Opinion
CV 00-833-BR
July 24, 2001
MARCIA K. DENISON, Pro Se Plaintiff.
HARDY MYERS Attorney General, KAREN L. MOYNAHAN, Assistant Attorney General Department of Justice, for Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants' Motion to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1)and 12(b)(6)(#103); Plaintiff's Motion for Emergency Restraining Order Concerning Vesper Combo (#83); Plaintiff's Request for Emergency Temporary Restraining Order for Cow Ridge Combo Timber Sale (#110); Plaintiff's Verified Update on Report Exhibits, Memorandum, and Request for Permission (#121); Oregon Department of Forestry's Motion to Quash Subpoena Pursuant to Fed.R.Civ.P. 45(c)(3)(A) (#127); and Plaintiff's Motion to Compel Production of Owl Call Response Circle Maps (#128).
In her Second Amended Complaint, Plaintiff asserted the following claims against the following Defendants:
Defendant Kitzhaber — Violation of the National
Environmental Policy Act (NEPA), Clean Water Act (CWA), Endangered Species Act (ESA), denial of equal protection of the laws, and criminal negligence.
In her Second Amended Complaint, Plaintiff alleges Defendants violated the "Environmental Protection Act." In her briefs, however, Plaintiff clarifies her intended reference is to NEPA.
Defendant Brown — Violation of the CWA, ESA, NEPA, the Coastal Zone Management Act (CZMA), and the Migratory Bird Treaty Act (MBTA). Violation of Article VI; the Fourteenth Amendment, Sections 1 and 3; Tenth Amendment; Article I, Section 10; and First Amendment of the United States Constitution.
Defendants Oble and Walter — Violation of the ESA, CWA, the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), and the MBTA.
Defendants Henson and Haasken — Violation of the MBTA, CWA, CERCLA, ESA, and the Oregon Forest Practices Act (FPA).
Defendants Zilli and Beck — Violation of the ESA, CWA, and CERCLA as well as the Fifth Amendment and Article IV of the United States Constitution.
Defendant Lecture — Violation of the ESA, MBTA, and Oregon land-use laws. Violations of the First Amendment; Tenth Amendment; and Fourteenth Amendment, Sections 1 and 3, to the United States Constitution.
Plaintiff seeks injunctive and declaratory relief only. For the purpose of deciding the pending Motions, the Court assumes, without expressly reaching the issue, it has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 1343(3), and 1367(a).
For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss Second Amended Complaint (#103) and dismisses this action; DENIES as moot Plaintiff's Motion for Emergency Restraining Order concerning Vesper Combo (#83); DENIES as moot Plaintiff's Request for Emergency Temporary Restraining Order for Cow Ridge Combo Timber Sale (#110); DENIES as moot Plaintiff's Verified Update on Report Exhibits, Memorandum, and Request for Permission (#121); DENIES as moot Oregon Department of Forestry's Motion to Quash Subpoena Pursuant to Fed.R.Civ.P. 45(c)(3)(A) (#127); and DENIES as moot Plaintiff's Motion to Compel Production of Owl Call Response Circle Maps (#128).
Oregon Department of Forestry will be hereinafter referred to as ODF.
RELEVANT PROCEDURAL BACKGROUND
In an Opinion and Order issued August 8, 2000, the Court granted Defendant ODF's Motion to Dismiss Plaintiff's original Complaint on the ground the Court could not discern in that pleading the particular unlawful acts Defendant ODF allegedly committed. The Court also was unable to determine from the original Complaint the specific laws Defendant ODF allegedly violated or the basis on which Plaintiff concluded the Court had subject matter jurisdiction over her claims. The Court gave Plaintiff permission to replead. Plaintiff filed an Amended Complaint on August 25, 2000.
Defendant ODF again filed a Motion to Dismiss. In an Opinion and Order issued October 23, 2000, the Court again dismissed Plaintiff's claims asserted against ODF under the ESA and CWA because of the State of Oregon's sovereign immunity. The Court also granted Plaintiff leave to file claims against individual state officials in their official capacities for any alleged violations of the ESA and CWA for which they were personally responsible. At the same time, the Court concluded Plaintiff had pleaded sufficient general allegations to establish standing. In an Opinion and Order issued October 23, 2000, the Court dismissed Plaintiff's equal protection claims against ODF under 42 U.S.C. § 1983 because of the State's immunity pursuant to the Eleventh Amendment. The Court, nevertheless, granted leave to Plaintiff to replead for the purpose of bringing equal protection claims against individual state officials. The Court also dismissed Plaintiff's claim that she had been denied access to the courts. Finally, in the event Plaintiff filed a Second Amended Complaint alleging violation of Oregon statutes, the Court directed Defendant ODF to address whether the Court had subject matter jurisdiction over such state law claims.
Plaintiff filed a Second Amended Complaint alleging claims against state officials in their individual capacities and omitting ODF as a party. Defendants filed a Motion to Dismiss, which the Court granted in part in an Opinion and Order issued on April 9, 2001. As a result, the Court dismissed Plaintiff's claims for the following relief: (a) prospective application of the 4D Rules in Oregon before their scheduled effective date, (b) retroactive application of the 4D Rules in Oregon to all state and private logging operations that were already contracted out or were under way, and (c) cancellation of existing timber sale agreements and the payment of compensation to loggers. At the same time, the Court granted Plaintiff's Motion to Amend Second Amended Complaint. Following the Opinion and Order issued April 9, 2001, no claims remained as to Defendants Kitzhaber and Lecture.
STANDARDS
When no affidavit or other evidence is submitted with a motion to dismiss under Fed.R.Civ.P. 12(b), all allegations in the complaint are considered true and are construed in the plaintiff's favor. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 528 U.S. 1005 (1999). A court should not dismiss a complaint, thus depriving the plaintiff of an opportunity to establish his or her claims at trial, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him to relief." United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (internal quotations omitted)). When a plaintiff appears pro se, the court "must construe liberally [the plaintiff's] inartful pleading." Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). See also James v. Giles, 221 F.3d 1074, 1076 (9th Cir. 2000) (a pro se litigant must be given leave to amend his or her complaint unless it appears the deficiency cannot be cured by amendment) (citations omitted).
MOTION TO DISMISS
Defendants' Motion is essentially a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) combined with a motion to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
Citing little relevant legal authority and relying primarily upon conclusory arguments, Defendants contend Plaintiff is not entitled to pursue a private action based upon the NEPA, CZMA, or MBTA because such statutes do not authorize a private right of action by individual citizens. Defendants also assert Plaintiff cannot maintain an action pursuant to the CWA, CERCLA, and ESA because she has not complied with the citizen- suit provisions of those statutes. Furthermore, Defendants argue Plaintiff has not brought a proper civil rights action against Defendants pursuant to 42 U.S.C. § 1983 to redress Plaintiff's federal constitutional claims despite having been given liberal opportunity by the Court to do so. Finally, Defendants maintain the Court lacks pendent jurisdiction over Plaintiff's remaining state law claims because the Court lacks jurisdiction over Plaintiff's claims asserted under the various federal statutes and constitutional provisions. Accordingly, Defendants seek to have Plaintiff's claims dismissed in their entirety with prejudice.
Plaintiff primarily counters by providing detailed descriptions of the harm she allegedly suffers due to Defendants' conduct. Plaintiff also argues Defendants have not complied with the federal environmental statutes she has cited in her Second Amended Complaint. Moreover, Plaintiff contends Defendants have violated Plaintiff's civil rights, denied her equal protection of the law, and discriminated against her on the basis of her national origin as a United States citizen.
A. NEPA
As a general rule, "only the federal government may be a defendant in a NEPA action." National Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 738 (2001) (citation omitted). "[B]ecause NEPA requires action only by the [federal] government, only the government can be liable under NEPA." Wetlands Action Network v. United States Army Corps of Engineers, 222 F.3d 1105, 1114 (9th Cir. 2000) (citation omitted). See also Churchill County v. Babbitt, 150 F.3d 1072, 1082 ("A private party cannot `comply' with NEPA, and, therefore, a private party cannot be a defendant in a NEPA compliance action."), as amended by 158 F.3d 491 (9th Cir. 1998) (citation omitted).
An exception may be made in the remedial phase of a NEPA compliance action when the contractual rights of a party are affected by the proposed remedy. National Parks v. Babbitt, 241 F.3d at 738. This exception does not apply here.
Plaintiff has not asserted any claims in this action against the federal government. Indeed, Defendants in this action are all state officials and/or state employees whom Plaintiff has sued in their individual and official capacities. Plaintiff's claims for relief under NEPA, therefore, are dismissed.
B. CZMA
The CZMA does not create a private right of action. California Coastal Com'n v. United States, 5 F. Supp.2d 1106, 1110 (S.D.Cal. 1998) (citing City and County of San Francisco v. United States, 443 F. Supp. 1116, 1127 (N.D.Cal. 1977), aff'd, 615 F.2d 498 (9th Cir. 1980)). See also State of New Jersey, Dept. of Environmental Protection and Energy v. Long Island Power Authority, 30 F.3d 403, 421 (3d Cir. 1994) (CZMA creates no private right of action) (citation and footnote omitted). Nevertheless, Plaintiff contends administrative actions may be challenged under a statute through the Administrative Procedure Act (APA), 5 U.S.C. § 701-706, even when a statute does not otherwise create a private right of action. By its very terms, however, the APA applies to decisions by an "authority of the Government of the United States." 5 U.S.C. § 701(b)(1). The APA does not create a private cause of action against or a right of review over a state agency or state actors. Gilliam v. Miller, 973 F.2d 760, 763 (9th Cir. 1992). Plaintiff, therefore, has no standing under the APA to challenge Defendants' alleged failure to follow federal statutes and regulations. Big Country Foods, Inc. v. Board of Educ. of Anchorage School Dist., 952 F.2d 1173, 1176 (9th Cir. 1992) (citations omitted). Moreover, the APA does not create substantive rights. El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991). There is no right, therefore, to sue for an alleged violation of the APA in the absence of an underlying statute that forms a basis for such an action. Accordingly, Plaintiff's claims for relief under the CZMA are dismissed.
C. MBTA
The MBTA does not authorize a private right of action for alleged violations of the Act. Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294, 1298 1301-02 (8th Cir. 1989) (citations omitted). As noted above, Plaintiff cannot pursue MBTA claims against Defendants under the APA because Defendants are not a federal agency and because the APA does not provide an independent cause of action without another applicable statute on which to base the action. Plaintiff's MBTA claims, therefore, are dismissed.
D. CWA
The CWA permits a private citizen to bring an action against alleged violators of the statute, but the Act requires the claimant to provide specific advance notice. The CWA's citizen- suit notice clause provides:
No action may be commenced — (1) under subsection (a)(1) of this section — (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the Environmental Protection Agency (EPA)], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order. . . .33 U.S.C. § 1365(b)(1)(A).
In a private citizen suit under the CWA, compliance with the sixty-day notice provision is a mandatory precondition of filing an action. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995). If a private citizen fails to provide sufficient notice pursuant to the CWA, the action must be dismissed because the court lacks subject matter jurisdiction. Id.
Defendants maintain Plaintiff's CWA claim should be dismissed because Plaintiff failed to allege she complied with the CWA's pre-action notice requirements. Although Plaintiff does not contend she complied with the notice requirements of the CWA before filing her action, she maintains she is entitled to assert her CWA claims under a savings clause in the Act because she suffered personal injuries due to Defendants' alleged CWA violations. See Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 15 (1981).
The CWA provides:
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).33 U.S.C. § 1365(e).
The Supreme Court noted in Middlesex County that the Third Circuit previously held the CWA savings clause was an alternative basis for an action when a private party personally suffers injuries due to alleged violations of the Act. 453 U.S. at 15, vacating judgment National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1227 (3d Cir. 1980)). Plaintiff relies on the Third Circuit's holding in National Sea Clammers Ass'n, and Defendants attempt to distinguish this case. Neither party, however, acknowledges the Supreme Court disagreed with and vacated that part of the Third Circuit's decision that recognized the savings clause as an alternative basis for an action under the CWA. 453 U.S. at 22. The Supreme Court discussed at length the "problems" in the Third Circuit's reasoning and stated, "we are persuaded that Congress evidenced no intent to authorize by implication private remedies under [the Act] apart from the expressly authorized citizen suits." 453 U.S. at 17, 15-18. It is undisputed that Plaintiff did not satisfy the pre-action notice requirement of the CWA's citizen-suit provision. Pursuant to the Supreme Court's holding in Middlesex County, Plaintiff is not entitled to pursue an action under the savings clause of the CWA as an alternative to satisfying the Act's 60-day notice requirement for citizen suits. Plaintiff's CWA claims, therefore, are dismissed.
E. CERCLA
CERCLA authorizes citizen suits by private parties against any person who allegedly violates certain federal environmental standards, conditions, and/or requirements. 42 U.S.C. § 9659(a). Claimants who bring an action under the citizen-suit provision of CERCLA must give 60-days advance notice of the action as set forth in the Act.
42 U.S.C. § 9659(d)(1) provides:
No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following:
(A) The President.
(B) The State in which the alleged violation occurs.
(C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).
Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation.
Defendants maintain Plaintiff's CERCLA claims should be dismissed because Plaintiff did not allege in her Second Amended Complaint that she complied with CERCLA's pre-action notice requirements. Plaintiff does not contest her failure to give Defendants 60-days notice before filing her action. Instead, Plaintiff states she relied on laws such as CERCLA "only to track statutory language which may relate or apply to portions of the case" and "not for any regulatory use or intent."
The Ninth Circuit has not addressed expressly whether the 60- day notice requirement for citizen suits under § 9659(d) is a jurisdictional prerequisite for maintaining a § 9659(a) action under CERCLA; however, the Court has addressed the notice requirement under the Resource Conservation and Recovery Act (RCRA). In Hallstrom v. Tillamook County, the Ninth Circuit determined the plaintiffs' failure to comply with the 60-day notice requirement of RCRA deprived the district court of subject matter jurisdiction. 844 F.2d 598, 599 (9th Cir. 1987), judgment aff'd, 493 U.S. 20 (1989). The Ninth Circuit held "proper notice is a precondition of the district court's jurisdiction" without which "the district court lacked subject matter jurisdiction to hear the case." Id. The Supreme Court affirmed the Ninth Circuit, held the citizen-suit notice requirements cannot be avoided by employing a flexible or pragmatic construction, and reiterated compliance with RCRA's 60-day notice provision is a mandatory condition precedent for bringing an action. 493 U.S. at 33. The Supreme Court also concluded "the district court must dismiss the action as barred by the terms of the statute" when a party suing under RCRA fails to satisfy the 60-day notice and delay requirement. Id.
The 60-day notice provision for citizen suits under § 9659(a) of CERCLA is substantially identical to the 60-day notice requirement of RCRA and other environmental statutes. See Hallstrom, 493 U.S. at 22-23 23 n. 1 (the court observed such 60-day notice provisions were modeled after § 304 of the Clean Air Amendments of 1970).
In State of Idaho v. Howmet Turbine Component Co., however, the Ninth Circuit construed the 60-day notice language of § 9612(a), another section of CERCLA, to apply only to claims against the Superfund and held it was not a jurisdictional prerequisite to filing a private action to recover costs incurred from cleaning up toxic wastes against parties who were potentially liable under § 9607. 814 F.2d 1376, 1380 (9th Cir. 1987). Here, Plaintiff's CERCLA action is a citizen suit brought under § 9659(a) and does not involve reimbursement of costs. The principles in Howmet, therefore, are not applicable in these circumstances.
In Roe v. Wert, the district court relied on Hallstrom. The court held pre-suit notice is a jurisdictional prerequisite of a claim under § 9659, and the federal court lacks subject matter jurisdiction when inadequate pre-suit notice is provided. 706 F. Supp. 788, 794 (W.D.Okla. 1989) (citing Hallstrom v. Tillamook County, 844 F.2d at 599-600)). See also 42 U.S.C. § 9659(d)(1). This Court agrees.
Accordingly, the Court finds the 60-day notice provision of § 9659(d) to be a jurisdictional prerequisite for a citizen suit brought under § 9659(a). Plaintiff did not satisfy the 60-day advance notice requirement; therefore, the Court lacks subject matter jurisdiction, and Plaintiff's CERCLA claims are denied.
F. ESA
The ESA establishes a private right of action by "any person" under the Act's citizen-suits provision. 16 U.S.C. § 1540 (g). A citizen may not bring an action before 60 days written notice of an alleged violation of the ESA has been given to the Secretary of the Interior and to "any alleged violator." 16 U.S.C. § 1540(g)(2)(A)(i). The 60-day notice requirement is jurisdictional rather than procedural. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) (citation omitted). A plaintiff's failure to "strictly comply" with the pre-action notice requirement "acts as an absolute bar to bringing suit under the ESA." Id.
Defendants seek dismissal of Plaintiff's ESA claims because Plaintiff did not allege in her Second Amended Complaint that she satisfied the pre-suit notice requirements of the ESA for a citizen action. Plaintiff does not dispute that she failed to provide the required 60-day notice before filing her action. Plaintiff's ESA claims, therefore, are dismissed.
G. Plaintiff's Federal Constitutional Claims
Defendants argue Plaintiff's federal constitutional claims must be dismissed because Plaintiff did not assert her constitutional claims under 42 U.S.C. § 1983 even though the Court allowed her two opportunities to do so. Defendants further maintain Plaintiff has no right to sue directly under the United States Constitution.
Section 1983 provides:
Every person who, under color of any [state law] . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
A claimant has no direct cause of action under the United States Constitution. Golden Gate Hotel Ass'n v. City and County of San Francisco, 18 F.3d 1482, 1486-87 (9th Cir. 1994) (citation omitted). The Ninth Circuit has consistently held a plaintiff who complains of a violation of a constitutional right must bring an action under § 1983. Id. at 1487 (citing Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993)).
In the Court's Opinion and Order issued October 23, 2000, the Court informed Plaintiff she could pursue claims under 42 U.S.C. § 1983 against individual state officials who allegedly deprived Plaintiff of equal protection of the laws. Also, the Court granted Plaintiff leave to file a Second Amended Complaint to cure the deficiencies in her Amended Complaint.
Although Plaintiff filed a Second Amended Complaint on November 17, 2000, and later amended it, she did not explicitly bring her federal constitutional claims under § 1983. Plaintiff asserted the following claims under the United States Constitution:
1. Equal Protection ( Fourteenth Amendment, Section 1)
Plaintiff contends she has been deprived of equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment essentially directs state actors to treat similarly-situated people alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (citations omitted). That Clause provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 2. To state a § 1983 claim for an equal-protection violation, a plaintiff must allege the defendant engaged in purposeful discrimination directed at an identifiable or suspect class. Id.
Plaintiff does not show she is a member of an identifiable or suspect class. Plaintiff also does not demonstrate Defendants acted with a discriminatory purpose as required for an equal- protection claim.
2. The Supremacy Clause (Article VI, Clause 2)
Plaintiff contends Defendants violated the Supremacy Clause in Article VI, Clause 2, of the United States Constitution when they thwarted the objectives of Congress by allegedly violating federal environmental statutes. That Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2.
The Supremacy Clause "does not create individual rights, nor does it `secure' such rights within the meaning of § 1983." White Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9th Cir. 1985), cert. denied, 479 U.S. 1060 (1987) (citation omitted). The Supremacy Clause, therefore, "will not support an action under § 1983." Id. at 850.
3. Privileges and Immunities ( Fourteenth Amendment, Section 1)
Plaintiff alleges she has been deprived of "esthetic and environmental values" essential for her enjoyment of the forest in violation of the Privileges and Immunities Clause of the Fourteenth Amendment, Section 1. That Clause provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It "has traditionally protected only those rights accruing by virtue of being a citizen of the United States." Paciulan v. George, 229 F.3d 1226, 1229 (9th Cir. 2000), cert. denied, 121 S.Ct. 775 (2001) (citation omitted).
Because the Supreme Court declined to delineate such privileges and immunities with specificity, scholars and legal commentators have interpreted the Clause as "essentially nugatory," "`technically superfluous,'" "`utterly incapable of performing any real work in the protection of individual rights against state interference,'" and "`a constitutional non- starter.'" Id. (citations omitted). The Clause, however, has been applied to the right to travel. Id. In Saenz v. Roe, the Supreme Court applied the Privilege and Immunities Clause to hold that travelers who decide to become permanent residents of a new state enjoy "the right to be treated like other citizens of that State." 526 U.S. 489, 501 (1999).
Plaintiff indicates she is a long-time resident of Oregon and has been treated like other citizens of the state in her enjoyment of "esthetic and environmental values" associated with state forest land. Plaintiff's claims under the Fourteenth Amendment, Section 1, Privileges and Immunities Clause, therefore, fail.
4. Disqualification of Persons Engaged in Insurrection or Rebellion ( Fourteenth Amendment, Section 3)
Plaintiff asserts she has suffered under "a tyrannical state government that makes laws and transacts my public property without even swearing an oath to uphold protections and rights guaranteed" by the Fourteenth Amendment, Section 3. Section 3 provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds or each House, remove such disability.
U.S. Const. amend. XIV, § 3.
Plaintiff has not pleaded in her Second Amended Complaint any set of facts that would trigger application of the Fourteenth Amendment, Section 3.
5. Tenth Amendment
Plaintiff maintains she has been denied her "10th Amendment right to power reserved to the people." The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." The Tenth Amendment constrains the power of the federal government rather than the power of the states. Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th Cir.), cert. denied, 528 U.S. 870 (1999). Even if Plaintiff brought her Tenth Amendment claim under § 1983, that claim would fail because the Tenth Amendment "is neither a source of federal authority nor a fount of individual constitutional rights." Id.
6. Right to Petition ( First Amendment)
Plaintiff asserts she has been deprived of her "constitutional right to redress of grievances guaranteed by the 1st Amendment." Specifically, Plaintiff alleges the hearings held by Defendants pertaining to Plaintiff's environmental concerns "never redress[ed] majority objections" and were "only a formality."
The First Amendment in relevant part protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The right to petition the government, however, does not create a corresponding duty to act by the government. Cronin v. Town of Amesbury, 895 F. Supp. 375, 390 (D.Mass. 1995), aff'd, 81 F.3d 257 (1st Cir. 1996) (citation omitted). See also Indiana State Teachers Ass'n v. Board of School Com'rs of City of Indianapolis, 918 F. Supp. 266, 268-89 (S.D.Ind. 1996) (while the First Amendment protects the right of public employees to associate, to speak freely, and to petition openly, it does not impose any affirmative obligation on the government to listen or to respond), aff'd, 101 F.3d 1179 (7th Cir. 1996).
Plaintiff's Second Amended Complaint reflects she participated in hearings held by Defendants, and Defendants rejected Plaintiff's positions on environmental matters. Such assertions demonstrate Plaintiff has exercised her constitutional right to petition. Under such circumstances, Plaintiff cannot "state a cause of action under § 1983 for violation of the right to petition." Stengel v. City of Columbus, Ohio, 737 F. Supp. 1457, 1459 (S.D.Ohio 1988).
7. Due Process Clause ( Fifth Amendment)
Plaintiff alleges she has been denied her "right to liberty of life to pursue happiness in liberty of recreation and enjoyment of the forest and protection for [her] publically owned forest and the many species who call it home" in violation of the Fifth Amendment. The Fifth Amendment provides in relevant part, "No person shall be . . . deprived of life, liberty, or property, without due process of law." The Due Process Clause of the Fifth Amendment applies "only to actions of the federal government — not to those of state or local governments." Lee v. City of Los Angeles, 250 F.3d at 687 (citation omitted). Plaintiff acknowledges Defendants are state actors rather than federal actors. Accordingly, even if Plaintiff brought her Fifth Amendment claim under § 1983, the claim against Defendants would fail.
8. Title of Nobility (Article 1, Section 10, Clause 1)
Plaintiff complains "[t]he office of Secretary State Forester is a `title of nobility'" in violation of Article 1, Section 10, of the United States Constitution. That provision states in relevant part, "No State shall . . . grant any Title of Nobility." U.S. Const. art. I, § 10, cl. 1. Plaintiff's contention is frivolous and lacking in merit as a matter of law.
9. Privileges and Immunities (Article IV, Section 2)
Plaintiff avers in her Second Amended Complaint that clear-cutting of state forest land denies her "Article IV privileges of environmental protection of Federal Laws for [her] environment, waters and wildlife and future recovering [evolutionary significant units] habitat." Article IV, Section 2, provides "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states." This constitutional provision "seeks to ensure the unity of the several states by protecting those interests of nonresidents which are fundamental to the promotion of interstate harmony." International Organization of Masters, Mates Pilots v. Andrews, 831 F.2d 843, 845 (9th Cir. 1987), cert. denied, 485 U.S. 962 (1988) (internal quotations and citation omitted). Generally, "the clause serves, in certain contexts, to protect non-residents from discrimination." Hawaii Boating Ass'n v. Water Transp. Facilities Division, Dept. of Transp., 651 F.2d 661, 666 (9th Cir. 1981) (citation omitted).
Plaintiff does not allege discrimination by state actors against non-residents of Oregon. Instead, Plaintiff essentially contends Defendants are discriminating against Oregon residents in violation of Article IV, Section 2, Privileges and Immunities Clause. Such a broad interpretation has no merit and does not state a claim for relief. See e.g., Paciulan v. George, 229 F.3d at 1228 (California did not violate the Privileges and Immunities Clause in Article IV, Section 2, by allowing only nonresident lawyers to appear pro hac vice in California courts).
In summary, in her Second Amended Complaint, Plaintiff does not refer to or purport to assert claims under § 1983. Even if her claims were brought under § 1983, however, the Court concludes Plaintiff has not satisfied the elements of a § 1983 claim, and the substantive deficiencies in Plaintiff's constitutional claims cannot be cured by further amendment.
H. Plaintiff's Pendent State Law Claims
Plaintiff alleges violations of the Oregon Forest Practices Act (FPA), Or. Rev. Stat. § 527.610, et seq.; violation of various Oregon land-use laws; and conduct equal to "criminal negligence."
Defendants contend the Court will not have pendent jurisdiction over Plaintiff's state law claims if Plaintiff's federal law claims are dismissed.
A district court "has discretion to elect not to exercise supplemental jurisdiction over state claims if it has dismissed the federal claims over which it had original jurisdiction." Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1189 (9th Cir. 2001) (citing 28 U.S.C. § 1367(c)(3)). The Supreme Court has cautioned that "state law claims `should' be dismissed if federal claims are dismissed before trial," but such instruction does not mean "they must be dismissed." Acri v. Varian Associates, Inc., 114 F.3d 999, 1000 (9th Cir.), supplemented by 121 F.3d 714 (9th Cir. 1997) (citations omitted) (emphasis in original). In evaluating whether to retain jurisdiction of supplemental state law claims following dismissal of federal claims, the court should weigh factors such as economy, convenience, fairness, and comity. Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (citation omitted).
Although the Court has spent considerable effort in analyzing Plaintiff's claims under federal law and the United States Constitution for the purpose of resolving Defendants' successive motions to dismiss, the Court has spent relatively little time in scrutinizing Plaintiff's state law claims. Moreover, although some discovery has apparently been undertaken on Plaintiff's federal law and state law claims, the parties have not completed exhaustive discovery. The Court, therefore, concludes this action has not reached the point at which judicial economy dictates retention of Plaintiff's state law claims.
Convenience is not a determinative factor in deciding whether the Court should retain jurisdiction over Plaintiff's state law claims. Plaintiff resides in Vernonia, Oregon. Defendants' jobs with the State of Oregon allegedly include responsibilities relating to state forest lands in the area where Plaintiff resides. The office of Defendants' counsel is in Salem, Oregon. Presumably, most necessary witnesses work or reside in those geographic locations, and relevant documents would be located primarily in those areas. Such considerations show adjudication of Plaintiff's state law claims in state court would be at least equally convenient and might actually be more convenient to the parties than litigating such claims in this forum in Portland, Oregon.
Considerations of fairness and comity also support dismissal of Plaintiff's state law claims. There is no indication that litigation of Plaintiff's state law claims in state court would create a significant burden on any of the parties; therefore, fairness is not jeopardized. Moreover, Plaintiff's state law claims pertain to management of state forest lands by state actors. In the interest of comity, it would be more appropriate to adjudicate such matters in Oregon state court.
This also is not a situation in which the Court has diversity jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1332(a). There is no diversity of citizenship between the parties because Plaintiff and Defendants are citizens of the same state; thus, there is no independent basis to retain jurisdiction over Plaintiff's pendent state law claims in this Court.
Accordingly, Plaintiff's state law claims are dismissed without predjudice.
PLAINTIFF'S MOTIONS FOR TEMPORARY RESTRAINING ORDERS
Plaintiff has filed motions in which she seeks restraining orders to prevent logging operations relating to the Vesper Combo and Cow Ridge Combo timber-sale contracts. Plaintiff's underlying claims have been dismissed and, therefore, Plaintiff's Motions for Temporary Restraining Orders are moot. See Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (because the appellate court affirmed the district court's dismissal of plaintiffs' claims on summary judgment, plaintiffs' appeal of denial of preliminary injunctive relief was dismissed as moot). The Court is without jurisdiction over moot issues. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985) (federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual controversies), cert. denied, 475 U.S. 1019 (1986). Plaintiff's Motions for Temporary Restraining Orders concerning Vesper Combo and Cow Ridge Combo, therefore, are denied as moot.
PLAINTIFF'S VERIFIED UPDATE AND REQUEST FOR PERMISSION
Plaintiff has filed a self-styled Verified Update on Report Exhibits, Memorandum, and Request for Permission, in which she requests leave of Court to collect and to possess Northern Spotted Owl feathers as well as eggshell fragments of Marbled Murlets and Northern Spotted Owls. Plaintiff states it is her intention to transfer custody of any such feathers and fragments to the Court.
The Court construes Plaintiff's pleading as a request for discovery. Because Plaintiff's underlying claims have been dismissed, however, Plaintiff's discovery request is moot. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1011 (9th Cir. 1990) (discovery requests rendered moot by the court's grant of summary judgment in defendants' favor). Plaintiff's Verified Update on Report Exhibits, Memorandum, and Request for Permission, therefore, is denied as moot.
ODF'S MOTION TO QUASH SUBPOENA
At Plaintiff's request, the Clerk of the Court issued a subpoena to ODF pursuant to Fed.R.Civ.P. 45(a)(3) to require production of maps of owl call circles that show the location of Northern Spotted Owls and designate their known habitats. ODF has filed a Motion to Quash Subpoena Pursuant to Fed.R.Civ.P. 45(c)(3)(A).
Because Plaintiff's underlying claims have been dismissed, however, ODF's Motion to Quash Subpoena is moot. See Langsam- Borenstein Partnership by Langsam v. NOC Enterprises, Inc., 137 F.R.D. 217, 218 n. 4 (E.D. Pa. 1990) (third-party defendants' motions to quash service of trial and deposition subpoenas were moot because the original action was dismissed as settled). Cf. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (plaintiff's challenge to the district court's order to quash her subpoena issued to a third party was moot when plaintiff's underlying defamation claim was dismissed on summary judgment). ODF's Motion to Quash Subpoena, therefore, is denied as moot.
Because this Opinion and Order dismisses Plaintiff's claims in this action in their entirety, Plaintiff's subpoena to ODF no longer has any force or effect.
PLAINTIFF'S MOTION TO COMPEL
Plaintiff has filed a Motion to Compel disclosure of Northern Spotted Owl call response circle maps and dates for single and paired owls in areas adjacent to certain designated timber sales. Because Plaintiff's claims and Second Amended Complaint are dismissed in their entirety, Plaintiff's Motion to Compel is moot. See Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 822 (D.C. Cir. 1984) (because the district court properly could grant summary judgment and dismiss the plaintiff's action, the court also properly rejected the plaintiff's motion to compel as moot). Plaintiff's Motion to Compel, therefore, is denied as moot.CONCLUSION
Based on the foregoing, viewing all allegations in Plaintiff's Second Amended Complaint as true and construing all inferences in Plaintiff's favor, the Court concludes the deficiencies in Plaintiff's Second Amended Complaint cannot be cured by amendment, and Plaintiff can prove no set of facts in support of her federal law and constitutional claims that would entitle her to relief.
Accordingly, the Court holds as follows:
(1) Defendants' Motion to Dismiss Second Amended Complaint (#103)is GRANTED;
(2) Plaintiff's claims to recover under federal statutes and provisions of the United States Constitution are DISMISSED with prejudice;
(3) Plaintiff's claims to recover under state law are DISMISSED for lack of federal jurisdiction without prejudice to Plaintiff bringing those claims in state court;
(4) Plaintiff's Motion for Emergency Restraining Order Concerning Vesper Combo (#83) is DENIED as moot;
(5) Plaintiff's Request for Emergency Temporary Restraining Order for Cow Ridge Combo Timber Sale (#110) is DENIED as moot;
(6) Plaintiff's Verified Update on Report Exhibits, Memorandum, and Request for Permission (#121) is DENIED as moot;
(7) Oregon Department of Forestry's Motion to Quash Subpoena Pursuant to Fed.R.Civ.P. 45(C)(3)(A) (#127) is DENIED as moot; and
(8) Plaintiff's Motion to Compel Production of Owl Call Response Circle Maps (#128)is DENIED as moot.
A judgment will issue in favor of Defendants accordingly.
IT IS SO ORDERED.