author: EDWARD C. REED, Jr., District Judge.

text:
    DeMar DAHL and Thelma Eisner, Plaintiffs, v. William P. CLARK, Secretary of Interior; Robert Burford, Director, BLM; Edward F. Spang, State Director, BLM; James Fox, Battle Mountain District Manager, BLM; Frank Shields, Winnemucca District Manager, BLM, and Thomas J. Owen, Carson City District Manager, BLM, Defendants.
    No. CV-R-82-124-ECR.
    United States District Court, D. Nevada.
    Dec. 31, 1984.
    Wilson, Wilson & Barrows by Stewart R. Wilson, Elko, Nev., for plaintiffs.
    Lamond R. Mills, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., Jose Toro, Dept, of Justice, Washington, D.C., for defendants.
    Russell J. Gaspar, Washington, D.C., for American Horse Protection Assn., Inc.

       Pursuant to Fed.R.Civ.P. 25(d)(1) William Clark has been substituted for James Watt.

   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

DeMar Dahl filed this action on March 29, 1982. Following the transfer of some of the affected grazing rights to Thelma Eisner, she was joined as a plaintiff. The action seeks a writ of mandamus ordering the defendants to immediately reduce the wild horse herds on the Hole-in-the-Wall, Fish Creek, and Jersey Valley Allotments to their 1971 levels. These allotments are comprised of public lands in Pershing, Lander, and Churchill Counties, Nevada, under supervision of the Bureau of Land Management (BLM). The defendants are officials of the Department of the Interior and the BLM.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1361 which provides that:

“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

The mandamus jurisdiction of this court is limited to requiring federal officials to perform plainly described ministerial duties. Tagupa v. East-West Center, Inc., 642 F.2d 1127, 1129 (9th Cir.1981).

A bench trial was held from July 16 to 20, 1984, and completed on August 2, 1984. The parties have filed post trial briefs and oral arguments have been presented.

Plaintiffs contend that the 1971 wild horse population in all three allotments was no more than 62 animals. By 1978 this number had risen to 307 and by 1981 to 485. On July 12, 1984, John McLain, an expert witness for plaintiffs, and plaintiff DeMar Dahl flew over the allotments and Mr. McLain counted 655 head of wild horses, mostly in the Jersey Valley allotment. During the period 1971 to 1982 the BLM conducted numerous surveys and studies of range conditions in the three allotments, almost all of which reached the conclusion that the trend of the condition of the range was downward, mandating a reduction in both livestock and wild horse use. On several occasions BLM officials recommended and in some instances may have decided that a number of wild horses should be removed from the allotments, but no action was ever taken by the BLM for such removal. Plaintiffs contend that the present condition of the range is poor and deteriorating and that the Court should require the BLM to reduce the number of wild horses to 1971 levels. Plaintiffs claim that utilization of available forage on the allotments by wild horses is excessive and is contributing to the worsening condition of the range. They point to BLM records indicating severe and heavy use of key plant species used by grazing animals.

Defendants respond that they do not have an obligation under the law or regulations to reduce the wild horse population to 1971 levels. Defendants argue that the laws require them to remove wild horses only if actual ongoing substantial damage to the range is occurring because of an excess number of wild horses using it. Further, defendants argue that pursuant to his authority in 1981, Secretary of the Interior James Watt rejected prior BLM study methods and the conclusions reached from them as inaccurate, and directed the BLM officials in the field to maintain numbers of livestock and wild horses on the public lands at 1981 levels and to commence use of new monitoring studies as to range utilization. Secretary Watt believed the new study methods utilized more modern scientific methods. There was some evidence received at the trial to support Secretary Watt’s conclusion that the previous BLM studies were invalid. James Phillips, a BLM official, testified that studies by an independent consultant, as well as the experience of other states, showed that the former BLM methods of range study were inaccurate and could not be relied upon for range management decisions. In particular, defendants claimed that the so-called “one point in time” observation studies which had been used by the BLM were deficient. Plaintiffs’ evidence at trial, on the other hand, supported the validity of the prior BLM range analyses.

Defendants now also contend that there is no evidentiary or factual basis to remove any of the wild horses on any of the three allotments because the range is in adequate condition to support the present numbers of livestock and wild horses using it and that there is no substantial ongoing resource damage. Defendants contend that available utilization figures show that the plant species used by the grazing animals are not being overutilized and that use of these species is not excessive or damaging to them.

Defendants also challenge the horse censuses from 1971 forward to 1977 as inadequate and inaccurate, and incorrectly reflecting the true horse population during that period. Defendants claim that the horse numbers were actually substantially larger than the BLM censuses indicated.

The Court finds that this case is governed by the following authority.

In 1971 Congress recognized that “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” 16 U.S.C. § 1331. Congress, therefore, announced the policy that “wild free-roaming horses and burros shall be protected ... and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands.” Id.

The 1971 Act declares that all wild free-roaming horses are placed under the jurisdiction of the Secretaries of Interior and Agriculture for the purposes of management and protection. 16 U.S.C. § 1333(a). The Secretary is directed to protect and manage the wild horses as components of public lands. The Secretary is authorized to designate and maintain “specific ranges on the public lands as sanctuaries [for] their protection and preservation.” Id. Such wild horse ranges are to be established only after consultation by the Secretary with the wild life agency of the state and the appropriate advisory board. Id. The Secretary is further directed to manage the wild free-roaming horses in a manner that is designed to achieve and maintain a “thriving natural ecological balance” on the public lands. Id. Management activities are required to be at the “minimal feasible level.” Id. The Act also requires the Secretary’s actions to be taken in consideration of the recommendations of qualified scientists.

The planning process on the public lands is guided by the Federal Land Management and Policy Act (FLPMA) of 1976, 43 U.S.C. § 1701 et seq. Pursuant to its mandate, the BLM conducts studies and, following several prescribed steps, prepares a final plan describing the manner and the extent to which grazing is to be permitted on the allotment in order to meet the multiple-use objectives set forth.

In 1978 Congress, recognizing that circumstances had changed, passed the Public Range Lands Improvement Act (amending the 1971 Act). The 1978 amendments provide for a determination as to whether there are excess wild horses on the public domain and if so to determine whether they should be removed. By this Act the Secretary is required to maintain a current inventory of wild horses on given areas of the public lands so that determinations can be made as to whether overpopulation exists and whether action should be taken to remove excess animals. The Secretary is to “determine appropriate management levels of wild horses” and whether appropriate management levels should be achieved by removal of excess animals or other means. 16 U.S.C. § 1333(b)(1). The thrust of the 1978 amendments is to reemphasize the management of the public lands pursuant to a multiple-use concept. The effect of this reemphasis is to cut back on the protection of the horses and burros under the 1971 Act.

In addition, the 1978 amendments introduce a definition of “excess” horses: horses are in “excess” if they have been removed or “must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” 16 U.S.C. § 1332(f).

The BLM has promulgated regulations with respect to its obligation under the 1971 Act as amended in 1978. In addition to regulations dealing with the definition of “excess,” the regulations address the problem of possible excess numbers of wild horses on the public domain. 43 C.F.R. § 4700.0-5(d) (1983). It requires the appropriate officer of the BLM for each area where a herd of wild horses exists to maintain a current inventory of such horses in order to evaluate population trends in relation to the environment. In planning for management of the wild horses, including determination of desirable numbers, the BLM officers are required to utilize the Bureau’s multiple-use planning system. Using information developed from inventory data and planning BLM officers are required to determine appropriate actions needed to achieve proper population levels upon consultation with the U.S. Fish and Wild Life Service, State Wild Life agencies, individuals recommended by the National Academy of Sciences and other individuals with scientific expertise or special knowledge of wild horses, wildlife management and animal husbandry as related to range land management. 43 C.F.R. § 4730.1(d). The BLM may manage wild horse herds “either as one of the components of public land use or on a specifically designated wild horse ... range.” 43 C.F.R. § 4730.2. Further, “management practices shall be at the minimal feasible level.” Id.

Additional regulations provide for studies to determine the biological requirements of wild horses, possible designation of specific ranges, development of a herd management plan, and removal of excess animals.

Historically grazing permits were not required on the public lands. However, following the enactment of Taylor Grazing Act, 43 U.S.C. § 315 et seq., permits for grazing privileges were granted to private livestock operators to graze livestock on the public domain on the basis of historical use. These rights were attached as appurtenances to privately owned ranch lands capable of supporting the livestock when they were not grazing on the public domain.

In the 1960s, in response to criticisms of overstocking, the BLM initiated range surveys to determine the carrying capacities of the various ranges. Grazing privileges were adjusted to accord with forage available. Since the 1960s these livestock grazing privileges have generally remained in effect, permitting grazing at the levels fixed in the studies made at that time. The operators pay a fixed sum for each animal unit month (AUM) of their use of the range by their livestock. In 1984 that figure is $1.37 per AUM. An AUM generally consists of one head of livestock grazing on the public domain for a period of one month.

In 1976 the National Resource Defense Council (NRDC) initiated an action in the U.S. District Court for the District of Columbia and obtained judgment against the BLM to require environmental impact statements (EISs) for livestock grazing on the public lands. See National Resources Defense Council, Inc., v. Morton, 388 F.Supp. 829 (D.D.C.1974), aff'd, 527 F.2d 1386 (D.C.Cir.1976) cert. denied 427 U.S. 913, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); Natural Resources Defense Council, Inc., v. Andrus, 448 F.Supp. 802 (D.D.C.1978). The Court forced the BLM to prepare such statements on short notice for each range area. Defendants contend that the BLM data available for preparation of the EISs was outdated, but the court nevertheless insisted that the reports be prepared on that basis. In this case defendants’ evidence indicates that using this outdated information the BLM adopted a range survey approach, an inventory procedure, in order to estimate the carrying capacities of the ranges for the purposes of preparation of the EISs. The results of EISs based on the range survey approach were alarming in many cases mandating drastic reductions in both livestock and wild horse use of the affected ranges. For example, in the Jersey Valley Allotments the applicable EIS would have required reduction of cattle use by 50-55% and reduction of wild horses to nothing in some areas.

It was at that time in 1981 that the directive came forth from Secretary Watt renouncing all the previous studies and requiring BLM to start afresh, using as a starting place the existing numbers of wild horses and livestock in each range area and to commence use of new scientific approaches to determine range carrying capacities. Defendants’ Exhibit O, Letter from James Watt. The levels of then existing wild horse and livestock populations were to be continued and the animals were to continue to use their respective then existing ranges. Population levels were made subject to adjustment on the basis of intensive monitoring studies that were to continue. The effect of Secretary Watt’s 1981 instructions was to reverse what appear to be the BLM’s longtime orientation from one of looking for downward trends in range conditions to one of looking for upward trends or at least static range conditions. Until Secretary Watt’s directive, the studies of the BLM and their management consistently found range conditions poor and on a downward trend calling for reduction in livestock numbers and removal of wild horses. Since the time Secretary Watt’s letter was issued, the BLM has been making the opposite findings and recommendations. One has to admire the steadfast loyalty of the BLM officials in following the dictates of their superiors in the Department of Interior, no matter which way the wind blows at a particular time.

In this case, the BLM contends that all the data available to it in 1981 was outdated and unscientific. The evidence presented at trial, however, does not bear this out. It appears that the BLM had been conscientiously and efficiently studying the ranges on a continuing' basis prior to and during the 1970s and early 1980s. Many of these studies (including those made on the subject allotments) were made on bases in conformity with the scientific approaches called for by Secretary Watt in his 1981 letter, rather than on the basis of the criticized “one point in time” observations. Such range investigations were frequent and continuous and cannot by any means be entirely discounted or discarded as inaccurate.

The condition of the ranges as observed by plaintiffs’ witnesses bears out to some extent the accuracy of the now rejected BLM studies through the 1970s and early 1980s. It is interesting to note, however, that when the EIS prepared in response to the NRDC case dictated reduction in livestock use in Jersey Valley, Mr. McLain, plaintiffs’ expert witness here, was at that time able to persuade the BLM not to invoke the planned reductions because of what he argued were acceptable conditions of the range.

In judging the actions of the BLM in the case at bar, the question before the Court is whether the present BLM administration of the public domain is rational. We are required to take account of the considerable authority to manage the ranges which Congress has delegated to the BLM.

The preponderance of the credible evidence presented at the trial in this case is directly contradictory to the current position of the BLM, on the condition of the range on the three allotments as it now exists. The BLM’s position that the range is in adequate condition is not supported by the evidence. The only government witnesses who offered significant testimony based on personal observations of the subject ranges were Timothy Rewsaat, wild horse and burro specialist for the BLM, and John Kirch, BLM range conservationist. Mr. Rewsaat has been on the range recently and testified that in his opinion damage to the range in the Fish Creek Allotment was due to cattle utilization rather than wild horses. Mr. Rewsaat, however, did not offer extensive testimony based on his personal observations of the range to refute the testimony of plaintiffs’ witnesses. Mr. Kirch’s work on the allotments is more recent. He has commenced what are called frequency studies which are long-range studies expected to last up to 20 years before a trend of range conditions can be predicted. The defendants’ case is not, however, based to any substantial degree on Mr. Kirch’s opinion as to the present condition of the range.

Aside from these two witnesses the BLM’s contentions that the range is in fact in adequate condition to support present levels of wild horses and livestock is based upon Exhibit G which reflects available forage utilization in each of the allotments for the period 1978-84 as to Fish Creek, 1977-83 as to Hole-in-the-Wall and 1980-84 as to Jersey Valley. While Secretary Watt specifically rejected one point in time observation studies as being inaccurate, the thrust of his 1981 directive is to reject all pre-1981 studies apparently because of his conclusion that then current numbers of animals should be maintained. The Watt directive places BLM in the position in this case of having to attack its previous studies, conclusions, decisions, and to some extent it own expert personnel. Previous BLM studies had indicated a downward trend in range condition and the necessity of reduction of numbers. Previous BLM studies included not only one point in time studies but studies which required repeated observations such as photo trend plots. Many of the pre-1981 studies appear to meet the criteria which are now supposed to be met to achieve accurate and reliable results. Despite Secretary Watt’s rejection of them, the BLM nonetheless relies upon these pre1981 studies in its Exhibit G in attempting to show that the trend of the allotments is not downward and that the forage utilization is not excessive.

The evidence in the case does not disclose what sorts of studies the BLM may be relying upon for its analysis of average forage utilization or trends after 1981 (when the previous study methods were rejected) except for Mr. Kirch’s testimony as to frequency studies to determine trend conducted at intervals of three years and which take up to 20 years to complete. It is clear that the types of studies Mr. Kirch is doing do endeavor to ascertain forage utilization by scientific observation of trained range conservationists such as Mr. Kirch.

It may be assumed, therefore, that the average forage utilization reflected on Exhibit G for the allotments is a result of personal observation by BLM employees. Exhibit G reflects a low utilization of the total forage available, in a majority of the cases something approaching half of the forage utilization reflected in BLM records in 1981 and prior thereto. However, the conclusions which might be derived from Exhibit G are not supportable, taking the credible record as a whole. The evidence is that the allotments are not being maintained and preserved so as to maintain a thriving natural ecological balance to the range. The range is not being protected from deterioration associated with overpopulation of wild horses.

Plaintiffs’ position is that the range is in an inadequate condition. The evidence presented by plaintiffs included the testimony of DeMar Dahl and Earl Eisner as to their observation of overpopulation of horses adversely affecting range conditions. Plaintiffs rely, however, primarily on the expert testimony of John McLain, a Professional Range Management Consultant, and Edwin Smith, a range specialist, for the contention that the wild horse populations in the allotments should be ordered reduced.

Mr. Smith endeavored to draw together for presentation to the Court information gleaned from the records of the BLM. These records essentially relate to the period from 1971 to 1983 and are comprised by studies and conclusions from them which the BLM now contends are invalid because the studies did not accurately reflect the range conditions. If these BLM records were accepted as being accurate, plaintiffs’ case would be made, but the defense is that the BLM’s own records are no good and cannot be trusted for the periods mentioned. Interestingly enough, however, contrary to the position defendants now take in their key Exhibit G, and through their witnesses Mr. Rewsaat and Mr. Kirch, in defendants’ answer to an interrogatory posed by plaintiffs (Exhibit 3, Interrogatory No. 3), defendants admit that the subject range condition is poor, the trend is downward, and overgrazing and overutilization are indicated.

Mr. Smith also had made various personal observations of the range and his testimony was that the allotments are not at ecological potential and that they reflect heavy and severe use by wild horses which is in the process of damaging the resource.

Mr. McLain had visited the area of the three allotments on three different occasions, 1979, 1983 and 1984. Based on these visits, Mr. McLain opined that grazing use has exceeded tolerable levels and that the major contributor to the excess use is wild horses. Mr. McLain further opined that the downward trend of the condition of the range is due to wild horses. Mr. McLain bases his opinion not only on his personal observations but also on a review of the BLM records compiled by Mr. Smith. To illustrate the reasons for his opinion Mr. McLain presented a number of slides taken in various areas of the allotments which reflect heavy horse use and heavy damage to the range.

In an effort to refute Mr. McLain’s testimony, the defendants presented the testimony of Professor Frederick Wagner of Utah State. Professor Wagner testified that Mr. McLain’s testimony reflected an inadequate study to reach the conclusions that he did. Specifically, Professor Wagner testified that the slides presented by Mr. McLain did not cover sufficiently wide or representative areas in order to reach a conclusion that the range was in poor condition. However, Mr. McLain testified that the slides were reasonably representative of conditions throughout the allotments. To a great extent the slides concentrated on water areas. While there was no extensive testimony offered as to the exact amount of water available in various portions of the allotments, the Court must conclude, on the basis of the evidence, that there are relatively few sources of water. Aside from one stream in Fish Creek Allotment, water sources consist of widely separated springs (mostly of quite modest dimensions) and also widely separated wells. It appears that both cattle and wild horses use the limited amounts of water from these sources.

In the rebuttal case plaintiffs, to a considerable extent, refuted the conclusions that might be reached on the basis of defendant’s Exhibit G. Exhibit G was an effort by defendants to support Secretary Watt’s policy of maintaining 1981 animal numbers. Plaintiffs point out that Exhibit G relies on observations of available forage utilization made at varying times of the years rather than at the same time each year. Therefore, plaintiffs contend that the observations are really of “apples and oranges” and cannot be compared. Plaintiffs also attack, through Exhibit 28, the BLM concept of “average forage utilization” used in Exhibit G. Maps of forage utilization prepared by the BLM in the period 1980-82 show areas of heavy use ranging down to areas of slight use with resulting averages that appear to be reasonable but which do not reflect the actual condition of large areas of the ranges where there has been heavy and probably damaging use by grazing animals.

Plaintiffs’ evidence also shows that precipitation was heavy (far above normal) in 1983 so that year should not be used to determine conditions for management of the range over the long term.

Finally, as emphasized above, it is hard to believe that all of the myraid of observations by BLM officials for the long period of time prior to 1981 should be discounted. The evidence in this case and the presentations of the BLM officials indicate that they are dedicated, trained and efficient in every respect. Hence it is hard to ignore many observations by BLM officials repeatedly made, such as “horse use severe”, “trampling evident”, “shrubs broken; grasses pulled up by roots; horse manure everywhere”, or observations such as “heavy horse use”, “looks like mostly horse use”, when made by BLM officials who were determining forage utilization at the time those observations were recorded.

The slides, the testimony of plaintiffs’ witnesses, and the evidence admitted at trial lead the Court to conclude that the ranges in question are substantially overused and that the environment on the allotments has been severely damaged, because of wild horse and livestock use. This Court, therefore concludes that the areas in question are not in a thriving, ecological condition.

It doesn’t appear, therefore, that so far as these three allotments are concerned, the Secretary of the Interior is carrying out his mandate under the Wild Horse Act, as amended. The decision to maintain 1981 numbers has not been made after determining the optimum number of . horses to be maintained on the area. It is simply an arbitrary decision to maintain 1981 numbers. While the BLM has attempted to support Secretary Watt’s decision as best it could, the preponderance of the evidence is that the decision to maintain 1981 wild horse population levels is not based upon any evidence, analysis or studies but simply on the decision Secretary Watt made in order to avoid reductions in livestock and wild horse populations in 1981. Except conceivably through the testimony of Professor Wagner, there is no indication from the evidence that the BLM made its management decision to maintain 1981 wild horse population levels after consultation with any of the individuals or agencies mentioned in 43 C.F.R. § 4730.1(d).

Perhaps Secretary Watt’s 1981 decision may be defended as being a practical management decision based upon the necessity for “doing something.” However, a closer look at the decision reveals that it cannot be defended. As mentioned, a decision made on such a basis is not in compliance with the regulations of the Bureau of Land Management contained in 43 C.F.R. § 4700. Nor does the decision accord with the specific directives contained in the 1978 amendments to the Wild Horse Act incorporated in 16 U.S.C. § 1333(b) which call for the Secretary, in the absence of the specific items of information contained in paragraphs (i) to (iv) § 1333(b)(2) (if previous data contained in land use planning and EISs was found to be inadequate, as it supposedly was), to act on the basis of all information available to him rather than simply making an arbitrary decision.

Ultimately we reach the question of whether mandamus is appropriate. Thus, in spite of the apparent failure of the Secretary to carry out the mandate of the Wild Horse Act by appropriately managing the wild horses and the ranges, we must determine whether the defendant officials of the Department of the Interior and the BLM owe a plainly described ministerial duty to plaintiffs. The question is whether the actions of the Secretary and of the BLM represent a rational administration of the Wild Horse Act and the related statutes applicable here. If they represent a rational administration, then mandamus would not lie, notwithstanding that the administration is less than perfect.

Plaintiffs also urge the Court that they are entitled to relief under the Administrative Procedures Act (APA) 5 U.S.C. § 706. This section gives the Court jurisdiction to compel agency action unlawfully withheld or unreasonably delayed. In this case the thrust of such a claim is that BLM has failed to reduce wild horses in the subject allotments to 1971 population levels and has failed to timely establish the Augusta Mountains Horse Management Area (AMHMA). Since this Court concludes elsewhere in this opinion that plaintiffs are not entitled to reduction of wild horses to 1971 levels, plaintiffs are not entitled to APA relief on that issue. The BLM alleges it is in the process of taking action to establish the AMHMA. That action, it claims, will be completed by November of this year and it would, under these circumstances, be inappropriate to require such action to be taken under APA.

However, a part of the Court’s problem in making its decision is resolved by the relief the plaintiffs are seeking by way of a writ of mandamus to the Department of the Interior and the BLM to reduce wild horse population to 1971 levels. It was made absolutely clear by plaintiffs’ counsel at final oral argument that plaintiffs seek to have the wild horse populations in these allotments reduced to 1971 levels, and to no other levels. Plaintiffs’ position is that any other population levels are unsupportable and that the setting of wild horse population levels, other than at those existing in 1971, is a political issue beyond the jurisdiction of this Court. While these contentions may be subject to question, we are constrained to consider the relief plaintiffs seek in this case, rather than what they do not seek. Hence, we must face squarely the issue of whether under the law and regulations the Secretary is required to maintain wild horse population levels at those of 1971. Our answer is in the negative.

The statute (16 U.S.C. § 1333(a)) directs the Secretary to manage the wild horses in a manner designed to achieve and maintain a “thriving, natural ecological balance on the public lands.” § 1333(b) speaks in terms of “appropriate management levels,” and removal or destruction of excess animals “so as to restore a thriving, natural, ecological balance to the range, and protect the range from the deterioration associated with overpopulation ... ”. The regulation in 43 CFR § 4700 speaks of preserving and maintaining “a thriving, natural, ecological balance and multiple-use relationship in [the] area.” The BLM is to determine “proper population levels.” 43 C.F.R. § 4730.1(c)(2). In planning for management, the BLM determines “desirable numbers.” 43 C.F.R. § 4730.1(b). Neither the statutes nor the regulations speak in terms of the numbers extant at any particular point in time. The benchmark test is thriving ecological balance. The wording of the statute does not lead one to a conclusion that Congress intended that this necessarily meant 1971 levels. Nor does the interpretation by the BLM in administering the statute indicate that it believed that this was the intent of Congress or the correct basis for administration of the public lands.

The legislative history supports a finding that Congress had no intention to maintain the free-roaming horses and burros at their 1971 levels. In 1971, Congress was faced with incomplete information as to the numbers of horses on the public lands. In discussing the need for the 1971 Act, the Senate Report states:

“Estimates of the total number of animals subject to the measure are open to question.... This indicates an alarming trend as well as a surprising lack of information regarding the animals and prompted the committee to include a provision in the bill for necessary studies of the habits of the animals to be undertaken by the Secretary of the Interior. S.Rep. No. 92-242, 92nd Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Ad. News 2149, 2150.

The report goes on to note that “[guidelines for reducing the population of wild-free roaming horses or burros in an area are provided in the measure but it should be noted that any reduction should be carefully weighed before being undertaken.” Id. at 2152. In addition, the joint statement of the committee of conference specifically “pointed out that the Secretaries of Interior and Agriculture are given a high degree of discretionary authority for the purposes of protection, management, and control of wild free-roaming horses and burros on the public lands. The Act provides the administrative tools for protection of the animals from the depredation of man. This is the paramount responsibility with which the Secretaries are charged under the terms of the statute.” Conf.Rep. No. 92-681, 92nd Cong., 1st Sess. reprinted in 1971 U.S.Code Cong. & Ad.News 2159, 2160.

Plaintiffs rely on two cases which at first glance apparently provides some support for a return to the maintenance of horses at 1971 levels. However, a closer reading of these cases reveals that the courts involved were not faced with the issue at bar and any statements are merely dictum. In American Horse Protection Ass’n (AHPA) v. Andrus, 460 F.Supp. 880, 885 (D.Nev. 1978) aff'd in part, vacated in part and remanded, 608 F.2d 811 (1979), the Hon. Bruce Thompson stated that inferentially, the population of wild horse herds should be maintained at around the 1971 level. AHPA focused on whether the removal of thousands of wild, free-roaming horses from public lands constitutes a major federal action significantly affecting the environment so as to require a preparation of an environmental impact statement. The issue of what levels should be maintained was not squarely before the court and no examination of the statute or legislative history was done. Thus, this court is in no way bound by it.

In Mountain States Legal Foundation (MSLF) v. Watt, the lower court had concluded that all wild, free-roaming horses on public lands above the population agreed upon by the BLM and neighboring landowners were excess animals. Despite this holding, the court went on to say that excess could also be defined as those wild, free-roaming horses exceeding the areas’ population levels “at the time the Act was passed.” Again, the statement was made with no reference to the Act or to the appropriate legislative history. The subsequent decision by the Tenth Circuit lends absolutely no support to plaintiffs’ contention for a reduction of horses to 1971 levels. See MSLF v. Clark, 740 F.2d 792 (10th Cir.1984).

If plaintiffs were looking for a mandamus requiring reduction of wild horse levels to levels other than to 1971, this case might come out differently as to this issue. However, the Court does not have to reach any question other than whether mandamus will lie to require BLM to reduce the wild horse population to 1971 levels. As mentioned above, the only conclusion which this Court can reach is that mandamus will not lie because the test as to appropriate wild horse population levels is whether such levels will achieve and maintain a thriving, ecological balance on the public lands. Nowhere in the law or regulations is the BLM required to maintain any specific numbers of animals or to maintain populations in the numbers of animals existing at any particular time.

An issue was developed during the course of the trial relative to the establishment of the Augusta Mountains Horse Management Area (AMHMA). At the final oral argument plaintiffs’ counsel contended that the purpose in raising this issue was to seek mandamus to require the BLM to establish the management area. He contended that the management area has not been properly established and that BLM should be required to go ahead and establish the area pursuant to the applicable law and regulations. Defendants contend that they have taken steps to establish the AMHMA in both the Fish Creek and Jersey Valley allotments, and that the decision for the establishment of the management area in the Hole-in-the-Wall Allotment will be completed in November, 1984. 16 U.S.C. § 1333(a) provides that the authorized officer “may designate and maintain specific ranges on public lands as sanctuaries” for the protection and preservation of wild horses (emphasis added). 43 CFR § 4730.5 provides that the BLM “may designate and maintain” such areas (emphasis supplied). Neither the law nor the regulations require the establishment of such management areas. The decision as to whether such areas should be established appears to be purely discretionary with the Secretary and his subordinates. There is no plainly described ministerial duty imposed upon the Secretary to establish such management areas.

If, as plaintiffs contend, no such actions have been, or are in the process of, being undertaken, then mandamus will not lie because the Secretary has no obligation to establish such management areas. On the other hand, if as defendants contend such action has been taken, then there is a possible problem with respect to exhaustion of administrative remedies. Possible administrative remedies may not have been exercised and/or exhausted at least to the extent of the establishment of the managements areas in the Fish Creek and Jersey Valley Allotments. It is clear that administrative remedies could not have been either exercised or exhausted with respect to the establishment of the management areas in the Hole-in-the-Wall Allotment because according to the BLM that decision was not final at the time this matter was submitted to the Court for decision.

In any event, the pretrial order does not indicate that the establishment of AMHMA is one to be decided as a separate issue by the Court in this case. In fact, the pretrial order states under facts which were admitted by both sides and which would require no proof:

“5. Portions of the Fish Creek, Hole-in-the-Wall and Jersey Valley allotments lie within the BLM-established Augusta Mountain Herd Management Use Area (Augusta Mountain HMUA) established by the BLM pursuant to the Wild Horse and Burro Act of 1971. The BLM’s Battle Mountain District Office is responsible for managing this area.”

Pretrial order for Dahl v. Watt at 2. Further, there is a serious question as to whether this issue has been fully litigated in this case. As the evidence came in it appeared that the establishment of the management areas was a peripheral question, bearing perhaps on the activities and intent of the BLM officials in managing the wild horses in these Allotments or possibly relating to the status of their actions in the management of the wild horses there.

For these reasons no order will be entered with respect to the proceedings to establish AMHMA.

The foregoing shall constitute findings of fact and conclusions of law.

IT IS, THEREFORE, ORDERED that the Clerk shall enter judgment against plaintiffs and in favor of defendants.

      . Although the reason for Secretary Watt's directive is not clear, it appears to the Court that it most likely resulted from the fact that the previous studies indicated that use of the public domain by livestock and by wild horses would have to be drastically reduced due to damage to the range caused by overutilization.

      . The legislative history indicates Congress' concern:
      "In the case of wild horses and burros in the Western States, Congress acted in 1971 to curb abuses which posed a threat to their survival. The situation now appears to have reversed, and action is needed to prevent a successful program from exceeding its goals and causing animal habitat destruction.” H.R.Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978).

      . 43 C.F.R. 4730.3 provides:

        “Habitat reservation and allocation. The biological requirements of wild ... horses ... will be determined based upon appropriate studies or other available information. The needs for soil and watershed protection, domestic livestock, maintenance of environmental quality, wildlife, and other factors will be considered along with wild ... horse ... requirements. After determining the optimum number of such ... horses ... to be maintained on an area, the authorized officer shall reserve adequate forage and satisfy other biological requirements of such horses ... and, when necessary, adjust or exclude domestic livestock use accordingly."

      . 43 C.F.R. § 4730.5 provides:

        “Designation of specific ranges. The authorized officer may designate and maintain specifically designated ranges principally for the protection and preservation of wild ... horses ____ In designating specific ranges and herd management areas, the authorized officer in addition to any other provisions of these regulations shall:
      (a) Consider only those areas utilized by wild ... horses ... as all or a part of their habitat on December 15, 1971.
      (b) Consider only those areas where self-sustaining herds can maintain themselves within their established utilization and migratory patterns.
      (c) Consider only those areas which are capable of being managed as a unit to insure a sustained yield of forage without jeopardy to the resources.
      (d) Develop a wild horse management plan in accordance with § 4730.6.

      . 43 C.F.R. § 4730.6 provides:

        “Herd management plan. The authorized officer shall in connection with designation of a specific range, develop a proposed wild ... horse ... management plan designed to protect, manage, and control wild ... horses ... on the area on a continuing basis. The authorized officer may also develop herd management plans as a part of the multiple-use management on areas outside of specifically designated wild horse ... ranges. All management plans shall be developed in accordance with the Bureau's planning system and ,shall govern management of the area."

      . 43 C.F.R. § 4740.3(a) provides:

        “Removal

      (a) The authorized officer, after making a determination that there are excess animals in an area shall immediately take action to remove those animals from the public lands. Such action shall be taken in the following order and priority, until all excess animals have been removed so as to restore a thriving natural ecological balance to the range and protect the range from deterioration associated with overpopulation ...”

      . Unpublished opinion of the District of Wyoming. A copy of this decision has been provided to the Court and counsel.

      . There were serious questions raised at trial as to the validity of the proceedings to establish the AMHMA. The first mention of the possibility of establishing such an area is contained in a bare notation made on an overlay in BLM records by a district manager of the BLM between 1973 and 1975. While BLM officials contended at trial that the AMHMA as now contemplated is based upon a 1971 wild horse use area, there is scant support in this record for such a proposition. The preponderance of the credible evidence at the trial indicates that there was a herd use area in the vicinity of these Allotments in 1971, but that the 1971 herd use area was much more restricted in size than that now proposed. The record does not indicate that the provisions of 43 C.F.R. §§ 4730.5 and 4730.6 have been complied with in several respects in establishing the management area. First, as mentioned above, the evidence in this record does not indicate that in establishing the management area the BLM has considered only areas utilized by wild horses as a part of their habitat on December 15, 1971, or an area capable of being managed to insure sustained yield of forage without jeopardy to the resources. Nor does the record indicate that in compliance with 16 U.S.C. § 1333(a) there has been consultation with the Wild Life Agency of Nevada and with an Advisory Board established under 16 U.S.C. § 1337.


source: Caselaw Access Project

author: EDWARD WEINFELD, District Judge.

license: Public Domain

text:
    Stanley M. FRIEDMAN, as Chairman of the Executive Committee of the Democratic County Committee of the County of Bronx, State of New York; Murray Lewinter, as Secretary of the Executive Committee of the Democratic County Committee of the County of Bronx, State of New York; and Richard G. Gugliotta, Plaintiffs, v. Robert ABRAMS, as Attorney General of the State of New York; and Robert S. Black, Orlando Velez, James S. Bass, Matteo Lumetta, Ferdinand C. Marchi, Rosemary A. Millus, Joseph J. Previte, Martin Richards, Alice Sachs, and Anthony Sadowski, Commissioners of Elections, constituting the Board of Elections in the City of New York Vincent A. Marchiselli; Dominick A. Fusco; Carol A. Aronoff; and Robert M. Silverson, Jr., Defendants.
    No. 84 Civ. 7968 (EW).
    United States District Court, S.D. New York.
    Jan. 2, 1985.

      Stroock & Stroock & Lavan, New York City, for plaintiffs; James Greilsheimer, New York City, of counsel.
    Robert Abrams, Atty. Gen., of State of N.Y., New York City, pro se; Richard Liskov, New York City, of counsel.
    Frederick A.O. Schwarz, Corp. Counsel for City of New York, New York City, for defendants Commissioners of Elections; Michael C. Harwood, New York City, of counsel.
    Egan & Reis, New York City, for defendants Marchiselli, Fusco, and Aronoff; Agostinho Dias Reis, New York City, of counsel.
    Burke, Stone & Silverson, New York City, for defendant Silverson; William Burke, New York City, of counsel.
   EDWARD WEINFELD, District Judge.

By order of the Appellate Division of the New York State Supreme Court dated November 1, 1984, plaintiff Richard Gugliotta’s name was removed from the ballot as the Democratic candidate in the November 6, 1984 election for the office of Civil Court Judge, Bronx County. The order was issued because the Certificate of Nomination filed and accepted at the Board of Elections in the City of New York (“Board of Elections”) by the Executive Committee of the Democratic County Committee of the County of Bronx (“Executive Committee”) failed to state the name and residence of the nominee as required by section 6-156(1) of the Election Law, although this information appeared in the candidate’s executed acknowledgment of acceptance, which, as required by law, was attached to the Certificate. Plaintiffs appealed the order to the New York State Court of Appeals and, in view of the impending election, requested an expedited hearing of the appeal or, in the alternative, a preliminary injunction enjoining defendants from holding the election or a stay of the Appellate Division’s order pending disposition of the appeal. The Court of Appeals denied the application for an injunction or a stay, and following the election the court dismissed the appeal as moot. The election, in which Gugliotta’s name appeared only as the Conservative candidate and no name appeared as the Democratic candidate, was won by one of the proposed defendants, Robert Silverson, Jr.

Having commenced an action in this Court under 42 U.S.C. § 1983 on November 2, 1984, plaintiffs now move (1) to amend the complaint by adding four defendants, including Silverson and the three petitioners who challenged the Certificate in the state courts, one of whom also was named on the ballot for Civil Court Judge, Bronx County; and (2) for a preliminary injunction setting aside the November 6, 1984 election for the office of Civil Court Judge, Bronx County and directing the governmental defendants to hold a new election for that office with Gugliotta’s name on the ballot as the Democratic candidate. In addition, three of the four proposed defendants cross-move to dismiss the complaint as to them and for sanctions against plaintiffs and their attorneys.

Plaintiffs’ motion to amend the complaint is unopposed by the currently named defendants. As to the proposed defendants who all oppose amendment, they make no allegation that adding them as defendants in this action would prejudice any rights they would otherwise have were plaintiffs required to commence a separate action against them. Accordingly, this motion is granted.

As to the motion for a preliminary injunction, plaintiffs make three constitutional claims. First, they claim that the traditional practice of the Board of Elections, repeatedly upheld by the courts of the State of New York, is to accept documents such as the Certificate of Nomination filed by the Executive Committee that are timely and in substantial compliance with the Election Law, or to notify the submitting candidate of any insufficiency and provide him an adequate opportunity to cure it; that plaintiffs relied on this practice when the Board of Elections accepted their Certificate; and that the Appellate Division’s order declaring the Certificate a “nullity” after the deadline for filing a new Certificate had passed departed from this practice without prior notice and therefore violated the Due Process Clause of the Fourteenth Amendment. Emphasizing that Gugliotta’s name and address appeared on the attached consent form, plaintiffs cite various New York cases for the proposition that substantial compliance with the Election Law is sufficient and that Certificates of Nomination must be read as a whole and traditionally have been accorded liberal construction. However, plaintiffs cite no authorities upholding the validity of a Certificate of Nomination filed with the space for the candidate’s name and address left blank. Indeed, in a similar case the New York Court of Appeals held that failure to include in a designating petition the name and address of a candidate for a party position in a party’s primary election renders the petition invalid. The Court stated that “[wjhile'substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content.” Section 6-156(1) provides that a Certificate of Nomination “shall contain ... the name and residence of the nominee.” Thus, it would appear that the Board of Elections, in accepting plaintiffs’ Certificate, not the Appellate Division, in subsequently invalidating it, departed from precedent. Moreover, a practice or policy indulged in by a state administrative agency, such as the Board of Elections, cannot overcome the force of a statutory requirement or invade the power of the state courts to declare the practice void for violation of a statute. In any event, plaintiffs have failed to show that the Appellate Division departed from a “consistent practice.” In view of the great deference given state courts in administering election laws, this Court will not quarrel with the Appellate Division’s view of the proper construction of the statute.

Plaintiffs’ second claim is that the State of New York has impeded their access to the ballot and their right to vote by means of an overly technical application of the Election Law; that this application fails to advance a valid governmental interest; and that therefore the statute as applied is unconstitutional under the First and Fourteenth Amendments. However, there is no allegation that compliance with section 6-156(1) in the first instance is complex, difficult, or burdensome in any way. Rather, plaintiffs simply failed to comply with the law and their claim is really one for leniency. Nor is there any allegation that the section as applied burdens independent candidates or small political parties, or that it employs a scheme based upon a suspect classification. The requirement that the candidate’s name and residence appear on the Certificate of Nomination proper applies equally to all candidates named to fill a vacancy in a nomination. Absent such allegations, the requirement is subject only to a rational basis analysis, which it easily satisfies. By requiring the Certificate of Nomination proper to state the candidate’s name and residence, the state denies a nominating committee an opportunity to file a “blank check” to be filled in at the committee’s pleasure long after the deadline for filing Certificates of Nomination has passed. To that extent, this requirement may be protection against corrupt conduct. New York has a legitimate, if not compelling, interest in preserving the integrity of its electoral system, and the strict application of section 6-156(1) is rationally related to that end.

Plaintiffs’ third claim is that the New York Court of Appeals, by delaying review of the Appellate Division order dated November 1, 1984 past the point of effectiveness, arbitrarily and capriciously deprived plaintiffs of their statutory right of appeal in violation of the Due Process Clause of the Fourteenth Amendment. In essence, plaintiffs’ claim is that the Court of Appeals should have expedited their appeal to avoid the mootness problem. Surely there is no time limitation imposed upon the New York State Court of Appeals within which to hear and decide appeals any more than there is upon the United States Supreme Court. In any event, whatever merit this claim might have, it need not be addressed in view of the finding that plaintiffs’ underlying constitutional claims have no merit.

Accordingly, plaintiffs’ motion for a preliminary injunction is denied. For the same reasons, the cross-motion to dismiss the amended complaint as to three of the four new defendants is granted; even assuming the truth of the allegations in the amended complaint, plaintiffs have failed to state a claim upon which relief may be granted. The defendants’ motion for sanctions is denied.

So ordered.

      . Marchiselli v. Black, 481 N.Y.S.2d 340 Order and Judgment (N.Y.App.Div., 1st Dep't.1984).

      . N.Y.Elec.Law § 6-156 (McKinneys 1978). Plaintiffs argued in the state courts that § 6-148 governed their case rather than § 6-156. The state supreme court relied upon § 6-156 in first declaring the original Certificate of Nomination insufficient. Fusco v. Black, No. 16993/84, slip op. at 7-8 (N.Y.Sup.Ct. Oct. 18, 1984). Thereafter, in holding that plaintiffs' subsequent filing with the Board of Elections cured the defect in the original Certificate, the supreme court noted fhat regardless of which section governed the result would be the same. Marchiselli v. Black, No. 17564/84, slip op. at 2 (N.Y.Sup.Ct. Nov. 1, 1984). In reversing the latter decision and declaring the Certificate a "nullity," the Appellate Division cited neither § 6-156 nor § 6-148. Marchiselli v. Black, 481 N.Y.S.2d 340 (N.Y.App.Div., 1st Dep’t.1984). On the instant motion, plaintiffs acknowledge that regardless of which section governs “the result in this case should be the same.” Brief of Plaintiffs at 7 n. 4. Consequently, and in view of the similarity of the two sections, see note 5 infra, reference is made throughout to § 6-156.

      . Hutson v. Bass, 54 N.Y.2d 772, 426 N.E.2d 749, 443 N.Y.S.2d 57 (1981).

      . Id., 54 N.Y.2d at 774, 426 N.E.2d at 750, 443 N.Y.S.2d at 58 (citation omitted).

      . N.Y.Elec.Law § 6-156(1) (McKinneys 1978). Section 6-148(1), which plaintiffs have asserted is the governing provision, see note 2 supra, imposes a similar requirement: "A vacancy in a designation or nomination .,. may be filled by the making and filing of a certificate, setting forth ... the name and address of the candidate newly designated or nominated." Id. at 6-148(1).

      . See Powell v. Power, 436 F.2d 84, 86 (2d Cir.1970).

      . See Maldonado v. Rodriguez, 523 F.Supp. 177, 180 (S.D.N.Y.1981).

      . See Unity Party v. Wallace, 707 F.2d 59 (2d Cir.1983).

      . See id. at 63; Gammerman v. Board of Elections, 550 F.Supp. 1031, 1033 (S.D.N.Y.1982).

      . N.Y.Civ.Prac.Law § 5601(a)(i), (ii) (McKinneys 1978).

      . N.Y.Civ.Prac.Law § 5521 (McKinneys 1978), which plaintiffs emphasize gives the Court of Appeals "the right and the power to grant a preference” in hearing an appeal, brief of Plaintiffs at 17, expressly leaves the exercise of that power in the “discretion of the court to which the appeal is taken.”

      . Fed.R.Civ.P. 12(b)(6).


author: THOMAS F. HOGAN, District Judge.

text:
    A. Nicholas DAVILA, et al., Plaintiffs, v. Caspar W. WEINBERGER, et al., Defendants.
    Civ. A. No. 83-3910.
    United States District Court, District of Columbia.
    Jan. 3, 1985.

      Edward J. Hickey, Jr., Thomas A. Woodley, Mulholland & Hickey, Washington, D.C., for plaintiffs.
    Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND TRANSFER ORDER

THOMAS F. HOGAN, District Judge.

The plaintiffs in this case are, or were at all times pertinent to this action, employed as firefighters by the federal government. Originally, this action was brought by only eight federal firefighters, none of whom • reside in the District of Columbia. Since the filing of the complaint, over 2500 other federal firefighters, including individuals from almost every state as well as three firefighters from the District of Columbia, have submitted written consents to become party plaintiffs pursuant to Section 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). The plaintiffs seek declaratory, injunctive and monetary relief, as well as an order in the nature of mandamus, for alleged violations of the FLSA, 29 U.S.C. § 201, et seq. Plaintiffs allege that they were wrongfully denied overtime pay under the FLSA for overtime hours that they were normally and regularly scheduled to work when they were absent due to jury duty, military duty, sick leave, or annual leave..

Presently, this case is before the Court on defendants’ motion to dismiss for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. Upon consideration of defendant’s motion, plaintiffs’ opposition, and the applicable statutory provisions, this Court concludes that this action should be transferred to the United States Claims Court.

Background

The Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25, grants concurrent jurisdiction to the district courts and the Claims Court over non-tort claims for money damages brought against the United States “not exceeding $10,000 in amount.” 28 U.S.C. § 1346(a)(2). With respect to venue, the Tucker Act provides that when an action is brought in a federal district court as opposed to the Claims Court, venue is proper only in the district “where the plaintiff resides.” 28 U.S.C. § 1402(a)(1).

Defendants’ motion to dismiss contends that the venue provision of the Tucker Act is the only venue statute applicable in this case. Defendants assert that although plaintiffs also bring claims for declaratory and equitable relief, the true nature of the claims is for money damages, with the Tucker Act controlling. Defendants further argue that the filing of consents by three residents of the District of Columbia to become party plaintiffs is insufficient to bring the claims of the District of Columbia residents themselves before this Court, and in any event does not establish venue in this district with respect to the claims of the other firefighters.

Plaintiffs oppose defendants’ motion to dismiss on several grounds. Plaintiffs assert that their claims are not purely claims for money damages and should therefore not be controlled by the venue provisions of the Tucker Act. Instead, plaintiffs contend that the general venue provision for claims against the United States, 28 U.S.C. § 1391(e), should be applied in this case. Plaintiffs further argue that even if the venue provisions of the Tucker Act are found controlling, venue should nevertheless be found proper in this Court. Plaintiffs urge this Court to interpret § 1402(a)(1) to place venue under the Tucker Act where any plaintiff resides. Accordingly, plaintiffs assert that the District of Columbia residents have properly joined as plaintiffs in this action by filing consent forms sufficient under section 16(b) of the FLSA, 29 U.S.C. § 216(b), and that venue in this district should therefore be found proper as to all non-resident plaintiffs as well. Plaintiffs suggest that such an interpretation of the Tucker Act would comport with judicial interpretation of another similarly worded venue provision, avoid the waste of judicial resources that would be created by the multiplicity of actions in different districts throughout the country, and allow the plaintiffs to pursue forms of relief unavailable in the Claims Court.

Applicability of the Tucker Act’s Venue Provisions

The initial issue that must be addressed by this Court is whether the venue provision of the Tucker Act, 28 U.S.C. § 1402(a)(1), controls the determination of proper venue in this case. Resisting the defendants’ attempt to characterize this action as one arising exclusively under the Tucker Act, plaintiffs note that the Complaint also seeks declaratory and injunctive relief, as well as relief in the nature of a writ of mandamus. Plaintiffs proffer that as the result of their seeking remedies other than monetary damages, the general venue provision allowing actions against the United States, its agencies or its officials to be brought in this district, 28 U.S.C. § 1391(e), should prevail over the venue provision of the Tucker Act.

This Court might well suffice to hold that the venue provision of the Tucker Act controls this case simply by virtue of the axiom that specific venue provisions take precedence over general venue provisions. See Bruns, Nordeman & Co. v. National Bank & Trust Co., 394 F.2d 300 (2d Cir.), cert. denied, 393 U.S. 855, 89 S.Ct. 97, 21 L.Ed.2d 125 (1968). Nevertheless, this Court finds that an examination of the nature of plaintiffs’ claims also clearly warrants applicability of the Tucker Act despite plaintiffs’ attempt to carve an exception to this axiom.

Courts construing the jurisdictional provisions of the Tucker Act that grant the district courts and the Claims Court concurrent jurisdiction over most non-tort monetary claims against the United States under $10,000, while reserving for the Claims Court alone actions for $10,000 or more, have firmly established that the exclusive jurisdiction of the Claims Court cannot be evaded by filing a complaint in district court which seeks to couple injunctive, mandatory, or declaratory relief against governmental officers with a claim for money damages. See e.g., Jesko v. United States, 713 F.2d 565, 566 (10th Cir.1983) (where money damages as well as declaratory, injunctive and mandatory relief requested in connection with alleged wrongful cancellation of emergency disaster loans, essentially claim for monetary damages in excess of $10,000 vesting jurisdiction in Court of Claims); Cook v. Arentzen, 582 F.2d 870, 878 (4th Cir.1978) (to allow action seeking declaratory, mandatory and injunctive relief arising from allegedly wrongfully requiring pregnant naval officer to resign commission to be brought in district court would improperly create jurisdiction co-extensive with Court of Claims over claims in excess of $10,000).

Just as the drafting of the complaint should not be permitted to evade the jurisdictional provisions of the Tucker Act divesting the Claims Court of jurisdiction in favor of a federal district court where the monetary claim exceeds $10,000, neither should it be permitted to evade the venue provisions of the Act to result in venue in one federal district court as opposed to another district court, or as opposed to the Claims Court, where the claim is for less than $10,000. To the extent that the Complaint in this action seeks declaratory, injunctive and mandatory relief, those requested remedies are inextricably intertwined with plaintiffs’ claims for damages. Accordingly, the true nature of this action as a claim for monetary damages, with jurisdiction arising under the Tucker Act, cannot be disguised, and the venue provisions of that Act must'be found controlling. See Kelley v. United States, C.A. No. 83-2294, mem. op. at 3 (D.D.C. May 21, 1984) (claim for declaratory and injunctive and monetary relief for alleged violations of FLSA in actuality claim for monetary damages under Tucker Act, requiring claim to be brought in conformity with venue provisions of that act) (citing Denton v. Schlesinger, 605 F.2d 484 (9th Cir.1979)); Cook v. Arentzen, 582 F.2d 870 (4th Cir. 1978).

Applying the Venue Provisions of the Tucker Act

Having determined that the Tucker Act’s venue provision is controlling, this Court must next determine the proper construction of that provision.

Defendants initially argue that, even if venue could properly be founded upon the residency of the District of Columbia residents, the District of Columbia firefighters are not themselves proper plaintiffs in this action. Defendants assert that the filing of consent forms in this case by the three District of Columbia residents containing only their name, address, telephone number, social security number and employment, and bearing the individual’s signature indicating his consent to be a party plaintiff in this action, is insufficient under Rule 11 of the Federal Rules of Civil Procedure. Therefore, defendants argue that because none of the original eight named plaintiffs are residents of the District of Columbia, venue is clearly improper under the Tucker Act.

Section 16 of the FLSA provides that an action for unpaid wages under the Act

may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).

Section 16(b), therefore, provides that in order for the named plaintiffs to bring a class action on behalf of “other employees similarly situated” those other employees must explicitly “opt into” the class in order to be bound by the judgment rendered. In this manner, section 16(b) is distinguishable from class actions otherwise maintained under Rule 23 of the Federal Rules of Civil Procedure, which requires, through its notice provision, that a person explicitly “opt out” of the class in order to avoid being bound by the judgment rendered. See e.g., Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir.1975).

In light of the purpose and effect of section 16(b), this Court finds that additional substantive allegations by those who desire to participate in the action are not necessary for those parties to become proper plaintiffs. Rather, since the purpose of section 16(b) is merely to identify those who will be bound by the judgment rendered in the class action to the extent of any claims they may have, all that is required is the filing of a written consent with the Court. The District of Columbia residents and all other individuals filing consents have complied with this requirement, and are therefore proper plaintiffs in this action.

As an alternative to their argument challenging the joinder of the District of Columbia residents, defendants assert that venue in this district is improper even if those plaintiffs are properly before this Court. Defendants argue that the venue provisions of the Tucker Act should be strictly construed to require residence of all plaintiffs in the particular district. Plaintiffs, on the other hand, urge this Court to construe § 1402(a)(1) to recognize venue as proper in any district where at least one plaintiff resides.

The parties have not cited, and the Court itself has not found any published opinion dealing with the determination of proper venue under the Tucker Act where co-plaintiffs reside in different districts. In resolving this issue, therefore, the Court notes that there are benefits and disadvantages associated with the position of each party. As suggested by the plaintiff, construing § 1402(a)(1) to place venue under the Tucker Act where any plaintiff resides could avoid a multiplicity of suits in federal district courts throughout the United States where, as here, a large number of individuals share essentially identical claims. However, adopting the plaintiffs’ interpretation of § 1402(a)(1) would not necessarily avoid the potential burden on judicial resources of a multiplicity of suits since individuals would still not be prohibited from litigating their claims individually, in their own district, if they so desired. Prohibiting plaintiffs from bringing suit in a district where they do not all reside, on the other hand, would not prohibit such individuals altogether from seeking recovery in one action since plaintiffs may file a single lawsuit in the United States Claims Court without the concerns over venue presented to this Court. See 28 U.S.C. § 1491(a). Moreover, as defendants point out, allowing a suit to be brought on behalf of a group of individuals in a federal district court where any one of them resides invites forum shopping, a danger clearly exemplified in a case such as this involving hundreds of plaintiffs from virtually every jurisdiction in the United States.

Upon consideration of the statutory scheme embodied in the Tucker Act for the litigation of monetary claims against the United States, and on balancing the consequences of the positions advocated by the parties, this Court concludes that the Tucker Act requires plaintiffs to litigate their claims only in the district in which they individually reside, or in the Claims Court. Considered together, the jurisdictional and venue provisions of the Tucker Act embody Congress’ deliberate efforts to channel certain types of cases to the Claims Court (formerly the Court of Claims) while allowing other claims to be heard concurrently by certain district courts. The Tucker Act was intended both to expand the relief available against the United States and to give persons with comparatively small claims against the United States the option “to bring suits in the districts where they and their witnesses reside without subjecting them to the expense and annoyance of litigating in Washington.” United States v. King, 119 F.Supp. 398, 403 (D.Alaska 1954) (quoted in 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3657 at 214-15 (1981)). See also Bates Manufacturing Company v. United States, 303 U.S. 567, 570-71, 58 S.Ct. 694, 695-96, 82 L.Ed. 1020 (1938).

The venue provision of the Tucker Act, therefore, was deliberately drafted to carve out a narrow exception to the jurisdiction of the Court of Claims (now the Claims Court) in order to eliminate a perceived hardship on the parties. Here, in seeking to establish venue in this Court under the Tucker Act, plaintiffs cannot justify their request on the same concerns perceived as legitimate by Congress. Therefore, given that plaintiffs do not seek to take advantage of the intended benefits of the Tucker Act’s venue provision, this Court will not substitute its judgment for that of Congress by creating new procedural benefits for plaintiffs. To the extent plaintiffs desire to pursue their claims together in one action, the Claims Court is the forum available under the structure of the Tucker Act.

In light of the unique and purposeful structure of the Tucker Act, plaintiffs’ argument that this Court should interpret § 1402(a)(1) in a manner consistent with the interpretation which other courts have given to the same language under 28 U.S.C. § 1391(e)(4), also referring to where “the plaintiff resides,” is unpersuasive. See e.g., Exxon Corp. v. F.T.C., 588 F.2d 895, 898-99 (3rd Cir.1978) (venue proper under § 1391(e)(4) where at least one plaintiff resides in the district). Because § 1391(e) also permits the action to be brought where a defendant in the action resides or where the cause of action arose, see 28 U.S.C. § 1391(e)(1) & (2), it clearly does not involve the same concerns over the respective jurisdiction of the Claims Court and the district courts as are embodied in the Tucker Act.

Finally, this Court cannot accept plaintiffs’ efforts to bring this action in this district on the grounds that plaintiffs seek equitable relief unavailable in the Claims Court. This argument is unpersuasive because, as noted above, nothing prevents plaintiffs from litigating their claims in the federal district court where they individually reside to the extent they view this as an actual concern. The Court questions the legitimacy of this concern, however, since any district court hearing claims under the Tucker Act sits as the Claims Court, and may not grant equitable relief unavailable in the Claims Court which merely determines the existence and extent of monetary relief against the United States. See Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 854, 43 L.Ed.2d 85 (1975); Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 630, 34 L.Ed.2d 647 (1973); Cape Fox Corporation v. United States, 646 F.2d 399, 402 (9th Cir.1981).

Under 28 U.S.C. § 1406(a) a district court may transfer a case when venue is improper to any court in which it could have been brought if it would be “in the interest of justice” to do so. 28 U.S.C. § 1406(a). In opposing defendant’s motion to dismiss plaintiffs did not in the alternative request transfer to the Claims Court. However, as outlined above, in urging this Court to recognize venue as proper in this district the plaintiffs did emphasize the concerns for judicial economy and the desirability of litigating all of the plaintiffs’ claims in the same forum. Although plaintiffs’ arguments were unpersuasive in concluding that this Court in particular should be recognized as a proper forum, they nevertheless support the conclusion that it would be in the interest of justice to transfer this case, presently structured as a class action, to the only court which may hear all of the plaintiffs’ claims — the Claims Court.

Accordingly, it is this 3rd day of January, 1985,

ORDERED that this action is hereby transferred to the United States Claims Court pursuant to 28 U.S.C. § 1406(a).

      . Jurisdiction in this Court is proper given that plaintiffs have waived damages in excess of $10,000 with respect to each of the four separate claims for overtime pay. E.g., Goble v. Marsh, 684 F.2d 12 (D.C.Cir.1982) (backpay claims against Government potentially in excess of $10,000 may be maintained in district courts so long as claims in excess of $10,000 waived); Fitzgerald v. Staats, 429 F.Supp. 933, 935 (D.D.C.1977) (where plaintiff has two or more claims for $10,000 or less which aggregate more than $10,000, claims may nevertheless be litigated in district court), aff'd 578 F.2d 435 (D.C.Cir.), cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978).

      . In actuality, only plaintiffs’ claim for a writ of mandamus under 28 U.S.C. § 1361 could be argued to place venue in this Court. Plaintiffs’ claims for monetary damages for alleged violation of the FLSA are strictly Tucker Act claims. Therefore, the general federal question jurisdiction, 28 U.S.C. § 1331, and the commerce clause, 28 U.S.C. § 1337, and their corresponding venue provisions, are not applicable. See Graham v. Henegar, 640 F.2d 732 (5th Cir.1981); Baker v. United States, 390 F.Supp. 532 (D.D.C.1975).
      With respect to plaintiffs’ claim for declaratory relief, the Declaratory Judgment Act provides:

        In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
      28 U.S.C. § 2201 (emphasis added). The Declaratory Judgment Act, therefore, merely enlarges remedies available where a court otherwise has jurisdiction, but does not itself confer jurisdiction. Shelly Oil Co. v. Phillips, 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950); Miller-Wohl Co. v. Commissioner of Labor & Industry, 685 F.2d 1088, 1090 (9th Cir. 1982); Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 822-23 (10th Cir.1981). Consequently, it also could not provide an independent basis for venue in this case.

      . Prior to the passage of the Tucker Act, only claims against the United States founded upon an act of Congress, a regulation of the executive department, or an express or implied contract with the United States could be asserted, and could be brought only in the Court of Claims. See 14 Wright, Miller & Cooper, Federal Practice & Procedure § 3657 at 213 (1976). As a result, Congress was beseiged by private bills and petitions for relief from persons who did not meet the jurisdictional prerequisite or could not get to the Court of Claims. Id. The Tucker Act expanded on the earlier statutes by waiving sovereign immunity as to claims founded upon the Constitution, acts of Congress, executive department regulations, as well as claims for liquidated and unliquidated damages in cases not sounding in tort. Id.

      . Unpublished decisions of two other courts in this district, although not squarely presented with the issue addressed here, support this Court's holding. In Clark v. Marsh, C.A. No. 83-1352 (D.D.C. November 28, 1983), Judge Parker held that venue in this district was improper under the Tucker Act where eight of nine plaintiffs resided in Utah while the ninth resided in New York. Although none of the plaintiffs resided in the District of Columbia, and hence the court was not presented with the issue involved here, the court impliedly held that venue would not be proper on that basis by asserting that transfer, rather than dismissal of the action, was not possible since the plaintiffs did not all reside in the same district. Therefore, the court dismissed to allow each plaintiff to file in the appropriate district. That order was subsequently modified, upon the dismissal of the New York plaintiff’s claim without prejudice, to allow transfer of the Utah plaintiffs’ claims to the United States District Court for the District of Utah.
      Likewise, in Kelley v. United States, C.A. 83-2294 (D.D.C. May 7, 1984), Judge Flannery held that venue in this district was improper where none of the plaintiffs resided in the District of Columbia. Again, the court implied that venue for all plaintiffs would not be available in any federal district court in stating that dismissal was the only alternative to transfer to the Claims Court. On request of the plaintiffs, the action was transferred to the Claims Court.