Roark v. Richardson Bay Reg'l Agency

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ROBERT JAMES ROARK, Plaintiff, v. RICHARDSON BAY REGIONAL AGENCY, et al., Defendants.

No. 22-cv-07610-WHO

United States District Court, N.D. California

December 1, 2023

ORDER GRANTING MOTION TO DISMISS RE: DKT. NO 41

William H. Orrick United States District Judge

Plaintiff Robert James Roark has brought a broad array of constitutional and other claims challenging defendant Richardson's Bay Regional Agency's (“RBRA”) “Anchoring Permit Scheme” (“Permit Scheme”) and the December 2022 issuance of a “Notice to Remove” his boat, the Kittiwake for failure to comply with the Permit Scheme. I denied without prejudice RBRA's prior motion to dismiss the First Amended Complaint (“FAC”) and invited it to file a more comprehensive motion that addressed the substance of each of Roark's claims. Dkt. No. 37.^[1] It did so. Because Roark has not alleged facts that plausibly support his claims, and because the law is so clear that an amendment would be futile, I GRANT defendants' motion to dismiss without leave to amend.

BACKGROUND

As noted in my prior Order, Roark's FAC challenges the constitutionality of the Permit Scheme under the Fourth Fifth, Eighth and Fourteenth Amendments because:^[2]

(i) the Permit Scheme is “impossible to comply with” and “subjects Plaintiff to constant threat” of the loss of his boat and civil or criminal prosecution;

(ii) the Permit Scheme unconstitutionally allows warrantless searches in violation of the Fourth Amendment;^[3]

(iii) the Permit Scheme violates the Due Process Clause and Fifth Amendment Takings Clause because the permits can be revoked at any time without due process;^[4]

(iv) the Permit Scheme unconstitutionally requires permit applicants to “waive” all right to damages from RBRA's actions;^[5]

(v) the Permit Scheme requires permit applicants to swear under penalty of perjury facts that could be used against them in criminal proceedings;^[6] and (vi) the Permit Scheme places permit applicants or those without permits in the unconstitutional position of facing “persistent criminal liability.”^[7]

See FAC ¶¶ 78-79, 97-146 & Ex. H.

Roark further alleges that a June 2021 Notice identifying his boat as marine debris (“Marine Debris Notice”) and his subsequent “displacement” by the RBRA violated his Fourth, Fifth, and Fourteenth Amendment rights. FAC ¶¶ 71-72, 284-326 & Ex. C. He contends that RBRA and others have conspired to take his boat and defraud the State of California in violation of the Fifth and Fourteenth Amendment based on two “separate grant contracts” entered into in December 2020 and December 2021. FAC ¶¶ 65-71, 175-234, 260-283, 327-335, 389-417 & Exs. A, B (listing the Kittiwake in the scope of work for destruction). He alleges that these contracts, as well as defendants' intent to destroy his boat shown by the contracts, were concealed from and never disclosed to plaintiff or the public. FAC ¶ 185. He states that this conduct violates California Civil Code sections 526(a) & 1085. FAC ¶¶ 409-431. Finally, he asserts a claim for a constitutional violation under California's Bane Act (Cal. Civ. Code § 52.1) and for declaratory and compensatory relief for “past and present constitutional violations.” FAC ¶¶ 442, 443.

Roark's allegations of false claims or false statements made to secure state funds from the California Department of Boating and Waterways (CDBW, “Cal Save Grants”) or federal funds from the National Oceanic Atmospheric Administration (“NOAA”) form the basis at least in part of the following causes of action: the Third Cause of Action (“42 U.S.C. § 1985 Conspiracy to Violate Substantive Due Process,” alleged against unserved defendants Lesberg, Coastal Policy Solutions, and RBRA); the Fourth Cause of Action (“Violation Public Contract” against unserved defendants Pollard and Havel, based on misuse of federal funds from the NOAA, the Ocean Protection Council, and CDBW); the Fifth Cause of Action (“Violation of 42 U.S.C. § 1983, § 1985 Violation of Substantive Due Process,” based on claims that false or fraudulent claims were submitted to NOAA; the Fifteenth Cause of Action (“Violation of California False Claims Act,” based on fraudulent claims made to CDBW to secure Cal Save Grants); and the Nineteenth Cause of Action (“Taxpayer Action” based on false claims submitted to CDBW). These claims all rely on allegations that various defendants made false claims to state and federal agencies for the purpose of securing funds under the pretense or intent to destroy the Kittiwake.

In response to defendants' renewed motion to dismiss the FAC, Roark submitted a notice voluntarily dismissing his “Causes of action under the False Claims Act and the California False Claims Act.” Dkt. No. 43. In an abundance of caution, I will consider Roark's voluntary dismissal as applying only to the Fifteenth Cause of Action, entitled “Violation of California False Claims,” and DISMISS it with prejudice. I address defendants' challenges to Roark's remaining causes of action in turn.

LEGAL STANDARD

Under FRCP 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). If the court dismisses the complaint, it “should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

DISCUSSION

I. CONSTITUTIONAL RIGHT TO ANCHOR

Defendants contend that underlying the whole of Roark's FAC is an assertion that Roark has a constitutional right to anchor in Richardson's Bay. See Mot. at 4-5 (citing ¶¶ FAC 106, 113, 144). I do not agree that every claim in Roark's FAC depends on that assertion. But I agree that to the extent Roark is alleging a stand-alone constitutional entitlement to anchor where he chooses, the United States' constitution does not confer a blanket right to anchor in Richardson's Bay. See Graf v. San Diego Unified Port Dist., 7 Cal.App.4th 1224, 1232 (1992) (“Boaters do not have a constitutional right to unregulated long-term anchorage in public navigable waters.”).

II. PREEMPTION

Defendants also contend that throughout the FAC Roark argues or implies that RBRA's anchorage ordinance is preempted by federal law. See, e.g., FAC ¶ 145 (“anchoring permit application violates the Supremacy Clause because it effectively bans all anchoring within the federally designated anchorage outlines in 33 C.F.R. 110.126(a)”). I agree that no regulation or federal authority identified by Roark preempts the authority of RBRA to control anchorages in Richardson's Bay. Instead, the federal regulations he identified establish Richardson's Bay as a “special anchorage area” and direct mariners to comply with the RBRA's Permit Scheme.^[8]Significantly, the Ninth Circuit has expressly rejected the argument that the special anchorage designations conflict with local ordinances requiring permits to stay beyond 72 hours. See Barber v. State of Hawai'i, 42 F.3d 1185, 1191 (9th Cir. 1994) (the “requirement that vessels in excess of 65 feet anchored in Ke'ehi Lagoon must exhibit white lights while at anchor does not conflict with Hawaii's regulations, which simply require that boats in the lagoon obtain a permit and moor in a designated area if the boat is to remain in the lagoon for more than 72 hours.”); see also Graf v. San Diego Unified Port Dist., 205 Cal.App.3d 1189, 1193 (Cal.Ct.App. 1988) (“Thus the jurisdiction to establish and enforce the anchorage and nonanchorage areas in San Diego Harbor is concurrent” between the federal government and the local body delegated with authority).

Any cause of action or theory based on preemption is DISMISSED without leave to amend.

III. PROCEDURAL DUE PROCESS CLAIM

Defendants move to dismiss Roark's procedural due process claim in the First Cause of Action, where he challenges the lack of an appeal process when RBRA revokes a 30-day anchoring permit (“Permit”) because a vessel is out of compliance with the conditions required by the Permit Application. FAC ¶¶ 110, 190; see also Permit Application pg. 2 (identifying conditions required for vessels to secure or maintain a Permit). Because no...