Brown v. Oregon Department of Transportation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

GLENN C. BROWN, Case No. 6:20-cv-00829-MK

OPINION AND ORDER

Plaintiff,

vs.

UNITED STATES FOREST SERVICE, et al.,

Defendant.

AIKEN, District Judge:

Plaintiff Glenn Brown brings this action pro se against defendants United

States Forest Service (“USFS”), Holly Jewkes, Oregon Department of Transportation

(“ODOT”), and Gary Farnsworth. He alleges that defendants decided to keep the

gates to Oregon State Highway 242 locked until June 20, 2020, without public notice

or comment. Plaintiff asserts that defendants’ actions violate procedural due process

and the provisions of the John D. Dingell Jr. Conservation, Management, and

Recreation Act (“the Dingell Act”) that concern access to federal land for hunting,

fishing, and recreational shooting. Pub. L. No. 116-9, 133 Stat. 580, 756–62 (2019);

see 16 U.S.C. §§ 7901–7915. Plaintiff now moves for a temporary restraining order

(“TRO”) and preliminary injunction to require defendants to open the East gate of the

highway immediately and engage in a public process regarding seasons closures of

Highway 242. For the reasons below, the motion (doc. 3) is DENIED.1

LEGAL STANDARD

The same general legal standards govern temporary restraining orders and

preliminary injunctions. Fed. R. Civ. P. 65; New Motor Vehicle Bd. of Cal. v. Orrin

W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977). A plaintiff seeking such relief generally

must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely

to suffer irreparable harm in the absence of preliminary relief; (3) the balance of

equities tips in his or her favor; and (4) that an injunction is in the public

interest. Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 22, (2008) (rejecting

the Ninth Circuit's earlier rule that the mere “possibility” of irreparable harm, as

opposed to its likelihood, was sufficient, in some circumstances, to justify a

preliminary injunction). The court’s decision on a motion for a preliminary injunction

is not a ruling on the merits. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739

F.2d 1415, 1422 (9th Cir. 1984).

DISCUSSION

This case concerns Oregon Highway 242, the federal lands it bisects, and two

gates that seasonally control motor vehicle access to the highway and land. The

1 The Court has determined this motion suitable for resolution without a hearing. LR 7-

1(d)(1).

following factual findings are based on plaintiff’s Complaint, the present motion,

plaintiff’s declaration, and his exhibits. Plaintiff describes the area as follows:

Oregon Highway 242 climbs westward from Sisters passing through

thousands of acres of public national forest lands, including two of

Oregon's world-renowned scenic and recreational areas - the Three

Sisters Wilderness Area and the Mount Washington Wilderness Area

(National Forests). Highway 242 crests the Cascades at McKenzie Pass

- 5325' elevation and flanked on all sides by the grandeur of those

wilderness areas. It's a special place. Highway 242 is built on a right-

of-way easement granted by the United States Forest Service (USFS) to

Oregon Department of Transportation (ODOT) under which ODOT

operates and together they manage Highway 242. . . .

Those National Forests include countless lakes, ponds and streams,

meadows, mountains, glaciers and moraines, and all the fish, birds and

wildlife that live there; endless opportunities for recreational users of all

stripes and persuasions (Recreationists.) . . . Highway 242 provides

Recreationists the only motorized access for many miles around to large

swaths of those National Forests; it is the only motorized vehicle access

to the higher elevations along Highway 242 (excluding snowmobiles,

etc.). In the fall as mountain snows outstrip ODOT's ability to clear

Highway 242, its East and West Gates are closed to motorized vehicles

and remain closed until ODOT has cleared the highway in between,

most often by early April.

Mot. at 2 (citing Brown Decl. (doc. 4) ¶ 2).

Recreationists have used Highway 242 to access those areas to “hike, camp,

ski, ride horses, climb mountains, hunt, mountain bike, fish, [and] view wildlife”

among other pursuits. Brown Decl. ¶5. As a practical matter, the seasonal closure

of the gates limits who can access the areas and the activities available to those who

can. As plaintiff explains, many Recreationists need to use cars, SUVs, and trucks to

transport themselves, “their families, tents, campers, equipment, pets, pack animals,

clothing, food and medical supplies, etc. into the National Forests. Most

recreationists including Plaintiff cannot simply carry all that gear on our backs the 7

or so miles and 2000’ elevation gain from the East Gate to McKenzie Pass,

particularly as Recreationists age.” Mot. at 3 (citing Brown Decl. ¶ 6). In short, “[i]f

motorized vehicles are locked out of the National Forests at the East Gate, then so is

Plaintiff along with thousands of other Recreationists.” Id.

Plaintiff has lived in Oregon and recreated in the McKenzie Pass area since

1978. Brown Decl. ¶ 7. He has “camped skied, hiked, climbed, hunted, boated, fished

and viewed wildlife” in the area “more times than [he] can remember.” Id. Plaintiff’s

family bought a vacation home in Sisters in 1995 and relocated there in 2000. Id.

Access to the National Forests in the McKenzie Pass area “was a major factor” in both

decisions. Id. For plaintiff, recreating in the area is “personal, it’s spiritual, it’s core

to who” he is. Id.

Plaintiff does not appear to take issue with ODOT’s decision to close Highway

242 in the winter and spring, but rather, its recent practice of continuing the closure

until the third weekend in June, regardless of road conditions. Plaintiff alleges that

“[i]n 2019 (and before), working out of the public eye and with no prior public notice,

USFS and ODOT locked out motorized traffic from early April, even though Highway

242 was then passable to motorized traffic, until mid-June.” Id. ¶ 9. He alleges that

the agencies are “operating a bike path beyond the East Gate” during that time. Id.

¶ 10.

This spring, plaintiff tried to access the McKenzie Pass area from the East

Gate on several occasions, “but the East Gate is closed and blocking motorized traffic.”

Id. ¶ 8. On May 1, 2020, local news outlets reported that ODOT had completed

clearing the snow off Highway 242. Id. ¶ 11. Later that afternoon, a bike shop in

Sisters operated by the former Mayor, Brad Boyd, announced on its website that the

highway was “open to bicycles beginning on that [afternoon] and following Thursday

afternoons through Sunday evenings.” Id. Plaintiff complained to Boyd and to

defendant Farnsworth and asked why the store “was being provided with up to date

bike path information, information that was not available to the public, at least to

Plaintiff.” Id. ¶ 11. Boyd deleted the post from his shop’s website and Farnsworth

responded to plaintiff’s email denying that Highway 242 was open. Id.

On May 5, 2020, The Nugget, a Sisters newspaper, published a story titled

“McKenzie Highway is not open.” Brown Decl. Ex. 1. The story reported “[w]hile

ODOT has finished its plowing operations on the east side of McKenzie Pass, the road

is not open – to anyone – and won’t be until mid-June” and it observed that “[t]he

status of the roadway from the eastern snow gate to the summit has been a point of

confusion and contention for several years.” Id. The story explained:

ODOT plows a single lane through the snow on the road during the

spring, and then lets the snowmelt do the rest. Once the snow is melted

off, work crews sweep the roadway to clear debris . . . and patch potholes

created over the winter. Opening of the highway used to be arbitrary –

the gate was opened whether the work was done. For the past several

years, the agency has determined upon a consistent third-Monday-in-

June opening.

During the plowing and maintenance period, the roadway is closed to

traffic. However, cyclists and walkers go around the gate to use the

roadway and public perception has grown that the road is open for

cyclists – car free. That perception has been promoted extensively in

the past and again recently in the local media—and ODOT Region 4

Director Gary Farnsworth really wants it corrected.

Id.

The story then quoted statements that Farnsworth had made in “an email

communication to a couple Sisters residents,” referencing Farnsworth’s email to

plaintiff and Boyd, and statements made directly to The Nugget. Id. Farnsworth

stated, unequivocally, “It’s not open. . . . The sign says ‘Road Closed.’” Id. Farnsworth

acknowledged that ODOT had taken down an “authorized personnel only” sign,

because the agency had not been conducting road maintenance operations, but might

post it again “[i]f and when we need to conduct additional operations[.]” Id.

Farnsworth noted that ODOT does not want anyone to go past the gate for safety

reasons even though “will continued to make their own choices” to travel beyond the

gate. Id. Farnsworth emphasized that ODOT did not enforce the road closure other

than the gating and does not expect other organizations like USFS or law

enforcement to enforce it, so those who enter the closed roadway “are entering at their

own risk.” Id.

Plaintiff filed his Complaint on May 22, 2020, alleging that, by deciding to keep

the East Gate locked even after the snow has melted off the eastern half of Highway

242 without providing public notice or an opportunity to comment defendants violated

procedural due process and 16 U.S.C. §§ 7912 and 7913, provisions of the Dingell Act

which require that federal land “be open to hunting, fishing, and recreational

shooting,” and prohibit permanent or temporary closures of federal land to those

activities without notice and comment. Plaintiff filed the present motion on May 28,

2020, but did not pay the filing fee until June 2, 2020.

I. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims

against USFS, Jewkes

Before turning to the TRO and preliminary injunction motion, the Court must

first address its own power to hear plaintiff’s claims. “Federal courts are courts of

limited jurisdiction, possessing only that power authorized by Constitution and

statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted). The

court “is presumed to lack jurisdiction in a particular case unless the contrary

affirmatively appears.” Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-

69 (9th Cir. 1981). Because subject matter jurisdiction goes to the power of a court to

hear a case, a court may, at any time, raise the issue of subject matter jurisdiction

sua sponte and must dismiss if no subject matter jurisdiction exists. Fed. R. Civ. P.

12(h)(3); Snell v. Cleveland, Inc., 316 F.3d 811, 826 (9th Cir. 2002).

Here, the Court must dismiss plaintiff’s claims against USFS, Jewkes,

Deschutes National Forest Supervisor for USFS, and ODOT for lack of subject matter

jurisdiction because they are barred by federal and state sovereign immunity.

Beginning with the federal defendants, USFS and Jewkes, “[s]uits against the

federal government are barred for lack of subject matter jurisdiction unless the

government expressly and unequivocally waives its sovereign immunity.” Mills v.

United States, 742 F.3d 400, 404 (9th Cir. 2014). Without a waiver, sovereign

immunity bars both equitable and legal claims against the United States, its

agencies, and its officers acting in their official capacities. Assiniboine & Sioux Tribes

of Fort Peck Indian Reservation v. Bd. of Oil & Gas Cons. of State of Mont., 792 F.2d

782, 792 (9th Cir. 1986). The party suing the United States bears the burden of

identifying an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399,

1401 (9th Cir. 1983).

Defendant USFS is a division of a federal agency, the United States

Department of Agriculture, and defendant Jewkes is a federal official whom plaintiff

appears to have sued in her official capacity. See Mot. at 14 (“Supervisor Jewkes

inherited this temporary closure, wrong place at the wrong time.”). The Complaint

does not identify any basis for a waiver of federal sovereign immunity for plaintiff’s

requests for injunctive relief.

The Complaint alleges federal question jurisdiction under 28 U.S.C. § 1331.

Compl. at 3. “A statute may create subject matter jurisdiction yet not waive sovereign

immunity.” Powelson v. United States, By & Through Sec’y of Treasury, 150 F.3d

1103, 1105 (9th Cir. 1998). Section 1331 creates federal court jurisdiction for claims

“arising under the Constitution, laws, or treaties of the United States,” but it does

not waive the United States’ sovereign immunity. Holloman, 708 F.2d at 1401. The

Complaint also alleges violations of 16 U.S.C. §§ 7901 to 7915, but nothing in those

provisions expresses the United States’ consent to suit for such violations. Similarly,

nothing in plaintiff’s motion identifies a waiver of federal sovereign immunity for his

claims. Thus, plaintiff has failed to demonstrate that the Court has jurisdiction over

his claims against USFS and Jewkes.

Turning to ODOT, which is an agency of the State of Oregon, the Eleventh

Amendment provides that a state is immune from suit in federal court unless

Congress has abrogated the state’s immunity by appropriate federal legislation or the

state itself has waived it. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247,

253–54 (2011). This grant of immunity covers not just the state itself, but also the

state’s agencies. P. R. Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 144 (1993).

Neither the Complaint nor plaintiff’s motion identify an abrogation of state sovereign

immunity, 16 U.S.C. §§ 7901 to 7915 do not purport to authorize suit against the

states, or express waiver by Oregon. Thus, plaintiff has failed to demonstrate that

the Court has jurisdiction over his claims against ODOT. 2

Accordingly, plaintiff’s claims against USFS, Jewkes, and ODOT are dismissed

for lack of subject matter jurisdiction. Because plaintiff is pro se, and could cure these

jurisdictional deficiencies by amendment, he will be given leave to file an amended

complaint restating these claims. If plaintiff does not file an amended complaint

within the time provided in the conclusion below, then he will be permitted to proceed

only on his claims against Farnsworth.

II. Motion for TRO and Preliminary Injunction

Turning to the Winters factors, the Court finds that two, likelihood of success

on the merits and likelihood of irreparable harm, weigh strongly against granting

plaintiff’s requested relief.

2 The Eleventh Amendment also generally bars suits against state officials acting in their

official capacity. P. R. Aqueduct & Sewer Auth., 506 U.S. at 144. In Ex Parte Young, however, the

Supreme Court provided a narrow exception to Eleventh Amendment Immunity for certain suits

against state officers. Ex Parte Young, 209 U.S. 123, 155–56 (1908). The Ex Parte Young exception

permits a suit against a state official “when that suit seeks only prospective injunctive relief in order

to ‘end a continuing violation of federal law.’” Black v. Haselton, 663 F. App’x 573, 576 (9th Cir. 2016)

(quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996)). Liberally construed, plaintiff’s due

process claim against Farnsworth could fall within the Ex Parte Young exception, so the Court will not

sua sponte dismiss the claims against Farnsworth for lack of subject matter jurisdiction at this stage.

II. Likelihood of Success on the Merits

Although the Complaint frames plaintiff’s requested relief as a TRO and

preliminary injunction that “enjoin[s] defendants from closing and locking the East

Gate of Highway 242 (except in for emergency or weather-related closures) unless

defendants first provide” a public notice and comment period, Comp. at 7, the record

indicates that Highway 242 is closed and has been all winter. Plaintiff’s motion

suggests that he seeks a TRO and preliminary injunction that would require

defendants to open the East Gate and engage in a public decision-making process

before litigating the merits of his claims. Mot. (doc. 3) at 13–14. Thus, plaintiff seeks

a “mandatory injunction,” which “orders a responsible party to take action” and is

particularly disfavored.” Maryln Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

571 F.3d 873, 879 (9th Cir. 2009) (citation and quotation marks omitted).

Under the first Winters factor, a plaintiff seeking a TRO or preliminary

injunction must generally show that he or she “is likely to succeed on the merits.”

Winters, 555 U.S. at 22. But when a plaintiff requests a “mandatory injunction,” that

“already high standard . . . is further heightened,” and the plaintiff must “‘establish

that the law and facts clearly favor her position, not simply that she is likely to

succeed.’” Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1156–57 (D. Or.

2018) (quoting Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (emphasis in

Garcia)). Here, plaintiff alleges violations of procedural due process and of 16 U.S.C.

§ 7901 to 7915, but he has not shown a likelihood of success on the merits of either

claim, let alone that the law and facts clearly favor his position.3

Plaintiff’s first claim alleges that defendants’ actions violated his right to

procedural due process.4 Procedural due process “imposes constraints on

governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests

within the meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment[s].” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

Plaintiff correctly asserts that “[d]ue process rights include a right to public

notice before a party’s property rights are denied or curtailed by a government

agency.” Mot. at 5 (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). But plaintiff does

not identify what property interest he was allegedly denied. To state a violation

of due process, a plaintiff must first establish the existence of a liberty

or property interest for which the protection is sought, and if no protected interest is

3 The Ninth Circuit also provides an alternative preliminary injunctive relief test: the “serious

questions” test. All. for the Wild Rockies, 632 F.3d at 1131–32. Under this test, “‘serious questions

going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance

of an injunction ‘if there is a likelihood of irreparable injury to plaintiff; there are serious questions

going to the merits; the balance of hardships tips sharply in favor of the plaintiff’ and the injunction

is in the public interest.” Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1156 (D. Or. 2018)

(quoting M.R. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)). Plaintiff argues that he has, at the very

least, demonstrated serious questions going to the merits. However, where, as here, plaintiffs seek a

mandatory injunction, courts decline to apply the “serious questions” test. See P.P. v. Compton Unified

Sch. Dist., 135 F. Supp. 3d 1126, 1135 (C.D. Cal. 2015) (“Plaintiff seek a mandatory injunction, and

Court declines to interpret the ‘serious questions’ standard for purposes of the Motion as inconsistent

with the Ninth Circuit’s guidance that a mandatory injunction not issue in ‘doubtful cases’ and not be

granted ‘unless the law and facts clearly favor the moving party.’”). The Court agrees that the “serious

questions” standard is not consistent with the higher burden for mandatory injunctions. Further, as

explained below, plaintiff’s motion would fail under the “serious questions” standard because he has

not demonstrated a likelihood of irreparable harm or that the balance of hardships tip in his favor.

4 Although the Court has dismissed the claims against ODOT and the federal defendants, and

it is unclear what role, if any USFS and Jewkes play in ODOT’s decisions regarding the East Gate

closures, the Court will refer to “defendants” for most of this analysis for simplicity’s sake.

at stake, no process is required. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221

(2005).

Once a plaintiff asserting a procedural due process claim has identified a

protected property or liberty interest, the plaintiff must explain what additional

process they should have received. Plaintiff alleges that he was entitled to and denied

public notice and comment of the decision to keep the gates on Highway 242 locked

until mid-June. Even if due process required defendants to engage in notice and

comment, the facts that plaintiff asserts to demonstrate that they did not falls short

of showing that the facts are clearly on his side. Plaintiff asserts that defendants did

not engage in notice and comment in 2019 or 2020, but he does not assert facts to

demonstrate how he knows that. For example, plaintiff does not assert that he

checked the places where state and federal agencies are typically required to publish

notice of a proposed decision, like the Oregon Secretary of State’s bulletin, the Federal

Register, agency websites, and local newspapers, to determine whether either agency

had provided notice and public process. In fact, plaintiff’s motion and declaration

suggest that he is not sure when defendants made the decision. ODOT appears to

have adopted its practice of opening the East Gate on the third Monday of June

several years ago. The record suggests that was a one-time policy decision to create

a consistent opening date, rather than a decision that has been re-made each year.

There is no evidence in the record to indicate whether defendants engaged in notice

and comment at that time.

Plaintiff’s second claim alleges a violation of §§ 7912 and 7913 of the Dingell

Act. As noted above, these provisions do not appear to impose any obligations on

state officials like Farnsworth, but even if they did, plaintiff has not made a clear

showing that closure of the East Gate violated these provisions. Section 7912

provides that “Federal land [in National Forests] shall be open to hunting, fishing,

and recreational shooting, in accordance with the applicable law, unless the Secretary

[of Agriculture] closes an area in accordance with section 7913.” 16 U.S.C. § 7912.

And, “[e]xcept in an emergency,” § 7913 requires the Secretary to consult with state

fish and wildlife agencies and provide public notice and an opportunity for comment

“before permanently or temporarily closing any Federal land to hunting, fishing, or

recreational shooting[.]” 16 U.S.C. § 7913(b)(1).

Plaintiff contends that his assertion that he cannot access, and therefore,

cannot recreate on, the National Forest areas along Highway 242 when the gate is

closed is enough to show that those areas have been “clos[ed] to hunting, fishing, and

recreational shooting” within the meaning of § 7913. But plaintiff’s own reasoning

suggests another interpretation of the Dingell Act. As plaintiff explains, the East

Gate blocks motor vehicle access to the McKenzie Pass area, limiting access for all

forms of recreation on those lands. By contrast, § 7913 specifically prohibits closure

“to hunting, fishing, or recreational shooting,” which suggests that its seeks to

prevent USFS from figuratively “closing” the land to hunting, fishing, and shooting –

that is, prohibiting those activities on the land – rather than literally closing it –

prohibiting all access to the land. Section 7913(b)(1)’s requirement that USFS consult

with state fish and wildlife agencies before closures provides further support for that

interpretation. Plaintiff offers no authority for his interpretation of the Dingell Act.

Finally, even assuming the closed gate was a “closure” under the Dingell Act,

the Act permits such closures if there is public notice and a comment period. As

discussed above, plaintiff fails to assert facts sufficient to show that defendants failed

to engage in a public process.

III. Irreparable Harm

Plaintiff contends that his inability to participate in outdoor recreation in the

McKenzie Pass area satisfies the irreparable harm requirement for a TRO or

preliminary injunction. Plaintiff relies on the Ninth Circuit’s decision in Alliance for

the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011). There, the plaintiff, AWR,

sought a preliminary injunction, seeking to enjoying a timber salvage sale proposed

by the USFS. The proposed sale involved logging on 1,652 acres of national forest

and the construction of temporary roads through the forest. Id. at 1129. AWR alleged

that its members used the forest, including the areas subject to logging, for work and

recreational purposes. Id. at 1135. AWR asserted that the logging would irreparably

harm “its members’ ability to view, experience, and utilize the areas in their

undisturbed state.” Id. (internal quotation marks omitted). The Ninth Circuit agreed

and held that AWR had demonstrated a likelihood of irreparable “environmental

injury,” that is “environmental harm in a forest area” used by its members. Id.

Here, plaintiff does not assert an environmental injury. He does not complain

that defendants conduct is or will damage or change the national forest lands in the

McKenzie Pass area. Instead, he seeks relief from a temporary restriction on his

access to those lands, during a time of year when the road to them is clear enough for

motor vehicles to travel on them. Nor does plaintiff assert an injury that is

irreparable. In Alliance for the Wild Rockies, the Ninth Circuit noted that “the

Supreme Court has instructed us that environmental injury, by its nature, can

seldom be adequately remedied by money damages and is often permanent or at least

of long duration, i.e., irreparable.” Id. Here, plaintiff’s restriction will continue for a

another two to three weeks at most.

Because plaintiff fails to satisfy the likelihood of success on the merits and

likelihood of irreparable harm Winters requirements, the Court denies plaintiff’s

motion without addressing the balance of the hardships or public interest.

CONCLUSION

For the reasons above, plaintiff’s Motion (doc. 3) is DENIED. Plaintiff’s claims

against ODOT, USFS, and Jewkes are DISMISSED with leave to amend. Plaintiff

shall have thirty (30) days from the date of this Order in which to file an amended

complaint restating his claims against those defendants. Plaintiff is advised that if

he fails to file an amended complaint within that time, then the case will proceed only

on his claims against Farnsworth.

IT IS SO ORDERED.

Dated this __5_t_h_ day of June 2020.

________/s_/_A_n__n_ A__ik__e_n_______

Ann Aiken

United States District Judge