Page 31998 U.S. Dist. LEXIS 23835, *decision from the BLM does not inform [*8] Bundy hecan no longer graze livestock due to the protection of theDesert Tortoise, but instead reminds Bundy that hisgrazing permit would end at the end of the next month,February 1993, and the new permit application wasattached to the decision. The decision informed Bundythe BLM would issue him a new ten-year federal grazing permit for the Bunkerville Allotment. Mot. Dism. (#4),Exh. E. The terms and conditions for the new federalgrazing permit allowed for livestock grazing with somerestrictions to be determined by the BLM. For example,if tortoises were found to be active in the early spring ina specific area, then grazing would not be allowed untilthe amount of spring ephemeral forage had grown to asufficient amount.Bundy alleges the BLM does not have"Constitutional authority" to make the full force andeffect decision. The
Property Clause of the United StatesConstitution
gives Congress the power "to dispose of andmake all needful Rules and Regulations respecting theTerritory or other Property belonging to the UnitedStates."
United States v. Gardner ("Gardner II"), 107 F.3d 1314, 1318 (9th Cir. 1997)
U.S. CONST. art. IV, § 3, cl.2
. This Congressional power over [*9] the publiclands is without limitations.
Gardner II, 107 F.3d at 1318
. Congress enacted the FLPMA, which instructs theSecretary of the Interior to manage through the BLM the public lands under the principles of multiple use andsustained yield.
43 U.S.C. § 1732(a)
. "Multiple use"requires managing the public lands and their resources sothat they "best meet the present and future needs of theAmerican people," and taking into account the long-termneeds of future generations for renewable andnonrenewable resources, including recreation, timber,wildlife and fish and scientific values.
43 U.S.C. § 1702(c)
. "Sustained yield" is defined as "the achievementand maintenance in perpetuity of a high-level annual or regular periodic output of the various renewableresources of the public lands consistent with multipleuse."
.The FLPMA provides the Secretary of the Interior with the authority to regulate grazing and issue grazing permits that require permittees to adhere to the terms andconditions of such permits.
. The Allotmentis administered by the Secretary of the Interior throughthe BLM, thus the BLM had authority to issue the fullforce and effect decision. [*10] The Allotment whereBundy and his father before him have been grazinglivestock is classed as an ephemeral region, which doesnot consistently produce forage. The BLM has authorityunder the FLPMA to place restrictions on grazing whenthe forage declines to a level that would defeat the goalsof multiple use and sustained yield.B. Summary Judgment Summary judgment may be granted when, viewed inthe light most favorable to the nonmoving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)
Intel Corp. v. Hartford Acc. and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991)
, "the pleadings, depositions,answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material facts and that themoving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c)
Celotex Corp. v. Catrett, 477 U.S.317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
.Summary judgment shall be entered "against a party whofails to make a showing sufficient to establish theexistence of an element essential to that party's case, andon which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322
. Summary judgment [*11] shallnot be granted if a reasonable jury could return a verdictfor the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)
.The moving party bears the initial burden of showing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323
. The burden then shifts to thenonmoving party to set forth specific facts demonstratinga genuine factual issue for trial.
Matsushita, 475 U.S. at 588-87
Fed. R. Civ. P. 56(e)
. The nonmoving party maynot rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, byaffidavit or other evidentiary materials provided by
, showing there is a genuine issue for trial.
Anderson, 477 U.S. at 256
Fed. R. Civ. P. 56(e)
. Theevidence of the nonmoving party is to be believed, andall justifiable inferences are to be drawn in thenonmoving party's favor.
Anderson, 477 U.S. at 255
Fed. R. Civ. P. 56(e)
.Bundy argues in his Opposition to Motion for Summary Judgment (#14) that the Court should strike thegovernment's Motion for Summary Judgment (#11) because his Motion to Dismiss (#4) has not been ruledupon and thus the government's motion is "premature andunnecessary." [*12] Bundy's argument is unpersuasive.The plaintiff may move for summary judgment at anytime more than twenty days after the commencement of the action.
Fed. R. Civ. P. 56(a)
G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893, 1998 WL 596442, at *9(9th Cir. 1998)
. The government filed the Complaint (#1)on March 27, 1998, and it filed its Motion for SummaryJudgment (#11) on July 22, 1998, almost four monthslater.Bundy argues since this Court does not have jurisdiction, it must deny the Motion for SummaryJudgment (#11). Bundy's argument fails again. Bundy'scitation of
Steel Co. v. Citizens for a Better Environment,523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)
,does not help his case. The Supreme Court in