ORDER AND FINDINGS AND RECOMMENDATIONS
This case came before the court on December 12, 2008, for hearing of defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Gary S. Gray, proceeding pro se, appeared on his own behalf. John A. Whitesides, Esq. appeared for defendant City of West Sacramento. Upon consideration of all written materials filed in connection with the motion, the parties' arguments at the hearing, and the entire file, the undersigned recommends that defendant's motion be granted and this action be dismissed.
Plaintiff filed his complaint with an application to proceed in forma pauperis on February 26, 2008. The Honorable John F. Moulds, the magistrate judge to whom the case was originally assigned, granted plaintiff's in forma pauperis application and authorized service of the complaint on the defendant. The case was reassigned to the undersigned magistrate judge on May 29, 2008. Service of process was effected by the United States Marshal, and defendant filed its motion to dismiss on November 4, 2008. Plaintiff filed timely opposition, and defendant filed a timely reply.
Plaintiff indicates that his complaint is brought under admiralty law. He alleges that the City of West Sacramento has interfered with navigation of the Sacramento River Deep Water Ship Channel by constructing bridges that prevent public access to the channel by means of the barge canal and its bascule bridge and locks. Plaintiff alleges that the bridges at issue were constructed in 1997 and 2005 without the necessary permits. Plaintiff cites the 1946 Bridges Act and section 9 of the Rivers and Harbors Act of 1899. Plaintiff seeks $50,000,000 in damages or, in the alternative, injunctive relief in the form of an order "to make them put back the bascule bridge and the lock back in navigation for public use and take out the bridges on Jefferson Bl in West Sacramento, Ca." (Compl. at 2.)
Defendant seeks dismissal of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on the following grounds: (1) plaintiff lacks standing to sue under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., or the General Bridge Act of 1946, 33 U.S.C. § 491 et seq.; (b) the bridges in question do not overlay a navigable waterway within the meaning of the Rivers and Harbors Act or the General Bridge Act; and (c) plaintiff is barred from recovery under general admiralty tort law because he has not alleged physical injury. Defendant argues further that plaintiff cannot amend his complaint to state any viable claim for relief.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, , 127 S.Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Defendant has construed plaintiff's complaint as asserting three claims for relief:
(a) violations of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; (b) violations of the General Bridge Act of 1946, 33 U.S.C. § 491 et seq.; and (c) interference with navigation under admiralty common law. Plaintiff's complaint does not suggest any other claims, and plaintiff did not identify other claims in written or oral opposition to defendant's motion.
The Rivers and Harbors Act of 1899 provides that violators of § 401 and other provisions of the Act are subject to criminal penalties and injunctive relief upon suit brought by the Attorney General of the United States. 33 U.S.C. § 406.*fn1 The statutory scheme does not provide a private remedy for individuals alleging violations of the Act. The United States Supreme Court examined the legislative history of the Rivers and Harbors Act and determined that no private right of action is to be judicially implied because the Act "was intended to benefit the public at large through a general regulatory scheme to be administered by [the appropriate government official]" and there is no evidence that Congress anticipated a private remedy. California v. Sierra Club, 451 U.S. 287, 297-98 (1981). See also Red Star Towing & Transp. Co. v. Dep't of Transp., 423 F.2d 104, 105 & n.3 (3d Cir. 1970) (holding that Congress "chose to achieve its regulatory purpose through specific penal sanctions" and "did not . . . create any civil cause of action in favor of private parties injured by any violation of the [Rivers and Harbors] Act").
The General Bridge Act of 1946 also provides for governmental enforcement through criminal and civil penalties and injunctive relief. 33 U.S.C. § 495.*fn2 The statutory scheme does not provide a private remedy for individuals alleging violations of the Act, and the Ninth Circuit has joined the majority of circuits in declining to recognize a judicially implied private right of action. Channel Star Excursions, Inc. v. S. Pac. Transp. Co., 77 F.3d 1135, 1137 (9th Cir. 1996) (affirming the district court's dismissal of the plaintiff's Bridge Act claim for failure to state a claim upon which relief can be granted, because there is no implied private claim under the Bridge Act).
In the absence of a statutory or judicially implied private right of action, plaintiff cannot proceed on claims brought pursuant to the General Bridge Act or the Rivers and Harbors Act. Moreover, even if a private right of action existed under the General Bridge Act, plaintiff could not maintain a suit under that Act because the statutory scheme applies only to navigable waterways. In 1991, the Sacramento River Barge Canal was specifically "declared to not be navigable waters of the United States for purposes of the General Bridge Act of 1946." 33 U.S.C. § 59ee. In 2000, in order to effect the federal turnover of a portion of the Port of Sacramento and connected waterways, including the barge canal, to the City of West Sacramento, all waters within that portion of the Sacramento Deep Water Ship Channel were "declared to be nonnavigable waters of the United States solely for the purposes of the General Bridge Act of ...