Tri-Dam v. Frazier, 1:20-cv-00408-SKO

TRI-DAM, Plaintiff, v. SCOTT FRAZIER, Defendant.

No. 1:20-cv-00408-SKO

United States District Court, E.D. California

August 27, 2021

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

(DOC. 23)

SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiff Tri-Dam (“Plaintiff”) filed this action against Defendant Scott Frazier (“Defendant”), alleging causes of action for violation of the Federal Power Act (“FPA”), 16 U.S.C. § 825p, public nuisance private nuisance, trespass, and interference with express easement. (Doc. 1 (“Compl.”).) On May 21, 2021, Defendant filed a motion to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”). (Doc. 23.) Plaintiff filed its opposition on June 9, 2021, and Defendant filed his reply on June 16, 2021. (Docs. 28 & 29.) After reviewing the parties' papers, the matter was deemed suitable for decision without oral argument pursuant to Local Rule 230(g), and the Court vacated the hearing set for June 23, 2021. (Doc. 30.) On July 14, 2021, the Court directed the parties to file supplemental briefing, which was completed on July 30, 2021. (Docs. 33-36.)

For the reasons set forth below, Defendant's motion to dismiss is denied.^[1]

II. FACTUAL BACKGROUND ^[2]

Plaintiff, a joint venture between the South San Joaquin Irrigation District and Oakdale Irrigation District, owns and operates the Tulloch Hydroelectric Project No. 2067 (the “Project”) located in Tuolumne and Calaveras Counties, California, pursuant to a license (the “License”) issued by the Federal Energy Regulatory Commission (“FERC”). (Compl. at ¶¶ 3, 4, 9). The Tulloch Project boundary extends approximately 1, 619 acres and includes all the land within the 515-foot elevation contour surrounding the Tulloch Reservoir. (Id. at ¶ 5). Sixty-one percent of the land within the Project boundary is privately owned, twenty-six percent of the land is owned by Plaintiff, and twelve percent of the land is owned by either the state of California or the federal government. (Id.) Defendant owns land in Calaveras County, at 7540 O'Byrnes Ferry Road, Copperopolis, California, and Plaintiff possesses flowage easements for the operation of the Tulloch Reservoir that encumber Defendant's property. (Id. at ¶¶ 6, 8.)

The FPA commands FERC to assure that projects are developed to serve various public needs, and FERC places on licensees (e.g., Plaintiff) the responsibility to assure that project uses are consistent with federal law and policy. (Compl. at ¶ 10.) Plaintiff asserts that it is obligated under Articles 13, 411, and 413 of the License and section 10(a) of the FPA to regulate non-project use and occupancy of lands and waters within the Project boundary to assure that such use is best adapted to a comprehensive plan for development of the Stanislaus River for a variety of beneficial public uses. (Id. at ¶¶ 13, 16 (internal quotation marks omitted).) Article 411 of the License requires Plaintiff to develop a shoreline management plan, which Plaintiff most recently revised in April 2015 and was approved by FERC in September 2016 (the “Shoreline Management Plan”). (Id. at ¶¶ 11, 12, 13.)

Article 39 of the License provides Plaintiff with the authority to grant permission for use of lands within the Project boundary without prior approval of FERC, and Article 413 of the License and the Shoreline Management Plan allow Plaintiff to grant permission, without prior FERC approval, for the use and occupancy of Project lands for minor activities such as construction of sea walls and installation of boat docks. (Compl. at ¶¶ 9, 17.) Article 413 also requires Plaintiff to establish a program for issuing permits and provides that if a permitted use and occupancy violates any condition of the Shoreline Management Plan or any other condition imposed by Plaintiff, then Plaintiff “shall take any lawful action necessary to correct the violation, ” including “requiring the removal of any non-complying structures and facilities.” (Id. at ¶¶ 18, 19 (quoting the License).) Plaintiff has “the continuing responsibility to supervise and control the use and occupancies for which it grants permission, and to monitor the use of, and ensure compliance with the covenants of the instrument of conveyance for, any interests that it has conveyed under [Article 413].” (Id. at ¶ 18 (quoting the License).)

FERC regulations require that Plaintiff approve all facilities within the Project boundary through Plaintiff's permitting program prior to installation. (Compl. at ¶ 21.) To obtain approval from Plaintiff, all facilities must be in conformance with the Shoreline Management Plan. (Id. at ¶¶ 21, 23.) For example, a party desiring to construct or rebuild a private, single-family facility- defined to include docks-within the Project boundary must obtain authorization from Plaintiff prior to the initiation of excavation or construction. (Id. at 24.)

The Calaveras County Municipal Code (“Calaveras Code”) also regulates facilities surrounding the Tulloch Reservoir, requiring that all facilities installed, constructed, or maintained within the Reservoir and Project boundary be in full compliance with appropriate permitting regulations of Calaveras County and Plaintiff. (Compl. at ¶ 25.) The Calaveras Code further provides that no facility shall be installed, constructed, or maintained within the Project boundary unless a permit has been issued by the county and an encroachment permit has been issued by Plaintiff; any use of property contrary to the provisions of the Calaveras Code is unlawful and constitutes a public nuisance. (Id.)

Plaintiff has documented the existence of a slip dock, several personal water craft (“PWC”) ports, and a waterslide extending from Defendant's property into the Project boundary. (Compl. At ¶ 26.) Defendant did not obtain permits from Plaintiff prior to installing these facilities. (Id.) In May 2019, Plaintiff was informed that Defendant had moved and installed two additional docks and connected them to the existing slip dock. (Id.)

Defendant initially attempted to disclaim responsibility for the slip dock, PWC ports, and waterslide, asserting that they were not being used. (Compl. at ¶ 27.) After Plaintiff presented evidence to the contrary, Defendant obtained a permit to move one of the two docks off the slip dock to another location on the Tulloch Reservoir. (Id.) The dock, however, has not been moved and remains connected to the slip dock on Defendant's property. (Id.) Plaintiff informed Defendant that the unpermitted facilities did not comply with the Shoreline Management Plan and demanded that Defendant remove them, but Defendant refused. (Id. at ¶ 32.) Plaintiff has received numerous complaints from other landowners “citing the decreased navigability and concern for public safety and protection of property rights for others.” (Id. at ¶ 31.)

As the unpermitted facilities are located within the Project boundary, and Defendant did not obtain permits from Plaintiff prior to installing the facilities, Plaintiff alleges that Defendant violated the FPA, FERC regulations, and the Shoreline Management Plan. (Compl. at ¶¶ 29, 33-42.) Plaintiff also alleges claims for public nuisance, private nuisance, trespass, and interference with express easement based on Defendant's conduct. (Id. at ¶¶ 43-75.) Plaintiff requests injunctive relief, damages, and costs and fees. (Id. at ¶¶ A-J.)

III. LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Because “[f]ederal courts are courts of limited jurisdiction[, ]” “[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Thus, the plaintiff bears the burden of proof on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). If no subject matter jurisdiction exists, then the Court must dismiss the complaint. Fed.R.Civ.P. 12(h)(3).

Challenges to jurisdiction may be either facial or factual in nature. San Luis & Delta- Mendota Water Auth. v. U.S. Dep't of the Interior, 905 F.Supp.2d 1158, 1167 (E.D. Cal. 2012). A facial attack to jurisdiction “accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). A factual attack, on the other hand, “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Id. In a factual challenge, the court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

IV. DISCUSSION

Plaintiff's complaint alleges that this Court has subject matter jurisdiction over the action pursuant to three statutes: (1) 28 U.S.C. § 1331, under which jurisdiction exists for “all civil actions arising under the Constitution laws, or treaties of the United States”; (2) 28 U.S.C. § 1337, under which jurisdiction exists for “any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies”; and (3) 16 U.S.C. § 825p (“Section 825p”), under which district courts have exclusive jurisdiction over actions “brought to enforce any liability...