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John H. Mckown, Iv v. United States of America

November 18, 2011

JOHN H. MCKOWN, IV,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO AMEND (Docket No. 40)

ORDER CONTINUING STAY AS TO ALL NON-ADMINISTRATIVE PROCEDURE ACT CLAIMS (Docket Nos. 38, 39)

ORDER REGARDING UPCOMING SCHEDULING CONFERENCE SET FOR JANUARY 10, 2012 (Docket No. 46)

I. INTRODUCTION

On October 6, 2011, Plaintiff John H. McKown, IV ("Plaintiff") filed to a motion to vacate the stay previously imposed by the Court in this action and a motion to file an amended complaint to include claims pursuant to Administrative Procedure Act ("APA"). (Docs. 38-40.) On November 2, 2011, Defendant United States of America and the other federal defendants (collectively, "Defendants") filed a response indicating that they do not oppose Plaintiff's motions but requested that a stay on discovery remain in place pending the resolution of Plaintiff's APA claims. A hearing was held on November 16, 2011.

For the reasons set forth below, Plaintiff's motion to file an amended complaint is GRANTED. Pursuant to the stipulation of the parties while appearing at the hearing, the non-APA claims remain STAYED, including all discovery as to those claims. The parties are also ORDERED to file a joint scheduling brief by no later than January 3, 2012, in preparation for the scheduling conference set for January 10, 2012.

II. BACKGROUND AND PROCEDURAL HISTORY

On May 7, 2009, Plaintiff filed a verified complaint, alleging causes of action for

(1) declaratory and injunctive relief, requesting that the United States Forest Service ("Forest Service") be precluded from regulating his use of three mining claims, designated as the White Cap Nos. 1-3,*fn1 under the California Desert Protection Act of 1994; (2) quiet title, requesting that the Court identify him as the owner of the White Cap Nos. 1-3; (3) civil rights violations under Bivens v. Six Unknown Federal Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Forest Service officials deprived him of constitutional rights; and (4) illegal restraint of interstate commerce due to actions by officials with the Forest Service and the Bureau of Land Management ("BLM"). (Doc. 1.)

On May 18, 2009, Plaintiff also filed an action in the United States Court of Federal Claims ("CFC"), alleging claims related to the facts in this action. See McKown v. United States, Case No. 09-371 L (Fed. Cl.).

On October 19, 2009, Defendants filed a motion to stay proceedings pending the resolution of the administrative dispute before the United States Department of Interior's Office of Hearing and Appeals ("OHA") regarding the determination of Plaintiff's three mining claims. (Doc. 24.) Defendants contended that the administrative agency's resolution of whether Plaintiff had a valid property interest in the White Cap Nos. 1-3 would likely resolve the remaining issues in this litigation. On December 14, 2009, the Court granted Defendants' motion and the action was stayed pending the OHA's ruling on Plaintiff's White Cap Nos. 1-3 mining claims. (Doc. 30.) Plaintiff's CFC case was also stayed to allow the parties to complete the administrative proceedings. (See Doc. 24, p. 3, n.2.)

On May 25, 2010, the OHA ruled against Plaintiff, finding that his mining claims as to the White Cap Nos. 1-3 were null and void. (Doc. 33-1.) Plaintiff appealed the decision with the Interior Board of Lands Appeal ("IBLA"). (Doc. 33-3.) On June 30, 2011, the IBLA affirmed the OHA decision that Plaintiff's mining claims were null and void. (Doc. 35-1.)

On October 6, 2011, Plaintiff filed a motion to vacate the Court's order staying this action as Plaintiff exhausted all his administrative remedies. (Docs. 38, 39.) Plaintiff also filed a motion to amend the complaint, requesting to file a first amended complaint ("FAC") to add causes of action under the APA so as to seek judicial review of the IBLA decision. (Doc. 40.)

On November 2, 2011, Defendants filed a response to Plaintiff's motions indicating that they did not oppose Plaintiff's motions, but reserved their right to move pursuant to Federal Rule of Civil Procedure 12 and other applicable law to seek dismissal of Plaintiff's FAC. (Doc. 43.) Further, Defendants requested that the Court stay discovery pending the resolution of the judicial review of the IBLA decision and the appeal of Plaintiff's APA ...


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