Mariners of Richardson Bay v. Richardson Bay Regional Agency, 88-1880
| Decision Date | 31 March 1989 |
| Docket Number | No. 88-1880,88-1880 |
| Citation | 872 F.2d 429 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. The MARINERS OF RICHARDSON BAY, et al., Plaintiffs/Appellants, v. RICHARDSON BAY REGIONAL AGENCY, et al., Defendants/Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SNEED and NOONAN, Circuit Judges, and STEPHEN V. WILSON, District Judge. *
The instant appeal challenges the constitutionality of a regional ordinance regulating residential mooring in Richardson Bay. Appellants, unincorporated associations and individuals who live in houseboats in Richardson Bay, claim that the district court erred in dismissing their complaint for lack of subject matter jurisdiction and for failure to state a claim. They further claim that the district court erred in denying them leave to amend. We affirm the dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim. We also affirm the denial of leave to amend the complaint as to all but the Endangered Species Act ("ESA") claim. As to that claim, although we have grave doubts about its viability, we feel it was improper to preclude Appellants from having their ESA claim adjudicated on a more complete record.
On July 9, 1987, the Richardson Bay Regional Agency ("RBRA"), a joint powers agency consisting of Marin County and the cities of Sausalito, Mill Valley, Belvedere, and Tiburon, enacted Ordinance No. 87-1 ("Ordinance") to regulate the anchoring of vessels in Richardson Bay. The Ordinance generally prohibits persons from anchoring a vessel for more than 72 hours without obtaining a permit from the harbormaster, from living aboard an anchored or moored houseboat or vessel for more than 30 days, and from discharging noxious chemicals or foreign matter into the waters of the harbor. The Ordinance allows RBRA to seek injunctive relief and penalties for violations.
On December 29, 1987, appellants filed this action against the Richardson Bay Regional Agency, the San Francisco Bay Conservation and Development Commission ("BCDC"), the county of Marin, the cities of Sausalito, Mill Valley, Belvedere, and Tiburon, and various officials of these public entities. Appellants are two unincorporated associations of approximately 100 persons who are the "Masters and crew of divers vessels in navigation, anchored or moored in the navigable waters, wetlands and landfill of Richardson Bay." Complaint at 6. Appellants allege that they are "seamen" as defined in 28 U.S.C. Sec. 1916, who make their living in maritime or interstate commerce, "make their homes aboard their respective vessels in Richardson Bay," and engage in recreational, commercial, maritime and religious activities, in public and in private, while moored in Richardson Bay. Complaint at 6-7.
Appellants' complaint alleges eight claims for relief and seeks a mixture of damages, injunctive relief, and declaratory relief to rectify an alleged deprivation of their rights threatened by enforcement of the Ordinance. These claims, as characterized by appellants are: 1) to prevent imminent taking of appellants' property where jurisdiction is preempted by federal and state law; 2) for impermissible taking of appellants' property and "destroying their homes and habitat;" 3) for "[d]efendants' betrayal of the public trust;" 4) for unlawful taking in excess of the appellees' power of eminent domain; 5) for deprivation of appellants' civil rights and privileges guaranteed by the United States Constitution and the Federal Civil Rights Act, 42 U.S.C. Sec. 1983; 6) for appellees' conspiracy to interfere with constitutional rights under 42 U.S.C. Secs. 1985(2), 1985(3), and 1988; 7) a pendent state law claim for appellees' unlawful conduct in creating a "subordinate local state agency"; and 8) a pendent state law claim for violations of the California Environmental Quality Act ("CEQA"), Cal.Pub.Resources Code Secs. 21000-177.
On January 4, 1988, appellants' request for a temporary restraining order was denied and the parties were directed to address the question of federal jurisdiction. Appellees moved to dismiss the complaint on a number of substantive and procedural grounds.
By Order dated February 24, 1988, the district court granted appellees' motion and dismissed the complaint without leave to amend. The court ruled that appellants' preemption claims were not ripe for decision; that even if they were ripe, none of the statutes cited by the appellants preempted the Ordinance; that appellants' constitutional claims were not ripe for decision; that appellants had failed to state a claim under the civil rights statutes; that appellants' third claim for breach of the public trust did not state a federal claim; and that the court lacked jurisdiction over appellants' pendent state law claims. Appellants timely appealed and this Court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.
Appellate review of an order granting a motion to dismiss under Rule 12(b)(6) is de novo. Ascon Properties, Inc. v. Mobil Oil Co., No. 87-5807, slip op. at 822 (9th Cir. January 31, 1989); Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987). "Denial of leave to amend after a responsive pleading has been filed is reviewed for abuse of discretion, ... but such denial is 'strictly' reviewed in light of the strong policy permitting amendment." Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1206 (9th Cir.1988) (citations omitted).
Appellants claim that the Ordinance is preempted by a host of federal constitutional and statutory provisions, 1 and that the district court has jurisdiction over their claims. The district court initially concluded that the preemption claims were not ripe for
review since appellants had not sought a permit under the Ordinance. The lower court went on to hold that none of the statutes alleged preempts the Ordinance and that Appellants could not state a claim under any of the provisions. While we conclude that the preemption claims are, in fact, ripe for review, we agree with the district court that the Ordinance is not preempted by the federal admiralty laws, the ESA, or the NEPA. In addition, the district court correctly determined that appellants cannot currently state a claim under these provisions.
The district court ruled that the preemption claims were not ripe for review because appellants had not sought a permit under the Ordinance. In support of this conclusion, the lower court cited Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm'n, 461 U.S. 375, 389 (1983) for the proposition that "the existence of an actual preemption conflict cannot be determined until state regulation has been actually applied in a particular case." Memorandum of Opinion and Order of District Court at 4.
This conclusion is incorrect. In Arkansas Electric, the Court ruled that the mere assertion of jurisdiction by a local utility commission did not create a sufficiently ripe conflict to allow the Court to adjudicate any preemption claims. Until the local commission had actually set any rates, any conflict was simply too "hypothetical" to warrant federal intervention.
The district court here found that since appellants had not sought a permit under the Ordinance, Arkansas Electric mandated dismissal. That case is distinguishable, however, because there, the local body had not acted in any concrete fashion whereas here, the RBRA has passed an ordinance. Moreover, the Ordinance prohibits "[l]iving aboard a houseboat or vessel anchored or moored offshore for more than 30 days" regardless of whether a permit has been obtained. A permit only allows the mooring of a vessel or houseboat for periods of less than 30 days. Thus, appellants' failure to seek a permit should not prevent them from challenging the Ordinance on preemption grounds.
The ESA does not preempt the Ordinance and cannot provide a basis for jurisdiction. Section 1535 of the ESA specifically addresses the issue of preemption. Section 1535(a) authorizes federal-state cooperation in the endangered species area while Section 1535(f) provides that only certain state laws shall be preempted. 3 Since the Ordinance does not apply "with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species", it is not preempted under this section.
The Ordinance is not preempted by the NEPA since that statute only applies to federal agencies. See 42 U.S.C. Sec. 4332; Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th Cir.1975). Moreover, insofar as appellants did not raise this argument below, we need not consider it on appeal. Fendler v. U.S. Bureau of Prisons, 846 F.2d 550, 555 & n. 4 (9th Cir.1988); Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1079 (9th Cir.1988).
Appellants claim that the district court has jurisdiction over their claims pursuant to the "General Maritime Law of the United States" under the Constitution, the Admiralty Extension Act of 1948, Rule 9(h) of the Federal Rules of Civil Procedure, and 28 U.S.C. Sec. 1333(1), "where the health, safety and welfare of American mariners and their vessels are directly threatened by the adoption and immediate enforcement of [the Ordinance]." Appellants' Opening Brief at 24. When Congress acts in the admiralty area, state regulation is permissible, absent a clear conflict...
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