Smith v. Central Platte Natural Resources District et al

Filing 57

MEMORANDUM AND ORDER that the plaintiffs' motion for default judgment 51 is denied. The Court will stay this matter pending final resolution of the state proceeding. The parties are directed to update the Court every 90 days as to the status of the state proceedings. The Clerk of the Court is directed to enter an initial status report deadline of May 1, 2016. The defendants' motion to dismiss 45 is denied without prejudice. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY L. SMITH & KARLA G.
SMITH,
4:14-CV-3230
Plaintiffs,
vs.

MEMORANDUM AND ORDER

CENTRAL PLATTE NATURAL
RESOURCES DISTRICT, et al.,
Defendants.
This matter is before the Court on the plaintiffs' motion for default
judgment (filing 51) and the defendants' motion to dismiss the amended
complaint (filing 45). For the reasons discussed below, the Court will deny the
motion for default judgment, will stay this matter pursuant to Younger
abstention, and will deny the defendants' motion to dismiss without prejudice to
reasserting the arguments contained therein.
BACKGROUND
The plaintiffs Kelly L. Smith ("Kelly") and Karla G. Smith ("Karla") are
married, and reside in Nebraska. Filing 36 at 3. They own land in Custer
County, Nebraska. Filing 36 at 3. The defendant Central Platte Natural
Resources District (CPNRD) is a Nebraska political subdivision. Filing 36 at 3.
The other defendants in this matter are either board members or employees of
CPNRD. See filing 36 at 4–6. The plaintiffs have brought this suit against the
defendants under 42 U.S.C. § 1983, alleging violations of their constitutional
rights, as well as violations of their statutory rights under the Privacy Act, 5
U.S.C. § 552a, and the Food Conservation and Energy Act, 7 U.S.C. § 8791.
Filing 36 at 2.
The plaintiffs' allegations are as follows. On January 6, 2006, CPNRD
imposed a permanent stay on new irrigated land in the district in which the
plaintiffs' land is located. Filing 36 at 6. In essence, only land with a history of
irrigation can be certified as irrigated land, and land not certified as irrigated
cannot be developed for irrigation. Filing 36 at 8. The plaintiffs take issue with
several aspects of CPNRD's imposition and enforcement of the stay. As an initial
matter, they allege that CPNRD failed to comply with various statutory
requirements related to imposing irrigation stays. Filing 36 at 6–7.
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The plaintiffs also allege that CPNRD committed various improprieties in
enforcing the stay against the plaintiffs' land. First, they contend that CPNRD
incorrectly refused to certify certain portions of their land as irrigated. See filing
36 at 8. In 2006, the plaintiffs received a letter asking them provide CPNRD
with certain Farm Service Agency (FSA) records, so that CPNRD could
determine which portions of the plaintiffs' land should be certified as irrigated.
Filing 36 at 7. According to the plaintiffs, Kelly met with non-party Kevin Gill,
an employee of the United States Department of Agriculture and a
representative of CPNRD, to discuss the certification. Filing 36 at 7. Gill
informed Kelly that only those portions of land that the FSA documents
indicated had a history of irrigation could be certified as irrigated. Filing 36 at
7–8. All other portions of land would be subject to the stay on new irrigation. See
filing 36 at 7–8. Though Kelly protested both the requirement that he provide
his FSA records, as well as the application of the stay to certain portions of his
land, he signed a document agreeing to the certification. Filing 36 at 8.
According to the plaintiffs, Gill told Kelly that if he failed to do so, he would be
fined up to $5,000 per day. Filing 36 at 8. Karla, who was apparently not
present, did not sign the document. Filing 36 at 8.
In 2012, the plaintiffs developed a portion of their land that they contend
has always been irrigated, but which was apparently not certified as such. See
filing 36 at 9. Kelly reported the development to CPNRD, and was informed that
he would be required to complete a variance request. Filing 36 at 9. In May
2012, Kelly met with defendant Jesse Mintken, a CPNRD employee, to complete
that request. Filing 36 at 9. Mintken informed Kelly that, due to the stay, the
plaintiffs would be required to "trade" 1.5 acres of their certified irrigated land
for each acre of the newly developed land. Filing 36 at 9. The plaintiffs would
then be permitted to irrigate the newly developed land, but not the "traded"
certified land. See filing 36 at 9. Additionally, because of the soil classification of
the newly developed land, Mintken informed Kelly that he would have to seed it
with particular grasses. Filing 36 at 9.
Kelly disagreed with these conclusions. Filing 36 at 9. As a result, he
alleges, Mintken became physically and verbally threatening toward him. Filing
36 at 9. Mintken did not complete the variance on that date, but later sent the
plaintiffs a document relating to the transfer. Filing 36 at 9. The plaintiffs
signed the document and returned it to Mintken. Filing 36 at 10. However, the
plaintiffs allege that the document did not contain certain information relevant
to the transfer, including information about the soil classification and the trade
of certified irrigated land for newly developed land. Filing 36 at 10.
The plaintiffs allege that this transfer was designed with the purpose of
hindering their ability to use their certified irrigated land. Filing 36 at 12.
According to the plaintiffs, when CPNRD determined which portions of the
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plaintiffs' certified irrigated land would be "traded" for the newly developed
land, CPNRD selected acres that were unusually inconvenient for the plaintiffs.
See filing 36 at 12. The plaintiffs became aware of this circumstance when Kelly
Smith called CPNRD to protest the alleged unfair treatment of his neighbor. See
filing 36 at 11–12. During the call, defendant Luke Zakrzewski, a CPNRD
employee, informed Kelly that the plaintiffs had violated the transfer by
irrigating portions of the land they were not permitted to irrigate. Filing 36 at
12. Zakrzewski sent the plaintiffs a copy of the transfer, which contained full
information about which land was permitted to be irrigated, and a letter
instructing the plaintiffs how to comply with the transfer. Filing 36 at 12.
On July 5, 2013, Kelly filed a request with CPNRD to appeal its
certification determination. Filing 36 at 13. After a hearing, the appeal was
denied. Filing 36 at 13. In September 2013, Kelly visited the CPNRD office to
copy his file, and discovered that CPNRD was in possession of FSA reports
relating to the plaintiffs' land. Filing 36 at 14. Zakrzewski allegedly informed
Kelly that the USDA had sent the information. Filing 36 at 14. This was, the
plaintiffs allege, a violation of a district court ruling that the USDA was not
permitted to disclose the FSA records to CPNRD. Filing 36 at 8–9.
Later that year, on October 25, 2013, Kelly received notice in the mail of a
formal hearing before the CPNRD board to determine whether Kelly had
violated CPNRD's rules and regulations. Filing 36 at 14. Karla did not receive
notice. Filing 36 at 14. The hearing took place on November 21, 2013. Filing 36
at 15. Zakrzewski testified that satellite images taken in the fall of 2012
demonstrated that the plaintiffs watered land that was subject to the stay.
Filing 36 at 15. The CPNRD board voted to issue Kelly a cease-and-desist order,
but, according to plaintiffs, did not include Karla. Filing 36 at 15–16. In
addition, the defendants served Kelly, but not Karla, with the order. Filing 36 at
16.
Kelly was ordered to provide offsets for newly irrigated land by ceasing
irrigation on other portions of land. Filing 36 at 16. He was to change the
classification for that land from irrigated to non-irrigated with the FSA. Filing
36 at 16. And he was ordered to provide documentation of the classification
change to CPNRD as proof of compliance. Filing 36 at 16. In addition, in March
2014, the plaintiffs discovered that the defendants sent documents to the Custer
County Assessor's office with instructions to reclassify certain portions of the
plaintiffs' land from irrigated to non-irrigated usage. Filing 36 at 17.
Then, on December 5, 2014, CPNRD filed a civil complaint in Custer
County district court against both plaintiffs for alleged violations of the ceaseand-desist order. Filing 36 at 18. That lawsuit is apparently pending now. The
plaintiffs further allege that the defendants' actions were motivated by dislike of

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Kelly, and that CPNRD has not enforced its stay or other rules against other
individuals in CPNRD's jurisdiction. Filing 36 at 19–20.
The plaintiffs allege various injuries as a result of the defendants' alleged
actions, including: violations of their constitutional and statutory right to
privacy, right to use water, right to engage in their chosen profession, right of
procedural due process, various statutory rights, and the right to have their land
certified as irrigated. Filing 36 at 21. The plaintiffs seek relief in the form of: an
injunction staying the cease-and-desist order, fair market value for the right to
irrigate 270 acres of land, a cease-and-desist order prohibiting the defendants
from "further harassment and interference," damages for the plaintiffs'
humiliation and emotional harm, costs of maintaining the present action,
punitive damages, an injunction staying the pending civil case in Custer County,
and a judgment declaring CPNRD's rules and regulations, as well as the stay on
new irrigated land, invalid. Filing 36 at 21–22.
STANDARD OF REVIEW
A complaint must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This
standard does not require detailed factual allegations, but it demands more than
an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint need not contain detailed factual allegations, but must provide more
than labels and conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). For the purposes of a motion to dismiss a court must take all of the
factual allegations in the complaint as true, but is not bound to accept as true a
legal conclusion couched as a factual allegation. Id. And to survive a motion to
dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its
face. Iqbal, 556 U.S. at 678.
DISCUSSION
(a) Motion for default judgment
The plaintiffs have moved for default judgment. Filing 51. After the
plaintiffs filed their original complaint, the defendants moved to dismiss (filing
32). Before that motion was resolved, the plaintiffs filed an amended complaint
(filing 36). In response, the defendants filed a motion to strike the amended
complaint under Fed. R. Civ. P. 12(f) (filing 41). That motion was denied on May
12, 2015 (filing 44). Two days later, the defendants filed a motion to dismiss the
amended complaint (filing 45). The defendants specified that they filed that
motion "to avoid confusion" given that the motion to dismiss the original

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complaint was still pending. Filing 45. This Court denied as moot the motion to
dismiss the original complaint. Filing 50.
The plaintiffs contend that they are entitled to default judgment because
the defendants did not comply with Fed. R. Civ. P. 12(a)(4)(A), which requires
defendants to file a responsive pleading within 14 days of the denial of a Rule 12
motion. Filing 52 at 4. It is true that the defendants did not file an answer after
their motion to strike was denied. However, the defendants did file a new motion
to dismiss the amended complaint within 14 days of the denial of the motion to
strike. See filing 45.
The Federal Rules of Civil Procedure do not explain precisely how to
dispose of a pending Rule 12 motion when an amended complaint is filed. Under
these circumstances, it was not unreasonable for the defendants to conclude that
they should reassert their motion to dismiss in response to the amended
complaint. It is appropriate for the Court to consider the second motion as
relating back to the first, since the obvious intent of filing the second motion was
simply to clarify the matters submitted to the Court. Thus, the defendants have
not failed to meet their obligation under Fed. R. Civ. P. 12(a)(4)(A). Accordingly,
default judgment is inappropriate here.
The difficulty presented is that the defendants filed the second motion to
dismiss after they filed a Rule 12(f) motion to strike. To the extent that the
second motion to dismiss raises new arguments not raised in the first motion,
those are issues that should have been presented either at the same time as the
motion to strike, or the same time as the first motion to dismiss, pursuant to
Fed. R. Civ. P. 12(h)(1)(A). Accordingly, the Court will consider the second
motion to dismiss only to the extent it is a reassertion of the arguments made in
the first motion.
(b) Younger abstention
Before reaching the merits of the defendants' motion to dismiss, the Court
first considers whether it is obligated under Younger v. Harris, 401 U.S. 37
(1971), to refrain from exercising its jurisdiction over this matter.1
Under Younger, federal courts should decline jurisdiction in cases where
equitable relief would interfere with pending state proceedings. Id. at 91. The
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The defendants raised Younger abstention in their motion to dismiss the amended complaint,
but not in their motion to dismiss the original complaint. Filing 46 at 26. However, because
the amended complaint plainly implicates Younger, and because the Court may raise
abstention sua sponte, it will consider the issue nonetheless. See Robinson v. City of Omaha,
866 F.2d 1042, 1043 (8th Cir. 1989) (holding that abstention doctrines in general may be raised
sua sponte); see also Geier v. Missouri Ethics Comm'n, 715 F.3d 674, 676 (8th Cir. 2013)
(affirming dismissal where the district court abstained sua sponte under the Younger doctrine).

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Younger doctrine was originally applied to state criminal prosecutions, but it
was later extended to certain civil proceedings as well. Aaron v. Target Corp.,
357 F.3d 768, 774 (8th Cir. 2004). The Supreme Court has identified three
factors that should lead to Younger abstention: (1) the existence of an ongoing
state judicial proceeding which would be disrupted by federal action, (2) which
implicates important state interests, and (3) which provides an adequate
opportunity to raise constitutional challenges. Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982).
The first Middlesex factor is whether there is an ongoing state judicial
proceeding that would be disrupted by federal action. Id. The state proceeding is
clearly "ongoing." See Tony Alamo Christian Ministries v. Selig, 664 F.3d 1245,
1250 (8th Cir. 2012) (directing that a federal court must abstain "until the state
defendant (and federal plaintiff) exhausts his appellate remedies"). Further, in
determining whether a state proceeding would be disrupted by federal action,
Younger has no "fixed requirement . . . that a state judicial proceeding must
have been initiated before the federal case was filed." Aaron, 357 F.3d at 775.
Instead, courts are to look to "what was actually taking place in both settings to
decide whether to abstain." Id. The key factor is "[w]hether proceedings of
substance have taken place in either court." Id. If, when the state court action is
filed, federal proceedings are still "in an embryonic stage," with "no contested
matter ha[ving] been decided," abstention is warranted. Doran v. Salem Inn,
Inc., 422 U.S. 922, 929 (1975).
Here, the action in Custer County state district court was filed on
December 5, 2014 against Kelly and Karla Smith. Filing 45-1 at 27. Kelly filed
the present action in federal court on November 21, 2014. Filing 1. Karla joined
as a plaintiff on February 26, 2015. Filing 36. Between November 21, 2014 and
December 5, 2014, no contested matter was decided in the present action. It was
not until February 5, 2015 that the defendant even filed a motion to dismiss. See
filing 32. Thus, the first factor of the Middlesex inquiry is clearly satisfied.
The second factor is whether the action implicates important state
interests. Middlesex, 457 U.S. at 432. Generally, important state interests are
implicated when the matter "is intimately involved with sovereign prerogative."
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28 (1959).
Examples include eminent domain proceedings, id., proceedings to enforce
nuisance statutes, Huffman v. Pursue, Ltd., 420 U.S. 592, 607 (1975), and
contempt proceedings, Juidice v. Vail, 430 U.S. 327, 335 (1977). Here, this
matter primarily raises CPNRD's ability both to regulate land and water use,
and to enforce its regulations. Those interests are intimately related to the
state's sovereign powers, and involve important state-law questions about the
apportionment of authority between the state and its political divisions. Thus,
the Court finds that this matter implicates an important state interest.
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The third Middlesex factor is whether the ongoing state proceeding
provides an adequate opportunity to raise constitutional challenges. In
Nebraska defendants are permitted to raise constitutional defenses in actions to
enforce cease-and-desist orders. For example, in Bamford v. Upper Republican
Natural Resources District, appellants raised at least two constitution
challenges: that the statutory provisions authorizing a natural resources district
to issue a cease-and-desist order were unconstitutional, and that the cease-anddesist order represented a regulatory taking. 512 N.W.2d 642, 648 (Neb. 1994).
Thus, the Court finds that the third Middlesex factor is satisfied, and Younger
abstention is warranted.
But having decided that Younger abstention applies, the Court must now
determine whether a stay or dismissal is appropriate. In cases where only
injunctive relief is sought, Younger "contemplates the outright dismissal of the
federal suit, and the presentation of all claims, both state and federal, to the
state courts." Gibson v. Berryhill, 411 U.S. 564, 577 (1973) (a § 1983 case
involving only injunctive relief, and not damages). But where the federal action
also seeks damages, a stay is generally appropriate. Night Clubs, Inc. v. City of
Fort Smith, 163 F.3d 475, 481 (8th Cir. 1998). The Eighth Circuit has identified
a narrow exception to this general rule, which allows a district court to dismiss a
§ 1983 claim for damages where awarding damages would first require either
declaring that a state statute was unconstitutional, or overturning a state court
judgment on a matter of state policy. Id. (citing Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 719 (1996)). But if "a possibility of return to federal court remains,
a stay rather than a dismissal is the preferred mode of abstention." Int'l Ass'n of
Entrepreneurs v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995). Here, at least some
of the plaintiffs' claims do not require declaring a state statute unconstitutional
or overturning a state court judgment on a matter of state policy. Thus, the
appropriate procedure is to stay this case pending final resolution of the state
litigation.
Because the final resolution of the state proceeding is likely to materially
alter the issues in this case, the defendants' motion to dismiss (filing 45) will
also be denied, without prejudice to reasserting the arguments contained therein
at an appropriate juncture, if and when the stay of this case is lifted.
IT IS ORDERED:
1.

The plaintiffs' motion for default judgment (filing 51) is
denied.

2.

The Court will stay this matter pending final resolution of the
state proceeding.
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3.

The parties are directed to update the Court every 90 days as
to the status of the state proceedings.

4.

The Clerk of the Court is directed to enter an initial status
report deadline of May 1, 2016.

5.

The defendants' motion to dismiss (filing 45) is denied without
prejudice.

Dated this 1st day of February, 2016.
BY THE COURT:
John M. Gerrard
United States District Judge

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