OPINION AND ORDER
WILLIAM J. MARTINEZ, District Judge.
The matters before the Court are (1) defendants' Motion for Summary Judgment on Plaintiff's First Claim for Relief in the Second Amended Complaint by Defendant United States of America, Defendant United States Department of the Interior, and Defendant United States Department of Agriculture, ECF No. 123; and (2) Plaintiff's Motion for Leave to File Surreply to Defendants' Motion for Summary Judgment, ECF No. 170. The Court grants in part and denies in part defendants' motion for summary judgment, albeit construed as a motion to dismiss for lack of subject matter jurisdiction, and denies as moot plaintiff's motion to file a surreply.
The Court has putative subject matter jurisdiction of this action under 28 U.S.C. § 1331 (federal question), in combination with the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA").
II. STANDARD OF REVIEW
Although defendants style their motion as one for summary judgment, the gravamen of their argument is that certain of the actions plaintiff challenges do not constitute final agency actions subject to the Court's review and are barred by the applicable statute of limitations. Because defendants are the United States and various of its agencies, defendants' motion implicates the government's waiver of sovereign immunity and accordingly the court's subject matter jurisdiction. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (noting the jurisdictional nature of waivers of sovereign immunity); see also Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir.1994), cert. denied, 514 U.S. 1109, 115 S.Ct. 1960, 131 L.Ed.2d 852 (1995) (recognizing that federal courts are courts of limited jurisdiction and only may adjudicate claims that the Constitution or Congress have given them authority to hear and determine). As such, the Court construes the defendants' motion as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
Such a motion may consist of either a facial or a factual attack on the complaint. See Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003), cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004). Defendants' motion goes beyond the allegations of the complaint to challenge the facts on which subject matter jurisdiction rests, and thus constitutes a factual attack on the sufficiency of plaintiff's complaint. The Court, therefore, does not presume the truth of the allegations of the complaint. Sizova v. National Institute of Standards & Technology, 282 F.3d 1320, 1324 (10th Cir. 2002). Rather, the Court has "wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Davis, 343 F.3d at 1296 (quotation marks omitted).
A. MOTION FOR LEAVE TO FILE SURREPLY
Before addressing the substance of the motion, however, the Court must consider plaintiff's motion for leave to file a "surreply."
B. MOTION REGARDING SUBJECT MATTER JURISDICTION
The Court now turns to the merits of defendants' motion. The facts of this case are well known to the parties and need not be repeated at length. Simply stated, plaintiff contends that the U.S. Forest Service ("Forest Service")
The Court's subject matter jurisdiction over APA actions is limited to claims regarding "final agency actions" that are raised within the relevant statute of limitations. See 5 U.S.C. § 704; see Gordon v. Norton, 322 F.3d 1213, 1219-20 (10th Cir.2003) (affirming dismissal for lack of subject matter jurisdiction because, inter alia, challenged action was not final agency action); Urabazo v. United States, No. 91-6028, 947 F.2d 955, 1991 WL 213406, at *5 (10th Cir. Oct. 21, 1991) (table case), cert. denied, 505 U.S. 1223, 112 S.Ct. 3037, 120 L.Ed.2d 906 (1992) (holding action should be dismissed for lack of jurisdiction because it is barred by limitations period of § 2401(a)). Plaintiff has the burden of proving subject matter jurisdiction and an express waiver of sovereign immunity. Garcia v. United States Air Force, 533 F.3d 1170, 1175 (10th Cir. 2008); Smith v. Krieger, 643 F.Supp.2d 1274, 1281 (D.Colo.2009). Defendants contend subject matter jurisdiction is lacking in this case because the first two alleged violations are not "final agency actions" and the first three are barred by the six-year statute of limitations applicable to the APA.
1. Final Agency Action
Defendants first claim their renaming of the road to "Forest System Road 110-A" is not a final agency action subject to this Court's review.
a. Renaming of the Road
It is undisputed that the road was identified in the Forest Service database prior to 1984 as "Forest Development Road 152." (Defendants' Motion for Summary Judgment, ECF No. 123, ¶ 7 at 6.) Beginning in 1996, the road was renumbered twice and was ultimately renamed in 2001 as "National Forest System Road 110.A." Defendants characterize these acts as simply giving a pre-existing road a new identification number or terminology. Defendants therefore claim the 2001 renaming does not possess the requisite legal consequences to deem it a "final agency action." (Id. at 14.) In response, plaintiff argues the renaming resulted in a furtherance of the "uncertainty regarding the public's right to use the full length of the road and trailhead, as well as uncertainty regarding Plaintiff's ability to completely close the portion of the road that crosses his property." (Plaintiff's Response to Motion for Summary Judgment, ECF No. 139, at 15.)
Plaintiff's argument regarding the legal consequences flowing from the name change is wanting. Plaintiff neither points to supporting case law nor proffers a policy argument as to why "uncertainty" regarding rights equates to a determination of those rights or obligations, or to an actual legal consequence. Moreover, the impotency of the name change is reflected in the fact that the parties' and the public's rights would have remained the same had the name not been changed at all. See Golden and Zimmerman, 599 F.3d 426, 433 (4th Cir.2010) (comparing the rights before and after the challenged publication as part of determining whether the challenged publication resulted in legal consequences). Legal consequences emanate from an act that establishes rights to the road, not from the simple act of renaming the road after the rights have already been determined. Accordingly, the Court finds the defendants' renaming of the road in 2001 does not constitute a final agency action and, thus, the Court lacks subject matter jurisdiction to review it. This aspect of plaintiff's First Claim for Relief shall be dismissed with prejudice.
Having determined the Court lacks subject matter jurisdiction to review the 2001 renaming of the road, the Court need not determine whether plaintiff's challenge to the same is barred by the applicable statute of limitations. The Court is, however, left to determine whether the actions remaining at issue in this motion are barred by such statute of limitations.
2. Statute of Limitations
Defendants contend that plaintiff's challenges to the initial designation of the road and the establishment of the trailhead are barred by the statute of limitations. "In the absence of a specific statutory limitations period, a civil action against the United States under the APA is subject to the six year limitations period found in 28 U.S.C. § 2401(a)." Nagahi v. Immigration & Naturalization Service, 219 F.3d 1166, 1171 (10th Cir.2000). This statute provides:
28 U.S.C. § 2401(a). As the parties recognize, the APA acts as a waiver of the government's sovereign immunity. The limitations period of § 2401(a) limits the scope of that waiver and, thus, governs the jurisdiction of the Court. See Ute Distribution Corp. v. Secretary of Interior of the United States, 584 F.3d 1275, 1282 (10th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 3285, 176 L.Ed.2d 1185 (2010) (suggesting that section 2401(a) is jurisdictional); Urabazo, 1991 WL 213406 at *1.
Construing the evidence in the light most favorable to plaintiff, the evidence shows that the road was first designated "Forest Development Road 152" no later than 1984 and that the trailhead was first established in 1998. Obviously, these actions occurred more than six years prior to the date this action was instituted in 2009. See Ute Distribution, 584 F.3d at 1282 ("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.").
Plaintiff counters that his claims did not accrue until December 2008, "when the [Forest Service] provided Plaintiff with a clear indication that it would no longer pursue a solution to the [dispute]." (Plaintiff's Response to Motion for Summary Judgment, ECF No. 139, at 18.) In support of his position, plaintiff proffers evidence that prior to that date, he was working with the Forest Service to relocate the trailhead and close a portion of the road. Such arguments and evidence tend to suggest not an issue of accrual
a. Initial Designation of the Road
Even assuming equitable tolling applies to extend the limitations period of § 2401(a), the doctrine cannot save plaintiff's claim regarding the Forest Service's initial designation of the road. Under the facts as asserted by plaintiff, the Forest Service first attempted to resolve the conflict and obtain a right of way in 1992—at least eight years after the road was declared a Forest Service road. Thus, the statute of limitations already had expired prior to any conduct that would give rise to equitable tolling. As such, this portion of plaintiff's First Claim for Relief also shall be dismissed with prejudice.
b. Establishment of Trailhead
A more complicated issue, however, is whether equitable tolling saves plaintiff's claim concerning the establishment of the trailhead in 1998. As a threshold issue, the Court must determine whether the limitations period of § 2401(a) is subject to equitable tolling. Because the parties failed to address equitable tolling in their principal briefs, the Court requested supplemental briefing on the issue.
The central argument of the defendants' supplemental brief appears to be that § 2401(a) is a jurisdictional statute of limitations and, therefore, cannot by definition be subject to equitable tolling. (Supplemental Brief re Equitable Tolling by Defs., ECF No. 185 ("The [Supreme] Court ... reaffirmed ... that governmental statutes of limitations defined the court's jurisdiction. A court may not expand the terms of a waiver of sovereign immunity; therefore, equitable tolling is not permitted.").) The Court agrees that § 2401(a) is jurisdictional in nature because it limits Congress's waiver of sovereign immunity. See, e.g., Urabazo, 1991 WL 213406 at *1 ("Unlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity"); Cherry v. U.S. Department of Agriculture, 13 Fed.Appx. 886, 891 (10th Cir.2001) (same). As shown below, however, defendants' supposition that a jurisdictional statute of limitations necessarily precludes equitable tolling is not accurate. While the Court is not unsympathetic to the defendants' confusion on this point, see John R. Sand, 552 U.S. at 133-34, 128 S.Ct. 750 (noting the "jurisdictional" label has often been used as shorthand for those statutes of limitations that are not subject to equitable tolling), a review of the Supreme Court and relevant Tenth Circuit decisions shows that a statute of limitations may limit the government's waiver of sovereign immunity but nonetheless be subject to tolling.
To begin, the Supreme Court in Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) held that the "rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id. In doing so, the Supreme Court did not distinguish between jurisdictional and procedural statute of limitations, reasoning that this general rule is "likely to be a realistic assessment of legislative intent" and "amounts to little, if any, broadening of the congressional waiver" of sovereign immunity. Id. at 94, 111 S.Ct. 453. Equitable tolling, therefore, applies unless it is shown that Congress did not intend it to apply. See United States v. Brockamp, 519 U.S. 347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (phrasing the inquiry under Irwin as, "Is there good reason to believe that Congress did not
The Supreme Court subsequently narrowed the circumstances in which Irwin's rebuttable presumption applies, holding that it does not apply to statutes of limitations for which the Supreme Court "previously provided a definitive interpretation." John R. Sand, 552 U.S. at 137, 128 S.Ct. 750. In other words, the Irwin rebuttable presumption applies only if stare decisis does not resolve the issue.
With this analytical framework in place, the Court returns to the instant case. To date, the Supreme Court has not ruled on the interpretation of § 2401(a), but Tenth Circuit law indicates that § 2401(a) is a jurisdictional statute of limitations that is subject to equitable tolling.
While Urabazo passed on the issue of jurisdiction sub silentio, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); San Juan County, Utah v. United States, 503 F.3d 1163, 1214 n. 4 (10th Cir.2007), its reasoning is consistent with the collective holdings of Irwin and John R. Sand which teach a rebuttable presumption of equitable tolling applies to statutes of limitations for which the Supreme Court has not provided an interpretation, including § 2401(a). See John R. Sand, 552 U.S. at 145-46, 128 S.Ct. 750 (Ginsburg, J., dissenting) ("[T]he [majority] Court implies that Irwin governs the interpretation of all statutes we have not yet construed-including, presumably ... § 2401."). Notably, the defendants offer nothing that evinces Congressional intent that § 2401(a) not be subject to equitable tolling. Thus, the Court finds Urabazo to be persuasive authority that § 2401(a), though jurisdictional, is nonetheless subject to equitable tolling.
It is not disputed that, prior to the establishment of the trailhead in 1998, plaintiff and the Forest Service were in discussions regarding their respective rights to the road. These discussions continued when, in January 2001, plaintiff began working with the Forest Service to re-route the trail and move the trailhead. Two months later, the Forest Service informed plaintiff that it had, in fact, decided to relocate the trailhead. From that point until 2008, the Forest Service provided plaintiff with reasons for its delay in relocating the trailhead, including the need for an environmental analysis of the new location and lack of adequate funding.
Defendants do not contend plaintiff failed to act diligently in pursuing his claim, and, from these facts, the Court does not find any evidence that he did. Additionally, the Court finds that the Forest Service's conduct reasonably lulled plaintiff into believing the issue would be resolved without need of a formal challenge to the agencies' decision. For these reasons, the Court finds the six year limitations period should be tolled approximately seven years (from 2001 to 2008) such that the Court possesses subject matter jurisdiction to this aspect of plaintiff's First Claim for Relief.
In accordance with the foregoing, the Court lacks subject matter jurisdiction to review the defendants' declarations of the road as "Forest Development Road 152" and "Forest System Road 110-A." The Court, however, has subject matter jurisdiction over plaintiff's challenge to the defendants' establishment of the trailhead in 1998.
THEREFORE, IT IS ORDERED as follows:
1. Defendants' Motion for Summary Judgment on Plaintiff's First Claim for Relief in the Second Amended Complaint by Defendant United States of America, Defendant United States Department of the Interior, and Defendant United States Department of Agriculture, ECF No. 123, filed June 23, 2010 is GRANTED IN PART AND DENIED IN PART;
2. The part of plaintiff's First Claim for Relief asserted in paragraph A of plaintiff's Second Amended Complaint at 7, ECF No. 111, filed May 14, 2010 and addressed herein, is DISMISSED WITH PREJUDICE as barred by the applicable statute of limitations;
4. Plaintiff's Motion for Leave To File Surreply to Defendants' Motion for Summary Judgment, ECF No. 170, filed October 14, 2010, is DENIED AS MOOT; and
5. The parties shall jointly contact the chambers of the Magistrate Judge within five days of the date of this Order to obtain a date certain by which they will submit a proposed scheduling order that provides a timetable for discovery, briefing, and the submission of the administrative record for the remaining challenged actions.
In his supplemental briefing, however, Plaintiff identifies for the first time the continuing violation doctrine as a basis for his contention that the claims did not accrue until December 2008. (Pl.'s Suppl. Brief, ECF No. 182, at 2, 5.) As discussed infra, the Court requested supplemental briefing on the sole issue of equitable tolling. The Court, therefore, will not consider Plaintiff's extraneous argument regarding the continuing violation doctrine. Moreover, even assuming the Court were to consider the doctrine, and assuming the doctrine is applicable to § 2401(a), see Wild Fish Conservancy v. Salazar, 688 F.Supp.2d 1225, 1234 (E.D.Wash. 2010) (discussing split in the circuits regarding whether suits alleging agency inaction are subject to the continuing violation doctrine), it is not applicable in this case where the challenged agency's actions are discrete. See Matthews v. Wiley, 744 F.Supp.2d 1159, 1170 (D.Colo.2010) (regarding Title VII claim).