                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      December 20, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WILD HORSE OBSERVERS
ASSOCIATION, INC.; PATIENCE
O’DOWD; SANDY JOHNSON; CHUCK
JOHNSON; KEVIN QUAIL; ADELINA
SOSA; JUDITH CHASE; DIANE
RANSOM,                                                    No. 12-2190
                                              (D.C. No. 1:11-CV-00335-MCA-RHS)
             Plaintiffs-Appellants,                         (D. N.M.)

v.

SALLY JEWELL,* Secretary of the
United States Department of the Interior;
NEIL KORNZE, Principal Deputy
Director of United States Bureau of Land
Management; AL BACA,

             Defendants-Appellees.


                            ORDER AND JUDGMENT**




*
       Pursuant to Fed. R. App. P. 43(c)(2), Kenneth Salazar is replaced by Sally
Jewell as Secretary of the U.S. Department of the Interior and Bob Abbey, Director
of the U.S. Bureau of Land Management, is replaced by Neil Kornze, Principal
Deputy Director of the U.S. Bureau of Land Management.
**
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      The Wild Horse Observers Association (WHOA), appeals the district court’s

dismissal of its petition for injunctive relief and a declaratory judgment against the

United States Department of the Interior and the United States Bureau of Land

Management (collectively, the “BLM”), and New Mexico resident, Al Baca, who

owns land adjacent to federal land. The district court dismissed WHOA’s suit

against the BLM under Fed. R. Civ. P. 12(b)(1) as time barred and dismissed its suit

against Mr. Baca under Fed. R. Civ. P. 12(b)(6), ruling WHOA failed to state a claim

for relief against him. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

      WHOA is a non-profit corporation with a mission to protect wild horses in

New Mexico. It filed suit in 2011 under the Administrative Procedure Act (APA),

alleging there were unbranded, unclaimed wild horses on federal public land near

Placitas, New Mexico, which the BLM had failed to inventory and protect under the

Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (the “Wild

Horses Act” or the “Act”). WHOA also alleged Mr. Baca intended to round up and

remove these horses in violation of the Act. The Wild Horses Act protects unbranded

and unclaimed horses and their descendants that were found on federal public lands

that were identified in 1971 as having been used by a wild herd. Mountain States

Legal Found. v. Hodel, 799 F.2d 1423, 1433 (10th Cir. 1986). The Act requires the

BLM to “maintain a current inventory” of these wild horses and burros to “determine

appropriate management levels.” 16 U.S.C. § 1333(b). There is no private right of

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action under the Wild Horses Act, but the APA allows for judicial review of a

“final agency action for which there is no other adequate remedy in a court.”

5 U.S.C. § 704.

                             CLAIMS AGAINST THE BLM.

       The BLM, which contends there were no wild horses in the Placitas area

during surveys taken in 1971, moved to dismiss the action. It argued WHOA lacked

standing; there was no final agency action that permitted APA jurisdiction; and the

claims were time barred by the APA’s six year statute of limitations. The district

court ruled WHOA did have standing, and that WHOA’s allegation the BLM

unreasonably delayed taking inventory under the Wild Horses Act was a challenge to

discrete non-discretionary agency action. See Norton v. S. Utah Wilderness Alliance,

542 U.S. 55, 64 (2004) (holding that ‘final agency action’ includes an agency’s

failure to take a discrete agency action that it is required to take). But, in a detailed

and well-reasoned decision, the district court ruled WHOA’s APA claim was time

barred under 28 U.S.C. § 2401(a) (stating every civil action against the United States

must be “filed within six years after the right of action first accrues”).

       WHOA argued the BLM’s alleged failure to inventory the horses and protect

them under the Act was an on-going violation, and, thus, the “continuing violations”

doctrine applied to toll the statute of limitations. The district court noted that most,

but not all, federal circuits have held the continuing-violations doctrine does not

apply to APA claims that an agency failed to act. The district court concluded that,


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although the Tenth Circuit has not addressed that narrow issue, it has more broadly

ruled that “‘the continuing wrong doctrine cannot be employed where the plaintiff’s

injury is definite and discoverable.’” Mem. and Order, Aplt. App., Vol. II at 450

(quoting Ute Distrib. Corp. v. Sec’y of the Interior of the United States, 584 F.3d

1275, 1283 (10th Cir. 2009)). The district court ruled WHOA’s injury was definite

and discoverable at least as long ago as 2002. Thus, even if the continuing violation

doctrine was generally applicable to toll § 2401(a), in this case, WHOA’s claim was

still untimely.

       The district court stated that WHOA should reasonably have known of their

alleged injury in 1979, when the BLM issued a 1979 Management Framework Plan

(MFP) for an area of public lands that included Placitas. The MFP discussed a small

herd of wild horses in part of the planning area, but made no mention of any wild

horses in the Placitas area. Because this MFP demonstrated the BLM was not

managing any wild horses in Placitas area, WHOA would have reasonably known of

its claimed injury in 1979. See Ute Distrib. Corp., 584 F.3d at 1283 (cause of action

accrued under § 2401 when Secretary of Interior issued a Plan of Division, at which

time plaintiffs “knew or should have known” how the government was implementing

the division of tribal water rights). But the district court found that, in any event,

WHOA had actual knowledge of their claimed injury in September 2002.

       WHOA’s submissions to the court included minutes of a September 2002,

New Mexico Livestock Board meeting at which Plaintiff O’Dowd, speaking for


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WHOA, stated her opinion that there were wild horses near Placitas and said WHOA

had contacted an attorney because it wanted the BLM to protect these horses. At that

meeting, a BLM official stated that the agency had conducted an inventory in New

Mexico in 1971, but the Placitas horses, which the BLM believed were owned by the

San Felipe Reservation, did not fall under the BLM’s jurisdiction. Based on these

minutes, the district court ruled that WHOA had actual knowledge in 2002 that the

BLM was not protecting the horses in Placitas that WHOA believed were required to

be protected under the Wild Horses Act.

      Finally, the district court rejected WHOA’s argument that the limitations

period should be equitably tolled because they only recently discovered that the

BLM’s assertion of tribal ownership of the horses was unsubstantiated. The court

ruled WHOA had not demonstrated any actual deception by the BLM that prevented

it from pursuing its claim. Thus, it ruled WHOA’s 2011 lawsuit was untimely under

§ 2401(a).

      We review de novo the district court’s Rule 12(b)(1) dismissal for lack of

subject matter jurisdiction under § 2401. See Ute Distrib. Corp., 584 F.3d at 1282.

“We review the district court’s findings of jurisdictional facts for clear error.” Holt

v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).1 APA claims are covered by


1
       WHOA asserts the district court “improperly” made findings of fact “on a
[Fed. R. Civ. P.] 12(b)(6) motion.” Opening Br. at 45. But the district court
dismissed WHOA’s claim under Rule 12(b)(1), not Rule 12(b)(6), Aplt. App., Vol. II
at 435, and it is well-established that a district court “has wide discretion” to consider
                                                                               (continued)
                                            -5-
the six-year limitations period of § 2401(a) and must be brought within six-years of

the claim’s accrual. Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1245-46

(10th Cir. 2012). “A claim against the United States first accrues on the date when

all events have occurred which fix the liability of the Government and entitle the

claimant to institute an action.” Ute Distrib. Corp., 584 F.3d at 1282 (brackets and

internal quotation marks omitted).

      On appeal, WHOA first contends that the § 2401 limitations period should be

extended under the “continuing violation” doctrine, arguing the government owes an

ongoing duty to protect and maintain inventories of wild horses under the Wild

Horses Act. There are several unresolved predicate issues: Is § 2401’s limitation

period subject to equitable exceptions;2 if so, does the text of the Wild Horses Act

create ongoing obligations; and, if so, does the alleged inaction give rise to a


evidence outside the pleadings “to resolve disputed jurisdictional facts under Rule
12(b)(1)).” Holt, 46 F.3d at 1003.
2
       Courts “[have] no authority to create equitable exceptions to jurisdictional
requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). “Courts of Appeals
have divided on the question whether § 2401(a)’s limit is ‘jurisdictional.’” John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 145 (2008) (Ginsburg, J.,
dissenting). This court has indicated § 2401(a) is a jurisdictional statute of
limitations, see Urabazo v. United States, 1991 WL 213406, at *1 (10th Cir. Oct. 21,
1991) (unpublished) (“Unlike an ordinary statute of limitations, § 2401(a) is a
jurisdictional condition attached to the government’s waiver of sovereign immunity,
and as such must be strictly construed.” (internal quotation marks omitted)). But we
have not considered this question in a published decision, and the Supreme Court has
since held that a limitations provision should not be treated as “jurisdictional” unless
Congress has clearly indicated that the rule is jurisdictional. Sebelius v. Auburn Reg’l
Med. Ctr.,       U.S.      , 133 S. Ct. 817, 824 (2013).


                                          -6-
continuing wrong which tolls the limitations period? But we need not address these

questions because even if they were all answered in WHOA’s favor, the continuing

violation doctrine cannot apply here because WHOA had actual knowledge of its

claimed injury in 2002.

      The continuing violation doctrine “is premised on the equitable notion that the

statute of limitations should not begin to run until a reasonable person would be

aware that his or her rights have been violated.” Davidson v. Am. Online, Inc.,

337 F.3d 1179, 1184 (10th Cir. 2003) (internal quotation marks omitted). Thus, we

have long held, as the district court noted, that “the continuing wrong doctrine cannot

be employed where the plaintiff’s injury is definite and discoverable and nothing

prevented plaintiff from coming forward to seek redress.” Tiberi v. CIGNA Corp.,

89 F.3d 1423, 1431 (10th Cir. 1996) (internal quotation marks omitted); see also

Davidson, 337 F.3d at 1184 (“a continuing violation claim fails if the plaintiff knew,

or through the exercise of reasonable diligence would have known” of its injury)

(internal quotation marks omitted).

      The record supports the district court’s finding that WHOA had actual

knowledge of its alleged injury in 2002, when it publicly expressed its opinion that

there were wild horses on federal public land near Placitas that the BLM was not

protecting under the Wild Horses Act. By that date, WHOA was aware that all the

events had occurred which fixed the BLM’s alleged liability and knew it was able to




                                         -7-
institute its action.3 See Ute Distrib. Corp., 584 F.3d at 1283 (holding a claim

accrues for purposes of § 2401(a) when the plaintiff either “knew or should have

known” that it had a claim).

      WHOA next argues it was lulled into inaction in 2002 when the BLM stated it

had conducted an inventory in 1971 and believed the wild horses were owned by the

San Felipe Pueblo. To warrant tolling, this court has held the circumstances must

rise to the level of “active deception.” Impact Energy Res., 693 F.3d at 1246

(holding tolling only appropriate where “plaintiff is actively misled or has in some

extraordinary way been prevented from asserting his or her rights.”) (internal

quotation marks omitted). The record supports the district court’s finding that

WHOA did not demonstrate the BLM actively deceived WHOA or prevent WHOA

from filing suit, and thus, the district court did not abuse its discretion in denying

equitable tolling. See id. (reviewing denial of equitable tolling for abuse of

discretion). We find no error in the district court’s dismissal of WHOA’s action

against the BLM as untimely.




3
       WHOA argues its knowledge that the BLM was not managing and protecting
the horses is “irrelevant,” because its “claim is not, and cannot be, that the [BLM]
failed to protect and manage wild Placitas horses under [the Wild Horses Act], but
rather, that the [BLM] failed to conduct historical research and inventory of the
Placitas horses to determine whether they were wild.” WHOA misstates its own
complaint, which states as its claim that “Defendant BLM Is Violating the Act By
Not Managing and Protecting Wild Free-Roaming Horses.” Aplt. App., Vol. I at 15.


                                           -8-
                               CLAIMS AGAINST BACA.

      WHOA’s petition sought injunctive relief against Mr. Baca, arguing he had

permitted the BLM to set up a temporary corral on his property and intended to round

up and remove wild horses in violation of 16 U.S.C. § 1338(a) (making it a crime to

willfully harass, capture, or kill protected wild horses). But the district court ruled

WHOA failed to state a claim against Mr. Baca because the Wild Horses Act does

not allow a private right of action, see Andrews v. Heaton, 483 F.3d 1070, 1076

(10th Cir. 2007) (holding that criminal statutes without a private right of action are

not enforceable through civil action),4 and, with rare exceptions not pled here, courts

will not enjoin criminal conduct, see Nat’l Ass’n of Letter Carriers v. Indep. Postal

Sys. of Am., Inc., 470 F.2d 265, 271 (10th Cir. 1972).5 WHOA argues on appeal that

they have a legal interest in protecting the wild horses, but we find no error in the

district court’s conclusion that WHOA did not plead facts which plausibly

demonstrate exceptional circumstances warranting injunctive relief. See United

States v. Jalas, 409 F.2d 358, 360 (7th Cir. 1969) (recognizing a court’s power to

enjoin the commission of a crime only in national emergencies, widespread public

nuisances, or statutory authorization of injunctive relief).

4
      Indeed, WHOA conceded that its “action concerning Mr. Baca is not brought
pursuant to the APA.” Aplt. App., Vol. I at 33.
5
       The district court denied as futile WHOA’s motion to amend its petition to
claim supplemental jurisdiction under 28 U.S.C. § 1367. WHOA deliberately chose
not to challenge this ruling in its opening brief, Opening Br. at 51 n.2; thus, we will
not consider any challenge to that ruling on appeal.

                                          -9-
      The judgment of the district court is affirmed for substantially the reasons

stated in its two Memorandum Opinions and Orders dated September 28, 2012.


                                                 Entered for the Court


                                                 Jerome A. Holmes
                                                 Circuit Judge




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