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Tri-Dam v. Richard Schediwy and Laura Strauss

December 21, 2011




Plaintiff Tri-Dam ("Plaintiff" or "Tri-Dam") brought this action against Defendants Richard Schediwy and Laura Strauss ("Defendants"), seeking a permanent injunction and equitable relief for alleged violations of the Federal Power Act ("FPA" or the "Act")), 16 U.S.C. § 791 et seq., Federal Energy Regulatory Commission ("FERC") regulations, and Tri-Dam's federal license. This Court has jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1337, and section 317 of the FPA, 16 U.S.C. § 825p, which confers jurisdiction on the federal district courts for violations of the FPA as well as suits in equity and actions at law to enforce liabilities or duties created under the Act. Defendants now move for dismissal or, in the alternative, summary judgment. See Court's Docket, Doc. No. 20. Tri-Dam has filed an opposition to the motion, and Defendants have filed a reply. The matter was taken under submission without oral argument. For the reasons set forth below, Defendants' Motion to Dismiss or in the Alternative, Summary Judgment is denied.


I. Motion to Dismiss Under Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts under a cognizable legal theory. See Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. See Marceau v. Blackfeet Housing Auth., 540 F.3d 916, 919 (9th Cir. 2008). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). The Court, however, is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Furthermore, courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that defendants have violated . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). Thus, to avoid Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949; see Twombly, 550 U.S. at 570; see also Weber v. Dept. of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant acted unlawfully. Where a complain pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . ..

Determining whether a complaint states a plausible claim for relief will . . . be a context-specifictask that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown -that the pleader is entitled to relief.

Iqbal, 129 S. Ct. At 1949-50 (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Miller, 454 F.3d at 987. "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id.; Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. 477 U.S. at 322; Miller, 454 F.3d at 987. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. 477 U.S. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc.,210 F.3d 1099, 1103 (9th Cir. 2000). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R. Civ. Pro. 56(e)); Miller, 454 F.3d at 987. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Miller, 454 F.3d at 987. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; In re Caneva, 550 F.3d 755, 761 (9th Cir. 2008); Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

In resolving the summary judgment motion, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; Price v. Sery, 513 F.3d 962, 965 n.1 (9th Cir. 2008); Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, 1064 (9th Cir. 2007). "[I]n ruling on a motion for summary judgment, the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255; Miller, 454 F.3d at 987; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

Additionally, the Court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the Court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).


Plaintiff Tri-Dam owns and operates the Tulloch Hydroelectric Project No. 2067 (the "Tri-Dam Project"), located in Tuolumne and Calaveras Counties, California, on Tulloch Reservoir. See First Amended Complaint ("FAC")(Court's Docket, Doc. No. 17) ¶ 3. Plaintiff has a flowage easement for the operation of the Tri-Dam project, and operates under a license from FERC. FAC ¶¶ 8-11. The Tri-Dam project boundary, as defined by FERC, includes an area of approximately 1,619 acres, and includes all the land within the 515-foot elevation contour surrounding Tulloch Reservoir. FAC ¶ 5. Tri-Dam received an initial license from the Federal Power Commission (the predecessor to FERC) on January 1, 1955, for a term ending December 31, 2004. FAC ¶ 8, see 14 F.P.C. 567 (1955). Article 39 of that license provided Tri-Dam with the authority to grant permission for use of lands within the project boundary. See id. Between 2004 and 2006, Tri-Dam operated under an annual license, pending disposition of its new license application submitted in 2002. FAC ¶ 8-11. In 2006, FERC issued the new license. FAC ¶ 11. Pursuant to Article 411 of the 2006 FERC license, known as the Shoreline Management Plan ("SMP"),*fn1 Tri-Dam has the power to grant permission, without prior FERC approval, for minor development activities -- construction of boat ramps, docks, retaining walls, and the like -- within the project boundary. FAC ¶ 16. Tri-Dam's FERC license imposes a continuing responsibility to supervise and control the uses and occupancies for which it grants permission, and to ensure that such uses and occupancies are consistent with federal law and policy. FAC ¶ 17. If a permitted use violates any condition of the SMP or any other condition imposed by Tri-Dam, TriDam's FERC license provides that Tri-Dam "shall take any lawful action necessary to correct the violation," including "requiring the removal of any non-complying structures or facilities."

FAC ¶ 17.

Defendants Richard Schediwy and Laura Strauss own shorefront property on Tulloch Reservoir within the project boundary; specifically, APN number 067-006-009, known as Lot 2121A, Copper Cove Subdivision, 4378 Council Trail, Copperopolis, California. FAC ¶ 6. On February 28, 2004, under the authority derived from its FERC license, Tri-Dam granted Defendants a permit to construct a retaining wall and install a u-shaped dock on Lot 2121A at the 515-foot elevation contour. FAC ¶ 25. Defendants signed and accepted the permit. FAC ¶ 25. Defendants' contractor built the retaining wall at the 504- to 505-foot elevation contour, in violation of the permit. FAC ¶ 26. Tri-Dam further alleges that the SMP requires that all shoreline protection devices be located above the 510-foot elevation contour level of Tulloch Reservoir. FAC ¶ 21. Tri-Dam conducted a site inspection on April 21, 2004, and discovered the violation at that time. FAC ¶ 27. Over the course of the next several years, Tri-Dam and Defendants exchanged numerous communications attempting to resolve the matter. FAC ¶ 30. The retaining wall, however, has never been corrected or removed.

Tri-Dam filed a Complaint on July 8, 2011 and a First Amended Complaint ("FAC") on September 9, 2011. The FAC seeks a permanent injunction: (1) prohibiting Defendants from installing, possessing, or maintaining property within the Tri-Dam project boundary without seeking prior approval and obtaining a permit from Tri-Dam; (2) prohibiting Defendants from installing, possessing, or maintaining property within the Tri-Dam project boundary that is not in compliance with a permit obtained from Tri-Dam; and ...

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