Duarte Nursery Inc. et al v. United States Army Corps of Engineers et al

Filing 27

ORDER signed by Judge Lawrence K. Karlton on 4/22/14 ORDERING that The Corps' MOTION to DISMISS for lack of federal jurisdiction 10 is DENIED; The Corps' MOTION to DISMISS for failure to state a claim is DENIED; and The State Defendants& #039; MOTION to DISMISS for lack of federal jurisdiction, 9 is GRANTED. This lawsuit is DISMISSED without prejudice, as to Defendants Longley, Moffitt, Constantino, Meraz, Ramirez, Schneider and Creedon, because the matter is not yet ripe for judicial review. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, 13 14 15 No. Plaintiffs, CIV. S-13-2095 LKK/DAD ORDER v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., 16 Defendants. 17 18 19 Plaintiffs own the property that is the subject of this 20 action, and operate it as a nursery growing and selling nursery 21 stock to farmers and others. 22 Complaint (ECF No. 1) ¶ 7. On February 25, 2013, defendant U.S. Army Corps of Engineers 23 (“Corps”) wrote to plaintiff, stating that it had “determined 24 that you have discharged dredged or fill material into … waters 25 of the United States, without a [required] Department of the Army 26 (DA) permit,” in violation of Section 404, 33 U.S.C. § 1344, of 27 the Clean Water Act (“the Act”). See Exhibit A (ECF No. 1-1) of 28 1 1 the Complaint.1 2 desist all work in waters of the United States until this 3 violation is resolved.” 4 The Corps “directed” plaintiff to “cease and Exh. A at 2. The Corps went on to warn plaintiffs of the “[p]otential 5 enforcement actions” that could ensue, and attached an “extract 6 of the law” as an Appendix. 7 at 4. 8 “fines” 9 of these warnings, the Corps cited, in its “extract of the law,” Id.; Id., Appendix A (ECF No. 1-1) Two of the enforcement actions the Corps warned of were and “imprisonment.” Exh. A at 2. In apparent support 10 33 U.S.C. § 1319(c)(1)(A) and (c)(2)(A), both of which refer to 11 “fine[s]” and “imprisonment” for violations of 33 U.S.C. § 1311. 12 See Appendix A at 4. 13 The third enforcement action the Corps warned of was 14 “penalties.” 15 the Corps’ “extract of the law” cited 33 U.S.C. § 1319(d), which 16 provides for “penalties” for violation of “any order issued by 17 the Administrator,” as well as for any violations of 33 U.S.C. 18 § 1311. 19 Exh. A at 2. In apparent support of this warning, See Appendix A at 4.2 The Corps did not explain in the CDO or the “extract” what 20 law authorized it to “direct” plaintiffs to “cease and desist” 21 their activities in the first place. 22 However, it is undisputed 1 23 Exhibits to the Complaint are a part of the Complaint for all purposes. Fed. R. Civ. P. 10(c). 24 2 25 26 27 In fact, the CDO is not an “order issued by the Administrator,” and plaintiffs do not challenge the Corps’ assertion that there are no legal consequences – specifically, no “penalties” – for failing to obey the CDO. Plaintiffs do not assert that they were misled by the Corps’ inclusion of the “penalty” citation. Nevertheless, it seems strange that the Corps would include such apparently misleading language in its CDO and “extract.” 28 2 1 that the Corps issued this document pursuant to its authority to 2 formally notify a person that he is in violation of the Clean 3 Water Act. 4 instruct the Corps to issue the notification “in the form of a 5 cease and desist order prohibiting any further work” until the 6 violation is resolved. 7 regulations instruct the Corps to issue this notification in the 8 form of a “cease and desist order,” the court will henceforth 9 refer to it as such.4 10 See 33 C.F.R. § 326.3(c). The applicable regulations Id. (emphases added).3 Since the On March 21, 2013, plaintiffs asked the Corps to set forth 11 the factual basis of its determination. 12 Corps provided a “partial response” on April 18, 2013.5 13 ¶ 53. 14 15 Complaint ¶ 52. The Id., On April 23, 2013, California’s Central Valley Regional Water Quality Control Board (“Board”) issued a “Notice of 16 3 The regulation provides: 17 Once the district engineer has determined that a violation exists, he should take appropriate steps to notify the responsible parties. 18 19 20 (1) If the violation involves a project that is not complete, the district engineer's notification should be in the form of a cease and desist order prohibiting any further work pending resolution of the violation in accordance with the procedures contained in this part. 21 22 23 24 25 26 27 33 C.F.R. § 326.3(c). 4 The U.S. refers to the document as a “cease and desist letter.” Plaintiffs refer to it as a “cease and desist order.” 5 Neither side has provided either plaintiffs’ request or the response. 28 3 1 Violation” (“NoV”) to plaintiffs. 2 the Complaint. 3 violation” of Section 301, 33 U.S.C. § 1311, of the Act, in that 4 they were “discharging dredged or fill materials” into waters of 5 the United States, including Coyote Creek, without the required 6 permit from the Corps. 7 plaintiffs are in violation of Section 402 of the Act, 33 U.S.C. 8 § 1342, and Section 13376 of the California Water Code, “for 9 discharging pollutants to Coyote Creek without a permit.” See Exhibit B (ECF No. 1-2) of The NoV asserts that plaintiffs “are in Exh. B at 2. It also states that Id. 10 The NoV does not order plaintiffs to stop their violations, but 11 it does notify them that the cited violations subject them to 12 civil liability, and tells them to submit a plan for mitigation 13 of the violation. 14 Id. In October 2013, plaintiffs filed this suit against the 15 Corps, and against seven officers of the Board in their official 16 capacities. 17 and one is its Executive Officer. 18 sued “under the doctrine set forth in Ex parte Young, 209 U.S. 19 123 (1908)” and Cardenas v. Anzai, 311 F.3d 929, 934-38 (9th 20 Cir. 2002).6 21 Six of the individuals are “members” of the Board, The individual defendants are The plaintiffs allege that the federal and state defendants 22 deprived them of property or property rights protected by the Due 23 Process clauses of the Fifth and Fourteenth Amendments. 24 Specifically, because of the federal cease and desist order 25 6 26 27 “Under the Ex parte Young doctrine, a plaintiff may maintain a suit for prospective relief against a state official in his official capacity, when that suit seeks to correct an ongoing violation of the Constitution or federal law.” Cardenas, 311 F.3d at 934-35 (emphasis in text). 28 4 1 (“CDO”), and the state NoV, plaintiffs left their wheat crop 2 unattended, losing $50,000 in planting costs. 3 documents in effect, plaintiffs would have to disclose them to 4 potential buyers, and thus the defendants have effectively placed 5 a lien on plaintiffs’ property. 6 defendants acted in contravention of plaintiffs’ Fifth and 7 Fourteenth Amendment Due Process rights by issuing the CDO and 8 the NoV without affording plaintiffs a hearing before or after 9 issuing the documents. 10 Second, with those Plaintiffs further allege that For remedies, plaintiffs ask for (1) declaratory judgments 11 that the failure to provide hearings is unconstitutional, (2) an 12 injunction against further enforcement proceedings based upon the 13 CDO and NoV, (3) an injunction requiring defendants to notify 14 those to whom the CDO and NoV were sent, that they are invalid, 15 and (4) a declaratory judgment that the regulations at 33 C.F.R. 16 Part 326 are unconstitutional. 17 The Corps moves to dismiss the claims against it (Claims 1, 18 2 and 5), on the grounds that (1) the claims are not ripe for 19 judicial review, and (2) plaintiffs have failed to state a claim 20 for violation of the Fifth Amendment. 21 The State defendants move to dismiss the claims against them 22 (Claims 3 and 4), on the grounds that the claims (1) are not ripe 23 for judicial review, and (2) are barred by Eleventh Amendment 24 sovereign immunity. 25 For the reasons that follow, the court will deny the Army 26 Corps’ motion to dismiss, and grant the State’s. 27 //// 28 //// 5 1 II. STANDARDS 2 A. 3 It is well established that the party seeking to invoke the 4 jurisdiction of the federal court has the burden of establishing 5 that jurisdiction exists. 6 U.S. 269, 278 (1936); Assoc. of Medical Colleges v. United 7 States, 217 F.3d 770, 778-779 (9th Cir. 2000). 8 dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the standards that 9 must be applied vary according to the nature of the 10 11 Dismissal for Lack of Federal Jurisdiction. KVOS, Inc. v. Associated Press, 299 On a motion to jurisdictional challenge. When a party brings a facial attack to subject matter 12 jurisdiction, that party contends that the allegations of 13 jurisdiction contained in the complaint are insufficient on their 14 face to demonstrate the existence of jurisdiction. 15 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 16 Rule 12(b)(1) motion of this type, the plaintiff is entitled to 17 safeguards similar to those applicable when a Rule 12(b)(6) 18 motion is made. 19 (11th Cir. 1994), Osborn v. United States, 918 F.2d 724, 729 n.6 20 (8th Cir. 1990); see also 2-12 Moore's Federal Practice - Civil § 21 12.30 (2009). 22 presumed to be true, and the motion is granted only if the 23 plaintiff fails to allege an element necessary for subject matter 24 jurisdiction. 25 343 F.3d 1036, 1039 n.1 (9th Cir. 2003), Miranda v. Reno, 238 26 F.3d 1156, 1157 n.1 (9th Cir. 2001). Nonetheless, district courts 27 “may review evidence beyond the complaint without converting the Safe Air for In a See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 The factual allegations of the complaint are Savage v. Glendale Union High Sch. Dist. No. 205, 28 6 1 motion to dismiss into a motion for summary judgment” when 2 resolving a facial attack. Safe Air for Everyone,373 F.3d at 3 1039. 4 B. 5 A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges Dismissal for Failure To State a Claim. 6 a complaint’s compliance with the federal pleading requirements. 7 Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short 8 and plain statement of the claim showing that the pleader is 9 entitled to relief.” The complaint must give the defendant 10 “‘fair notice of what the ... claim is and the grounds upon which 11 it rests.’” 12 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) To meet this requirement, the complaint must be supported by 14 factual allegations. 15 (2009). 16 factual allegations contained in the complaint.” 17 Pardus, 551 U.S. 89, 94 (2007).7 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 Moreover, this court “must accept as true all of the Erickson v. “While legal conclusions can provide the framework of a 19 complaint,” neither legal conclusions nor conclusory statements 20 are themselves sufficient, and such statements are not entitled 21 to a presumption of truth. 22 Twombly therefore prescribe a two-step process for evaluation of 23 motions to dismiss. Iqbal, 556 U.S. at 679. Iqbal and The court first identifies the non- 24 7 25 26 27 28 Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“What Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]t may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test” under Rule 12(b)(6)). 7 1 conclusory factual allegations, and then determines whether these 2 allegations, taken as true and construed in the light most 3 favorable to the plaintiff, “plausibly give rise to an 4 entitlement to relief.” 5 Iqbal, 556 U.S. at 679. “Plausibility,” as it is used in Twombly and Iqbal, does not 6 refer to the likelihood that a pleader will succeed in proving 7 the allegations. 8 conclusory factual allegations, when assumed to be true, “allow[] 9 the court to draw the reasonable inference that the defendant is Instead, it refers to whether the non- 10 liable for the misconduct alleged.” 11 “The plausibility standard is not akin to a ‘probability 12 requirement,’ but it asks for more than a sheer possibility that 13 a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 14 at 557).8 15 by lacking a cognizable legal theory or by lacking sufficient Iqbal, 556 U.S. at 678. A complaint may fail to show a right to relief either 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Twombly imposed an apparently new “plausibility” gloss on the previously well-known Rule 8(a) standard, and retired the long-established “no set of facts” standard of Conley v. Gibson, 355 U.S. 41 (1957), although it did not overrule that case outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir. 2009) (the Twombly Court “cautioned that it was not outright overruling Conley ...,” although it was retiring the “no set of facts” language from Conley). The Ninth Circuit has acknowledged the difficulty of applying the resulting standard, given the “perplexing” mix of standards the Supreme Court has applied in recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011) (comparing the Court’s application of the “original, more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), with the seemingly “higher pleading standard” in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and Iqbal), cert. denied, 132 S. Ct. 2101 (2012). See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set of facts” standard to a Section 1983 case). 8 1 facts alleged under a cognizable legal theory. 2 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 3 Balistreri v. III. ARMY CORPS OF ENGINEERS 4 Plaintiffs allege that this court may exercise jurisdiction 5 over their Due Process claims against the Corps pursuant to 6 (1) Section 10(a) of the Administrative Procedure Act (“APA”), 5 7 U.S.C. § 702, which provides for judicial review of agency 8 actions, and (2) 28 U.S.C. § 1331, which provides for 9 jurisdiction over claims arising under the Constitution and laws 10 of the United States. 11 dismiss based upon its assertion that the claims against it are 12 not ripe for judicial review. 13 No. 10) at 1. 14 plaintiffs’ claims for failure to state a claim. 15 See Complaint ¶ 1. The Corps moves to See Corps Notice of Motion (ECF In the alternative, the Corps moves to dismiss There are three distinct jurisdictional issues the court 16 must therefore address. 17 subject matter jurisdiction on this court for these claims. 18 where there is federal jurisdiction, since this is a suit against 19 an agency of the United States, the court must consider, Second, 20 whether the United States has waived its sovereign immunity for 21 these claims.9 22 the claims are ripe for judicial review. 23 //// First, whether a federal statute confers Even If so, the court must consider, Third, whether 24 9 25 26 27 Section 1331 “grants district courts original jurisdiction over ‘all civil actions arising under the Constitution, laws or treaties of the United States,’ but it does not waive sovereign immunity.” U.S. v. Park Place Associates, Ltd., 563 F.3d 907, 923-24 (9th Cir. 2009) (citing Hughes v. United States, 953 F.2d 531, 539 n.5 (9th Cir. 1992)). 28 9 1 A. 2 Plaintiffs allege that the issuance of the Corps’ cease and Federal Jurisdiction. 3 desist order violates their rights under the Due Process Clause 4 of the Fifth Amendment to the U.S. Constitution. 5 allege that 33 C.F.R. § 326.3(c), as applied to them, violates 6 the Due Process Clause. 7 hear and adjudicate these claims, pursuant to the general grant 8 of federal court jurisdiction set forth at 28 U.S.C. § 1331. 9 See, e.g., Bell v. Hood, 327 U.S. 678, 685 (1946) (“Thus, the Plaintiffs also This court plainly has jurisdiction to 10 right of the petitioners to recover under their complaint will be 11 sustained if the Constitution and laws of the United States are 12 given one construction and will be defeated if they are given 13 another. 14 Verizon Maryland, Inc. v. Public Service Com'n of Maryland, 535 15 U.S. 635, 643 (2002) (“Verizon's claim thus falls within 28 16 U.S.C. § 1331's general grant of jurisdiction,” because its right 17 to recover “will be sustained if the Constitution and laws of the 18 United States are given one construction and will be defeated if 19 they are given another”) (citations and internal quotation marks 20 omitted); U.S. v. Park Place Associates, Ltd., 563 F.3d 907, 21 923-24 (9th Cir. 2009) (“For example, 28 U.S.C. § 1331 grants 22 district courts original jurisdiction over ‘all civil actions 23 arising under the Constitution, laws or treaties of the United 24 States’”). For this reason the district court has jurisdiction”); 25 B. 26 “‘Absent a waiver, sovereign immunity shields the Federal 27 Waiver of Sovereign Immunity. Government and its agencies from suit.’” 28 10 Department of Army v. 1 Blue Fox, Inc., 525 U.S. 255, 260 (1999) (quoting FDIC v. Meyer, 2 510 U.S. 471, 475 (1994)). 3 APA) provides that waiver of sovereign immunity for suits seeking 4 relief “other than money damages.” 5 Massachusetts, 487 U.S. 879, 891-892 (1988) (“the 1976 amendment 6 to § 702 was intended to broaden the avenues for judicial review 7 of agency action by eliminating the defense of sovereign immunity 8 in cases covered by the amendment”). 9 Section 702 (Section 10(a) of the See, e.g., Bowen v. It provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States …. 10 11 12 13 14 15 16 17 5 U.S.C. § 702. Here, plaintiffs seek injunctive and declaratory 18 relief for an alleged legal wrong inflicted by the Corps’ 19 issuance of the CDO.10 20 are covered by the sovereign immunity waiver. Accordingly, the claims against the Corps 21 22 23 24 25 26 27 10 In addition, plaintiffs must be challenging “agency action” for their claims to be within the waiver of sovereign immunity. See Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 882 (1990). “Agency action” is defined to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551 (emphasis added); Lujan, 497 U.S. at 882. Plaintiffs identify the cease and desist order as the agency action they are challenging. Defendants do not challenge this identification, and the court finds that issuance of the cease and desist order is “agency action” within the meaning of the waiver statute. 28 11 1 C. 2 The Corps argues that this case is not “ripe” for judicial Ripeness. 3 review. “Whether a claim is ripe generally turns on the fitness 4 of the issues for judicial decision and the hardship to the 5 parties of withholding court consideration.” 6 and County of Honolulu, 124 F.3d 1150, 1160 (9th Cir. 1997) 7 (citing PG&E v. State Energy Resources Conserv. & Devel. Comm'n, 8 461 U.S. 190, 201 (1983)), cert. denied, 525 U.S. 871 (1998). 9 the Corps points out, “[t]he ‘central concern [of the ripeness Richardson v. City As 10 inquiry] is whether the case involves uncertain or contingent 11 future events that may not occur as anticipated, or indeed may 12 not occur at all.’” 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 14 Practice and Procedure § 3532 at 112 (2d ed. 1984)). Richardson, 124 F.3d at 1150 (quoting 13A 15 The Corps argues that plaintiffs’ claims have not “‘matured 16 sufficiently to warrant judicial intervention,’” because the CDO 17 “imposes no legal obligations or liability on its own [and thus] 18 Plaintiffs suffer no cognizable injury from its issuance.” 19 Memorandum of Points and Authorities in Support of Federal 20 Defendant’s Motion To Dismiss Complaint (“Corps Motion”) (ECF 21 No. 10-1) at 14. 22 own, there are no separate penalties for violating it, and it can 23 only be enforced through a separate enforcement action. 24 the Corps argues, the CDO “is merely a mechanism to notify an 25 alleged violator of the legal obligations imposed by the CWA, the 26 Corps belief that those obligations have been violated, and of 27 the potential consequences of such violations.” Specifically, the CDO is not enforceable on its 28 12 Id. Rather, 1 The court cannot agree. Even assuming that the CDO does not 2 impose any legal “obligations” or “liabilities,” the Corps’ 3 argument underestimates the force of a command from the United 4 States or its agency, the Army Corps of Engineers, and the injury 5 it can cause. 6 burned plaintiffs’ nursery to the ground in an effort to protect 7 the waters of the U.S., plaintiffs surely would have suffered an 8 injury, even though the Corps still would not have imposed any 9 legal “obligation” or “liability” on plaintiffs. 10 If the Corps, instead of issuing the CDO, had Having been commanded by the U.S. Government to stop their 11 activities, plaintiffs reasonably believed that they were 12 required to stop their farming activities, and thereby lost their 13 crop. 14 issued by the United States Government, not merely a suggested 15 course of conduct, nor a request for a voluntary cessation of 16 activities. 17 obey the order it issued. 18 unconditional command of the U.S. Government, or its agency, the 19 Corps, then the CDO should have said so.11 20 were simply a “notification” to plaintiffs, then it should have 21 said so, rather than clothing itself as an “order” which carried 22 with it the authority to “prohibit” plaintiffs from continuing 23 their activities. Plaintiffs reasonably interpreted the CDO to be an order The Corps asserts that plaintiffs did not have to If plaintiffs were free to ignore an Conversely, if the CDO See 28 C.F.R. § 326.1(c). 24 25 26 27 11 In essence, the government argues that although it (figuratively) held a gun to plaintiff’s head and ordered him to stop farming, plaintiff should have relied on the unstated fact that the gun could not be fired. 28 13 1 In its main brief, the Corps cites four cases in support of 2 its view that the CDO had no legal effect and therefore is not 3 yet subject to judicial review. 4 this case. 5 Engineers, 543 F.3d 586 (9th Cir. 2008), cert. denied, 557 U.S. 6 919 (2009), plaintiffs sought “judicial review of a Corps’ 7 ‘approved jurisdictional determination,’ which is a written, 8 formal statement of the agency's view that Fairbanks' property 9 contained waters of the United States and would be subject to None of them are applicable to In Fairbanks North Star Borough v. U.S. Army Corps of 10 regulation under the CWA.” 11 “directing” anyone to “cease and desist” from any activity, or 12 “prohibiting” any activity, as the CDO in this case does. 13 did plaintiff challenge the Corps’ action as unconstitutional. 14 Fairbanks accordingly considered only whether the jurisdictional 15 determination was “final agency action” under the APA, and 16 determined that it was not. 17 agency action” is not at issue in this case.13 The case did not involve any order Id., 543 F.3d at 591.12 Nor “Final 18 19 20 21 22 23 24 25 26 27 12 Fairbanks determined that “the Corps’ issuance of an approved jurisdictional determination finding that Fairbanks’ property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review.” Id., 543 F.3d at 591. Although the jurisdictional determination was “final,” it did not determine any rights or obligations, nor would any “legal consequences” flow from it. Id., at 593. Specifically, the determination “does not itself command Fairbanks to do or forbear from anything; as a bare statement of the agency's opinion, it can be neither the subject of ‘immediate compliance’ nor of defiance.” Id., at 594-95. In contrast, the CDO at issue here plainly commands plaintiff to forbear from doing something. 13 “Final agency action” is an issue for cases brought under 5 U.S.C. § 704, not, as here, Section 702. 28 14 1 Route 26 Land Dev. Ass’n v. U.S., 753 F. Supp. 532 (D. 2 Del. 1990), aff’d mem., 961 F.,2d 1568 (3rd Cir. 1992), the 3 second case, was also a challenge to the Corps’ jurisdictional 4 “designation of two reaches of the Santa Cruz River in Arizona as 5 ‘traditional navigable waters.’” 6 whether the determination was “final agency action” within the 7 meaning of the APA. 8 therefore declined review. 9 the existence of “final agency action,” and thus Route 26 10 This case too, turned on The district court held that it was not, and As noted, this case does not turn on provides no guidance. 11 The two cases the government cites as specifically 12 precluding judicial review of the Corps’ cease and desist orders 13 were decided under 5 U.S.C. § 704, not Section 702, and rule as 14 they do because the CDO does not constitute “final agency 15 action.” 16 vacated mem., 963 F.2d 385 (11th Cir. 1992); Howell v. U.S. Army 17 Corps of Engineers, 794 F. Supp. 1072 (D.N.M. 1992). 18 these cases involved a federal constitutional challenge to agency 19 action. 20 the court to address agency action that allegedly caused 21 plaintiff to suffer a federal constitutional injury.14 See Banks v. Page, 768 F. Supp. 809 (S.D. Fla. 1991), Neither of In this case, “final agency action” is not required for 22 23 24 25 26 27 28 14 In any event, the latter two cases are not persuasive. The cited district court decision in Banks was “vacated” by the Eleventh Circuit, and therefore it is not clear that it should be cited at all. See Banks v. Page, 963 F.2d 385 (11th Cir. 1992), vacating mem., 768 F. Supp. 809 (S.D. Fla. 1991). As for Howell, a central premise of its reasoning was that the Clean Water Act precluded review of “compliance” orders. However the Supreme Court has since held that compliance orders are subject to judicial review. Sackett v. EPA, 566 U.S. ___, 132 S. Ct. 1367 (2012). 15 1 The only case the court was able to find that addressed 2 whether issuance of a Corps cease and desist order presented a 3 “ripe” controversy (outside the context of Section 704) is 4 Swanson v. U.S., 600 F. Supp. 802 (D. Idaho 1985), aff’d, 789 5 F.2d 1368 (9th Cir. 1986). 6 received a letter from the Corps that “directed” her to “desist 7 from any further work.” 8 citing “federal jurisdiction pursuant to 28 U.S.C. § 1331 and 28 9 U.S.C. § 2201.” 10 11 12 13 14 15 16 17 18 19 20 21 In Swanson, as here, plaintiff Plaintiff there filed suit immediately, The district court found that the matter was ripe for judicial review: In reference to the first dispute, the court has little difficulty finding that the issues raised are ripe for judicial determination. Swanson has constructed improvements on a portion of the lake in dispute and defendants have asserted their regulatory authority in the form of the “stop work” letter sent to Swanson. These facts give rise to an actual and present controversy concerning the authority of the Corps to regulate the outer perimeter of Lake Pend Oreille. Since defendants have actually asserted their jurisdiction and Plaintiff Swanson has opposed it, the matter is ripe for judicial determination. Swanson, 600 F. Supp. at 806. In its Reply brief, and at oral argument, the Corps cited 22 Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957 23 (9th Cir. 2011), cert. denied, 133 S. Ct. 423 (2012), in support 24 of its ripeness argument. 25 there did opine on the lack of consequences for not obeying a 26 cease and desist order issued by the County: 27 28 As the Corps points out, the Court In this case, although strongly worded, the County's NOV and cease-and-desist order did 16 1 not themselves deprive the Church of any interests. The County would have had to bring an enforcement action in court in order to actually enforce the zoning regulations — and it in fact notified the Church of that in its May 2008 letter. Without bringing the Church to court, the County had no power to, for example, padlock the building doors or make arrests, nor did it take any such action. Had the County brought the Church to court, the Church would have received notice, an opportunity to be heard, and an opportunity to present evidence; at the very least, we would have a record upon which to make a judgment about whether the Church had received sufficient process. 2 3 4 5 6 7 8 9 10 11 12 Guatay, 670 F.3d at 984. Simply put, Guatay does not control this case. The critical 13 distinguishing facts underlying Guatay are that (1) plaintiffs 14 there could have sought a permit allowing them to keep their 15 church where it was, and (2) they had available an administrative 16 appeal of the cease and desist order. 17 965 (“The Church did not attempt to obtain a Use Permit before 18 doing so [filing the lawsuit]. 19 itself of the appeals process, as provided in the County’s 20 code”). 21 See Guatay, 670 F.3d at Nor did it attempt to avail In this case, unlike the situation in Guatay, nothing in the 22 Corps’ CDO notified plaintiffs that the Corps could not take 23 action based upon the CDO alone, for example, shut down the farm 24 entirely. 25 plaintiffs had the option of seeking an after-the-fact permit. 26 To the contrary, the CDO is clear that the only course open to Moreover, nothing in the Corps’ CDO suggests that 27 28 17 1 plaintiffs is “[p]rompt voluntary restoration of the site.” 2 at 2. 3 CDO The CDO also makes no mention of any appeals process. The Corps’ regulations, meanwhile, do permit after-the-fact 4 permits, but only “[f]ollowing the completion of any required 5 initial corrective measures.” 6 this means that plaintiffs must promptly restore the site before 7 they can seek a permit is not clear. 8 Corps how its CDO procedure could be modified to comply with Due 9 Process standards. 10 11 33 C.F.R. § 326.3(e)(1). Whether Guatay certainly shows the As that process was not used in this case, however, Guatay does not help the Corps. This court does not doubt that the Corps needs the 12 flexibility to “notify” landowners that they are in violation of 13 the law, without having to go to court first. 14 “notification,” they would be in the same position as the State 15 defendants, and could now argue successfully that the matter was 16 not ripe for judicial review. 17 “notify” plaintiffs they were operating in violation of the law, 18 it commanded plaintiffs to stop their activities. 19 Corps did so without granting plaintiffs any ability to challenge 20 this command, either before or after issuance of the CDO – other 21 than requiring plaintiffs to wait around indefinitely to see if 22 the Corps would file an enforcement action – plaintiffs are 23 entitled to judicial review now. 24 Had they issued a However, the Corps did not Since the The Corps asserts that plaintiffs have another 25 administrative option they should be required to exhaust before 26 proceeding to court. 27 plaintiffs can wait until the Corps files an enforcement action. 28 That is entirely inadequate, as plaintiffs are being deprived now Specifically, the Corps suggests that 18 1 of the right to farm their land for an indefinite period, with no 2 assurance that an enforcement action will ever be filed, thus 3 completely depriving them of the opportunity to challenge the 4 CDO. 5 Plaintiffs’ claims are ripe for judicial review. 6 D. 7 In order to state a claim under the Due Process clause of Due Process. 8 the Fifth Amendment to the U.S. Constitution, plaintiff must 9 first allege facts showing that he has a “liberty” or “property” 10 interest at stake. 11 (“Procedural due process imposes constraints on governmental 12 decisions which deprive individuals of ‘liberty’ or ‘property’ 13 interests within the meaning of the Due Process Clause of the 14 Fifth or Fourteenth Amendment”). 15 Mathews v. Eldridge, 424 U.S. 319, 332 (1976) Plaintiffs allege a property and/or liberty interest in the 16 land they own, and their right to use it for wheat farming. 17 Complaint ¶¶ 45-47. 18 assertion. 19 The government does not contest this Plaintiffs must then allege that they were deprived of this 20 interest by some decision or action of the federal government. 21 Id. 22 the cease and desist order. 23 not deprive plaintiffs of their property or legal interest 24 because the CDO: 25 26 27 As discussed above, the action alleged is that of issuing The Corps argues that the CDO did is merely a mechanism to notify an alleged violator of the legal obligations imposed by the CWA, the Corps’ belief that those obligations have been violated, and of the potential consequences of such violations. 28 19 1 The Corps’ direction to comply with the requirements of the Act is only enforceable through a subsequent enforcement action. Because the Corps’ letter imposes no legal obligations or liability on its own, Plaintiffs suffer no cognizable injury from its issuance. 2 3 4 5 6 U.S. Motion To Dismiss, ECF No. 10-1 at 14. As discussed above, the Corps disagrees with the plain words 7 8 of its own CDO. The Corps ordered plaintiffs to stop their 9 activities, and plaintiffs complied with the order, reasonably 10 believing that they were not free to ignore a command of the 11 United States Government, or its agency, the Army Corps of 12 Engineers. 13 the degree they are still complying, they have lost their right 14 to farm or use their land. In so complying, plaintiffs lost their crop, and to The Corps’ purported mechanisms for challenging its actions 15 16 are, as discussed above, inadequate. 17 idly about while the Corps decides whether to bring an 18 enforcement action has the effect of continuing to deprive 19 plaintiffs of the use of their property, without end. 20 plaintiffs to file for an after-the-fact permit makes no sense, 21 as plaintiffs assert that they have the right to conduct their 22 activities without the permit, the CDO gave plaintiffs no hint 23 that this was available, and the after-the-fact permit process 24 appears to require plaintiffs to do exactly what this lawsuit 25 seeks to avoid, namely, forcing them to restore the site to the 26 Corps’ satisfaction. Forcing Plaintiffs have stated a claim under the Due Process Clause. 27 28 Forcing plaintiffs to wait //// 20 1 2 IV. STATE DEFENDANTS Plaintiffs sue officials of the Board in their official 3 capacities. 4 to provide a hearing either before or after issuing the NoV. 5 The sole violation alleged is that the Board failed Plaintiffs allege that this court may exercise jurisdiction 6 over their Due Process claims against the State pursuant to 7 (1) 28 U.S.C. § 1331, which provides for jurisdiction over claims 8 arising under the Constitution and laws of the United States, and 9 (2) the doctrine set forth in Ex parte Young, 209 U.S. 123 10 (1908), which permits state officials to be sued to enjoin 11 constitutional violations. 12 See Complaint ¶¶ 1 & 10-16. The State moves to dismiss plaintiffs’ claims as barred by 13 sovereign immunity, and because they are not ripe for judicial 14 review. 15 16 See State Notice of Motion (ECF No. 9) at 2. A. Sovereign Immunity. “A state's sovereign immunity from suit in federal court 17 normally extends to suits against its officers in their official 18 capacities.” 19 Cir. 2002). 20 official capacities is therefore barred by sovereign immunity 21 unless an exception applies. 22 under the exception articulated in Ex parte Young, 209 U.S. 123 23 (1908). 24 maintain a suit for prospective relief against a state official 25 in his official capacity, when that suit seeks to correct an 26 ongoing violation of the Constitution or federal law.” 27 311 F.3d at 934-35. Cardenas v. Anzai, 311 F.3d 929, 934 (9th This action against California officers in their Plaintiffs assert that they may sue “Under the Ex parte Young doctrine, a plaintiff may 28 21 Cardenas, 1 The Board argues that plaintiffs seek retrospective relief, 2 not prospective relief, and therefore the claim is barred by 3 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281 (1997), 4 Edelman v. Jordan, 415 U.S. 651, 668 (1974), and Green v. 5 Mansour, 474 U.S. 64, 68-69 (1985). 6 NoV is still in effect, and whatever allegedly unconstitutional 7 mischief it is causing, it is still causing. 8 correct that on-going violation. 9 otherwise. 10 The Board is incorrect. The Plaintiffs seek to Nothing in the cited cases says Coeur d’Alene denied plaintiffs’ claim on sovereign immunity 11 grounds in the “particular and special circumstances” where 12 Idaho’s sovereignty was threatened by the lawsuit. 13 have no application to this lawsuit. 14 claims because they required the retroactive payment of funds 15 from the state’s treasury. 16 prospective injunctive relief. 17 “compensatory or deterrence interests” of retrospective relief 18 that failed to overcome the state’s sovereign immunity. 19 relief sought here is not compensatory or deterrent, it only 20 seeks to put a halt to allegedly unconstitutional conduct. 21 22 Edelman denied plaintiffs’ Here, the only requested relief is Green clarified that it was the The Sovereign immunity does not bar the suit against the Board officials. 23 24 It appears to B. Ripeness. Plaintiffs assert that their receipt of the NoV caused them 25 to abandon their crop and therefore they were deprived of their 26 property rights. 27 assertion. There are at least two problems with this First, in their Opposition, plaintiffs concede that 28 22 1 they abandoned the crops because of their receipt of the federal 2 CDO, not the state NoV. 3 Federal Defendant’s and State Defendants’ Motions To Dismiss 4 Complaint (“Pl. Oppo.”) (ECF No. 15) at 19 (“[i]t is evident from 5 the allegations of the Complaint and the text of the Order [the 6 CDO] that the receipt of this document caused Duarte to abandon 7 the wheat crop and their farming activities on the Property, 8 depriving them of their property interests as a result”). 9 plaintiffs’ interpretation of their own complaint indicates that Plaintiffs’ Combined Opposition to Thus, 10 only the federal action deprived them of their rights, not the 11 Board’s. 12 Second, even if the court were to ignore plaintiffs’ 13 concession, and accept that the NoV caused plaintiffs to abandon 14 their crop, plaintiffs have cited no authority that their own 15 decision to abandon their crop is a deprivation of their property 16 rights under the Due Process clause. 17 to convert their own conduct into state action. 18 the Due Process claim, plaintiffs must show that the Board or its 19 officials deprived them of their property without due process. 20 Plaintiffs are attempting To prevail on Plaintiffs identify nothing in the NoV or the statute or 21 regulations governing the NoV that impaired their property, 22 stopped them from farming, or had any other legal consequences. 23 Instead, plaintiffs assert that the very existence of the NoV 24 impairs their property rights, and analogizes the NoV to an ex 25 parte attachment or lien against the property, citing Connecticut 26 v. Doehr, 501 U.S. 1, 12 (1991), and Tri-State Dev. V. Johnston, 27 160 F.3d 528, 531 (9th Cir. 1998). 28 23 Pl. Oppo. at 16. 1 Plaintiffs do not offer any explanation for why this analogy 2 is valid. 3 or encumbrance of any kind such as would impair their ability to 4 alienate the property. 5 to disclose the NoV in the event they tried to sell or lease the 6 property. 7 impairments to the seller’s right to his property, not the 8 possibility that the market value of the property might be 9 affected by required disclosures. 10 They do not argue that the NoV is a lien, attachment Instead, they state that they would have The cases plaintiffs cite, however, address legal Plaintiffs buttress their argument by asserting that the NoV 11 “depriv[es] Duarte of the vested right to use the Property in 12 accordance with its zoning,” namely wheat farming. 13 18. 14 plaintiffs of anything, nor does it order them to stop doing 15 anything. 16 But it does no such thing. ECF No. 15 at The NoV does not divest The order notifies plaintiffs of the Board’s view that they 17 are in violation of the law. 18 plaintiffs submit a plan to mitigate the impacts of the 19 discharges. 20 consequences for failure to submit such a plan, (2) plaintiffs 21 identify nothing in the law or regulations that authorizes any 22 such consequences, and (3) plaintiffs do not allege that in fact 23 any such consequences have occurred. The only thing it commands is that However, (1) nothing in the letter threatens any 24 In short, the Board has done nothing to plaintiffs yet. 25 lawsuit against the Board is not ripe for adjudication in federal 26 court. 27 //// 28 //// 24 The 1 2 3 4 5 6 IV. CONCLUSION For the reasons stated above, the court orders as follows: 1. The Corps’ motion to dismiss for lack of federal jurisdiction, is DENIED; 2. The Corps’ motion to dismiss for failure to state a claim is DENIED; and 7 3. The State defendants’ motion to dismiss for lack 8 of federal jurisdiction, is GRANTED. This lawsuit is hereby 9 10 DISMISSED without prejudice, as to defendants Longley, Moffitt, 11 Constantino, Meraz, Ramirez, Schneider and Creedon, because the 12 matter is not yet ripe for judicial review. 13 IT IS SO ORDERED. 14 DATED: April 22, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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