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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN R. GREEN, in his capacity CASE NO. 20cv1046-LAB-AGS 11 as trustee of the Steven R. Green 12 Living Trust Dated July 10, 2000, ORDER:
13 Plaintiff, 1) GRANTING IN PART AND 14 vs. DENYING WITHOUT PREJUDICE IN PART 15 UNITED STATES FOREST MOTION TO DISMISS 16 SERVICE, and DOES 1-100, [Dkt. 10]; and inclusive, 17 Defendants. 2) DIRECTING PLAINTIFF TO 18 SHOW CAUSE
19 Plaintiff Steven R. Green, in his capacity as trustee of the Steven R. 20 Green Living Trust Dated July 10, 2000, owns a ranch in the Cleveland 21 National Forest.1 Only one road, McCoy Ranch Road, offers access to his 22 property. But after the United States Forest Service (the “Forest Service”) 23 purchased the land under the road, the road fell into disrepair, and he lost the 24 ability to access his property with an ordinary vehicle. 25 Green asked the Forest Service to repair the road, but was told that, 26 1 For the purposes of a motion to dismiss for failure to state a claim, the Court 27 accepts the well-pleaded allegations of the Complaint as true. South Ferry LP, 1 because the road was not in its Forest Road System, the Forest Service 2 couldn’t allocate funds to repair it. The Forest Service then granted Green’s 3 neighbor a permit to maintain all but a 135-yard stretch of the road, which it 4 stated could not be maintained without a special use permit due to 5 environmental and archaeological concerns. 6 The Forest Service sought to bring McCoy Ranch Road into the Forest 7 Road System, telling Green that, once it completed that process, it would 8 maintain the remaining stretch of road to a standard that would neither 9 accommodate passenger cars nor be passable during periods of inclement 10 weather. It told him further that if he wanted to maintain the road to a higher 11 standard, he would need to apply for a special use permit. 12 Green didn’t apply for that permit and instead filed the Complaint in this 13 action, alleging that the Forest Service had taken his property in violation of 14 the Fifth Amendment and violated his property rights without affording him 15 procedural due process. The Complaint also includes a claim purporting to 16 seek relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Defendant 17 United States of America (“Defendant”) moved to dismiss Green’s claims for 18 lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure 19 to state a claim under Fed. R. Civ. P. 12(b)(6). 20 As discussed below, the Motion is GRANTED IN PART as to Green’s 21 Fifth Amendment takings claim and his Declaratory Judgment Act claim. It is 22 DENIED WITHOUT PREJUDICE as to his due process claim, and Green is 23 ORDERED TO SHOW CAUSE why that claim should not be dismissed for 24 lack of subject matter jurisdiction. 25 STANDARD OF REVIEW 26 Federal courts have limited subject matter jurisdiction. A motion to 27 dismiss under Rule 12(b)(1) calls on the Court to evaluate whether the 1 showing that they do. Kingman Reef Atoll Invs., L.L.C. v. United States, 541 2 F,3d 1189, 1197 (9th Cir. 2008). 3 A Rule 12(b)(6) motion to dismiss, on the other hand, places the burden 4 on the movant and tests whether the pleading provides “a short and plain 5 statement of the claim showing that the pleader is entitled to relief, in order to 6 give the defendant fair notice of what the claim is and the grounds upon which 7 it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 8 marks and citation omitted). The required short and plain statement “does not 9 need detailed factual allegations,” only “factual allegations . . . enough to raise 10 a right to relief above the speculative level . . . on the assumption that all the 11 allegations in the complaint are true.” Id. (internal marks and citations 12 omitted). The Court must make all reasonable inferences that can be made 13 in the plaintiff’s favor. Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 14 2013). 15 If the defendant can’t be liable, even after making those inferences and 16 accepting the pleading’s allegations as true, the pleading does not “show[] that 17 the pleader is entitled to relief,” and so the Court must dismiss it. See 18 Twombly, 550 U.S. at 555. 19 The Court may also grant a motion to dismiss where the non-movant 20 fails to oppose it. See CivLR 7.1(f)(3)(c). 21 DISCUSSION 22 I. Green Fails to State a Claim under the Takings Clause 23 Green first seeks injunctive relief under the Fifth Amendment’s Takings 24 Clause, which “proscribes taking [private property] without just compensation.” 25 Williamson Cty. Regional Planning Com’n v. Hamilton Bank of Johnson City, 26 473 U.S. 172, 194 (1985), overruled on other grounds by Knick v. Twp. of 27 Scott, 139 S. Ct. 2162 (2019). Because the Takings Clause protects only the 1 relief is not available to enjoin [such a] taking.” Ruckelshaus v. Monsanto, 467 2 U.S. 986, 1016 (1984). A takings claim that seeks only injunctive relief must 3 be dismissed under Fed. R. Civ. P. 12(b)(6). 4 Green seeks only injunctive relief in connection with his takings claim, 5 and he offers no argument in opposition to Defendant’s motion to dismiss this 6 claim. The Motion is GRANTED as to Green’s Takings Clause claim, which 7 is DISMISSED WITHOUT PREJUDICE BUT WITH LEAVE TO AMEND. If 8 Green responds to the order to show cause discussed below by filing an 9 amended complaint, his takings claim may be amended by the same deadline. 10 Otherwise, Green may file an amended pleading no later than 14 days after 11 the Court resolves the order to show cause discussed below. 12 II. The Court Doesn’t Appear to Have Jurisdiction over Green’s 13 Procedural Due Process Claim 14 Defendant next asks the Court to dismiss Green’s claim for violation of 15 procedural due process, arguing that the claim is derivative of his Takings 16 Clause claim and so must be dismissed. The Court has subject matter 17 jurisdiction over a claim for violation of procedural due process so long as the 18 plaintiff alleges facts sufficient to state such a violation. Anderson v. Babbitt, 19 230 F.3d 1158, 1163 (9th Cir. 2000). 20 Defendant argues only that substantive due process claims for harm 21 arising from governmental interference with private property interests are 22 barred by the Takings Clause, because such claims are “addressed by the 23 explicit textual provisions of [that Clause].” Madison v. Graham, 316 F.3d 867, 24 871 (9th Cir. 2002); see also Ventura Mobilhome Communities Owners Ass’n 25 v. City of San Buenaventura, 371 F.3d 1046, 1054 (9th Cir. 2004). That 26 premise does not hold for procedural due process claims, which “[are] not 27 rooted in the notions of adequate compensation and economic restitution but 1 adequate forum for the aggrieved to air his grievance.” Weinberg v.
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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN R. GREEN, in his capacity CASE NO. 20cv1046-LAB-AGS 11 as trustee of the Steven R. Green 12 Living Trust Dated July 10, 2000, ORDER:
13 Plaintiff, 1) GRANTING IN PART AND 14 vs. DENYING WITHOUT PREJUDICE IN PART 15 UNITED STATES FOREST MOTION TO DISMISS 16 SERVICE, and DOES 1-100, [Dkt. 10]; and inclusive, 17 Defendants. 2) DIRECTING PLAINTIFF TO 18 SHOW CAUSE
19 Plaintiff Steven R. Green, in his capacity as trustee of the Steven R. 20 Green Living Trust Dated July 10, 2000, owns a ranch in the Cleveland 21 National Forest.1 Only one road, McCoy Ranch Road, offers access to his 22 property. But after the United States Forest Service (the “Forest Service”) 23 purchased the land under the road, the road fell into disrepair, and he lost the 24 ability to access his property with an ordinary vehicle. 25 Green asked the Forest Service to repair the road, but was told that, 26 1 For the purposes of a motion to dismiss for failure to state a claim, the Court 27 accepts the well-pleaded allegations of the Complaint as true. South Ferry LP, 1 because the road was not in its Forest Road System, the Forest Service 2 couldn’t allocate funds to repair it. The Forest Service then granted Green’s 3 neighbor a permit to maintain all but a 135-yard stretch of the road, which it 4 stated could not be maintained without a special use permit due to 5 environmental and archaeological concerns. 6 The Forest Service sought to bring McCoy Ranch Road into the Forest 7 Road System, telling Green that, once it completed that process, it would 8 maintain the remaining stretch of road to a standard that would neither 9 accommodate passenger cars nor be passable during periods of inclement 10 weather. It told him further that if he wanted to maintain the road to a higher 11 standard, he would need to apply for a special use permit. 12 Green didn’t apply for that permit and instead filed the Complaint in this 13 action, alleging that the Forest Service had taken his property in violation of 14 the Fifth Amendment and violated his property rights without affording him 15 procedural due process. The Complaint also includes a claim purporting to 16 seek relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Defendant 17 United States of America (“Defendant”) moved to dismiss Green’s claims for 18 lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure 19 to state a claim under Fed. R. Civ. P. 12(b)(6). 20 As discussed below, the Motion is GRANTED IN PART as to Green’s 21 Fifth Amendment takings claim and his Declaratory Judgment Act claim. It is 22 DENIED WITHOUT PREJUDICE as to his due process claim, and Green is 23 ORDERED TO SHOW CAUSE why that claim should not be dismissed for 24 lack of subject matter jurisdiction. 25 STANDARD OF REVIEW 26 Federal courts have limited subject matter jurisdiction. A motion to 27 dismiss under Rule 12(b)(1) calls on the Court to evaluate whether the 1 showing that they do. Kingman Reef Atoll Invs., L.L.C. v. United States, 541 2 F,3d 1189, 1197 (9th Cir. 2008). 3 A Rule 12(b)(6) motion to dismiss, on the other hand, places the burden 4 on the movant and tests whether the pleading provides “a short and plain 5 statement of the claim showing that the pleader is entitled to relief, in order to 6 give the defendant fair notice of what the claim is and the grounds upon which 7 it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 8 marks and citation omitted). The required short and plain statement “does not 9 need detailed factual allegations,” only “factual allegations . . . enough to raise 10 a right to relief above the speculative level . . . on the assumption that all the 11 allegations in the complaint are true.” Id. (internal marks and citations 12 omitted). The Court must make all reasonable inferences that can be made 13 in the plaintiff’s favor. Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 14 2013). 15 If the defendant can’t be liable, even after making those inferences and 16 accepting the pleading’s allegations as true, the pleading does not “show[] that 17 the pleader is entitled to relief,” and so the Court must dismiss it. See 18 Twombly, 550 U.S. at 555. 19 The Court may also grant a motion to dismiss where the non-movant 20 fails to oppose it. See CivLR 7.1(f)(3)(c). 21 DISCUSSION 22 I. Green Fails to State a Claim under the Takings Clause 23 Green first seeks injunctive relief under the Fifth Amendment’s Takings 24 Clause, which “proscribes taking [private property] without just compensation.” 25 Williamson Cty. Regional Planning Com’n v. Hamilton Bank of Johnson City, 26 473 U.S. 172, 194 (1985), overruled on other grounds by Knick v. Twp. of 27 Scott, 139 S. Ct. 2162 (2019). Because the Takings Clause protects only the 1 relief is not available to enjoin [such a] taking.” Ruckelshaus v. Monsanto, 467 2 U.S. 986, 1016 (1984). A takings claim that seeks only injunctive relief must 3 be dismissed under Fed. R. Civ. P. 12(b)(6). 4 Green seeks only injunctive relief in connection with his takings claim, 5 and he offers no argument in opposition to Defendant’s motion to dismiss this 6 claim. The Motion is GRANTED as to Green’s Takings Clause claim, which 7 is DISMISSED WITHOUT PREJUDICE BUT WITH LEAVE TO AMEND. If 8 Green responds to the order to show cause discussed below by filing an 9 amended complaint, his takings claim may be amended by the same deadline. 10 Otherwise, Green may file an amended pleading no later than 14 days after 11 the Court resolves the order to show cause discussed below. 12 II. The Court Doesn’t Appear to Have Jurisdiction over Green’s 13 Procedural Due Process Claim 14 Defendant next asks the Court to dismiss Green’s claim for violation of 15 procedural due process, arguing that the claim is derivative of his Takings 16 Clause claim and so must be dismissed. The Court has subject matter 17 jurisdiction over a claim for violation of procedural due process so long as the 18 plaintiff alleges facts sufficient to state such a violation. Anderson v. Babbitt, 19 230 F.3d 1158, 1163 (9th Cir. 2000). 20 Defendant argues only that substantive due process claims for harm 21 arising from governmental interference with private property interests are 22 barred by the Takings Clause, because such claims are “addressed by the 23 explicit textual provisions of [that Clause].” Madison v. Graham, 316 F.3d 867, 24 871 (9th Cir. 2002); see also Ventura Mobilhome Communities Owners Ass’n 25 v. City of San Buenaventura, 371 F.3d 1046, 1054 (9th Cir. 2004). That 26 premise does not hold for procedural due process claims, which “[are] not 27 rooted in the notions of adequate compensation and economic restitution but 1 adequate forum for the aggrieved to air his grievance.” Weinberg v. Whatcom 2 County, 241 F.3d 746, 752 (9th Cir. 2001). 3 But an additional problem remains—one that the parties didn’t brief. To 4 state a violation of procedural due process, and thus establish subject matter 5 jurisdiction, the Complaint must allege “two distinct elements: (1) a deprivation 6 of a constitutionally protected liberty or property interest, and (2) a denial of 7 adequate procedural protections.” Brewster v. Bd. of Educ. of Lynwood 8 Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Green’s Complaint 9 appears to fail to allege the second element. 10 He alleges that Defendant’s refusal to allow him to maintain McCoy 11 Ranch Road deprived him of his right to access his property, and he argues 12 that he “received neither notice nor an opportunity to be heard regarding 13 Defendants’ deprivation of his right to access [his property].” (Dkt. 1 ¶ 114). 14 But he acknowledges that he would be able to maintain McCoy Ranch Road, 15 and so access his property, if he received a special use permit. (Id. ¶ 92). 16 And he doesn’t allege that he ever applied for a permit. 17 Instead, he explains that Defendant has already told him that it will not 18 grant the permit, so applying for it would be futile. That contention is at odds 19 with his own allegations. Defendant allegedly stated that it “considers the road 20 to provide reasonable access to the property” and that, if it added the road to 21 its Forest Road System, Defendant itself would maintain the road only to a 22 level that “[m]ay not be passable during periods of inclement weather” and 23 would not accommodate “passenger car traffic.” (Id. ¶ 91). But the same 24 communication informed Green that a special use permit would allow Green 25 himself to maintain the road “to a higher standard.” (Id. ¶ 92). This does not 26 indicate, as Green concludes, that Defendant had determined that no further 27 maintenance would be allowed. Instead, Defendant gave Green notice that 1 he would need to seek a special use permit to maintain it himself. And it 2 offered Green the opportunity to be heard in the form of the permit application 3 process, but he declined that opportunity. 4 The Court doubts that it has subject matter jurisdiction, but not for the 5 reasons addressed in the briefing. The Motion to Dismiss is DENIED 6 WITHOUT PREJUDICE. Green is ORDERED TO SHOW CAUSE why the 7 Court should not dismiss his procedural due process claim for the reasons 8 described above. He may do so by filing a brief no longer than five pages or 9 an amended pleading on or before March 28, 2022. If Green responds with 10 a brief, Defendant may file a responsive brief no longer than four pages on or 11 before April 4, 2022. 12 III. Declaratory Relief 13 Finally, the Complaint includes a claim purportedly under the 14 Declaratory Judgment Act, 28 U.S.C. § 2201. As Defendant argues, that 15 statute does not support a standalone claim, but instead provides a remedy 16 for other claims. Green offers no opposition to the dismissal of the Complaint’s 17 Declaratory Judgment Act claim. The Motion to Dismiss is GRANTED as to 18 that claim, which is DISMISSED WITH PREJUDICE.2 19 CONCLUSION 20 Green’s Takings Clause claim seeks relief not available to redress a 21 violation of that Clause, so the Motion to Dismiss is GRANTED IN PART as 22 to that claim, which is DISMISSED WITHOUT PREJUDICE under Rule 23 12(b)(6). The Declaratory Judgment Act doesn’t establish a claim at all, but a 24 remedy, so Green’s Declaratory Judgment Act claim is DISMISSED WITH 25 PREJUDICE under the same Rule. 26 2 The Court does not decide whether Green may rely on the Declaratory 27 Judgment Act to seek the remedies provided by that statute in connection with 1 The Motion is DENIED IN PART and WITHOUT PREJUDICE as to 2 ||Green’s procedural due process claim. Green is ORDERED TO SHOW 3 || CAUSE why that claim should not be dismissed for lack of subject matter 4 || jurisdiction. 5 IT IS SO ORDERED. 6 || Dated: March 15, 2022 Leese 44. (byw 7 Hon. LARRY ALAN BURNS 3 United States District Judge
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