ABC Sand & Rock Co. v. Cnty. of Maricopa
| Decision Date | 23 May 2022 |
| Docket Number | CV-21-01875-PHX-DGC |
| Parties | ABC Sand and Rock Company, Inc.; and David Waltemath, Plaintiffs, v. County of Maricopa; Flood Control District of Maricopa County; William Wiley and Unknown Wiley; Ed Raleigh and Unknown Raleigh; Anthony Beuche and Unknown Beuche; Michael Fulton and Unknown Fulton; and Scott Vogel and Unknown Vogel, Defendants. |
| Court | U.S. District Court — District of Arizona |
Defendants have filed a motion to dismiss. Doc. 13. The motion is fully briefed (Docs. 13, 16, 17) and oral argument will not aid the Court's decision, see LRCiv 7.2. For reasons stated below, the Court will grant the motion as to the individual Defendants and deny it as to the remaining Defendants. Plaintiffs will also be granted leave to amend.
This case is the latest in a longstanding dispute between ABC Sand and Rock Company (“ABC”) and its owner, David Walmath (collectively, “Plaintiffs”), and the Flood Control District of Maricopa County (the “District”). ABC operates a sand and gravel mine in the floodplain at the confluence of the Agua Fria River and New River in Maricopa County, Arizona. Doc. 1 ¶¶ 25-26. The District regulates and issues five-year permits for mining operations. Id. ¶¶ 20, 22-24. ABC mined under permits issued by the District from 1985-2011. Id. ¶ 28. In 2011, ABC applied to renew its permit. Id. ¶ 29. Disputes over this renewal led to extensive litigation both in this Court and Arizona state courts. Id.; see ABC Sand & Rock Co., Inc. v . Maricopa Cnty., No. CV-17-01094-PHX-DGC, 2021 WL 3491947, at *1-4 (D. Ariz. Aug. 9, 2021) ().
As a result of the prior litigation, ABC's permit application process began anew in 2015. Doc. 1 ¶ 31; ABC Sand & Rock Co., 2021 WL 3491947, at *2. The District issued a new permit on August 10, 2017 (the “Permit”). Id. ¶ 32. Because of concern that a 100-year flood of the New River could enter ABC's mining pit with a discharge of 39, 000 cubic feet per second, the Permit required ABC to take certain actions and build certain structures on its land, and set time limits for ABC to do so. Id. ¶¶ 33-35. Plaintiffs allege that complying with the Permit's requirements has cost ABC more than $8 million. Id. ¶ 39. Plaintiffs assert that the requirements are based on an outdated 2001 report, rather than a report they received on March 23, 2021, which concluded that any 100-year flow would be only 19, 600 cubic feet per second. Id. ¶¶ 33-34, 52-59.
Plaintiffs allege that the District chose to rely on the 2001 data - even though the District knew the data to be incorrect - because of expected benefits to its plan for a recreational corridor (the “Watercourse Master Plan”) which would pass through ABC's property. Id. ¶¶ 50, 60-61. According to Plaintiffs, the Watercourse Master Plan would create a new spring training facility, involve “Main Street” mixed use initiatives and an airport expansion, and create parks and recreation facilities. Id. ¶ 49. Plaintiffs allege that the actions required of ABC by the Permit would inure to the District's benefit by allowing it to implement the Watercourse Master Plan at a lower cost. Id. ¶ 61.
Plaintiffs bring claims under 42 U.S.C. § 1983 alleging violations of the Takings Clause (Count I) and the Due Process Clause (Count II) of the Fifth Amendment. Plaintiffs seek declaratory and injunctive relief and damages.
When analyzing a complaint for failure to state a claim, the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A successful motion to dismiss under Rule 12(b)(6) must show either that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ).
Defendants argue that Plaintiffs' complaint should be dismissed because it is (A) untimely, (B) precluded by the doctrine of claim preclusion, and (C) fails to state a plausible claim for relief.
Defendants argue that the applicable statute of limitations for actions brought under § 1983 in Arizona is two years. Doc. 13 at 4. (citing Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004)). Defendants argue that Plaintiffs' claims accrued on August 10, 2017, the date the Permit was issued, because Plaintiffs knew on that date of the flow rate used by the District and that it would be required to comply with the terms of the Permit in order to extract further material from its mine. Id. at 5. Plaintiffs filed this lawsuit on November 4, 2021, more than four years after the Permit was issued. See id.
Plaintiffs argue that, under Ranch 57 v. City of Yuma, 731 P.2d 113, 117-18 (Ariz.Ct.App. 1986), regulatory takings claims are subject to a four-year statute of limitations, and alternatively that the four-year statute of limitations in 28 U.S.C. § 1658 applies under Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 377-78 (2004). Doc. 16 at 6. Plaintiffs further argue that the date of accrual does not depend on the date the Permit was issued, but on the dates ABC was required to take certain actions on its property pursuant to the Permit. Id. at 4. Plaintiffs argue that a takings claim is not ripe until the governmental entity implementing regulations has reached a final decision regarding the application of the regulations to the property at issue, something that did not happen until ABC was required to take action on its land. Id. (citing Knick v. Township of Scott, 139 S.Ct. 2162 (2019)). Plaintiffs assert that the earliest action required by the Permit was to take place by November 10, 2017. Id. at 5. Based on this date, Plaintiffs' action on November 4, 2021, was within the four-year statute of limitations. Plaintiffs finally argue that they did not discover that the District had relied on an incorrect flow rate until March 23, 2021, and the claim did not accrue before then. Id. at 6 (citing Bennett v. City of Kingman, 543 F.Supp.3d 794 (D. Ariz. 2021)).
Defendants reply that, to the extent that Ranch 57 suggests that the statute of limitations for § 1983 actions depends on the character of the constitutional right violated, it conflicts with Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), which rejected such an argument. Doc. 17 at 3. Under Goodman, Defendants argue, all suits brought under § 1983 are subject to the statute of limitations for personal injury actions in the state where the suit is brought. Id. (citing Goodman, 482 U.S. at 661). Defendants also argue that § 1658's four-year statute of limitations does not apply to § 1983 actions because it applies only to federal claims created after 1991 or brought pursuant to a particular section of § 1981. Id. at 4. But even if the limitations period is four years, Defendants argue that Plaintiffs' claims are barred because Plaintiffs brought suit more than four years after the Permit was issued. Id. at 2. Defendants maintain that Plaintiffs' claims accrued when the Permit was issued, not when ABC took each action required by it. Id. Defendants also dispute Plaintiffs' reliance on Knick, arguing that it shows that Plaintiffs' claim accrued on issuance of the Permit because the action that allegedly constituted a taking of its property was the requirements imposed by the Permit, which incorporated the flow rate Plaintiffs argue is incorrect. Id.
Generally, plaintiffs are not required to plead around affirmative defenses. U.S. Commodity Futures TradingComm'n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019).
A statute of limitations defense may be raised by a motion to dismiss if the running of the statute is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (“Dismissal under Rule 12(b)(6) on the basis of an affirmative defense is proper only if the defendant shows some obvious bar to securing relief on the face of the complaint.”). Thus, “[a] motion to dismiss based on the running of the statute of limitations period may be granted only ‘if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.'” Ortega v. Santa Clara Cnty. Jail, No. 19-17547, 2021 WL 5855066, at *1 (9th Cir. Dec. 9, 2021) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995); Jablon, 614 F.2d at 682).
Section 1983 does not contain its own statute of limitations. Courts must borrow the forum state's statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261, 279-80 (1985); Cholla Ready Mix, 382 F.3d at 974. “The applicable statute of limitations for personal injury claims in Arizona is two years.” A.R.S. § 12-542; Cholla Ready Mix, 382 F.3d at 974.
Plaintiffs' arguments that the statute of limitations should be four years are unavailing. Their argument that § 1658's four-year period applies to § 1983 actions has been rejected by the Ninth Circuit. Cholla Ready Mix, 382 F.3d at 974 n.5. Indeed, the court in Cholla Ready Mix specifically considered Jones v. R.R. Donnelley & Sons, the case Plaintiffs cite in support of the applicability...
To continue reading
Request your trial