The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DISMISSING COMPLAINT; AND ORDER RE: AMENDMENT OF COMPLAINT
On July 8, 2009, Plaintiffs filed their complaint seeking relief for perceived violations of their constitutional rights under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971). Defendants moved to dismiss on the basis of qualified immunity and for failure to state a claim.
The Mednanskys and employees of the U.S. Forest Service were parties to an earlier and somewhat related action for alleged civil rights violations, Mednansky v. Gillett, 07cv1425-LAB (CAB), which was dismissed on the merits and is now final. The United States' related ejectment action against the Mednanskys, United States of America v. Mednansky, 10cv1307-LAB (BGS) is now pending.
Except as noted, the factual background is taken from the complaint. The Mednanskys reside in a cabin in the Cleveland National Forest, under a permit from the U.S. Forest Service. Defendants are employees of the U.S. Forest Service, and actions they took in the course of their official duties are alleged to be the basis for Plaintiffs' claims. The Mednanskys acquired their permit and bought the cabin in 1999.
The Mednanskys are engaged in a dispute with the Forest Service over conditions on their property. On November 20, 2008, Ranger Owen Martin sent a notice of noncompliance telling the Mednanskys they needed to obtain a new recreation residence permit. It identified various violations of the special use permit's terms and conditions, specifically:
1. An unauthorized rock wall on each side of the cabin
2. A vehicle stored next to the garage
3. An unauthorized outhouse
4. Unauthorized construction of footings, filled with cement and rebar
6. A rope or chain improperly attached to trees.
The letter says the first four violations had been identified during the previous year's inspections. It directs the Mednanskys to correct all the conditions and call to initiate a reinspection. Assuming all identified violations were corrected, the letter says a new 20 year recreation residence special use permit would be issued. The letter also told the Mednanskys, if they could not meet the deadline but were working in good faith to comply, that they could be issued a one-year permit provided they submitted a compliance plan.
The Mednanskys did not directly dispute any of the identified violations until June 2, 2009, when Mr. Mednansky sent Metz a letter. Among other subjects, the letter disputed some of the violations as follows:
1. The stacked rock is not a wall. It is building material for an addition they had asked permission to build. They stacked it to prevent it from deteriorating. Rich Tobin (a Forest Service official) knows why they stacked the rock, and also why sand and gravel were delivered to the Mednanskys' lot, and authorized them to stack it.
2. He does park a vehicle next to his garage, but uses it on a regular basis.
3. He built the shed to replace an old shed from the 1920s that deteriorated. He put the new shed over his well and away from the propane tank and built it so it would be fireproof.
4. The rope chain was already attached to the tree when the Mednanskys bought the cabin in 1999. It apparently had been attached to the tree for some time. Mr. Mednansky is using the chain to gradually correct the growth of the lopsided tree, so it would not have to be cut down. He thinks his method of saving the tree is working.
The letter also includes a somewhat disjointed explanation about the footings:
The so called footings that are alleged to not have been authorized is not under construction. However Susan DeSonia had indicated to my wife that construction was authorized. Therefore since no work is being performed this non-compliance allegation is without merit and appears as a contradiction.
Apparently what he means is that no one is performing any work on the footings, so they are not under construction; but even if they were, the construction would be authorized. The letter also said the alleged violations had existed since at least 2004 but no complaint was made earlier.
Shortly after that, Mr. Mednansky sent Martin an email disputing each of the identified violations, in some cases somewhat differently than in his letter to Metz:
1. The "rock wall" is in fact construction material stacked next to his house. He says he brought it onto the lot for the purpose of fire protection.
2. There is no vehicle stored by the garage. There is a vehicle regularly parked next to the garage, but it is one he regularly uses. Also, the permit does not say he cannot store a vehicle in his yard.
3. There is no reason for him to remove the outhouse, because it was built under the terms of his permit. He alternatively argues it is "part of a historic set of buildings on the lot" and "has intrinsic historical value as well as associated monetary value . . . ." He also says the outhouse was "properly deactivated many years ago. . . ."
4. There is no unauthorized construction activity taking place on his property, and he does not know why the Forest Service thinks there is.
5. The shed houses plumbing, a pressure tank, and an electrical system for his well, and also serves as a storage area. He admits the new shed was constructed without authorization, but because it was built to replace an existing shed that had fallen ...