kimberly a. almazan (s

20 Pages·2015·0.16 MB·English

Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 1 of 20
1 THERESE Y. CANNATA (SBN 88032)
KIMBERLY A. ALMAZAN (SBN 288605)
2 CANNATA, O’TOOLE, FICKES & ALMAZAN LLP
100 Pine Street, Suite 350
3 San Francisco, CA 94111
Telephone: [phone]
4 Facsimile: [phone]
Email: [email protected]
5
Attorneys for Plaintiffs
6 IRVINE H. LEEN and ALETA LEEN
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9 UNITED STATES DISTRICT COURT
10 EASTERN DISTRICT OF CALIFORNIA
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N 4 IRVINE H. LEEN and ALETA LEEN, CASE NO. 2:12-CV-01627-TLN-CMK
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M 019- Plaintiffs,
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,TA 1 S:(41L 17 Defendants.
NA TE 18 ___________________________________/
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Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 2 of 20
1 Plaintiffs Irvine H. Leen and Aleta Leen allege for this Complaint herein as follows:
2 THE PARTIES
3 1. Plaintiffs Irvine Leen and Aleta Leen are, and at all relevant times mentioned
4 herein were, residents of the County of Butte, California.
5 2. Plaintiffs are informed and believe that defendant Harold M. Thomas (“Mr.
6 Thomas”) is, and was at all times mentioned in this complaint, an employee of the California
7 Department of Fish and Wildlife, which was formerly known as the California Department of Fish
8 & Game, and that Mr. Thomas is also an employee and/or agent of the Butte County District
9 Attorney’s Office. Plaintiffs are informed and believe that Mr. Thomas reports to the California
10 State Bar his current business address to be 1416 - 9th Street, Sacramento, California, which is the
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L 11 Sacramento office of the California Department of Fish and Wildlife. Plaintiffs are informed and
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AZ 89 12 believe, based on budget disclosures to the Butte County Board of Supervisors, that the California
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&A L Wte 35941115)40 13 Department of Fish and Wildlife pays the primary part of Mr. Thomas’s salary (over $100,000 per
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OOLATTOPine Fran09-89 16 capacity.
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,TA 1 S:(41L 17 3. Plaintiffs are informed and believe that defendant Michael Ramsey (“Mr.
NA TE 18 Ramsey”) is the Butte County District Attorney, as well as an employee of that office. He was
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C 19 and remains Mr. Thomas’s supervisor, he had direct and indirect knowledge of his employee’s
20 misconduct, and he specifically authorized and directed said conduct. He thereby directly and
21 specifically engaged in acts that violated plaintiffs’ constitutional rights, including property
22 interests. Mr. Ramsey is named in his individual capacity.
23 4. Plaintiffs are informed and believe that defendant John Lane (“Mr. Lane”) is, and
24 was at all times mentioned in this complaint, an agent of Mr. Thomas, Mr. Ramsey, the Butte
25 County District Attorney’s Office and/or the California Department of Fish and Wildlife. Mr.
26 Lane is named in his individual capacity because he facilitated, aided, and abetted the unlawful
27 conduct of Mr. Thomas.
28 5. Sometime in 2012, the California Department of Fish and Game changed its
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Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 3 of 20
1 official name to the California Department of Fish and Wildlife. Throughout this complaint, this
2 state agency shall be referred to as “CDFW” or the California Department of Fish and Wildlife.
3 6. Plaintiffs are ignorant of the true names and capacities of defendants sued as Does
4 1 through 20, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs
5 will amend this complaint to allege their true names and capacities when ascertained.
6 7. Plaintiffs are informed and believe, and thereon allege that at all times herein
7 mentioned, defendants, including the Doe defendants, and each of them, were agents, servants,
8 alter egos and/or employees of their defendants, and in doing the things hereinafter alleged, were
9 acting within the scope of their authority as agents, servants, and employees, and with the
10 permission and consent of their co-defendants.
P
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L 11 JURISDICTION AND VENUE
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AZ 89 12 8. Plaintiffs Irvine Leen and Aleta Leen are residents of Oroville, California, which is
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&A L Wte 35941115)40 13 located in Butte County.
,FE ICKES LRNEYS AT AStreet, Suicisc o, CA 00F:(4P AX 1145 Sacrame9n.to, CaDlieffoernndiaa.n tD Mefre. nTdhaonmtsa Ms irs. aL acniteiz aennd o Mf trh. eR Satmatsee yo fa Crea cliiftoizrennias aonf dth ree sSidtaetse ionf or near
OOLATTOPine Fran09-89 16 California and reside in or near Butte County, California.
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,TA 1 S:(41L 17 10. The claims and events referenced in this complaint occurred in or arose from
NA TE 18 Oroville, County of Butte, State of California.
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C 19 11. This case is subject to the unlimited jurisdiction of the Superior Court in that the
20 amount in controversy exceeds $50,000.
21 12. This case was removed by defendants Mr. Thomas, Mr. Lane, and Mr. Ramsey to
22 the United States District Court, Eastern District of California on or about June 18, 2012.
23 GENERAL ALLEGATIONS
24 An Overview
25 13. Plaintiff Irvine Leen is a farmer and a rancher. He grazes his cattle on portions of
26 real property (the “Property”) that he owns with his wife, plaintiff Aleta Leen. The Property is
27 located in Oroville, California. An irrigation ditch runs through the Property, which is principally
28 fed from agricultural runoff flowing from properties upstream (the “Irrigation Ditch”). Plaintiffs
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FOURTH AMENDED COMPLAINT
Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 4 of 20
1 have a License for the Diversion and Use of Water (the “Water License”) issued and/or overseen
2 by the California State Water Resources Control Board, Division of Water Rights (“SWRCB”).
3 The Water License allows for the diversion of water from the Irrigation Ditch for the purpose of
4 irrigating the Property.
5 14. In or about the summer of 2002, Mr. Leen’s neighbor, Frank Green, cleared out
6 debris (e.g., old bicycles, tires, car batteries, cans, bottles) and brush from the Irrigation Ditch. At
7 the time, the water in the Irrigation Ditch was very low, and had insufficient flow to continue on
8 past the Leens’ property lines. As such, it had no connectivity, at the time, with other downstream
9 waterways. When the brush was cleared away, Mr. Green placed matting along the banks to
10 prevent erosion. In the turn of one season, the Irrigation Ditch vegetation returned.
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L 11 15. In or about October 2002, a CDFW deputy reported observations of persons
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AZ 89 12 clearing out debris and brush from the Irrigation Ditch. On the eve of the expiration of the statute
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&A L Wte 35941115)40 13 of limitations, on October 15, 2003, Mr. Thomas and Mr. Ramsey filed a criminal complaint
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OOLATTOPine Fran09-89 16 depositing silt into the Irrigation Ditch such that it is deleterious to fish, plants or bird life, and
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,TA 1 S:(41L 17 trespass. Mr. Leen accepted pretrial diversion in October 2004, on the understanding that he had
NA TE 18 no water license rights and that he needed to work with CDFW to restore historical waterways and
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20 2004 to August 2006. From August 2006 to January 2010, Mr. Leen was engulfed in court
21 proceedings in an effort to reinstate his plea of not guilty and proceed to trial on the criminal
22 charges. In or about March 2011, after Mr. Thomas had exhausted all appeals opposing Mr.
23 Leen’s right to try his case to jury, the matter proceeded to trial. On March 10, 2011, a jury in the
24 criminal case delivered a verdict of not guilty on all charges.
25 16. Despite Mr. Leen’s acquittal in the criminal case, Mr. Thomas attempted to
26 misuse his authority as a regulator (i.e., an employee of CDFW) to convince the SWRCB to
27 unlawfully withhold and restrain plaintiffs’ rights under the Water License. Plaintiffs were simply
28 trying to obtain a routine amendment to the Water License (i.e., adjusting the point of diversion
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FOURTH AMENDED COMPLAINT
Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 5 of 20
1 (“POD”)), as is common in agricultural uses of man-made irrigation waterways. However, Mr.
2 Thomas still opposed the issuance of the amendment without ever presenting a rational basis for
3 doing so. As a result, from approximately April 2011 to February 2013, plaintiffs had to engage
4 counsel and expend still further funds to convince the SWRCB to complete a process started back
5 in 2008 and purportedly stayed pending the outcome of the criminal case. That effort resulted in
6 the filing of this lawsuit in May 2012. Still, Mr. Thomas continued to use his influence and
7 access to regulatory agencies to obstruct and delay plaintiffs’ efforts to obtain this simple
8 amendment.
9 17. Since the commencement of this action, plaintiffs have resolved all disputes with
10 the regulatory agencies (SWRCB and CDFW). On February 6, 2013, the SWRCB issued to
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AZ 89 12 plaintiffs, whereby they were threatened with regulatory penalties and criminal prosecution if they
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&A L Wte 35941115)40 13 used or attempted to maintain the Irrigation Ditch. Plaintiffs settled with both SWRCB and
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OOLATTOPine Fran09-89 16 2011 when Mr. Leen was acquitted of the criminal charges and potentially concluding in or about
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,TA 1 S:(41L 17 February 2013 (assuming Mr. Thomas does not resume his pursuit of plaintiffs). Because Mr.
NA TE 18 Thomas was, and is, both a prosecutor and a state regulator, he possessed unique powers and
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20 abused those powers by opposing the proposed amendment to the Water License without a
21 rational basis and certainly without any prosecutorial purpose. He was relentless, refusing to
22 acknowledge the clear evidence that his environmental restoration theories were wrong, that there
23 was nothing to restore based on aerial photographs dating back to the 1940s and that plaintiffs had
24 done nothing illegal or improper in the use and maintenance of their Irrigation Ditch. At all
25 relevant times, Mr. Thomas’s unlawful conduct was open and known, ratified, and supported by
26 his supervisor, Mr. Ramsey. Minimal supervision and review of Mr. Thomas’s actions would
27 have prevented much of the harm suffered by plaintiffs.
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FOURTH AMENDED COMPLAINT
Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 6 of 20
1 The Criminal Action
2 19. Plaintiffs’ troubles started in the summer of 2002, when they did what many
3 owners of agricultural property do – they cleared away debris and brush. The Irrigation Ditch in
4 this case was particularly troublesome because the property adjacent to the ditch had been used for
5 outdoor concerts by the prior owners, leaving behind an accumulation of garbage. There was also
6 an abandoned beaver dam. The combination of these objects obstructed the flow of water and
7 caused it to be dispersed away from the Irrigation Ditch. The month of August was the best time
8 for this project because the water flow was reduced to a mere trickle and there was no
9 connectivity to downstream water on other properties. Finally, there were no fish in the Irrigation
10 Ditch aside from mosquito fish that were planted in local waterways by the County as mosquito
P
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AZ 89 12 months. Thus, plaintiffs were removing obstructions and they did so at a time when it would be
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&A L Wte 35941115)40 13 physically impossible to cause harm to fish in the Irrigation Ditch or downstream.
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OOLATTOPine Fran09-89 16 Irrigation Ditch was a natural waterway, and that clearing the debris out of the ditch was an
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,TA 1 S:(41L 17 impermissible “streambed alteration.” In addition, Mr. Thomas charged that Mr. Leen illegally
NA TE 18 deposited silt into the Irrigation Ditch, which potentially harmed fish in the waterway or
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20 license, and that he therefore unlawfully diverted water through his Irrigation Ditch.
21 21. Believing that he did not possess a water license, Mr. Leen agreed in August 2004
22 to pretrial diversion, which meant that criminal proceedings would be suspended and Mr. Leen
23 would work with CDFW to prepare and implement a “Restoration Plan” for the Property. This
24 Restoration Plan would restore allegedly natural waterways and wetlands. Upon successful
25 completion of the conditions of pretrial diversion, the criminal charges would be dismissed.
26 22. For the next two years, and at considerable expense, plaintiffs hired consultants
27 and experts, and tried without success to respond to the claims and demands interposed by Mr.
28 Thomas. The precise nature of the natural and historic conditions on the Property was among the
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1 issues addressed by plaintiffs’ consultants. Mr. Leen and his consultants tried repeatedly to
2 demonstrate to Mr. Thomas, Mr. Ramsey, and Mr. Lane that they were wrong on this point. Mr.
3 Leen and his consultants demonstrated this by reference to historical photographs dating back
4 many decades. These photographs demonstrated that the Irrigation Ditch had been in place since
5 before the 1940s and that there was no water flowing in the areas that Mr. Thomas and others
6 contended were the natural waterways, now removed due to the alleged illegal diversion by Mr.
7 Leen. The most concise record of this explanation is in the transcript of proceedings on March 8
8 and 9, 2011, which memorializes the testimony of Mr. Leen’s expert, Damon Brown, who
9 qualified at the criminal trial as an expert in hydrogeology. Mr. Lane was present in court during
10 this testimony, both to assist Mr. Thomas and to potentially testify as a rebuttal witness. Mr.
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AZ 89 12 there was no geological evidence of these so-called natural braids or historical wetlands. In fact,
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&A L Wte 35941115)40 13 the Irrigation Ditch, which Mr. Thomas claimed was created by plaintiffs’ alleged illegal
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OOLATTOPine Fran09-89 16 waterways in the area in which the so-called natural waterways once flowed and now needed to be
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,TA 1 S:(41L 17 “restored.” Mr. Thomas presented no expert testimony at that trial, nor did he provide any
NA TE 18 admissible evidence of the so-called natural and historic conditions on the Property.
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20 he did, in fact, enjoy water rights on his Property. Based on this information, which meant that
21 there was nothing to restore and, more importantly, that the proposed Restoration Plan advocated
22 by Mr. Thomas and those assisting him would deprive him of a vested property right, Mr. Leen
23 went to court and asked to be relieved of his obligations under the pretrial diversion agreement.
24 Mr. Leen was prepared to go to trial to prove his case. This motion in the criminal case unleashed
25 a firestorm of activity from Mr. Thomas and his colleagues.
26 24. From 2006 through January 2011, Mr. Thomas filed multiple writs and appeals in
27 an effort to block Mr. Leen from proceeding to trial in the criminal case, as was his right as a
28 prosecutor. Concurrently during this period, Mr. Thomas and his colleagues contacted the
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FOURTH AMENDED COMPLAINT
Case 2:12-cv-01627-TLN-CMK Document 113 Filed 09/17/15 Page 8 of 20
1 SWRCB (an outside regulatory agency) on multiple occasions about Mr. Leen – a practice that the
2 Honorable William Lamb, Mr. Leen’s criminal court judge, stated left him feeling “a little
3 queasy.” Strikingly, even after the jury in the criminal case acquitted Mr. Leen on all charges and
4 the criminal case was forever closed, Mr. Thomas continued, directly and through those he
5 enlisted to assist him, to stall and disrupt the decision-making process of the SWRCB.
6 Plaintiffs’ Application for an Amended Water License
7 25. After plaintiffs received word from the SWRCB in June 2006 that they had a
8 lawfully-issued and valid Water License, plaintiffs noticed that the POD and place of use (“POU”)
9 were not accurately listed on their Water License. To remedy this, plaintiffs were informed that
10 they needed to request a routine correction to their Water License to clarify the POD and POU.
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AZ 89 12 without delay because they seek clarification and updating of the placement of irrigation. In 2007,
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&A L Wte 35941115)40 13 the SWRCB twice sent a representative to the Property to investigate plaintiffs’ request. The
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OOLATTOPine Fran09-89 16 transcription of the original data.” In or about January 2008, the SWRCB administratively
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,TA 1 S:(41L 17 approved that request after making a site inspection, and issued an “Order Correcting the
NA TE 18 Description of the Point of Diversion and the Place of Use, Adding or Updating Standard License
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20 26. Thereafter, though, on February 14, 2008, John O’Hagan (“Mr. O’Hagan”), an
21 employee with the SWRCB, wrote to plaintiffs, stating that the information provided to him by
22 Mr. Thomas and Mr. Lane showed that the POD was “new.” Mr. Thomas was listed as a copyee
23 on that letter. Plaintiffs, through their attorney, attempted to set the record straight. They were
24 not, however, provided access to much of the evidence (e.g., certain mocked-up aerial depictions
25 of their Property) that Mr. Thomas and Mr. Lane had provided to the SWRCB. In addition, Mr.
26 O’Hagan refused to grant plaintiffs an extension of time to respond to the claims by Mr. Thomas,
27 et al., which was requested because plaintiffs were attending Ms. Leen’s father’s funeral.
28 //
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1 27. On April 14, 2008, Mr. O’Hagan wrote a letter confirming that the SWRCB had
2 rescinded its earlier order correcting the Water License. In the same letter, Mr. O’Hagan declined
3 to meet with plaintiffs and directed that if they wished to maintain the Water License, they were
4 required to file a petition to change the license.
5 28. At proceedings on April 23, 2008, the judge then assigned to Mr. Leen’s criminal
6 case, the Honorable William Lamb, expressed concern about Mr. Thomas’s attempt to interfere
7 with Mr. Leen’s regulatory proceedings, stating the following:
8 Unfortunately, and perhaps even ironically, that’s what makes this
9 all of the more disturbing because if the amended water right had
10 been perfected, the [P]eople could still have argued that it had no
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AZ 89 12 there is even less reason for you to step outside your duties in this
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&A L Wte 35941115)40 13 case and to contact an independent agency and try to influence their
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OOLATTOPine Fran09-89 16 contact for the purpose of harming the interests of the defendant for
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,TA 1 S:(41L 17 reasons that had nothing to do with this case. It could be interpreted
NA TE 18 that way by an objective member of the public that maybe didn’t
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20 using power and influence, of you, as prosecutor, or if the court did
21 it as a judge, to interfere with other outside proceedings that really
22 have nothing to do with the business at hand that we are engaged in
23 in the course of this trial.
24 As referenced above, Judge Lamb also went on to say, “I am just saying there is something about
25 this that makes me a little queasy . . . .”
26 29. The Leens thereafter filed the Petition for Change of Point of Diversion and Place
27 of Use (“Petition for Change”), which required an $1,850.00 fee, essentially because they had no
28 other choice in the matter. A prerequisite to having any water rights at all in the future was tied to
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a determination that plaintiffs had a valid water license running with the land. Thus, the Leens
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filed their Petition for Change in June 2008, which the SWRCB simply ignored for an entire year.
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30. At the time that all of this was happening with the SWRCB, a further consequence
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of not completing pretrial diversion was that the trial court would take a no contest plea, which
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was conditionally entered and not accepted by the trial court back in 2004, and enter it as a final
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conviction. Mr. Thomas obtained his conviction and demanded as the sentence that Mr. Leen
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submit to all of the terms and conditions of the “restoration” of the apocryphal historical, natural
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waterways. The court, however, started but did not ever finish the sentencing hearing. Instead,
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Judge Lamb imposed a probationary sentence, but stayed all terms and conditions pending Mr.
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Leen’s appeal of the conviction, which triggered a series of appeals, writs and remands, lasting
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AZA 890 12 first day of trial in March 2011, he had made over 70 court appearances in the criminal case.
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&A L Wte 35941115)40 13 31. Meanwhile, to the detriment of plaintiffs, the SWRCB placed the Petition for
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OOLATTOPine Fran09-89 16 Defendants’ Wrongful Acts After the Acquittal in March 2011
O’T 00 an 5)4 32. On March 10, 2011, the jury reached its verdict – Mr. Leen was acquitted on all
,ATA 1 S:(41EL 17 charges. Separate and apart from the criminal prosecution and continuing after the final
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Ramsey, engaged in a course of conduct intended to restrict and interfere with plaintiffs’ use and
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enjoyment of the Property, to wit their use of the Irrigation Ditch and their water rights. Said
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defendants, and each of them, after Mr. Leen’s acquittal, acted under color of state authority to
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maliciously and wrongfully cause a rescission of or otherwise invalidate the duly issued amended
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Water License and to thereafter delay and obstruct all other administrative remedies available to
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plaintiffs to resolve this water rights issue. Mr. Thomas further made it clear that he would
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aggressively prosecute Mr. Leen or anyone acting with him if he used, repaired, or maintained his
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Irrigation Ditch prior to a resolution of the water rights licensing issue – which Mr. Thomas
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worked behind the scenes to delay and obstruct.
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FOURTH AMENDED COMPLAINT