United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
Defendant David Bieber's motion to dismiss the Third Amended Complaint (TAC) was submitted without argument and the court now DENIES the motion.
On September 27, 2012, plaintiffs Jay Schneider, Susan Schneider, Jake Schneider, Leland A. Schneider, Katherine Schneider, Leland H. Schneider and Jared Schneider (collectively, "plaintiffs" or "Schneiders") filed a complaint raising two civil rights claims against the County of Sacramento, Roger Dickinson, Robert Sherry, Jeff Gamel, Cindy Storelli, Leighann Moffitt, Tammy Derby, Carl Simpson, and David Bieber. Compl., ECF No. 1 ¶¶ 3-5. They alleged that defendants' actions in connection with plaintiffs' property violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Takings/Due Process Clause of the Fifth Amendment, and substantive due process.
On May 20, 2013, defendants County of Sacramento, Derby, Dickinson, Moffitt, Sherry, Simpson and Storelli answered the complaint. ECF Nos. 28-35.
On June 5, 2013, defendant Bieber filed a motion to dismiss, arguing, among other things, the complaint did not allege his personal participation in constitutional violations. ECF No. 37.
On August 1, 2013, the court granted defendant Bieber's motion to dismiss, giving plaintiffs' leave to amend to allege Bieber's personal participation in the alleged constitutional violations. ECF No. 44.
On August 21, 2013, plaintiffs filed their First Amended Complaint (FAC). ECF No. 45. Bieber moved to dismiss and on December 16, 2013, the court granted the motion, giving plaintiffs leave to amend their substantive due process claim. ECF No. 61.
Plaintiffs filed their Second Amended Complaint (SAC) on January 3, 2014. ECF No. 62. Bieber again filed a motion to dismiss. ECF No. 64. In its January 3, 2014 order, the court dismissed a portion of plaintiffs' substantive due process claim with prejudice, but gave them leave to amend other portions. In addition, the court noted plaintiffs appeared to be alleging a First Amendment retaliation claim and so gave them leave to amend in that respect as well. ECF No. 69.
Plaintiffs filed their Third Amended Complaint on April 3, 2014, including both substantive due process and First Amendment retaliation claims against Bieber. ECF No. 70 ¶¶ 263-290. The following facts, simplified to exclude facts relating solely to other defendants, are taken from the Third Amended Complaint:
Plaintiffs own, and Joseph Hardesty operates, the Schneider Historic Mine (Mine) in Sacramento County. TAC, ECF No. 70 ¶¶ 3, 28. Plaintiffs have a vested right to mine their property, recognized by Sacramento County (County). Id. ¶¶ 3, 40, 44.
Under the Surface Mining and Reclamation Act, Cal. Pub. Res. Code §§ 2710, et seq. (SMARA), all mines must have a Reclamation Plan approved by the "lead agency, " in this case Sacramento County, outlining how the mine area will be reclaimed upon the cessation of mining. Id. ¶¶ 124, 125, 184. SMARA dictates what a plan must cover. In 2002, the Sacramento County Board of Supervisors approved a hundred-year reclamation plan covering the 3, 800 acre Mine. Id. ¶ 51.
Mines regulated under SMARA must have financial assurances in place to cover the potential cost of reclaiming the land should the owners fail to undertake reclamation. Id. ¶ 123. The reclamation plan provides the framework for calculating the financial assurance cost estimate (FACE). Id. ¶¶ 123-124. Once the lead agency agrees to the FACE, it is implemented through a Financial Assurance Mechanism (FAM), which is a Certificate of Deposit payable to the County. Id. ¶ 185.
Under the Schneider Reclamation Plan (Plan), the land must be left in a condition suitable for grazing and outdoor recreation or other uses permitted under the Williamson Act. Id. ¶¶ 123, 184. It also allows for post-reclamation depths of mining pits not to exceed thirty feet. Id.
In April 2008, an agent of Teichert Aggregates, a competitor, told plaintiffs and Hardesty that Teichert was going to put them out of business. Id. ¶ 57. After Teichert representatives contacted government officials, the defendants and other government employees not named as defendants undertook inspections and evaluations of the Mine operations in an attempt to find environmental, zoning, and mining violations. Id. ¶¶ 58-78. The County essentially closed the operation by finding the Mine lacked the necessary zoning and use permits. Id. ¶¶ 80, 111.
In November 2009, the County entered into a contract with Geocon Consultants and Bieber for the latter to provide independent third-party review of the Mine's reclamation plan and to conduct SMARA compliance inspections. Id. ¶ 119. In March 2010, Bieber's contract was amended to cover recommendations on plaintiffs' FACE. Id. ¶ 190. Under the terms of this contract, defendant Bieber inspected the Mine in 2009, 2010, 2011, and 2012 and prepared compliance inspection reports required under SMARA. Id. ¶ 118. Bieber represents himself as an expert in SMARA and the County has relied on Bieber as a SMARA expert. Id. ¶¶ 126, 200. Since 2009, the County has adopted Bieber's allegations of SMARA violations at the Mine and later adopted his recommendations as to plaintiffs' FACE. Id. ¶¶ 134, 192.
In 2011, Bieber initially recommended an increase in plaintiffs' FACE from $164, 233 to $830, 490, justifying the increase on a determination that resloping he had previously approved was no longer compliant with the reclamation plan; he eventually concurred with plaintiffs' consultant that the FACE should be set at $177, 952. Id. ¶¶ 132, 170, 198, 206. The Board accepted the latter amount. Id. ¶¶ 170, 210.
Plaintiffs filed suit on September 27, 2012. Id. ¶ 209.
Bieber inspected the mine on October 10, 2012 and prepared an inspection report, dated November 16, 2012. Id. ¶ 211. On November 28, 2012, defendant Gamel sent plaintiffs a copy of this report, as amended on November 27, 2012; it recommended an increased FACE of $8, 818, 074. Id. ¶ 212. Between February 2012, when the County approved the $177, 952 FACE, and November 2012, there was no additional land disturbed at the Mine, revegetation had been undertaken, and the Mine operator had removed large quantities of scrap, as part of reclamation. Id. ¶ 214. Nevertheless, Bieber justified this increase by claiming the Board of Zoning Appeals (BZA) had ruled the pits at the Mine had to be backfilled, requiring 1.14 million cubic yards of topsoil, despite earlier approval of a thirty foot depth for pits. Id. ¶ 218
The November 2012 FACE exceeds the total non-mining value of the property and was designed to cripple plaintiffs financially because it makes the property unmarketable and unusable as collateral. Id. ¶¶ 221, 223. In addition, if plaintiffs do not post adequate financial reserves, the County can forfeit the already-posted FAM and take over the Mine. Id. ¶ 222. Bieber and the others created the excessive FACE as punishment for plaintiffs' filing this lawsuit. Id. ¶ 219. This increased FACE has restricted plaintiffs' ability to fund this litigation. Id. ¶ 224.
The complaint contains two claims against Bieber. The first is a claim that Bieber's recommendation for this exponentially increased FACE violated plaintiffs' substantive due process rights. Id. ¶¶ 263-280. The second is that Bieber violated plaintiffs' First Amendment right of access to the court by proposing the ...