Holdner v. Coba et al

Filing 35

OPINION and ORDER - Defendants' motion 12 to dismiss is GRANTED and the complaint is DISMISSED with prejudice. IT IS SO ORDERED. DATED this 1st day of June, 2016, by United States Magistrate Judge John V. Acosta. (copy of this opinion and order mailed to plaintiff this date) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

WILLIAM F. HOLDNER, D.B.A.
HOLDNER FARMS

Plaintiff,

Civ. No. 3:15-cv-2039-AC

OPINION AND ORDER

v.
KATY COBA, DIRECTOR OF OREGON
DEPT. OF AGRICULTURE, IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
DICK PEDERSON, DIRECTOR OF THE
OREGON DEPT. OF ENVIRONMENTAL
QUALITY, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
Defendants.

ACOSTA, Magistrate Judge:
Plaintiff William Holdner ("plaintiff') brings this civil rights and declaratory judgment
lawsuit arising from the Oregon Department of Agriculture's regulation of plaintiffs cattle ranch
and plaintiffs subsequent criminal prosecution for violation of state water pollution statues.
Defendants Katy Coba and Dick Pederson ("defendants") move to dismiss plaintiffs lawsuit for
lack of standing and for failure to state a claim (ECF No. 12). For the reasons discussed below,

Page 1 - OPINION AND ORDER

defendants' motion 1s GRANTED and the complaint (ECF no. 1) 1s DISMISSED with
prejudice. 1
Background

Since 2007, State of Oregon authorities ("state authorities") have attempted to prevent
plaintiff from discharging animal wastes from his cattle ranching operation into state waters, and
to bring his beef facility operation under a state Confined Animal Feeding Operation ("CAFO")
permit, as required by state law. These efforts culminated in civil administrate proceedings, a
criminal prosecution, and two civil suits plaintiff filed in this court in an attempt to enjoin the
State authorities from bringing enforcement actions against him. In every forum, the issues were
adjudicated in favor of the state authorities.
I.

Civil Suits
On August 20, 2009, plaintiff filed a civil action in the U.S. District Court, District of

Oregon against the Oregon Department of Agriculture ("ODA"), entitled Holdner v. Oregon
Department of Agriculture, Case No. 3:09-979-AC, challenging ODA's regulatory authority and

the evidence supporting its administrative enforcement actions against him. 2009 WL 5149264
(D. Or. Dec. 23, 2009). The court granted summary judgment in favor of the ODA, stating that
plaintiff "failed to provide any evidence, or even to allege specific factual allegations, in support
of his claim," and that he relied "exclusively on the allegation in his complaint and unsupported
conclusory statements." Id. at *14.
Plaintiff filed a second civil action in this district on June 28, 2012, again alleging that the
state authorities lacked authority to regulate water quality and asserting constitutional claims.
Holdner v. John Kroger, et al, Case No. 3:12-cv-1159-PK. 2012 WL 6131637 (D. Or. Nov. 6,

1 Defendants requested oral argument on their motion. The court finds this motion
appropriate for disposition without oral argument, pursuant to Local Rule 7-l(d)(l).
Page 2 - OPINION AND ORDER

2012).Plaintiff alleged that the state's water quality program was ultra vires and that the State
generally, and ODA in particular, lacked authority to administer the NPDES program or to
enforce any state law governing water quality. Id. at *14-*15. He alleged violations of his
constitutional rights, including substantive due process. The court dismissed this action, stating
that plaintiff's claims were barred by claim preclusion and the Younger abstention doctrine, and
noting that plaintiff could have raised his ultra vires claim in any of his prior proceedings. Id. at
*12-*14. The second civil action was thus dismissed on December 10, 2012. The Ninth Circuit
affirmed the district court's decision on April 15, 2015, and the Supreme Court denied certiorari
on October 5, 2015.
II.

State Criminal Proceedings
On May 19, 2010, plaintiff was indicted on three felony and twenty-five misdemeanor

counts of water pollution under state law. Plaintiff filed a motion to dismiss, arguing that the
state lacks authority to regulate his livestock operations, and that the criminal enforcement action
violated his constitutional rights. He also alleged that his land patent barred any criminal
enforcement action, and that ODA did not have authority to administer the NPDES program.
Plaintiff's motion was denied on July 19, 2011. Plaintiffs motions for reconsideration, as well
as his "Motion to Renew Dismissal of Animal Pollution Charges," also were denied.
On February 24, 2012, plaintiff was found guilty on 27 counts of water pollution.
Judgment was entered May 21, 2012. Plaintiffs motion for arrested judgment and new trial
motion were denied on June 22, 2012, and his conviction was upheld on appeal without opinion
by the Oregon Court of Appeals on February 5, 2014. State of Oregon v. Holdner, CA No.
Al51760 (Feb. 5, 2014). The Oregon Supreme Court denied review on June 12, 2014. State of
Oregon v. William Frederick Holdner, 355 Or. 668, 330 P.3d 27 (Table).

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On October 3, 2014, plaintiff was convicted of 95 counts of animal neglect. State of

Oregon v. William F. Holdner, Columbia County Circuit Court Case No. 12-6240. Plaintiffs
probationary conditions bar him from possessing livestock for a period of five years, until
December 8, 2019. Plaintiffs appeal of this conviction is pending as of the date of this Opinion.
III.

Plaintiffs Complaint
Plaintiff filed this lawsuit on October 29, 2015, alleging violations under 42 U.S.C. §

1983 and requesting a declaratory judgment. Plaintiff's complaint disputes the state's authority
to regulate livestock operations on his land. Plaintiffs complaint appears to allege three claims:
(1) a § 1983 claim for deprivation of constitutional due process rights; (2) a claim that the
Department of Environmental Quality ("DEQ") and ODA acted outside their enforcement
authority; and (3) a claim that plaintiffs land patent bars the state from regulating water quality
on plaintiffs land.
Defendants now move to dismiss plaintiff's complaint under Federal Rule of Civil
Procedure 12(b)(l) and 12(b)(6). They argue that plaintiff lacks standing to bring this action,
that claim preclusion and issue preclusion bar his lawsuit, that Eleventh Amendment immunity
bars his § 1983 claim, that defendants are entitled to qualified immunity, that he may not bring a
private action under the Clean Water Act ("CWA"), and that he fails to state a claim on which
relief can be granted.

Legal Standards
I.

The Court's Review of Pro Se Filings
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). When
dismissing the complaint of a pro se litigant, the litigant "must be given leave to amend his or her

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complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured
by amendment."' Karim-Panahi v. Los Angeles Police Dep 't, 839 F.2d 621, 623 (9th Cir. 1988)
(quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by
statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en bane)).
II.

Motion to Dismiss
A motion to dismiss under Rule 12(b)(l) tests the subject matter jurisdiction of the court.

See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). Under
Article III of the Constitution, federal judicial power extends only to "Cases" and
"Controversies." U.S. CONST., art. III, § 2, cl. 1. Article III standing thus is a threshold
requirement for federal court jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60
(1992). At a constitutional minimum, standing requires the party invoking federal jurisdiction to
establish three elements: (1) injury in the form of an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) a causal connection between the injury and the defendant's conduct; and (3) the
likelihood, not mere speculation, that a favorable decision will redress the injury. Id. at 560-61.

Discussion
I.

Standing
Because it is a threshold requirement for establishing federal court jurisdiction, the court

first addresses defendants' standing argument. Lujan, 504 U.S. at 559-60. The three elements of
standing are (1) injury-in-fact; (2) causation; and (3) redressability. Id. at 560. It is the burden
of the party invoking federal jurisdiction to establish that he has standing. Id. at 561. To provide
standing, an alleged injury must be a "concrete and particularized" invasion of a "legally

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protected interest." Id. at 560. The injury must be "actual or imminent, not 'conjectural' or
'hypothetical."' Id.
Defendants argue that plaintiff lacks standing to bring these claims because he has not
alleged an injury-in-fact sufficient to meet the standard set forth by in Lujan. Here, because of
probationary conditions imposed after his criminal convictions, plaintiff is prohibited from
possessing livestock. ECF No. 12, Ex. 23, pp. 2; see also State of Oregon v. William F. Holdner,
Columbia County Circuit Court Case No. 12-6240. Indeed, plaintiff does not allege that he
possesses a cattle operation. See ECF No. 1. Because plaintiff cannot legally possess livestock
until December 8, 2019, he has no legally protected interest in livestock as required for standing
to bring his claims, and can show no "actual or imminent" injury sufficient to meet the standing
requirement in federal court.
Plaintiffs pending appeal of his state court criminal conviction for 95 counts of animal
neglect2 does not affect the court's standing analysis because plaintiff has failed to show that a
reversal on all 95 counts is sufficiently plausible to meet the "actual or imminent" standard set
forth in Lujan. 504 U.S. at 560. Further, while plaintiff contends that he plans to lease his
property to his son to raise cattle, plaintiff does not allege sufficient facts that would establish
standing to bring claims on behalf of his son. In sum, plaintiff has not met his burden to show
standing, and therefore fails to establish federal court jurisdiction.
II.

Claim Preclusion
Equally dispositive of plaintiffs claims is that claim preclusion bars his lawsuit, which is

substantially similar to the two lawsuits plaintiff previously filed in this court and involves

2

To the extent that plaintiff asks the court to review his state court criminal conviction,
his request is denied because the court lacks jurisdiction to review a state court criminal
conviction unless by habeas petition.
Page 6 - OPINION AND ORDER

claims which were raised or should have been raised in prior administrative and criminal
proceedings. In Oregon, "[t]he doctrine of claim preclusion ... generally prohibits a party from
relitigating the same claim or splitting a claim into multiple actions against the same opponent."
Bloomfield v. Weakland, 339 Or. 504, 510 (2005) (en bane). The claim-splitting rule "forecloses

a party that has litigated a claim against another from further litigation on that same claim on any
ground or theory of relief that the party could have litigated in the first instance." Id at 511.
Moreover, the Ninth Circuit's claim preclusion doctrine bars litigation of any claims that were
raised or could have been raised in the prior action, and applies when there is: "(!) an identity of
claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Owens v.
Kaiser Found Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

Plaintiff misquotes Judge Papak's 2012 Recommendation as stating that "claim
preclusion does not bar Plaintiffs claim."3 On the contrary, Judge Papak clearly stated that
plaintiffs claims would be ban·ed by claim preclusion. In Holdner v. Kroger, et al, Case No.
3:12-cv-01159-PK, 2012 WL 6131637 (D. Or. Nov. 6, 2012), plaintiffs second civil action filed
in this court, Judge Papak stated that claim preclusion barred plaintiffs claims that the ODA
exceeded its regulatory authority and lacked authority to enforce the CWA because he could
have raised these claims "in any number of earlier proceedings."4 Id at *7. The claims raised in
this case are substantially similar to the claims plaintiff alleged in Holdner v. Kroger.

As

plaintiffs prior proceedings were litigated to final judgment on the merits and the defendants in

3

Plaintiff elsewhere acknowledges that the claims alleged in his complaint have been
"raised" in previous court proceedings. Comp!. if 4.
4

As noted, Judge Simon adopted Judge Papak's recommendation and dismissed
plaintiffs case on December 10, 2012; the Ninth Circuit affirmed the decision, and the Supreme
Court denied certiorari on October 5, 2015.
Page 7 - OPINION AND ORDER

this action are in privity with the State of Oregon, a party to plaintiffs criminal proceeding,
plaintiffs claims are barred by claim preclusion. Owens, 244 F.3d at 713.
Plaintiff also contends his claims are not precluded, citing Doug Decker v. Northwest
Environmental Defense Centers, 133 S.Ct. 1326 (2013). Plaintiff misreads Decker. In that case,

respondents invoked federal jurisdiction under 33 U.S.C. 1356(a), which authorizes private
enforcement of the provisions of the CWA and its implementing regulations.

Id. at 1334.

Petitioners argued that the NEDC's suit was baned by Section 1369(b), which provides for
'judicial review in the United States courts of appeals of various particular actions by the [EPA]
Administrator, including establishment of effluent standards and issuance of permits for
discharge of pollutants." Id.
The Court agreed with respondents and held that Section 13 69(b) did not bar
respondents' suit, which originated as a citizen suit brought under Section 1365. That Section,
the Court held, allows citizen suits against alleged violators of the CWA that seek to enforce an
obligation imposed by the CWA or its regulations. Decker, 113 S.Ct. at 1334. Here, plaintiffs
complaint is not brought to enforce any provision of the CWA, and defendants do not allege his
complaint is barred under Section 1369(b). 5
Because the claims raised in plaintiff's complaint are substantially similar to those
contained in plaintiffs prior civil suits, the court finds that plaintiffs claims are barred by claim
preclusion.

5

Plaintiff also argues that the Decker holding entails that "claim preclusion, ...
[E]leventh [A]mendment and qualified immunity issues do not bar [his] claims. The court also
rejects this contention as it appears to be based on a misreading of Decker.
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III.

Issue Preclusion
Issue preclusion also bars plaintiffs claims because the issues raised in plaintiffs

complaint were fully litigated to a final judgment on the merits in plaintiffs first federal court
lawsuit, the state criminal proceedings, and the prior state administrative proceedings. "If one
tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in
another proceeding if five requirements are met." Nelson v. Emerald People's Util. District, 318
Or. 99 104 (1993). First, the issue in the proceedings must be "identical." Id. at 104. Here,
plaintiff may not relitigate whether the State of Oregon has the authority to regulate plaintiffs
operations; plaintiff raised this issue as a defense in prior administrative and criminal
proceedings. Plaintiff also raised the issue of his land patent and his ultra vires claim that the
ODA lacks authority to enforce the CWA in prior proceedings. The first requirement is therefore
met.
Second, the issue must have been "actually litigated" and "essential to a final decision on
the merits in the prior proceeding." Nelson, 318 Or. at 104. This requirement is met because the
state criminal and administrative proceedings resulted in judgments for the state. Thus, there has
been a previous finding that the state and its agents did not act outside their federal and statutory
authority or in violation of an alleged exemption created by plaintiffs land patent.
Third, the party to be precluded must have "had a full and fair opportunity to be heard"
on the issue. Nelson, 318 Or. at I 04. Plaintiff had a full and fair opportunity to be heard on
these issues in his four prior proceedings. In the prior proceedings, plaintiff presented extensive
evidence and filed motions in an attempt to prove that the state and its agents acted outside their
federal statutory authority. Plaintiff thus had ample opportunity to be heard on the issues raised
in his complaint, and this requirement is met.

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Fourth, the party to be precluded must have been a party to or "in privity with" a party to
the prior proceeding. Id. Plaintiff is the party against whom preclusion is sought, and he was a
party in each of the prior civil lawsuits, and the administrative proceeding, and the defendant in
the criminal proceeding. This requirement is also met.
Finally, the prior proceeding must have been "the type of proceeding to which [the] court
will give preclusive effect." Id. The rules of preclusion apply "where both actions are criminal,
where the prior action is criminal and the later action is civil, and where the prior adjudication is
administrative in nature." Shuler v. Distribution Trucking Co., 164 Or. App. 615, 624 (1999).
The prior proceedings meet these requirements. Because this requirement is also met, plaintiff is
prohibited by issue preclusion from relitigating the issues raised in this lawsuit.
IV.

Eleventh Amendment Immunity and Qualified Immunity
Plaintiffs claims are also barred by Eleventh Amendment immunity and qualified

immunity. The Eleventh Amendment bars a citizen from bringing suit in federal court against
the citizen's own state regardless of the relief sought.

Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). A state agency is immune from suit under the Eleventh
Amendment because the State is the real party in interest, Durning v. Citibank, NA., 950 F.2d
1419, 1423 (9th Cir. 1991); similarly, state officials acting in their official capacity are immune
from suit. Will v. Michigan Dep 't of State Police, 491 U.S. 58, 71 (1989). Because plaintiff has
sued both agency directors in their official capacities, and the state has not waived immunity,
defendants are shielded by the state's Eleventh Amendment immunity.
To the extent that plaintiffs complaint can be interpreted as asserting a claim under 42
U.S.C. § 1983, defendants are entitled to qualified immunity from such a claim. To avoid
qualified immunity, plaintiffs complaint must (1) state a claim for civil rights violations; and (2)

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establish that the constitutional right violated was so clearly established that it would have been
clear to a reasonable person that the conduct he complains of was unlawful. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009) (plaintiff must plead a violation of his constitutional rights); Sweaney

v. Ada County, Idaho, 119 F.3d 1385 (9th Cir. 1997) (plaintiff initially bears the burden of
showing the violation of a clearly established federal right).
As discussed in Sections V and VI below, the court has examined plaintiffs entire
complaint and finds that he has failed to state a claim for relief under§ 1983 for a violation of his
constitutional rights, or under any other provision of federal law. Therefore, qualified immunity
also bars his suit.
V.

CWAClaims
Plaintiffs complaint appears to allege (1) that the state lakes the authority to enforce the

CWA, and (2) a claim or "citizen suit" brought under the CWA. Plaintiffs allegations fail to
state a claim for relief. First, as set forth in the Federal Register, the EPA has affirmatively
determined that Oregon meets the criteria under the CWA to administer the NPDES permit
program in lieu of the EPA. "The contents of the Federal Register shall be judicially noticed."
44 U.S.C. § 1507. Thus, while plaintiff alleges that the state lacks authority to implement the
CWA pe1mit program, the court need not accept as true allegations that contradict matters
properly subject to judicial notice in a motion to dismiss. Sprewell v. Golden State Warriors,
266 F.3d 979, 988, opinion amended on denial ofrehearing, 275 F.3d 1187 (9th Cir. 2001).
Second, the private action provision in the CWA does not contemplate a lawsuit against a
state regarding either its authority to enforce its own environmental protection laws or to manage
its NPDES permitting program. 33 U.S.C. § 1365. Plaintiffs claim that this action is a citizen
suit under the CWA therefore lacks merit.

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Furthermore, plaintiff does not seek to enforce

effluent standards; rather, he seeks to nullify Oregon's ability to enforce water quality standard.
Insofar as plaintiff challenges the state's decision to issue, or refuse to issue, a water quality
permit as not compliant with the CWA, such challenge fails to state a claim because the CWA
does not provide a federal cause of action to challenge a state agency's issuance of a NPDES
permit. 6 District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C. Cir. 1980). For these
reasons, plaintiff has not stated a claim for relief under the CWA.
VI.

Failure to Allege Facts
The court also finds that plaintiff fails to meet the standard for adequate pleadings set

forth in Fed. R. Civ. P. 12(b)(6). As articulated in Bell Atlantic Corp. v. Twombly, recitation of
mere labels, conclusions, and elements is insufficient to state a claim for relief. 550 U.S. 544,
555 (2007). Here, plaintiffs complaint fails to allege any actions taken by either of the named
defendants. Plaintiff does not allege that he applied for a water quality permit, that a pe1mit was
denied, or that he currently holds a permit. He does not allege that he owns any cattle or
livestock, or that he currently operates a CAFO. He alleges no financial loss imposed by the
State's permitting process, nor any injury caused by any state actor or resulting from a state
decision. He does not allege or describe any injury caused by the relationship between the EPA,
the DEQ, or the ODA. In sum, the complaint before the court is a series of legal conclusions
lacking any allegations which connect either defendant to any specific violation of law.
Accordingly, plaintiff fails to meet the requirements of Fed. R. Civ. P. 12(b)(6).

6

Nor does plaintiff have an implied cause of action under the CWA; the Supreme Court
has held that the CWA's "unusually elaborate enforcement provisions" contain no implied cause
of action for private citizens. Middlesex County Sewerage Authority v. National Sea Clammers
Ass 'n, 453 U.S. 1, 13-15, 17-18 (1981). Further, the remedies provided by Congress in the CWA
foreclose a private remedy under§ 1983. Id. at 19-21.
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VII.

Leave to Amend

If the court dismisses a complaint, it must decide whether to grant leave to amend. See
28 U.S.C. § 1653. The Ninth Circuit has repeatedly held that dismissal without leave to amend
is improper, even if no request to amend the pleading was made, unless it is clear that the
defective pleading cannot possibly be cured by the allegation of additional facts.

Snell v.

Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250
F.3d 668, 692 (9th Cir. 2001)); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). Here,
plaintiffs complaint is substantially similar to the two civil complaints he previously filed in this
court, and it contains claims that were or should have been raised in prior administrative and
criminal proceedings in state court. See Holdner v. ODA, U.S. District Court Case No. 3:09-979AC; Holdner v. John Kroger, et al, U.S. Dist. Court Case No. 3:12-cv-1159-PK. Further, his
claims are barred by Eleventh Amendment immunity and qualified immunity, fail to comply
with Fed. R. Civ. P. 12(b)(6), and fail to state a claim under the CWA. It is clear that plaintiffs'
claims cannot be cured by the allegation of additional facts. The comt thus finds plaintiff should
not be granted leave to amend and the complaint is dismissed with prejudice.

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Conclusion

After careful consideration of plaintiffs complaint in light of the Rule 12(b) standard,
defendants' motions to dismiss (#12) is GRANTED and the complaint (#1) DISMISSED with
prejudice.
IT IS SO ORDERED.

I

f

DATED this_/_ day of June, 2016.

' \ JOHN ACOSTA
Unidd States Magistrate Judge

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