Friends of Moon Creek v. Diamond Lake Improvement Association Inc et al, No. 2:2013cv00396 - Document 71 (E.D. Wash. 2014)
Court Description: ORDER DENYING MOTIONS TO DISMISS; denying dft Phil Anderson's 39 Motion to Dismiss for Lack of Jurisdiction; denying dft Sharon Sorby's 43 Motion to Dismiss; denying dft DLIA's 51 Motion to Dismiss. Signed by Senior Judge Justin L. Quackenbush. (LE, Case Administrator)
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Friends of Moon Creek v. Diamond Lake Improvement Association Inc et al Doc. 71 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FRIENDS OF MOON CREEK, an unincorporated association, ) ) ) ) No. CV-13-0396-JLQ Plaintiff, ) ) ORDER DENYING MOTIONS ) TO DISMISS vs. ) ) DIAMOND LAKE IMPROVEMENT, ) ASSOCIATION, INC. et al, ) ) Defendants. ) ___________________________________ ) BEFORE THE COURT are the Motions to Dismiss (ECF Nos. 39, 43, & 51) filed on behalf of Defendants Phil Anderson, Director of Washington Department of Fish and Wildlife (“Anderson”), Sharon Sorby, Coordinator of Pend Oreille County Noxious Weed Control Board (“Sorby”), and Defendant Diamond Lake Improvement Association (“DLIA”). The court heard oral argument on the Motions on January 23, 2014. James Schwartz appeared for Anderson. Thomas Luciani participated on behalf of Sorby, and Ryan Poole appeared for DLIA. Plaintiff was represented at the hearing by Mark Wilson. After the hearing, the court allowed the parties to file supplemental briefs. The court has reviewed and considered those submissions. I. Standard for Motion to Dismiss A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the pleading. Under Fed.R.Civ.P. 8, a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. This 27 28 ORDER - 1 Dockets.Justia.com 1 standard "does not require detailed factual allegations, but it demands more than an 2 unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 3 U.S. 662, 678 (2009). In order to survive a motion to dismiss, a pleading must contain 4 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 5 face. Id. "Threadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice." Id. "When there are well-pleaded factual 7 allegations, a court should assume their veracity and then determine whether they 8 plausibly give rise to an entitlement to relief." Id. at 679. 9 II. Factual Allegations - Second Amended Complaint 10 On a motion to dismiss, the court accepts as true well-pleaded factual allegations. 11 Therefore, for the purposes of these Motions, the facts are as pled in the Second 12 Amended Complaint ("SAC" at ECF No. 36). Plaintiff Friends of Moon Creek (an 13 association of property owners living in Moon Creek Estates) claims that Defendants 14 have trespassed and damaged their property. 15 Defendants have engaged in a project to reduce the water level of Diamond Lake which 16 has involved herbicide applications on Moon Creek, stream dredging, beaver dam 17 destruction, and trapping and killing beavers. 18 Specifically Plaintiff claims that The Defendants are Diamond Lake Improvement Association (“DLIA”)(an 19 association of property owners living on or near Diamond Lake), Sharon Sorby, 20 coordinator of the Pend Oreille County Noxious Weed Control Board; and Phil 21 Anderson, Director of the Department of Fish & Wildlife. 22 Plaintiff contends that Defendants' activities on Moon Creek began in the summer 23 of 2012. Specifically, the first herbicide application complained of is alleged to have 24 occurred on July 6, 2012, when a "propeller driven air boat...was launched into Moon 25 Creek over the strenuous objections of Plaintiff's members" and Plaintiff's members were 26 allegedly "physically threatened by the boat operators". (SAC ¶ 4.3). Plaintiff also 27 alleges it learned in summer 2012, that a Hydraulic Project Approval (“HPA”) had been 28 ORDER - 2 1 issued to allow for removal of vegetation and installation of beaver tubes. (SAC ¶ 4.7). 2 Plaintiff alleges that in the Fall of 2012 DLIA trespassed on Plaintiff’s members’ land, 3 that beaver dams were destroyed, and beavers trapped and killed. (SAC ¶ 4.8). 4 Plaintiff contends that again in September 2013, Diamond Lake Improvement 5 Association ("DLIA") was issued a Hydraulic Project Approval ("HPA") to allow for 6 stream dredging, modification/removal of beaver dams, etc. On September 23, 2013, 7 DLIA allegedly installed a large culvert through a beaver dam. (SAC ¶ 4.12). Plaintiff 8 claims that DLIA and the Dept of Fish & Wildlife have advised that additional HPAs 9 will be issued. (SAC ¶ 4.14). 10 Section 5 of the SAC is entitled “Claims for Relief” and contains eight paragraphs. 11 Therein it appears Plaintiff alleges under 42 U.S.C. 1983 a Fifth Amendment taking of 12 property. (SAC ¶ 5.2 & 5.3). Plaintiff contends that Defendant Sorby violated RCW 13 17.10.170 by issuing a permit to DLIA without proper statutory notice. (SAC ¶ 5.4). 14 Plaintiff alleges that Defendant Anderson of the Department of Fish & Wildlife violated 15 state law by issuing a permit to dredge and destroy beaver dams. (SAC ¶ 5.5 & 5.6). 16 In sum, Plaintiff contends that Moon Creek is a non-navigable waterway and that 17 the lands underlying the waterway are owned by the individual property owners. 18 Plaintiff contends that Defendants’ actions constitute a taking of property without just 19 compensation in violation of the Fifth Amendment. Plaintiff seeks an injunction 20 enjoining Defendants from engaging in unlawful conduct, entering declaratory judgment, 21 and awarding attorney fees. Plaintiff no longer seeks compensatory damages in this 22 action against Anderson or Sorby1. 23 24 25 1 There is an ambiguity as to whether Plaintiff is still seeking compensatory damages against 26 DLIA for trespass. Paragraph 1.2 of the SAC states that Plaintiff “seeks money damages” for injury by 27 DLIA. However, the Prayer for Relief (ECF No. 36, p. 17-18) does not seek compensatory damages. 28 ORDER - 3 1 III. Discussion 2 A. Defendant Anderson of Dept. of Fish & Wildlife's Motion to Dismiss (ECF 3 No. 39) - The Department argues that the case should be dismissed for several reasons: 4 1) the State is immune from suit under the Eleventh Amendment; 2) under 42 U.S.C. § 5 1983, Plaintiff must sue an individual, not the state agency or person acting in his official 6 capacity; and 3) Plaintiff fails to state a claim because this was a private project 7 conducted by the DLIA who was not acting on behalf of the state. Plaintiff contends that 8 amendment of the pleadings cured any jurisdictional problems. Plaintiff dropped 9 damage claims against the state entities and "the supervisory individual of each 10 governmental entity was named in his or her official capacity." (ECF No. 45, p. 2). 11 Plaintiff contends that the suit seeks prospective injunctive relief and thus is not barred 12 by 11th Amendment immunity. 13 “Section 1983 provides a federal forum to remedy many deprivations of civil 14 liberties, but it does not provide a federal forum for litigants who seek a remedy against 15 a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such 16 suits...”. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). A suit against 17 a state official in his or her official capacity is not a suit against the official but rather is 18 a suit against the official’s office. Id. at 71. “As such, it is no different from a suit 19 against the State itself ... We hold that neither a State nor its officials acting in their 20 official capacities are “persons” under § 1983.” Id. 21 As a general rule, a suit against Defendant Anderson in his official capacity would 22 be barred by Eleventh Amendment immunity. However, Plaintiff argues that the so- 23 called Ex parte Young, 209 U.S. 123 (1908) exception applies. 24 Amendment erects a general bar against federal lawsuits brought against a state. It does 25 not, however, bar actions for prospective declaratory or injunctive relief against state 26 officers in their official capacities for their alleged violations of federal law.” Coalition 27 to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133-34 (9th Cir. 2012). In 28 ORDER - 4 “The Eleventh 1 determining whether the Ex parte Young exception applies, the court looks to the 2 allegations in the complaint. See Verizon v. Maryland Public Serv. Comm., 535 U.S. 635, 3 645 (2002)(“In determining whether the doctrine of Ex parte Young avoids an Eleventh 4 Amendment bar to suit, a court need only conduct a straightforward inquiry into whether 5 the complaint alleges an ongoing violation of federal law and seeks relief properly 6 characterized as prospective.”). 7 In the SAC (ECF No. 36), Plaintiff seeks injunctive and declaratory relief. (SAC 8 p. 16-17). Plaintiff has clearly alleged a threat of future action: “Representatives of 9 defendants DLIA and DFW have advised members of plaintiff, since September 19, 10 2013, that additional HPAs covering Plaintiff’s member’s lands, will be issued shortly.” 11 (SAC, ¶ 4.14). The SAC also contains the allegation that the “conduct of Defendants 12 individually and collectively has caused, and if allowed to continue will further cause, 13 Plaintiff’s affected members to suffer irreparable injuries...” (SAC ¶ 5.7). 14 The Supreme Court has stated that the Ex parte Young analysis “does not include 15 an analysis of the merits of the claim” and that generally an allegation of an ongoing 16 violation of federal law will be sufficient.” Verizon, 535 U.S. at 646. Anderson argues 17 that there is no ongoing violation to enjoin, because the HPA permit has already been 18 issued. (ECF No. 67, p. 2). Anderson cites no case law in his Supplemental Brief in 19 support of the argument that once a permit has been issued, there can be no ongoing 20 violation of law that is subject to injunctive relief. Anderson further argues that Plaintiff 21 is not seeking to invalidate the HPA that was issued, and the fact that the HPA remains 22 in effect does not matter. The court disagrees with Anderson’s arguments. 23 For the purposes of a motion to dismiss, the court looks to the allegations of the 24 operative pleading, here the SAC. Plaintiff has alleged that additional HPAs will be 25 issued causing them future harm. Anderson had contended in his briefing that there are 26 no pending applications for future permits. (See for example ECF No. 60, p. 2). 27 However, that contention presents a question of fact not appropriate for decision on a 28 ORDER - 5 1 motion to dismiss. Plaintiffs have made an allegation of ongoing future harm. 2 Additionally, although the court does not look beyond the pleadings for purposes of a 3 motion to dismiss, the briefing pertaining to the Motion for Preliminary Injunction 4 establishes that the HPA previously issued remains active. 5 The Department of Fish and Wildlife contends that this court has jurisdiction only 6 if the Director, acting in his official capacity, has threatened to take some future action 7 that may violate federal law. The Department contends that there are no pending 8 applications for future permits, and no current orders requiring any specific performance. 9 However, some of the HPAs have been filed as exhibits to declarations and the permits 10 do not expire until 2016 or 2017. (See for example ECF No. 4-9). Patrick Chapman, an 11 employee of the Dept. of Fish & Wildlife filed a declaration stating that there is an active 12 HPA # 127229-03, issued to DLIA for dredging and installation of beaver dam tubes. 13 (ECF No. 39-1, ¶ 2(b)(iii)). 14 Anderson’s final argument that Plaintiff fails to state a claim because the dredging 15 operation was a private undertaking of the DLIA is essentially an argument that the state 16 action component of the Section 1983 claim is lacking. Anderson argues that merely 17 issuing an HPA does not amount to “state action” for purposes of Section 1983 liability. 18 Anderson argues by analogy, that when the State issues a hunting or fishing license to 19 an individual, and that individual trespasses on private land, such trespass is not state 20 action. (ECF No. 67, p. 7). It is true that issuing a license or permit is not necessarily 21 state action for purposes of Section 1983 liability. See Dezell v. Day Island Yacht Club, 22 796 F.2d 324, 328 (9th Cir. 1986)(“The Liquor Board did not violate its own regulations 23 as [Plaintiff] argues, but simply issued an appropriate private club license, in accordance 24 with state law. The state agency was not subtly reinforcing private discrimination, as 25 was the case in Moose Lodge.”). In Moose Lodge, the Supreme Court did find that 26 certain aspects of the Liquor Control Board’s regulations could be viewed as in effect 27 placing the sanction of the state on the racially discriminatory policies. Moose Lodge No. 28 ORDER - 6 1 107 v. Irvis, 407 U.S. 163, 173 (1972). However, as a general matter, it is correct that 2 mere state regulation does not by itself convert a private actor’s conduct into state action 3 for purposes of section 1983 liability. See for example Jackson v. Metropolitan Edison, 4 Co., 419 U.S. 345, 350 (9th Cir. 1974); Mathis v. Pacific Gas & Elec., 891 F.2d 1429, 5 1431 (9th Cir. 1989). 6 The SAC alleges joint and concerted action among the Defendants. The SAC 7 plausibly alleges that DLIA was empowered by the HPA to trespass on Plaintiff’s 8 members’ property, and that the DLIA believed they were acting under authority of the 9 HPA when the alleged trespassing and property damage occurred. Plaintiff further 10 alleges that they brought the trespassing to the attention of the Department of Fish and 11 Wildlife which “failed and refused” to properly enforce the HPA. (SAC ¶ 4.9). The 12 Motion to Dismiss (ECF No. 39) is DENIED. 13 14 B. Defendant Sorby (of Weed Control Board) Motion to Dismiss (ECF No. 43) Sorby argues that she is immune from suit pursuant to state statute: RCW 17.10.134. 15 Sorby contends that she was acting within the scope of her employment, that the statute 16 applies, and therefore she is immune from suit. The statute on which Defendant Sorby 17 relies, RCW 17.10.134 states in relevant part: "individual members or employees of a 18 county noxious weed control board are personally immune from civil liability for 19 damages arising from actions performed within the scope of their official duties or 20 employment." The court is not aware of any Washington state case law discussing the 21 scope of this statutory immunity provision. However, a state statute cannot shield Sorby 22 from a claim of a federal civil rights violation under Section 1983. See Romstad v. 23 Contra Costa County, 41 Fed.Appx. 43 (9th Cir. 2002) citing Wallis v. Spencer, 202 F.3d 24 1126, 1144 (9th Cir. 2000)(“Immunity under § 1983 is governed by federal law; state law 25 cannot provide immunity from suit for federal civil rights violations.”). 26 The court raised at oral argument whether Sorby intended to argue, as does 27 Anderson, entitlement to Eleventh Amendment immunity. Sorby did not articulate that 28 ORDER - 7 1 argument in her opening brief, nor in the Supplemental Brief (ECF No. 66). The court 2 raised the issue of whether the Pend Oreille County Weed Control Board is an 3 instrumentality of the State for Eleventh Amendment immunity purposes. In Beentjes 4 v. Placer County Air Pollution Control Dist., 397 F.3d 775 (9th Cir. 2005), the Circuit 5 held that a county air pollution control district was not entitled to sovereign immunity 6 under the Eleventh Amendment. The Circuit noted that “while county action is generally 7 state action for purposes of the Fourteenth Amendment, a county defendant is not 8 necessarily a state defendant for purposes of the Eleventh Amendment.” Id. at 784 n. 10. 9 Sorby has not pursued the Eleventh Amendment argument, and the court does not find 10 she is entitled to immunity from Plaintiff’s Section 1983 claims under the Eleventh 11 Amendment or RCW 17.10.134. 12 Defendant Sorby’s Motion to Dismiss is DENIED. 13 C. Diamond Lake's Motion to Dismiss (ECF No. 51) - DLIA argues that this 14 action should be dismissed for lack of federal subject matter jurisdiction. DLIA’s 15 Motion states that it agrees the other two Defendants should be dismissed, and that 16 would leave only a trespass claim against it, which should not be adjudicated in federal 17 court. As set forth supra, the other Defendants have not established that they are entitled 18 to Eleventh Amendment immunity. Further, although DLIA is a private actor, there are 19 allegations that DLIA acted individually and “in concert” with the other Defendants. See 20 SAC ¶ 5.2, 5.3, 5.6-5.8. A private party can be liable under Section 1983 under a “joint 21 action” theory of liability. Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989). “One 22 way to establish joint action is to demonstrate a conspiracy ... Joint action also exists 23 where a private party is a willful participant in joint action with the State or its agents. 24 Private persons, jointly engaged with state officials in the challenged action, are acting 25 under color of law for purposes of § 1983 actions.” Id. at 1154. Plaintiff has not alleged 26 a conspiracy, but it has alleged collective action. Counsel for Sorby, at oral argument, 27 candidly admitted that the Weed Control Board’s actions were prompted by the DLIA. 28 ORDER - 8 1 Additionally, it was allegedly Sorby who provided notice that the spraying would occur, 2 but DLIA who hired and paid a private contractor to conduct the spraying. The DLIA 3 also obtained the HPA from the Department of Fish & Wildlife. 4 In its Supplemental Brief (ECF No. 69), DLIA argues that the Pend Oreille County 5 Commissioners had declared an emergency relating to water levels on Diamond Lake in 6 2012, and that the actions taken by DLIA were to abate a public nuisance. The SAC 7 does not allege that an emergency had been declared. Further, whether DLIA’s actions 8 were necessary in response to an emergency situation would present a question of fact. 9 Additionally, DLIA relies on cases such as Miller v. Schoene, 276 U.S. 272 (1928) and 10 In re Property Located at 14255 53rd Ave Tukwila, 120 Wash.App. 737 (2004), which 11 are easily distinguishable. In Miller, the destruction of red cedar trees in order to prevent 12 infection of apple orchards was carried out pursuant to state statute. The court found the 13 state was “under the necessity of making a choice between the preservation of one class 14 of property and that of the other wherever both existed in dangerous proximity”. Id. at 15 279. The Miller court noted that the legislature had made the choice as to which 16 property was of greater value to the public. In In re Property, the Governor had 17 proclaimed an emergency pertaining to the citrus longhorned beetle and authorized the 18 destruction of potential host trees near where the beetles had escaped quarantine. The 19 court held that “the government will not have a constitutional obligation to compensate 20 for property damage, if the damage is necessary to contain or abate a public calamity.” 21 120 Wash.App. at 752. In the case at bar, the SAC does not allege that the rising water 22 level on Diamond Lake was an emergency or public calamity, nor does it allege that the 23 actions taken by Defendants were necessary remedial actions. Thus, DLIA’s argument 24 raises factual issues outside the pleadings, which are not considered for the purposes of 25 a motion to dismiss. 26 DLIA’s Motion to Dismiss (ECF No. 51) was based primarily on an argument that 27 the court lacked jurisdiction over Anderson and Sorby. The court has rejected those 28 ORDER - 9 1 arguments, and DLIA’s Motion to Dismiss is also DENIED. 2 IV. Conclusion 3 The Defendants have not established their immunity from suit and have thus failed 4 to establish a lack of subject matter jurisdiction. Under the Supreme Court’s Verizon 5 decision, the court looks only at the allegations in the complaint to determine if the Ex 6 parte Young exception applies. The SAC plausibly alleges an ongoing violation of law, 7 and Plaintiff seeks prospective relief in the form of injunctive and declaratory relief. 8 Defendant Sorby has not established, or even clearly argued, that she is entitled to 9 Eleventh Amendment immunity, and the state statute she relies on does not shield her 10 from federal civil rights claims. Defendant DLIA’s Motion rests in part on the other 11 Defendants failed Motions and is also Denied. 12 IT IS HEREBY ORDERED: 13 1. Defendant Phil Anderson’s, the Director of the Department of Fish and Wildlife, 14 15 16 Motion to Dismiss (ECF No. 39) is DENIED. 2. Defendant Sharon Sorby’s, the Coordinator of the Pend Oreille County Noxious Weed Control Board, Motion to Dismiss (ECF No. 43) is DENIED. 17 3. Defendant DLIA’s Motion to Dismiss (ECF No. 51) is DENIED. 18 IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to 19 20 counsel. Dated this 27th day of February, 2014. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 ORDER - 10
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