Cholla Ready Mix, Inc. v. Civish

• Decision Date: 01 September 2004
• Docket Number: No. 03-15423.,03-15423.
• Citation: 382 F.3d 969
• Parties: CHOLLA READY MIX, INC., Plaintiff-Appellant, v. William CIVISH, BLM Safford, Arizona Field Office District Manager; Victor Mendez, Secretary of the Department of Transportation (ADOT); Jeff Swan, ADOT Holbrook District Engineer; William Belt, ADOT Environmental Planning Services Department; Thor Anderson, ADOT Official; Richard Duarte, ADOT Environmental Planning Section Manager; Bettina Rosenberg, ADOT Historic Preservation Coordinator; James Garrison, Arizona State Historic Preservation Officer; Robert Gasser, Arizona Parks Department Compliance Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

382 F.3d 969

CHOLLA READY MIX, INC., Plaintiff-Appellant, v. William CIVISH, BLM Safford, Arizona Field Office District Manager; Victor Mendez, Secretary of the Department of Transportation (ADOT); Jeff Swan, ADOT Holbrook District Engineer; William Belt, ADOT Environmental Planning Services Department; Thor Anderson, ADOT Official; Richard Duarte, ADOT Environmental Planning Section Manager; Bettina Rosenberg, ADOT Historic Preservation Coordinator; James Garrison, Arizona State Historic Preservation Officer; Robert Gasser, Arizona Parks Department Compliance Officer, Defendants-Appellees.

No. 03-15423.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2004.

Filed September 1, 2004.

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William Perry Pendley, Christopher T. Masey, Mountain States Legal Foundation, Lakewood, CO, for the plaintiff-appellant.

James N. Smith, Jr., Joe Acosta, Jr., Assistant Attorneys General, Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Frederick J. Martone, District Judge, Presiding. D.C. No. CV-02-01185-FJM.

Before B. FLETCHER, TROTT, and FISHER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Cholla Ready Mix, Inc. ("Cholla") appeals the district court's dismissal of its complaint alleging that Arizona state officials' policy against using materials mined from Woodruff Butte in state construction projects violates its rights under the Establishment Clause, 42 U.S.C. §§ 1981, 1983, and 2000d, and the Arizona Constitution. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Dale McKinnon, who is Cholla's sole shareholder, and his family own a portion of Woodruff Butte.¹ In 1990, the McKinnon family leased part of Woodruff Butte and began mining it for aggregate materials used primarily for road construction. Shortly after mining operations began, the Hopi Tribe, Zuni Pueblo, and Navajo Nation (collectively, "the Tribes") passed resolutions against the mining because of Woodruff Butte's religious, cultural, and historical significance to these groups. In June 1991, the Arizona Department of Transportation (ADOT) granted a commercial source number allowing materials mined from the Butte to be used in state highway construction projects. In September 1991, the McKinnons bought the mined portion of Woodruff Butte.

The mining of Woodruff Butte led to a variety of disputes and litigation involving the Tribes, Cholla, construction contractors, and various Arizona and federal officials and agencies. In response, ADOT adopted strategies to discourage the use of materials from Woodruff Butte in state construction projects. In 1999, ADOT promulgated new commercial source regulations, which require each applicant for a commercial source number to submit an environmental assessment (EA) that considers, inter alia, adverse effects on places eligible for listing on the National Register of Historic Places (NRHP). Woodruff Butte was declared eligible for listing on the NRHP in or around 1990. On June 26, 2000, ADOT denied Cholla's application for a new commercial source number because of the projected adverse effects on historic property on Woodruff Butte. Without a commercial source number Cholla cannot provide aggregate materials for state highway construction projects, but Cholla remains free to sell its materials in the private market.

On June 25, 2002, Cholla filed suit in district court against various government² officials alleging that the policy against using materials from the Butte in state construction projects violates Cholla's rights under the Establishment Clause, federal civil rights laws, and the Arizona Constitution. The district court granted Cholla's motion for leave to file an amended complaint, but then granted the state defendants' motion to dismiss. After the district court denied Cholla's motion for reconsideration and granted its request for certification of final judgment against the state defendants, Cholla timely filed a notice of appeal to this court.

II. STANDARD OF REVIEW

The court reviews de novo dismissals on the basis of Eleventh Amendment immunity. Lovell v. Chandler, 303 F.3d 1039, 1050 (9th Cir.2002). We also review de novo dismissals on the basis of a statute of limitations. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir.2003). Likewise, we review de novo dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6), accepting all facts alleged in the complaint as true and construing them in the light most favorable to the plaintiff. Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir.2003). "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

III. DISCUSSION

A. Eleventh Amendment Immunity

Cholla appeals the district court's holdings that the Eleventh Amendment bars its state law claims and its claim for damages under Title VI, 42 U.S.C. § 2000d.³

1. Damages under Title VI

Congress abrogated state immunity from damages under Title VI. See 42 U.S.C. § 2000d-7(a); Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188-89 (9th Cir.2003). Although we affirm on other grounds, we conclude that the district court erred by holding that the Eleventh Amendment bars Cholla's claims for damages under § 2000d.

2. State Law Claims

As the district court held, all of Cholla's state law claims are barred by the Eleventh Amendment, which precludes the adjudication of pendent state law claims against nonconsenting state defendants in federal courts. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540-541, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002); Ashker v. Cal. Dep't of Corr., 112 F.3d 392, 394 (9th Cir.1997).⁴

Cholla's reliance on Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.1985) to revive its state law claims as a substantive part of its § 1983 claim is misplaced. Piatt held that where a state statute provides prisoners a right to compensation for their work, they can bring a § 1983 claim alleging that the state revoked their right to pay without due process. Id. at 1035-37. Piatt recognizes that, because a due process claim necessarily fails if the plaintiff has no property interest in the relevant property, a federal due process claim may succeed or fail depending on whether the § 1983 plaintiff has a cognizable property interest under state law. Id. at 1035. However, Piatt does not permit plaintiffs to sue in federal court under § 1983 solely for violations of state law. Thus, Piatt is of no help to Cholla.

B. Statutes of Limitations

The statutes providing Cholla's federal causes of action, 42 U.S.C. §§ 1981, 1983, and 2000d, do not contain their own statutes of limitations, so courts borrow the most appropriate state statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 268, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). For these claims, we borrow Arizona's statute of limitations for personal injury claims. See Wilson, 471 U.S. at 276-80, 105 S.Ct. 1938 (holding that the statute of limitations for personal injury claims applies in § 1983 suits); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1140 (9th Cir.2000) (§ 1981 claims) (citing Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)); Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 711-12 (9th Cir.1993) (§ 2000d claims).⁵ The applicable statute of limitations for personal injury claims in Arizona is two years. See Ariz.Rev.Stat. § 12-542; TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). Thus, the district court correctly concluded that Cholla's only timely claim is its challenge to the rejection of its application for a commercial source number. This claim brings into play Cholla's allegations of an Establishment Clause violation and discrimination on account of race.

Cholla argues that under the continuing violations doctrine, it may challenge defendants' ongoing policy against the use of materials from Woodruff Butte. Discrete acts are not actionable if time barred, even if related to acts alleged in timely filed charges. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828-29 (9th Cir.2003); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061-62 (9th Cir.2002). Nonetheless, the time bar makes little difference to Cholla's requests for declaratory and injunctive relief. By challenging the denial of Cholla's application for a commercial source number, without which Cholla's aggregate materials cannot be used in state construction projects, Cholla is challenging Arizona's policy against using materials from Woodruff Butte. Moreover, acts occurring more than two years before Cholla filed suit may be relevant background material in support of its timely claim. Morgan, 536 U.S. at 113, 122 S.Ct. 2061.⁶

C. Establishment Clause Claim

Cholla alleges that the defendants' policy against using materials from Woodruff Butte in state construction projects violates the Establishment Clause of the First Amendment. On appeal, Cholla emphasizes the liberal notice pleading requirements and argues that the district court improperly evaluated the strength of Cholla's claim. Accepting as true the facts alleged and construing them in the light most favorable to Cholla, we conclude that the district court properly dismissed this...