Grill v. Quinn, No. 2:10-cv-0757 GEB GGH PS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGregory G. Hollows
Docket NumberNo. 2:10-cv-0757 GEB GGH PS
PartiesJAMES S. GRILL, Plaintiff, v. TOM QUINN, Defendant.
Decision Date17 June 2013

JAMES S. GRILL, Plaintiff,
v.
TOM QUINN, Defendant.

No. 2:10-cv-0757 GEB GGH PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: June 17, 2013


ORDER AND
FINDINGS AND RECOMMENDATIONS

Previously pending on this court's law and motion calendar for January 17, 2013, were the parties' cross-motions for summary judgment, as well as plaintiff's motion to amend the amended complaint and motion to introduce extra-record evidence. Plaintiff appeared at the hearing in pro se. Defendant (hereafter Forest Service) was represented by Alison Garner.

The case, much like the underlying dispute and proceedings, has been long and complex. Plaintiff sought and received a special use permit (SUP) from the Forest Service in order to provide access to his property, found at one time to be landlocked by National Forest lands. The SUP, officially issued in 1998 and lasting 10 years subject to renewal, gave him permission to construct a road and bridge conditioned upon Forest Service approval of the design and consequent environmental impacts. Although the administrative record initially reveals a number of halting steps to obtain approval for the construction, nothing of significance occurred

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until the eleventh hour of the SUP term. The dispute in this case revolves around the Forest Service actions in effectively "terminating" the SUP at this time.

However, recent events have simplified the undersigned's findings and recommendations on the summary judgment motions. Plaintiff Grill no longer owns the property at issue. Therefore, he no longer has standing to seek relief under the Administrative Procedures Act (APA) which provides for a type of injunctive/mandate relief only, nor does he have any standing to seek injunctive relief under a procedural due process rubric. Grill does have standing to seek damages for any found violation of his procedural due process rights. The undersigned finds on the merits that Grill's procedural due process rights were violated. However, sovereign immunity prevents Grill from recovering any damages from the Forest Service (United States).

As explained below, plaintiff's request to introduce documents into the administrative record, filed January 9, 2013, is denied. Plaintiff's motion to amend the complaint is denied.

FACTS1

Plaintiff apparently lived, or had ownership of other property, proximate to the private parcel at issue herein (the "Parcel") in the Tahoe National Forest.2 He purchased the Parcel in the very early 1990s. Access to this Parcel was in part over Forest Service lands, and at least one potential access crossed a creek on Forest Service Lands as well.

Plaintiff had difficulties with his purchased Parcel from the outset. His neighbors believed that plaintiff was going to engage in an unrestrained and damaging-to-the-environment

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development. Plaintiff was also early-on engaged in a back-and-forth access negotiation with the Forest Service. Plaintiff filed a quiet title lawsuit against the neighbors which was ultimately resolved. Also named in the lawsuit was the United States. However, the United States was not served as negotiations over a special use permit for access and bridge construction continued while the threat of litigation was used as a prod for these seemingly interminable negotiations. See Administrative Record (AR) 82, 235, 278, 295, 509, 515, 531.

Due to the threatened litigation in state court, plaintiff and the Forest Service agreed that plaintiff had a right to access his newly acquired parcel over Forest Service property pursuant to the provisions of Alaska National Interest Land Conservation Act (ANILCA § 1323(a)), 16 U.S.C. 3210 (a). See e.g., AR 531. Access required the building and/or the refurbishing of a road, and most importantly for this litigation, the construction of a bridge over Scotchman Creek.

Resolution of the threatened lawsuit required the preparation of an environmental report and the issuance of a SUP by the Forest Service. Plaintiff submitted proposed plans of some sort to the Forest Service, and work commenced on an Environmental Assessment. On or about November 27, 1995, the Environmental Assessment ("EA") was issued followed closely by the FONSI (Finding of No Significant Impact), (AR 481), but the SUP was not issued (according to the exhibits) until November 17, 1998.3 (AR 591, 626.)4 The SUP, (AR 591), was issued for the purpose:

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to gain vehicle access to private property, which is landlocked by National Forest System Lands. Use also includes construction and maintenance of a bridge on
said roadbed and burying and maintaining a 6" or less utility conduit in said roadbed.

Importantly,

2. The Permittee in exercising the privileges granted by this permit shall comply with all applicable State and Federal laws, Executive Orders, and Federal rules and regulations, and shall comply with all State standards for public health and safety, environmental protection, and siting construction, operation, maintenance of or rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards.

Other provisions pertinent to the motions herein:

8. All construction or reconstruction of the road shall be in accordance with plans, specifications, and written stipulations approved by the Forest Service prior to beginning such reconstruction. (See Exhibit B)
***
15. This permit may be terminated or suspended upon breach of any of the conditions herein.
***
20. Unless sooner terminated in accordance with the terms of this permit, this permit shall expire and terminate on December 31, 2007. At that time, if the permittee still needs the road for the purposes for which the permit is granted, the permit will be reissued for successive periods of 10 years. At the time of reissuance, the terms and conditions may be modified and new conditions or stipulations added at the discretion of the Forest Service. (Emphasis added)

For reasons which are not fully explained by plaintiff, progress on plans for the construction proceeded in fits and starts for nearly ten years. See e.g., AR 681-831. However, more activity was exhibited in 2006, and plaintiff appeared "ready to go" in 2007, some few months before the initial SUP was to expire by its own terms. In July of 2007, plaintiff was issued a building permit by Nevada County. (AR 849.) By e-mail to plaintiff, also in July 2007, the Forest Service indicated its approval to begin construction: "The Forest Service has approved your submitted bridge design...[and will] allow immediate construction pending submittal of a stream alteration permit..." (AR 874.) California Fish and Game also approved of the project,

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especially the bridge construction, in 2007 as well. (AR 894.)

However, the just approved construction was halted a scant month or so later due to alleged environmental concerns which had not been addressed in the prior EA analysis. (AR 911.) Cal. Fish and Game thereupon suspended its permit. (AR 918.) Plaintiff was told, "[d]o not proceed with any plans or any surface disturbing activities at the site pending further notification." (Compl., Ex, K; Dkt. no. 49, Ex. D.) On October 5, 2007, plaintiff was given the "back to square one" letter (AR 920) - even worse, in that plaintiff was to be tasked with further large expenditures if he decided to pursue the road and bridge. The Forest Service, now, did not like the bridge plans after all, and stated:

Since so much time has passed since the issuance of the Environmental Analysis, and since your permit expires December 31, 2007, and since engineering stipulations were never issued or agreed upon by both parties [despite the above approval], my decision is that the Environmental Analysis will need to be revised....We will also need to conduct surveys for all the new plants and animals which have been listed as sensitive since 1995. We will not begin any of this until an agreement has been reached and you have provided the funding needing [sic] to complete an adequate analysis.

(Id.)

The initial SUP expired on December 31, 2007. (AR 594.) After plaintiff attempted an informal resolution by letter dated February 4, 2008, (AR 938)5 , the Forest Service

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issued another letter on April 2, 2008, stating that new law had come into effect after the prior EA/FONSI, and plaintiff would, in essence, have to start over at his own expense. (Part of AR 975.) Internal Forest Service emails reflect defendant's opinion that plaintiff was not required to be offered appeal rights because he had failed "to comply with direction in the EA." (AR 941-42.) No appeal rights were given.

Proceeding concurrently with the short-lived approval and cancellation of same, were plaintiff's requests that his SUP be extended for another ten years since the road and bridge were still needed. (AR 825, 922, 930, 938.) See also footnote 5 supra. As noted previously, however, the Forest Service conflated reissuance of the SUP with the fulfillment of all requirements within the SUP and previous environmental analysis. However, there is confusion in the record as it was also indicated that plaintiff had not "returned the signed copy of the renewal for the Maybert Road Permit." (AR 958.) In any event, the Forest Service never reissued the SUP.

PROCEDURAL HISTORY

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