United States District Court, D. Oregon, Medford Division
BRIMSTONE NATURAL RESOURCES CO., an Oregon corporation; JOHN WEST, an individual; ROBERT STUMBO, an individual Plaintiffs,
DAVID HAIGHT, an individual; STEPHEN WETMORE, individually and in his official capacity; DOUGLAS THACKERY, individually and in his official capacity; OREGON DEPARTMENT OF FORESTRY, a government agency; PETER DAUGHERTY, State Forester, Oregon Department of Forestry, in his official capacity; OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, a government agency; RICHARD WHITMAN, Director of the Oregon Department of Environmental Quality, in his official capacity; OREGON DEPARTMENT OF FISH AND WILDLIFE, a government agency; CURT MELCHER, Director of the Oregon Department of Fish and Wildlife, in his official capacity; DOES 1-10, individually and/or in their official capacities. Defendants.
OPINION & ORDER
D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
Brimstone Natural Resources Co., John West, and Robert Stumbo
request declaratory relief for preemption, void for
vagueness, contract rights, substantive and procedural due
process, and equal protection issues. Second Am. Compl.
¶¶ 1-7 (#26). Additionally, Plaintiffs request
monetary relief for alleged procedural due process and equal
protection violations, each claim alleging one million
dollars in damages. Id. ¶¶ VIII-DC
Plaintiffs also allege an unconstitutional taking without
just compensation and seek one million dollars in damages.
Id. ¶¶ 6; VII. The Court has jurisdiction
over this action pursuant to 28 U.S.C. § 1331 because
the asserted claims include a federal question arising under
42 U.S.C. § 1983.
matter comes before the Court on a Motion to Dismiss (#29)
filed by Defendants David Haight, Stephen Wetmore, Douglas
Thackery, Curt Melcher, Peter Daugherty, Richard Whitman, the
Oregon Department of Forestry, the Oregon Department of
Environmental Quality, and the Oregon Department of Fish and
Wildlife ("Defendants"). For the reasons below,
Defendants' motion is GRANTED. Defendants have also filed
a Motion for Judicial Notice (#30). Plaintiffs do not contest
the motion, and it is GRANTED. The parties have entered full
consent to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c)(1).
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
motion to dismiss will be granted where the plaintiff fails
to state a claim upon which relief may be granted. In order
to state a claim for relief, a pleading 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).
"A motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted 'tests the legal sufficiency of a
claim.'" Conservation Force v. Salazar, 646
F.3d 1240, 1242 (9th Cir. 2011) (quoting Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001)).
under Rule 12(b)(6) is proper "if there is a 'lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.'"
Id. (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). "To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When evaluating a motion to dismiss, the court may
first identify and strike allegations that are mere legal
conclusions. Id. However, the court must accept
allegations of fact as true and construe those allegations in
the light most favorable to the non-moving party. Id.
Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir.
2007) (internal citations omitted).
general, a court cannot consider any material outside the
pleadings when ruling on a motion to dismiss unless the
motion is treated as one for summary judgment and the parties
are "given reasonable opportunity to present all
materials made pertinent to such motion by Rule 56."
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
Cir. 2001) (quoting Fed. R Civ. P. 12(b)(6)). However, there
are two exceptions to this rule. Id.
a court is not required to convert a motion to dismiss into a
motion for summary judgment if it is merely considering
"material which is properly submitted as part of the
complaint." Id. (internal citations omitted).
Such materials may include documents specifically referred to
and relied upon in the complaint, so long as the authenticity
of the documents is uncontested. Id. Second, a court
may take judicial notice of "matters of public
record" under Federal Rule of Evidence 201. Id.
at 689 (quoting Mack v. South Bay Beer Distrib., 798
F.3d 1279, 1282 (9th Cir. 1986)). Rule 201 enables the court
to take judicial notice of facts that are "not subject
to reasonable dispute" because they are (1)
"generally known within the trial court's
territorial jurisdiction," or (2) "can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned." Fed.R.Evid. 201(b).
For instance, a court may take judicial notice of records and
reports of administrative bodies. See Anderson v.
Holder, 673 F.3d 1089 (9th Cir. 2012) (taking judicial
notice of second appeal and merging it with earlier appeal).
John West and Robert Stumbo are fifty percent shareholders of
Plaintiff Brimstone Natural Resources Co. ("BNR"),
an Oregon corporation that owns property located along Dog
Creek ("Dog Creek Property") and Brimstone Road
("Brimstone Property") in Josephine County, Oregon.
Second Am. Compl. ¶¶ 13-15, 28-29 (#26). Only the
Brimstone Property appears to be at issue in this case. As
alleged, the Brimstone Property originates in a land patent
issued in 1883 under the authority of the 1820 Land Act and
supplemental legislation. Id. ¶ 33. Plaintiffs
believe there is gold on the property and intend to conduct a
mining operation to retrieve it. Id. ¶¶
order to conduct their gold mining operation as they
envisioned it, Plaintiffs harvested several trees in the
riparian management area of the Brimstone Property during the
summer of 2013. Ex. 101 at 7 (#30); see Second Am. Compl.
¶ 72 (#26). They sold this timber commercially in
violation of the Oregon Forest Practices Act (OFPA). Ex. 101
at 7 (#30); OAR 629-600-0050. In response to public
complaints about the timber harvest, the Oregon Department of
Forestry (ODF) investigated the property in September 2013.
Ex. 101 at 8 (#30). ODF Forester, Stephen Wetmore, found
Plaintiffs had removed several trees in the riparian
management zone of the property. Id. Defendant
Wetmore issued citations (#13-SW022, #13-SW023, and
#13-SW024; "2013 Repair Orders") requiring
Plaintiffs to cease further harvesting operations and repair
damage by replanting and maintaining new trees on the
property. Ex. 101 at 9-10 (#30); Second Am. Compl. ¶ 69
(#26), Plaintiffs requested an administrative hearing to
contest the citations. See Ex. 101 at 3 (#30).
administrative hearing was held on November 21, 2013. Ex. 101
at 3 (#30). The Administrative Law Judge ("ALJ")
concluded that Plaintiffs had failed to retain trees in the
riparian management zone in violation of the OFPA. Ex. 101 at
13 (#30). The ALJ also considered and ultimately rejected
Plaintiffs' argument that the Mining Act of 1872
("The Mining Act"), 30 U.S.C. §§ 22-54,
and the federal mining patent for Brimstone Property
preempted the OFPA, Ex. 101 at 17-20 (#30). The ALJ issued a
Final Order affirming citations #13-SW023 and #13-SW024,
which required Plaintiffs to cease further violation and
repair damages on the land by replanting approximately 500
trees and maintaining them for four years. Ex. 101 at 11-12,
25 (#30) (#13-SW022 was not at issue in this hearing).
According to the administrative record, Plaintiffs have not
yet complied with the Repair Order, Ex. 103 at 2 (#30).
the November hearing, defendant Wetmore also indicated that
Plaintiffs could avoid some of the 2013 Repair Order
requirements if they submitted and gained approval for a Plan
for Alternate Practice ("PFAP"). Second Am. Compl.
¶ 71 (#26); Ex. 102 at 11 (#30); OAR 629-605-0173.
Although the OFPA's purpose is to preserve forestland
properties such as the Brimstone Property, 44 ORS § 527,
630, the legislation allows for the possible conversion of
forestland to other uses through the PFAP process, 44 ORS
§ 527.730; OAR 629-605-0173. PFAPs are commonly approved
to convert forestland to agricultural uses; however, before
this case, ODF staff had not encountered a PFAP application
for converting forestland to mining purposes. Ex. 102 at 11
allege that, in reliance on Mr. Wetmore's statements,
they abandoned then-appeal of the 2013 Repair Orders and
pursued a PFAP. Second Am. Compl. ¶ 71 (#26). Plaintiffs
met with Mr. Wetmore in May 2014, at which time Mr. Wetmore
encouraged them to show reasonable progress toward conversion
of the property by submitting a written PFAP application.
Id. ¶ 84; Ex. 102 at 11 (#30). Despite this
meeting, Plaintiffs did not submit a written PFAP application
until November 2014, more than twelve months after they
learned of this option. Ex. 102 at 11 (#30). Plaintiffs have
not yet been approved for a PFAP and allege they were
informed the application had expired on March 6, 2015, Second
Am. Compl. ¶ 95 (#26), and on December 31, 2015,
subsequent hearing regarding all three citations, the ALJ
issued a civil penalty of $4, 950 against Plaintiffs. Ex. 102
at 14 (#30). In January 2016, Defendant ODF issued an order
prohibiting further commercial timber operations by
Plaintiffs until the fines were paid and either reforestation
occurred or a PFAP was approved ("Order to
Prohibit"). Ex. 103 at 2 (#30). In response, Plaintiffs
commenced this action, alleging that Defendants abused their
authority in order to prevent Plaintiffs from acting on their
plans to mine. Second Am. Compl. ¶¶ 100-104 (#26).
Plaintiffs also allege that Defendants fabricated impossible
and variable requirements to obtain approval for a PFAP and,
in doing so, have limited the use of Plaintiffs' property
to forestland. Id.
contend the following: (1) The OFPA, as applied in this case,
is preempted by federal mining laws, Second Am. Compl. ¶
118 (#26); (2) Defendants' actions have infringed upon a
heretofore unrecognized "fundamental property
right" of individuals "to use and develop their
property as they choose" in violation of the 14th
Amendment, Id. ¶¶ 123-26; (3) the OFPA, as
applied in this case, is void for vagueness and thus
unconstitutional, Id. ¶ 132; (4)
Defendants' actions have infringed on Plaintiffs'
right to freedom of contract in violation of Article I §
10 of the Constitution, Id. ¶ 137; (5)
Defendants have violated Plaintiffs' 5th and 14th
Amendment rights to due process rights by "depriving
Plaintiffs of their constitutionally protected property
rights and providing no reasonable notice or opportunity to
be heard," Id. ¶¶ 143-43; (6)
Defendants violated the Equal Protection Clause of the 14th
Amendment by "singling Plaintiffs out for intentional
and arbitrary discrimination, [sic] because of personal
animus toward Plaintiffs," Id. ¶¶
146-47; and (7) Defendants' actions constitute an
"as applied" taking in violation of 42 USC §
1983, Id. ¶ 153. Furthermore, Plaintiffs allege
that defendants Thackery, Haight, Wetmore, and Does 1-10
have, in their individual capacities, violated
Plaintiffs' procedural due process and equal protection
rights. Id. ¶¶ 156, 161.
preliminary matter, Plaintiffs have not alleged that they
have exhausted all administrative remedies. The doctrine of
exhaustion of administrative remedies "provides
'that no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed
administrative remedy has been exhausted.'"
McKart v. U.S., 395 U.S. 185, 193 (1969) (quoting
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,
50-51 (1938)). "The basic purpose of the doctrine of
exhaustion of administrative remedies is to allow an
administrative agency to perform functions within its special
competence to make a factual record, to apply its expertise
and to correct its own errors so as to moot judicial
controversies." Aleknagek Natives Ltd. v.
Andrus, 648 F.2d 496, 499 (9th Cir. 1980). "If a
statute does not provide for exhaustion of administrative
remedies, a district court may require exhaustion in the
exercise of its discretion." Porter v. Board of
Trustees of Manhattan Beach Unified School Dist, 307
F.3d 1064, 1070 (9th Cir. 2002).
exhaustion of administrative remedies is typically required
as a condition of judicial review, courts have allowed
exceptions when exhaustion does not serve the purposes of the
doctrine or the particular administrative scheme involved.
Andrus, 648 F.2d at 499. Thus, exhaustion is not required in
the following circumstances: (1) if the prescribed
administrative remedies are "inadequate or not
efficacious," (2) if "pursuit of administrative
remedies would be a futile gesture," (3) if
"irreparable injury will occur" without immediate
judicial review, or (4) if an administrative proceeding would
be void. Id.
not disputed in this case that Plaintiffs have failed to
exhaust the available administrative remedies. First, as
alleged in the complaint, Plaintiffs had the option to appeal
the 2013 Repair Order, but they abandoned their appeal to
pursue a PFAP. Second, according to the administrative
record, Plaintiffs had the opportunity to request a hearing
regarding the 2016 Order to Prohibit within 30 days of its
issuance, Ex. 103 at 2 (#30), but Plaintiffs have not alleged
that they did so. ...