                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

EASON LAND CO., LLC, an Oregon                  No.    15-35641
limited liability company; JESSE D.
WHITE; PAMELA J. WHITE, husband and             D.C. No. 2:14-cv-00951-SU
wife,

                Plaintiffs-Appellants,          MEMORANDUM*

 v.

U.S. DEPARTMENT OF THE INTERIOR,
Secretary; BUREAU OF LAND
MANAGEMENT, Director; DISTRICT
MANAGER FOR THE VALE DISTRICT
OF THE BUREAU OF LAND
MANAGEMENT; FIELD MANAGER
FOR THE JORDAN FIELD OFFICE,
VALE DISTRICT OF THE BUREAU OF
LAND MANAGEMENT; OREGON
STATE DIRECTOR OF THE BUREAU OF
LAND MANAGEMENT,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                                Portland, Oregon


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and RAWLINSON, Circuit Judges, and BURNS,** District
Judge.

      Eason Land Co., LLC, Jesse White, and Pamela White (collectively, the

“Whites”) appeal the district court’s dismissal of their claims against the Secretary

of the Department of the Interior and officials of the Bureau of Land Management

(collectively, “BLM”). The Whites asked the district court to compel the BLM to

comply with the terms of its 2008 Final Decision, and “order the BLM to

immediately remove and retrofit all water projects implicated in the Final Decision

or, alternatively, to grant Plaintiffs trade-of-use [animal unit months (AUMs)] in

proportion to the amount of water still being stored in BLM’s reservoirs” until the

BLM complies with the precise terms of the Final Decision. The Whites brought

claims under § 706(1) of the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(1); the Declaratory Judgement Act (DJA), 28 U.S.C. § 2201; and the

mandamus statute, 28 U.S.C. § 1361.

      The district court dismissed the mandamus and DJA claims for lack of

jurisdiction because there was no waiver of sovereign immunity. It dismissed the

§ 706(1) claim for failure to state a claim. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm, but conclude that the district court should have dismissed all




      **
            The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.

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three claims for lack of subject matter jurisdiction.

      1. Section 706(1) of the APA grants a cause of action to “compel agency

action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). For a

claim to proceed under § 706(1), the plaintiff must “assert[] that an agency failed

to take a discrete agency action that it is required to take.” Norton v. S. Utah

Wilderness All., 542 U.S. 55, 64 (2004) (hereinafter SUWA). “Absent such an

assertion,” the “claim may be dismissed for lack of jurisdiction.” Alvarado v.

Table Mountain Rancheria, 509 F.3d 1008, 1019–20 (9th Cir. 2007).

      The Whites do not challenge the substance of the Final Decision. Instead,

they challenge the BLM’s implementation of that decision. The actions that an

agency takes to implement a decision are not, themselves, agency actions within

the meaning of § 706(1) of the APA. See San Luis Unit Food Producers v. United

States, 709 F.3d 798, 803 (9th Cir. 2013).

      Also, what the Whites seek to compel is not legally required. The court’s

power to compel agency action under § 706(1) is limited “to situations where an

agency has ignored a specific legislative command.” Hells Canyon Pres. Council

v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). The Whites do not identify

any statute or regulation that requires the BLM to grant them additional AUMs.

See SUWA, 542 U.S. at 65. Nor do they point to any statute or regulation

mandating that the BLM reduce the number of AUMs in the 1973 Agreement in



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proportion to the number of reservoirs the BLM retrofits or abandons. Because the

Whites do not challenge a failure to take or unreasonably delay a discrete agency

action that is legally compelled, the district court did not have subject matter

jurisdiction over their § 706(1) claim.

      2. We also affirm the district court’s dismissal of the Whites’ DJA claim for

lack of subject matter jurisdiction. The DJA “does not by itself confer federal

subject-matter jurisdiction,” so a plaintiff seeking a declaratory judgment must

“plead an independent basis for federal jurisdiction.” Nationwide Mut. Ins. Co. v.

Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005). Because the Whites rely on their

§ 706(1) claim to support their DJA claim, we dismiss the DJA claim for lack of

jurisdiction.

      3. We affirm the district court’s dismissal of the Whites’ claim for

mandamus relief for lack of subject matter jurisdiction as well. The mandamus

statute does not waive the United States’s sovereign immunity. See Mashiri v.

Dep’t of Educ., 724 F.3d 1028, 1031 (9th Cir. 2013). Here, there is no “clear,

ministerial duty to act,” so the acts of the BLM officers are “imputed to the United

States and are subject to sovereign immunity to the same extent as the claims

against the United States.” Tucson Airport Auth. v. Gen. Dynamics Corp., 136

F.3d 641, 648 (9th Cir. 1998). The United States has not waived its sovereign

immunity. The Whites have not argued that an exception to sovereign immunity



                                          4
applies. There is no subject matter jurisdiction for this claim. See Alvarado, 509

F.3d at 1015–16.

      4. The district court did not err by relying on evidence beyond the pleadings

without converting the motion to dismiss into a motion for summary judgment.

The district court properly considered this evidence when determining standing

and ripeness, which are jurisdictional. See Kingman Reef Atoll Invs., L.L.C. v.

United States, 541 F.3d 1189, 1195 (9th Cir. 2008). The district court also did not

err in considering the final Environmental Assessment when it determined that the

Whites failed to state a claim. The Whites attached the draft Assessment to their

complaint and the quoted part of the final Assessment is the same as the draft. See

Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).

      5. The district court did not abuse its discretion in denying the Whites leave

to amend their complaint. The proposed amendment did not cure the jurisdictional

defects of the original complaint and was futile. Chinatown Neighborhood Ass’n

v. Harris, 794 F.3d 1136, 1141, 1144 (9th Cir. 2015).

  AFFIRMED.




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