Round Lake Farms, LLC v. Natural Resources Conservation Service

• Court: District Court, E.D. Washington
• Decided: October 11, 2022
• Docket: 2:21-cv-00354
• Status: Unknown

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Oct 11, 2022 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ROUND LAKE FARMS, LLC, a No. 2:21-CV-00354-SAB 10 Washington limited liability company, 11 Plaintiff, ORDER GRANTING 12 v. DEFENDANT’S MOTON TO 13 THE UNITED STATES OF AMERICA, DISMISS 14 Defendant. 15 16 Before the Court is Defendant’s Motion to Dismiss, ECF No. 21. The 17 motion was heard without oral argument. Defendant is represented by Derek 18 Taylor and Molly Smith. Plaintiff is represented by Garrett Kitamura and Norman 19 Semanko. 20 Plaintiff filed its Complaint seeking damages for alleged harm caused from a 21 conservation planning program overseen by the Natural Resource Conservation 22 Service (“NRCS”), an agency within the United States Department of Agriculture 23 (“USDA”). Plaintiff alleges the program run by NRCS enabled unlawful 24 construction of wetland conservation sites that impaired Plaintiff’s downstream 25 senior water rights, and consequently harmed Plaintiff’s crop operation. 26 Specifically, Plaintiff argues NRCS was required to obtain the necessary water 27 permits before providing assistance in creating the wetlands. Plaintiff is bringing 28 its suit under the Federal Torts Claim Act (“FTCA”). 1 Defendant moves to dismiss the First Amended Complaint, asserting the 2 Court does not have subject matter jurisdiction to hear this the action because the 3 United States has not waived its sovereign immunity to be sued for the claims 4 being brought by Plaintiff. 5 Motion Standard 6 A defendant may seek dismissal of an action for lack of subject matter 7 jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Plaintiff has the 8 burden of proving jurisdiction when such a motion is made. Chandler v. State 9 Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). If the defendant 10 raises a factual challenge to a court’s jurisdiction, as opposed to a facial challenge 11 based solely on the allegations in the complaint, a court may consider matters 12 outside the pleadings in ruling on the motion. Roberts v. Corrothers, 812 F.2d 13 1173, 1177-78 (9th Cir. 1987). “[N]o presumptive truthfulness attaches to 14 plaintiff’s allegations, and the existence of disputed material facts will not preclude 15 the trial court from evaluating for itself the merits of jurisdictional claims.” Id. 16 Thus, a court may “hear evidence regarding jurisdiction and resolve factual 17 disputes where necessary when determining such a motion.” Id. 18 Sovereign Immunity 19 The United States has sovereign immunity and cannot be sued without its 20 consent. Lam v. United States, 979 F.3d 665, 671 (9th Cir. 2020). The Federal Tort 21 Claims Act (“FTCA”) provides such consent, in certain situations. Id. The FTCA 22 permits private suits against the United States for damages for loss of property, 23 injury, or death caused by its employee’s negligence. Id. (citation omitted). 24 Liability arises for these acts if a private person would be liable to the claimant 25 under the law of the place where the act or omission occurred. Id. Such acts are 26 typically “ordinary common-law torts.” Id. (citation omitted). The United States 27 can be held liable in tort “in the same manner and to the same extent as a private 28 individual under like circumstances.” 28 U.S.C. § 2674. This has been referred to 1 as the “private analog” requirement. Firebugh Canal Water Dist. v. United States, 2 712 F.3d 1296, 1303 (9th Cir. 2013). 3 The discretionary function exception is an important exception to the FTCA. 4 Under this exception, the United States does not waive immunity for tort claims if 5 the alleged tortfeasor was performing a discretionary function or duty when they 6 injured the plaintiff. 28 U.S.C. § 2680(a).1 This is true even if the employee abused 7 that discretion. Lam, 976 F.3d at 672. Thus, where the discretionary function 8 exception applies, the United States has not waived its sovereign immunity, and 9 the court lacks subject matter jurisdiction over a plaintiff’s claim. Id. 10 Plaintiff’s First Amended Complaint 11 Plaintiff is a Washington limited liability company based out of Soap Lake, 12 Washington. Plaintiff is a producer and distributor of hay. It uses Round Lake 13 water to irrigate about 840 acres of hay located directly south of the lake. Plaintiff 14 has a water rights certificate and claim under state law to use the Round Lake 15 water with priority dates between 1912 and 1976. Round Lake is a natural lake, at 16 least 57 ft. deep, that is part of the Crab Creek Flow System and is connected to the 17 creek through a shallow side channel. The relevant portion of Crab Creek flows 18 from east to west, running roughly adjacent to Washington State Route 28.2 19

20 1 28 U.S.C. § 2680(a) provides that the United States does not waive its sovereign immunity for: 21 Any claim based upon an act or omission of an employee of the 22 government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the 23 exercise or performance or the failure to exercise or perform a discretionary 24 function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused. 25

26 2Crab Creek is a relatively small surface water stream in the Columbia Basin of 27 central Washington, flowing generally from east to west. Upper Crab Creek runs 28 from the creek’s source in the Columbia River Plateau to Potholes Reservoir, south 1 Plaintiff relies on the Crab Creek Flow System to transport water from the 2 upper Crab Creek and replenish Round Lake. Historically, the flow system 3 combined with the water storage capacity of Round Lake has been a reliable source 4 of water for Plaintiff to exercise its water rights and sufficiently irrigate its hay 5 crops. 6 Plaintiff alleges that pursuant to the Wetland Reserve Program (WRP)4, the 7 NRCS provided permanent easements to eight entities, and provided permitting, 8

9 of Moses Lake, Washington. Lower Crab Creek runs from Potholes Reservoir to 10 the Columbia River. Round Lake is located in the Upper Crab Creek portion of the 11 watershed. 12 3According to Plaintiff, the Crab Creek Flow System undergoes an annual cycle 13 that enables Round Lake to serve as an effective water storage reservoir: 14 a. In the fall and winter months, Crab Creek is dry and has minimal flow in 15 the vicinity of Round Lake; 16 b. In the spring months, runoff in the Crab Creek watershed upstream of 17 Round Lake produces a freshet or flood with corresponding peak flows. The 18 freshet produces sufficient flow to rewet the creek and fill Round Lake. 19 c. In the summer months, the Crab Creek Flow System rapidly declines, 20 often resulting in the reach of the creek adjacent to Round Lake to go dry. 21 As a result of this cycle, the lake is disconnected from the flow system much of the 22 year, but still brimming with the water that flowed into the lake during the spring 23 freshet. 24 4The Wetlands Reserve Program (WRP) is a voluntary program in which private 25 landowners receive financial and technical assistance from the NRCS for the 26 purpose of preserving, enhancing, and restoring wetland environments on private 27 property. The private landowner retains ownership of the property but must sign a 28 permanent or long-term easement. 1 funding, and design assistance for wetland projects, including construction 2 activities such as dikes and ponds. Plaintiff alleges that as a direct consequence of 3 WRP projects, farmland on the upper Crab Creek became wetlands, retaining Crab 4 Creek Flow System water and diminishing the spring freshet that is essential to 5 annual replenishment of Round Lake. Because of this, Plaintiff is unable to utilize 6 its senior water rights. 7 Plaintiff alleges that water flowed into the conservation projects and became 8 stored surface water (behind a dike or in pond), wetlands, and groundwater 9 recharge, which caused Crab Creek to be dry at the inlet to Round Lake for the 10 entire 2020 water year. As a result, Plaintiff was forced to purchase emergency 11 water from the East Columbia Basin Irrigation District and was forced to operate 12 with a limited water supply for approximately one month while waiting on a 13 decision for emergency water, which substantially affected the 2020 hay fields. 14 The same thing happened in 2021. 15 Plaintiff is asserting three claims: (1) negligence; (2) trespass; (3) public 16 nuisance; and (4) private nuisance. 17 (1) Negligence 18 Plaintiff alleges that Defendant owed Plaintiff a legal duty to abide by the 19 rules and procedures applicable to agency actions and specifically, section 610.13 20 of the National Environmental Compliance Handbook imposes a duty upon NRCS 21 to comport with state requirements in the course of carrying out the Wetland 22 Reserves Program. 23 Plaintiff alleges: (1) under Wash. Rev. Code 90.03.370, NRCS was required 24 to obtain an Ecology reservoir permit prior to construction of the Crab Creek 25 Projects, and it failed to do so; (2) under Wash. Rev. Code 90.03.350, NRCS was 26 required to obtain an Ecology dam safety permit prior to construction the dikes 27 associated with Crab Creek Projects, and it failed to do so; and (3) under Wash. 28 Rev. Code 90.03.010, NRCS was required to obtain a state water right permit prior 1 to diverting or using any amount of surface water for the Crab Creek Projects, and 2 it failed to do so. 3 Plaintiff alleges that in failing to obtain the necessary permits, NRCS 4 violated state water law and breached its own specific mandatory directives. Also, 5 the noncompliant Crab Creek Projects led to a decrease in downstream waterflow 6 to Round Lake, depriving Plaintiff of the ability to use its senior water rights to 7 irrigate its hay crop. 8 (2) Trespass 9 Plaintiff alleges that through implementation of the Crab Creek Projects, the 10 NRCS effectively entered upon Plaintiff’s land by changing the flow of the Crab 11 Creek Water System in a manner that directly encroached upon Plaintiff’s senior 12 water rights in Round Lake. Plaintiff alleges that NRCS’s failure to obtain the 13 necessary state water permits for the Crab Creek Projects made the changes to the 14 Crab Creek waterflow inherently unreasonable, and NRCS knew or should have 15 known that it did not have approval from Plaintiff to intrude on Plaintiff’s water 16 rights. Plaintiff alleged that NRCS’s intrusion harmed Plaintiff’s senior water 17 rights and associated property. 18 (3) Public Nuisance 19 Plaintiff alleges that by funding and approving the creation of dikes in 20 furtherance of the Crab Creek Projects, the NRCS interfered with both Crab Creek 21 and Round Lake, in violation of Wash. Rev. Code 90.03.350 and Wash. Rev. Code 22 9.66.010. 23 (4) Private Nuisance 24 Plaintiff alleges that the actions or omissions by employees of the United 25 States constitute a public nuisance under the laws of the State of Washington. 26 (5) Requested Relief 27 Plaintiff is seeking $399,351.45 in damages and asking the Court to require 28 that the NRCS’s wetlands projects be removed, or that the United States otherwise 1 mitigate the impact of Plaintiff’s water rights or compensate Plaintiff for the 2 ongoing injury and damages. 3 Defendant’s Motion 4 In its motion, Defendant submitted declarations from Roylene M. Comes At 5 Night, ECF No. 24, and Kevin Brown, ECF No. 23. Ms. Comes At Night is a state 6 conservationist with NRCS. She opined there is no evidence that the NRCS WRP 7 easements executed in the early 2000s that are restoring the Crab Creek wetland 8 systems are impacting Plaintiff’s water rights. 9 Kevin Brown is the Columbia Basin Watermaster for the Washington State 10 Department of Ecology. Mr. Brown stated that water from Crab Creek only 11 contributes to Round Lake when the Crab Creek is at a high flow stage. Based on 12 his personal observations, Crab Creek’s natural flow does not reach the volume 13 needed to contribute to Round Lake on an annual basis. 14 Defendant also submitted a Communications Plan concerning Round Lake 15 that apparently was created by the Department of Ecology. ECF No. 22, Ex. A. 16 This document states that Plaintiff has alleged that USDA helped fund several 17 wetland restoration projects without obtaining required states permits from 18 Ecology and these wetland projects are now impairing water rights for irrigation. It 19 stated that Ecology has records that Round Lake has a history of insufficient water 20 from Crab Creek to fill the lake annually that date back to the early 1900s. 21 Additional, Ecology investigated the claim of impairment of water rights and did 22 not find conditions that could be elevated to regulation. Ecology declined to take 23 enforcement actions associated with Plaintiff’s complaints. 24 The document also stated that the wetlands restoration project was a federal 25 project that required a nation-wide permit (NWP) from the Corps of Engineers. 26 The Corps NWP permit had conditions that were adhered to. Ecology reviewed the 27 permit, and waived its authority to further condition the permit, which is typical 28 practice for many wetlands restoration projects. 1 Defendant argues the discretionary function exception to the FTCA applies 2 and bars Plaintiff’s claims. It also argues that regardless, NRCS did not violate any 3 statute or regulation because the Department of Ecology has determined that 4 NRCS did not violate the statutes identified by Plaintiff. It maintains that the 5 Department of Ecology is the exclusive enforcement authority for Wash. Rev. 6 Code 90.03. Consequently, Plaintiff does not have a private right of action to 7 enforce any violations. 8 Defendant asserts that the failure to comply with Washington’s water 9 permitting scheme does not create a legal basis for FTCA liability. Because a 10 private party could not be liable in tort to another individual for violation of the 11 water code, the United States cannot be held liable under the FTCA. 12 Analysis 13 The activities undertaken by NRCS pursuant to the WRP identified in 14 Plaintiff’s Complaint, including the permitting, funding, and design assistance for 15 wetland projects, are clearly the type of activities that are exempted from tort 16 liability under the FTCA. Plaintiff seemingly recognizes this because it is not 17 asserting liability based on these activities. Rather, Plaintiff argues that NRCS was 18 required to obtain water permits for the projects but failed to do so. The problem 19 with this theory is that a private party cannot sue another private party for failure to 20 obtain water permits. That responsibility and authority lies solely with the 21 Department of Ecology. 22 The FTCA only permits actions against the United States “in the same 23 manner and to the same extent as a private individual under like circumstances.” § 24 2674. Because Plaintiff’s claims do not meet the “private analog” requirement, the 25 Court does not have subject matter jurisdiction over Plaintiff’s First Amended 26 Complaint. 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Defendant’s Motion to Dismiss, ECF No. 21, is GRANTED. 3 2. The above-captioned case is DISMISSED. 3. Plaintiff's Motion for Summary Judgment, ECF No. 29, is DENIED, as 5 moot. 4. Defendant’s Motion to Stay Summary Judgment Briefing Schedule, ECF No. 30, is DENIED, as moot. 8 5. Defendant’s Motion to Expedite, ECF No. 31, is DENIED, as moot. 9 6. The Clerk of Court is directed to enter judgment in favor of Defendant 10 and against Plaintiff. 11 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, 12\| forward copies to counsel, and close the file. 13 DATED this 11th day of October 2022. 14 15 16 byt Za 18 Sfeukeyl Siesta 19 Stanley A. Bastian 30 Chief United States District Judge 21 22 23 24 25 26 27 28

ORDER GRANTING DEFENDANT’S MOTON TO DISMISS ~ 9