La Compania Ocho, Inc. v. US Forest Service

• Citation: 874 F. Supp. 1242
• Decision Date: 23 January 1995
• Docket Number: Civ. No. 94-0317 JB.
• Parties: LA COMPANIA OCHO, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: United States District Courts. 10th Circuit. District of New Mexico

874 F. Supp. 1242

LA COMPANIA OCHO, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

Civ. No. 94-0317 JB.

United States District Court, D. New Mexico.

January 23, 1995.

Richard Rosenstock, Santa Fe, NM, for La Compania Ocho, Inc., Patricio Valdez, Manuel Gurule, Antonio DeVargas, Steve Chavez, and Dennis Valdez.

Lisa Enfield, Albuquerque, NM, Dave Richards, Santa Fe, NM, for plaintiffs.

Clark deSchweinitz, Northern New Mexico Legal Services, Inc., Santa Fe, NM, for Madera Forest Products Ass'n.

John Zavitz, Asst. U.S. Atty., Albuquerque, NM, David Gelhert and Nadira Clark, Environmental and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, Mary Ann Joca, Office of Gen. Counsel, U.S. Dept. of Agriculture, Albuquerque, NM, Kathryn Toffeneitt and Jay McWhirther, Office of Gen. Counsel, U.S. Dept. of Agriculture, Washington, DC, for defendants.

Philip B. Davis, American Civ. Liberties Union of New Mexico, Albuquerque, NM, for amicus curiae.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Senior District Judge.

THIS MATTER comes before the Court on Defendants' July 5, 1994 motion to dismiss in part and Plaintiffs' October 18, 1994 motion to amend complaint. The Court, having heard the arguments of counsel, reviewed the submissions of the parties and the relevant law, and being otherwise fully advised in the premises, finds Defendants' motion to dismiss is well taken in part and is granted in part. Plaintiffs' motion to amend is well taken and is granted.

The individual Plaintiffs are residents of communities located near the Vallecitos Federal Sustained Yield Unit ("Vallecitos Unit"), an area consisting of approximately 73,400 acres of timberland in the El Rito Ranger District of the Carson National Forest in northern New Mexico. Plaintiff La Compania Ocho, Inc. ("La Compania") is engaged in the business of harvesting timber for the manufacture of various wood products. Plaintiff Madera Forest Products Association ("MFPA") is a non-profit wood products business association. Plaintiffs bring suit against the United States Forest Service of the United States Department of Agriculture and against various individual agents or employees of the Department of Agriculture and the Forest Service in both their official and individual capacities.

The Secretary of Agriculture established the Vallecitos Unit in 1948 pursuant to the Sustained Yield Forest Management Act of 1944 ("SYFMA"), codified at 16 U.S.C. §§ 583-583i (1988). Congress enacted the SYFMA to promote the economic stability of communities dependent upon the harvesting and sale of timber from federally owned or administered land. Id. § 583. The Act gives the Secretary of Agriculture the discretionary authority to establish sustained-yield units for the benefit of forest-dependent communities. Id. §§ 583-583b. The Secretary must sell timber from sustained-yield units to responsible operators within benefitted communities and without competitive bidding (subject to conditions the Secretary deems necessary). Id. § 583b. Since 1988, the MFPA has been a responsible operator for timber yield from the Vallecitos Unit; La Compania has been a responsible operator since 1992. In 1986, the Forest Service issued a ten-year Carson National Forest Plan ("Carson plan"). The plan incorporated SYFMA objectives relating to the Vallecitos Unit.

Plaintiffs allege that Defendants violated and are presently in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706; the SYFMA; the National Forest Management Act, 16 U.S.C. §§ 1600-1687; and corresponding regulations. They additionally assert that Defendants violated 42 U.S.C. § 1981 and their First and Fifth Amendment rights. In addition to injunctive and declaratory relief, Plaintiffs seek compensatory and punitive damages against the officials personally. Plaintiffs' claims may be categorized as (1) claims relating to the alleged mismanagement of the Vallecitos Unit, and (2) claims involving alleged retaliatory criminal investigations and an accusation of criminal wrongdoing. The facts supporting these claims will be discussed in detail infra.

Defendants have moved to dismiss Plaintiffs' damages claims against the individual Defendants in their personal capacities. Defendants argue that the APA precludes such Bivens claims. The American Civil Liberties Union of New Mexico, as amicus curiae, urges the Court to reject Defendants' assertions in this regard. Defendants also contend that Plaintiffs' section 1981 claim must fail because the statute supposedly does not apply to discriminatory actions of the federal government. Finally, Plaintiffs seek leave to amend their complaint in order to allege post-litigation retaliation. Defendants oppose amendment because they assert that the new allegations are factually insupportable and thus amendment would be futile.

As an initial matter, the Court will grant Plaintiffs leave to amend their complaint to allege post-filing retaliatory conduct. The amended complaint relates to facts that occurred after the filing of Plaintiffs' complaint and after the joinder of Defendant James on May 17, 1994. Defendants oppose amendment not on grounds that permitting amendment would be futile due to legal insufficiency, but because the amended complaint is factually infirm. At this stage, Plaintiffs' allegations must be accepted as true. Defendants' assertions, backed by affidavits, are more appropriate for summary adjudication. See 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1487 at 637 (1990) (leave to amend may be denied if proposed amendment is "legally insufficient on its face."); Pearl Brewing Co. v. Joseph Schlitz Brewing Co., 415 F.Supp. 1122, 1125 (S.D.Tex.1976) (factually-based arguments against amendment "typically cannot be resolved on the pleadings and, in any event, are improperly inquired into at this stage, especially in view of the liberal rules regarding amendment of complaints."). Leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Defendants provide no indication that the proposed amendment is in bad faith or would cause undue prejudice or delay. Permission to amend is accordingly granted — consistent, of course, with the Court's disposition of the motion to dismiss relating to Plaintiffs' Bivens claims, as discussed below.

For the purposes of a motion to dismiss, the material allegations of the complaint must be accepted as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir.1967). Dismissal is appropriate only if "it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Court must construe the pleadings liberally and if any possibility of relief exists, the claims should not be dismissed. Gas-a-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973).

I. WHETHER PLAINTIFFS' BIVENS CLAIMS ARE PRECLUDED BY THE ADMINISTRATIVE PROCEDURE ACT

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court authorized a federal cause of action for monetary damages against individual federal officers alleged to have violated the Fourth Amendment. Id. at 389, 91 S.Ct. at 2001. Subsequent decisions have extended the availability of Bivens actions to alleged violations of other constitutional rights. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (equal protection component of the Fifth Amendment); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (cruel and unusual punishment clause of the Eighth Amendment); National Commodity and Barter Ass'n v. Archer, 31 F.3d 1521 (10th Cir.1994) (free association and expression guarantees of the First Amendment).

Theoretically, the availability of a Bivens remedy has always depended to some extent on the non-availability of alternative congressional remedies. The Supreme Court's recognition of an implied constitutional right of action in Bivens was influenced by the absence of an "explicit congressional declaration that persons so injured ... may not recover money damages ..., but must instead be remitted to another remedy, equally effective in the view of Congress," 403 U.S. at 397, 91 S.Ct. at 2005, and by the absence of any "special factors counselling hesitation in the absence of affirmative action by Congress." Id. at 396, 91 S.Ct. at 2005.

Earlier cases demonstrate that congressional preemption of Bivens claims had to be demonstrated by clear evidence to that effect, and that the adequacy of a given remedy would be considered in construing congressional intent. In Davis, the Court permitted an alleged victim of gender discrimination by a former congressman to bring a Bivens cause of action under the equal protection clause, despite the fact that Congress expressly exempted itself from Title VII coverage. 442 U.S. at 247, 99 S.Ct. at 2278. It permitted a Bivens claim because Congress did not explicitly deny Bivens relief, id., and because victims of constitutional violations such as plaintiff "have no effective means other than the judiciary to enforce these rights, and must be able to invoke the existing jurisdiction of the courts...." 442 U.S. at 242, 99 S.Ct. at 2275. Later, in Carlson, the Court reasoned that legislation may defeat a Bivens claim only if Congress provided "an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." 446 U.S. at 18-19, 100 S.Ct. at 1471. In so holding, the Court rejected the assertion that the Federal Tort Claims Act preempted an implied damages remedy. Id. Additionally, the Court believed that a Bivens remedy is more effective at securing compliance with constitutional mandates than...