Ace Black Ranches, LLP v. U.S. Envtl. Prot. Agency
| Decision Date | 04 February 2022 |
| Docket Number | Case No. 1:21-cv-00214-BLW |
| Citation | 583 F.Supp.3d 1313 |
| Parties | ACE BLACK RANCHES, LLP, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Idaho |
583 F.Supp.3d 1313
ACE BLACK RANCHES, LLP, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
Case No. 1:21-cv-00214-BLW
United States District Court, D. Idaho.
Signed February 4, 2022
Garrett Max Kitamura, Parsons Behle & Latimer, Boise, Lawrence A. Kogan, Pro Hac Vice, The Kogan Law Group, P.C., New York, NY, Norman M. Semanko, Parsons Behle & Latimer, Boise, ID, for Plaintiff.
Brian S. Uholik, Environment & Natural Resources Division, Jeffrey T. Hammons, Environmental Defense Section, Washington, DC, for Defendants United States Environmental Protection Agency, United States Army Corps of Engineers.
Nicholas J. Woychick, United States Attorney's office, Boise, ID, for Defendants Patrick Johnson, Charissa Bujak, Yvonne Vallette, James Tyler Moore, William Schrader, James Joyner, Jeffery Kenknight, Evan Carden, Edward Kowalski.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill, United States District Court Judge
INTRODUCTION
Plaintiff, Ace Black Ranches, brings this Clean Water Act pre-enforcement action against the U.S. Environmental Protection Agency (EPA), the U.S. Army Corp of Engineers (the Corps), and various individual defendants in both their official and individual capacities. (Dkt. 35.) Currently before the Court are Defendants’ motion to strike or dismiss the First Amended Complaint (Dkt. 38); Plaintiff's motion for leave to file a Second Amended Complaint (Dkt. 44); Defendants’ second motion to dismiss (Dkt. 50); and Plaintiff's motion to file supplemental authority (Dkt. 69.) For the reasons discussed below, the Court will grant the second motion to dismiss (Dkt. 44) and deny the remaining motions.
BACKGROUND1
In February 2021, Plaintiff Ace Black Ranches (ABR) received letters from the Corps and the EPA. The letters informed ABR that the agencies had received information that ABR, or persons acting on ABR's behalf, "may have discharged dredged or fill material" into protected waters without authorization or permits allowing ABR to do so and that ABR's conduct appeared to violate the Clean Water Act (CWA). The letters also advised ABR and its managing partner to stop performing all such activities until the required permit or authorization was obtained. The letters further advised ABR that an investigation would be conducted to determine whether CWA violations had occurred, as well as the extent of any violation, any mitigating factors, and the appropriate resolution of any violation. Finally, the letters included requests for information,
and required ABR to provide the requested information within 30 days.
In March 2021, ABR requested a 30-day extension of the deadline to respond to the agencies’ information requests. This would have extended the deadline for ABR's response to April 12, 2021, for the Corps’ request, and to April 19, 2021, for EPA's request.
On April 1, 2021, ABR submitted Freedom of Information Act (FOIA) requests to both the Corps’ local regulatory office and the EPA Region 10 office. The FOIA requests sought digital and hardcopy information, photographs, maps, and other data in possession of the Corps and EPA identifying the locations of the areas of interest related to the agencies’ February 2021 letters and the CWA investigations discussed therein.
On April 7, 2021, counsel for ABR and counsel for the agencies met and conferred. During this meeting, ABR's counsel asked for an additional 90-day extension of the deadline for responding to the agencies’ information requests. The agencies approved the request, giving ABR until July 12, 2021, to respond, but requested that ABR provide any information it was able to prior to the extended deadline. Also discussed during this meeting was ABR's FOIA requests and the agencies’ request to schedule a visit to ABR's property as soon as practicable and preferably before the second week of May 2021.
About a week later, ABR responded to the agencies’ request for an onsite visit, stating it would agree to the proposed onsite visit with certain conditions, including that ABR wanted to have the agencies’ responses to ABR's FOIA requests prior to the onsite visit.
The parties corresponded regarding the voluntary onsite visit and finally reached an agreement for the onsite visit to occur May 18-20, 2021. In agreeing to the onsite visit, ABR emphasized that it needed the agencies’ responses to ABR's FOIA requests prior to the visit. ABR also sought the agencies’ agreement to limit the scope of the proposed onsite visit to certain areas specified by ABR.
The agencies declined to agree to the limitations proposed by ABR, but stated that they would share with ABR prior to the onsite visit an outline of the areas the agencies wanted to view during the visit.
ABR received an interim response to their FOIA requests prior to the date set for the onsite visit, but it did not receive a full response. This interim response stated that ABR's FOIA response was "complex," and explained that EPA needed to reconfirm the types of information/records ABR was seeking and engage in extensive consultation with other agencies. ABR alleges that this was false—that ABR's FOIA request was not complex, and that EPA's explanations were not true. ABR believes, based on the absence of certain information from the agencies’ interim response, that the agencies’ proposed onsite visit was nothing more than a "fishing expedition."
On May 7, 2021, ABR received information from EPA regarding the upcoming May 18-20 onsite visit, including a map of a 383-acre area of interest. EPA explained that, during the site visit, they intended to focus on collecting data within the boundary of the area indicated on the map. ABR believed that this communication from EPA indicated that the agencies would seek to schedule additional onsite visits to ABR's ranch in the future based on data collected during the May 18-20 visit. ABR also does not believe that the information provided to ABR by the agencies regarding the onsite visit was adequate.
On May 17, 2021, the day before the scheduled onsite visit, ABR informed the agencies that ABR was withdrawing its
consent to the visit. On that same day, ABR filed the present action.2
On May 18, 2021, the EPA applied for and received an ex parte administrative search warrant in a separate proceeding before Magistrate Judge Candy Dale. That warrant allowed the agencies to search ABR's property.3 See United States of America v. Ace Black Ranches, LLP , Case No. 1:21-mj-00537-CWD-1 (D. Idaho). The search warrant was executed on June 14, 2021.
On July 23, 2021, the Government moved to dismiss this action for failure to state a claim. (Dkt. 32.) In response, ABR filed a first amended complaint (FAC) (Dkt. 35), which mooted the Government's motion to dismiss (see Dkt. 37).
Subsequently, Defendants filed a motion to strike or dismiss the FAC (Dkt. 38); ABR filed a motion for leave to file a second amended complaint (Dkt. 44); and Defendants filed a second motion to dismiss (Dkt. 50). ABR also subsequently filed a notice of supplemental authority (Dkt. 69).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). There are two principles that the Court must keep in mind in deciding a motion to dismiss. First, "[a]lthough for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
"Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief." Id. (internal quotation marks and citation omitted; alteration in original).
ANALYSIS
The FAC and proposed SAC4 bring claims for violations of (1) the Administrative Procedures Act (APA), (2) the Fourth Amendment, (3) the First Amendment and common law due process right of public access to judicial documents, (4) the Fifth Amendment right to substantive due process, (5) the Fifth Amendment right to procedural due process, (6) the Separation
of Powers Doctrine, (7) the Tenth Amendment anti-commandeering rule and federalism principle; and (8) Bivens.5 (Dkts. 35, 44-1.) The Court will examine each of these claims in turn to determine whether ABR has stated a claim upon which relief may be granted.
A. Administrative Procedures Act – Claim I
In Claim I, ABR alleges that the EPA acted arbitrarily and capriciously in violation of the APA when it (1) obtained and executed an ex parte administrative search warrant after ABR revoked its consent for the agencies to conduct an onsite visit; and (2) failed to adequately respond to ABR's FOIA request before executing the warrant.
1. Obtaining and executing an administrative search warrant after ABR revoked consent
ABR claims that EPA acted arbitrarily and capriciously when it obtained and executed an ex parte administrative search warrant after ABR revoked its consent for the agencies to conduct an onsite visit.
Under the...
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