BUREAU OF RECLAMATION has sovereign immunity from mobile home owners’ contract claim against eviction from marina trailer court following expiration of concessionaire contract and BOR’s plans to modernize facility, HOA is not 3rd party beneficiary, has no legal right to compel BOR action on contract claim, removal of homes from federal land not a major federal action requiring NEPA analysis, TRO/preliminary injunction against eviction denied… jurisdiction over state-law claims against neighbors for septic drain field prescriptive easement/promissory estoppel denied… Lovell.
Goose Bay HOA is comprised of 31 mobile home owners who rent spaces in a 5-acre trailer court on Canyon Ferry Lake near Goose Bay Marina, a 227-acre facility owned by the US and managed by BOR. Gerald & Muriel Reller, private managers of the marina store and trailer court since 1986, allowed their concession agreement (lease & permit) to expire 12/31/12. HOA members had rented their spaces from the concessionaire pursuant to oral agreements. BOR has now decided to modernize the facility including reconstructing the septic system. It gave HOA members notice in 11/11 and 12/11 to remove their mobile homes, and also 6 months notice that it intended to terminate electric & water services by 4/1/13 and a reminder that they must remove their homes by 4/30/13. In response to the impending termination of septic service, the HOA filed a declaratory action in Montana 1st Judicial Dist 3/31/13 claiming to be 3rd-party beneficiaries of the BOR lease & permit. It alleges that the 7/00 lease & permit is void for failure of BOR to provide consideration for modifications it made to the 1986 lease, and that after judicial rescission, BOR should be compelled to renew it for 10 years. It also asserts a prescriptive easement against Lefevers, who are neighbors and private landowners, to maintain the trailer court’s septic field on their property, and that Lefevers should be estopped from demanding that the field be removed because their predecessor allegedly promised a prior concessionaire that it would be allowed in perpetuity. The State Court granted the HOA’s ex parte application for TRO the same day the complaint was filed. However, it appears that it was void or voidable because it was based on a complaint verified upon information & belief of HOA member Scott Joyner and not positively verified per MCA 27-19-303(2)(b). Forbes (Mont. 2011). This Court allowed Joyner to testify and thereby to cure that problem, but in any event the state restraining order has expired by operation of law. Following issuance of the TRO, BOR removed to this Court pursuant to 28 USC 1442 (civil action against the US or any agency thereof). The statute is to be broadly construed to favor removal, and the case will not be remanded as suggested by the HOA. A demand for declaratory judgment and specific performance of a contract filed against a US agency is properly adjudicated in a federal court. However, the Declaratory Judgment Act is permissive only. “If a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action.” Wilton (US 1995).
The HOA claims there are multiple factual issues that should be determined by a jury, including whether the US’ failure to renew the 2000 lease & permit was reasonable. The general rule is that there is no right to a jury trial against the US.
The 1st notable problem with HOA’s request for an injunction to prevent BOR from evicting the owners is that the concessionaire has not appeared, it has failed to renew the lease, and it has failed to fix the septic system to fulfill BOR’s condition for renewal. The 2nd notable problem is that the lease has expired and the HOA members no longer have a legal right to remain on this federal property. Nevertheless, HOA claims it has shown a likelihood of success on the merits and the possibility of irreparable injury or serious questions and a balance of hardships tipping sharply in HOA’s favor.
The 1st legal hurdle HOA members face is sovereign immunity as to their contract claim. The 43 USC 390uu, Tucker Act, Little Tucker Act, and APA waivers do not apply. HOA’s claims against BOR are contractually based because they are premised on the concessionaire contract. It presents a classic contract claim, but seeks a remedy (declaratory judgment and injunction) that is impliedly forbidden by the Tucker Act. Important public policy goals are served by strict construction of any purported waiver of sovereign immunity. The 31 HOA members obviously have a long & sentimental attachment to their trailer court, but BOR stands in the shoes of the public at large: thousands upon thousands of individuals who have an equally valid right to benefit from a modernized marina and recreation area as well as a safe & sanitary septic system. Even if the HOA were to fully litigate their claim against BOR on the merits, the Court is inclined to believe that it could not succeed given that BOR desires to redesign the marina and construct a new septic system. To let it stop a government agency in its tracks in its sincere pursuit of the public good would be mischief indeed. Even if there were a waiver of sovereign immunity, HOA could not succeed on a claim as a 3rd-party beneficiary because the concessionaire contract does not clearly give it 3rd-party beneficiary status.
HOA filed an amended complaint following the hearing asserting that “BOR’s refusal to properly consider whether the removal of the mobile homes may result in contamination of the Goose Bay property by asbestos, chrome, mercury, lead paint or other hazardous materials is a violation of NEPA and the APA.” This is not a verified complaint, and HOA provides no material support for the allegation. To suggest that BOR cannot evict 31 unpermitted mobile homes from federal land without a full-blown EA is absurd. This is not a major federal action. Removal of the homes is to be by the private parties at their own expense. NEPA is not applicable to actions of private parties. While it is true that BOR is evicting the HOA members from this federal property, it is not true that any environmental damage caused by their removal of their mobile homes would therefore be caused by the agency. Berryessa (ND Cal. 2007), which BOR argued at the injunction hearing and is now relied on by HOA, is quite different factually, legally, and procedurally. The 7 concessionaire agreements governing operation of 7 resorts on BOR land had not expired, but BOR’s intent to evict 1,200 mobile home owners was set forth explicitly in its final ROD, which was a redesign project for the entire Lake Berryessa area, and an FEIS had been issued in what was without doubt a major federal action. The court still refused to grant a preliminary injunction compelling BOR to rescind its order to the concessionaires requiring them to issue eviction notices and instructions to the long-term permit holders to demolish their homes. The plaintiffs requested at minimum that the court let them continue to live at Lake Berryessa while their NEPA challenge ran its course. The court refused because it was “doubtful that it could order BOR to extend the current contracts or issue permits to the permittees.” Such matters were deemed to be within the agency’s discretion and beyond the reach of the court. So too here. Even were the HOA members in precisely the same circumstances as in Berryessa, the court decided in that case that “the long-term permittees’ legal right to stay on the federal land ends when their permits expire.” The HOA members’ permits already expired 12/31/12 when the lease & permit agreement expired. In any event, because removal of the mobile homes is an action by a private party and is not a major federal action, the NEPA process is not relevant to the eviction.
Since HOA’s federal claims against BOR fail entirely, diversity is lacking between HOA and Lefevers, and HOA asserts purely state law claims against Lefevers, the balance of factors (judicial economy, convenience, fairness, comity) does not favor supplemental jurisdiction over HOA’s claim for prescriptive easement and promissory estoppel.
Goose Bay HOA v. Bureau of Reclamation, MDFWP, Lefever, 40 MFR 271, 4/22/13.
Nathan Wagner (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; AUSA Leif Johnson; Kevin Feeback (Gough, Shanahan, Johnson & Waterman), Helena, for Lefevers.
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