Schwent et al v. National Resource Conservation Service et al
Filing
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ORDER granting 37 Motion to Dismiss signed by Judge Benjamin H. Settle.(TG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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VINCENT SCHWENT, et al.,
CASE NO. C16-5708 BHS
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Plaintiffs,
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v.
UNITED STATES OF AMERICA, et
al.,
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS AND DISMISSING
REMAINING CLAIMS FOR LACK
OF JURISDICTION
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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. Dkt. 37. The Court has considered the pleadings filed
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in support of and in opposition to the motions and the remainder of the file and hereby
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grants the motion. The Court also dismisses Plaintiffs’ claims against Defendants Rita
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and Ward Willets (the “Willets”) because it lacks jurisdiction.
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I.
PROCEDURAL HISTORY
On August 12, 2016, Plaintiffs Vincent Schwent and Debra Shapiro Schwent
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(“Plaintiffs”) filed a complaint against the Government and the Willets. Dkt. 1. On
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August 17, 2016, Plaintiffs filed an amended complaint for trespass, nuisance,
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constitutional tort, and breach of easement agreement. Dkt. 7. Plaintiffs requested
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compensatory damages, injunctive relief, and attorney’s fees and costs. Id.
ORDER - 1
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On October 20, 2016, the Federal Defendants moved to substitute the United
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States of America for the previously named Federal Defendants, to dismiss all non-tort
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claims, to dismiss the named Federal Defendants, and to dismiss the Plaintiffs’ requests
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for injunctive relief. Dkt. 15. On October 28, 2016, the Willets filed a motion to dismiss.
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Dkt. 17.
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On January 17, 2016, the Court entered an order granting the Government’s
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motion to dismiss. Dkt. 26 at 5. The Court dismissed Plaintiffs’ claims against the
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Government on the basis that it lacked jurisdiction because the claims exceeded the
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applicable $10,000 jurisdictional cap. Id. The Court also granted Plaintiffs leave to
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amend because a claim could be stated if the complaint were amended to limit damages
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to $10,000. Id. In the same order, the Court denied the Willets’ motion to dismiss. Dkt.
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26 at 3–4.
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On August 24, 2017, Plaintiffs filed another amended complaint. Dkt. 36. In this
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most recent amended complaint, Plaintiffs bring claims against the Willits for trespass by
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waters and nuisance. Id. at 6. Additionally, Plaintiffs name the Government as “a
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necessary party under [Fed. R. Civ. P.] 19 as the easement holder such that any remedy
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other than or in addition to compensation that this court might order will require the
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concurrence of the United States . . . .” Id. at 2.
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On September 1, 2017, the Government again moved for dismissal. Dkt. 37. On
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September 20, 2017, Plaintiffs responded. Dkt. 38. On September 29, 2017, the
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Government replied. Dkt. 39.
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ORDER - 2
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II.
FACTUAL BACKGROUND
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In October 2013, Plaintiffs purchased property adjacent to the Willets’ property.
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Dkt. 36 at 3. After the 2014–2015 winter, a field on Plaintiffs’ property began to flood.
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Id. Plaintiffs claim that the excess water is coming from the Willets’ property. Id. After
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investigation, Plaintiffs discovered that the Government, through the Department of
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Agriculture, holds a conservation easement over portions of the Willets’ property and that
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this portion of the property contains a beaver colony with numerous beaver dams. Id. at
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4. Plaintiffs claim that the excessive water coming from the beaver dams acts as a
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nuisance, establishes trespass by nuisance, and violates the easement agreement. Id. at 4–
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5.
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III.
DISCUSSION
While Plaintiffs have omitted any express reference to the Takings Clause in their
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amended complaint, they nonetheless name the Government as a necessary party on the
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basis that, in order to secure the requested relief, it will be necessary to obtain an order
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enforceable against the Government for the purpose of preventing the further deprivation
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of their rights in a property. Dkt. 36 at 2; Dkt. 38 at 3–4. This amounts to a takings claim,
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and “neither injunctive nor declaratory relief is available for a takings claim against the
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United States.” Bay View, Inc. v. Ahtna, Inc., 105 F.3d 1281, 1286 n. 6 (9th Cir. 1997).
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Furthermore, as already discussed in the Court’s previous orders, the Court lacks
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jurisdiction to hear Plaintiffs’ takings claim because the amount in controversy exceeds
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10,000 dollars. 28 U.S.C. § 1346(a)(2). McGuire v. United States, 550 F.3d 903, 910–11
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(9th Cir. 2008). To the extent Plaintiffs seeks a judgment that may be enforced against
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the Government for use of its property resulting in an allegedly unlawful taking of their
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property, jurisdiction lies in the Court of Federal Claims, not here. 28 U.S.C. § 1491.
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Additionally, the Court dismisses without prejudice Plaintiffs’ claims against the
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Willets. “If the court determines at any time that it lacks subject-matter jurisdiction, the
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court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added). See also Snell
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v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil Procedure
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12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua
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sponte, at any time during the pendency of the action . . . .”). Plaintiffs’ claims against the
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Willets arise exclusively under Washington State law, see Dkt. 36 at 6, and Plaintiffs
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have failed to provide a jurisdictional basis for pursuing them in this Court.
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IV.
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ORDER
The Government’s motion to dismiss (Dkt. 37) is GRANTED. Any claims
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Plaintiffs assert against the Government are DISMISSED without prejudice to allow
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Plaintiffs to pursue their claims in the appropriate jurisdiction. Furthermore, because the
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Court lacks jurisdiction to hear Plaintiffs’ remaining claims against the Willets, those
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claims are also DISMISSED without prejudice and the Clerk shall close this case.
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IT IS SO ORDERED.
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Dated this 19th day of October, 2017.
A
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BENJAMIN H. SETTLE
United States District Judge
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ORDER - 4
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