                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 03 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NEVADA ASSOCIATION OF                            No. 15-15620
COUNTIES; et al.,
                                                 D.C. No. 3:13-cv-00712-MMD-
              Plaintiffs - Appellants,           WGC

 v.
                                                 MEMORANDUM*
UNITED STATES DEPARTMENT OF
THE INTERIOR; et al.,

              Defendants - Appellees,

AMERICAN WILD HORSE
PRESERVATION CAMPAIGN; et al.,

              Intervenor-Defendants -
              Appellees


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                            Submitted March 14, 2017**
                             San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: WALLACE, McKEOWN, and BYBEE, Circuit Judges.

      Nevada Association of Counties, Nevada Farm Bureau Federation, Nevada

Bighorns Unlimited, and Crawford Cattle (collectively, NACO) appeal from the

district court’s judgment of dismissal of their action based on Administrative

Procedure Act (APA) and Fifth Amendment due process claims. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      The district court dismissed NACO’s APA claims for lack of subject matter

jurisdiction. We review such a dismissal de novo. ONRC Action v. Bureau of Land

Mgmt., 150 F.3d 1132, 1135 (9th Cir. 1998). The district court’s conclusion that

NACO failed to state a due process claim is also reviewed de novo. Butterfield v.

Bail, 120 F.3d 1023, 1024 (9th Cir. 1997).

      The district court did not err in dismissing NACO’s APA claims. Federal

courts lack jurisdiction over an APA claim that “does not challenge final agency

action.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 802 (9th Cir. 2013). Here,

NACO has failed to identify a specific final agency action, see Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 882 (1990), or discrete action unlawfully withheld,

see Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–64 (2004) [hereinafter

SUWA], that allegedly harmed it. Instead, NACO seeks judicial oversight and

direction of virtually the entire federal wild horse and burro management program


                                          2
in Nevada. This sort of programmatic challenge is foreclosed under the APA. See

SUWA, 542 U.S. at 66–67; Lujan, 497 U.S. at 892–94.

       Dismissal of NACO’s due process claims for failure to state a claim was also

proper. In its amended complaint, NACO alleged only that “Defendants violated

the Due Process rights of Plaintiffs under the Due Process Claus[e] of Fifth [sic]

Amendment to the Constitution in that Defendants failed to follow their own

procedures contained both in the Act and in 43 CFR Part 4700.” This conclusory

assertion is wholly insufficient to carry NACO’s burden of providing “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” (citation omitted)). Nor

did the district court abuse its discretion by denying leave to amend since NACO

had already amended its complaint once. See Allen v. City of Beverly Hills, 911

F.2d 367, 373 (9th Cir. 1990) (“The district court’s discretion to deny leave to

amend is particularly broad where plaintiff has previously amended the

complaint.” (citation omitted)).

       AFFIRMED.




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