                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JERRI JOETTE TILLETT,                           No. 16-35465

                Plaintiff-Appellant,            D.C. Nos. 1:15-cv-00048-SPW
                                                          1:15-cv-00061-SPW
 v.

BUREAU OF LAND MANAGEMENT; et                   MEMORANDUM*
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Jerri Joette Tillett appeals pro se from the district court’s summary judgment

in her actions challenging the decisions and actions of defendants Bureau of Land

Management, Interior Board of Land Appeals, and the United States Department of

the Interior (collectively, “BLM”) in connection with the management of wild


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
horses on the Pryor Mountain Wild Horse Range (“PMWHR”). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. In Def. of Animals v.

U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014). We may affirm on

any ground supported by the record. San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024, 1030 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on Tillett’s

challenges to BLM’s decisions and actions regarding fertility control and gather of

wild horses on the PMWHR because Tillett failed to raise a genuine dispute of

material fact as to whether those decisions and actions were arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law. See In Def. of

Animals, 751 F.3d at 1061 (setting forth standards for review under the

Administrative Procedure Act (“APA”) of BLM decisions and actions

implementing the Wild Free-Roaming Horses and Burros Act).

      The district court properly determined that it lacked subject matter

jurisdiction over Tillett’s claim for monetary relief because Tillett failed to show

that BLM expressly waived its sovereign immunity for such a claim. See

Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (stating that waiver of

sovereign immunity for suit for money damages “must be unequivocally

expressed,” and “[t]he party who sues the United States bears the burden of

pointing to such an unequivocal waiver of immunity” (citations and internal


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quotation marks omitted)); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d

641, 644 (9th Cir. 1998) (the APA does not provide a waiver of sovereign

immunity for money damages claims). The district court also properly determined

that it lacked subject matter jurisdiction over Tillett’s claim for investigation of

BLM’s alleged perjury, corruption and other criminal conduct because the district

court lacks authority to initiate an investigation. See United States v. Edmonson,

792 F.2d 1492, 1497 (9th Cir. 1986) (“The Executive Branch has exclusive and

absolute discretion to decide whether to prosecute.” (citation and internal quotation

marks omitted)).

      Tillett’s challenge to the district court’s alleged failure to adjudicate her

motions for preliminary injunction is dismissed as moot. See Mt. Graham Red

Squirrel v. Madigan, 954 F.2d 1441, 1449-50 (9th Cir. 1992) (when underlying

claims have been decided, reversal of district court’s effective denial of a

preliminary injunction would have no practical consequences, and the issue is

therefore moot).

      The district court did not abuse its discretion by granting BLM’s motion to

strike Tillett’s original brief in response to BLM’s summary judgment motion

because Tillett’s brief did not comply with the local rules. See El Pollo Loco, Inc.

v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (setting forth standard of review);

see also D. Mont. Civ. R. 1.5(a)(2) (requirements for documents filed with court)


                                           3                                     16-35465
& R. 7.1(d)(2) (limitations on length of briefs).

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      We reject as unsupported by the record Tillett’s contentions regarding

alleged misconduct by the magistrate judge and district judge.

      AFFIRMED.




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