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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DUARTE NURSERY, INC., a
California Corporation; and
JOHN DUARTE, an individual,
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No.
Plaintiffs,
CIV. S-13-2095 LKK/DAD
ORDER
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
16
Defendants.
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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.
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Complaint (ECF No. 1) ¶ 7.
On February 25, 2013, defendant U.S. Army Corps of Engineers
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(“Corps”) wrote to plaintiff, stating that it had “determined
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that you have discharged dredged or fill material into … waters
25
of the United States, without a [required] Department of the Army
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(DA) permit,” in violation of Section 404, 33 U.S.C. § 1344, of
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the Clean Water Act (“the Act”).
See Exhibit A (ECF No. 1-1) of
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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.
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at 4.
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“fines”
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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
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“penalties.”
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the Corps’ “extract of the law” cited 33 U.S.C. § 1319(d), which
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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).
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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.”
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2
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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
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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.
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Corps provided a “partial response” on April 18, 2013.5
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¶ 53.
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Complaint ¶ 52.
The
Id.,
On April 23, 2013, California’s Central Valley Regional
Water Quality Control Board (“Board”) issued a “Notice of
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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.
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(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.
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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.
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3
1
Violation” (“NoV”) to plaintiffs.
2
the Complaint.
3
violation” of Section 301, 33 U.S.C. § 1311, of the Act, in that
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they were “discharging dredged or fill materials” into waters of
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the United States, including Coyote Creek, without the required
6
permit from the Corps.
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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
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it does notify them that the cited violations subject them to
12
civil liability, and tells them to submit a plan for mitigation
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of the violation.
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Id.
In October 2013, plaintiffs filed this suit against the
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Corps, and against seven officers of the Board in their official
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capacities.
17
and one is its Executive Officer.
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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
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Cir. 2002).6
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Six of the individuals are “members” of the Board,
The individual defendants are
The plaintiffs allege that the federal and state defendants
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deprived them of property or property rights protected by the Due
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Process clauses of the Fifth and Fourteenth Amendments.
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Specifically, because of the federal cease and desist order
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“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).
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(“CDO”), and the state NoV, plaintiffs left their wheat crop
2
unattended, losing $50,000 in planting costs.
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documents in effect, plaintiffs would have to disclose them to
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potential buyers, and thus the defendants have effectively placed
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a lien on plaintiffs’ property.
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defendants acted in contravention of plaintiffs’ Fifth and
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Fourteenth Amendment Due Process rights by issuing the CDO and
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the NoV without affording plaintiffs a hearing before or after
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issuing the documents.
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Second, with those
Plaintiffs further allege that
For remedies, plaintiffs ask for (1) declaratory judgments
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that the failure to provide hearings is unconstitutional, (2) an
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injunction against further enforcement proceedings based upon the
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CDO and NoV, (3) an injunction requiring defendants to notify
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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.
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Part 326 are unconstitutional.
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The Corps moves to dismiss the claims against it (Claims 1,
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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
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for violation of the Fifth Amendment.
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The State defendants move to dismiss the claims against them
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(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
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sovereign immunity.
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For the reasons that follow, the court will deny the Army
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Corps’ motion to dismiss, and grant the State’s.
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////
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////
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,
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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.
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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-
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27
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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
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20
21
22
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24
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26
27
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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
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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
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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)).
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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
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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.
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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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