Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 1 of 9
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`HONORABLE RONALD B. LEIGHTON
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`ANIMAL LEGAL DEFENSE FUND,
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`CASE NO. C18-6025RBL
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`v.
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`Plaintiff,
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`OLYMPIC GAME FARM, INC.,
`ROBERT BEEBE, JAMES BEEBE, and
`KENNETH BEEBE,
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`ORDER DENYING MOTION TO
`DISMISS PUBLIC NUISANCE
`CLAIM
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`Defendants.
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`THIS MATTER is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Public
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`Nuisance Claim [Dkt. #22]. The Court has reviewed the materials filed for an against the
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`motion. Oral argument is unnecessary. For the reasons below, the motion is DENIED.
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`I. FACTUAL BACKGROUND
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`This case alleges the mistreatment and unsafe captivity of numerous animals kept at a
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`roadside zoo in Sequim, Washington known to the public as the Olympic Game Farm (OGF).
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`Theories of liability include: 1) violation of the Endangered Species Act (ESA), 2) violation of
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`the Washington State Animal Cruelty Laws (RCW 16.52.205), and 3) maintaining a public
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`nuisance (RCW 7.48.130). Defendants choose to isolate the Public Nuisance claim in an attempt
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`to prune this “Bonzai tree” with tweezers and fingernail clippers. The first claim is the ESA
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 1
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`Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 2 of 9
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`action which protects federally listed and specially protected species from killing, wounding,
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`harming, injuring and harassing animals like: endangered gray wolves, endangered lions,
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`endangered tigers, threatened brown bears and threatened Canada Lynx. The full panoply of
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`remedies sought in this case are available under the first two theories. Nevertheless, the Court
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`will analyze the attack on the third theory: public nuisance.
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`II. STANDARD OF REVIEW
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`Under Rule 12(c) of the Federal Rules of Civil Procedure, “a party may move for
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`judgment on the pleadings” after the pleadings are closed “but early enough not to delay trial.” A
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`Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion to dismiss for failure to
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`state a claim, and therefore the same legal standard applies. See Cafasso v. Gen. Dynamics C4
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`Sys., Inc., 637 F.3d 1047, 1055 n. 4 (9th Cir. 2011). “All allegations of fact by the party
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`opposing the motion are accepted as true, and are construed in the light most favorable to that
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`party.” Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist
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`Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). Dismissal is improper except in
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`extraordinary cases. Corsican Prods. v. Pitchess, 338 F.2d 441, 442 (9th Cir. 1964).
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`When considering a Rule 12 motion, the Court must determine whether the plaintiff has
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`alleged sufficient facts to state a claim which is “plausible on its face.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
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`claim is facially plausible if the plaintiff has pled “factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
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`at 678 (citing Twombly, 550 U.S. at 556). The court “accepts the well-pleaded factual allegations
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`of the complaint as true and construe them in the light most favorable to plaintiffs.” OSU Student
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`Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012). The plaintiff must provide more than
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 2
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`Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 3 of 9
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`“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” but
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`need not provide detailed factual allegations. Twombly, 550 U.S. at 555. A well-pleaded
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`complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
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`improbable, and that a recovery is very remote and unlikely. Id. at 569, n. 13. Plaintiff’s
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`allegations need only amount to more than “sheer possibility.” Iqbal, 556 U.S. at 678.
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`“[A]ll claims at the pleading stage . . . require[] development.” OSU Student Alliance, 69
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`F.3d at 1077. For this reason, “[t]he plaintiff’s failure to prove the case on the pleadings [would]
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`not warrant dismissal.” Id. at 1078. As the Ninth Circuit has explained, “All that matters at this
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`stage is that the allegations nudge this inference ‘across the line from conceivable to plausible.’”
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`Id. (quoting Iqbal, 556 U.S. at 1951). When the allegations in the complaint are plausible, “it is
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`not unfair to require the opposing party to be subjected to the expense of discovery and
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`continued litigation.” Id. Applied recently, the Supreme Court held that where plaintiffs state
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`“simply, concisely, and directly events that, they alleged, entitled them to damages from the city”
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`plaintiffs had “informed the city of the factual basis for their complaint” and were “required to
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`do no more to stave off threshold dismissal for want of an adequate statement of their claim.”
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`Johnson v. City of Shelby, Miss., ––– U.S. ––––, 135 S. Ct. 346, 347, (2014) (per curiam)
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`(reversing dismissal of suit and citing Fed. R. Civ. P. 8(a)(2) and (3), (d)(1), (e)).
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`As explained below, accepting all facts alleged by Plaintiff as true and provable, Animal
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`Legal Defense Fund (ALDF) has stated a claim for public nuisance on the face of its Complaint.
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`A. Public Nuisance in Washington.
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`III. DISCUSSION
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`Washington has codified the requirements for a nuisance action. Washington defines
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`nuisance as “unlawfully doing an act, or omitting to perform a duty, which act or omission either
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`annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 3
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`renders other persons insecure in life, or in the use of property.” Wash. Rev. Code § 7.48.120.
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`Washington’s nuisance statute also distinguishes public nuisances from private nuisances. A
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`public nuisance is defined as “one which affects equally the rights of an entire community or
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`neighborhood, although the extent of the damage may be unequal.” Wash. Rev. Code §7.48.130;
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`cf. Wash. Rev. Code § 7.48.150 (defining private nuisance as any nuisance that is not included in
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`the definition of a public nuisance).
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`Washington’s nuisance statute enumerates nine specific prohibited public nuisances: (1)
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`depositing an animal carcass or entrails in a public area; (2) depositing an animal carcass in a
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`watercourse, stream, pond, or public highway; (3) obstructing a river or harbor; (4) obstructing a
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`public highway or municipal transit vehicle; (5) manufacturing gun powder; (6) establishing
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`powder magazines near towns or dwellings; (7) creating obnoxious exhalations or smells
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`dangerous to public health; (8) illegally selling intoxicating liquors; and (9) failing to cover or
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`fence off excavated wells, septic tanks, or cesspools. See Wash. Rev. Code § 7.48.140; see also
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`6A Washington Practice: Washington Pattern Jury Instructions – Civil, WPI 380.02, Westlaw
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`(6th ed., database updated Dec. 2017). Although Washington courts have allowed other actions
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`or inactions to form the basis of a public nuisance claim, this enumerated list is instructive
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`because it confirms the legislature was conforming public nuisance to accepted and known
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`public threats. See, e.g., Kitsap County v. Kitsap Rifle & Revolver Club, 337 P.3d 328, 343
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`(Wash Ct. App. 2014) (operation of a shooting range without adequate facilities to confine
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`bullets to the property constituted a public nuisance). Furthermore, the Washington legislature
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`has expressed disfavor for nuisance claims that target farm operations, and expressed its intent
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`that agricultural activities, including livestock management, conducted on farmland “be
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 4
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`Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 5 of 9
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`protected from nuisance lawsuits,” and that such practices are presumed not to be a nuisance.
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`Wash Rev. Code. §§ 7.48.300, .305. This zoo is no “farm.”
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`Washington also limits the individuals who may file a public nuisance action. Generally,
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`a nuisance claim can be brought by “any person whose property is, or whose patrons or
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`employees are, injuriously affected or whose personal enjoyment is lessened by the nuisance.”
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`Wash. Rev. Code § 7.48.020. But in the case of a public nuisance, a person may only maintain a
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`civil action if the nuisance is also “specially injurious to himself or herself but not otherwise.”
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`Wash. Rev. Code § 7.48.210. The Washington Supreme Court “treat[s] ‘specially injurious’
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`harms needed for public nuisance claims the same as ‘specific and perceptible’ ‘injuries in fact’
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`needed for noneconomic claims.” Chelan Basin Conservancy v. GBI Holding Co., 413 P.3d 549, 561
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`(Wash. 2018). Moreover, for a private party to bring a public nuisance claim, the plaintiff must show
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`special injury that is distinct from what has been suffered by the general public. See, e.g., Sound
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`Mind & Body, Inc. v. City of Seattle, 122 Wash. App. 1074 (table), 2004 WL 1814330, at *2 (2004)
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`(unpublished opinion) (holding that plaintiff’s alleged injuries were not different from those suffered
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`by the general public). If a private party cannot show specific injury over and above the injury
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`suffered by the general public, the nuisance can only be abated by public authorities. Lampa v.
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`Graham, 36 P.2d 543, 544 (Wash. 1934).
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`OGF contends that ALDF is not entitled to maintain a nuisance action because it has not
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`alleged facts showing that it has suffered a “special injury” as part of its community or
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`neighborhood. RCW 7.48.210 (“A private person may maintain a civil action for a public
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`nuisance, if it is specially injurious to himself or herself but not otherwise.”). Reviewing this
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`provision last year, the Washington Supreme Court explained that the special injury requirement
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`“is not a particularly high bar,” and “[i]njury to the aesthetic appeal and environment of an area
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`is sufficient to support standing if the plaintiff establishes that he or she uses that area for
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`ORDER DENYING MOTION TO DISMISS
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`Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 6 of 9
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`recreational purposes.” Chelan Basin Conservancy v. GBI Holding Co., 190 Wash.2d 249, 271,
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`413 P.3d 549, 560–61 (Wash. 2018) (comparing requirement to standing and citing Article III
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`standing cases).
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`In Chelan, a lake conservation group brought suit against the private owner of a landfill
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`in a lake, who many years after filling part of the lake, had been granted permission by the city
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`of Chelan to subdivide the filled land. The Conservancy sought removal of the landfill pursuant
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`to the public trust doctrine. The State Supreme Court granted review noting that one of the three
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`issues to be decided on appeal was “whether the Conservancy has standing” to bring a public
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`nuisance action based on an alleged breach of the state’s public trust doctrine. 190 Wash.2d at
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`259. The court noted that there are many types of public nuisance actions, and that a plaintiff
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`must be “specially injured” in order to have standing to raise a public trust claim, “but that
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`requirement is not a particularly high bar.” Id. at 272. In this regard, the court noted that RCW
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`7.48.210 “does not indicate the injury needed to satisfy that requirement is more demanding or
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`exacting than the injury needed for noneconomic standing generally,” thus, “in the absence of a
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`statutory definition, we will treat ‘specially injurious’ harms needed for public nuisance claims
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`the same as ‘specific and perceptible’ ‘injuries in fact’ needed for noneconomic claims.” Id.
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`The court noted that “injury to the aesthetic appeal and environment of an area is
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`sufficient to support standing if the plaintiff establishes that he or she uses that area for
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`recreational purposes.” Id. at 273 (citing Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972)).
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`Thus, the court held “The Conservancy satisfies that showing. Its members claim, with detail,
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`that they are recreational users of Lake Chelan and that the Three Fingers fill obstructs their
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`desire and right to use navigable waters over the property during the lake’s high-water season.”
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`Id. “We hold the harms alleged by the Conservancy’s members are sufficiently distinct from the
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`ORDER DENYING MOTION TO DISMISS
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`general public to satisfy the standing requirements of RCW 7.48.210. Moreover, that the
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`Conservancy’s members have never been able to use the lake waters over GBI’s property despite
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`their desire to do so shows their injury is real, not just speculative.” Id. In reaching its
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`determination, the court reviewed and rejected Lampa v. Graham, 179 Wash. 184 (1934), which
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`is cited by OGF in support of its motion. Compare id. with Dkt. # 22 at 7.
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`Chelan strongly supports ALDF’s nuisance claim. Like the plaintiff in that case, ALDF is
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`a public interest organization whose members have been “specially injured” by Defendants’
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`nuisance because, as animal lovers and advocates, they visited the OGF for recreational purposes
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`based on the mistaken belief that OGF was caring for exotic animals, when in fact OGF is
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`mistreating and abusing those animals, which left ALDF’s members emotionally upset and
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`unable to return to OGF for recreational enjoyment. As in Chelan, the harms alleged by ALDF’s
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`members are sufficiently distinct from the general public to satisfy the standing requirements of
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`RCW 7.48.210. ALDF’s members would return to OGF for their recreational enjoyment if the
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`housing conditions improved, or they would visit the animals if they were moved to a law-
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`abiding sanctuary.
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`The violation of federal and state laws also supply a predicate for a public nuisance
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`action. Miotke v. City of Spokane, 101 Wash. 2d 307, 329, 678 P.2d 803, 815 (1984) (“In short, it
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`is clear from the federal and state statutory schemes . . . that the discharge of pollutants into state
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`waters is prohibited unless authorized by a permit.”); id. at 330 (finding that even though the
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`state law provision at issue (RCW 90.48) did not provide a private right of action, a discharge
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`violating the statute “constitutes a nuisance . . . and entitled plaintiffs to recover damages”); see
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`also Tiegs v. Boise Cascade Corp., 83 Wash.App. 411, 416, 922 P.2d 115, 118–19 (Wash. Ct.
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`App. 1996) (affirming jury instruction stating that “A violation of this statute constitutes a
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 7
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`nuisance,” and commenting “Miotke’s recognition of an action for nuisance based upon a
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`defendant’s violation of a statute is supported by 8 Thompson on Real Property, Thomas
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`Edition.”).
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`ALDF has alleged that Defendants’ failure to abide by the federal Endangered Species
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`Act, as well as alleged violations of Washington State animal cruelty laws creates a public
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`nuisance. Defendants admit one of these allegations, namely that they are not accredited but
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`“possess or display Roosevelt Elk.” This is an admitted violation of Washington law at WAC
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`§ 220-450-030(2) which makes it unlawful for a non-accredited facility to possess such a
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`species. Thus, even aside from the allegations of violations of animal cruelty laws, this single
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`admission supports ALDF’s public nuisance claim on the pleadings. Cf. Colo. Div. of Wildlife,
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`843 P.2d 662 (possession of cervids in violation of state regulation had “potential to impact both
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`the agricultural industry and wildlife resources of the state” and was a public nuisance to be
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`abated).
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`The Complaint alleges that Defendants are also violating state laws by inhumanely
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`confining not only federally endangered species, but other animals as well. Defendants are
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`alleged to be violating Washington State animal cruelty laws which protect all animals from
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`knowing or reckless infliction of unnecessary pain or suffering, or the failure to provide
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`necessary shelter, rest, sanitation, space, or medical attention where the animal suffers
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`unnecessary or unjustifiable pain as a result of the failure. RCW 16.52.207. Second, Defendants
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`are alleged to be violating state animal cruelty laws by intentionally inflicting substantial pain
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`and causing physical injury to the animals within its care, including, but not limited to, gray
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`wolves, lions, tigers, brown bears, and Canada lynx. See RCW 16.52.205. Third, Defendants are
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`alleged to be violating the Washington State Endangered Species Act, by possessing species the
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 8
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`Case 3:18-cv-06025-RBL Document 30 Filed 05/21/19 Page 9 of 9
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`State has designated as endangered: the gray wolf, Canada lynx, and grizzly bear. See WAC 220-
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`610-010. As in Chelan and Miotke, it is Defendants’ violation of state laws that is the basis of
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`ALDF’s public nuisance claim.
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`Plaintiff has met the low bar of standing in a public nuisance context. Defendants’
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`A
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`Ronald B. Leighton
`United States District Judge
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`Motion to Dismiss is DENIED.
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`IT IS SO ORDERED.
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`Dated this 21st day of May, 2019.
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`ORDER DENYING MOTION TO DISMISS
`PUBLIC NUISANCE CLAIM - 9
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