West v. Johnson et al, No. 3:2008cv05741 - Document 51 (W.D. Wash. 2009)
Court Description: ORDER GRANTING WASHINGTON STATE DEPARTMENT OF TRANSPORTATION'S FRCP 12 (b)(6) MOTION TO DISMISS, AND DEFENDANT ENVIRONMENTAL HEARINGS OFFICE'S FRCP 12 (b)(6) MOTION TO DISMISS, granting 23 Motion to Dismiss Party; granting 26 Motion to Dismiss. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to plaintiff @ Olympia address . Modified on 6/2/2009 (JL).
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West v. Johnson et al Doc. 51 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ARTHUR WEST, 11 Plaintiff, 12 13 14 15 16 17 18 CASE NO. C08-5741RJB v. STEPHEN L. JOHNSON, U.S. EPA ADMINISTRATOR, U.S. SECRETARY OF COMMERCE, WASHINGTON STATE DEPARTMENT OF ECOLOGY, ENVIRONMENTAL HEARINGS OFFICE, STATE OF WASHINGTON, PORT OF OLYMPIA, CITY OF OLYMPIA, WEYERHAEUSER, LOTT, FEDERAL RAILROAD ADMINISTRATION, WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, 19 ORDER GRANTING WASHINGTON STATE DEPARTMENT OF TRANSPORTATION’S FRCP 12 (b)(6) MOTION TO DISMISS, AND DEFENDANT ENVIRONMENTAL HEARINGS OFFICE’S FRCP 12 (b)(6) MOTION TO DISMISS Defendants 20 This matter comes before the Court on Defendant Washington Department of 21 22 Transportation’s (“WSDOT”) FRCP 12 (b)(6) Motion to Dismiss (Dkt. 23) and Defendant 23 Environmental Hearings Office’s FRCP 12 (b)(6) Motion to Dismiss (Dkt. 26). The Court has 24 considered the pleadings filed in support of and in opposition to the motions and the file herein. I. 25 FACTUAL AND PROCEDURAL BACKGROUND 26 A. FACTS 27 On December 12, 2008, Plaintiff, pro se, filed this suit asserting claims under several 28 ORDER Page 1 Dockets.Justia.com 1 federal and state statutes. Dkt. 1. Plaintiff broadly asserts that some or all the Defendants have 2 violated the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., the Coastal Zone Management 3 Act (“CZMA”), 16 U.S.C. § 1451 et seq., and the National Environmental Policy Act (“NEPA”), 4 42 U.S.C. § 4321 et seq. Id. Plaintiff also alleges that the City of Olympia, the Port of Olympia, 5 and WSDOT have withheld public records regarding the Intermodal Infrastructure Enhancement 6 Project and East Bay Redevelopment area, citing Washington’s Public Records Act, RCW 42.56 7 et seq. Id. 8 Additionally, as is relevant for WSDOT’s pending motion, Plaintiff’s Complaint alleges 9 that: 10 By expending federal funds for the Port of Olympia Intermodal Infrastructure Enhancement Project and related development without an [Environmental Impact Statement] or other adequate assessment of regional and cumulative impacts, including those related to water quality, the CZMA, and CWA compliance, the Port [of Olympia], WSDOT and the [Federal Railroad Administration] violated NEPA, [for which Plaintiff is entitled to relief.] 11 12 13 Dkt. 1, at 11. Plaintiff seeks an: 14 [I]mmediate injunction . . . prohibiting further violations of the CWA . . . and suspending construction of the East Bay Redevelopment, the Cargo Yard until the CWA compliance can be assured further, that the Intermodal Infrastructure Enhancement Project be enjoined until all public records have been disclosed and a proper [Environmental Impact Statement] conducted under NEPA for it and all related and interconnected projects. 15 16 17 18 Dkt. 1, at 11-12. 19 In regard to the Environmental Hearings Office, Plaintiff asserts that “the State of 20 Washington, the WSDOE, and the Environmental Hearings Office have failed to properly 21 implement the CZMA as required by the states [sic] voluntary agreement, and a cause of action 22 for declaratory relief exists to declare that such implementation is necessary.” Dkt. 1, at 4. 23 Plaintiff further alleges that “the State Environmental Hearings Office is unlawfully dominated by 24 private entities and refuses to perform its duties to apply and enforce the [CWA] or the 25 [CZMA].” Dkt. 1, at 6. Plaintiff seeks a “declaratory ruling that the State of Washington, the 26 [Washington State Department of Ecology], and the Environmental Hearings Office be required 27 to either implement and enforce the CZMA or return the CZMA grant funds to the federal 28 ORDER Page 2 1 government.” Dkt. 1, at 12. 2 B. BACKGROUND INFORMATION ON THE ENVIRONMENTAL HEARINGS OFFICE 3 The Environmental Hearings Office is a quasi-judicial state agency under RCW 4 43.21B.005 consisting of five administrative tribunals which are forums for certain adjudicative 5 proceedings. Two of those administrative tribunals are the Shoreline Hearings Board and 6 Pollution Control Hearings Board, which hear appeals from the Washington Department of 7 Ecology’s determinations regarding the CWA and CZMA. See RCW 43.21B and RCW 90.58. 8 C. PENDING MOTIONS 9 WSDOT now moves for dismissal of Plaintiff’s claims pursuant to Fed. R. Civ. P. 10 12(b)(6), arguing that: 1) it is entitled to Eleventh Amendment immunity for the federal claims 11 asserted against it, 2) there is no material difference in Plaintiff’s NEPA challenge to WSDOT’s 12 alleged decision to approve and construct the Port of Olympia’s Intermodal Infrastructure 13 Enhancement Project that was dismissed by Judge Leighton in case number C06-5516RBL on 14 Eleventh Amendment immunity grounds and Plaintiff’s claim in this suit that WSDOT’s alleged 15 expenditure of federal funds for the project violated NEPA, and 3) the Eleventh Amendment bars 16 Plaintiff’s state law claim. Dkts. 23, and 42. 17 Washington’s Environmental Hearings Office now moves for dismissal of Plaintiff’s claims 18 pursuant to Fed. R. Civ. P. 12(b)(6), arguing that: 1) the Eleventh Amendment bars Plaintiff’s 19 claims against it, and 2) to the extent Plaintiff is complaining against a particular decision of one 20 of the Environmental Hearings Office’s tribunals, his claim would be an impermissible collateral 21 attack on a decision, it is barred by the doctrine of quasi judicial immunity, and his proper remedy 22 would be to appeal the decision following Washington’s Administrative Procedures Act. Dkts. 26 23 and 41. 24 Plaintiff files a Response to the motions, arguing: 1) Washington’s participation in the 25 “State Permit Program of the [CWA] and the State of Washington’s voluntary submission to the 26 federal CZMA program . . . present state and federal issues that require careful analysis to 27 determine whether the state has waived its 11th Amendment immunity,” and 2) it is “not equitable 28 ORDER Page 3 1 to require Plaintiff to maintain a separate state action when NEPA . . . operates upon the same 2 ‘nucleus of facts’ as a claim under the state Public Records Act for state information regarding a 3 federally financed project.” Dkt. 47. 4 II. 5 A. DISCUSSION MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM STANDARD 6 A court may dismiss a claim if it appears beyond doubt that the plaintiff can prove no set 7 of facts to support the claim that would entitle the plaintiff to relief. Keniston v. Roberts, 717 8 F.2d 1295, 1300 (9th Cir. 1983), citing Conley v. Gibson, 355 U.S. 41, 45-56 (1957). Dismissal 9 may be based on either the lack of a cognizable legal theory or the absence of sufficient facts 10 alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 11 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in 12 the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). However, a plaintiff 13 must plead factual allegations with specificity; vague and conclusory allegations of fact fail to 14 state a claim for relief. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988). 15 While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 16 allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more 17 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 18 do. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1968-1969 (May 21, 2007) (internal 19 citations omitted). Factual allegations must be enough to raise a right to relief above the 20 speculative level. Id. If a claim is based on a proper legal theory but fails to allege sufficient 21 facts, the plaintiff should be afforded the opportunity to amend the complaint before dismissal. 22 Keniston v. Roberts, 717 F.2d at 1300. If the claim is not based on a proper legal theory, the 23 claim should be dismissed. Id. 24 B. ELEVENTH AMENDMENT IMMUNITY 25 “As the Supreme Court has applied the Eleventh Amendment, an unconsenting State is 26 immune from suits brought in federal courts by her own citizens as well as by citizens of another 27 State.” Pittman v. Oregon Employment Dept., 509 F.3d 1065, 1071 (9th Cir. 2007) (internal 28 ORDER Page 4 1 quotations omitted). State immunity extends to state agencies. Puerto Rico Aqueduct and Sewer 2 Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-46 (1993). 3 A state may waive its Eleventh Amendment immunity. Pittman, at 1071. “A waiver of 4 Eleventh Amendment immunity must unequivocally evidence the state's intention to subject itself 5 to the jurisdiction of the federal court.” Hill v. Blind Industries and Services of Maryland, 179 6 F.3d 754, 758 (9th Cir. 1999) (internal citations omitted). Congress may also abrogate a state's 7 Eleventh Amendment immunity. Id. Congressional intent to abrogate immunity “must be 8 unmistakably clear in the language of the statute, so the courts may be certain of Congress' intent 9 and so the state has fair warning if it wishes to oppose that legislation.” Id. 10 1. 11 NEPA CLAIMS AGAINST WSDOT The Eleventh Amendment bars an action alleging a violation of NEPA brought directly 12 against a state or one of its agencies. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, (9th Cir. 13 1992). There is no evidence that either of these two state agencies waived sovereign immunity 14 here. To the extent that Plaintiff makes NEPA claims against WSDOT or the Environmental 15 Hearings Office those claims should be dismissed as both state agencies are immune from such a 16 suit. 17 2. 18 CWA CLAIMS Plaintiff argues that by participating in the regulatory scheme under the CWA, the state 19 agencies have waived their Eleventh Amendment immunity. Dkt. 47. “When Congress enacted 20 the Clean Water Act citizen suit provision, it specified that it was legislating to the extent 21 permitted by the Eleventh Amendment.” Natural Resources Defense Council v. California Dept. 22 of Transp., 96 F.3d 420, 423 (9th Cir. 1996). The citizen suit provision states in part: 23 Any citizen may commence a civil action on his own behalf-(1) against any person (including (I) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution ) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. 24 25 26 33 U.S.C. § 1365(a) (emphasis added). The Ninth Circuit has held that state agencies are entitled 27 to Eleventh Amendment immunity from suits brought under the CWA. Natural Resources 28 ORDER Page 5 1 Defense Council v. California Dept. of Transp., 96 F.3d 420, 423 (9th Cir. 1996). 2 Plaintiff cites a Second Circuit case, Islander East Pipeline Co. v. State of Connecticut, 3 482 F.3d 79 (2nd Cir. 2006), for the proposition that the state has waived its immunity for claims 4 under the CWA. Id. The Islander East Court found that Congress wholly preempted and 5 completely federalized the area of natural gas regulation by enacting the Natural Gas Act. Id. 6 The Islander East Court noted that Congress provided for federal court review of state decisions 7 made under that statute. Id. The Court noted that none of the parties there suggested that “states 8 are required to relinquish their sovereign immunity with regard to all actions they take pursuant to 9 the CWA.” Id., at 90. The Second Circuit in Islander East found that by participating in both the 10 Natural Gas Act and Clean Water Act regulatory scheme, the state of Connecticut waived 11 sovereign immunity. Id. 12 The Second Circuit holding in Islander East is not helpful or binding here. There is no 13 allegation that the Natural Gas Act is implicated. Plaintiff makes no showing that the Ninth 14 Circuit’s holding in Natural Resources Defense Council v. California Dept. of Transp., 96 F.3d 15 420, 423 (9th Cir. 1996) is in some manner inapplicable. As a district court in the Ninth Circuit, 16 this Court is bound to apply Ninth Circuit case law. Accordingly, WSDOT and the 17 Environmental Hearings Office are immune from suit on the CWA claims. 18 3. 19 OTHER FEDERAL STATUTORY CLAIMS Plaintiff does not dispute that these two state agencies are entitled to Eleventh 20 Amendment immunity on any other federal claim. To the extent that Plaintiff makes other federal 21 claims against these Defendants, they should be dismissed. 22 4. 23 STATE LAW CLAIMS Plaintiff makes a state law claim against WSDOT under Washington’s Public Records Act, 24 RCW 42.56 et seq. Dkt. 1. Plaintiff argues that this Court should exercise supplemental 25 jurisdiction to decide this claim. Dkt. 47. However, the supplemental jurisdiction statute does 26 not authorize federal district courts to exercise jurisdiction over state law claims against non27 consenting states. Raygor v. Regents of Univ. Of Minn., 534 U.S. 533, 541 (2002). 28 ORDER Page 6 1 Plaintiff makes no showing that WSDOT has consented to a suit in federal court for a 2 claim under Washington’s Public Records Act. Plaintiff’s state law claim against WSDOT should 3 be dismissed. 4 III. ORDER 5 Therefore, it is hereby, ORDERED that: 6 • Defendant Washington Department of Transportation’s FRCP 12 (b)(6) Motion to 7 Dismiss (Dkt. 23) is GRANTED, and Plaintiff’s claims against it are DISMISSED; 8 • Defendant Environmental Hearings Office’s FRCP 12 (b)(6) Motion to Dismiss (Dkt. 26) 9 is GRANTED, and Plaintiff’s claims against it are DISMISSED. 10 The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel 11 of record and to any party appearing pro se at said party’s last known address. DATED this 2nd day of June, 2009. 12 A 13 14 ROBERT J. BRYAN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER Page 7
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