Green v. United States Forest Service

Opinion

1 2 3 4 5 6 7 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 SUA SPONTE Plaintiff, 14 v. 15 UNITED STATES FOREST 16 SERVICE, and DOES 1-100, inclusive, 17 18 Defendants. 19 20 Steven R. Green (“Green”) owns a ranch in the Cleveland National 21 Forest that is accessible only through McCoy Ranch Road, owned by the 22 United States Forest Service (“Forest Service”). (Dkt. 1 ¶ 10). After the road 23 deteriorated due to inclement weather, public use, and a lack of functioning 24 drainage features, Green and his neighbor asked the Forest Service to repair 25 it. (Id. ¶¶ 25–30). Green’s neighbor was granted an emergency repair permit 26 to maintain all but the last 135-yard stretch of the road before Green’s property. 27 (Id. ¶¶ 55, 74). This stretch of road was distinguished by the Forest Service 1 “environmental review.” (Id. ¶¶ 55, 85). The Forest Service then set out about 2 conducting the environmental assessment of the surrounding area. (Id. ¶¶ 85– 3 87). 4 In December 2019, the Forest Service communicated that it intended to 5 add McCoy Ranch Road to the Forest Road System, classifying it as a 6 “Maintenance Level 2” road. (Id. ¶ 91). The Forest Service also notified Green 7 that he could apply for a special use permit if he wished to maintain this portion 8 of the road at a higher maintenance level. (Id. ¶ 92). Green didn’t do so, but 9 instead filed this action. 10 On March 15, 2022, this Court issued an order to show cause why this 11 claim should not be dismissed due to lack of subject matter jurisdiction under 12 Fed. R. Civ. P. 12(b)(1). (Dkt. 14). Green responded to the order on March 28, 13 2022, (Dkt. 15), but the Court remains unpersuaded that subject matter 14 jurisdiction has been established. For the reasons outlined below, the Court 15 DISMISSES Green’s procedural due process claim. 17 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a plaintiff 18 must allege sufficient facts for the Court to have subject matter jurisdiction over 19 the claim. Fed. R. Civ. P. 12(b)(1). The Due Process Clause of the Fourteenth 20 Amendment states that the government may not deprive an individual of “life, 21 liberty, or property, without due process of law, nor shall private property be 22 taken for public use without just compensation.” U.S. Const. Amend. XIV. To 23 allege a Due Process violation under the 14th Amendment, plaintiffs must 24 sufficiently claim that there was “(1) a deprivation of a constitutionally protected 25 property interest, and (2) a denial of adequate procedural protections.” 26 Brewster v. Bd. Of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th 27 Cir. 1998). Adequate procedural protections include providing the owner of 1 424 U.S. 319, 348 (1976). 2 In his response to the order to show cause, Green argues that he was 3 denied both notice and an opportunity to be heard due to the Forest Service’s 4 “bad faith tactics” in causing “delay after delay” in the administrative process 5 of repairing the road, which he believes was for the purpose of “prevent[ing] 6 [him] from maintaining his road.” (Dkt. 15 at 5). He contends that further 7 administrative review is “futile,” and that his interest in an immediate judicial 8 review outweighs the government’s interest in efficiency and administrative 9 autonomy. (Dkt. 15 at 5) (citing McCarthy v. Madigan, 503 U.S. 140, 145 10 (1992). But Green’s factual allegations support the opposite conclusion. 11 The Forest Service provided Green with plenty of notice as to the 12 outstanding issues associated with maintaining the last 135-yard section of the 13 road. Green was first made aware of the “archeological concerns” and need 14 for an environmental assessment of McCoy Ranch Road back in March 2019, 15 when the Forest Service offered the limited emergency repair permit to Green’s 16 neighbor. (Dkt. 1 ¶ 55). The Forest Service then offered Green the opportunity 17 to apply for the special use permit after the road was designated as 18 “Maintenance Level 2.” (Id. ¶ 91). They also provided Green with the 19 opportunity to be heard numerous times, meeting on multiple occasions and 20 maintaining an open line of communication via email whereby Green was able 21 to express his concerns. (Id. ¶¶ 50, 55). Inviting Green to apply for the special 22 use permit then provided him with a more formal opportunity to argue his case, 23 but he declined. (Id. ¶ 91). 24 Green hasn’t allayed the Court’s previously stated concern that the 25 “contention [of futility] is at odds with [Green’s] own allegations.” (See Dkt. 14 26 at 5). In his brief, Green argues that individuals are “not required indefinitely to 27 await a decision . . . before applying to a federal court,” see Smith v. Illinois 1 | concedes that he was invited to take the next step in securing a final decision 2 and instead declined the opportunity to exhaust his administrative options b' 3 | filing this complaint. (Dkt. 1 J 92). 4 “District courts need not condone the use of discovery to engage i 5 | ‘fishing expeditions.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir 6 | 2004) (citing Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3¢ 7| 1474, 1487 (5th Cir. 1995)). The Complaint hasn’t plausibly alleged that the | Forest Service had already decided not to grant Green a permit or that the 9 | review process was futile, and Green can’t now use the discovery process tc 10 | survive these pleading deficiencies. See id. 12 Because Green has failed to show cause why his procedural Dus 13 Process claim should not be dismissed for lack of subject matter jurisdiction 14 | that claim is DISMISSED. Additionally, the Court previously dismissed Green’: 15 | Fifth Amendment Takings Clause claim without prejudice but permitted him tc 16 | “file an amended pleading no later than 14 days after the Court resolves the 17 | order to show cause.” (Dkt. 14 at 4). Green has fourteen (14) days from the 18 | date of this Order to file an amended pleading as to his Takings Clause claim 19 | If Green wishes to amend his Due Process claim, he must seek leave of Cour 20 | by the same date. 21 IT IS SO ORDERED. l (buy 22 | Dated: June 28, 2022 dof 4 my 93 Hon. Larry Alan Burns United States District Judge 24 25 26 27 28