LARRY R. HICKS, District Judge.
Before the court is defendant U.S. Fish and Wildlife Service's ("USFWS") motion to dismiss. ECF No. 9. For the reasons below, the court shall grant USFWS's motion and dismiss it as a defendant in this action.
I. Procedural Background
Plaintiff Lisa Helget ("Helget") is a resident of Dayton, Nevada, and the former legal custodian of a desert tortoise named Hardhat
In its motion to dismiss, USFWS contends that it is entitled to sovereign immunity from suit and, as such, should be dismissed as a defendant from this action. See ECF No. 4. The court agrees.
Before a court exercises jurisdiction over a suit against the government, the court must have "a clear statement from the United States waiving sovereign immunity, [along with] a claim falling within the terms of the waiver." U.S. v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Unless and until a waiver of sovereign immunity is presented, the United States may not be sued. U.S. v. Mitchell, 463 U.S. 206, 212 (1983). Government agencies also enjoy sovereign immunity; however, many federal statutes permit suits by private citizens against the agency when that agency fails to take action or to require an agency to take action. See Bennett v. Spear, 520 U.S. 154, 160-167 (1996) (discussing the citizen suit provision of the Endangered Species Act).
Here, defendant USFWS is a federal agency entitled to sovereign immunity and Helget fails to cite any federal statute waiving sovereign immunity. Helget only cites to NAC chapter 503, a provision of the Nevada Administrative Code which lists protected species of reptiles, including the Desert Tortoise. However, there is no provision within chapter 503 that permits a suit against the USFWS or otherwise permits a party to join the USFWS in an action under the Nevada statute. Rather, chapter 503 covers the duties of the Nevada Department of Wildlife. Further, there has been no showing that the USFWS is a necessary party in Helget's replevin action and the USFWS has asserted that it has no interest in the underlying action. Therefore, the court shall grant USFWS's motion to dismiss.
This action is before the court because USFWS, as a federal agency, removed the case to federal court pursuant to 28 U.S.C. § 1442(a). The dismissal of the USFWS as a defendant will deprive the court of its original jurisdiction over this action, and the court specifically declines to exercise supplemental jurisdiction over Helget's state law claims. Accordingly, this case shall be remanded back to the state court for further proceedings.
IT IS THEREFORE ORDERED that defendant U.S. Fish and Wildlife Service's motion to dismiss (ECF No. 9) is GRANTED. The U.S. Fish and Wildlife Service is DISMISSED as a defendant in this action.
IT IS FURTHER ORDERED that this action be remanded to the Second Judicial District Court of the State of Nevada for further proceedings.
IT IS SO ORDERED.