
    Raymond YOWELL, Plaintiff—Appellant, v. UNITED STATES of America; Dirk Kempthorne, Secretary of the Interior, in his official capacity, Defendant—Appellee.
    No. 07-15086.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 15, 2008.
    Filed April 18, 2008.
    Robert R. Hager, Treva J. Hearne, Hager & Hearne, Reno, NV, for Plaintiff-Appellant.
    John A. Bryson, Sara E. Culley, Sam-bhav N. Sankar, DOJ-U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendant-Appellee.
    Before: KOZINSKI, Chief Judge, GOULD, and N.R. SMITH, Circuit Judges.
    
      
       Dirk Kempthorne is substituted for his predecessor, Gale Norton, as Secretary of the Department of Interior, pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.
    
   MEMORANDUM

The district court properly dismissed plaintiffs action because he does not have a cause of action under the Administrative Procedure Act, as his complaint is based upon a congressional act, not agency action. See 5 U.S.C. §§ 551(1), 701(b)(1). Plaintiff waived his other jurisdiction claims, because either (1) he failed to argue the issues in his opening brief, see Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986), or (2) he raised them for the first time on appeal, see Rothman v. Hosp. Serv. of Southern California, 510 F.2d 956, 960 (9th Cir.1975).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     