United States of America v. Hoyte et al

Filing 80

ORDER by Judge Benjamin H Settle granting 65 Motion to Dismiss.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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UNITED STATES OF AMERICA,
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Plaintiff,

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CASE NO. C10-2044BHS

v.
DEREK HOYTE and COLUMBIA
CREST PARTNERS, LLC,

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ORDER GRANTING
PLAINTIFF’S MOTION TO
DISMISS COUNTERCLAIMS

Defendants.

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This matter comes before the Court on the United States of America’s

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(“Government”) motion to dismiss counterclaims (Dkt. 65). The Court has reviewed the

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briefs filed in support of and in opposition to the motion and the remainder of the file and

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hereby grants the motion for the reasons stated herein.

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I. PROCEDURAL HISTORY
On December 20, 2010, the Government filed a complaint against Defendants
Derek Hoyte (“Hoyte”) and Columbia Crest Partners, LLC, (“Columbia Crest”)
(collectively “Defendants”). Dkt. 1. The Government contends that (1) Defendants are
violating the conditions of certain easements that have been placed on Defendants’

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property; (2) Defendants’ conduct has injured adjoining land owned by the Government;
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and (3) Defendants have also misappropriated timber from the adjoining land. Id.
On September 14, 2011, the Court granted the Government leave to amend its
complaint. Dkt. 54. On September 20, 2011, the Government filed an amended

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complaint adding a cause of action for violations of the Clean Water Act, 33 U.S.C. §

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1251, et seq. Dkt. 55 (“FAC”).

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On November 11, 2011, Defendants answered and asserted counterclaims against

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the Government. Dkt. 63. On November 22, 2011, the Government filed a motion to

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dismiss the counterclaim. Dkt. 65. On December 12, 2011, Defendants responded. Dkt.

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68. On December 16, 2011, the Government replied. Dkt. 71. On January 18, 2012,

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Defendants filed a supplemental response. Dkt. 74. On January 25, 2012, the

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Government responded to the supplemental brief. Dkt. 75.

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II. FACTUAL BACKGROUND

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This matter arises out of the Government’s allegations that Defendants are

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misusing property within the confines of the Columbia River Gorge National Scenic
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Area, 16 U.S.C. § 544-544p (“Gorge Act”), specifically a portion designated as a “Special
Management Area.” See, FAC, ¶ 4. The parcel of property primarily at issue is located at
22962 State Highway 14, Washougal, Washington (the “Property”). Id. Defendants own

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the Property, which is itself subject to a conservation easement held by the Government.

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Id.

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In 1995, the Grams (owners of the subject Property prior to conveyance to the

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Defendants) entered into a Conservation Easement Deed (“Conservation Easement”) with

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the Government whereby they conveyed to the Government an interest in the land which

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granted a perpetual easement running with the land. Id. ¶ 7. This easement is subject to

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and contains specific limitations on the uses to which the Property could be put thereafter.

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Id. The conveyance included, among others, the following provisions:

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a. record title;
b. the right to use the property in ways that were consistent with
current or past agricultural uses;
c. the right to use and maintain in the same location and of the same
dimensions all existing structures relating to current agricultural uses;
d. the right to use and maintain the existing roads across the
property; and
e. the right to gather and cut naturally dead and down timber for
firewood and domestic uses and to eliminate direct safety hazards to
existing structures.
***

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ORDER - 2

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Pursuant to Part III(A) of the Conservation Easement Deed, it was
established as a “general purpose” of the easement to preserve and maintain
the regular uses of the property as they existed at the time the easement was
placed on the property.
Pursuant to Part III(D) of the Conservation Easement Deed, public
use and entry was not to be permitted on the property.
Pursuant to Part III(H) of the Conservation Easement Deed, all
rights, title and interests in the property not expressly and specifically
reserved by the grantor were deemed to be acquired by the United States,
and all uses of the Property not specifically reserved in the Conservation
Easement Deed “shall be deemed prohibited.”
Pursuant to III(I) The Grantor and the United States agree that any
ambiguities regarding the terms and conditions of this easement shall be
resolved in a manner which best effects the overall conservation and public
purpose of Public Law 99-663.
The rights conveyed to the United States under the Conservation
Easement Deed run with the land and constitute a perpetual servitude on the
Property.
FAC ¶¶ 9-13.
Defendants contend that, under Part III, they reserve the right to propose additional
activities on the Property:
For any activity by the grantor which requires prior approval by the
United States, acting by and through the Forest Service, such approval will
be at the sole discretion of the authorized Forest Service official and such
approval shall not be unreasonably withheld.
In general, approval will be determined on the basis of whether the
proposed activity or improvement is compatible with the conservation of
the scenic, cultural, recreational, and natural resources of the Columbia
River Gorge National Scenic Area. In making such a determination, the
Forest Service shall utilize the same standards of compatibility as are
applied to activities on private lands elsewhere within the Special
Management Areas of the Columbia River Gorge National Scenic Area.
Any activity determined to be incompatible shall be prohibited and shall be
construed as a right having been acquired by the United States pursuant to
this instrument.

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Dkt. 56, ¶ 97. Pursuant to Part II, Defendants seek approval to use their Property as

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follows:

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1.
Remove dead and dying timber, brush, or other such products,
such as woody debris, pinecones, limbs, and to conduct other activities to
preserve and protect the fields, trees and other natural resources;
2.
Create and maintain trails or foot paths to allow the
Defendants to use and maintain the property, as well as to provide access to
the various areas of the property; and

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3.
Cultivate the property for agricultural purposes, including
onsite commercial agriculture uses (e.g. u-pick farms).
Id. ¶ 98.
Defendants have also proposed new activities, including “for-profit activity,” on

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the Property under Part IIIB that may or may not be allowed outright under Part II. In

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particular, the Defendants have sought to do the following:

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1.
Install and operate “zip lines” to provide recreational
opportunities within the Gorge and to provide access along and through the
property;
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Operate a u-pick farm and/or a vineyard on those areas of the
property that had been regularly used for over 100 years, which would
include customers being able to pick berries, pine cones, and other
agricultural products;
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Construct a cable foot bridge to provide an approved creek
crossing over Wing Creek; and
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Conduct for-profit forest or agriculture activities, such as
berry picking, mushroom harvesting, or other u-pick activities.
Id. ¶ 101.
Defendants allege that the “Forest Service is . . . in violation of the Conservation
Easement, the Gorge Act, and the Management Plan because it has unreasonably withheld
its consent to the Defendants’ proposed activities.” Id. ¶ 103. Defendants assert five
requests for relief, two of which are relevant to the instant motion: (1) “For an

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adjudication of the Defendants and the Forest Service’s rights and obligations under the
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Conservation Easement under 28 U.S.C. § 2409a,” and (2) “For a determination that the
Forest Service has, by not properly considering the Defendants’ activities, or proposed
activities, has breached its legal obligations under the Conservation Easement and the
Gorge Act.” Id. at 16.
III. DISCUSSION

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A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) can

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be either a facial or factual attack on the allegations. Thornhill Publ’g Co. v. Gen. Tel. &

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Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). A facial attack occurs when the moving

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party asserts that the allegations contained in the complaint are “insufficient on their face

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to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

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Cir. 2004). In a factual attack, the moving party “disputes the truth of the allegations that,

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by themselves, would otherwise invoke federal jurisdiction.” Id.

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In this case, the Government presents a facial attack on Defendants’ counterclaim
by arguing that Defendants have failed to invoke federal jurisdiction. Dkt. 65 at 1.
Defendants counter that jurisdiction exists under either the federal Quiet Title Act, 28
U.S.C. § 2409a, et seq., and/or the George Act.

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A.

Quiet Title Act

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The Quiet Title Act provides that the “United States may be named as a party
defendant in a civil action under this section to adjudicate a disputed title to real property
in which the United States claims an interest . . . .” 28 U.S.C. § 2409a(a). A action under

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the Quiet Title Act is “barred unless it is commenced within twelve years of the date upon

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which it accrued.” 28 U.S.C. § 2409a(g). The Quiet Title Act’s statute of limitations is

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jurisdictional, Grosz v. Andrus, 556 F.2d 972, 975 (9th Cir. 1977), and Courts must

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strictly construe it in favor of the Government, State of California v. Yuba Goldfields,

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Inc., 752 F.2d 393, 396 (9th Cir. 1985).

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The “action shall be deemed to have accrued on the date the plaintiff or his

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predecessor in interest knew or should have known of the claim of the United States.” 28

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U.S.C. § 2409a(g). The phrase “should have known” imparts a test of reasonableness.

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Yuba, 752 F.2d at 396. However, the appropriate “question is whether the United States’

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actions would have alerted a reasonable landowner that the government claimed an

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interest in the land.” Shultz v. Dept. of Army, U.S., 886 F.2d 1157, 1160 (9th Cir.1989).
All that is necessary to trigger the statute of limitations “is a reasonable awareness that
the Government claims some interest adverse to the plaintiff’s.” Spirit Lake Tribe v.

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North Dakota, 262 F.3d 732, 738 (8th Cir. 2001) (internal quotations omitted).
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In this case, the Government argues that Defendants and their predecessors, the

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Grams, were reasonably aware of the Government’s interest in the Property when the

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Conservative Easement was recorded in 1995. Dkt. 65 at 23-24. Defendants counter that

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the limitations period begins to run when the Government’s claim is “adverse to a claim

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asserted by [Defendants] or [their] predecessors.” Dkt. 68 at 16. Defendants conclude

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that the limitations period did not begin until Hoyte “was first notified by the Forest
Service that his uses were not permitted as outright uses under Part II, or were not going
to be allowed as reviewed uses under Part III.” Id. While Defendants make a colorable

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argument, the Court is bound to construe the Quiet Title Act more narrowly than
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Defendants’ propose. After review of the applicable case law and under the precedent
cited above, there is no requirement that the Government’s interest be “adverse” in the
sense that the interests are contested by either Defendants or their predecessors. Pursuant

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to a strict construction of “adverse,” a party must only be reasonably alerted that the

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Government “claimed an interest in the land.” Shultz, 886 F.2d at 1160. The recording of

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the Conservative Easement provided a reasonable alert that the Government acquired

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rights to the Property, and the easement was recorded more than twelve years before this

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action was filed. Therefore, the Court grants the Government’s motion on Defendants

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claims under the Quiet Title Act because the claims are time-barred.

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B.

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Gorge Act
The stated purposes of the Gorge Act are (1) “to establish a national scenic area to

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protect and provide for the enhancement of the scenic, cultural, recreational, and natural

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resources of the Columbia River Gorge,” and (2) “to protect and support the economy of

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the Columbia River Gorge area by encouraging growth to occur in existing urban areas
and by allowing future economic development in a manner that is consistent with” the
first purpose. 16 U.S.C. § 544a. The act allows two types of citizen suits to compel

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compliance with its provisions, and a citizen may file a suit:
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(A) against the Secretary, the Commission or any county where there
is alleged a violation of the provisions of sections 544 to 544p of this title,
the management plan or any land use ordinance or interim guideline
adopted or other action taken by the Secretary, the Commission, or any
county pursuant to or Commission [FN1] under sections 544 to 544p of this
title; or
(B) against the Secretary, the Commission, or any county where
there is alleged a failure of the Secretary, the Commission or any county to
perform any act or duty under sections 544 to 544p of this title which is not
discretionary with the Secretary, the Commission or any county.

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16 U.S.C. § 544m(b)(2). However, “[n]o action may be commenced” unless appropriate

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notice has been given. Id. § 544m(b)(3).

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In this case, Defendants have failed to allege that they have complied with the

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specific notice provisions set forth in the Gorge Act. See Dkt. 63. Moreover, they have

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failed to direct the Court’s attention to any document that they have submitted to show

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that proper notice was given. Instead, Defendants rely on attorney argument regarding

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the continued dispute between Defendants and the Forest Service and conclude their

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argument with the question of “[w]hat better notice could have been provided than was

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provided in this case?” Dkt. 68 at 17-22. The answer to Defendants’ question is outlined
in the George Act at 16 U.S.C. § 544m(b)(3). Failure to comply with the notice provision
precludes any citizen suit. Therefore, the Court grants the Government’s motion on

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Defendants’ claims under the Gorge Act for failure to provide notice.
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C.

Special Use Permit
Defendants allege that they “have a right, to the extent that their uses or proposed

uses are not allowed under the Conservation Easement, to request a special permit under

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16 U.S.C. § 497.” Dkt. 63, ¶ 108. Defendants claim that the Government has “flat out

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refused to process the Defendants’ Special Use Permit and will continue to do so absent

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an order by this Court.” Id. ¶ 109. The fatal flaw with Defendants’ allegations is that

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they have never applied for a Special Use Permit. See Dkt. 41-1, Declaration of Pam

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Campbell, ¶ 2. Defendants’ allegations and claim are wholly without merit. Therefore,

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the Court grants the Government’s motion on Defendants’ claim under 16 U.S.C. § 497.

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IV. ORDER

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Therefore, it is hereby ORDERED that the Governments’ motion to dismiss

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counterclaims (Dkt. 65) is GRANTED. Defendants’ claim under the Quiet Title Act is

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DISMISSED with prejudice. Defendants’ other claims are DISMISSED without

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prejudice because the deficiencies set forth above may be subsequently cured.

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DATED this 7th day of March, 2012.

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A

BENJAMIN H. SETTLE
United States District Judge

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