# Brimstone Natural Resources v. Haight

> District Court, D. Oregon · August 7, 2019

URL: https://www.frixlaw.com/law-library/cases/10391079

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 7, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391079

## How later opinions describe it (automated extraction)

- holding that a state ban on suction dredge mining was not federally preempted because it did not ban all mining
- noting Gregon Senate Bill 3 was environmental regulation, not land use planning, for the same reasons

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

BRIMSTONE NATURAL RESOURCES Case No. 1:18-cv-01740-CL
CO., an Oregon corporation; JOHN WEST, an
individual; ROBERT STUMBO, an
individual OPINION & ORDER

Plaintiffs,
v.

DAVID HAIGHT, an individual; STEPHEN
WETMORE, individually and in his official
capacity, DOUGLAS THACKERY,
individually and in his official capacity;
OREGON DEPARTMENT OF
FORESTRY, a government agency; PETER
DAUGHERTY, State Forester, Oregon
Department of Forestry, in his official capacity;
OREGON DEPARTMENT OF
ENVIRONMENTAL QUALITY, a
government agency; RICHARD WHITMAN,

Daca 1 ODITTON & ARDNHLGP

Director of the Oregon Department of
Environmental Quality, in his official capacity;
OREGON DEPARTMENT OF FISH AND
WILDLIFE, a government agency; CURT
MELCHER, Director of the Oregon
Department of Fish and Wildlife, in his official
capacity; DOES 1-10, individually and/or in
their official capacities.
Defendants.

CLARKE, Magistrate Judge.
Plaintiffs Brimstone Natural Resources Co., John West, and Robert Stumbo request
declaratory relief for preemption, void for vagueness, contract rights, substantive and procedural
due process, and equal protection issues. Second Am. Compl. ff 1-7 (#26). Additionally,
Plaintiffs request monetary relief for alleged procedural due process and equal protection
violations, each claim alleging one million dollars in damages. Jd. 4 VIII-IX. Plaintiffs also
allege an unconstitutional taking without just compensation and seek one million dollars in
damages. Jd. J] 6; VII. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
because the asserted claims include a federal question arising under 42 U.S.C. § 1983.
This matter comes before the Court on a Motion to Dismiss (#29) filed by Defendants
David Haight, Stephen Wetmore, Douglas Thackery, Curt Melcher, Peter Daugherty, Richard
Whitman, the Oregon Department of Forestry, the Oregon Department of Environmental
Quality, and the Oregon Department of Fish and Wildlife (“Defendants”). For the reasons below,
Defendants’ motion is GRANTED. Defendants have also filed a Motion for Judicial Notice
(#30). Plaintiffs do not contest the motion, and it is GRANTED. The parties have entered full
consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 63 6(c)(1).

STANDARD
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss
will be granted where the plaintiff fails to state a claim upon which relief may be granted. In
order to state a claim for relief, a pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted ‘tests the legal sufficiency of a claim.’” Conservation Force v. Salazar, 646 F.3d 1240,
1242 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)).
Dismissal under Rule 12(b)(6) is proper “if there is a ‘lack of a cognizable legal theory or
the absence of sufficient facts alleged under a cognizable legal theory.’” Jd. (quoting Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). When evaluating a motion to dismiss, the court may first
identify and strike allegations that are mere legal conclusions. Jd. However, the court must

accept allegations of fact as true and construe those allegations in the light most favorable to the
non-moving party. Id.; Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007) (internal
citations omitted).
In general, a court cannot consider any material outside the pleadings when ruling on a
motion to dismiss unless the motion is treated as one for summary judgment and the parties are
“given reasonable opportunity to present all materials made pertinent to such motion by Rule
56.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Fed. R. Civ. P.
12(b)(6)). However, there are two exceptions to this rule. Jd.

D...92 UADTRTART BADKTD

First, a court is not required to convert a motion to dismiss into a motion for summary
judgment if it is merely considering “material which is. properly submitted as part of the
complaint.” Jd. (internal citations omitted). Such materials may include documents specifically
referred to and relied upon in the complaint, so long as the authenticity of the documents is
uncontested. Jd. Second, a court may take judicial notice of “matters of public record” under
Federal Rule of Evidence 201. Jd. at 689 (quoting Mack v. South Bay Beer Distrib., 798 F.3d
1279, 1282 (9th Cir. 1986)). Rule 201 enables the court to take judicial notice of facts that are
“not subject to reasonable dispute” because they are (1) “generally known within the trial court’s
territorial jurisdiction,” or (2) “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). For instance, a court may take
judicial notice of records and reports of administrative bodies. See Anderson v. Holder, 673 F.3d
1089 (9th Cir. 2012) (taking judicial notice of second appeal and merging it with earlier appeal).
BACKGROUND
Plaintiffs John West and Robert Stumbo are fifty percent shareholders of Plaintiff
Brimstone Natural Resources Co. (“BNR”), an Oregon corporation that owns property located
along Dog Creek (“Dog Creek Property”) and Brimstone Road (“Brimstone Property”) in
Josephine County, Oregon. Second Am. Compl. ff 13-15, 28-29 (#26). Only the Brimstone
Property appears to be at issue in this case. As alleged, the Brimstone Property originates in a
land patent issued in 1883 under the authority of the 1820 Land Act and supplemental
legislation. Jd. | 33. Plaintiffs believe there is gold on the property and intend to conduct a
mining operation to retrieve it. Id. Jf 27, 38.
In order to conduct their gold mining operation as they envisioned it, Plaintiffs harvested
several trees in the riparian management area of the Brimstone Property during the summer of

DA ANTTaA,AT OBOADKRTD

2013. Ex. 101 at 7 (#30); see Second Am. Compl. { 72 (#26). They sold this timber
commercially in violation of the Oregon Forest Practices Act (OFPA). Ex. 101 at 7 (#30); OAR
629-600-0050. In response to public complaints about the timber harvest, the Oregon
Department of Forestry (ODF) investigated the property in September 2013. Ex..101 at 8 (#30).
ODF Forester, Stephen Wetmore, found Plaintiffs had removed several trees in the riparian
management zone of the property. Jd. Defendant Wetmore issued citations (#13-SW022, #13-
SW023, and #13-SW024; “2013 Repair Orders”) requiring Plaintiffs to cease further harvesting
operations and repair damage by replanting and maintaining new trees on the property. Ex. 101
at 9-10 (#30); Second Am. Compl. { 69 (#26). Plaintiffs requested an administrative hearing to
contest the citations. See Ex. 101 at 3 (#30).
An administrative hearing was held on November 21, 2013. Ex. 101 at 3 (#30). The
Administrative Law Judge (“ALJ”) concluded that Plaintiffs had failed to retain trees in the
riparian management zone in violation of the OFPA. Ex. 101 at 13 (#30). The ALJ also
considered and ultimately rejected Plaintiffs’ argument that the Mining Act of 1872 (“The
Mining Act”), 30 U.S.C. §§ 22-54, and the federal mining patent for Brimstone Property
preempted the OFPA, Ex. 101 at 17-20 (#30). The ALJ issued a Final Order affirming citations
#13-SW023 and #13-SW024, which required Plaintiffs to cease further violation and repair
damages on the land by replanting approximately 500 trees and maintaining them for four years.
Ex. 101 at 11-12, 25 (#30) (413-SW022 was not at issue in this hearing). According to the
administrative record, Plaintiffs have not yet complied with the Repair Order. Ex. 103 at 2 (#30).
During the November hearing, defendant Wetmore also indicated that Plaintiffs could
avoid some of the 2013 Repair Order requirements if they submitted and gained approval for a
Plan for Alternate Practice (“PFAP”). Second Am. Compl. J 71 (#26); Ex. 102 at 11 (#30); OAR

Dane £ __ OPINION & ORNERP

629-605-0173. Although the OFPA’s purpose is to preserve forestland properties such as the
Brimstone Property, 44 ORS § 527.630, the legislation allows for the possible conversion of
forestland to other uses through the PFAP process, 44 ORS § 527.730; OAR 629-605-0173.
PFAPs are commonly approved to convert forestland to agricultural uses; however, before this
case, ODF staff had not encountered a PFAP application for converting forestland to mining
purposes. Ex. 102 at 11 (#30).
Plaintiffs allege that, in reliance on Mr. Wetmore’s statements, they abandoned their
appeal of the 2013 Repair Orders and pursued a PFAP. Second Am. Compl. { 71 (#26). Plaintiffs
met with Mr. Wetmore in May 2014, at which time Mr. Wetmore encouraged them to show
reasonable progress toward conversion of the property by submitting a written PFAP application.
Id. 84; Ex. 102 at 11 (#30). Despite this meeting, Plaintiffs did not submit a written PFAP
application until November 2014, more than twelve months after they learned of this option. Ex.
102 at 11 (#30). Plaintiffs have not yet been approved for a PFAP and allege they were informed
the application had expired on March 6, 2015, Second Am. Compl. { 95 (#26), and on December
31, 2015, id 491.
At a subsequent hearing regarding all three citations, the ALJ issued a civil penalty of
$4,950 against Plaintiffs. Ex. 102 at 14 (#30). In January 2016, Defendant ODF issued an order
prohibiting further commercial timber operations by Plaintiffs until the fines were paid and either
reforestation occurred or a PFAP was approved (“Order to Prohibit’). Ex. 103 at 2 #430). In
response, Plaintiffs commenced this action, alleging that Defendants abused their authority in
order to prevent Plaintiffs from acting on their plans to mine. Second Am. Compl. {fj 100-104
(#26). Plaintiffs also allege that Defendants fabricated impossible and variable requirements to

£ NMDA 8B AYPNUYD

obtain approval for a PEAP and, in doing so, have limited the use of Plaintiffs' property to
forestland. Jd.
DISCUSSION
Plaintiffs contend the following: (1) The OFPA, as applied in this case, is preempted by
federal mining laws, Second Am. Compl. J 118 (#26); (2) Defendants’ actions have infringed
upon a heretofore unrecognized “fundamental property right” of individuals “to use and develop
their property as they choose” in violation of the 14th Amendment, id. J 123-26; (3) the OFPA,
as applied in this case, is void for vagueness and thus unconstitutional, id. 7 132; (4) Defendants’
actions have infringed on Plaintiffs’ right to freedom of contract in violation of Article I § 10 of
the Constitution, id. § 137; (5) Defendants have violated Plaintiffs’ Sth and 14th Amendment
rights to due process rights by “depriving Plaintiffs of their constitutionally protected property
rights and providing no reasonable notice or opportunity to be heard,” id. JJ 143-43; (6)
Defendants violated the Equal Protection Clause of the 14th Amendment by “singling Plaintiffs
out for intentional and arbitrary discrimination, [sic] because of personal animus toward
Plaintiffs,” id. □□ 146-47; and (7) Defendants’ actions constitute an “as applied” taking in
violation of 42 USC § 1983, id. ¥ 153. Furthermore, Plaintiffs allege that defendants Thackery,
Haight, Wetmore, and Does 1-10 have, in their individual capacities, violated Plaintiffs’
procedural due process and equal protection rights. Jd. J] 156, 161.
As apreliminary matter, Plaintiffs have not alleged that they have exhausted all
administrative remedies. The doctrine of exhaustion of administrative remedies “provides ‘that
no one is entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.’” McKart v. U.S., 395 U.S. 185, 193 (1969) (quoting
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). “The basic purpose of the

Doo OAR. oAnnNeTnN

doctrine of exhaustion of administrative remedies is to allow an administrative agency to
perform functions within its special competence to make a factual record, to apply its expertise
and to correct its own errors so as to moot judicial controversies.” Aleknagek Natives Ltd. v.
Andrus, 648 F.2d 496, 499 (9th Cir. 1980). “If a statute does not provide for exhaustion of
administrative remedies, a district court may require exhaustion in the exercise of its discretion.”
Porter v. Board of Trustees of Manhattan Beach Unified School Dist., 307 F.3d 1064, 1070 (9th
Cir. 2002).
Though exhaustion of administrative remedies is typically required as a condition of
judicial review, courts have allowed exceptions when exhaustion does not serve the purposes of
the doctrine or the particular administrative scheme involved. Andrus, 648 F.2d at 499. Thus,
exhaustion is not required in the following circumstances: (1) if the prescribed administrative
remedies are “inadequate or not efficacious,” (2) if “pursuit of administrative remedies would be
a futile gesture,” (3) if “irreparable injury will occur” without immediate judicial review, or (4) if
an administrative proceeding would be void. Id.
It is not disputed in this case that Plaintiffs have failed to exhaust the available
administrative remedies. First, as alleged in the complaint, Plaintiffs had the option to appeal the
2013 Repair Order, but they abandoned their appeal to pursue a PFAP. Second, according to the
administrative record, Plaintiffs had the opportunity to request a hearing regarding the 2016
Order to Prohibit within 30 days of its issuance, Ex. 103 at 2 (#30), but Plaintiffs have not
alleged that they did so. Furthermore, Plaintiffs have not alleged any of the aforementioned
exceptions to the doctrine of exhaustion of administrative remedies.
This Court exercises its discretion to require exhaustion of administrative remedies in this
case. Therefore, since Plaintiffs do not contend that they have exhausted all prescribed

administrative remedies, Plaintiffs’ Complaint does not properly allege entitlement to the
requested relief. Moreover, as discussed below, Plaintiffs’ Complaint fails to state a claim upon
which relief can be granted.
I. The OFPA is not preempted by the Mining Act.
Plaintiffs allege that the OFPA, as applied through the Order to Prohibit, conflicts with
the Mining Act and is thus preempted by federal law. Conflict preemption arises where a state
law “actually conflicts with federal law [such that] it is impossible to comply with both state and
federal law . . . or where the state law stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress.” California Coastal Comm'n vy. Granite Rock Co., 480 US.
572, 582 (1987) (“Granite Rock’).
a. Federal mining laws do not preempt a state’s reasonable environmental
regulations.
To allege preemption, Plaintiffs rely on the Mining Act, which provides:
[A]ll valuable mineral deposits in lands belonging to the United
States, both surveyed and unsurveyed, shall be free and open to
exploration and purchase, and the lands in which they are found to
occupation and purchase, by citizens of the United States....

30 U.S.C. § 22. As passed in 1872, the Mining Act “expressed no legislative intent on the as-yet
rarely contemplated subject of environmental regulation.” Granite Rock, 480 U.S. at 582.
The United States Supreme Court has held that federal mining laws and
environmental regulations do not preempt reasonable state environmental laws that restrict
mining activities on federal land.' Id. In Granite Rock, the state law at issue was a permitting

' In Plaintiffs’ Response to Defendants’ Motion to Dismiss (#33), Plaintiffs attempt to distinguish the
present case from Granite Rock, claiming that the Supreme Court’s holding in that case applied only to
unpatented claims on federal land. However, if the Mining Act applies to the Brimstone Property, then
Granite Rock also applies. If Granite Rock does not apply, the Mining Act does not apply, and
preemption would be impossible. In either scenario, this claim should be dismissed.

regulation that required a mining company, which had already submitted an approved five-year
plan of operations to the Forest Service, to secure a permit from the California Coastal
Commission before undertaking any development, including mining. /d. at 577. The mining
company immediately filed an action alleging that the permit requirement was preempted by
federal regulations. /d. The Court held the Mining Act and other federal Forest Service mining
regulations were not intended to preempt the imposition of reasonable state environmental
regulations on mining claims. /d. at 583. Moreover, the regulations “expressly contemplate
coincident compliance with state law as well as with federal law.” Jd. at 584.
As discussed below, the OFPA is a reasonable environmental regulation. Moreover, the
OFPA does not preclude mining, either facially or as applied through the Order to Prohibit.
Therefore, under Granite Rock, federal mining laws do not preempt the OFPA, and Plaintiffs’
preemption claim is not cognizable.
b. The Oregon Forest Practices Act (OFPA) is not facially preempted because it
is reasonable state environmental regulation.
Although the Mining Act is silent on the subject of environmental regulation, Congress
has since recognized that both federal and state governments have a responsibility and a right to
minimize adverse environmental impacts through reasonable environmental policies. 30 U.S.C. §
601 et seq.; 36 C.F.R. §§ 228 .1, 228.3(d); 42 U.S.C. §§ 4331(a), 4371(b)(2). Pursuant to this
right, the state of Oregon enacted the Forest Practices Act, which sets forth various forest
regulations to achieve Oregon’s declared policy
to encourage economically efficient forest practices that ensure the
... Maintenance of forestland ... consistent with sound management
of soil, air, water, fish and wildlife resources and scenic resources
... and to ensure the continuous benefits of those resources for future
generations of Oregonians.
44 ORS § 527.630.

Not only does the OFPA have a clear environmental purpose, the subsequent regulations
promulgated by Oregon’s Department of Forestry are also tailored to that purpose. Bohmker v
Oregon, 903 F.3d 1029, 1044 (9th Cir. 2018) (noting Gregon Senate Bill 3 was environmental
regulation, not land use planning, for the same reasons). To encourage the maintenance of forest
resources, the OFPA requires that private owners of “forestland” comply with state permitting
requirements before conducting any commercial operation relating to the “establishment,
management, or harvest” of forest tree species, including the Douglas Fir and Ponderosa Pine. 44
ORS §§ 527.620(12); 527.670(6)-(7). Additionally, the Board of Forestry established specific
riparian protections for operations occurring near streams. OAR 629-640-0100. These
regulations are in place to ensure the maintenance and protection of Oregon’s natural resources,
not to prohibit any land use planning schemes, including those for mining uses.
Because the OFPA is not intended to “prevent the conversion of forestland to any other
use,” 44 ORS § 527.730, forestland owners who wish to conduct commercial operations that are
not contemplated in the OFPA have the opportunity to propose a Plan for Alternative Practice to
the Department of Forestry, OAR 629-605-0173. This plan must be approved by the State
Forester before the operation commences. Jd. at (5). Ifa forestland owner fails to submit or
comply with a PFAP, or otherwise violates the OFPA, the State Forester has the authority to
issue citations; order owners to make reasonable efforts to repair the damage; and prohibit
owners from conducting new operations on any forestland until repairs, fines, and other
conditions are resolved. 44 ORS § 527.680.

_ For these reasons, the OFPA is a reasonable environmental regulation. Additionally, the
OFPA does not ban mining, nor does it mandate particular uses of the land. To the extent that the
OFPA, as here, regulates commercial lumber harvesting activities in areas sought to be mined,

the OFPA indirectly affects mining. However, in intent and in effect, the OFPA does not
preclude Plaintiffs from mining. Plaintiffs’ mining rights—whatever they may be—remain
intact, albeit within the constraints of Oregon’s regulatory scheme. Therefore, the OFPA is not
facially preempted by the Mining Act.
c. The OFPA, as applied through the Order to Prohibit, does not preclude
mining.
As discussed above, the OFPA, is a reasonable environmental regulation that is not
facially preempted. Likewise, the OFPA, as applied through the Order to Prohibit, does not
preclude Plaintiffs from mining. First, the text of the Order to Prohibit says nothing about
mining. Rather, the Order to Prohibit merely prevents Plaintiffs from conducting any new
“operation” until reforestation is complete and all penalties are paid. The OFPA defines an
“operation” as any “commercial activity relating to the establishment, management, or harvest of
forest tree species.” 44 ORS § 527.620(12). Thus, the text of the Order requires only that
Plaintiffs replant the felled trees and pay a fine before engaging in another commercial timber
harvest.
Moreover, the Order to Prohibit does not preclude mining. Plaintiffs are free to mine their
property in any manner they choose, so long as they comply with all relevant state regulations,
including the OFPA and the Order to Prohibit. See Bohmker, 903 F.3d at 1045-51 (holding that a
state ban on suction dredge mining was not federally preempted because it did not ban all
mining). As alleged in the complaint, Plaintiffs violated the OFPA when they sold the timber
they removed from the planned mining area. Plaintiffs were ordered to pay a fine and reforest the
area, and they were unable to enact their original mining plan. However, though Plaintiffs are no
longer able to mine in the manner they originally intended, they are not banned from mining
altogether. For instance, assuming no other regulations or orders would be violated, Plaintiffs

could pan for gold in the river or shaft mine. Mining is not prohibited; rather, mining in a manner
that fails to comply with Oregon’s regulatory system is prohibited. Since Plaintiffs may still
mine their land, the OFPA, as applied through the Order to Prohibit, does not conflict with the
Mining Act. Therefore, Plaintiffs have failed to state a cognizable preemption claim.
IL. Plaintiffs’ remaining claims are dismissed for failure to state a cognizable
claim for relief.
a. Plaintiffs’ substantive due process claim for recognition of a new
“fundamental property right” is not cognizable.
Plaintiffs have requested this Court to create a new “fundamental property right,”
protected by the Fourteenth Amendment’s Due Process Clause. This Court declines to do so.
Under the Supreme Court’s substantive due process precedent, to be considered a fundamental
right, an asserted right must be “deeply rooted in this Nation’s history and tradition” and
“{mplicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721
(1997). Furthermore, the Supreme Court has required a “careful description of the asserted
right.” Reno v. Flores 507 U.S. 292, 302 (1993).
Plaintiffs describe their asserted right as “the fundamental freedom of persons to the
private enjoyment and use of their property.” Second Am. Compl. § 123 (#26). They allege “that
government regulation of such property must be narrowly tailored to achieve a compelling
governmental interest.” Jd. Never in the history of Fourteenth Amendment jurisprudence or
Ninth Circuit precedent has such a “fundamental property right” been recognized. Furthermore,
Plaintiffs’ description of the asserted right is vague, broad, and far from “careful.” Even if this
Court were inclined to vastly expand the scope of substantive due process, the asserted right, as
alleged in Plaintiffs’ complaint, cannot pass the Supreme Court’s test. Therefore, Plaintiffs have
failed to state a cognizable claim for a new “fundamental property right.”

19) MBNA. 8B ADNRATD

b. Plaintiffs’ void for vagueness claim is not a cognizable constitutional
challenge to the OFPA.
Plaintiffs’ “void for vagueness” claim is not cognizable because Plaintiffs cannot
demonstrate that the statute as applied is unconstitutionally vague. The void for vagueness
doctrine “guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes.”
Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018) (quoting Papachristou v. Jacksonville, 405
U.S. 156, 162 (1972). “An enactment is void for vagueness if its prohibitions are not clearly
defined.” Grayned y. City of Rockford, 408 U.S. 104, 108 (1972). Additionally, the Supreme
Court has stated that “[o]ne to whose conduct a statute clearly applies may not successfully
challenge it for vagueness.” Parker y, Levy, 417 U.S. 733, 756 (1974).
Even as alleged in the complaint, the conduct for which Plaintiffs were originally cited—
commercial timber harvesting in an area designated as “forestland”-——was clearly proscribed by
the OFPA. Moreover, the fact that the Brimstone Property was protected under the OFPA was
established in a final administrative proceeding and cannot now be denied. Because a binding
state agency proceeding conclusively established that the OFPA applies to Plaintiffs’ conduct,
Plaintiffs cannot successfully challenge the OFPA for vagueness.
Additionally, Plaintiffs are not required to apply for a PFAP; they are allowed to do so.
OAR 629-610-0090(3). Since the OFPA does not mandate a PFAP, Plaintiffs do not face any
civil or criminal penalties as a result of their failure to obtain one. The PFAP requirements thus
do not amount to any “prohibition” that can be challenged under the void for vagueness doctrine.
In other words, the permissive statutory scheme that allows individuals to apply for a PFAP
cannot be void for vagueness. Therefore, Plaintiffs’ void for vagueness claim is not a cognizable
constitutional challenge to the OFPA.

DotA ORnTTAT EB ADNTD

c. Plaintiffs’ Contracts Clause claim is not cognizable.
Plaintiffs have failed to state a legally cognizable claim under Article | § 10 of the
Constitution, which limits the power of states to pass laws “impairing the Obligation of
Contracts.” As a prerequisite for a successful claim under the Contracts Clause, a plaintiff must
show more than the general existence of a contractual relationship between parties; rather, he
must show the parties entered a contractual agreement regarding the specific impairment being
alleged. RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1147 (9th Cir. 2004).
Here, Plaintiffs allege the Department of Forestry has “prevent[ed] Plaintiffs from
mining” with an Order to Prohibit and a “sham change of use process.” Second Am. Compl. J
137 (#26). However, Plaintiffs allege no facts supporting the existence of a contractual
agreement to mine on the land. Instead, they allege only that the property at issue originates
under a federal land patent. J@ □□ 33-34. Furthermore, the impairment alleged by Plaintiffs was
previously adjudicated in state administrative hearings, which determined that the OFPA did not
expressly prohibit Plaintiffs from mining, only from conducting the operation as they envisioned
it. Because Plaintiffs have not alleged sufficient facts to support a cognizable claim of
contractual impairment, this claim is dismissed.
d. Plaintiffs fai] to state a procedural due process claim.
Plaintiffs’ procedural due process claim alleges that Defendants created a “sham” PFAP
application process that deprived Plaintiffs of their mining rights without notice or opportunity to
be heard. To establish a procedural due process violation, a plaintiff must demonstrate the
deprivation of a protected liberty or property interest without adequate procedural safeguards.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Determining what constitutes “adequate
procedural safeguards” requires consideration of the following factors: “First, the private interest

□□□ a.Tt BANG

that will be affected by the official action: second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Matthews y. Eldridge, 424 U.S. 319, 335 (1976).
Plaintiffs’ claim, as alleged, fails because the procedural safeguards afforded to Plaintiffs
were adequate according to the Matthews test. First, the “private interest” allegedly being
affected is Plaintiffs’ mining rights. As discussed above, the facts as alleged do not show that the
Plaintiffs are being deprived of their mining rights because they still have the ability to mine
their property. Second, even if the Plaintiffs were being deprived of their mining rights, the risk
of an “erroneous deprivation” of this interest is low. As alleged, Plaintiffs received
administrative hearings as requested and an appeals process was available to contest the
administrative rulings. Second Am. Compl. 4 71 (#26). Additionally, because Plaintiffs
abandoned their appeal of the 2013 Repair Order and the Order to Prohibit, there would be
minimal value, if any, to having “additional” safeguards. Second Am. Compl. 4 71 (#26).
Finally, the government has a strong interest in ensuring that forestland under its control is
maintained according to lawful environmental regulation and would be burdened by the fiscal
cost of providing additional safeguards. Thus, the procedural safeguards were adequate, and
Plaintiffs failed to state a cognizable procedural due process claim.
e. Plaintiffs fail to state a cognizable equal protection claim.
Plaintiffs’ also allege that Defendants singled them out for intentional and arbitrary
discrimination in violation the Equal Protection Clause of the Fifth and Fourteenth Amendments.
“(T]he first step in equal protection analysis is to identify the state's classification of groups.” □

Doar AOKRTD

Country Classic Dairies, Inc. v. Milk Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988). “[T]he
groups must be comprised of similarly situated persons so that the factor motivating the alleged
discrimination can be identified.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.
2005). An equal protection claim can also lie where a plaintiff can establish that he is a “class of
one” in that he has been intentionally treated differently than others similarly situated, and there
is no rational basis for the difference in treatment. Hood Canal Sand and Gravel, LLC v. Brady,
129 F.Supp.3d 1118, 1125 (9th Cir. 2015).
In this case, Plaintiffs have not alleged any action taken against them based on their
membership in any class or group. Additionally, Plaintiffs have not sufficiently alleged that they
have been treated differently than others similarly situated, i.e. others who attempted to change
the use of a property from forestland to mining. It is unclear to this Court if there has ever been a
PFAP granted for a change of use from forestland to mining. ODF staff have “never seen an
alternate practice plan requested for mining.” Ex. 102 at 37 (#30). Therefore, as alleged,
Plaintiffs failed to state a cognizable equal protection claim.
f. Plaintiffs fail to state a cognizable takings claim.
Finally, Plaintiffs allege that Defendants’ actions constitute a physical taking of their
property and seek just compensation under the Takings Clause of the Fifth Amendment, as
applied through the Fourteenth Amendment. Second Am. Compl. ff] 150-153 (#26). To state a
claim for a physical taking requiring just compensation, a plaintiff must make a threshold
allegation that the government “[required] the landowner to submit to the physical occupation of
his land,” Yee v. City of Escondido, Cal., 503 U.S. 519 (1992). A plaintiff cannot establish a
physical takings claim simply by alleging he has been “denied the ability to exploit a property

17 £339€IDTAITCVAT MDMNOD

interest that [he] heretofore had believed was available for development... .” Penn Central
Transp. Co. v. City of New York, 438 U.S. 105, 130 (1978).
In this case, Plaintiffs have failed to state a legally cognizable claim for the physical
taking of their property. They allege no facts showing Defendants required the physical
occupation of their land. Moreover, their allegations that Defendants’ actions “prevent Plaintiffs’
intended legal use” and “frustrated Plaintiffs” expectations in purchasing the properties” are □
insufficient to support a physical takings claim. Second Am. Compl. ff 151-152 (#26). Because
Plaintiffs have not stated a cognizable takings claim, this claim is dismissed.
CONCLUSION
For the foregoing reasons, Plaintiffs have failed to state a claim upon which relief can be
granted. The Court cannot say with absolute certainty that amendment of these claims would be
futile. However, the deficiencies are significant, especially considering Plaintiffs’ failure to
exhaust administrative remedies. In an abundance of caution, the Court dismisses Plaintiffs’
Complaint (#26) without prejudice. Regarding the recently filed Motion for Extension of Time
(#47), Plaintiffs have not shown good cause for this Court to delay ruling on Defendant’s Motion
to Dismiss (#29). Pursuant to Federal Rule Civil Procedure 15, Plaintiffs may address any new
events or allegations in an amended complaint if one is filed. __
ORDER
For the reasons stated above, the Defendants’ Motion to Dismiss (#29) is GRANTED.
This case is dismissed without prejudice, with leave to amend within 30 days. Defendants’
unopposed Motion for Judicial Notice (#30) is also GRANTED. Plaintiffs’ Motion for Extension
of Time (#47) is DENIED.
IT ISSO ORDERED.

D216 TTA.T 8 ADNTD

DATED this 7 on ugust, 2019.

D. CL
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391079. Public record. Not legal advice.