that the district court’s denial of leave to amend on the basis of futility was an
appropriate exercise of its discretion. See Cervantes v. Countrywide Home Loans,
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).
For the foregoing reasons, the district court’s dismissal of Counts One, Two,
Four, and Five of the AC and its denial of leave to amend are AFFIRMED. We
decline to address the Appellee-Intervenor’s arguments because they concern a
turnover that has not yet taken place and raise a question of statutory construction
not properly before this court on appeal.

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