ABC Sand & Rock Co. v. Maricopa Cnty.
| Docket Number | CV-21-01875-PHX-DGC |
| Decision Date | 24 August 2023 |
| Parties | ABC Sand and Rock Company, Inc.; and David Waltemath, Plaintiffs, v. Maricopa County; Flood Control District of Maricopa County; William Wiley; Ed Raleigh; Anthony Beuche; Michael Fulton; Scott Vogel; and Jane Doe Spouses, Defendants. |
| Court | U.S. District Court — District of Arizona |
Defendants have filed a motion for summary judgment. Doc. 43. The motion is fully briefed and the Court heard oral argument on August 7, 2023. See Doc. 54. For reasons stated below, the Court will grant the motion.
This case is the latest in a longstanding dispute between ABC Sand and Rock Company (“ABC”) and its owner, David Waltemath (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 New River and the Agua Fria River in Maricopa County, Arizona. The District regulates and issues five-year permits for mining operations in floodplains. See A.R.S. §§ 48-3609(B)(1), 48-3613(A); Floodplain Regulations for Maricopa County §§ 401-04.
ABC mined under permits issued by the District from 1985 to 2011. ABC applied to renew its permit in 2011. Disputes over this renewal and subsequent developments led to extensive litigation between the parties for the last decade. ABC and the District have engaged in adversary proceedings before a District hearing officer several times, on appeal to the District Board at least twice, in Maricopa County Superior Court at least three times, before the Arizona Court of Appeals three times, and in this Court at least two times before this case. See ABC Sand & Rock Co., Inc. v Maricopa Cnty., No. CV-17-01094-PHX-DGC, 2021 WL 3491947, at *1-8 (D. Ariz. Aug. 9, 2021) (). ABC has previously asserted five state law claims, four federal law claims, and injunctive and declaratory relief claims against the District. Id. at *3. This Court has previously granted summary judgment on ABC's § 1983 claims based on free speech, due process, and equal protection, as well as a § 1985 claim for conspiracy. Id. at *4-13.
Despite this ongoing litigation, ABC submitted a proposed plan of development to the District and applied for a new permit in 2015. Doc. 44 ¶¶ 3, 14. ABC's previous permit allowed it to mine to a depth of 10 feet in the floodplain and up to 40 feet in the floodplain fringe, but the 2015 application sought authorization to mine to a depth of 60 feet. Id.; Doc. 46-3 at 3. The District reviewed the proposed plan of development and issued multiple requests for corrections, to which ABC responded. Doc. 44 ¶¶ 5, 15-16; Doc. 44-4. ABC's engineer, Pedro Calza, completed and sealed the plan in July 2017. Docs. 44 ¶ 3, 44-2. The District approved the plan and issued ABC a new permit on August 10, 2017 (the “Permit”). Docs. 44 ¶ 24, 44-14.
Arizona law requires flood control districts to regulate floodplains, which are areas in a watercourse that may be covered partially or wholly by water from a 100-year flood. See A.R.S. § 48-3601(6); A Tumbling-TRanches v. Flood Control Dist. of Maricopa Cnty., 217 P.3d 1220, 1238 (Ariz.Ct.App. 2009). Because of concern that a 100-year flood of the New River could enter ABC's mining pit with a flow rate of 39,000 cubic feet per second (“cfs”), the Permit stipulated that ABC must stabilize the site, and established time limits for ABC to do so. Docs. 22 ¶¶ 40-41, 44-14 at 4-6. The stabilization requirements include substantial excavation of the site and installation of armor on various slopes and berms. Id. ABC may mine to a depth of 60 feet once this work is completed. Doc. 44-14 at 5.
The 39,000 cfs flow rate underlying the Permit's stabilization requirements was based on a New River hydrology study conducted by the United States Army Corps of Engineers in 1982. Docs. 44 ¶¶ 9-10, 44-6. The Federal Emergency Management Agency (“FEMA”) adopted that flow rate for purposes of its flood insurance rate map. Doc. 44 ¶ 11. For Maricopa County residents to remain eligible for flood insurance under FEMA's national flood insurance program, the District must regulate floodplains in accordance with FEMA-established flow rates. Id. ¶ 4; see Docs. 13 at 2-3, 43 at 5 (citing 42 U.S.C. §§ 4012(c), 4022(a)(1), 4102(c)).
In early 2017, ABC requested that a new hydrology study be made of the New River and submitted to FEMA. In response, the District commissioned Cardno Engineering Corporation to conduct the study and prepare a report of its findings. Docs. 46 ¶¶ 33-35, 46-37. The Cardno report was completed in September 2018 and concluded that the 100-year flow rate for the New River is 34,200 cfs. Docs. 44 ¶ 25, 46-37 at 38. At this flow rate, the Permit's stabilization requirements would not change.
Plaintiffs assert that the Permit is based on outdated flow rate data for the New River. Doc. 22 ¶ 66. Plaintiffs argue that the District has refused to review a report Plaintiffs obtained from their own consulting hydrologist, Patricia Dillon, on March 23, 2021. Id. ¶¶ 58, 66; see Doc. 46-42. Dillon analyzed data from streamflow gages between the outlet of the New River and its confluence with the Agua Fria River. Doc. 46-42 at 2. She opined that the flow rate for any 100-year flood would be no higher than 18,950 cfs. Doc. 46-42 at 11, 13.[1] Plaintiffs claim that complying with the Permit's unnecessary stabilization demands has cost ABC more than $8 million, and that the stabilization requirements are not necessary under Dillon's lower flow rate. Docs. 22 ¶ 45, 45 at 3. Plaintiffs allege that the District chose to rely on an outdated flow rate because it would require improvements on ABC's property that would benefit the District's plan for a recreational corridor - the Agua Fria Watercourse Master Plan. Doc. 22 ¶¶ 52-57, 66-67. Plaintiffs allege that none of the Permit's requirements would actually protect the surrounding areas from any reasonably expected 100-year flood, and instead would simply benefit the District by allowing it to implement the Watercourse Master Plan at a lower cost. Id. ¶¶ 42-43, 57, 67.
Plaintiffs sue under 42 U.S.C. § 1983, alleging violations of the Fifth Amendment's Takings Clause (count one) and Due Process Clause (count two). Doc. 22 ¶¶ 15, 18, 101-24. Defendants moved to dismiss Plaintiffs' original complaint (Doc. 1), arguing that it failed to state a plausible claim for relief and was barred by the statute of limitations and claim preclusion. Doc. 13. The Court granted the motion with respect to the individual Defendants but denied it all other respects. Doc. 18. Defendants now move for summary judgment on the claims asserted in the amended complaint. Doc. 43.
Summary judgment is appropriate if the moving party shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party “bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and draw justifiable inferences in that party's favor, Anderson, 477 U.S. at 255.
The Takings Clause of the Fifth Amendment, which applies to the States through the Fourteenth Amendment, provides that the government may not take private property for public use without just compensation. U.S. Const. amend. V. The paradigmatic taking is a direct government annexation of private property through eminent domain. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005); see Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (). Contrary to the assertion in their response (Doc. 45 at 11-12), Plaintiffs do not allege, and have not otherwise shown, a paradigmatic taking in this case. The Permit requires ABC to spend money excavating and armoring the mining site, but it does not annex or appropriate ABC's property.
The Supreme Court has recognized four other kinds of takings: (1) a permanent physical invasion of property, see Loretto v Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); (2) a regulation that deprives a plaintiff of all economically beneficial use of property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); (3) a general regulatory taking challenge under Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978); and (4) a land-use regulation violating the standards set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). Lingle, 544 U.S. at 548; see also Akshar Glob. Invs. Corp. v. City of L.A., 817 Fed.Appx. 301, 304 (9th Cir. 2020); Beck v. City of Whitefish, No. CV 22-44-M-KLD, 2023 WL 1068239, at *4 (D. Mont. Jan. 27, 2023). Plaintiffs have not shown a physical invasion of property by the District (a Loretto claim), nor do they contend that...
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