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Jasso v. United States Dep't of Agriculture Forest Service

August 15, 2008



This action, in which all plaintiffs are proceeding pro se, was referred to the undersigned pursuant to Local Rule 72-302(c)(21).*fn1 See 28 U.S.C. § 636(b)(1). The case was before the court on May 8, 2008, for hearing on the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(1), and in the alternative, pursuant to Rule 12(b)(6) based on collateral estoppel.*fn2 Adam Bain, Senior Trial Counsel, and Todd Pickle, Assistant U.S. Attorney, appeared on behalf of the defendants. The plaintiffs appeared in pro se.*fn3 The motion was taken under submission and, for the reasons set for below, the court recommends that defendants' Rule 12(b)(1) motion be granted and the case be dismissed. I. BACKGROUND

This action is proceeding on the complaint filed December 26, 2007. Plaintiffs are former employees and/or family members of employees who worked seasonally for the California Department of Forestry and Fire Protection ("CDF") at the "Likely Mountain Lookout" site in Lassen County, California. The employees worked as seasonal fire lookouts at the "Likely Mountain Telecommunications and Lookout Tower Worksite ("LMT"), which is located in Modoc National Forest. Modoc is owned by the United States Department of Agriculture, United States Forest Service ("USFS"). Compl., ¶ 4.

Mary Jasso worked for the CDF at the LMT for eleven fire seasons, and Illa Garcia worked there for three seasons. Compl., ¶¶ 12-13, 15. They lived at the site during each season, and their families either lived with them or visited them frequently. Plaintiffs allege that the telecommunications towers, antennae, dishes and other equipment located at the LMT on land leased by the USFS to various telecommunications companies emitted harmful radiation. //// Plaintiffs allege that, beginning around May 2000, they were exposed to significant radiofrequency and microwave radiation emissions, and began to suffer debilitating illnesses as a result thereof beginning in July 2002. Compl., at ¶¶ 12-21.

Beginning in the Fall of 2004, Garcia and several other plaintiffs filed federal administrative tort claims with the Bureau of Land Management ("BLM") and the USFS. See Defs.' Exhs. C, F. In September 2005, Ms. Jasso filed an administrative claim with the BLM and USFS on behalf of herself and her family members.*fn4 See Defs.' Exhs. B, G. While plaintiffs now concede that the BLM has no connection to the telecommunications facilities plaintiffs believe are responsible for their injuries, plaintiffs have chosen to pursue their claims against the USFS by filing this action. See Plaintiffs' Reply and Opposition to Defendants' Motion to Dismiss ("Opp'n"), ¶ 25.

On December 26, 2007, plaintiffs filed this suit, naming as defendants: (1) the United States Department of Agriculture, Forest Service; (2) the Modoc National Forest; (3) Stanley G. Sylva, in his capacity as Forest Supervisor, Modoc National Forest; (4) Rick Anderson, in his capacity as Claims Field Manager, Albuquerque Service Center; (5) Cindi Boukidis, in her capacity as "Legal Admin Specialist," Albuquerque Service Center (6) Doe Agency; and (7) Doe Employee.*fn5 See Compl., pp. 1-2.

Plaintiffs' complaint is hardly a model of clarity. It consists of a confusing amalgam of tort claims predicated on alleged breaches of statutory duties and unfocused civil rights claims.

However, the crux of plaintiffs' complaint is that these federal defendants failed to protect plaintiffs from, warn them about, and investigate their alleged injuries arising from "hazardous toxic radiation emitting antennae at LMT, which are allegedly non-discretionary duties pursuant to 15 U.S.C. § 1261(2)(g); 29 CFR § 1910.268(a)(3); (c)(1)(p)(2)(3); 47 CFR § 1.1307(b); 47 CFR § 1.1310 and the OSH ACT of 1970." Compl., ¶ 19.

The first "count" of the complaint alleges "negligence under color of law and in violation of civil rights (18 USC § 242; 1842 [sic] USC § 1983)." Compl., p. 11. In this count, plaintiffs allege that defendants had a "mandatory duty to prevent EMF radiation exposure and harm to humans" from the telecommunications antennae at LMT. Compl., ¶ 29. They also allege that defendants had a "mandatory duty to warn and protect" them from such radiation exposure. Compl., ¶ 31. They allege that had defendants and their lessees complied with OSHA and NEPA regulations ("29 C.F.R. § 1910.268(a)(3)(c)(1)(p)(2)(3)" and 47 C.F.R. §§ 1.1307(b), 1.1310), plaintiffs would have known about the hazards at LMT and would have taken steps to prevent their injuries. Id.

The second "count" alleges "violation[s] of plaintiffs [sic] civil rights under color of law (18 U.S.C. § 241 and §242; 42 U.S.C. § 1983; and Fourteenth Amendment U.S. Constitution)." Compl., p. 14. In this count, plaintiffs seem to allege that defendants' failures to investigate and police themselves and their lessees amount to constitutional violations.

The third "count" alleges "further abuse of powers, and obstruction of Justice (18 U.S.C. § 241; 18 U.S.C. § 242; 42 U.S.C. § 1983; and Fourteenth Amendment U.S. Constitution)." Compl., p. 16. Plaintiffs allege that defendants violated their constitutional rights by failing to respond appropriately to their alleged injuries.


Defendants move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and, alternatively, pursuant to Rule12(b)(6) for failure to state a claim based on collateral estoppel. For the reasons that follow, the court finds that it lacks subject matter jurisdiction over plaintiffs' claims, and that the case should be dismissed. Accordingly, the court declines to reach the merits of defendants' Rule 12(b)(6) motion.

A. Rule 12(b)(1) Standard

It is axiomatic that federal district courts are courts of limited jurisdiction. They are authorized to adjudicate only those cases which the Constitution and the laws of Congress permit. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A case presumably lies outside the jurisdiction of the federal courts unless proven otherwise. Kokkonen, 511 U.S. at 376-78; Stock W., Inc. v. Confederated Tribes of Colvill Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (citing Cal. ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir. 1979)). On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. ...

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