                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIAM F. HOLDNER,                             No.    16-35723

                Plaintiff-Appellant,            D.C. No. 3:15-cv-02039-AC

 v.
                                                MEMORANDUM*
KATY COBA, Director of the Oregon
Department of Agriculture, in her individual
and official capacity; DICK PEDERSON,
Director of the Oregon Department of
Environmental Quality, in his individual and
his official capacity,

                Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Oregon
                   John V. Acosta, Magistrate Judge, Presiding**

                            Submitted June 26, 2017***

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      William F. Holdner appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action arising from the alleged improper

regulation of Holdner’s former cattle ranch. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm in part, vacate in part, and remand.

      In his opening brief, Holdner failed to challenge the district court’s grounds

for dismissal of his complaint, and therefore Holdner waived any such challenge.

See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)

(“[W]e will not consider any claims that were not actually argued in appellant’s

opening brief.”). We affirm the district court’s dismissal of Holdner’s action but

vacate the judgment in part and remand for the district court to dismiss Holdner’s

action without prejudice.

      The magistrate judge properly denied Holdner’s motion requesting review

by a district court judge because the parties consented to a magistrate judge. See

28 U.S.C. § 636(c)(3) (when parties provide consent to magistrate jurisdiction,

aggrieved party may appeal directly to court of appeals).

      We reject as without merit Holdner’s contentions that his action qualifies as

a citizen suit under 33 U.S.C. § 1365(a), and that the district court erred in denying

discovery, the right to introduce additional evidence, and a requested hearing.




                                          2                                    16-35723
      Appellees’ motion to take judicial notice (Docket Entry No. 11) is denied as

unnecessary.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                        3                                   16-35723
