2:13-cv-02095
E.D. Cal.Mar 24, 2015Background
- Plaintiffs Duarte Nursery, Inc. and John Duarte own ~445 acres in Tehama County, CA; the U.S. Army Corps of Engineers (Corps) issued a Cease and Desist Order (CDO) alleging unauthorized discharge into waters of the U.S.; the Central Valley RWQCB issued a Notice of Violation (NoV).
- The CDO/NoV predate plaintiffs’ public statements and their original complaint; the CDO did not include a conventional legal description, only coordinates.
- Plaintiffs filed a First Supplemental Complaint asserting procedural due process violations (Claims 1, 2, 5) based on issuance of the CDO/NoV and a First Amendment retaliatory-prosecution claim (Claim 6) alleging the government filed a counterclaim in retaliation for plaintiffs’ speech and litigation.
- The United States filed a Clean Water Act counterclaim seeking enforcement and civil penalties; it moved to dismiss the due process claims as moot (Rule 12(b)(1)) and the retaliation claim on sovereign immunity and failure-to-state-a-claim grounds (Rule 12(b)(6)).
- The court concluded the CDO/NoV remain in effect and plaintiffs retain a live interest in declaratory relief; the counterclaim did not render the due process claims moot. The court dismissed the retaliation claim for failure to plead causation/injury but granted leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of Due Process claims (Claims 1,2,5) | Duarte: counterclaim does not eliminate live controversy; declaratory relief regarding adequacy of process remains available | U.S.: counterclaim remedies the dispute and provides forum to raise due process defenses, so claims are moot | Denied — counterclaim did not moot due process claims; CDO/NoV still "continuing and brooding presence" giving plaintiffs a live controversy |
| First Amendment retaliatory prosecution (Claim 6) — causation and injury | Duarte: filing suit and public statements were motivating/substantial factors in government's decision to file counterclaim | U.S.: counterclaim is enforcement of pre-existing CDO/NoV, not retaliation; sovereign immunity argument also raised | Dismissed for failure to state a claim; complaint lacked factual allegations linking plaintiffs’ speech to the decision to file the counterclaim and failed to allege injury; dismissal with leave to amend |
| Leave to amend / further pleading | Duarte: seeks leave to amend if claim found deficient | U.S.: argued dismissal appropriate | Court granted one further opportunity to amend the retaliation claim and ordered any second amended complaint within 21 days |
Key Cases Cited
- Rosebrock v. Mathis, 745 F.3d 963 (9th Cir. 2014) (party asserting mootness bears a heavy burden)
- Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 893 F.2d 1012 (9th Cir. 1989) (government action that continues to cast a substantial adverse effect supports declaratory relief)
- Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2005) (test for mootness in declaratory judgment actions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must plead factual matter sufficient to state a plausible claim)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards requiring plausibility)
- Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) (retaliatory-prosecution requires showing prosecutor would not have pressed charges but for retaliatory motive)