Friends of Moon Creek v. Diamond Lake Improvement Association Inc et al

Filing 172

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. Denying 140 Motion for Summary Judgment; Denying 148 Motion for Summary Judgment. Signed by Senior Judge Justin L. Quackenbush. (MF, Courtroom Deputy)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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FRIENDS OF MOON CREEK, an
unincorporated association, Cheryl
and Robert Balentine, George A. and
Jane Doe Tyler; Douglas M. and Jane
Doe Anderson; Tom and Michele Bowyer
Joe F. and Jane Doe Struther; Mark and
Jane Doe Moeser; Gaylan and Jane Doe
Warren, and Michael and Jane Doe
Jeffrey,

)
) No. CV-13-0396-JLQ
)
) ORDER RE: MOTIONS FOR
) SUMMARY JUDGMENT
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Plaintiffs,
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vs.
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DIAMOND LAKE IMPROVEMENT,
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ASSOCIATION, INC., PHIL ANDERSON, )
Director Department of Fish & Wildlife,
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SHARON SORBY, Coordinator Pend
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Oreille County Noxious Weed Control
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Board,
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Defendants/Cross-/Counter-Claimants. )
)

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BEFORE THE COURT is Defendant Phil Anderson’s, Director of the Washington

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Department of Fish & Wildlife, Motion for Summary Judgment. (ECF No. 140).

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Plaintiffs have responded by filing a “Cross-Motion for Summary Judgment” (ECF No.

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148). The parties have filed Response and Reply briefs. The Motions were submitted

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for decision without oral argument. (See Order at ECF No. 163).

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I. Procedural History

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This action was commenced November 21, 2013. The procedural history has been

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set forth at length in prior filings and will not be repeated here. There has been extensive

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motion practice. The court denied Motions to Dismiss by each of the three Defendants.

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The court granted in part Plaintiffs' Motion for Preliminary Injunction as to Defendant

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ORDER - 1

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Diamond Lake Improvement Association ("DLIA"). The court has more recently denied

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Plaintiffs' Motion for Attorney Fees and Anti-SLAAP Motion. Discovery has been

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bifurcated into two phases. Discovery on liability will close on February 17, 2015, and

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the deadline for filing any further dispositive motion is March 2, 2015. (See Scheduling

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Order, ECF No. 100).

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II. Factual Background

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The court has set forth the general factual background in prior Orders. (See for

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example ECF No. 71, 80, 133, & 139). For the purpose of adjudicating these Motions,

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the court looks to the factual statements submitted by the parties and the supporting

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evidentiary record. According to Defendant Anderson’s Statement of Facts (ECF No.

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141), DLIA applied for a Hydraulic Project Approval permit (“HPA”) in 2012 for the

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removal of vegetation from Moon Creek. DLIA contends that Diamond Lake was

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flooding and it sought to correct the drainage problem by removing vegetation and

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altering beaver dams. The Department of Fish & Wildlife (“Department”) issued the

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HPA in June 2012. The permit was twice revised/reissued in 2013. Anderson contends

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the Department did not initiate the project, its role was regulatory, and that DLIA

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undertook the project for a private purpose. Anderson states the HPAs did not authorize

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trespass and DLIA was aware the permits did not authorize trespass. Anderson further

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contends that the Department’s enforcement officer, Severin Erickson, did respond to

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reports of trespass and at one point issued written warnings. (ECF No. 141, ¶ 14).

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Plaintiffs sets forth their own Statement of Facts in Opposition (ECF No. 149).

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Plaintiffs admit that in “the winter and spring of 2012, some Diamond Lake residents

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began to experience higher than normal lake water levels”, and that DLIA “began to

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explore projects which would alleviate the high water levels”. (ECF No. 149, ¶ 4).

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Plaintiffs contend that DLIA sought the assistance of the Department in authorizing the

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project, and the Department issued an HPA. Plaintiffs contend the HPA identifies the

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project location as land which Plaintiffs own or on which they reside. Plaintiffs contend

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they were not made aware or given notice of the application for an HPA prior to its

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issuance in June 2012. Plaintiffs contend the HPA issued in 2012, and twice revised in

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2013, “were issued to an entity, DLIA, that owns no property in the areas to be subjected

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to HPA project activity.” (Id. at ¶ 13). Plaintiffs contend that George Tyler only

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consented to DLIA members entering his property for purposes of inspection, but not to

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carry out projects. Plaintiffs argue that DLIA was responsible for the herbicide

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application, removing a beaver dam, killing beavers, and dredging Moon Creek “adjacent

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to Plaintiff’s properties.” (Id. at ¶ 18).

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Defendant Anderson filed a “Contrary Statement of Facts” (ECF No. 165) and

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objections to some of Plaintiffs’ asserted facts. Anderson disputes the characterization

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that DLIA sought assistance from the Department, as opposed to merely applying for an

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HPA. Anderson disputes that Cheryl Balentine learned of the HPA “one month after it

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was issued on June 6, 2012,” and states that an e-mail from her demonstrates she knew

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of it no later than June 25, 2012. (ECF No. 165, p. 2). Whether she learned of it 19 days

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after, or 30 days after its issuance is immaterial. Anderson objects to the assertion by

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some of the Plaintiffs that the entire area is “now a riparian dead zone” as not being

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supported by expert opinions or studies. Anderson further takes issue with whether

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beavers were trapped and killed, arguing that the HPA only authorized beaver tube

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installation. However, Defendant Anderson admits that the HPA did allow for removal

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of newly built

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characterizations by Plaintiffs that the project was a Department of Fish & Wildlife

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project, or a Department/DLIA project.

beaver dams. (ECF No. 165, p. 4).

Anderson also objects to

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III. Discussion

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A. Plaintiffs' Argument for Partial Summary Judgment

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Plaintiffs seek a summary adjudication in their favor finding that Defendant

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Anderson, of the Washington Department of Fish & Wildlife, “violated rights secured to

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Plaintiffs by the Due Process clause of the Fifth and Fourteenth Amendments” by

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entering upon and damaging Plaintiffs’ properties without notice and an opportunity to

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be heard. Plaintiffs further assert that such trespass constituted a taking of property

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without just compensation. (ECF No. 148, p. 2). Plaintiffs also ask the court to find, as

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a matter of law, that Defendant DLIA was acting under color of law. (Id. at 4).

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B. Defendant's Argument for Summary Judgment

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Defendant Anderson’s argument is essentially a contention that the alleged

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violations of Plaintiffs’ rights were committed, if at all, by DLIA, and Anderson is not

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liable. (ECF No. 140). Anderson contends that the Department “did not fund, promote,

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or support the project,” and that its role was “purely regulatory”. (ECF No. 140, p. 3).

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Anderson argues that the Washington state Hydraulic Code cannot itself be a basis for

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this action because RCW 77.04.012 expressly protects private property rights: “Nothing

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in this title shall be construed to infringe on the right of a private property owner to

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control the owner’s private property.” RCW 77.04.012. (ECF No. 140, p. 5). Anderson

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contends that “there is no legal obligation to give notice to affected property owners” of

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an HPA project. (Id. at p. 6).

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C. Summary Judgment Standard

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The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S. Dept.

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of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled to

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summary judgment when, viewing the evidence and the inferences arising therefrom in

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the light most favorable to the nonmoving party, there are no genuine issues of material

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fact in dispute. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

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(1986). While the moving party does not have to disprove matters on which the opponent

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will bear the burden of proof at trial, they nonetheless bear the burden of producing

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evidence that negates an essential element of the opposing party’s claim and the ultimate

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burden of persuading the court that no genuine issue of material fact exists. Nissan Fire

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& Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102 (9th Cir. 2000). When the

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nonmoving party has the burden of proof at trial, the moving party need only point out

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that there is an absence of evidence to support the nonmoving party’s case. Devereaux

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v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).

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Once the moving party has carried its burden, the opponent must do more than

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simply show there is some metaphysical doubt as to the material facts. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the opposing party

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must come forward with specific facts showing that there is a genuine issue for trial. Id.

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Although a summary judgment motion is to be granted with caution, it is not a

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disfavored remedy: “Summary judgment procedure is properly regarded not as a

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disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a

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whole, which are designed to secure the just, speedy and inexpensive determination of

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every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(citations and quotations

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omitted).

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D. State Action Requirement

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Section 1983 imposes liability on a “person” who acts “under color of any statute,

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ordinance, regulation, custom, or usage” of state law to deprive an individual of his/her

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Constitutional rights. 42 U.S.C. § 1983. Defendant Anderson, the Director of the

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Washington Department of Fish & Wildlife, is clearly a state actor. At issue, is whether

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Defendant Diamond Lake Improvement Association (“DLIA”), was acting under color

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of law in regard to the allegations in this lawsuit.

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“Action taken by a private individual may be ‘under color of state law’ where there

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is ‘significant’ state involvement in the action.” Lopez v. Dept. of Health Serv., 939 F.2d

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881, 883 (9th Cir. 1991). The extent of state involvement in the action is typically a

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question of fact. Id. The Fourteenth Amendment is directed at the States and “can be

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violated only by conduct that may be fairly characterized as state action.” Lugar v.

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Edmondson Oil, 457 U.S. 922 (1982). “Careful adherence to the state action requirement

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preserves an area of individual freedom by limiting the reach of federal law and federal

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judicial power.

It also avoids imposing on the State, its agencies or officials,

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responsibility for conduct for which they cannot fairly be blamed.” Id. at 936. “While

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the principal that private action is immune from the restrictions of the Fourteenth

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Amendment is well established and easily stated, the question whether particular conduct

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is ‘private’, on the one hand, or ‘state action’, on the other, frequently admits of no easy

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answer.” Jackson v. Metropolitan Edison, Co., 419 U.S. 345, 349-50 (1974).

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A private actor, acting in accord with a state statute or procedure does not

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necessarily equate to state action. See for example Hamilton v. Home Sales Inc.,

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__Fed.Appx.__ 2014 WL 7251892 (9th Cir. 2014)(“bank using a non-judicial foreclosure

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procedure provided by state law was not a government actor under § 1983); Robert S. v.

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Stetson School, Inc., 256 F.3d 159 (3rd Cir. 2001)(private school, under State regulation,

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that “worked in close concert with state and local governments” was not a state actor for

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liability purposes under § 1983"). Additionally, conclusory allegations that a private

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actor and state actor conspired are insufficient to state a claim under Section 1983.

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Simmons v. Sacramento County Court, 318 F.3d 1156, 1161 (9th Cir. 2003)(“Plaintiff’s

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conclusory allegations that the lawyer was conspiring with state officers to deprive him

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of due process are insufficient.”).

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Defendant Diamond Lake Improvement Association (“DLIA”) is a private

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homeowner’s association. DLIA’s actions are therefore not “state action” or “action under

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color of law” unless Plaintiffs can establish a theory of liability, such as conspiracy, or

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joint action. See Cortez v. County of Alameda, 580 Fed.Appx. 565 (9th Cir.

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2014)(“Plaintiffs also allege violations of § 1983 by individual members of the

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homeowners association but allege no facts to support a conspiracy or any other theory

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of state action on the part of the homeowner association defendants.”).

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Under a conspiracy theory of liability, a plaintiff must show “an agreement or

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meeting of the minds to violate constitutional rights.” Franklin v. Fox, 312 F.3d 423, 441

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(9th Cir. 2002). “To be liable, each participant in the conspiracy need not know the exact

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details of the plan, but each participant must at least share the common objective of the

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conspiracy.” Id. The joint action test asks “whether state officials and private parties have

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acted in concert in effecting a particular deprivation of constitutional rights.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). The requirement can be satisfied

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by proving a conspiracy “or by showing that the private party was a willful participant in

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joint action with the State or its agents. Ultimately, joint action exists when the state has

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so far insinuated itself into a position of interdependence with [the private entity] that it

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must be recognized as a joint participant in the challenged activity.” Id. (Internal citations

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omitted).

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(1.) Does the Evidence Establish Joint Action?

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Plaintiffs have not asserted a claim for conspiracy, and Plaintiffs do not assert that

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DLIA is a governmental entity. The Second Amended Complaint pleads that DLIA is a

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“non-profit corporation presently comprised of some 237 active members” who reside at

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or near Diamond Lake, and further pleads that DLIA “has no governmental association”.

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(ECF No. 38, ¶ 3.2.1). Therefore, to continue federal court jurisdiction Plaintiffs must

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present evidence that DLIA acted jointly with the State.

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Plaintiffs argue that Defendant Anderson is a state actor (ECF No. 148, p. 8), and

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the court agrees. On the question of “joint action” between the Department and DLIA,

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Plaintiffs point to the following: Plaintiffs contend that Jeff Lawlor, a Department

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biologist, was told by Patrick Chapman, the Department’s Regulatory Service

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Coordinator, that it was not necessary to obtain signatures/consents from all affected

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property owners, but rather only the applicant. Plaintiffs contend not requiring these

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signatures is evidence of “irregular assistance” to DLIA. (ECF No. 148, p. 10).

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Plaintiffs also contend that the HPAs were improperly issued because they allowed

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for work on property not owned by the applicant. Plaintiff argues that DLIA would not

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have engaged in the alleged trespass, if the HPA had not been issued. Plaintiffs argue that

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issuing the HPA “made DLIA a state actor.” (Id. at 12). Plaintiffs description of the

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alleged State involvement contains conclusory language. For example, Plaintiffs claim

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that the HPAs authorized DLIA “to conduct extensive, intrusive, and damaging forays

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onto Plaintiffs’ properties.” (ECF No. 148, p. 12). However, it is undisputed that the HPA

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states on its face: “This Hydraulic Project Approval does not authorize trespass.” (ECF

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No. 144-1). Plaintiffs argue that the Department “was shepherding its Permittee [DLIA]

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and attempting to insure the completion of the DLIA projects.” (ECF No. 148, p. 12).

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Allegations that one is “shepherding” or “attempting to insure” are mere conclusory

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allegations, devoid of specific facts.

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Plaintiffs also rely on e-mail communications between the Department and DLIA,

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which they characterize as e-mails in which DLIA “indicated it had obtained or would

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obtain the necessary permission from affected landowners.” (ECF No. 148, p. 14). A

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reasonable inference from such e-mails, contrary to Plaintiffs assertion of “joint action,”

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would be that DLIA mislead the Department as to whether it had obtained permission. In

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fact, Anderson has stated in a Cross-claim that DLIA “misrepresented statements” in its

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application. (ECF No. 73, ¶ 8.3). DLIA generally denies the Cross-claim allegations.

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(ECF No. 79). Further, an internal Department e-mail of June 28, 2013, states that, “Dan

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[Holman] is adamant that no trespassing is taking place by DLIA members.” (ECF No.

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143). There is also a May 25, 2012 e-mail from Jeff Taylor of DLIA which states that he

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obtained “written permission from George Tyler to access the pond through his property.”

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(Id.).

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Department biologist, Jeffrey Lawlor, avers that he processed the HPA application

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submitted by DLIA in 2012. (ECF No. 144). Lawlor told the applicant that the permit did

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not authorize trespass on private land. (Id. at ¶ 4). Lawlor avers that he was “repeatedly

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assured” by DLIA that DLIA “had or would have permission from any affected

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landowner.” (Id. at ¶ 5). In a June 5, 2012 e-mail from Lawlor to Jeff Taylor Lawlor

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informed: “It will be up to you to ensure you have the proper authorizations to access the

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work area. There is standard language in the HPA that clearly states that the HPA does not

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authorize trespass.” (ECF No. 144-5). Jeff Taylor responded to the e-mail on June 6,

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2012, and stated, in part, “I understand the trespass issue”. (ECF No. 144-6).

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In an e-mail of January 3, 2013, Dan Holman, of DLIA, sent an e-mail to Jeff

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Lawlor of the Department informing him that they “did get permission to clean out the

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ditch”, and that DLIA “just received permission from the land owner to the south, that

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actually owns majority of property under the beaver dam, to install beaver tube(s)”. (ECF

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No. 144-8).

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Similarly, the Joint Aquatic Resource Application (JARPA) for the Moon Creek

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project (ECF No. 144-4), submitted by Jeff Taylor of DLIA, was signed by George Tyler

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as the property owner allowing access. Mr. Tyler admits signing the document. (Dec. Of

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George Tyler, ECF No. 152). Plaintiffs contend that only requiring the signature of one

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landowner was insufficient, and is evidence the Department was assisting DLIA. The

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documents submitted show DLIA made numerous representations to the Department that

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it was obtaining the necessary permission of landowners.

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The evidence of record also includes Plaintiffs’ Interrogatory Response stating that

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Department employee, Jeff Lawlor, was seen in the company of two DLIA members

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trespassing on Joe Struthers’ property in January 2013. (ECF No. 142, p. 11). Plaintiffs

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also state they “assumed” DLIA was an agent or contractor of the Department. (Id. at p.

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12). A statement of assumption is not a fact sufficient to defeat summary judgment.

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Plaintiffs also state in Interrogatory Responses that on at least five occasions between July

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2012 and October 2013, they contacted Department employees to complain about trespass

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occurring on their properties. (ECF No. 142, p. 12).

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Severin Erickson, a Fish & Wildlife Department Police Officer, has filed a

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Declaration (ECF No. 146) that he investigated a complaint of trespass made by Plaintiff

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Cheryl Balentine in April 2012, and issued a citation to Terry Konkright and Robert Tully

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for Unlawful Hydraulic Project Activities and for Criminal Trespass, Second Degree.

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Those citations are of record at ECF No. 146, Ex. 1.

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Cheryl Balentine has filed a Declaration stating that on September 7, 2013,

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members of DLIA arrived on her property, without advance notice, with shovels, chain

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saws, and other tools and began dredging in the creek. She claims the DLIA members told

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her they had a Department permit. (ECF No. 150). She also claims that the Department

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has been unresponsive to her concerns about destruction of fish and wildlife in the stream.

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(Id.).

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There is no emphatic direct evidence of joint action. Rather, Plaintiffs rely on the

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manner in which the HPA was processed, allegedly without the proper permission from

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landowners, and the fact that the response by the Department to their trespassing

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complaints was unsatisfactory. There is the Interrogatory Response stating that in January

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2013, a Department employee was seen with two DLIA members trespassing on a

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Plaintiff’s property near the beaver dam. There are also the e-mail communications

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between DLIA and Department members, which could be construed as routine

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communications, but which Plaintiffs allege are evidence of joint action to commit an

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unconstitutional deprivation of property.

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(E.) DLIA Responsive Brief

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The pending Motions before the court are brought by Defendant Anderson and

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Plaintiffs. Defendant Sorby has filed no briefing, and as Plaintiffs’ “cross-Motion” was

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filed as a response to Anderson’s Motion, arguably those are the only parties with an

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interest in the pending Motions. However, Plaintiffs’ Motion and their proposed Order

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(ECF No. 148-1), seek a finding that DLIA was acting under color of law. Therefore

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DLIA reasonably filed a Response (ECF No. 168). The Response begins by addressing

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the state action question, and asserts there are “issues of fact that are clearly in dispute.”

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(ECF No. 168, p. 2). Genuine disputes of material fact preclude summary judgment. The

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Response then continues to raise a series of other issues such as: 1) the court does not have

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subject matter jurisdiction; 2) the claims are not ripe; 3) argues that there was an extant

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emergency affecting the public; 4) standing; and 5) estoppel. DLIA argues that there has

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been no taking under the Fifth Amendment and that Plaintiffs’ claims should be dismissed.

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(ECF No. 168, p. 10). However, DLIA has no motion pending before the court, and many

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of the issues briefed are not at issue in the instant Motions. Further, some of the issues

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DLIA attempts to raise were previously addressed in the Court’s “Order Denying Motions

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to Dismiss” (ECF No. 71). The court therefore does not address the issues raised in

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DLIA’s Response, other than as they pertain to the question of action under color of law.

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IV. Conclusion

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Defendant Anderson’s Motion for Summary Judgment rests largely on the argument

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that it did not act jointly with DLIA. Anderson contends this was DLIA’s private project

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and the Department merely issued a permit. Plaintiff seeks a determination that DLIA, a

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private homeowner’s association, did act jointly with the Department such as to expose

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it to liability under Section 1983. As discussed supra, questions of fact are presented.

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Plaintiffs’ briefing nearly concedes, despite requesting summary judgment, that this

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determination involves a question of fact. Plaintiffs state: “The sifting of facts and

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weighing of circumstances discloses further nonobvious involvement of the State.” (ECF

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No. 148, p. 12). Plaintiffs’ phrasing comes from case law: “only by sifting facts and

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weighing circumstances can the nonobvious involvement of the State in private conduct

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be attributed its true significance.” Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir.

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1989) citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). This

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does not mean that such issue may never be resolved at the summary judgment stage.

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There may be instances in which a summary judgment factual record is largely

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undisputed. However, the court does not resolve issues of disputed fact or weigh the

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evidence when considering a summary judgment motion. Both Plaintiffs and DLIA have

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filed briefs acknowledging that factual issues are presented. Neither Plaintiffs nor

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Defendant Anderson are entitled to summary judgment.

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IT IS HEREBY ORDERED:
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1. Defendant Anderson’s Motion for Summary Judgment (ECF No. 140) is
DENIED.

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2. Plaintiffs’ Cross-Motion for Summary Judgment (ECF No. 148) is DENIED.

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IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to

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counsel.
Dated this 5th day of February, 2015.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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