1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lasse Norgaard-Larsen, et al., No. CV-20-02467-PHX-GMS
10 Plaintiffs, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. 14
15 16 Pending before the Court is Defendant City of Phoenix’s (“Phoenix”) Motion to 17 Dismiss. (Doc. 10.)1 Also before the Court is Plaintiffs’ Motion to Compel Disclosure of 18 Freedom of Information Act (“FOIA”) Information, (Doc. 12), and Motion for Summary 19 Judgment, (Doc. 16). For the following reasons, Defendant’s Motion is granted in part and 20 denied in part and Plaintiffs’ motions are denied. 21 BACKGROUND 22 Papago Park is a municipal park in the cities of Phoenix and Tempe, Arizona. The 23 Papago Baseball Facility (“Baseball Facility”) is in Papago Park. (Doc. 1 at 2–3.) On 24 November 26, 2018, Phoenix signed a lease (“Lease”) with Scottsdale, giving Scottsdale 25 use of the Baseball Facility. Id. at 5. On December 1, 2018, Scottsdale signed a sublease 26 (“Sublease”) with the San Francisco Giants Baseball Club (“Giants”), providing use of the 27 1 Defendant City of Scottsdale (“Scottsdale”) filed notice that it joins in on Phoenix’s reply 28 to the motion to dismiss. (Doc. 15.) Scottsdale also filed a notice that it joins Phoenix’s response to the motion for summary judgment. (Doc. 18.) 1 Baseball Facility to the Giants and allowing the Giants to make improvements to the 2 Baseball Facility. Id. 3 Friends of Papago Park (“FOPP”) is an “unincorporated non-profit association of 4 park users and visitors organized to preserve and protect the native habitat of Papa[g]o 5 Park.” Id. at 1. The Complaint alleges that the Lease and Sublease violate deed restrictions 6 in the title documents for Papago Park from the federal government. Id. at 5. Accordingly, 7 Plaintiffs Lasse Norgaard-Larsen and J. Arthur Deal, on behalf of FOPP, (collectively, 8 “Plaintiffs”) brought suit against Defendants, alleging violation of the Land and Water 9 Conservation Fund Act of 1965 (“LWCFA”); a provision of the Federal Property and 10 Administrative Services Act (“FPASA”), 40 U.S.C. § 550(e); the Property Clause of the 11 U.S. Constitution; and the Contracts Clause of the U.S. Constitution. (Doc. 1 at 2.) 12 DISCUSSION 13 I. Motion to Dismiss 14 a. Legal Standards 15 1. Rule 12(b)(1) 16 “The party asserting jurisdiction has the burden of proving all jurisdictional facts.” 17 Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). In effect, the 18 Court presumes lack of jurisdiction until the plaintiff proves otherwise. See Kokkonen v. 19 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The defense of lack of subject 20 matter jurisdiction may be raised at any time by the parties or the court. Fed. R. Civ. P. 21 12(h)(3). 22 The Constitution grants the federal courts the power to hear only “Cases” and 23 “Controversies.” U.S. Const. art. III, § 2. “Standing includes two components: Article III 24 constitutional standing and prudential standing.” Yakima Valley Mem’l Hosp. v. Wash. 25 State Dep’t of Health, 654 F.3d 919, 932 (9th Cir. 2011). The prudential standing analysis 26 includes “whether a particular plaintiff has been granted a right to sue by the statute under 27 which he or she brings suit.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 28 (9th Cir. 2005) (internal quotation marks and citation omitted). 1 2. Rule 12(b)(6) 2 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 3 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 4 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 5 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 7 for failure to state a claim, “allegations of material fact are taken as true and construed in 8 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 9 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 10 presumption of truthfulness, and “conclusory allegations of law and unwarranted 11 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 12 696, 699 (9th Cir. 1998). 13 b. Analysis 14 1. Property Clause 15 The Property Clause provides that “Congress shall have Power to dispose of and 16 make all needful Rules and Regulations respecting the Territory or other Property 17 belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2. In other words, the clause 18 grants Congress plenary power to “determine what are needful rules respecting the public 19 lands.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (internal quotations and citation 20 omitted). 21 Contrary to Defendants’ assertion, the third-party standing doctrine does not bar 22 Plaintiffs from bringing their Property Clause action. The third-party standing doctrine 23 bars litigants from raising another person’s legal rights. Lexmark Int’l, Inc. v. Static 24 Control Components, Inc., 572 U.S. 118, 126 (2014). In Bond v. United States, the 25 Supreme Court explained that “[a]n individual has a direct interest in objecting to laws that 26 upset the constitutional balance between the National Government and the States when the 27 enforcement of those laws causes injury that is concrete, particular, and redressable.” 564 28 U.S. 211, 222 (2011). Accordingly, the Supreme Court held that where a plaintiff “seeks 1 to vindicate her own constitutional interests[,]” the plaintiff, in a proper case, “can assert 2 injury from governmental action taken in excess of the authority that federalism defines.” 3 Id. at 220. Here, Plaintiffs assert that Phoenix and Scottsdale exceeded their authority by 4 violating restrictions put on Papago Park by the federal government. (Doc. 1 at 4.) 5 Applying the logic in Bond, Plaintiffs have a direct interest in objecting to this upset in 6 balance. 7 Defendants also fail to show that the claim should be dismissed on the grounds that 8 the federal government no longer has a property interest in Papago Park. For several 9 different reasons, the Complaint alleges that the federal government still has a property 10 interest in Papago Park. Id. at 8. As Plaintiffs’ allegations must be taken as true on a 11 motion to dismiss, Plaintiffs’ Property Clause claim remains. 12 2. LWCFA and FPASA 13 Plaintiffs’ claims pursuant to the LWCFA and FPASA are dismissed with prejudice 14 as to Defendants Phoenix and Scottsdale because neither statute allows for a private cause 15 of action.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lasse Norgaard-Larsen, et al., No. CV-20-02467-PHX-GMS
10 Plaintiffs, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. 14
15 16 Pending before the Court is Defendant City of Phoenix’s (“Phoenix”) Motion to 17 Dismiss. (Doc. 10.)1 Also before the Court is Plaintiffs’ Motion to Compel Disclosure of 18 Freedom of Information Act (“FOIA”) Information, (Doc. 12), and Motion for Summary 19 Judgment, (Doc. 16). For the following reasons, Defendant’s Motion is granted in part and 20 denied in part and Plaintiffs’ motions are denied. 21 BACKGROUND 22 Papago Park is a municipal park in the cities of Phoenix and Tempe, Arizona. The 23 Papago Baseball Facility (“Baseball Facility”) is in Papago Park. (Doc. 1 at 2–3.) On 24 November 26, 2018, Phoenix signed a lease (“Lease”) with Scottsdale, giving Scottsdale 25 use of the Baseball Facility. Id. at 5. On December 1, 2018, Scottsdale signed a sublease 26 (“Sublease”) with the San Francisco Giants Baseball Club (“Giants”), providing use of the 27 1 Defendant City of Scottsdale (“Scottsdale”) filed notice that it joins in on Phoenix’s reply 28 to the motion to dismiss. (Doc. 15.) Scottsdale also filed a notice that it joins Phoenix’s response to the motion for summary judgment. (Doc. 18.) 1 Baseball Facility to the Giants and allowing the Giants to make improvements to the 2 Baseball Facility. Id. 3 Friends of Papago Park (“FOPP”) is an “unincorporated non-profit association of 4 park users and visitors organized to preserve and protect the native habitat of Papa[g]o 5 Park.” Id. at 1. The Complaint alleges that the Lease and Sublease violate deed restrictions 6 in the title documents for Papago Park from the federal government. Id. at 5. Accordingly, 7 Plaintiffs Lasse Norgaard-Larsen and J. Arthur Deal, on behalf of FOPP, (collectively, 8 “Plaintiffs”) brought suit against Defendants, alleging violation of the Land and Water 9 Conservation Fund Act of 1965 (“LWCFA”); a provision of the Federal Property and 10 Administrative Services Act (“FPASA”), 40 U.S.C. § 550(e); the Property Clause of the 11 U.S. Constitution; and the Contracts Clause of the U.S. Constitution. (Doc. 1 at 2.) 12 DISCUSSION 13 I. Motion to Dismiss 14 a. Legal Standards 15 1. Rule 12(b)(1) 16 “The party asserting jurisdiction has the burden of proving all jurisdictional facts.” 17 Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). In effect, the 18 Court presumes lack of jurisdiction until the plaintiff proves otherwise. See Kokkonen v. 19 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The defense of lack of subject 20 matter jurisdiction may be raised at any time by the parties or the court. Fed. R. Civ. P. 21 12(h)(3). 22 The Constitution grants the federal courts the power to hear only “Cases” and 23 “Controversies.” U.S. Const. art. III, § 2. “Standing includes two components: Article III 24 constitutional standing and prudential standing.” Yakima Valley Mem’l Hosp. v. Wash. 25 State Dep’t of Health, 654 F.3d 919, 932 (9th Cir. 2011). The prudential standing analysis 26 includes “whether a particular plaintiff has been granted a right to sue by the statute under 27 which he or she brings suit.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 28 (9th Cir. 2005) (internal quotation marks and citation omitted). 1 2. Rule 12(b)(6) 2 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 3 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 4 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 5 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 7 for failure to state a claim, “allegations of material fact are taken as true and construed in 8 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 9 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 10 presumption of truthfulness, and “conclusory allegations of law and unwarranted 11 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 12 696, 699 (9th Cir. 1998). 13 b. Analysis 14 1. Property Clause 15 The Property Clause provides that “Congress shall have Power to dispose of and 16 make all needful Rules and Regulations respecting the Territory or other Property 17 belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2. In other words, the clause 18 grants Congress plenary power to “determine what are needful rules respecting the public 19 lands.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (internal quotations and citation 20 omitted). 21 Contrary to Defendants’ assertion, the third-party standing doctrine does not bar 22 Plaintiffs from bringing their Property Clause action. The third-party standing doctrine 23 bars litigants from raising another person’s legal rights. Lexmark Int’l, Inc. v. Static 24 Control Components, Inc., 572 U.S. 118, 126 (2014). In Bond v. United States, the 25 Supreme Court explained that “[a]n individual has a direct interest in objecting to laws that 26 upset the constitutional balance between the National Government and the States when the 27 enforcement of those laws causes injury that is concrete, particular, and redressable.” 564 28 U.S. 211, 222 (2011). Accordingly, the Supreme Court held that where a plaintiff “seeks 1 to vindicate her own constitutional interests[,]” the plaintiff, in a proper case, “can assert 2 injury from governmental action taken in excess of the authority that federalism defines.” 3 Id. at 220. Here, Plaintiffs assert that Phoenix and Scottsdale exceeded their authority by 4 violating restrictions put on Papago Park by the federal government. (Doc. 1 at 4.) 5 Applying the logic in Bond, Plaintiffs have a direct interest in objecting to this upset in 6 balance. 7 Defendants also fail to show that the claim should be dismissed on the grounds that 8 the federal government no longer has a property interest in Papago Park. For several 9 different reasons, the Complaint alleges that the federal government still has a property 10 interest in Papago Park. Id. at 8. As Plaintiffs’ allegations must be taken as true on a 11 motion to dismiss, Plaintiffs’ Property Clause claim remains. 12 2. LWCFA and FPASA 13 Plaintiffs’ claims pursuant to the LWCFA and FPASA are dismissed with prejudice 14 as to Defendants Phoenix and Scottsdale because neither statute allows for a private cause 15 of action. Courts widely recognize that there is no private cause of action under the 16 LWCFA. See, e.g., Friends of Roeding Park v. City of Fresno, 848 F. Supp. 2d 1152, 1160 17 (E.D. Cal. 2012) (“It is well-accepted that three of the federal statutes relied upon by 18 Plaintiffs (NEPA, LWCFA, and NHPA) do not create private rights of action.”); 19 Sportsmen’s Wildlife Def. Fund v. U.S. Dep’t of Interior, 40 F. Supp. 2d 1192, 1200 (D. 20 Colo. 1999) (“[N]o private right of action exists for alleged violations of the [LWCFA].”); 21 Save the Park and Build the Sch. v. Nat’l Park Serv., No. 20-CV-1080 TWR (AHG), 2020 22 WL 6504946, at *2 (S.D. Cal. Nov. 5, 2020); Seto v. Kamai’Aina Care Inc., No. 10-00351 23 SOM-BMK, 2011 WL 6780042, at *4 (D. Haw. Nov. 30, 2011). Similarly, courts have 24 held there is no private cause of action under the FPASA. See, e.g., Cooper v. Haase, 750 25 Fed. App’x. 600, 601 (9th Cir. 2019) (“[FPASA] does not provide for a private cause of 26 action.”); Northrop Univ. v. Harper, 580 F. Supp. 959, 963 (C.D. Cal. 1983). 27 3. Contracts Clause 28 The Contracts Clause restricts the power of States to disrupt contractual 1 arrangements, mandating that “[n]o state shall . . . pass any . . . Law impairing the 2 Obligation of Contracts.” U.S. Const., Art. I, § 10, cl. 1. “The threshold issue is whether 3 the state law has operated as a substantial impairment of a contractual relationship.” Sveen 4 v. Melin, 138 S. Ct. 1815, 1821–22 (2018) (internal quotations and citation omitted). For 5 there to be substantial impairment, the plaintiff must have possessed a vested contractual 6 right. Lazar v. Kroncke, 862 F.3d 1186, 1200 (9th Cir. 2017). Here, Plaintiffs do not allege 7 that they have vested contractual rights at issue. Accordingly, Plaintiffs’ Contracts Clause 8 claim fails to state a claim on which this Court could grant relief. 9 3. Statute of Limitations 10 42 U.S.C. § 1983 allows private citizens to sue for the deprivation of a right secured 11 by the United States Constitution. See AlohaCare v. Haw., Dep’t of Human Servs., 567 F. 12 Supp. 2d 1238, 1249 (D. Haw. 2008). Section 1983 does not contain a limitations period, 13 so federal courts look to the applicable state statute of limitations to determine whether a 14 complaint is timely. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Section 1983 15 actions are characterized as personal injury actions for purposes of identifying the 16 applicable statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Arizona, 17 the relevant provision is A.R.S. § 12-542, which provides for a limitations period of two 18 years from the date the cause of action accrues. Although state law provides the statute of 19 limitations, federal law determines when a civil rights claim accrues. Morales v. City of 20 Los Angeles, 214 F.3d 1151, 1153–54 (9th Cir. 2000). Under federal law, the time limit 21 on a cause of action begins to run when the plaintiff “knows or has reason to know of the 22 injury which is the basis of the action.” Trotter v. Int’l Longshoremen’s & 23 Warehousemen’s Union, Local 13, 704 F.2d 1141, 1143 (9th Cir. 1983). “Knowledge of 24 the ‘injury,’ the Ninth Circuit has explained, means knowledge of the ‘actual injury,’ not 25 when the plaintiff ‘suspects a legal wrong.’” Karasek v. Regents of Univ. of Cal., No. 3:15- 26 cv-03717-WHO, 2020 WL 6684869, at *8 (N.D. Cal. Nov. 12, 2020) (quoting Lukovsky v. 27 City & Cnty. of San Francisco, 535 F.3d 1044, 1049 (9th Cir. 2008)). 28 Plaintiffs assert that they became aware of their injury beginning on September 27, 1 2019. (Doc. 13 at 13.) In Exhibit D to the Complaint, Plaintiffs indicate that they first 2 became curious about what was happening at Papago Park after Plaintiff Deal was blocked 3 from walking on a trail because of a construction fence in September 2019. (Doc. 1-4 at 4 45.) It is not clear from the Complaint whether the Lease and Sublease, entered into in 5 2018, would have provided Plaintiffs with enough information to know that the trails they 6 liked to walk on would be blocked. Accordingly, as September 2019 is within the statute 7 of limitations period, Defendants fail to show Plaintiffs’ claims are time barred. 8 II. Motion to Compel Disclosure of FOIA Information 9 Plaintiffs seek disclosure of documents from the United States Department of the 10 Interior and Arizona State Parks pursuant to the FOIA. As the Department of the Interior 11 and Arizona State Parks are not parties to this lawsuit, the Court cannot order production 12 of their records under the FOIA. Plaintiffs’ motion to compel disclosure is therefore 13 denied. 14 III. Motion for Summary Judgment 15 1. Legal Standard 16 The purpose of summary judgment is “to isolate and dispose of factually 17 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 18 judgment is appropriate if the evidence, viewed in the light most favorable to the 19 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 20 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 21 over facts that might affect the outcome of the suit will preclude the entry of summary 22 judgment, and the disputed evidence must be “such that a reasonable jury could return a 23 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 24 (1986). 25 “[A] party seeking summary judgment always bears the initial responsibility of 26 informing the district court of the basis for its motion and identifying those portions of [the 27 record] which it believes demonstrate the absence of a genuine issue of material fact.” 28 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 1 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 2 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 3 56(c)(1). A district court has no independent duty “to scour the record in search of a 4 genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 5 2. Analysis 6 As discussed above, it is not yet clear whether the statute of limitations bars 7 Plaintiffs’ claims. Accordingly, as there is a genuine dispute of material fact, Plaintiffs’ 8 motion for summary judgment is denied. 9 CONCLUSION 10 For the reasons provided above, Plaintiffs’ LWCFA and FPASA claims are 11 dismissed with prejudice as to Phoenix and Scottsdale and Plaintiffs' Contracts Clause 12 claim is dismissed with leave to amend. If Plaintiffs choose to amend their Complaint, 13 they must abide by Federal Rules of Civil Procedure 8(a)(2) and 10(b) and Local Rule of 14 Civil Procedure 7.1. If Plaintiffs fail to follow these rules, any amended complaint will be 15 subject to dismissal. Additionally, Plaintiffs’ motion to compel and motion for summary 16 judgment are denied. 17 Accordingly, 18 IT IS THEREFORE ORDERED that Defendant City of Phoenix’s Motion to 19 Dismiss (Doc. 10) is GRANTED in part and DENIED in part as follows: 20 1. Plaintiffs’ LWCFA and FPASA claims are dismissed with prejudice as to 21 City of Phoenix and City of Scottsdale. Plaintiffs’ Contracts Clause claim 22 is dismissed with leave to amend. 23 2. Plaintiffs’ Property Clause claim remains. 24 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Disclosure of 25 F.O.I.A. Information (Doc. 12) is DENIED. 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment 2|| (Doc. 16) is DENIED. 3 Dated this 9th day of July, 2021. : Wars ) ; A Whacrsay Sooo) 6 Chief United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-8-