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George B. Swanson; Natalie Swanson v. United States of America

May 8, 2012

GEORGE B. SWANSON; NATALIE SWANSON, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING MOTION TO DISMISS

[Doc. No. 38]

Presently before the Court is Defendant United States of America ("Defendant")'s motion to dismiss Plaintiff George and Natalie Swanson ("Plaintiffs")'s first amended complaint ("FAC"). [Doc. No. 26.] For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss.

BACKGROUND

The following allegations are taken from the FAC. In 1974, Plaintiffs purchased five mining claims and a millsite named the Lord Elgin's Silver Duke Millsite located within the Cleveland National Forest. [Doc. No. 34, FAC ¶ 13.] The millsite contained several stone structures including a stone cabin, a stone storage structure, a stone toolshed, and a stone woodshed. [Id. ¶ 14.] These structures were originally erected in 1938. [Id.] From 1974 until approximately 2003, Plaintiffs were given seemingly continuous access to the millsite by the United States Forest Service ("Forest Service") to conduct mining operations. [Id. ¶¶ 19, 33.] In 1977, the Forest Service granted Plaintiffs permission to use the stone structures without requiring them to submit a plan of operation. [Id. ¶¶ 21-28.] Plaintiffs relied on the statements made by the Forest Service and over the years worked to repair, maintain, and improve the stone structures. [Id. ¶ 29.]

Plaintiffs allege that eventually the Forest Service grew concerned that the stone structures created an attractive nuisance that could lead to liability issues and began to restrict Plaintiffs' access to the millsite and their mining claims in 2003.*fn1 [FAC ¶¶ 35-36, 40.] On April 30, 2003, Forest Service representatives Rich Teixeira and Timothy Cardoza conducted an examination of the Plaintiffs' mining and millsite claims. [Id. ¶¶ 43-45.] Plaintiff George Swanson, and his son Gordon Swanson, were present during the inspection. [Id. ¶ 44.] The inspection resulted in a determination that the structures were not "incidental" to the mining operation, and that the government would seize the property and demolish and remove the structures. [Id. ¶ 47.] Plaintiffs were notified of this decision on or about May 5, 2004. [Id. ¶ 48.] Plaintiffs attempted to appeal this decision, but their appeal was unsuccessful. [Id. ¶ 49.]

Despite this determination, from 2004 to 2006, the Forest Service still permitted Plaintiffs to have access to and use the stone structures. [FAC ¶ 50.] Plaintiffs allege that in 2004, they were mining quartz and operating under a valid permit. [Id. ¶¶ 51, 70.] However, on April 5, 2006, Plaintiffs attended a meeting with the Forest Service where they were told that they could not carry out any more mining work without submitting a new plan of operation. [Id. ¶ 52.] In August 2006, Plaintiffs received a notice stating the structures would be posted as government property on September 1, 2006 and instructing Plaintiffs to remove any personal property that they may have inside the structures. [Id. ¶ 59.] Also in August 2006, the government posted signs on the structures that read "U.S. Government Property" and "Do Not Enter." [Id. ¶ 60.] Since 2006, the Forest Service has exercised dominion and control over Plaintiff's personal property located at the millsite and their right to use the structures. [Id. ¶ 62.]

On August 3, 2006, Plaintiffs, proceeding pro se, filed a complaint in the Southern District of California against the Bureau of Land Management ("BLM"). [See Swanson v. Bureau of Land Mgmt., No. 06-cv-1560-W-WVG, Doc. No. 1 (Compl.).] On September 15, 2009, Plaintiffs received notice that removal of the stone structures would begin on September 18, 2009. [FAC ¶ 72.] In response, Plaintiffs, now represented by counsel, filed a request for a temporary restraining order ("TRO"). [See Swanson v. Bureau of Land Mgmt., No. 06-cv-1560, Doc. No. 43.] On September 23, 2009, the district court refused to issue a TRO, but did order the defendants to give Plaintiffs access to the structures so that they could remove any remaining personal property. [See id., Doc. No. 47 at 10.] Plaintiffs removed some, but not all, of their personal property before the structures were demolished on September 25, 2009. [FAC ¶¶ 75-76.]

On September 25, 2009, Plaintiffs filed their third amended complaint ("TAC") naming as Defendants Eric Holder, Tom Vilsack, Tom Tidwell, Ken Salazar, Bob Abbey, and Thomas Gillett. [See Swanson v. Bureau of Land Mgmt., No. 06-cv-1560, Doc. No. 49.] On January 29, 2010, Plaintiffs filed an administrative tort claim pursuant to the Federal Tort Claims Act ("FTCA") with the Forest Service. [Doc. No. 1, Compl. Ex. 1; Doc. No. 26, Def.'s Mot. Ex. 3.] On April 19, 2010, Defendants filed a motion to dismiss Plaintiffs' TAC. [See Swanson v. Bureau of Land Mgmt., No. 06-cv-1560, Doc. No. 59.] On October 1, 2010, the district court granted Defendants' motion to dismiss and dismissed many of Plaintiffs' claims for failure to exhaust their administrative remedies. [See id., Doc. No. 69.] On September 24, 2010, Plaintiffs received a letter from the Forest Service denying their administrative tort claim. [Doc. No. 1, Compl. Ex. 1.]

Subsequently, Plaintiffs filed the present lawsuit on November 16, 2010 against Defendants Eric Holder, Tom Vilsack, Tom Tidwell, Ken Salazar, Bob Abbey, and Thomas Gillett, alleging causes of action for (1) trespass to chattels, (2) conversion, (3) negligence, and (4) declaratory and injunctive relief. [Doc. No. 1, Compl.] On January 24, 2012, the Court granted Defendants' motion to dismiss the complaint and gave Plaintiffs leave to file a first amended complaint. [Doc. No. 33.] On February 14, 2012, Plaintiffs filed a first amended complaint against Defendant United States of America alleging three causes of action under the Federal Torts Claims Act ("FTCA") for (1) trespass to chattels, (2) conversion, and (3) negligence. [Doc. No. 34.] By the present motion, Defendant seeks to dismiss all three causes of action in the FAC.

[Doc. No. 38.]

DISCUSSION

I. Legal Standards for a Motion to Dismiss

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff ...


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