Petition for Writ of Certiorari — William F. Holdner, Petitioner v. Katy Coba, et al.

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM F. HOLDNER,

DBA Holdner Farms,

Plaintiff-Appellant,

V.

No. 18-35605

D.C. No. 3:15-cv-02039-AC

MEMORANDUM*

(Filed Apr. 24, 2019)

KATY COBA, Director of

the Oregon Department of

Agriculture, in her individual

and official capacity;

DICK PEDERSON, Director

of the Oregon Department

of Environmental Quality,

in his individual and

his official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

John V. Acosta, Magistrate Judge, Presiding**

Submitted April 17, 2019***

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate

judge. See 28 U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable

for decision without oral argument. See Fed. R. App. P. 34(a)(2).

App. 2

Before: McKEOWN, BYBEE, and OWENS, Circuit

Judges.

William F. Holdner, DBA Holdner Farms, appeals

pro se from the district court's judgment dismissing

without prejudice his 42 U.S.C. § 1983 action arising

from the alleged improper regulation of Holdner's former cattle ranch. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a district court's compliance

with a mandate. United States v. Kellington, 217 F.3d

1084, 1092 (9th Cir. 2000). We affirm.

We previously remanded this case to the district

court for it to dismiss Holdner's action without prejudice. Holdner v. Coba, 693 F. App'x 613 (9th Cir. July 6,

2017). Under the rule of mandate, the district court

lacked authority to consider any other arguments

raised by Holdner. See Stacy v. Colvin, 825 F.3d 563,

568 (9th Cir. 2016). Holdner repeats these other arguments in this appeal, but our prior ruling constitutes

the law of the case. See id. at 567.

AFFIRMED.

App. 3

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WILLIAM F. HOLDNER

dba HOLDNER FARMS,

Plaintiff,

Case No. 3:15-cv-2039-AC

OPINION AND ORDER

(Filed Jul. 2, 2018)

v.

KATY COBA, in her individual

capacity; ALEXIS TAYLOR,

DIRECTOR OF OREGON

DEPARTMENT OF

AGRICULTURE, in her

official capacity; DICK

PEDERSON, in his individual

capacity; and RICHARD

WHITMAN, DIRECTOR

OF THE OREGON

DEPARTMENT OF

ENVIRONMENTAL QUALITY,

in his official capacity,

Defendants.'

ACOSTA, Magistrate Judge:

1 Alexis Taylor and Richard Whitman have been substituted

as successors for Katy Coba and Dick Pederson, respectively, under FED. R. Civ. P. 25(d), but only to the extent they were named

in their official capacities.

App. 4

Introduction

Plaintiff William Holdner ("Holdner"), appearing

pro se, filed a civil rights action against Katy Coba, Director of Oregon's Department of Agriculture, and Dick

Peterson, Director of Oregon's Department of Environmental Quality (collectively "Defendants"), challenging their authority to regulate livestock operations

on his land. The court granted Defendants' motion to

dismiss finding Holdner lacked standing; the claims

are barred by claim preclusion, issue preclusion; and

Eleventh Amendment immunity; and Defendants are

entitled to qualified immunity, and dismissed the complaint with prejudice. Holder appealed and the Ninth

Circuit affirmed the court's dismissal of the complaint

but remanded with directions to dismiss the action

without prejudice.

On March 27,2018, Holdner filed a First Amended

Complaint (the "Amended Complaint") in which he

asserts the same claims but incorporates additional

factual allegations. Defendants move to dismiss the

Amended Complaint asserting it does not remedy the

defects found in the original complaint. The court finds

the Amended Complaint fails to state a claim upon

which relief may be granted and Defendants are entitled, once again, to the dismissal of this action. Consequently, Defendants' motion to dismiss is granted.

Background

This is the third action initiated in this court by

Holdner asserting claims based on Oregon's enforcement

App. 5

of water quality standards against his livestock operation. In 2006, the Oregon Department of Agriculture

(the "Department") became concerned Hoidner was

discharging animal waste from his property in a manner likely to send it into a nearby creek. Hoidner v.

Coba, Civ. No. 09-979-AC, 2011 WL 2633165, at *3 (D.

Or. July 5, 2011) ("Hoidner I"). As a result, the Department issued a civil citation for pollution violations

against Holdner on three separate occasions — March

9, 2007, February 10, 2009, and June 15, 2009. Id. Additionally, in 2010, the Oregon Department of Justice

indicted Hoidner on three felony and twenty-five misdemeanor counts of water pollution. Id. at *3. Hoidner

requested administrative review of the civil citations,

arguing his ranch was exempt from state and federal

regulation, and moved to dismiss the criminal charges

on the ground the Department exceeded its authority

in enforcing the federal statute. Id. at *3; see also Holdner v. Kroger, No. 3:12.: cv-01159-PK, 2012 WL 6131637,

at *2 (D. Or. Nov. 6, 2012) ("Holdner II"). The administrative healing resulted in final orders in the agency's

favor and the court denied Holdner's motion in the

criminal proceedings, Holdner I, 2011 WL 2633165, at

*3; Holdner II, 2012 WL 6131637, at *3.

On August 20, 2009, Holdner filed an action

against the Department complaining about the issuance of the civil citations. Holdner I, 2011 WL 2633165,

at *1. Holdner again asserted the_Department exceeded

its authority under federal statues and sought to enjoin it from taking further enforcement actions against

him. Id. at *4. After directing Holdner to amend his

App. 6

complaint twice, the court determined Holdner was alleging a claim under 42 § 1983 ("Section 1983") for violation of his rights to procedural due process. Id. It

then granted summary judgment to the Department

on the Section 1983 claim, finding Holdner failed to allege a violation of a fundamental right or offer evidence

of the Department's involvement in the conduct comprising such violation.2 Id. at *7-*8.

Holdner filed a second action on June 28, 2012,

once again alleging various Oregon agencies lacked authority to regulate water quality and asserting a single

claim for declaratory relief under a slightly different

theory than alleged in Holdner I. Holdner II, 2012 WL

6131637, at *2. Specifically, Holdner alleged the United

States Environmental Protection Agency never granted

authority to the State of Oregon to administer the National Pollution Discharge Elimination System and,

absent such authority, Oregon's regulatory and permitting scheme governing animal feeding operations was

ultra vires. Id. at *3. Judge Papak denied the defendants' motion to dismiss on the grounds of mootness and

the Rooker-Feldman doctrine, but granted the motion

finding Holdner's claims barred by the Younger abstention doctrine and claim preclusion. Id. at *3-*7.

Judge Papak set forth the elements of the claim

preclusion doctrine — identity of claims, final judgment on the merits, and identity or privity between the

2 The court also granted summary judgment on Holdner's

claim for injunctive relief finding it barred by the Younger abstention doctrine. Id. at *6.

App. 7

parties — and described the doctrine as "[barring] litigation of any claims that were raised or could have

been raised in the prior action" where these_ elements

are present. Id. at *7. He then reasoned:

Looking for the moment only at Holdner's

prior state administrative and criminal proceedings, it is clear that Holdner could easily

have raised his current theory that the ODA

lacks authority to enforce the Clean Water Act

in either of those proceedings, but only now

attempts to pursue further litigation on that

"theory of relief." Similarly, Holdner could

have raised his ultra vires theory in the prior

federal case, in which he contended that the

ODA exceeded its regulatory authority for

other reasons. Moreover, there is no doubt

that Holdner's prior proceedings were litigated to final judgment on the merits. Finally,

the current defendants in this action are

surely in privity with the State of Oregon, a

party to Holdner's criminal proceeding, since

they are all departments or agents of the

state.

Holdner's single argument against the application of claim preclusion is that the legal theory central to his case — that Oregon's entire

water pollution control scheme is ultra vires —

was not previously litigated in any other proceeding. But Holdner misunderstands the nature of federal and Oregon claim preclusion

doctrines, both of which recognize preclusion

where a claim or theory could have been

raised in an earlier proceeding, but nevertheless was not. Consequently, even though

App. 8

Holdner has now discovered a new legal theory

explaining why he was not subject to the

Oregon NPDES permitting requirement for

CAFO's, he is precluded from advancing it

here because he could have raised it in any

number of earlier proceedings.

Id. at *7 (internal quotations omitted).

Holdner filed the instant action, the third in this

court, on October 29, 2015, once again complaining

about Defendants' regulation of the livestock operations on Holdner's property. (Compl. ECF No. 1.) The

court interpreted the complaint filed on October 29,

2015 (the "Complaint") to allege three claims: 1) deprivation of Holdner's constitutional due process rights

under Section 1983; 2) Defendants acted outside their

enforcement authority under the Clean Water Act; and

3) Holdner's land patent bars the state from regulating

water quality on his land. Holdner v. Coba, Civ. No.

3:15-cv-2039-AC, 2016 WL 3102053 (D. Or. June 1,

2016) ("Holdner III")3. However, the court later noted

"the allegations of the Complaint universally support

a single claim under Section 1983." Holdner, v. Coba,

Case No. 3:15-cv-2039-AC, 2016 WL 6662687, at *5 (D.

Or. Nov. 9, 2016).

The court granted Defendants' motion to dismiss on

several grounds. First, the court found Holdner lacked

standing based on the absence of a injury-in-fact.

3 Holdner's motion for reconsideration of this Opinion was

denied in Holdner v. Coba, Civ No. 3:15-cv-2039-AC, 2016 WL

4210776 (D. Or. Aug. 5, 2016).

App. 9

Holdner III, 2016 WL 3102053, at *3. The court reasoned

"[b]ecause plaintiff cannot legally possess livestock until December 8,.2019, he has no legally protected interest in livestock as required for standing to bring his

claims, and can show no 'actual or imminent' injury

sufficient to meet the standing requirement in federal

court." Id.

Next, the court found Holdner's claims barred by

claim preclusion. Id. The court found Holdner III to be

substantially similar to Holdner I and Holdner II, and

to allege "claims which were raised or should have

been raised in prior administrative and criminal proceedings."Holdner III, 2016 WL 3102053, at *3. It then

noted "Judge Papak clearly stated that plaintiff's

claims would be barred by claim preclusion" and "[a]s

plaintiff's prior proceedings were litigated to final

judgment on the merits and the defendants in this action are in privity with the State of Oregon, a party to

plaintiffs criminal proceeding, plaintiffs claims are

barred by claim preclusion." Id. Similarly, issue preclusion prevented Holdner from pursuing his claims "because issues raised in plaintiff's complaint were fully

litigated to a final judgment on the merits in plaintiffs

first federal court lawsuit, the criminal proceedings,

and the prior state court administrative proceedings.

Id. at *4. Additionally, the court found Holdner unable

prosecute a citizen suit under the Clean Water Act. Id.

at *5-*6. •

Assuming Holdner had stated a viable claim, the

court determined Defendants were protected by Eleventh Amendment immunity and qualified immunity.

App. 10

Id. at *5. Holdner sued Defendants in their official capacities and Oregon did not waive its Eleventh Amendment immunity. Consequently, Defendants were shielded

by such immunity. Id. Additionally, Holdner failed to

allege a viable claim for violation of his constitutional

rights, providing qualified immunity to Defendants. Id.

The court considered allowing Holdner leave to

amend the Complaint. However, it determined Holdner could not cure the defects in the Complaint in

amended pleading. Specifically, claim preclusion barred

Holdner from pursuing any claim that was, or should

have been, raised in his prior federal lawsuits or state

administrative and criminal proceedings. Id. at *6.

Moreover, Holdner could not bring a private action under Clean Water Act or sue Defendants in their official

capacity. Id. Finally, Defendants would be afforded

qualified immunity on any claims based on constitutional violations alleged in his prior actions. Consequently, the court dismissed Holdner's action with

prejudice.

Holdner appealed the opinion and the Ninth Circuit "affirm[ed] the district court's dismissal of Holdner's action but vacate[d] the judgment in part and

remand [ed] for the district court to dismiss Holdner's

action without prejudice." Holdner v. Coba, 693 Fed.

Appx. 613, 613 (2017). The court based its ruling on

Holdner's failure to challenge this court's grounds for

dismissing the complaint, resulting in the wavier of

any such challenge. Id. The Ninth Circuit did not provide any direction on whether Holdner could file an

App. 11

amended complaint in this case or what deficiencies

should be remedied in the new filing.

Holder filed the Amended Complaint asserting the

same claims with additional factual allegations. The

new allegations relate solely to his conviction for water

pollution in the state court under an allegedly unconstitutional statute. (Am. Compl., ECF No. 62, II 2229.) They describe testimony and evidence offered at

his criminal trial, and assert the penalty and fine issued against him violated his due process rights.

(Am. Compl. II 23-29.) Defendants move to dismiss

the Amend Complaint.

Legal Standard

A well-pleaded complaint requires only "a short

and plain statement of the claim showing that the

pleader is entitled to relief" FED. R. Civ. P. 8(a)(2)

(2018). A federal claimant is not required to detail all

factual allegations; however, the complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (citations omitted). "Factual allegations must be

enough to raise a right to relief above the speculative

level." Id. While the court must assume that all facts

alleged in a complaint are true and view them in a

light most favorable to the nonmoving party, it need

not accept as true any legal conclusion set forth in the

complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Additionally, a plaintiff must set forth a plausible

App. 12

claim for relief a possible claim for relief will not do.

"In sum, for a complaint to survive a motion to dismiss,

the non-conclusory 'factual content,' and reasonable

inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief "Moss

v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009)

(quoting Iqbal, 556 U.S. at 678); Sheppard v. David

Evans and Assoc., No. 11-35164, 2012 WL 3983909 at

*4 (9th Cir. Sept. 12, 2012) (quoting Iqbal, 556 U.S. at

679) ("The Supreme Court has emphasized that analyzing the sufficiency of a complaint's allegations is a

`context-specific task that requires the reviewing court

to draw on its judicial experience and common

sense.").

Discussion

The Amended Complaint asserts the same claims

as those asserted by Holdner in the Complaint. The

only difference in the Amended Complaint is the addition of allegations related to Holdner's state criminal

proceedings. All of these allegations, and any new

claims deriving therefrom, could have been asserted in

Holdner's prior legal proceedings and are barred by

claim preclusion. Holdner has failed to successfully

cure the deficiencies identified by this court, which

findings were affirmed by the Ninth Circuit. Consequently, the Amended Complaint fails to state a claim

upon which relief may be granted and Defendants are

entitled, once again, to the dismissal of this action.

App. 13

At oral argument, Holdner expressed, for the first

time, his intent to rely on Rule 60 of the Federal Rules

of Civil Procedure ("Rule 60") to set aside Oregon's enforcement of water quality standards against Holdner

and his livestock operation. Rule 60 allows the court to

"relieve a party or its legal representative from a final

judgment, order, or proceeding" for various reasons.

FED. R. Civ. P. 60(b) (2018). However, a motion for relief

under Rule 60 must be brought in the court which rendered the original judgment. Veltze v. Bucyrus-Eire Co.,

154 F.R.D. 214, 216 (E.D. Wis. 1994). Rule 60 does not

authorize this court to relieve Holdner from a judgment issued by the Oregon courts.

The failure of the Ninth Circuit to instruct Holdner, or the court, on the purpose of dismissing this action without prejudice is problematic. As Defendants

surmise, it is possible the Ninth Circuit intended to allow Holdner to refile his action after the prohibition on

his ability to legally possess livestock expired, thereby

eliminating the obstacle to establishing standing. Additionally, the Ninth Circuit could have opened the

door to Holdner reasserting his claim in a court of competent jurisdiction to resolve the Eleventh Amendment

immunity issue. While such filings would remain subject to the prior conclusion by this court and the Ninth

Circuit that any claim based on Defendants' regulation of Holdner's livestock operation and resulting administrative proceedings and criminal prosecution are

barred by claim preclusion, the court must follow the

direction of the Ninth Circuit and dismiss this action

without prejudice. However, Holdner may not refile

App. 14

this action in this court prior to the expiration of the

prohibition on his ability to legally possess livestock on

December 8, 2019, and may not assert claims related

to Defendants' previous regulation of Holdner's livestock operation, and resulting administrative proceedings and criminal prosecution.

Conclusion

Defendants' motion (ECF No. 63) to dismiss is

GRANTED and this action is dismissed without prejudice.

DATED this 2nd day of July, 2018.

/s/ John V. Acosta

JOHN V. ACOSTA

United States

Magistrate Judge

App. 15

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WILLIAM F. HOLDNER

dba HOLDNER FARMS,

Plaintiff,

Case No. 3:15-cv-2039-AC

JUDGMENT

(Filed Jul. 2, 2018)

v.

KATY COBA, in her individual

capacity; ALEXIS TAYLOR,

DIRECTOR OF OREGON

DEPARTMENT OF

AGRICULTURE, in her

official capacity; DICK

PEDERSON, in his individual

capacity; and RICHARD

WHITMAN, DIRECTOR

OF THE OREGON

DEPARTMENT OF

ENVIRONMENTAL QUALITY,

in his official capacity,

Defendants.'

ACOSTA, Magistrate Judge:

Based on the Opinion and Order entered July 2,

2018,

1 Alexis Taylor and Richard Whitman have been substituted

as successors for Katy Coba and. Dick Pederson, respectively, under FED. R. Civ. P. 25(d), but only to the extent they were named

in their official capacities.

App. 16

IT IS HEREBY ORDERED and ADJUDGED that

this action is DISMISSED without prejudice.

DATED this 2nd day of July, 2018.

/s/ John V. Acosta

JOHN V. ACOSTA

United States

Magistrate Judge

App. 17

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM F. HOLDNER,

No. 16-35723

Plaintiff - Appellant, D.C. No. 3:15-cv-02039-AC

U.S. District Court for

v.

Oregon, Portland

KATY COBA, Director of

MANDATE

the Oregon Department of

Agriculture, in her individual (Filed Jan. 22,.2018)

and official capacityi and

DICK PEDERSON, Director

of the Oregon Department

of Envionmental Quality,

in his individual and

his official capacity,

Defendants - Appellees.

The judgment of this Court, entered July 06, 2017,

takes effect this date.

This constitutes the formal mandate of this Court

issued pursuant to Rule 41(a) of the Federal Rules of

Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Craig Westbrooke

Deputy Clerk

Ninth Circuit Rule 27-7

App. 18

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM F. HOLDNER,

DBA Holdner Farms,

Plaintiff-Appellant,

V.

No. 18-35605

D.C. No. 3:15-cv-02039-AC

MEMORANDUM*

(Filed Jul. 6, 2017)

KATY COBA, Director of

the Oregon Department of

Agriculture, in her individual

and official capacity;

DICK PEDERSON, Director

of the Oregon Department

of Environmental Quality,

in his individual and

his official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

John V. Acosta, Magistrate Judge, Presiding**

Submitted June 26, 2017***

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge.

See 28 U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable

for decision without oral argument. See Fed. R. App. P. 34(a)(2).

App. 19

Before: PAEZ, BEA, and MURGUIA, Circuit Judges.

William F. Holdner appeals pro se from the district

court's judgment dismissing his 42 U.S.C. § 1983 action

arising from the alleged improper regulation of Holdner's former cattle ranch. We have jurisdiction under

28 U.S.C. § 1291. We affirm in part, vacate in part, and

remand.

In his opening brief, Holdner failed to challenge

the district court's grounds for dismissal of his complaint, and therefore Holdner waived any such challenge. See Indep. Towers of Wash. v. Washington, 350

F.3d 925, 929 (9th Cir. 2003) ("[W]e will not consider

any claims that were not actually argued in appellant's

opening brief."). We affirm the district court's dismissal

of Holdner's action but vacate the judgment in part

and remand for the district court to dismiss Holdner's

action without prejudice.

The magistrate judge properly denied Holdner's

motion requesting review by a district court judge because the parties consented to a magistrate judge. See

28 U.S.C. § 636(c)(3) (when parties provide consent to

magistrate jurisdiction, aggrieved party may appeal

directly to court of appeals).

We reject as without merit Holdner's contentions

that his action qualifies as a citizen suit under 33

U.S.C. § 1365(a), and that the district court erred in

denying discovery, the right to introduce additional evidence, and a requested hearing.

App. 20

Appellees' motion to take judicial notice (Docket

Entry No. 11) is denied as unnecessary.

AFFIRMED in part, VACATED in part, and

REMANDED.

App. 21

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WILLIAM F. HOLDNER,

D.B.A. HOLDNER FARMS

Plaintiff,

Civ. No. 3:15-cv-2039-AC

OPINION AND ORDER

(Filed Jun. 1, 2016)

V.

KATY COBA, DIRECTOR

OF OREGON DEPT. OF

AGRICULTURE, IN HER

INDIVIDUAL AND OFFICIAL

CAPACITY; DICK PEDERSON,

DIRECTOR OF THE OREGON

DEPT. OF ENVIRONMENTAL

QUALITY, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY,

Defendants.

ACOSTA, Magistrate Judge:

Plaintiff William Holdner ("plaintiff") brings this

civil rights and declaratory judgment lawsuit arising

from the Oregon Department of Agriculture's regulation of plaintiff's cattle ranch and plaintiff's subsequent criminal prosecution for violation of state water

pollution statues, Defendants Katy Coba and Dick

Pederson ("defendants") move to dismiss plaintiff's

lawsuit for lack of standing and for failure to state a

claim (ECF No. 12). For the reasons discussed below,

App. 22

defendants' motion is GRANTED and the complaint

(ECF no. 1) is DISMISSED with prejudice.'

Background

Since 2007, State of Oregon authorities ("state authorities") have attempted to prevent plaintiff from

discharging animal wastes from his cattle ranching operation into state waters, and to bring his beef facility

operation under a state Confined Animal Feeding

Operation ("CAFO") permit, as required by state law.

These efforts culminated in civil administrate proceedings, a criminal prosecution, and two civil suits plaintiff filed in this court in an attempt to enjoin the State

authorities from bringing enforcement actions against

him. In every forum, the issues were adjudicated in favor of the state authorities.

I.

Civil Suits

On August 20, 2009, plaintiff filed a civil action in

the U.S. District Court, District of Oregon against the

Oregon Department of Agriculture ("ODA"), entitled

Holdner v. Oregon Department of Agriculture, Case No.

3:09-979-AC, challenging ODA's regulatory authority

and the evidence supporting its administrative enforcement actions against him. 2009 WL 5149264 (D.

Or. Dec. 23, 2009). The court granted summary judgment in favor of the ODA, stating that plaintiff "failed

1 Defendants requested oral argument on their motion. The

court finds this motion appropriate for disposition without oral

argument, pursuant to Local Rule 7-1(d)(1).

App. 23

to provide any evidence, or even to allege specific factual allegations, in support of his claim," and that he

relied "exclusively on the allegation in his complaint

and unsupported conclusory statements." Id. at *14.

Plaintiff filed a second civil action in this district

on June 28, 2012, again alleging that the state authorities lacked authority to regulate water quality and asserting constitutional claims. Holdner v. John Kroger,

et al, Case No. 3:12-cv-1159-PK, 2012 WL 6131637 (D.

Or. Nov. 6, 2012). Plaintiff alleged that the state's water quality program was ultra vires and that the State

generally, and ODA in particular, lacked authority to

administer the NPDES program or to enforce any state

law governing water quality. Id. at *14-*15. He alleged

violations of his constitutional rights, including substantive due process. The court dismissed this action,

stating that plaintiff's claims were barred by claim

preclusion and the Younger abstention doctrine, and

noting that plaintiff could have raised his ultra vires

claim in any of his prior proceedings. Id. at *12-*14.

The second civil action was thus dismissed on December 10, 2012. The Ninth Circuit affirmed the district

court's decision on April 15, 2015, and the Supreme

Court denied certiorari on October 5, 2015.

II. State Criminal Proceedings

On May 19, 2010, plaintiff was indicted On three

felony and twenty-five misdemeanor counts of water

pollution under state law. Plaintiff filed a motion to dismiss, arguing that the state lacks authority to regulate

App. 24

his livestock operations, and that the criminal enforcement action violated his constitutional rights. He also

alleged that his land patent barred any criminal enforcement action, and that ODA did not have authority

to administer the NPDES program. Plaintiff's motion

was denied on July 19, 2011. Plaintiffs motions for reconsideration, as well as his "Motion to Renew Dismissal of Animal Pollution Charges," also were denied.

On February 24, 2012, plaintiff was found guilty

on 27 counts of water pollution. Judgment was entered

May 21, 2012. Plaintiff's motion for arrested judgment

and new trial motion were denied on June 22, 2012,

and his conviction was upheld on appeal without opinion by the Oregon Court of Appeals on February 5,

2014. State of Oregon v. Holdner, CA No. A151760 (Feb.

5, 2014). The Oregon Supreme Court denied review on

June 12, 2014. State of Oregon v. William Frederick

Holdner, 355 Or. 668, 330 P.3d 27 (Table).

On October 3, 2014, plaintiff was convicted of 95

counts of animal neglect. State of Oregon v. William F.

Holdner, Columbia County Circuit Court Case No. 126240. Plaintiff's probationary conditions bar him from

possessing livestock for a period of five years, until December 8, 2019. Plaintiff's appeal of this conviction is

pending as of the date of this Opinion.

III. Plaintiff's Complaint

Plaintiff filed this lawsuit on October 29, 2015, alleging violations under 42 U.S.C. § 1983 and requesting

a declaratory judgment. Plaintiff's complaint disputes

App. 25

the state's authority to regulate livestock operations

on his land. Plaintiff's complaint appears to allege

three claims: (1) a § 1983 claim for deprivation of constitutional due process rights; (2) a claim that the Department of Environmental Quality ("DEQ") and ODA

acted outside their enforcement authority; and (3) a

claim that plaintiff's land patent bars the state from

regulating water quality on plaintiff's land.

Defendants now move to dismiss plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(1)

and 12(b)(6). They argue that plaintiff lacks standing

to bring this action, that claim preclusion and issue

preclusion bar his lawsuit, that Eleventh Amendment

immunity bars his § 1983 claim, that defendants are

entitled to qualified immunity, that he may not bring a

private action under the Clean Water Act ("CWA"), and

that he fails to state a claim on which relief can be

granted.

Legal Standards

I.

The Court's Review of Pro Se Filings

A court must liberally construe the filings of a pro

se plaintiff and afford the plaintiff the benefit of any

reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342

(9th Cir. 2010). When dismissing the complaint of a pro

se litigant, the litigant "must be given leave to amend

his or her complaint unless it is 'absolutely clear that

the deficiencies of the complaint could not be cured

by amendment." Karim-Panahi v. Los Angeles Police

Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v.

App. 26

Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Lopez v.

Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).

II. Motion to Dismiss

A motion to dismiss under Rule 12(b)(1) tests the

subject matter jurisdiction of the court. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 103940 (9th Cir. 2003). Under Article III of the Constitution,

federal judicial power extends only to "Cases" and

"Controversies." U.S. CONST., art. III, § 2, cl. 1. Article

III standing thus is a threshold requirement for federal court jurisdiction. Lujan v. Defenders of Wildlife,

504 U.S. 555, 559-60 (1992). At a constitutional minimum, standing requires the party invoking federal jurisdiction to establish three elements: (1) injury in the

form of an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual

or imminent, not conjectural or hypothetical; (2) a

causal connection between the injury and the defendant's conduct; and (3) the likelihood, not mere speculation, that a favorable decision will redress the injury.

Id. at 560-61.

Discussion

I.

Standing

Because it is a threshold requirement for establishing federal court jurisdiction, the court first addresses defendants' standing argument. Lujan, 504

U.S. at 559-60. The three elements of standing are

App. 27

(1) injury-in-fact; (2) causation; and (3) redressability.

Id. at 560. It is the burden of the party invoking federal

jurisdiction to establish that he has standing. Id. at

561. To provide standing, an alleged injury must be a

"concrete and particularized" invasion of a "legally protected interest." Id. at 560. The injury must be "actual

or imminent, not 'conjectural' or 'hypothetical." Id.

Defendants argue that plaintiff lacks standing to

bring these claims because he has not alleged an injury-in-fact sufficient to meet the standard set forth by

in Lujan. Here, because of probationary conditions

imposed after his criminal convictions, plaintiff is prohibited from possessing livestock, ECF No. 12, Ex. 23,

pp. 2; see also State of Oregon v. William F. Holdner,

Columbia County Circuit Court Case No. 12-6240. Indeed, plaintiff does not allege that he possesses a cattle

operation. See ECF No. 1. Because plaintiff cannot legally possess livestock until December 8, 2019, he has

no legally protected interest in livestock as required for

standing to bring his claims, and can show no "actual

or imminent" injury sufficient to meet the standing requirement in federal court.

Plaintiff's pending appeal of his state court criminal conviction for 95 counts of animal neglect2 does not

affect the court's standing analysis because plaintiff

has failed to show that a reversal on all 95 counts is

sufficiently plausible to meet the "actual or imminent"

2 To the extent that plaintiff asks the court to review his

state court criminal conviction, his request is denied because the

court lacks jurisdiction to review a state court criminal conviction

unless by habeas petition.

App. 28

standard set forth in Lujan. 504 U.S. at 560. Further,

while plaintiff contends that he plans to lease his property to his son to raise cattle, plaintiff does not allege

sufficient facts that would establish standing to bring

claims on behalf of his son. In sum, plaintiff has not

met his burden to show standing, and therefore fails to

establish federal court jurisdiction.

II.

Claim Preclusion

Equally dispositive of plaintiff's claims is that

claim preclusion bars his lawsuit, which is substantially similar to the two lawsuits plaintiff previously

filed in this court and involves claims which were

raised or should have been raised in prior administrative and criminal proceedings. In Oregon, "[t'he doctrine of claim preclusion . . . generally prohibits a party

from relitigating the same claim or splitting a claim

into multiple actions against the same opponent."

Bloomfield v. Weakland, 339 Or. 504, 510 (2005) (en

banc). The claim-splitting rule "forecloses a party that

has litigated a claim against another from further litigation on that same claim on any ground or theory of

relief that the party could have litigated in the first instance." Id. at 511. Moreover, the Ninth Circuit's claim

preclusion doctrine bars litigation of any claims that

were raised or could have been raised in the prior

action, and applies when there is: "(1) an identity of

claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

App. 29

Plaintiff misquotes Judge Papak's 2012 Recommendation as stating that "claim preclusion does not

bar Plaintiffs claim."' On the contrary, Judge Papak

clearly stated that plaintiff's claims would be barred

by claim preclusion. In Holdner v. Kroger, et al, Case

No. 3:12-cv-01159-PK, 2012 WL 6131637 (D. Or. Nov, 6,

2012), plaintiff's second civil action filed in this court,

Judge Papak stated that claim preclusion barred plaintiff's claims that the ODA exceeded its regulatory authority and lacked authority to enforce the CWA

because he could have raised these claims "in any

number of earlier proceedings."4 Id. at *7. The claims

raised in this case are substantially similar to the

claims plaintiff alleged in Holdner v. Kroger. As plaintiff's prior proceedings were litigated to final judgment

on the merits and the defendants in this action are in

privity with the State of Oregon, a party to plaintiff's

criminal proceeding, plaintiff's claims are barred by

claim preclusion. Owens, 244 F.3d at 713.

Plaintiff also contends his claims are not precluded, citing Doug Decker v. Northwest Environmental Defense Centers, 133 S.Ct. 1326 (2013). Plaintiff

misreads Decker. In that case, respondents invoked

federal jurisdiction under 33 U.S.C. 1356(a), which authorizes private enforcement of the provisions of the

Plaintiff elsewhere acknowledges that the claims alleged in

his complaint have been "raised" in previous court proceedings.

Compl. 91 4.

4 As noted, Judge Simon adopted Judge Papak's recommendation and dismissed plaintiffs case on December 10, 2012; the

Ninth Circuit affirmed the decision, and the Supreme Court denied certiorari on October 5, 2015.

App. 30

CWA and its implementing regulations. Id. at 1334. Petitioners argued that the NEDC's suit was barred by

Section 1369(b), which provides for "judicial review in

the United States courts of appeals of various particular actions by the [EPA] Administrator, including

establishment of effluent standards and issuance of

permits for discharge of pollutants." Id.

The Court agreed with respondents and held that

Section 1369(b) did not bar respondents' suit, which

originated as a citizen suit brought under Section

1365. That Section, the Court held, allows citizen suits

against alleged violators of the CWA that seek to enforce an obligation imposed by the CWA or its regulations. Decker, 113 S.Ct. at 1334. Here, plaintiff's

complaint is not brought to enforce any provision of the

CWA, and defendants do not allege his complaint is

barred under Section 1369(b).5

Because the claims raised in plaintiff's complaint

are substantially similar to those contained in plaintiffs prior civil suits, the court finds that plaintiff's

claims are barred by claim preclusion.

III. Issue Preclusion

Issue preclusion also bars plaintiff's claims because the issues raised in plaintiff's complaint were

Plaintiff also argues that the Decker holding entails that

"claim preclusion . . . [E]leventh [A]mendment and qualified immunity issues do not bar [his] claims. The court also rejects this

contention as it appears to be based on a misreading of Decker.

5

App. 31

fully litigated to a final judgment on the merits in

plaintiff's first federal court lawsuit, the state criminal

proceedings, and the prior state administrative proceedings. "If one tribunal has decided an issue, the decision on that issue may preclude relitigation of the

issue in another proceeding if five requirements are

met." Nelson v. Emerald People's Util. District, 318 Or.

99 104 (1993), First, the issue in the proceedings must

be "identical." Id. at 104. Here, plaintiff may not relitigate whether the State of Oregon has the authority to

regulate plaintiff's operations; plaintiff raised this issue as a defense in prior administrative and criminal

proceedings, Plaintiff also raised the issue of his land

patent and his ultra vires claim that the ODA lacks

authority to enforce the CWA in prior proceedings. The

first requirement is therefore met.

Second, the issue must have been "actually litigated" and "essential to a final decision on the merits

in the prior proceeding" Nelson, 318 Or. at 104. This

requirement is met because the state criminal and administrative proceedings resulted in judgments for the

state. Thus, there has been a previous finding that the

state and its agents did not act outside their federal

and statutory authority or in violation of an alleged exemption created by plaintiff's land patent.

Third, the party to be precluded must have "had

a full and fair opportunity to be heard" on the issue.

Nelson, 318 Or. at 104. Plaintiff had a full and fair

opportunity to be heard on these issues in his four

prior proceedings. In the prior proceedings, plaintiff

presented extensive evidence and filed motions in an

App. 32

attempt to prove that the state and its agents acted

outside their federal statutory authority. Plaintiff thus

had ample opportunity to be heard on the issues raised

in his complaint, and this requirement is met.

Fourth, the party to be precluded must have been

a party to or "in privity with" a party to the prior proceeding. Id. Plaintiff is the party against whom preclusion is sought, and he was a party in each of the prior

civil lawsuits, and the administrative proceeding, and

the defendant in the criminal proceeding. This requirement is also met.

Finally, the prior proceeding must have been "the

type of proceeding to which [the] court will give preclusive effect." Id. The rules of preclusion apply "where

both actions are criminal, where the prior action is

criminal and the later action is civil, and where the

prior adjudication is administrative in nature." Shuler

v. Distribution Trucking Co., 164 Or. App, 615, 624

(1999). The prior proceedings meet these requirements. Because this requirement is also met, plaintiff

is prohibited by issue preclusion from relitigating the

issues raised in this lawsuit.

IV. Eleventh Amendment Immunity and Qualified

Immunity

Plaintiff's claims are also barred by Eleventh

Amendment immunity and qualified immunity. The

Eleventh Amendment bars a citizen from bringing suit

in federal court against the citizen's own state regardless of the relief sought. Pennhurst State Sch. & Hosp.

App. 33

v. Halderman, 465 U.S. 89, 100 (1984). A state agency

is immune from suit under the Eleventh Amendment

because the State is the real party in interest. Durning

v. Citibank, NA., 950 F.2d 1419, 1423 (9th Cir. 1991);

similarly, state officials acting in their official capacity

are immune from suit. Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71 (1989). Because plaintiff has

sued both agency directors in their official capacities,

and the state has not waived immunity, defendants are

shielded by the state's Eleventh Amendment immunity.

To the extent that plaintiff's complaint can be interpreted as asserting a claim under 42 § 1983, defendants are entitled to qualified immunity from such a

claim. To avoid qualified immunity, plaintiff's complaint must (1) state a claim for civil rights violations;

and (2) establish that the constitutional right violated

was so clearly established that it would have been

clear to a reasonable person that the conduct he complains of was unlawful. Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009) (plaintiff must plead a violation of his constitutional rights); Sweaney v. Ada County, Idaho, 119

F.3d 1385 (9th Cir. 1997) (plaintiff initially bears the

burden of showing the violation of a clearly established

federal right).

As discussed in Sections V and VI below, the court

has examined plaintiff's entire complaint and finds

that he has failed to state a claim for relief under

§ 1983 for a violation of his constitutional rights, or under any other provision of federal law. Therefore, qualified immunity also bars his suit.

App. 34

V.

CWA Claims

Plaintiff's complaint appears to allege (1) that

the state lakes the authority to enforce the CWA, and

(2) a claim or "citizen suit" brought under the CWA.

Plaintiffs allegations fail to state a claim for relief

First, as set forth in the Federal Register, the EPA has

affirmatively determined that Oregon meets the criteria under the CWA to administer the NPDES permit

program in lieu of the EPA. "The contents of the Federal Register shall be judicially noticed." 44 U.S.C.

§ 1507. Thus, while plaintiff alleges that the state

lacks authority to implement the CWA permit program, the court need not accept as true allegations that

contradict matters properly subject to judicial notice in

a motion to dismiss. Sprewell v. Golden State Warriors,

266 F.3d 979, 988, opinion amended on denial of rehearing, 275 F.3d 1187 (9th Cir. 2001).

Second, the private action provision in the CWA

does not contemplate a lawsuit against a state regarding either its authority to enforce its own environmental protection laws or to manage its NPDES permitting

program. 33 U.S.C. § 1365. Plaintiffs claim that this action is a citizen suit under the CWA therefore lacks

merit. Furthermore, plaintiff does not seek to enforce

effluent standards; rather, he seeks to nullify Oregon's

ability to enforce water quality standard. Insofar as

plaintiff challenges the state's decision to issue, or refuse to issue, a water quality permit as not compliant

with the CWA, such challenge fails to state a claim because the CWA does not provide a federal cause of action to challenge a state agency's issuance of a NPDFS

App. 35

permit.6 District of Columbia v. Schramm, 631 F.2d

854, 863 (D.C. Cir. 1980). For these reasons, plaintiff

has not stated a claim for relief under the CWA.

VI.

Failure to Allege Facts

The court also finds that plaintiff fails to meet the

standard for adequate pleadings set forth in Fed. R.

Civ. P. 12(b)(6), As articulated in Bell Atlantic Corp. v.

Twombly, recitation of mere labels, conclusions, and elements is insufficient to state a claim for relief. 550

U.S. 544, 555 (2007). Here, plaintiff's complaint fails to

allege any actions taken by either of the named defendants. Plaintiff does not allege that he applied for a water quality permit, that a permit was denied, or that he

currently holds a permit. He does not allege that he

owns any cattle or livestock, or that he currently operates a CAFO. He alleges no financial loss imposed by

the State's permitting process, nor any injury caused

by any state actor or resulting from a state decision.

He does not allege or describe any injury caused by the

relationship between the EPA, the DEQ, or the ODA.

In sum, the complaint before the court is a series of

legal conclusions lacking any allegations which connect either defendant to any specific violation of law.

6 Nor does plaintiff have an implied cause of action under the

CWA; the Supreme Court has held that the CWA's "unusually

elaborate enforcement provisions" contain no implied cause of action for private citizens. Middlesex County Sewerage Authority v.

National Sea Clammers Ass'n, 453 U.S. 1, 13-15, 17-18 (1981).

Further, the remedies provided by Congress in the CWA foreclose

a private remedy under § 1983. Id. at 19-21.

App. 36

Accordingly, plaintiff fails to meet the requirements of

Fed. R. Civ. P. 12(b)(6).

VII. Leave to Amend

If the court, dismisses a complaint, it must decide

whether to grant leave to amend. See 28 U.S.C. § 1653.

The Ninth Circuit has repeatedly held that dismissal

without leave to amend is improper, even if no request

to amend the pleading was made, unless it is clear that

the defective pleading cannot possibly be cured by the

allegation of additional facts. Snell v. Cleveland, Inc.,

316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City

of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)); Lopez

v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). Here,

plaintiff's complaint is substantially similar to the two

civil complaints he previously filed in this court, and it

contains claims that were or should have been raised

in prior administrative and criminal proceedings in

state court. See Holdner v. ODA, U.S. District Court

Case No. 3:09-979-AC; Holdner v. John Kroger, et al,

U.S. Dist. Court Case No. 3:12-cv-1159-PK. Further, his

claims are barred by Eleventh Amendment immunity

and qualified immunity, fail to comply with Fed. R. Civ.

P. 12(b)(6), and fail to state a claim under the CWA. It

is clear that plaintiffs' claims cannot be cured by the

allegation of additional facts. The court thus finds

plaintiff should not be granted leave to amend and the

complaint is dismissed with prejudice.

App. 37

Conclusion

After careful consideration of plaintiff's complaint

in light of the Rule 12(b) standard, defendants' motions

to dismiss (#12) is GRANTED and the complaint (#1)

DISMISSED with prejudice.

IT IS SO ORDERED.

DATED this 1st day of June, 2016.

/s/

John V. Acosta

JOHN ACOSTA

United States

Magistrate Judge