872 F. 2d 429 - Mariners of Richardson Bay v. Richardson Bay Regional Agency

No. 88-1880.

United States Court of Appeals, Ninth Circuit.

Before SNEED and NOONAN, Circuit Judges, and STEPHEN V. WILSON, District Judge.*

MEMORANDUM**

The instant appeal challenges the constitutionality of a regional ordinance regulating residential mooring in Richardson Bay. Appellants, unincorporated associations and individuals who live in houseboats in Richardson Bay, claim that the district court erred in dismissing their complaint for lack of subject matter jurisdiction and for failure to state a claim. They further claim that the district court erred in denying them leave to amend. We affirm the dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim. We also affirm the denial of leave to amend the complaint as to all but the Endangered Species Act ("ESA") claim. As to that claim, although we have grave doubts about its viability, we feel it was improper to preclude Appellants from having their ESA claim adjudicated on a more complete record.

On July 9, 1987, the Richardson Bay Regional Agency ("RBRA"), a joint powers agency consisting of Marin County and the cities of Sausalito, Mill Valley, Belvedere, and Tiburon, enacted Ordinance No. 87-1 ("Ordinance") to regulate the anchoring of vessels in Richardson Bay. The Ordinance generally prohibits persons from anchoring a vessel for more than 72 hours without obtaining a permit from the harbormaster, from living aboard an anchored or moored houseboat or vessel for more than 30 days, and from discharging noxious chemicals or foreign matter into the waters of the harbor. The Ordinance allows RBRA to seek injunctive relief and penalties for violations.

On December 29, 1987, appellants filed this action against the Richardson Bay Regional Agency, the San Francisco Bay Conservation and Development Commission ("BCDC"), the county of Marin, the cities of Sausalito, Mill Valley, Belvedere, and Tiburon, and various officials of these public entities. Appellants are two unincorporated associations of approximately 100 persons who are the "Masters and crew of divers vessels in navigation, anchored or moored in the navigable waters, wetlands and landfill of Richardson Bay." Complaint at 6. Appellants allege that they are "seamen" as defined in 28 U.S.C. Sec. 1916, who make their living in maritime or interstate commerce, "make their homes aboard their respective vessels in Richardson Bay," and engage in recreational, commercial, maritime and religious activities, in public and in private, while moored in Richardson Bay. Complaint at 6-7.

Appellants' complaint alleges eight claims for relief and seeks a mixture of damages, injunctive relief, and declaratory relief to rectify an alleged deprivation of their rights threatened by enforcement of the Ordinance. These claims, as characterized by appellants are: 1) to prevent imminent taking of appellants' property where jurisdiction is preempted by federal and state law; 2) for impermissible taking of appellants' property and "destroying their homes and habitat;" 3) for "[d]efendants' betrayal of the public trust;" 4) for unlawful taking in excess of the appellees' power of eminent domain; 5) for deprivation of appellants' civil rights and privileges guaranteed by the United States Constitution and the Federal Civil Rights Act, 42 U.S.C. Sec. 1983; 6) for appellees' conspiracy to interfere with constitutional rights under 42 U.S.C. Secs. 1985(2), 1985(3), and 1988; 7) a pendent state law claim for appellees' unlawful conduct in creating a "subordinate local state agency"; and 8) a pendent state law claim for violations of the California Environmental Quality Act ("CEQA"), Cal.Pub.Resources Code Secs. 21000-177.

On January 4, 1988, appellants' request for a temporary restraining order was denied and the parties were directed to address the question of federal jurisdiction. Appellees moved to dismiss the complaint on a number of substantive and procedural grounds.

By Order dated February 24, 1988, the district court granted appellees' motion and dismissed the complaint without leave to amend. The court ruled that appellants' preemption claims were not ripe for decision; that even if they were ripe, none of the statutes cited by the appellants preempted the Ordinance; that appellants' constitutional claims were not ripe for decision; that appellants had failed to state a claim under the civil rights statutes; that appellants' third claim for breach of the public trust did not state a federal claim; and that the court lacked jurisdiction over appellants' pendent state law claims. Appellants timely appealed and this Court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Appellate review of an order granting a motion to dismiss under Rule 12(b)(6) is de novo. Ascon Properties, Inc. v. Mobil Oil Co., No. 87-5807, slip op. at 822 (9th Cir. January 31, 1989); Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987). "Denial of leave to amend after a responsive pleading has been filed is reviewed for abuse of discretion, ... but such denial is 'strictly' reviewed in light of the strong policy permitting amendment." Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1206 (9th Cir.1988) (citations omitted).

I. DISMISSAL FOR LACK OF JURISDICTION AND FOR FAILURE TO STATE A CLAIM

Appellants claim that the Ordinance is preempted by a host of federal constitutional and statutory provisions,1 and that the district court has jurisdiction over their claims. The district court initially concluded that the preemption claims were not ripe for review since appellants had not sought a permit under the Ordinance. The lower court went on to hold that none of the statutes alleged preempts the Ordinance and that Appellants could not state a claim under any of the provisions. While we conclude that the preemption claims are, in fact, ripe for review, we agree with the district court that the Ordinance is not preempted by the federal admiralty laws, the ESA, or the NEPA. In addition, the district court correctly determined that appellants cannot currently state a claim under these provisions.

1. The Preemption Claims are Ripe.

The district court ruled that the preemption claims were not ripe for review because appellants had not sought a permit under the Ordinance. In support of this conclusion, the lower court cited Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm'n, 461 U.S. 375, 389 (1983) for the proposition that "the existence of an actual preemption conflict cannot be determined until state regulation has been actually applied in a particular case." Memorandum of Opinion and Order of District Court at 4.

This conclusion is incorrect. In Arkansas Electric, the Court ruled that the mere assertion of jurisdiction by a local utility commission did not create a sufficiently ripe conflict to allow the Court to adjudicate any preemption claims. Until the local commission had actually set any rates, any conflict was simply too "hypothetical" to warrant federal intervention.

The district court here found that since appellants had not sought a permit under the Ordinance, Arkansas Electric mandated dismissal. That case is distinguishable, however, because there, the local body had not acted in any concrete fashion whereas here, the RBRA has passed an ordinance. Moreover, the Ordinance prohibits "[l]iving aboard a houseboat or vessel anchored or moored offshore for more than 30 days" regardless of whether a permit has been obtained. A permit only allows the mooring of a vessel or houseboat for periods of less than 30 days. Thus, appellants' failure to seek a permit should not prevent them from challenging the Ordinance on preemption grounds.

a. The ESA

The ESA does not preempt the Ordinance and cannot provide a basis for jurisdiction. Section 1535 of the ESA specifically addresses the issue of preemption. Section 1535(a) authorizes federal-state cooperation in the endangered species area while Section 1535(f) provides that only certain state laws shall be preempted.3 Since the Ordinance does not apply "with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species", it is not preempted under this section.

b. The NEPA

The Ordinance is not preempted by the NEPA since that statute only applies to federal agencies. See 42 U.S.C. Sec. 4332; Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th Cir.1975). Moreover, insofar as appellants did not raise this argument below, we need not consider it on appeal. Fendler v. U.S. Bureau of Prisons, 846 F.2d 550, 555 & n. 4 (9th Cir.1988); Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1079 (9th Cir.1988).

c. Federal admiralty law

Appellants claim that the district court has jurisdiction over their claims pursuant to the "General Maritime Law of the United States" under the Constitution, the Admiralty Extension Act of 1948, Rule 9(h) of the Federal Rules of Civil Procedure, and 28 U.S.C. Sec. 1333(1), "where the health, safety and welfare of American mariners and their vessels are directly threatened by the adoption and immediate enforcement of [the Ordinance]." Appellants' Opening Brief at 24. When Congress acts in the admiralty area, state regulation is permissible, absent a clear conflict with federal law. Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341 (1973). Here, appellants have failed to demonstrate any clear conflict with federal law.

Several Supreme Court decisions demonstrate the ability of the States to regulate in the admiralty area. In Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960), the Court held that Detroit could enforce its smoke abatement and pollution control ordinance against vessels actively engaged in interstate commerce. This local regulation was upheld even though the vessels and their boilers had been approved and licensed under federal maritime regulation, and even though compliance with local regulation would require structural modifications beyond those required under federal law.

In Askew, supra, the Court upheld certain Florida pollution control statutes that imposed liability upon vessels in interstate commerce for oil spills, and that regulated oil terminal facilities. The Court held that the state could supplement federal admiralty remedies for pollution, and that federal admiralty jurisdiction did not bar traditional state police power controls in the area of pollution. See also Bass River Associates v. Mayor of Bass River Township, 743 F.2d 159 (3d Cir.1984) (upholding local ordinance prohibiting floating homes against claims that the ordinance was preempted by the federal Water Pollution Control Act and by federal legislation requiring ship licenses); Tellis v. Municipal Court, 5 Cal.App.3d 455, 85 Cal.Rptr. 459 (1970) (occupancy permit requirement for houseboats in Marin not preempted by federal law). Absent any showing of direct conflict with any federal law, the Ordinance is not preempted by the federal admiralty jurisdiction.

3. Appellants Cannot State a Claim under any of the Asserted Provisions.

Aside from the preemption arguments, appellants cannot currently state a claim under the ESA, the NEPA, or federal admiralty law. The district court held that appellants could not assert a claim under the ESA for several reasons. First, the moving of appellants' boats did not constitute a "taking" under the ESA. Second, appellants failed to provide the 60-day notice to the Secretary of the Interior and to appellees as required by the ESA. 16 U.S.C. Sec. 1540(g)(2)(A)(i). Finally, the injury suffered by appellants is too remote to come within the scope of the ESA.

This Court recently held that the failure to comply with the notice requirement of the ESA mandated dismissal of an ESA claim on appeal. Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir.1988). Appellants claim that they did not have to comply with the notice requirement since an emergency situation existed. They rely on 16 U.S.C. Sec. 1540(g)(2)(C). That provision, however, only applies to suits against the Secretary of the Interior and thus is inapplicable here. See Maine Audubon Society v. Purslow, 672 F.Supp. 528, 531 (D.Me.1987). Since Appellants failed to comply with the notice requirement, the district court did not err in dismissing their ESA claim.

Any argument that appellants can state a claim under the NEPA can be quickly rejected. As stated above, that statute only applies to federal agencies.

It is unclear from the briefs whether appellants are attempting to state an admiralty claim, or whether they are merely asserting admiralty jurisdiction as a basis for preemption. Appellants claim that "[t]he threatened removal of the mariners' vessels by the enforcement of an invalid ordinance constitutes a tort." Appellants' Opening Brief at 27. Appellants have not specified which tort has allegedly been committed and have not provided the court with any authority in support of this claim. Even if they could overcome these hurdles, their "tort" claim would be premature since the Ordinance has not been declared invalid. Thus, to the extent appellants are trying to assert an admiralty claim, such claim was properly dismissed.

Appellants assert claims under 42 U.S.C. Secs. 1983 and 1985.4 These claims were also dismissed by the district court on ripeness grounds and for failure to state a claim.

1. The Claims are Ripe.

The district court erred in concluding that the civil rights claims were not ripe for review. In its Order, the lower court, citing MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986) and Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir.1987), cert. denied, 108 S.Ct. 775 (1988), stated that "the doctrine of ripeness applied to land use challenges precludes courts from deciding the constitutional validity of a regulation until the full extent of the regulation has been defined and any negative impacts have been identified." Order at 7. Since the appellants had not applied for a permit under the Ordinance, and since no final decision had been rendered by the RBRA, the district court found the civil rights claims to be unripe.

The cases cited by the district court are inapposite. In those cases, the plaintiffs were challenging land use regulations, before having applied for a permit under these regulations, as being a taking of property without just compensation. The courts held that until a final decision had been rendered on the plaintiffs' permit applications, it was impossible to determine whether a taking had occurred and, if so, what compensation was just. In this case, the Ordinance prohibits the mooring of appellants' vessels for periods of more than 30 days, regardless of whether appellants had procured a permit or not; thus, there is nothing to be gained by requiring appellants to seek a final decision on a permit application. In addition, since appellants' equal protection claim is based on the RBRA decision not to obtain an environmental impact report ("EIR") prior to the adoption of the Ordinance, the RBRA decision can be considered a "final decision" ripe for adjudication.5

2. Appellants Cannot State a Civil Rights Claim.

The district court ruled that the Ordinance does not, on its face, deprive appellants of any asserted constitutional property or personal rights. On appeal, appellants raise several potential constitutional claims and contend that the district court erred in dismissing their complaint.

Under Conley v. Gibson, 355 U.S. 41 (1957), "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46. Although this Court has followed the Conley standard, "[w]e have, however, also recognized that 'conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.' " Ascon Properties, supra, slip op. at 829 (quoting McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988)). Employing these principles, we turn to the civil rights claims.

a. Equal Protection Claim6

Appellants argue that the Ordinance violates their rights under the equal protection component of the Fourteenth Amendment Due Process Clause. Specifically, appellants contend that the adoption of the Ordinance by the RBRA without obtaining an EIR under state law denies them equal protection because Marin County, a different governmental entity, prepared an EIR before approving the construction of a marina for the mooring of residential structures. Appellants' Opening Brief at 13, 22. This equal protection claim fails.

Since appellants are not a suspect class and the right involved (having a state agency obtain an EIR before adopting an ordinance) is not a fundamental right, this Court must apply rational basis scrutiny to the legislative EIR scheme at issue. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17 (1973); Hoffman v. United States, 767 F.2d 1431, 1434-45 (9th Cir.1985). Under this level of scrutiny, this Court must first determine whether the challenged governmental action has a legitimate purpose, and second, whether the challenged classification reasonably promotes that purpose. Hoffman, 767 F.2d at 1436-37. Appellants have the burden of proving unconstitutionality under this rationality review. See Jackson Water Works, Inc. v. PUC, 793 F.2d 1090, 1095 (9th Cir.1986), cert. denied, 479 U.S. 1102 (1987).

In creating the EIR requirement, the California legislature's purposes were to promote health, safety and the environment. See Cal.Pub.Res.Code Sec. 21002.1(a). By providing a mechanism whereby a state agency could obtain an exemption from this requirement, we can infer that the legislature rationally believed that state agencies would be in the best position to determine when an EIR was warranted. See Jackson Water Works, 793 F.2d at 1096. The fact that the RBRA exercised its option to obtain an exemption and Marin County did not for a somewhat similar project does not meet appellants' burden to demonstrate that the RBRA's decision was not rationally related to legitimate state purposes. Thus, the equal protection claim cannot provide jurisdiction in the district court.

b. The Due Process Claim

It is unclear whether appellants are asserting a procedural or substantive due process claim. Both claims must fail. Since substantive due process and equal protection questions are largely controlled by the same analysis, appellants can fare no better under the substantive due process argument than under the equal protection argument. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12 (1981). In the instant case, contrary to the appellants' assertion that they were denied due process because there was an inadequate factual record developed prior to the passage of the Ordinance, "[t]he problem of unregulated residential use of Richardson Bay has been studied by federal, state and local agencies for years and has been the subject of a number of reports." Brief of Appellee BCDC at 23 n. 10 (citing The Richardson Bay Study, 1955-1977-2000 prepared by the U.S. Fish and Wildlife Service). As with the equal protection argument, the substantive due process argument fails because the Ordinance rationally relates to the health, safety and environmental problems associated with residential use of Richardson Bay. Id. at 23-24.

Any argument that there was a violation of appellants' procedural due process rights must be rejected because there is no constitutional right to notice and a hearing before the government acts in a legislative nonadjudicative capacity. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445 (1915). See also Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271, 283-84 (1984).

c. Taking without Just Compensation Claim

Appellants argue that the Ordinance constitutes a taking of their property (their vessels) without just compensation in violation of the Fifth and Fourteenth Amendments. Appellants' Opening Brief at 41. The Ordinance does not take any of appellants' property. Their boats are not confiscated. The only arguable property interest affected by the Ordinance is their interest in the tidal and submerged lands on which they are moored. The district court correctly ruled that appellants have no cognizable property interest in these lands because California, as a sovereign state, is the owner in trust of the tidal and submerged lands within its borders. See, e.g., Shively v. Bowlby, 152 U.S. 1 (1894); Submerged Lands Act, 43 U.S.C. Secs. 1301-15.

Appellants contend they have an "equitable ownership of the res" because their vessels are "landfill" under Cal.Gov't Code Sec. 66632(a). Appellants' Opening Brief at 45. That provision merely provides that any person wishing to place "fill" in San Francisco Bay must first obtain a permit from the BCDC. As houseboats are included in the meaning of "fill", Cal.Gov't Code Sec. 66632(a), and since appellants have not obtained the requisite permits from BCDC, they cannot argue that their unlawful conduct gives them a property interest in the "landfill". Even if they could assert such a property interest, they could not state a taking claim because, as stated above, the Ordinance does not require the confiscation of appellants' boats. Having been deprived of no property interest, appellants cannot claim that their property has been "taken" by the Ordinance without just compensation.

d. Other Constitutional Claims

On its face, the Ordinance does not mention any of appellants' asserted First, Fourth or Ninth Amendment rights. While appellants' complaint alleges claims under these Amendments, appellants have not pled any specific facts to support these claims. Appellants' conclusory allegations of their denial of rights, such as their right "to freely practice their religion", Complaint at 32, are insufficient to state a claim under the civil rights laws. See Finley v. Rittenhouse, 416 F.2d 1186 (9th Cir.1969). Furthermore, we cannot conceive of any facts that appellants could state that would transform their civil rights arguments into viable civil rights claims. Consequently, the district court did not err in dismissing appellants' conclusory allegations of civil rights violations.

e. BCDC's Dismissal as a Defendant

The district court ruled that the BCDC, as a state agency, could not be a "person" under 42 U.S.C. Sec. 1983 and that California had not waived its Eleventh Amendment immunity. The issue of whether a state or its agencies can be "persons" under Section 1983 is unsettled. The cases cited by the district court, Sykes v. State of California Dept. of Motor Vehicles, 497 F.2d 197, 201 (9th Cir.1974); Bennett v. California, 406 F.2d 36, 39 (9th Cir.), cert. denied, 394 U.S. 966 (1969), predate the Supreme Court's decision in Monell v. Dep't of Social Services, 436 U.S. 658 (1978), which held that local governing bodies could be sued as "persons" under Section 1983. In a recent opinion, this Court noted in dicta that Section 1983 applies to the states. Fleming v. Dep't of Public Safety, 837 F.2d 401, 404-05 (9th Cir.), cert. denied, 109 S.Ct. 222 (1988); see also S. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 6.20 (2d ed. 1986). We do not have to resolve this issue here because even if the BCDC could be sued as a "person", the State of California has not waived its sovereign immunity. See Yuan Jen Cuk v. Lakner, 448 F.Supp. 4, 8 (N.D.Cal.1977) (California has not waived its Eleventh Amendment immunity). As a state agency created under Cal.Gov't Code Secs. 66600-61, the BCDC enjoys sovereign immunity and cannot be sued in federal court.

Appellants' complaint alleges causes of action for breach of public trust, unlawful taking in excess of the appellees' power of eminent domain, unlawful conduct in creating a subordinate local state agency, and violation of CEQA. All of these claims were dismissed by the district court. On appeal, appellants only contest the dismissal of their pendent claim under CEQA. Appellants' Opening Brief at 1. Although appellants devote several pages of their brief to this claim, the claim was properly dismissed since there is no federal jurisdiction.

Appellants claim that the district court abused its discretion in denying them leave to amend their complaint. Our review of the record convinces us that there was no abuse of discretion with respect to the admiralty, NEPA, and civil rights claims. However, we find that it was an abuse of discretion to deny leave to amend the ESA claim.

In ruling on the ESA claim, the district court stated: "Plaintiffs have failed to plead facts sufficient to constitute acts prohibited by the Act. Additionally, the moving of a boat from Richardson Bay would not constitute the type of "taking" contemplated by the Act.... Even if plaintiffs had complied with this requirement, the alleged injury caused by the passage of Ordinance No. 87-1 is too remote to come within the scope of the Endangered Species Act. See California v. Watt, 520 F.Supp. 1359, 1387-88 (C.D.Cal.1981)."

The ESA makes it unlawful to "take" any endangered species. 16 U.S.C. Sec. 1538(1)(B). "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. Sec. 1532(19). "Harass ... means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering." 50 C.F.R. Sec. 17.3. "Harm ... means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." Id.

The determination of whether certain conduct constitutes a taking under the ESA is inherently a factual matter. Thus, while we have serious doubts as to whether the movement of appellants' boats will amount to a taking under the ESA, we think it was improper not to allow the ESA claim to proceed beyond the dismissal stage. In the one case cited by the district court in support of its dismissal of the ESA claim without leave to amend, California v. Watt, supra, the court, after examination of the entire record on a motion for summary judgment, found that there was no taking under the ESA. Appellants have alleged that there are certain endangered species living in Richardson Bay which will be harmed by the moving of appellants' boats. See Declaration of David Coy in Support of Plaintiffs' Application for a Temporary Restraining Order and a Preliminary Injunction. They should be granted leave to amend their complaint to assert an ESA claim after complying with the 60-day notice requirement.7

The district court correctly dismissed appellants' complaint for want of jurisdiction and for failure to state a claim upon which relief can be granted. However, the ESA claim was improperly dismissed with prejudice.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.