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Yates v. United States Environmental Protection Agency

United States District Court, D. Oregon, Portland Division

April 30, 2018

KRISTINE K. YATES, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; MARION COUNTY PLANNING DEPARTMENT; DICK ANDERSON CONSTRUCTION COMPANY; SILVERTON SOLAR, LLC; SILVERTON LAND CO., LLC; TLS CAPITAL INC.; CYPRESS CREEK RENEWABLES DEVELOPMENT, LLC; CYPRESS CREEK RENEWABLES, LLC; PINE GATE ENERGY CAPITAL, LLC; PINE GATE RENEWABLES LLC; GORDON MOE; JUDY DUNN; NIKKI ANAS; ZOE GAMBLE HANES; JEROME O'BRIEN; BLUE OAK ENERGY; SAM LINES; PATRICK LEIBACK; DOES 1-20; and CYPRESS CREEK HOLDINGS, LLC, Defendants.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiff Kristine Yates alleges that defendants, various governmental and private actors, violated her rights under federal and state law in connection with the construction of a solar array on a parcel adjacent to her property in Silverton, Oregon. Because plaintiff is proceeding in forma pauperis ("IFP"), I have examined her First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons set forth below, plaintiffs equal protection, fraud, and conspiracy claims are dismissed with prejudice. All claims against defendant United States Environmental Protection Agency ("the EPA") are also dismissed with prejudice. Plaintiffs remaining claims may proceed.

         BACKGROUND

         Plaintiff owns and resides at 1614 Pine Street in Silverton, Oregon, a location she chose because she enjoys "the views and quiet living of the country." First Am. Compl. ¶ 23. This dispute centers on the construction of a solar energy farm on a parcel bordering plaintiffs property ("the Parcel"). Plaintiff alleges that the Parcel is zoned for Exclusive Farm Use. In late 2015, defendant Silverton Land Co., LLC, applied for a conditional use permit to allow the construction of a "photovoltaic solar power generating system" on the Parcel. Id.66.

         Plaintiff alleges that she did not receive notice before the construction began on the solar array. She further alleges that the construction of the solar farm has damaged her in the following ways: a new drainage ditch now causes water to ran downhill onto her land, flooding her property; increased and "constant" vehicular traffic now runs past her property, id. ¶ 92; the "use of 'steam roller' equipment to compact the addition of 'fill' dirt" has caused vibrations so severe that her windows rattle and her house shakes, id. ¶ 93; her views are obstructed by unsightly portable toilets, which the private defendants have placed right at the edge of her property line; and construction debris-including solar panels, "moldings, wood disks for wire, junk, and large stacks of wooden pallets"-is constantly scattered in the area around plaintiffs property, id. ¶ 117. Plaintiff asserts that her real property has lost value due to the construction of the solar array and that she has suffered "anguish" and "discomfort." Id. ¶ 120. She seeks damages and injunctive relief.

         Plaintiff initially filed this action in November 2017. She asserted nine claims for relief. In January 2018, 1 held that plaintiff had stated a claim for violation of her right to procedural due process and for negligence per se related to the alleged lack of notice regarding the conditional use permit. I also dismissed several claims and defendants with prejudice. Finally, I offered plaintiff the option to amend her complaint with respect to her equal protection, common law fraud, civil RICO, negligence, gross negligence, and civil conspiracy claims.

         Plaintiff has now filed the First Amended Complaint. She did not amend her RICO, negligence, or gross negligence claims. She did, however, replead her equal protection, common law fraud, and civil conspiracy claims. She also asserts new claims for trespass and nuisance.

         LEGAL STANDARD

         Because plaintiff is proceeding in forma pauperis, I am required to dismiss this action if I determine that it fails to state a claim upon which relief may be granted. 28 U.S.C. § l9l5(e)(2)(B)(ii). Plaintiff is pro se, so her pleading should not be dismissed for a failure to comply with formal pleading requirements. Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988) (noting that courts have "a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements [, ]" and that "pro se pleadings are liberally construed, particularly where civil rights claims are involved."). In federal court, 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)(2). The pleading standard "does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To meet this standard, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         DISCUSSION

         Plaintiffs First Amended Complaint contains sufficient facts to proceed beyond the IFP screening stage with respect to her claims for procedural due process, negligence per se, trespass, and nuisance. Plaintiffs remaining claims-for violation of the Equal Protection Clause, fraud, and civil conspiracy-are dismissed. Because plaintiff has been afforded one opportunity to amend those claims and because I conclude that further amendment would be futile, those claims are dismissed with prejudice. In addition, plaintiff has failed to state a claim against defendant the Environmental Protection Agency, which is dismissed from this action with prejudice.

         I. Plaintiff's Claims for Procedural Due Process, Negligence Per Se, Trespass, and Nuisance May Proceed.

         The following claims contain sufficient factual allegations to proceed past the IFP screening stage.

         A. Procedural Due Process Under the Fifth and ...


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