Plaintiffs Joseph and Yvette Hardesty operate Hardesty Sand and Gravel (HSG) at the Schneider Family Mine in Sacramento County. They allege that federal, state and county agencies, , prompted by a politically influential competitor, have undertaken a number of actions designed to drive HSG out of business. The following defendants have moved to dismiss the Second Amended Complaint (SAC): Sacramento County and Robert Sherry (County defendants); Dennis O'Bryant, Gay Norris, Steve Testa, Bret Koehler, and Curt Taras of the Central Valley Flood Protection Board (State defendants); Liz Gregory (Gregory); and Cindy Storelli and Leighann Moffitt (Storelli and Moffitt). The court heard argument on the motions on October 26, 2012. George Robertson and Laura Sutton, Robertson, Johnson, Miller & Williamson, appeared for plaintiffs; Joseph Rusconi, Deputy Attorney General, appeared for defendants O'Bryant, Norris, Testa, Koehler, and Taras; Jeffrey Reusch, Deputy Attorney General, appeared for defendant Gregory, and Mark O'Dea, Longyear, O'Dea & Lavra, LLP, appeared for defendants Sacramento County, Sherry, Storelli and Moffitt. The court heard argument on these motions on October 26, 2012. After considering the parties' arguments, the court GRANTS defendant Koehler's motion to dismiss but DENIES the other motions.
Defendants Sacramento Metropolitan Air Quality Management District and David Grose (SMAQMD defendants) also filed a motion to dismiss, which was heard on January 18, 2013. Kimon Manolius, Hanson Bridgett LLP, and Katherine Pittard, District Counsel, appeared for defendants; Jonathan Tew, Robertson, Johnson, Miller & Williamson, appeared for plaintiffs. After considering the parties' arguments, the court GRANTS the SMAQMD defendants' motion to dismiss.
On September 8, 2010, plaintiffs filed their original complaint, containing seven claims: (1) a violation of the Clean Air Act (CAA) against the SMAQMD defendants, Sacramento County, and James Goldstene; (2) a civil rights claim, alleging violations of the Fourteenth Amendment and Supremacy Clause against the SMAQMD defendants, Sacramento County and James Goldstene; (3) a civil rights claim alleging violations of the Fifth and Fourteenth Amendments against the Office of Mine Reclamation (OMR), Norris and O'Bryant; (4) a civil rights claim alleging due process violations against the California State Mining and Geology Board (SMGB) and Testa; (5) a Bivens claim alleging violations of the Fourth and Fifth Amendments against Simmons; (6) a civil rights claim alleging a Fourth Amendment violation against Gregory and the Department of Fish and Game (DFG); and (7) a civil rights claim alleging violations of the Fifth and Fourteenth Amendments against the County defendants. (ECF No. 2.)
While the defendants' motions to dismiss the complaint were pending, plaintiffs filed a motion seeking permission to file an amended complaint. The proposed amended complaint dropped as defendants the State of California, DFG, SMGB, OMR and Goldstene. It sought to add as defendants Cindy Storelli, in her official and individual capacity as a senior planner for Sacramento County; Leighann Moffitt in her official and individual capacity as Interim Planning Manager for Sacramento County; Bret Koehler in his official and individual capacity as Senior Engineering Geologist of the OMR; Michael Jewell; and Curt Taras in his individual and official capacity as Chief of the Encroachment Control and Land Use Section of the Central Valley Flood Protection Board. This complaint also contained seven claims: (1) a civil rights claim, alleging violations of the Due Process, Equal Protection and Supremacy Clauses against the SMAQMD defendants; (2) a civil rights claim, alleging a due process violation against defendants Koehler, Norris, Testa and O'Bryant; (3) a Bivens claim based on a due process violation against defendants Jewell and Simmons and on the Fourth Amendment against Simmons; (4) a civil rights claim, based on the Fourth Amendment, against defendant Gregory; (5) a civil rights claim, alleging a due process violation against defendant Taras; (6) a civil rights claim, based on due process and equal protection violations against Sacramento County and defendant Sherry; and (7) a civil rights claim, alleging a due process and equal protection violation against the County and defendants Storelli and Moffitt. (ECF No. 42-1 (FAC).) The court considered this complaint in ruling on the earlier motions to dismiss to the extent that it contained claims substantially similar to the original complaint, as the First Amended Complaint provided some guidance on whether amendment was appropriate. (Order, ECF No. 69 at 5.) Because the First Amended Complaint omitted plaintiffs' claims under the CAA, the court deemed them waived and granted the motion to dismiss as to those claims. In addition, it granted the SMAQD defendants' motion to stay and granted the other defendants' motions in part and denied them in part. (Id. at 37-38.)
Plaintiffs have now filed their Second Amended Complaint, which contains nine claims: (1) a civil rights claim alleging Fourteenth Amendment due process and "class of one" equal protection violations, as well as Supremacy Clause violations against the SMAQMD defendants; (2) a civil rights claim alleging a Fourteenth Amendment "class of one" equal protection claim against the State defendants (3) a Bivens action alleging a Fourth Amendment violation against Zachary Simmons*fn1 ; (4) a civil rights claim alleging a violation of the Fourth Amendment against Liz Gregory; (5) a civil rights claim alleging violations of the Fourteenth Amendment rights to substantive and procedural due process against Curt Taras; (6) a civil rights claim alleging Fourteenth Amendment "class of one" equal protection and due process violations against the County defendants; (7) a civil rights action alleging an equal protection violation against Storelli and Moffitt; (8) a claim under the Administrative Procedures Act (APA) against the Army Corps of Engineers (ACE), and (9) a civil rights claim alleging a Fourteenth Amendment substantive due process claim against all defendants except ACE. (ECF No. 74 (SAC).)
Several of the state defendants argue that any claims for damages brought against them in their official capacities are barred by the Eleventh Amendment. (See ECF No. 89 at 18.) Plaintiffs respond that they are proceeding on damages claims against these defendants in their individual capacities only and confirmed this at argument. (See, e.g., ECF 107 at 11.) These portions of the motions to dismiss are denied as moot.
Defendants Taras and Koehler also argued in their brief that California's anti-SLAPP procedure, CAL.CODE CIV.PROC. § 425.16, applied to the claims against them, but at hearing withdrew this argument.
Finally, at argument counsel for defendants O'Bryant, Norris, Testa, Sherry, Storelli and Moffitt argued that their clients are entitled to qualified immunity. The court declines to consider this argument, raised for the first time at hearing. Amini v. Bank of America Corp., No. C11--0974 RSL, 2012 WL 398636, at *7 (W.D. Wash. Feb. 7, 2012) ("Arguments raised for the first time at oral argument are generally not considered because the opposing party is deprived of its opportunity to evaluate the merits of the new argument before responding.").
II. Standards For A Motion To Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of 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).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED.R.CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).
III. The Second Amended Complaint
Plaintiffs own HSG, a sand and gravel operation, which has leased the Schneider Family Mine since the early 1980s and is authorized by contract to mine and process aggregate material. (ECF No. 74 ¶¶ 28, 31.) In 1994, Sacramento County confirmed Schneider's vested right to mine without the future need for surface mining and/or conditional use permits under California's Surface Mining and Reclamation Act (SMARA). (ECF No. 74 ¶¶ 29-30.) In 2002, Sacramento County approved HSG's reclamation plan and in 2008 county representatives inspected the mine, concluding that HSG was operating in accordance with SMARA requirements and the reclamation plan. (ECF No. 74 ¶ 31.( Plaintiffs allege that in March 2007, employees of Teichert Company (Teichert), one of HSG's competitors, began to contact state and federal agencies, complaining that HSG was undercutting Teichert's sales by offering "very cheaply priced product" and asking the agencies to coordinate efforts to regulate HSG, which would drive up its prices. (ECF No. 74 ¶ 33 & Ex. F.) Teichert also sought the assistance of state Senator Dave Cox and Congressman Dan Lungren. (ECF No. 74 ¶ 34.)
In early 2008, defendant Simmons of ACE began to organize a coordinated investigation of HSG. (ECF No. 74 ¶ 35.*fn2) Michael Jewell of ACE sent plaintiffs a cease and desist order on June 2, 2008, and provided copies of the order to a number of other agencies. (ECF No. 74 ¶ 39.)
In September 2008, Simmons contacted Liz Gregory at DFG to discuss an inspection of the mine. Thereafter Simmons and Gregory entered the mine, without a warrant, and inspected a dam on the southernmost creek, the processing facility, and the creek along the northeast side of the processing facility. (ECF No. 74 ¶ 41.)
In October 2008, Senator Cox sent a letter to the Secretary of the California Resources Agency (CRA), asking CRA to coordinate a review of HSG's operation by the Department of Conservation (DOC), the SMGB and the DFG; he asked specifically whether HSG could be excluded from the list of aggregate vendors approved to sell to state agencies, the so-called AB 3098*fn3 list. (ECF No. 74 ¶¶ 45, 48.)
In November 2008, CRA's secretary reported to Senator Cox that the CRA had initiated a coordinated review of HSG. (ECF No. 74 ¶ 46.)
Kris Vyverberg, a Senior Geologist from DFG, began to work with Koehler, Norris and O'Bryant, all employees of OMR, to investigate how to close HSG. (ECF No. 74 ¶ 50.) As part of this plan, Vyverberg explained to Norris and O'Bryant that if they found substantial deviations from the reclamation plan, those deviations could be used to shut HSG down. (ECF No. 74 ¶ 52.) In November 2008, Norris warned contractors that OMR would sue them if they purchased aggregate from HSG but did not stop truckers who were purchasing aggregate from other mines also not on the AB 3098 list, including Horseshoe Mine. (ECF No. 74 ¶¶ 64-65.)
Although officials from DFG had found no violations at HSG, Koehler, O'Bryant and Norris continued to investigate HSG. (ECF No. 74 ¶ 50.) These three defendants visited HSG on December 23, 2008 and in February 2009 Koehler completed an inspection report that identified alleged violations of SMARA and other statutory requirements. (ECF No. 74 ¶ 55.)
In February 2009, OMR put HSG on the AB 3098 list, but O'Bryant removed it six weeks later on the basis of Koehler's report. (ECF No. 74 ¶¶ 45, 56.) Defendants did not remove other similarly situated mining operators from the AB 3098 list despite those operators' violations, similar to those attributed to HSG. (ECF No. 74 ¶ 59.) In response to an inquiry from HSG's counsel, Testa and O'Bryant told plaintiffs there was no mechanism for appealing their removal from the list. (ECF No. 74 ¶¶ 62-63.)
Nevertheless, in February, Simmons reported to Congressman Lungren's office that HSG's operations did not impact as many navigable waters as did operations by the companies that had complained about HSG. (ECF No. 74 ¶ 47 & Ex. I.*fn4)
In April 2009, SMAQMD, acting as part of the competitors' campaign, issued a petition alleging that HSG was operating equipment in violation of SMAQMD Rule 201, even though SMAQMD does not have the authority to regulate the equipment it targeted in light of state and federal regulations. In addition, SMAQMD relied on an improper underground regulation. (ECF No. 74 ¶¶ 67-75.) At the abatement hearing held on this notice, Grose presented SMAQMD's positions despite their conflict with state and federal law and with the testimony of the CARB representative. (ECF No. 74 ¶ 73.) The CARB representative also explained that nonroad engines travelling only 25 to 30 feet are not considered to be at a single site if there is a legitimate purpose for the movement. (ECF No. 74 ¶ 74.) After the hearing, SMAQMD ordered plaintiffs to cease and desist operations pending compliance with Rule 201. (ECF No. 74 ¶¶ 76-77.
In May 2009, defendant Taras inspected a portion of the mine along the Cosumnes River on behalf of the Central Valley Flood Protection Board (CVFPB) and later issued an order directing HSG to cease and desist all work regulated by the California Water Code. (ECF No. 74 ¶¶ 85-86.)
While plaintiffs were challenging the SMAQMD decision by pursuing a writ of mandate in the Superior Court, SMAQMD asked the California Air Resources Board (CARB) to declare HSG's registered portable equipment to be considered stationary when used at the mine. (ECF No. 74 ¶ 78.) In February 2010, Goldstene determined that some of plaintiffs' equipment was not eligible for PERP registration. (ECF No. 74 ¶ 78.) On appeal, a hearing officer upheld most of Goldstene's determinations, as did the Superior Court. (ECF No. 74 ¶¶ 79-80.) Plaintiffs thereafter applied for permits, but defendant Grose denied them in an overbroad application of the SMAQMD Board's ruling and directed HSG to cease and desist operations. (ECF No. 74 ¶¶ 82-84.)
In 2010, Congressman Lungren's office contacted Teichert, ACE, DFG and the U.S. Fish and Wildlife Service (FWS) about resuming the investigation of HSG. (ECF No. 74 ¶ 87 & Ex. K.) As a result, defendant Jewell of the ACE sent another cease and desist letter to HSG. (ECF No. 74 ¶¶ 88-89.)
Around the same time, defendant Sherry sent a notice to Schneider, the owner of the mine, informing him that the mining operation had expanded in violation of zoning requirements. (ECF No. 74 ¶ 91.) Schneider appealed, citing his vested right to mine. (ECF No. 74 ¶ 92.) The Board of Supervisors rejected Schneider's appeal. (ECF No. 74 ¶ 95.) Thereafter, OMR notified Sacramento County that it must take action to correct violations at the mine; Schneider's appeal of this notice was denied in May 2011. (ECF No. 74 ¶¶ 96-97.) Plaintiffs were not given notice of any of these proceedings. (ECF No. 74 ¶¶ 92, 96.)
After the Superior Court upheld SMAQMD's abatement order, plaintiffs applied for a permit. Defendant Grose initially denied the permit, but then rescinded the denial. He did not rescind the cease and desist order, which informed plaintiffs that any type of operation at their facility would violate regulations and the abatement order. (ECF No. 74 ¶¶ 82-83.)
On November 17, 2010, Sacramento County approved plaintiffs' Financial Assurance Cost Estimate (FACE) in the amount of $164,223, but in December 2010, Storelli told plaintiffs their FACE should be increased to $830,490. (ECF No. 74 ¶ 101.) In addition, in January 2011, Moffitt sent plaintiffs a letter demanding a valid Financial Assurance Mechanism (FAM) in the amount of $830,490 and directed them to cease operations until the FAM was in place. (ECF No. 74 ¶¶ 99, 102.) Plaintiffs' competitors have been allowed to continue operations even though their FAMs were below required amounts. (ECF No. 74 ¶ 106.)
IV. State Defendants' Motion To Dismiss (ECF No. 88)
Defendants O'Bryant, Norris, Testa, Koehler and Taras move to dismiss under Rule 12(b)(6) and to strike under California's Anti-SLAPP provisions, arguing that the statute of limitations bars the civil rights actions against Taras and Koehler; that the court's prior order rejected plaintiffs' allegations against Norris based on her telling contractors not to purchase plaintiffs' aggregate; that the "class of one" equal protection and substantive due process claims are not adequately pleaded; and that the allegations against Taras and Koehler should be stricken because this is a strategic lawsuit against public participation in violation of California Code of Civil Procedure § 425.16. They ask the court to take judicial notice of a number of documents and also have submitted declarations from Taras and Koehler. (ECF Nos. 90-92.) Plaintiffs object to the court's consideration of this evidence and oppose the request for judicial notice.
The state defendants ask the court to take judicial notice of the following: the court's prior order ruling on the first round of motions to dismiss; Taras's May 28, 2009 letter to plaintiffs; a mine inspection report dated February 23, 2009; portions of the California Code of Regulations; the absence of records regarding a Horseshoe Mine; and the absence of any records showing that plaintiffs appealed the county's determination about plaintiffs' financial assurance, reclamation plan or substantial deviation from the vested rights. In addition, defendants have presented declarations from Taras and Koehler, describing their interactions with plaintiffs. (ECF Nos. 91 (Taras Declaration) & 92 (Koehler Declaration).) Koehler also avers that he searched OMR's records and could not find any permit applications or other records relating to any mine with the name "Horseshoe Mine." (ECF No. 92 ¶¶ 7-8.) Plaintiffs object to that portion of Koehler's declaration concerning his fruitless attempts to identify the Horseshoe Mine. (ECF No. 111 at 13.)
The court need not take judicial notice of its prior order in this case. It does take judicial notice of the administrative regulations offered by the state defendants. DCIPA, LLC v. Lucile Slater Packard Children's Hosp., 868 F. Supp. 2d 1042, 1048 (D. Or. 2011) (taking judicial notice of administrative rules). It also takes notice of the existence of Koehler's mine inspection report and Taras's letter, mentioned in the Second Amended Complaint, but not the truth of the findings in those documents. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994) (stating that on a motion to dismiss district court may consider documents the contents of which are mentioned in the complaint when the authenticity is not questioned); Coalition for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 812 F. Supp. 2d 1089, 1093 (E.D. Cal. 2011). It does not take judicial notice of the absence of records regarding the Horseshoe Mine or any of the other facts contained in the two declarations. See Stamas v. County of Madera, 795 F. Supp. 2d 1047, 1060 (E.D. Cal. 2011) (taking judicial notice that declarations were filed in other litigation but declining to take judicial notice of the factual averments in the declarations).
B. The Statute of Limitations
A party may raise a statute of limitations argument in a motion to dismiss if it is apparent from the face of the complaint that the complaint was not timely filed and that plaintiff will be unable to prove facts that will establish the timeliness of the claim. Von Saher v. Norton Simon Museum, 592 F.3d 954, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3055 (2011); Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995). Civil rights actions brought under section 1983 are governed by the statute of limitations for personal injury actions of the forum state. Wilson v. Garcia, 471 U.S. 261, 279--80 (1985); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). California law provides for a two year statute of limitations for personal injury, applicable to civil rights claims brought under section 1983. CAL.CIV.PROC.
According to the Second Amended Complaint, Koehler inspected the mine in December 2008 and dated his report of that inspection on February 27, 2009, while Taras inspected the mine on May 14, 2009 and sent plaintiffs a cease and desist letter on May 28, 2009. (ECF No. 74 ¶¶ 53, 55, 85-86; ECF No. 91 ¶¶ 4, 6; ECF No. 92 4-5.) The Second Amended Complaint was filed on May 10, 2012, long after the statute of limitations had ...