Duarte Nursery, Inc. v. U.S. Army Corps of Eng'rs
| Citation | 17 F.Supp.3d 1013 |
| Decision Date | 22 April 2014 |
| Docket Number | No. CIV. S–13–2095 LKK/DAD.,CIV. S–13–2095 LKK/DAD. |
| Court | U.S. District Court — Eastern District of California |
| Parties | DUARTE NURSERY, INC., a California Corporation; and John Duarte, an individual, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. |
Anthony L. Francois, Pacific Legal Foundation, Sacramento, CA, for Plaintiffs.
Andrew J. Doyle, John Thomas H. Do, Govt., United States Department of Justice, Washington, DC, Kristin B. Peer, Deputy Attorney General, Natural Resources Law Section, Office of the Attorney General, Sacramento, CA, for Defendants.
Plaintiffs own the property that is the subject of this action, and operate it as a nursery growing and selling nursery stock to farmers and others. Complaint (ECF No. 1) ¶ 7.
On February 25, 2013, defendant U.S. Army Corps of Engineers (“Corps”) wrote to plaintiff, stating that it had “determined that you have discharged dredged or fill material into ... waters of the United States, without a [required] Department of the Army (DA) permit,” in violation of Section 404, 33 U.S.C. § 1344, of the Clean Water Act (“the Act”). See Exhibit A (ECF No. 1–1) of the Complaint.1 The Corps “directed” plaintiff to “cease and desist all work in waters of the United States until this violation is resolved.” Exh. A at 2.
The Corps went on to warn plaintiffs of the “[p]otential enforcement actions” that could ensue, and attached an “extract of the law” as an Appendix. Id.; Id., Appendix A (ECF No. 1–1) at 4. Two of the enforcement actions the Corps warned of were “fines” and “imprisonment.” Exh. A at 2. In apparent support of these warnings, the Corps cited, in its “extract of the law,” 33 U.S.C. § 1319(c)(1)(A) and (c)(2)(A), both of which refer to “fine[s]” and “imprisonment” for violations of 33 U.S.C. § 1311. See Appendix A at 4.
The third enforcement action the Corps warned of was “penalties.” Exh. A at 2. In apparent support of this warning, the Corps' “extract of the law” cited 33 U.S.C. § 1319(d), which provides for “penalties” for violation of “any order issued by the Administrator,” as well as for any violations of 33 U.S.C. § 1311. See Appendix A at 4.2
The Corps did not explain in the CDO or the “extract” what law authorized it to “direct” plaintiffs to “cease and desist” their activities in the first place. However, it is undisputed that the Corps issued this document pursuant to its authority to formally notify a person that he is in violation of the Clean Water Act. See 33 C.F.R. § 326.3(c). The applicable regulations instruct the Corps to issue the notification “in the form of a cease and desist order prohibiting any further work” until the violation is resolved. Id. (emphases added).3 Since the regulations instruct the Corps to issue this notification in the form of a “cease and desist order,” the court will henceforth refer to it as such.4
On March 21, 2013, plaintiffs asked the Corps to set forth the factual basis of its determination. Complaint ¶ 52. The Corps provided a “partial response” on April 18, 2013.5 Id., ¶ 53.
On April 23, 2013, California's Central Valley Regional Water Quality Control Board (“Board”) issued a “Notice of Violation” (“NoV”) to plaintiffs. See Exhibit B (ECF No. 1–2) of the Complaint. The NoV asserts that plaintiffs “are in violation” of Section 301, 33 U.S.C. § 1311, of the Act, in that they were “discharging dredged or fill materials” into waters of the United States, including Coyote Creek, without the required permit from the Corps. Exh. B at 2. It also states that plaintiffs are in violation of Section 402 of the Act, 33 U.S.C. § 1342, and Section 13376 of the California Water Code, “for discharging pollutants to Coyote Creek without a permit.” Id. The NoV does not order plaintiffs to stop their violations, but it does notify them that the cited violations subject them to civil liability, and tells them to submit a plan for mitigation of the violation. Id.
In October 2013, plaintiffs filed this suit against the Corps, and against seven officers of the Board in their official capacities. Six of the individuals are “members” of the Board, and one is its Executive Officer. The individual defendants are sued “under the doctrine set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ” and Cardenas v. Anzai, 311 F.3d 929, 934–38 (9th Cir.2002).6
The plaintiffs allege that the federal and state defendants deprived them of property or property rights protected by the Due Process clauses of the Fifth and Fourteenth Amendments. Specifically, because of the federal cease and desist order (“CDO”), and the state NoV, plaintiffs left their wheat crop unattended, losing $50,000 in planting costs. Second, with those documents in effect, plaintiffs would have to disclose them to potential buyers, and thus the defendants have effectively placed a lien on plaintiffs' property. Plaintiffs further allege that defendants acted in contravention of plaintiffs' Fifth and Fourteenth Amendment Due Process rights by issuing the CDO and the NoV without affording plaintiffs a hearing before or after issuing the documents.
For remedies, plaintiffs ask for (1) declaratory judgments that the failure to provide hearings is unconstitutional, (2) an injunction against further enforcement proceedings based upon the CDO and NoV, (3) an injunction requiring defendants to notify those to whom the CDO and NoV were sent, that they are invalid, and (4) a declaratory judgment that the regulations at 33 C.F.R. Part 326 are unconstitutional.
The Corps moves to dismiss the claims against it (Claims 1, 2 and 5), on the grounds that (1) the claims are not ripe for judicial review, and (2) plaintiffs have failed to state a claim for violation of the Fifth Amendment.
The State defendants move to dismiss the claims against them (Claims 3 and 4), on the grounds that the claims (1) are not ripe for judicial review, and (2) are barred by Eleventh Amendment sovereign immunity.
For the reasons that follow, the court will deny the Army Corps' motion to dismiss, and grant the State's.
It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936) ; Assoc. of Medical Colleges v. United States, 217 F.3d 770, 778–779 (9th Cir.2000). On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge.
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994), Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990) ; see also 2–12 Moore's Federal Practice—Civil § 12.30 (2009). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir.2003), Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir.2001). Nonetheless, district courts “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment” when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039.
A dismissal motion under Fed.R.Civ.P. 12(b)(6) challenges a complaint's compliance with the federal pleading requirements. Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give the defendant “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).
To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, this court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).7
“While legal conclusions can provide the framework of a complaint,” neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Iqbal and Twombly therefore prescribe a two-step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
“Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the nonconclusory factual allegations, when assumed to be true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).8 A...
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Duarte Nursery, Inc. v. U.S. Army Corps of Eng'rs
...17 F.Supp.3d 1013DUARTE NURSERY, INC., a California Corporation; and John Duarte, an individual, Plaintiffs,v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.No. CIV. S–13–2095 LKK/DAD.United States District Court, E.D. California.Signed April 22, 2014Filed April 23, Motions grant......