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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
May 9,2023 13:47
By: ERIK L. WALTER 0078988
Confirmation Nbr. 2852393
EDWARD BIESIADA CV 23 975442
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
CITY OF NORTH ROYALTON MAYOR FT AL
Pages Filed: 16
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
EDWARD BIESIADA, CASE NO. CV 23 975442
Plaintiff/Appellant, JUDGE SHIRLEY STRICKLAND SAFFOLD
vs.
PLAINTIFF/APPELLANT’S REPLY IN
CITY OF NORTH ROYALTON OPPOSITION TO DEFENDANTS'/
MAYOR, et al., APPELLEES’ MOTION TO DISMISS
Defendants/Appellees.
NOW COMES Plaintiff/Appellant, Edward Biesiada (hereinafter referred to as
“Appellant”), by and through undersigned counsel, and for his Reply in Opposition to
Defendants’/Appellees’, City of North Royalton and City of North Royalton Board of Zoning
Appeals (hereinafter collectively referred to as “Appellees”), Motion to Dismiss, states as
follows:
I. INTRODUCTION
This case involves the simple issue of a zoning decision that is unconstitutional, illegal,
arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable
and probative evidence. Specifically, on January 19, 2023, Appellees granted a variance for a
fence. However, in doing so, Appellees violated their own code, disregarded evidence presented
at the hearing and went against case law for granting a variance. As a result, this administrative
appeal was filed. In response, Appellees filed the underlying motion to dismiss the case
claiming the appeal is moot. However, for the reasons more fully explained below, Appellees’
motion should be denied and actually stricken from the record.
II. STATEMENT OF RELEVANT FACTS
On or about October 14, 2022 the North Royalton Building Department received a fence
permit application on behalf of the property owner—Penny Kurowski—at 12721 Patricia Drive,
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North Royalton, Ohio. Upon reviewing the fence application, the Building Commissioner
determined that the application for a permit would require a variance, since the proposed fence
extended to the front wall line of the Ms. Kurowski's residence. As a result, on or about
December 14, 2022, Ms. Kurowski filed an application for a variance to allow the proposed
fence to extend to the front wall line of her home.
On or about January 19, 2023, a hearing was held before the North Royalton Board of
Zoning Appeals on the application submitted by Ms. Kurowski requesting a fence variance to
allow her proposed fence to extend to the front wall line of her home. In this regard, City of
North Royalton Code Section 1467.05(d), in pertinent part, provides:
(d) Maximum Fence Height and Location of Fence Types. Maximum fence
heights and location of fence types for all residential districts excluding
Rural Residential Districts RR-2 and RR-3.
(1) Rear and Side Yards.
A. Backyard enclosure fences shall meet all of the following
specifications:
1. The fence shall not exceed six feet in height from
the existing finished natural grade line.
2. The fence encloses part of or rear yard and/or the
side yard(s) of the subject property.
3. Although not mandatory, the fence may follow
property boundaries (i.e. lot lines).
4. The fence shall contain a gate that is at least three
feet wide and is located so as to provide reasonable
and easy access to safety forces.
5. The entire fence is erected five feet back from
the front wall line of the residence or to the rear
of the front building setback line, whichever is
further from the street. (Emphasis provided).
After hearing the evidence, the variance was approved despite neighbors speaking out against it
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and the evidence clearly showing the criteria for being granted a variance not being met. As a
result, this administrative appeal was filed. However, Appellees filed a motion to dismiss on the
grounds that a stay was not sought by Appellant. For the reasons more fully explained below,
said motion should be denied.
III. LAW AND ARGUMENT
A. Standard of Review
Civ. R. 12(B)(6) provides for dismissal on the grounds that a party has failed to state a
claim upon which relief can be granted. The Ohio Court of Appeals in Jackson v Ohio Bureau of
Worker’s Compensation (1994), 98 Ohio App 3d 579; 649 NE2d 30, established the standard of
review for a motion to dismiss pursuant to Civ. R. 12(B)(6) as follows:
In order for a court to dismiss a complaint for failure to state a claim upon
which relief may be granted, it must appear beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. York v. Ohio State Hwy. Patrol (1991), 60 Ohio
St.3d 143, 144, 573 N.E.2d 1063, 1064, citing O’Brien v. Univ.
Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71
O.O.2d 223, 224-225, 327 N.E.2d 753, 754-755. (Emphasis provided).
When construing a complaint, cross-claim or counterclaim upon a Civ. R. 12(B)(6) motion to
dismiss, the court must presume the truth of all the factual allegations of the complaint and make
all reasonable inferences in favor of the nonmoving party. York, supra, at 144, 573 N.E.2d at
1064-1065. Furthermore, when resolving a Civ. R. 12(B)(6) motion, a court is confined to the
averments set forth in the complaint. Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161
(2000); Doe v. Cleveland Metro. Sch. Dist, 2012-Ohio-2497, 21, 972 N.E.2d 637, 64. Finally,
appellate review of a court's ruling on a Civ. R. 12(B)(6) motion presents a question of law
which appellate courts determine independently of the trial court's decision. See, Ford v.
Littlefield (Dec. 14, 1993), Pickaway App. No. 93CA9, unreported, 1993 WL 525004. With
these standards noted, Appellees' Motion to Dismiss should be denied.
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B. Appellees Are Not Entitled to Dismissal
In filing their motion, Appellees claim the administrative appeal is moot because
Appellant never sought a stay. In taking this position, Appellees rely largely on the holding in
Walouke v Mentor Board of Building and Zoning Appeals, 11th District Lake No. 10 136,1984
Ohio App. LEXIS 12133 (December 28,1984) and various other case law holdings. However,
there are several serious flaws in Appellees’ argument.
First, this administrative appeal does not involve the construction of a building. This is
important because all of the case cited by Appellees specifically deal with appeals involving the
construction of a building with the appellant failing to obtain a stay of execution of the trial
court's ruling. Neighbors for Responsible Land Use v. Akron, 2006-Ohio-6966, 6; Kent Invs.,
LLC v. City of Kent Plan. Comm'n, 2019-Ohio-410, 9, 130 N.E.3d 987, 989; Schuster v. City
Of Avon Lake, 2003-Ohio-6587, 8; Pinkney v. Southwick Invs., L.L.C., 2005-Ohio-4167, 14;
Haueisen v. City of Worthington, 2019-Ohio-5085, ^10; State ex rel. Wood v. Rocky River,
2021-Ohio-3313, 166 Ohio St. 3d 394, 396, 186 N.E.3d 781, 783. Construction of a building is
not what this case involves. Further, the matter is not moot because the Court could Order the
fence to be torn down. Specifically, the United States District Court, District Court of Columbia
in Cloud Found., Inc. v. Salazar, 738 F. Supp. 2d 35, 39 (D.D.C. 2010), in dealing with an
already constructed fence, noted:
But the Plaintiffs' other claims are not moot. First, several of their claims under
the Wild Free-Roaming Horses and Burros Act challenge (among other
implementations of the May 2009 Herd Management Area Plan) the Bureau's
construction of fences to restrict wild horses to particular areas of the Range.
[Dkt. 31-2 at *'*' 67-78.] If the Plaintiffs ultimately prevail on the merits of those
claims, the Court can grant effective relief, either by requiring the Bureau to
remove existing fences or by enjoining the Bureau from constructing new
fences. Cloud Found., Inc., supra. (Emphasis provided).1
1A copy of this case is attached hereto and incorporated herein as Exhibit 1.
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Therefore, Appellees’ argument fails on these grounds alone as the claim is not moot.
Second, and more devastating, Appellees’ motion contains the Affidavit of David
Smerek, Building Commissioner for the City of North Royalton, and other materials which are
outside the scope of the administrative appeal. In this regard, the Eleventh District Court of
Appeals Eye-Will Dev., Inc. v. Lake Cnty. Plan. Comm'n, 2006-Ohio-6103, 27—in negatively
treating Walouke, supra—held:
In addition to its argument that the trial court should not have reversed the
decision of the Planning Commission on its merits, Driftwood also argues that the
administrative appeal was moot when the trial court issued its judgment entry. On
cross-appeal, Eye-Will also argues the mootness issue with the following
assignment of error:
Appellee, Cross-Appellant Eye-Will's administrative appeal was not moot
despite the lack of a stay of execution of the variance granted LCPC.
Again, the trial court did not address Driftwood's mootness argument. Since the
trial court reversed the Planning Commission's decision, we will assume the trial
court found the argument without merit.
Essentially, Driftwood was asking the trial court to dismiss Eye-Will's
administrative appeal because it was moot. Thus, Driftwood's trial brief took the
form of a motion to dismiss. Since Driftwood submitted an affidavit that was
outside the pleadings, the matter should have proceeded as if on summary
judgment. As stated by the Sixth Appellate District:
[W]e believe that the court should have converted the Board's motion to
dismiss to a motion for summary judgment. The nature and character of
the Board's mootness and standing arguments present questions of whether
the court could grant relief on claims presented, not whether it lacked
jurisdiction of the subject matter of those claims. Had the court converted
the motion, Plaintiffs-Appellants would have had an opportunity to
counter both the Board's motion to dismiss and the affidavit on which the
motion relied.
Eye—Will argues that the affidavit contained information that was not relevant
to the mootness argument. We agree that evidence not related to the mootness
argument should not have been included in the affidavit.
We are troubled by the evidentiary nature of the affidavit attached to
Driftwood's appellate brief. The better practice would have been for
Driftwood to file a motion to dismiss the administrative appeal, with
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supporting affidavits, and, if necessary, request an evidentiary hearing with
the trial court on the mootness issue. However, for the purposes of this appeal,
we will give Driftwood the benefit of construing its affidavit in a light most
favorable to its position. This is because the affidavit does not support
Driftwood's argument that the administrative appeal was moot.
The following sections of the Revised Code are relevant to this matter.
R.C. 2505.06 provides:
Except as provided in section 2505.12 of the Revised Code, no
administrative-related appeal shall be effective as an appeal upon
questions of law and fact until the final order appealed is superseded by a
bond in the amount and with the conditions provided in sections 2505.09
and 2505.14 of the Revised Code, and unless such bond is filed at the time
the notice of appeal is required to be filed.
R.C. 2505.09 provides, in part:
Except as provided in section 2505.11 or 2505.12 or another section of the
Revised Code or in applicable rules governing courts, an appeal does not
operate as a stay of execution until a stay of execution has been obtained
pursuant to the Rules of Appellate Procedure or in another applicable
manner, and a supersedeas bond is executed by the appellant to the
appellee.
R.C.2505.12 provides, in part:
An appellant is not required to give a supersedeas bond in connection with
any of the following:
* * *
(B) an administrative-related appeal of a final order that is not for the
payment of money.”
This appeal was an administrative appeal of a decision that was not for the
payment of money. Therefore, the provisions of R.C. 2505.06 and 2505.09
requiring a supersedeas bond to be posted do not apply to this matter.
Pursuant to R.C. 2505.09, Eye-Will's appeal did not act as an automatic stay of
the Planning Commission's decision. If Eye-Will wished to prevent Driftwood
from proceeding with the project pursuant to the variance, it needed to move the
trial court for a stay of the Planning Commission's decision. However, for the
reasons that follow, Eye—Will's failure to move for a stay did not render the
administrative appeal moot.
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When, pending proceedings in error in this court, an event occurs, without the
fault of either party, which renders it impossible for the court to grant any relief, it
will dismiss the petition in error.
Unfortunately, there is no bright-line rule as to when a case becomes moot in
circumstances such as this. In these situations, mootness must be determined on
a case-by-case basis. For example, suppose an environmental group opposes a
construction company's plan to clear-cut a section of land for a shopping mall,
and the environmental group loses at the administrative level. If the
environmental group fails to move for a stay and the trees are cut down, the
matter may very well be moot, because it would be impossible for a reviewing
court to grant any relief. However, if the trees are not cut down and the company,
in reliance on their initial victory, purchases building materials for the proposed
shopping mall, it does so at its own risk, because it is aware of the possibility the
decision may be reversed. In the latter scenario, the reviewing court could still
grant the relief requested, i.e., not allowing the trees to be cut down.
While a party who wins at the administrative level proceeds at its own risk when
that decision is appealed, the losing party cannot sit by and watch construction
proceed. The losing party must move for a stay to protect its own interests in the
matter. Otherwise, that party risks the matter being declared moot at the appellate
level.
In support of its argument that the administrative appeal was moot, Driftwood
cites this court's decision in Walouke v. Mentor Bd. of Building and Zoning
Appeals. In Walouke, this court affirmed a trial court's ruling that an
administrative appeal granting a variance was moot. A homeowner was granted a
variance to construct a garage with a smaller setback. His neighbor appealed the
decision granting the variance to the trial court, but did not seek a stay of the
variance. The homeowner built the garage according to the variance, and trial
court dismissed the neighbor's administrative appeal as moot. This court agreed,
holding that a reversal of the board's decision would not affect the subject matter.
In Walouke, the garage was completed prior to the matter reaching the trial
court level. In the case sub judice, Mr. Pengal's affidavit states that construction
on the cul-de-sac had not started. In addition, it states the final plat had not been
filed. According to the affidavit, $9,617.75 had been spent on “engineering costs”
and $2,164.09 was spent relating to various permits associated with the variance.
Unlike the situation in Walouke, it was still possible for the trial court to grant the
relief requested. Eye-Will Dev., Inc., supra at 27-49.(Emphasis provided).
Here, Appellees are similarly submitting an Affidavit and evidence which is outside the scope of
the administrative appeal and which warrants it being stricken.
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Finally, even if this Court were to consider the exhibits attached to Appellees’ motion—
which Appellant argues it should not—the same reveal the fence was not completed nor given
final approval when the appeal was filed by Appellant. Specifically, Appellant filed the notice
of appeal with Appellees on February 17, 2023—filing the same with this Court on February 18,
2023—thereby placing Appellees on notice of the appeal. In this regard, Exhibit A attached to
Appellees’ motion specifically provides:
On February 6,2023, the Building Department received a copy of the survey of
the property at 12721 Patricia Drive, North Royalton, Ohio. Exhibit 7;
The fence construction was commenced thereafter and on February 15, 2023 in
conformity with the North Royalton building permit the first inspection took
place. Exhibit 4; second inspection February 23, 2023, at which time the fence
was substantially completed, except for a final approval. Exhibit 5;
The construction of the fence received final approval on April 5, 2023. Exhibit 6.
(Emphasis provided).
Therefore, based on Appellees’ own “evidence,” the construction of the fence had barely begun
when the notice of appeal was filed, was not completed until February 23, 2023, and not given
final approval until April 5, 2023. Therefore, Eye-Will Dev., Inc., supra would govern this
situation and not Walouke, supra. As a result, Appellant’s appeal is not moot as Appellees
argue. Eye-Will Dev., Inc., supra. What makes this process so insidious is the fact that the
minutes approving the original variance request were not approved until April 27, 2023—the
date from which the appeal deadline began accruing. Further, once Appellees were on notice of
the Appeal on February 17, 2023, they should have waited to give their approval until after this
underlying appeal was decided. In this regard, Appellees should not be rewarded for blatantly
disregarding the appeal to “sneak” the fence into existence knowing of the pending appeal. Eye-
Will Dev., Inc., supra.
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IV. CONCLUSION
Once the foregoing is reviewed, it is clear that Appellant’s appeal is not moot. Again, the
holding of Eye-Will Dev., Inc., supra governs and the appeal should proceed as filed. In this
regard, it is amazing to think that Appellees want to hide behind rhetoric to avoid being held
responsible for a decision that is unconstitutional, illegal, arbitrary, capricious, unreasonable and
unsupported by the preponderance of substantial, reliable and probative evidence. In short, the
decision to grant the fence variance is a travesty and Appellees want to be released from having
to follow their own code. Therefore, based on the foregoing, Appellees’ Motion to Dismiss
should be denied and the underlying appeal allowed to proceed as filed.
WHEREFORE, Appellant respectfully request that this Court enter an Order:
1. Denying Appellees’ Motion to Dismiss Appellant’s Notice of Appeal;
2. Allowing all claims in this matter to proceed to the trier of fact;
3. Granting Appellant’s attorney fees and costs incurred in having to defend against
this motion pursuant to Civ. R. 11 and ORC 2323.51; and
4. Awarding Appellant such further and additional relief as is just, proper, and
equitable.
Respectfully submitted,
/s/Erik L. Walter_____________________
ERIK L. WALTER (#0078988)
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077
(440) 352-3391 (440) 352-3469 Fax
Email: ewalter@,dworkenlaw.com
Attorney for Plaintiff/Appellant
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PROOF OF SERVICE
A copy of the foregoing Plaintiff/Appellant's Reply in Opposition to Defendants'/
Appellees' Motion to Dismiss was served via email only on May 9, 2023 on:
Thomas A. Kelly, tkelly@northroyalton.org
Donna M. Vozar, dvozar@northroyalton.org
14600 State Road
North Royalton, OH 44133
/s/ Erik L. Walter______________
ERIK L. WALTER (#0078988)
Dworken & Bernstein Co., L.P.A.
Attorney for Plaintiff/Appellant
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Cloud Foundation, Inc. v. Salazar, 738 F.Supp.2d 35 (2010)
738 F.Supp.2d 35 West Headnotes (5)
United States District Court, District of Columbia.
CLOUD FOUNDATION, INC., et al., Plaintiffs, [1] Environmental Law Mootness
v. Environmental groups' challenge to
Ken SALAZAR, Secretary of government's round up and removal of
the Interior, et al., Defendants. wild horses from horse range under the
Administrative Procedure Act (APA) and Free-
No. L09-CV-1651 Roaming Horses and Burros Act was moot,
I where government had completed the gather.
Aug. 25,2010. Ps U.S.C.A. § 706; Wild Free-Roaming Horses
I
and Burros Act, § 1, R16 U.S.C.A. § 1331.
Opinion on Rehearing Sept. 29, 2010.
Synopsis 1 Case that cites this headnote
Background: Environmental groups brought against the
federal government, alleging violations of the Administrative
[2] Environmental Law Mootness
Procedure Act (APA) and Wild Free-Roaming Horses and
District court could grant effective relief in
Burros Act. Groups filed motion for leave to amend their
environmental groups' challenge under the Free-
complaint and government filed motion to dismiss.
Roaming Horses and Burros Act to government's
construction of fences to restrict wild horses
to particular areas of a range, and therefore,
Holdings: The District Court, James S. Gwin, J., held that: groups' action was not moot, even though fences
had already been constructed, where court could
[ 1 ] groups' challenge to government's round up and removal require removal of existing fences or enjoining
of wild horses from horse range was moot; construction of any new fences. Wild Free-
Roaming Horses and Burros Act, § 1, R16
[2] challenge to government's construction of fences was not
U.S.C.A. § 1331.
moot;
[3] allegations were sufficient to plead jurisdiction to
challenge government's on-going policy of excluding horse |3| Environmental Law Plants and wildlife;
gathers from National Environmental Policy Act (NEPA); and endangered species
Environmental groups' allegations were
[4] on motion to reconsider, district court did not sufficient to plead jurisdiction to challenge
misunderstand, overreach or cause harm to the government government's on-going policy of excluding
in considering environmental groups' second amended horse gathers from National Environmental
complaint. Policy Act (NEPA) requirements, where it
was undisputed that groups had standing, and
challenge presented a purely legal question fit for
Plaintiffs' motion granted, and defendant's motion granted in judicial decision. National Environmental Policy
part and denied in part. Act of 1969, § 2 et seq., 42 U.S.C. § 4321 et seq.
Defendant's motion for reconsideration denied.
[4] Federal Civil Procedure Justice;
Procedural Posture(s): Motion to Dismiss; Motion to
prevention of injustice
Dismiss for Lack of Subject Matter Jurisdiction.
Federal Civil Procedure Error by court
EXHIBIT
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I
Cloud Foundation, Inc. v. Salazar, 738 F.Supp.2d 35 (2010)
On a motion to reconsider, a court Procedure 12(b)(1). [Dkt. 16.] The government contends
must determine whether justice requires that because it has already completed the horse round-up
reconsideration, and may base this determination challenged by the plaintiff environmental groups, this action
on whether it patently misunderstood the is moot [Dkt. 16.] In response, the Plaintiffs argue that the
parties, whether its decision reached beyond the “capable of repetition yet evading review” exception to the
adversarial issues presented, or whether some mootness doctrine applies, and they also move for |eave to
harm would flow from denial of the motion. amend their complaint to add claims that are not moot. [Dkt.
Fed.Rules Civ.Proc.Rule 54(b), 28 U.S.C.A. 18; Dkt. 31.] For the reasons below, the Court GRANTS
the Plaintiffs' motion for leave to file a second amended
complaint and GRANTS IN PART and DENIES IN PART
[5] Environmental Law €=» Determination, the government's motion to dismiss.
Judgment, and Relief
The Wild Free-Roaming Horses and Burros Act, R>16
District court did not misunderstand, overreach
or cause harm to the government in U.S.C. §§1331-F^ 1340, charges the Secretary of the Interior
considering environmental groups’ second
with “managing] wild free-roaming horses and burros in a
amended complaint on government's motion
manner that is designed to achieve and maintain a thriving
to dismiss challenges to policies under the
natural ecological balance on the public lands.” Id. § 1333(a).
Wild Free-Roaming Horses and Burros Act
The Act directs that when the Bureau of Land Management
and Administrative Procedure Act (APA), and
(as delegate of the Secretary of the Interior) determines “that
therefore, reconsideration was not warranted,
an overpopulation exists on a given area of the public lands
where court had granted groups' motion for
and that action is necessary to remove excess animals,” the
leave to amend. F^5 U.S.C.A. § 706; Wild
Bureau shall “immediately remove excess animals from the
Free-Roaming Horses and Burros Act, § 1, range so as to achieve appropriate management levels.” Id. §
P16 U.S.C.A. §1331; Fed.Rules Civ.Proc.Rule 1333(b)(2).
54(b), 28 U.S.C.A.
This action arose after the Bureau determined that there was
1 Case that cites this headnote an overpopulation of wild horses on the Pryor Mountain
Wild Horse Range, located about 50 miles south of Billings,
Montana. [Dkt. 13.] Consequently, in August 2009, the
Bureau announced a plan to round up and remove 70 of
the 190 wild horses—allegedly to prevent overgrazing and
Attorneys and Law Firms
maintain an ecologically sustainable population. [Dkt. 13.]
*37 D. Christopher Ohly, Schiff Hardin, LLP, Washington,
DC, Valerie J. Stanley, Laurel, MD, Bruce A. Wagman, Schiff When the Bureau announced the gather plan and solicited
Hardin, LLP, San Francisco, CA, for Plaintiff. public comments, it issued an Environmental Assessment
finding that the gather would have no significant
John B. Grosko, U.S. Department of Justice, Environment environmental impact. [Dkt. 13.] Accordingly, the Bureau
and Natural Resource, John S. Most, Department of Justice, declined to prepare an Environmental Impact Statement—
Washington, DC, for Defendant. a document mandated for all environmentally significant
agency actions by the National Environmental Policy Act,
42 U.S.C. §§ 4321 et seq. [Dkt. 13.] The Bureau based
OPINION & ORDER this Finding of No Significant Impact in reliance upon
its departmental manual's statement that “[p]rocessing ...
JAMES S. GWIN, District Judge. excess wild horses and burros” is categorically excluded from
NEPA's requirements. [Dkt. 13.]
In this challenge to federal management of wild horses on the
Pryor Mountain Wild Horse Range in southern Montana and
The plaintiff environmental groups then filed this action
northern Wyoming, the government moves to dismiss for lack
to challenge the gather plan. [Dkt. 1.] Their first
of subject-matter jurisdiction under ^Federal Rule of Civil
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Cloud Foundation, inc. v. Salazar, 738 F.Supp.2d 35 (2010)
amended complaint asserted three claims: (1) the Bureau's government argues that the second amended complaint fails
Environmental Assessment was arbitrary and capricious to cure the mootness defect. [Dkt. 32 at 11-14.] Second,
under the Administrative Procedure Act, P^5 U.S.C. § 706, the government contends that the amendment would be both
futile (because the challenge to the 1987 Custer National
because it used abnormally dry baseline years to calculate
Forest Plan is time-barred) and prejudicial (because the new
the ecologically sustainable herd level and because it failed
allegations were known to the Plaintiffs at the time of the first
to consider that a smaller population threatens the herd's
amended complaint and because the government would have
genetic diversity; (2) the Bureau's gather plan failed to
only 14 days to answer under Federal Rule of Civil Procedure
adequately protect the horses' welfare, in violation of the
15(a)(3)). [Dkt. 32 at 14-17.]
Wild Free-Roaming Horses and Burros Act; and (3) the
Bureau's *38 categorical exclusion of excess horse removal
The government's prejudice argument fails. Although the
fromNEPA's requirements was arbitrary and capricious under
Plaintiffs concede that they knew of the newly added
the Administrative Procedure Act. [Dkt. 13.] The Plaintiffs
allegations when they filed their first amended complaint,
sought, among other relief, a temporary restraining order
they could not have asserted those claims at that time. The
against the gather. [Dkt. 13.]
Plaintiffs' challenge to the Herd Management Area Plan was
still before the Interior Board of Land Appeals and thus
After expedited briefing and argument, this Court denied the
was not administratively exhausted. [Dkt. 34 at 5.] And the
Plaintiffs' TRO request. The Plaintiffs did not appeal that
Plaintiffs' challenge to the northern boundary fence was not
denial. The Bureau then conducted the gather in September
yet ripe; the government did not begin to solicit bids to
2009, removing 57 horses from the Range. The Bureau sold
construct the fence until June 2010. [Dkt. 34 at 5.] Moreover,
five of those horses and gave the other 52 for adoption. [Dkt.
the Plaintiffs' willingness to consent to an extension of time
16-2 atl 5(c)-(e).]
for the government to answer the second amended complaint
stops the government's concern of prejudice. [Dkt. 34 at 6-7.]
The government now moves to dismiss this action as moot,
contending that because the gather is complete, this Court can
The government is also incorrect that the Plaintiffs' claim
no longer grant any effective relief. [Dkt. 16.] In response, the
challenging the 1987 Custer National Forest Plan is time-
Plaintiffs argue that the Bureau's allegedly unlawful gather is
barred. [Dkt. 32 at 15 n.3.] Although “an amendment adding
“capable of repetition yet evading review.” [Dkt. 18.]
a new ground for relief to the complaint must contend with
the applicable statute of limitations,” F^L/bnes v. Bernanke,
The Plaintiffs also move for leave to file a second amended
complaint. [Dkt. 31.] Their proposed second amended 557 F.3d 670, 674 (D.C.Cir.2009), the 1987 Custer National
complaint contains two changes from the first amended Forest *39 Plan that the Plaintiffs challenge is not “final
complaint. [Dkt. 31-2.] First, it abandons theNEPA claim that agency action” that triggers the statute of limitations, see
the Bureau's Environmental Assessment for the September F^O/ho Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726,
2009 gather was deficient. [Dkt. 31-2.] Second, it adds three
732, 118 S.Ct. 1665,140 L.Ed.2d 921 (1998). “Final agency
allegations to the Wild Free-Roaming Horses and Burros Act
action” did not occur until the Bureau proposed to construct
claim: (1) the Bureau's May 2009 Herd Management Area
a fence along the boundaries outlined in the 1987 plan. Thus,
Plan violated the Act; (2) the Bureau's construction of a fence
adding the claim challenging the 1987 Custer National Forest
at the Range's northern boundary violated the Act; and (3)
Plan is not futile on statute-of-limitations grounds.
the June 1987 Custer National Forest Plan and the May 2009
Herd Management Area Plan violated the Act by excluding
Accordingly, because the government has not shown “any
areas historically used by the herd. [Dkt. 31-2 at ffl] 76-78.]
apparent or declared reason—such as undue delay, bad faith
The third claim—challenging the Bureau's use of categorical
or dilatory motive on the part of the movant, repeated failure
exclusions for horse gathers—is unchanged from the first
to cure deficiencies by amendments previously allowed,
amended complaint. [Dkt. 31-2 at^ 80.]
undue prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.”—for denying
Notwithstanding Federal Rule of Civil Procedure 15(a)'s
direction that leave to amend “shall be freely given when leave to amend, v. Davis, 371 U.S. 178, 182,
justice so requires,” the government opposes the Plaintiffs' 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Court grants the
motion for leave on two grounds. [Dkt. 32.] First, the Plaintiffs' motion.
Electronically Filed 05/09/2023 13:47 I BRIEF I CV 23 975442 I Confirmation Nbr. 2852393 I CIMHB
WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3
Cloud Foundation, inc. v. Salazar, 738 F.Supp.2d 35 (2010)
such a forward-looking challenge and [that] the request for
[1] The government nevertheless argues that all of the
declaratory relief is ripe.’ ” at 321 (citation omitted;
Plaintiffs* claims in both complaints became moot when the
alteration in original). However, the Plaintiffs have met
Bureau completed the gather in September 2009. [Dkt. 16-1
both of these requirements. They have adequately alleged
at 10-13; Dkt. 32 at 11-14.] The Plaintiffs' second amended
—and the government does not dispute—their standing to
complaint drops their NEPA challenge to the September
challenge the Bureau's compliance with NEPA requirements.
2009 gather, but in any event, the government is correct
See P^F/a. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664
that the September 2009 challenge is moot. Faced with a
nearly identical challenge to a series of horse gathers, the (D.C.Cir.1996) (en banc) (“[A] plaintiff may have standing
D.C. Circuit held that once the gathers had been completed, to challenge the failure of an agency to abide by a procedural
it became “ ‘impossible for the court to grant any effectual requirement only if that requirement was ‘designed to protect
relief whatever’ with respect to the challenged gathers,” and some threatened concrete interest* of the plaintiff... [T]he
plaintiff must show that the government act performed
thus the challenge was moot. for Animals, Inc. v.
without the procedure in question will cause a distinct risk to
U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C.Cir.2006)
a particularized interest of the plaintiff”) (citation omitted).
(quoting Beethoven.com LLC v. Librarian of Cong., 394 F.3d
[See Dkt. 31-2 at 4-11 (Plaintiffs' particularized interests
939, 950 (D.C.Cir.2005)). There—as here1 —the plaintiffs
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION May 9,2023 13:47 By: ERIK L. WALTER 0078988 Confirmation Nbr. 2852393 EDWARD BIESIADA CV 23 975442 vs. Judge: SHIRLEY STRICKLAND SAFFOLD CITY OF NORTH ROYALTON MAYOR FT AL Pages Filed: 16 Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO EDWARD BIESIADA, CASE NO. CV 23 975442 Plaintiff/Appellant, JUDGE SHIRLEY STRICKLAND SAFFOLD vs. PLAINTIFF/APPELLANT’S REPLY IN CITY OF NORTH ROYALTON OPPOSITION TO DEFENDANTS'/ MAYOR, et al., APPELLEES’ MOTION TO DISMISS Defendants/Appellees. NOW COMES Plaintiff/Appellant, Edward Biesiada (hereinafter referred to as “Appellant”), by and through undersigned counsel, and for his Reply in Opposition to Defendants’/Appellees’, City of North Royalton and City of North Royalton Board of Zoning Appeals (hereinafter collectively referred to as “Appellees”), Motion to Dismiss, states as follows: I. INTRODUCTION This case involves the simple issue of a zoning decision that is unconstitutional, illegal, arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence. Specifically, on January 19, 2023, Appellees granted a variance for a fence. However, in doing so, Appellees violated their own code, disregarded evidence presented at the hearing and went against case law for granting a variance. As a result, this administrative appeal was filed. In response, Appellees filed the underlying motion to dismiss the case claiming the appeal is moot. However, for the reasons more fully explained below, Appellees’ motion should be denied and actually stricken from the record. II. STATEMENT OF RELEVANT FACTS On or about October 14, 2022 the North Royalton Building Department received a fence permit application on behalf of the property owner—Penny Kurowski—at 12721 Patricia Drive, Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB North Royalton, Ohio. Upon reviewing the fence application, the Building Commissioner determined that the application for a permit would require a variance, since the proposed fence extended to the front wall line of the Ms. Kurowski's residence. As a result, on or about December 14, 2022, Ms. Kurowski filed an application for a variance to allow the proposed fence to extend to the front wall line of her home. On or about January 19, 2023, a hearing was held before the North Royalton Board of Zoning Appeals on the application submitted by Ms. Kurowski requesting a fence variance to allow her proposed fence to extend to the front wall line of her home. In this regard, City of North Royalton Code Section 1467.05(d), in pertinent part, provides: (d) Maximum Fence Height and Location of Fence Types. Maximum fence heights and location of fence types for all residential districts excluding Rural Residential Districts RR-2 and RR-3. (1) Rear and Side Yards. A. Backyard enclosure fences shall meet all of the following specifications: 1. The fence shall not exceed six feet in height from the existing finished natural grade line. 2. The fence encloses part of or rear yard and/or the side yard(s) of the subject property. 3. Although not mandatory, the fence may follow property boundaries (i.e. lot lines). 4. The fence shall contain a gate that is at least three feet wide and is located so as to provide reasonable and easy access to safety forces. 5. The entire fence is erected five feet back from the front wall line of the residence or to the rear of the front building setback line, whichever is further from the street. (Emphasis provided). After hearing the evidence, the variance was approved despite neighbors speaking out against it Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 2 and the evidence clearly showing the criteria for being granted a variance not being met. As a result, this administrative appeal was filed. However, Appellees filed a motion to dismiss on the grounds that a stay was not sought by Appellant. For the reasons more fully explained below, said motion should be denied. III. LAW AND ARGUMENT A. Standard of Review Civ. R. 12(B)(6) provides for dismissal on the grounds that a party has failed to state a claim upon which relief can be granted. The Ohio Court of Appeals in Jackson v Ohio Bureau of Worker’s Compensation (1994), 98 Ohio App 3d 579; 649 NE2d 30, established the standard of review for a motion to dismiss pursuant to Civ. R. 12(B)(6) as follows: In order for a court to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064, citing O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 224-225, 327 N.E.2d 753, 754-755. (Emphasis provided). When construing a complaint, cross-claim or counterclaim upon a Civ. R. 12(B)(6) motion to dismiss, the court must presume the truth of all the factual allegations of the complaint and make all reasonable inferences in favor of the nonmoving party. York, supra, at 144, 573 N.E.2d at 1064-1065. Furthermore, when resolving a Civ. R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint. Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161 (2000); Doe v. Cleveland Metro. Sch. Dist, 2012-Ohio-2497, 21, 972 N.E.2d 637, 64. Finally, appellate review of a court's ruling on a Civ. R. 12(B)(6) motion presents a question of law which appellate courts determine independently of the trial court's decision. See, Ford v. Littlefield (Dec. 14, 1993), Pickaway App. No. 93CA9, unreported, 1993 WL 525004. With these standards noted, Appellees' Motion to Dismiss should be denied. Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 3 B. Appellees Are Not Entitled to Dismissal In filing their motion, Appellees claim the administrative appeal is moot because Appellant never sought a stay. In taking this position, Appellees rely largely on the holding in Walouke v Mentor Board of Building and Zoning Appeals, 11th District Lake No. 10 136,1984 Ohio App. LEXIS 12133 (December 28,1984) and various other case law holdings. However, there are several serious flaws in Appellees’ argument. First, this administrative appeal does not involve the construction of a building. This is important because all of the case cited by Appellees specifically deal with appeals involving the construction of a building with the appellant failing to obtain a stay of execution of the trial court's ruling. Neighbors for Responsible Land Use v. Akron, 2006-Ohio-6966, 6; Kent Invs., LLC v. City of Kent Plan. Comm'n, 2019-Ohio-410, 9, 130 N.E.3d 987, 989; Schuster v. City Of Avon Lake, 2003-Ohio-6587, 8; Pinkney v. Southwick Invs., L.L.C., 2005-Ohio-4167, 14; Haueisen v. City of Worthington, 2019-Ohio-5085, ^10; State ex rel. Wood v. Rocky River, 2021-Ohio-3313, 166 Ohio St. 3d 394, 396, 186 N.E.3d 781, 783. Construction of a building is not what this case involves. Further, the matter is not moot because the Court could Order the fence to be torn down. Specifically, the United States District Court, District Court of Columbia in Cloud Found., Inc. v. Salazar, 738 F. Supp. 2d 35, 39 (D.D.C. 2010), in dealing with an already constructed fence, noted: But the Plaintiffs' other claims are not moot. First, several of their claims under the Wild Free-Roaming Horses and Burros Act challenge (among other implementations of the May 2009 Herd Management Area Plan) the Bureau's construction of fences to restrict wild horses to particular areas of the Range. [Dkt. 31-2 at *'*' 67-78.] If the Plaintiffs ultimately prevail on the merits of those claims, the Court can grant effective relief, either by requiring the Bureau to remove existing fences or by enjoining the Bureau from constructing new fences. Cloud Found., Inc., supra. (Emphasis provided).1 1A copy of this case is attached hereto and incorporated herein as Exhibit 1. Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 4 Therefore, Appellees’ argument fails on these grounds alone as the claim is not moot. Second, and more devastating, Appellees’ motion contains the Affidavit of David Smerek, Building Commissioner for the City of North Royalton, and other materials which are outside the scope of the administrative appeal. In this regard, the Eleventh District Court of Appeals Eye-Will Dev., Inc. v. Lake Cnty. Plan. Comm'n, 2006-Ohio-6103, 27—in negatively treating Walouke, supra—held: In addition to its argument that the trial court should not have reversed the decision of the Planning Commission on its merits, Driftwood also argues that the administrative appeal was moot when the trial court issued its judgment entry. On cross-appeal, Eye-Will also argues the mootness issue with the following assignment of error: Appellee, Cross-Appellant Eye-Will's administrative appeal was not moot despite the lack of a stay of execution of the variance granted LCPC. Again, the trial court did not address Driftwood's mootness argument. Since the trial court reversed the Planning Commission's decision, we will assume the trial court found the argument without merit. Essentially, Driftwood was asking the trial court to dismiss Eye-Will's administrative appeal because it was moot. Thus, Driftwood's trial brief took the form of a motion to dismiss. Since Driftwood submitted an affidavit that was outside the pleadings, the matter should have proceeded as if on summary judgment. As stated by the Sixth Appellate District: [W]e believe that the court should have converted the Board's motion to dismiss to a motion for summary judgment. The nature and character of the Board's mootness and standing arguments present questions of whether the court could grant relief on claims presented, not whether it lacked jurisdiction of the subject matter of those claims. Had the court converted the motion, Plaintiffs-Appellants would have had an opportunity to counter both the Board's motion to dismiss and the affidavit on which the motion relied. Eye—Will argues that the affidavit contained information that was not relevant to the mootness argument. We agree that evidence not related to the mootness argument should not have been included in the affidavit. We are troubled by the evidentiary nature of the affidavit attached to Driftwood's appellate brief. The better practice would have been for Driftwood to file a motion to dismiss the administrative appeal, with Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 5 supporting affidavits, and, if necessary, request an evidentiary hearing with the trial court on the mootness issue. However, for the purposes of this appeal, we will give Driftwood the benefit of construing its affidavit in a light most favorable to its position. This is because the affidavit does not support Driftwood's argument that the administrative appeal was moot. The following sections of the Revised Code are relevant to this matter. R.C. 2505.06 provides: Except as provided in section 2505.12 of the Revised Code, no administrative-related appeal shall be effective as an appeal upon questions of law and fact until the final order appealed is superseded by a bond in the amount and with the conditions provided in sections 2505.09 and 2505.14 of the Revised Code, and unless such bond is filed at the time the notice of appeal is required to be filed. R.C. 2505.09 provides, in part: Except as provided in section 2505.11 or 2505.12 or another section of the Revised Code or in applicable rules governing courts, an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee. R.C.2505.12 provides, in part: An appellant is not required to give a supersedeas bond in connection with any of the following: * * * (B) an administrative-related appeal of a final order that is not for the payment of money.” This appeal was an administrative appeal of a decision that was not for the payment of money. Therefore, the provisions of R.C. 2505.06 and 2505.09 requiring a supersedeas bond to be posted do not apply to this matter. Pursuant to R.C. 2505.09, Eye-Will's appeal did not act as an automatic stay of the Planning Commission's decision. If Eye-Will wished to prevent Driftwood from proceeding with the project pursuant to the variance, it needed to move the trial court for a stay of the Planning Commission's decision. However, for the reasons that follow, Eye—Will's failure to move for a stay did not render the administrative appeal moot. Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 6 When, pending proceedings in error in this court, an event occurs, without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error. Unfortunately, there is no bright-line rule as to when a case becomes moot in circumstances such as this. In these situations, mootness must be determined on a case-by-case basis. For example, suppose an environmental group opposes a construction company's plan to clear-cut a section of land for a shopping mall, and the environmental group loses at the administrative level. If the environmental group fails to move for a stay and the trees are cut down, the matter may very well be moot, because it would be impossible for a reviewing court to grant any relief. However, if the trees are not cut down and the company, in reliance on their initial victory, purchases building materials for the proposed shopping mall, it does so at its own risk, because it is aware of the possibility the decision may be reversed. In the latter scenario, the reviewing court could still grant the relief requested, i.e., not allowing the trees to be cut down. While a party who wins at the administrative level proceeds at its own risk when that decision is appealed, the losing party cannot sit by and watch construction proceed. The losing party must move for a stay to protect its own interests in the matter. Otherwise, that party risks the matter being declared moot at the appellate level. In support of its argument that the administrative appeal was moot, Driftwood cites this court's decision in Walouke v. Mentor Bd. of Building and Zoning Appeals. In Walouke, this court affirmed a trial court's ruling that an administrative appeal granting a variance was moot. A homeowner was granted a variance to construct a garage with a smaller setback. His neighbor appealed the decision granting the variance to the trial court, but did not seek a stay of the variance. The homeowner built the garage according to the variance, and trial court dismissed the neighbor's administrative appeal as moot. This court agreed, holding that a reversal of the board's decision would not affect the subject matter. In Walouke, the garage was completed prior to the matter reaching the trial court level. In the case sub judice, Mr. Pengal's affidavit states that construction on the cul-de-sac had not started. In addition, it states the final plat had not been filed. According to the affidavit, $9,617.75 had been spent on “engineering costs” and $2,164.09 was spent relating to various permits associated with the variance. Unlike the situation in Walouke, it was still possible for the trial court to grant the relief requested. Eye-Will Dev., Inc., supra at 27-49.(Emphasis provided). Here, Appellees are similarly submitting an Affidavit and evidence which is outside the scope of the administrative appeal and which warrants it being stricken. Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 7 Finally, even if this Court were to consider the exhibits attached to Appellees’ motion— which Appellant argues it should not—the same reveal the fence was not completed nor given final approval when the appeal was filed by Appellant. Specifically, Appellant filed the notice of appeal with Appellees on February 17, 2023—filing the same with this Court on February 18, 2023—thereby placing Appellees on notice of the appeal. In this regard, Exhibit A attached to Appellees’ motion specifically provides: On February 6,2023, the Building Department received a copy of the survey of the property at 12721 Patricia Drive, North Royalton, Ohio. Exhibit 7; The fence construction was commenced thereafter and on February 15, 2023 in conformity with the North Royalton building permit the first inspection took place. Exhibit 4; second inspection February 23, 2023, at which time the fence was substantially completed, except for a final approval. Exhibit 5; The construction of the fence received final approval on April 5, 2023. Exhibit 6. (Emphasis provided). Therefore, based on Appellees’ own “evidence,” the construction of the fence had barely begun when the notice of appeal was filed, was not completed until February 23, 2023, and not given final approval until April 5, 2023. Therefore, Eye-Will Dev., Inc., supra would govern this situation and not Walouke, supra. As a result, Appellant’s appeal is not moot as Appellees argue. Eye-Will Dev., Inc., supra. What makes this process so insidious is the fact that the minutes approving the original variance request were not approved until April 27, 2023—the date from which the appeal deadline began accruing. Further, once Appellees were on notice of the Appeal on February 17, 2023, they should have waited to give their approval until after this underlying appeal was decided. In this regard, Appellees should not be rewarded for blatantly disregarding the appeal to “sneak” the fence into existence knowing of the pending appeal. Eye- Will Dev., Inc., supra. Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 8 IV. CONCLUSION Once the foregoing is reviewed, it is clear that Appellant’s appeal is not moot. Again, the holding of Eye-Will Dev., Inc., supra governs and the appeal should proceed as filed. In this regard, it is amazing to think that Appellees want to hide behind rhetoric to avoid being held responsible for a decision that is unconstitutional, illegal, arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence. In short, the decision to grant the fence variance is a travesty and Appellees want to be released from having to follow their own code. Therefore, based on the foregoing, Appellees’ Motion to Dismiss should be denied and the underlying appeal allowed to proceed as filed. WHEREFORE, Appellant respectfully request that this Court enter an Order: 1. Denying Appellees’ Motion to Dismiss Appellant’s Notice of Appeal; 2. Allowing all claims in this matter to proceed to the trier of fact; 3. Granting Appellant’s attorney fees and costs incurred in having to defend against this motion pursuant to Civ. R. 11 and ORC 2323.51; and 4. Awarding Appellant such further and additional relief as is just, proper, and equitable. Respectfully submitted, /s/Erik L. Walter_____________________ ERIK L. WALTER (#0078988) Dworken & Bernstein Co., L.P.A. 60 South Park Place Painesville, Ohio 44077 (440) 352-3391 (440) 352-3469 Fax Email: ewalter@,dworkenlaw.com Attorney for Plaintiff/Appellant Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 9 PROOF OF SERVICE A copy of the foregoing Plaintiff/Appellant's Reply in Opposition to Defendants'/ Appellees' Motion to Dismiss was served via email only on May 9, 2023 on: Thomas A. Kelly, tkelly@northroyalton.org Donna M. Vozar, dvozar@northroyalton.org 14600 State Road North Royalton, OH 44133 /s/ Erik L. Walter______________ ERIK L. WALTER (#0078988) Dworken & Bernstein Co., L.P.A. Attorney for Plaintiff/Appellant Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / CLMHB 10 Cloud Foundation, Inc. v. Salazar, 738 F.Supp.2d 35 (2010) 738 F.Supp.2d 35 West Headnotes (5) United States District Court, District of Columbia. CLOUD FOUNDATION, INC., et al., Plaintiffs, [1] Environmental Law Mootness v. Environmental groups' challenge to Ken SALAZAR, Secretary of government's round up and removal of the Interior, et al., Defendants. wild horses from horse range under the Administrative Procedure Act (APA) and Free- No. L09-CV-1651 Roaming Horses and Burros Act was moot, I where government had completed the gather. Aug. 25,2010. Ps U.S.C.A. § 706; Wild Free-Roaming Horses I and Burros Act, § 1, R16 U.S.C.A. § 1331. Opinion on Rehearing Sept. 29, 2010. Synopsis 1 Case that cites this headnote Background: Environmental groups brought against the federal government, alleging violations of the Administrative [2] Environmental Law Mootness Procedure Act (APA) and Wild Free-Roaming Horses and District court could grant effective relief in Burros Act. Groups filed motion for leave to amend their environmental groups' challenge under the Free- complaint and government filed motion to dismiss. Roaming Horses and Burros Act to government's construction of fences to restrict wild horses to particular areas of a range, and therefore, Holdings: The District Court, James S. Gwin, J., held that: groups' action was not moot, even though fences had already been constructed, where court could [ 1 ] groups' challenge to government's round up and removal require removal of existing fences or enjoining of wild horses from horse range was moot; construction of any new fences. Wild Free- Roaming Horses and Burros Act, § 1, R16 [2] challenge to government's construction of fences was not U.S.C.A. § 1331. moot; [3] allegations were sufficient to plead jurisdiction to challenge government's on-going policy of excluding horse |3| Environmental Law Plants and wildlife; gathers from National Environmental Policy Act (NEPA); and endangered species Environmental groups' allegations were [4] on motion to reconsider, district court did not sufficient to plead jurisdiction to challenge misunderstand, overreach or cause harm to the government government's on-going policy of excluding in considering environmental groups' second amended horse gathers from National Environmental complaint. Policy Act (NEPA) requirements, where it was undisputed that groups had standing, and challenge presented a purely legal question fit for Plaintiffs' motion granted, and defendant's motion granted in judicial decision. National Environmental Policy part and denied in part. Act of 1969, § 2 et seq., 42 U.S.C. § 4321 et seq. Defendant's motion for reconsideration denied. [4] Federal Civil Procedure Justice; Procedural Posture(s): Motion to Dismiss; Motion to prevention of injustice Dismiss for Lack of Subject Matter Jurisdiction. Federal Civil Procedure Error by court EXHIBIT Electronically Filed 05/09/2023 13:47 / BRIEF / CV 23 975442 / Confirmation Nbr. 2852393 / C WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. I Cloud Foundation, Inc. v. Salazar, 738 F.Supp.2d 35 (2010) On a motion to reconsider, a court Procedure 12(b)(1). [Dkt. 16.] The government contends must determine whether justice requires that because it has already completed the horse round-up reconsideration, and may base this determination challenged by the plaintiff environmental groups, this action on whether it patently misunderstood the is moot [Dkt. 16.] In response, the Plaintiffs argue that the parties, whether its decision reached beyond the “capable of repetition yet evading review” exception to the adversarial issues presented, or whether some mootness doctrine applies, and they also move for |eave to harm would flow from denial of the motion. amend their complaint to add claims that are not moot. [Dkt. Fed.Rules Civ.Proc.Rule 54(b), 28 U.S.C.A. 18; Dkt. 31.] For the reasons below, the Court GRANTS the Plaintiffs' motion for leave to file a second amended complaint and GRANTS IN PART and DENIES IN PART [5] Environmental Law €=» Determination, the government's motion to dismiss. Judgment, and Relief The Wild Free-Roaming Horses and Burros Act, R>16 District court did not misunderstand, overreach or cause harm to the government in U.S.C. §§1331-F^ 1340, charges the Secretary of the Interior considering environmental groups’ second with “managing] wild free-roaming horses and burros in a amended complaint on government's motion manner that is designed to achieve and maintain a thriving to dismiss challenges to policies under the natural ecological balance on the public lands.” Id. § 1333(a). Wild Free-Roaming Horses and Burros Act The Act directs that when the Bureau of Land Management and Administrative Procedure Act (APA), and (as delegate of the Secretary of the Interior) determines “that therefore, reconsideration was not warranted, an overpopulation exists on a given area of the public lands where court had granted groups' motion for and that action is necessary to remove excess animals,” the leave to amend. F^5 U.S.C.A. § 706; Wild Bureau shall “immediately remove excess animals from the Free-Roaming Horses and Burros Act, § 1, range so as to achieve appropriate management levels.” Id. § P16 U.S.C.A. §1331; Fed.Rules Civ.Proc.Rule 1333(b)(2). 54(b), 28 U.S.C.A. This action arose after the Bureau determined that there was 1 Case that cites this headnote an overpopulation of wild horses on the Pryor Mountain Wild Horse Range, located about 50 miles south of Billings, Montana. [Dkt. 13.] Consequently, in August 2009, the Bureau announced a plan to round up and remove 70 of the 190 wild horses—allegedly to prevent overgrazing and Attorneys and Law Firms maintain an ecologically sustainable population. [Dkt. 13.] *37 D. Christopher Ohly, Schiff Hardin, LLP, Washington, DC, Valerie J. Stanley, Laurel, MD, Bruce A. Wagman, Schiff When the Bureau announced the gather plan and solicited Hardin, LLP, San Francisco, CA, for Plaintiff. public comments, it issued an Environmental Assessment finding that the gather would have no significant John B. Grosko, U.S. Department of Justice, Environment environmental impact. [Dkt. 13.] Accordingly, the Bureau and Natural Resource, John S. Most, Department of Justice, declined to prepare an Environmental Impact Statement— Washington, DC, for Defendant. a document mandated for all environmentally significant agency actions by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. [Dkt. 13.] The Bureau based OPINION & ORDER this Finding of No Significant Impact in reliance upon its departmental manual's statement that “[p]rocessing ... JAMES S. GWIN, District Judge. excess wild horses and burros” is categorically excluded from NEPA's requirements. [Dkt. 13.] In this challenge to federal management of wild horses on the Pryor Mountain Wild Horse Range in southern Montana and The plaintiff environmental groups then filed this action northern Wyoming, the government moves to dismiss for lack to challenge the gather plan. [Dkt. 1.] Their first of subject-matter jurisdiction under ^Federal Rule of Civil Electronically Filed 05/09/2023 13:47 I BRIEF I CV 23 975442 / Confirmation Nbr 2852393 / CIMHB WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 Cloud Foundation, inc. v. Salazar, 738 F.Supp.2d 35 (2010) amended complaint asserted three claims: (1) the Bureau's government argues that the second amended complaint fails Environmental Assessment was arbitrary and capricious to cure the mootness defect. [Dkt. 32 at 11-14.] Second, under the Administrative Procedure Act, P^5 U.S.C. § 706, the government contends that the amendment would be both futile (because the challenge to the 1987 Custer National because it used abnormally dry baseline years to calculate Forest Plan is time-barred) and prejudicial (because the new the ecologically sustainable herd level and because it failed allegations were known to the Plaintiffs at the time of the first to consider that a smaller population threatens the herd's amended complaint and because the government would have genetic diversity; (2) the Bureau's gather plan failed to only 14 days to answer under Federal Rule of Civil Procedure adequately protect the horses' welfare, in violation of the 15(a)(3)). [Dkt. 32 at 14-17.] Wild Free-Roaming Horses and Burros Act; and (3) the Bureau's *38 categorical exclusion of excess horse removal The government's prejudice argument fails. Although the fromNEPA's requirements was arbitrary and capricious under Plaintiffs concede that they knew of the newly added the Administrative Procedure Act. [Dkt. 13.] The Plaintiffs allegations when they filed their first amended complaint, sought, among other relief, a temporary restraining order they could not have asserted those claims at that time. The against the gather. [Dkt. 13.] Plaintiffs' challenge to the Herd Management Area Plan was still before the Interior Board of Land Appeals and thus After expedited briefing and argument, this Court denied the was not administratively exhausted. [Dkt. 34 at 5.] And the Plaintiffs' TRO request. The Plaintiffs did not appeal that Plaintiffs' challenge to the northern boundary fence was not denial. The Bureau then conducted the gather in September yet ripe; the government did not begin to solicit bids to 2009, removing 57 horses from the Range. The Bureau sold construct the fence until June 2010. [Dkt. 34 at 5.] Moreover, five of those horses and gave the other 52 for adoption. [Dkt. the Plaintiffs' willingness to consent to an extension of time 16-2 atl 5(c)-(e).] for the government to answer the second amended complaint stops the government's concern of prejudice. [Dkt. 34 at 6-7.] The government now moves to dismiss this action as moot, contending that because the gather is complete, this Court can The government is also incorrect that the Plaintiffs' claim no longer grant any effective relief. [Dkt. 16.] In response, the challenging the 1987 Custer National Forest Plan is time- Plaintiffs argue that the Bureau's allegedly unlawful gather is barred. [Dkt. 32 at 15 n.3.] Although “an amendment adding “capable of repetition yet evading review.” [Dkt. 18.] a new ground for relief to the complaint must contend with the applicable statute of limitations,” F^L/bnes v. Bernanke, The Plaintiffs also move for leave to file a second amended complaint. [Dkt. 31.] Their proposed second amended 557 F.3d 670, 674 (D.C.Cir.2009), the 1987 Custer National complaint contains two changes from the first amended Forest *39 Plan that the Plaintiffs challenge is not “final complaint. [Dkt. 31-2.] First, it abandons theNEPA claim that agency action” that triggers the statute of limitations, see the Bureau's Environmental Assessment for the September F^O/ho Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 2009 gather was deficient. [Dkt. 31-2.] Second, it adds three 732, 118 S.Ct. 1665,140 L.Ed.2d 921 (1998). “Final agency allegations to the Wild Free-Roaming Horses and Burros Act action” did not occur until the Bureau proposed to construct claim: (1) the Bureau's May 2009 Herd Management Area a fence along the boundaries outlined in the 1987 plan. Thus, Plan violated the Act; (2) the Bureau's construction of a fence adding the claim challenging the 1987 Custer National Forest at the Range's northern boundary violated the Act; and (3) Plan is not futile on statute-of-limitations grounds. the June 1987 Custer National Forest Plan and the May 2009 Herd Management Area Plan violated the Act by excluding Accordingly, because the government has not shown “any areas historically used by the herd. [Dkt. 31-2 at ffl] 76-78.] apparent or declared reason—such as undue delay, bad faith The third claim—challenging the Bureau's use of categorical or dilatory motive on the part of the movant, repeated failure exclusions for horse gathers—is unchanged from the first to cure deficiencies by amendments previously allowed, amended complaint. [Dkt. 31-2 at^ 80.] undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”—for denying Notwithstanding Federal Rule of Civil Procedure 15(a)'s direction that leave to amend “shall be freely given when leave to amend, v. Davis, 371 U.S. 178, 182, justice so requires,” the government opposes the Plaintiffs' 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Court grants the motion for leave on two grounds. [Dkt. 32.] First, the Plaintiffs' motion. Electronically Filed 05/09/2023 13:47 I BRIEF I CV 23 975442 I Confirmation Nbr. 2852393 I CIMHB WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. 3 Cloud Foundation, inc. v. Salazar, 738 F.Supp.2d 35 (2010) such a forward-looking challenge and [that] the request for [1] The government nevertheless argues that all of the declaratory relief is ripe.’ ” at 321 (citation omitted; Plaintiffs* claims in both complaints became moot when the alteration in original). However, the Plaintiffs have met Bureau completed the gather in September 2009. [Dkt. 16-1 both of these requirements. They have adequately alleged at 10-13; Dkt. 32 at 11-14.] The Plaintiffs' second amended —and the government does not dispute—their standing to complaint drops their NEPA challenge to the September challenge the Bureau's compliance with NEPA requirements. 2009 gather, but in any event, the government is correct See P^F/a. Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 that the September 2009 challenge is moot. Faced with a nearly identical challenge to a series of horse gathers, the (D.C.Cir.1996) (en banc) (“[A] plaintiff may have standing D.C. Circuit held that once the gathers had been completed, to challenge the failure of an agency to abide by a procedural it became “ ‘impossible for the court to grant any effectual requirement only if that requirement was ‘designed to protect relief whatever’ with respect to the challenged gathers,” and some threatened concrete interest* of the plaintiff... [T]he plaintiff must show that the government act performed thus the challenge was moot. for Animals, Inc. v. without the procedure in question will cause a distinct risk to U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C.Cir.2006) a particularized interest of the plaintiff”) (citation omitted). (quoting Beethoven.com LLC v. Librarian of Cong., 394 F.3d [See Dkt. 31-2 at 4-11 (Plaintiffs' particularized interests 939, 950 (D.C.Cir.2005)). There—as here1 —the plaintiffs