Black Dog Outfitters, Inc. v. Idaho Outfitters & Guides Licensing Bd.

873 F.Supp.2d 1290

BLACK DOG OUTFITTERS, INC., Plaintiff,

v.State of IDAHO OUTFITTERS AND GUIDES LICENSING BOARD, United States Department of the Interior/Bureau of Land Management and United States Department of Agriculture/United States Forest Service, Defendants.

Civil No. 09–CV–00663–E–EJL.

United States District Court, D. Idaho.

May 30, 2012.

John M. Curney, Jr., Curney, Garcia, Farmer, Pickering & House, San Antonio, TX, for Plaintiff.

Bruce J. Castleton, Naylor and Hales, Nicholas J. Woychick, U.S. Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM ORDER

EDWARD J. LODGE, District Judge.

INTRODUCTION

Pending before the Court in the above-entitled matter are Defendant United States Department of the Interior/Bureau of Land Management and United States Department of Agriculture/United States Forest Service's (the “Federal Defendants”) Motion for Summary Judgment, Defendant State of Idaho Outfitters and Guides Licensing Board's (“IOGLB”) Motion for Summary Judgment, and Plaintiff's Motions to Modify and Supplement the Administrative Record. The parties have filed their briefing and the matters are ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record. Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Black Dog Outfitters, Inc. (“Black Dog”), is an Idaho corporation that provides outfitting services for hunting and fishing excursions on the Snake River in Idaho. (Dkt. 56.) Black Dog currently holds certain permits and licenses on the Snake River for waterfowl hunting and related services from various regulatory agencies: IOGLB, the United States Forest Service (“Forest Service”), and the Bureau of Land Management (“BLM”). The claims in this case arise as a result of Black Dog's failed attempts to obtain additional outfitting licenses and permits, in particular to include fishing services, on the Snake River from these same agencies.

The current regulatory scheme allows for only a limited number of permits and licenses to be issued for outfitters on the South Fork of the Snake River. All of the permits and licenses allowed by the regulations have been issued to other outfitters. In October of 2007 Black Dog undertook its own investigation into the availability of outfitting opportunities on the South Fork on the Snake River and concluded that the river was not being used to capacity. (Dkt. 56, pp. 5, 8–9.) As a result of its findings, Black Dog submitted applications to each of the Defendant agencies seeking to have additional outfitting permits/licenses issued to it on four different resources. (Dkt. 56, p. 9.) Defendants denied Black Dog's permit/license requests generally stating there were no new permits/licenses available under the regulations and none could be created until a capacity study is undertaken to determine whether there is a need for additional permits.

Black Dog argues the denials were without any basis other than “the fact that the government agencies noted that there were ‘no available licenses or permits' for the resources.” (Dkt. 56, p. 9.) The denials of its applications and requests, Black Dog claims, are arbitrary and capricious as there is no scientific basis or study to support the regulatory limitation on the number of outfitter licenses for the resource. In particular, Black Dog alleges that the various state and federal agencies responsible for regulation of the South Fork had never, prior to the summer of 2008, conducted a capacity study nor shown any basis for the current limitations on the numbers of permits and licenses. (Dkt. 56, pp. 7–8, 10.) Although the Federal Defendants have indicated they would undertake a capacity study in 2008, Black Dog points out the study has never materialized. (Dkt. 56, p. 11.) Black Dog further questions the viability of any such study's objectivity or scientific basis and, instead, argues it is only intended to confirm the status quo limiting the number of outfitter permits and licenses. (Dkt. 56, pp. 19–20.)

As part of its investigation and pursuit of new permits/licenses, Black Dog began requesting information to support the findings of its studies that the resource was being underutilized. This included Freedom of Information Act (“FOIA”) requests. Thereafter, Black Dog alleges, the Defendants violated its First Amendment Rights to free speech and took discriminatory action toward it by restricting it from utilizing its waterfowl hunting license because of the complaints and actions Black Dog had taken in regard to its information requests. (Dkt. 56, pp. 11–12.) Black Dog contends there was no opportunity to comment on these actions that the Defendants took intending to intimidate and retaliate against it. (Dkt. 56, pp. 12–13.) In addition, Black Dog points out the existing permits are held almost exclusively by two owners, creating a monopolistic situation that is enabled by the Federal Defendants and the IOGLB. (Dkt. 56, pp. 14–16.) The Defendants, Black Dog argues, implicitly exempts these two owners and their operations from having to comply with regulations while using the regulations to effectively exclude Black Dog. (Dkt. 56, p. 21.)

On December 18, 2009, Black Dog, filed its initial Complaint in this action alleging jurisdiction under 28 U.S.C. § 1331, § 1367 and § 1337. (Dkt. 1.) On May 10, 2010, the Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court denied the Motion to Dismiss and granted Black Dog's request to amend its Complaint. (Dkt. 45.) Thereafter, Black Dog filed its Third Amended Original Complaint (“Amended Complaint”) wherein it sought declaratory relief pursuant to the First, Fifth, and Fourteenth Amendments as well as the Commerce Clause. (Dkt. Nos. 56, 58.) On May 13, 2011, 790 F.Supp.2d 1248 (D.Idaho 2011), the Court granted in part and denied in part the Federal Defendants' Motion to Dismiss leaving only two claims to be resolved in this case: violation of the First Amendment by Retaliation and Violation of Equal Protection. (Dkt. 71.) The Defendants have now each filed Motions for Summary Judgement contesting these claims. Black Dog has filed its Motions to Modify and Supplement the Administrative Record. The Court now takes up these pending Motions.

STANDARD OF LAW

Judicial review of administrative agency decisions under the Administrative Procedures Act (“APA”) is based on the administrative record compiled by the agency—not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir.1994). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” SeeFed.R.Civ.P. 56(a).

In reviewing an agency action under the APA, the Court must determine whether the action is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Id. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Id. (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). In reviewing that explanation, the court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. (citing Bowman Transp. Inc. v. Arkansas–Best Freight Syst., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

DISCUSSION

1. Black Dog's Permit History

Black Dog is licensed by the IOGLB for certain boating, fishing, and waterfowl hunting activities in various areas of the state of Idaho. As relevant to this action, Black Dog holds a license to conduct waterfowl hunting on the South Fork of the Snake River. (Dkt. 56.) ¹ In February of 2008, Black Dog's license was amended to allow it to provide boating services on the Snake River solely for purposes of transporting waterfowl hunting clients during the season for waterfowl hunting in the areas in which Black Dog is licensed to engage in waterfowl hunting activities. (IOGLB 265, 1553–58, 1562.)

In June of 2008, Black Dog appeared before the IOGLB to present its argument that the South Fork of the Snake River was being underutilized. Black Dog proposed that the IOGLB reallocated user days on the South Fork of the Snake River from the currently licensed entities who were not using all of their user days. (IOGLB 138–174.) On June 25, 2008, Black Dog also submitted an application to amend its license to allow for boating and fishing activities on several river sectio...