LAWRENCE K. KARLTON, District Judge.
Pursuant to Eastern District Local Rule 220 and Federal Rule of Civil Procedure 15, Plaintiffs Irvine Leen and Aleta Leen (collectively "Plaintiffs"), and Defendants Harold Thomas, John Lane, Michael Ramsey, Sandra Morey, and former defendant Charlton Bonham (collectively, "Defendants") by and through their respective counsel, hereby stipulate as follows:
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and through the Parties hereto through their undersigned counsel of record, that:
FOR GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that:
Plaintiffs may file a Third Amended Complaint, which deletes any and all references to Mr. Bonham, and fixes minor typographical errors. Defendants shall file their responses to the Third Amended Complaint on or before August 15, 2014.
Original document: C:\Documents and Settings\rching\Desktop\720409.SAC 7-7-14.wpd
Revised document: C:\Documents and Settings\rching\Desktop\720409.Third Amended Complaint.7.24.14.ka.wpd
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Plaintiffs Irvine H. Leen and Aleta Leen allege for this Complaint herein as follows:
1. Plaintiffs Irvine Leen and Aleta Leen are, and at all relevant times mentioned herein were, residents of the County of Butte, California.
2. Plaintiffs are informed and believe that defendant Harold M. Thomas ("Mr. Thomas") is, and was at all times mentioned in this complaint, an employee of the California Department of Fish and Wildlife (formerly known as the California Department of Fish & Game), and that Mr. Thomas is also an employee and/or agent of the Butte County District Attorney's Office. Plaintiffs are informed and believe that Mr. Thomas reports to the California State Bar his current business address to be 1416-9
3. Plaintiffs are informed and believe that defendant John Lane ("Mr. Lane") is, and was at all times mentioned in this complaint, an agent of Mr. Thomas, Mr. Ramsey, the Butte County District Attorney's Office and/or the California Department of Fish and Wildlife. Mr. Lane is named in his individual capacity because he facilitated, aided and abetted the unlawful conduct of Mr. Thomas.
4. Plaintiffs are informed and believe that defendant Sandra Morey ("Ms. Morey") is, and was at all relevant times mentioned in this complaint, an employee of the California Department of Fish and Wildlife. Ms. Morey is named in her individual capacity because she facilitated, aided, and abetted the unlawful conduct of Mr. Thomas.
5. Plaintiffs are informed and believe that defendant Jenny Marr ("Ms. Marr") is, and was at all relevant times mentioned in this complaint, an employee of the California Department of Fish and Wildlife. Ms. Marr is named in her individual capacity because she facilitated, aided and abetted the unlawful conduct of Mr. Thomas.
6. Plaintiffs are informed and believe that defendant Michael Ramsey ("Mr. Ramsey") is the Butte County District Attorney, as well as an employee of that office. Mr. Ramsey is named in his individual capacity. He was and remains Mr. Thomas's supervisor, he had direct and indirect knowledge of this it
7. Sometime in 2012, the California Department of Fish and Game changed its official name to the California Department of Fish and Wildlife. For ease of reference, throughout this complaint, this state agency shall be referred to as "Fish and Game."
8. Plaintiffs are ignorant of the true names and capacities of defendants sued as Does 1 through 20, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained.
9. Plaintiffs are informed and believe, and thereon allege that at all times herein mentioned, defendants, including the Doe defendants, and each of them, were agents, servants, alter egos and/or employees of their defendants, and in doing the things hereinafter alleged, were acting within the scope of their authority as agents, servants, and employees, and with the permission and consent of their co-defendants.
10. Plaintiffs Irvine Leen and Aleta Leen are residents of Oroville, California, which is located in Butte County.
11. Defendants Mr. Thomas
12. The claims and events referenced in this complaint occurred in or arose from Oroville, County of Butte, State of California.
13. This case is subject to the unlimited jurisdiction of the Superior Court in that the amount in controversy exceeds $50,000.
14. This case was removed by defendants Mr. Thomas, Mr. Lane and Mr. Ramsey to the United States District Court, Eastern District of California on or about June 18, 2012.
15. Plaintiff Irvine Leen is a farmer and a rancher. He grazes his cattle on portions of real property (the "Property") that he owns with his wife, plaintiff Aleta Leen. The Property is located in Oroville, California. An irrigation ditch runs through the Property, which is principally fed from agricultural runoff flowing from properties upstream (the "Irrigation Ditch"). Plaintiffs have a License for the Diversion and Use of Water (the "Water License") issued and/or overseen by the California State Water Resources Control Board, Division of Water Rights ("SWRCB"). The Water License allows for the diversion of water from the irrigation ditch for the purpose of irrigating the Property.
16. In or about the summer of 2002, Mr. Leen's neighbor, Frank Green, cleared out debris (e.g., old bicycles, tires, car batteries, cans, bottles) and brush from the Irrigation Ditch. At the time, the water in the Irrigation Ditch was very low, and had insufficient flow to continue on past the Leens' property lines. As such, it had no connectivity, at the time, with other downstream waterways. When the brush was cleared away, Mr. Green placed matting along the banks to prevent erosion. In the turn of one season, the Irrigation Ditch vegetation returned.
17. In or about October 2002, a Fish and Game deputy reported observations of persons clearing out debris and brush from the Irrigation Ditch. On the eve of the expiration of the statute of limitations, on October 15, 2003, Mr. Thomas and Mr. Ramsey filed a criminal complaint against Mr. Leen for clearing out garbage and debris from the Irrigation Ditch. The charges included the unlawful obstruction of a stream, failing to obtain a streambed alteration permit, depositing silt into the Irrigation Ditch such that it is deleterious to fish, plants or bird life, and trespass. Mr. Leen accepted pretrial diversion in October 2004, on the understanding that he had no water license rights and that he needed to work with Fish and Game to restore historical waterways and wetlands on his Property. Thus, the criminal case proceedings were suspended from October 2004 to August 2006, during which time Mr. Leen tried to meet the ever-increasing regulatory demands by Mr. Thomas, Ms. Marr, and Mr. Lane to replace and restore alleged natural waterways and wetlands on plaintiffs' Property. From August 2006 to January 2010, Mr. Leen was engulfed in court proceedings in an effort to reinstate his plea of not guilty and proceed to trial on the criminal charges. In or about March 2011, after Mr. Thomas had exhausted all appeals opposing Mr. Leen's right to try his case to jury, the matter proceeded to trial. On March 10, 2011, a jury in the criminal case delivered a verdict of not guilty on all charges.
18. Concurrent with but separate from the criminal prosecution, Mr. Thomas embarked upon a scheme to misuse his authority as a regulator (i.e., an employee of Fish and Game) to convince the SWRCB to unlawfully withhold and restrain plaintiffs' rights under the Water License. Mr. Thomas was aided and abetted by Ms. Marr, Ms. Morey and Mr. Lane, who made patently erroneous statements to the SWRCB in order to unlawfully restrain and take from plaintiffs their right to make lawful use of the Irrigation Ditch. In a series of private emails over a ten-year period, and continuing after the criminal case concluded, Mr. Thomas used his influence and access to regulatory agencies to obstruct and delay plaintiffs' efforts to obtain from the SWRCB a simple and routine amendment to the Water License: adjusting the point of diversion
19. On February 6, 2013, the SWRCB issued to plaintiffs an amendment to their Water License. This concluded a decade-long regulatory nightmare for plaintiffs, whereby they were threatened with regulatory penalties and criminal prosecution if they used or attempted to maintain the Irrigation Ditch.
20. Because Mr. Thomas was both a prosecutor and a state regulator, he possessed unique powers and access. Aided and abetted by the other defendants named herein, Mr. Thomas has grossly abused those powers. He was relentless, refusing to acknowledge the clear evidence that his environmental theories were wrong and that there was nothing to restore based on aerial photographs dating back to the 1940s. At all relevant times, Mr. Thomas's unlawful conduct was open and known, ratified and supported by his supervisor, Mr. Ramsey. In or about 2012, Mr. Bonham was specifically informed about Mr. Thomas's conduct and actions, as alleged herein, and Mr. Bonham thereafter ratified and supported such actions. Minimal supervision and review of Mr. Thomas's actions would have prevented much of the harm suffered by plaintiffs at his hands for the past decade.
21. Plaintiffs' troubles started in the summer of 2002, when they did what many owners of agricultural property do — they cleared away debris and brush. The Irrigation Ditch in this case was particularly troublesome because the property adjacent to the ditch had been used for outdoor concerts by the prior owners leaving behind an accumulation of garbage. There was also an abandoned beaver dam. The combination of these objects obstructed the flow of water and caused it to be dispersed away from the Irrigation Ditch. The month of August was the best time for this project because the water flow was reduced to a mere trickle and there was no connectivity to downstream water on other properties. Finally, there were no fish in the Irrigation Ditch aside from mosquito fish that were planted in local waterways by the County as mosquito abatement, and these were expected to die off or be eaten by animals during the summer months. Thus, plaintiffs were removing obstructions and they did so at a time when it would be physically impossible to cause harm to fish in the Irrigation Ditch or downstream.
22. This matter was initiated by a citation issued by Fish and Game. Mr. Thomas thereafter initiated criminal proceedings, and among the contentions in that case was that the manmade Irrigation Ditch was a natural waterway, and that clearing the debris out of the ditch was an impermissible "streambed alteration." In addition, Mr. Thomas charged that Mr. Leen illegally deposited silt into the Irrigation Ditch, which potentially harmed fish in the waterway or downstream. Mr. Thomas also contended that Mr. Leen did not have a water right or water license, and that he therefore unlawfully diverted water through his irrigation ditch. Mr. Thomas was wrong about all of the facts giving rise to these charges.
23. Believing that he did not possess a water license, Mr. Leen agreed in August 2004 to pretrial diversion, which meant that criminal proceedings would be suspended and Mr. Leen would work with Fish and Game to prepare and implement a "Restoration Plan" for the Property. This Restoration Plan would restore allegedly natural waterways and wetlands. Upon successful completion of the conditions of pretrial diversion, the criminal charges would be dismissed.
24. For the next two years and at considerable expense, plaintiffs hired consultants and experts, and tried without success to respond to false claims and meet unreasonable demands interposed by Mr. Thomas, Ms. Marr and Mr. Lane.
a. During that time, plaintiffs complained that Mr. Thomas and other Fish and Game representatives repeatedly trespassed on their Property to take measurements and conduct investigations. In one instance, Fish and Game representatives left a gate open in an area where livestock were corralled.
b. Mr. Leen proposed several restoration plans, at great cost to him and his family, but Mr. Thomas, Mr. Ramsey, Mr. Lane and Ms. Marr rejected each of them. In order to increase the financial pressure on plaintiffs to consent to their arbitrary and capricious regulatory demands, Mr. Thomas and Ms. Marr concocted a plan whereby they would contend that plaintiffs had destroyed wetlands. Mr. Thomas would then be able to seek steep monetary retribution from the Leens for allegedly destroying valuable natural resources. As of June 2005, Ms. Marr, who had not yet been to the Property, nonetheless, out of loyalty to her colleague, Mr. Thomas, contacted two economics professors at California State University at Chico to request that they quantify the annual ecological services value of wetlands.
c. Mr. Thomas, Ms. Marr, Mr. Lane and Ms. Morey, among others, also took the position that the path of the irrigation ditch should be modified so as to restore it to its alleged natural and historic conditions. In fact, at the behest of Mr. Thomas and Mr. Ramsey, and before ever seeing the Leens' Property, Ms. Marr signed declarations, dated August 2, 2005 and March 14, 2006, in which she made knowingly false statements about the topography on the Leens' Property so that they could ensure that the Leens' proposed restoration plan would never be approved by the court. After Ms. Marr finally inspected the Leens' Property, she continued to submit false evidence about the characteristics and conditions of the Leens' Property.
d. Ms. Marr claims to have spent hundreds of hours researching the history of plaintiffs' property but yet never mentioned or acknowledged the historical maps that plaintiffs' expert, Mr. Brown, located, demonstrating that the irrigation ditch had been in place since before 1947 and there were no natural waterways to be restored. As such, Ms. Marr offered drawings, diagrams, and various opinions to the SWRCB without any rational basis aside from her desire to deliver what Mr. Thomas had improperly requested — an official agency objection to the proposed amendment to the POD. In fact, Ms. Marr confessed to Mr. Thomas and her colleagues at Fish and Game that she had no experience in the field of water rights. Thus, in an email to Sharon Stohrer, also with Fish and Game, dated June 23, 2009, Ms. Marr asked for assistance in writing the protest letter requested by Mr. Thomas, admitting "I know about a dime's worth about water rights. . . ." Two days later, Ms. Marr wrote to Mr. Thomas, by email dated June 25, 2009, acknowledging that Fish and Game had no legal or other basis on which to protest plaintiffs' water rights:
Then after preparing a draft of the protest letter, Ms. Marr states:
From this point forward, Mary Lisa Lynch took over the process of completing the protest letter, which was ultimately submitted under Ms. Morey's signature, by letter dated July 6, 2009. The exchange here demonstrates once again that defendants (i.e., Mr. Thomas, Ms. Marr and Ms. Morey) had no rational basis on which to oppose the proposed amendment to the POD. Ms. Lynch states in an email dated July 5, 2009:
Thus, the July 6, 2009 letter was prepared by Ms. Marr and Ms. Lynch, and signed by Ms. Morey without regard to the facts, law or regulations.
25. The precise nature of the natural and historic conditions on the Property was among the issues addressed by plaintiffs' consultants. Mr. Leen and his consultants tried repeatedly to demonstrate to Mr. Thomas, Mr. Ramsey, Mr. Lane, and Ms. Marr that those defendants had it wrong on this point. Mr. Leen and his consultants demonstrated this by reference to historical photographs dating back many decades. These photographs demonstrated that the Irrigation Ditch had been in place since before the 1940's and that there was no water flowing in the areas that Mr. Thomas and others contended were the natural waterways, now removed due to the alleged illegal diversion by Mr. Leen. The most concise record of this explanation is in the transcript of proceedings on March 8 and 9, 2011, which memorializes the testimony of Mr. Leen's expert, Damon Brown, who qualified at the criminal trial as an expert in hydrogeology. Mr. Lane was present in court during this testimony, present to assist Mr. Thomas and potentially testify as a rebuttal witness. Mr. Brown meticulously explained, using historical aerial photographs going back over 60 years, that there was no geological evidence of these so-called natural braids or historical wetlands. In fact, the Irrigation Ditch, which Mr. Thomas claimed was created by plaintiffs' alleged illegal obstruction and/or diversion of waterflow (and therefore needed to be removed), could be seen in aerial photographs dating back to 1947. Notable in each photograph is the absence of any sign of waterways in the area in which the so-called natural waterways once flowed and now needed to be "restored." Mr. Thomas has never offered a response to this compelling evidence of the error in his core contention in this case. Indeed, Ms. Marr, Mr. Lane, and Ms. Morey, who have never hesitated to send letters and declarations to the SWRCB offering opinions to the contrary, were not called as witnesses to rebut Mr. Brown's testimony. As well, Mr. Thomas presented no expert testimony at that trial. Thus, Mr. Thomas offered no admissible evidence of the so-called natural and historic conditions on the Property.
26. As noted, Mr. Thomas had earlier claimed that Mr. Leen had no water license for the Irrigation Ditch. This false claim served as the basis for Mr. Thomas's, Mr. Lane's, and Ms. Marr's demand that plaintiffs cease using the Irrigation Ditch and "restore" the natural waterways on the Property. On June 29, 2006, Mr. Leen received a letter from the SWRCB informing him that he did, in fact, enjoy water rights on his Property.
27. Based on this information, which meant that there was nothing to restore and, more importantly, that the proposed Restoration Plan advocated by Mr. Thomas and those assisting him would deprive him of a vested property right, Mr. Leen went to court and asked to be relieved of his obligations under the pretrial diversion agreement. Mr. Leen was prepared to go to trial to prove his case. This motion in the criminal case unleashed a firestorm of activity from Mr. Thomas and those who he enlisted to aid and abet his efforts, as he struggled to silence Mr. Leen, prevent the trial, and stop the SWRCB from approving Mr. Leen's application for an amendment to his Water License.
28. From 2006 through January 2011, Mr. Thomas filed multiple writs and appeals in an effort to block Mr. Leen from proceeding to trial in the criminal case, as was his right as a prosecutor. Mr. Thomas concurrently stepped outside of his role as prosecutor and attempted to manipulate and control the regulatory proceedings in order to achieve an advantage in the criminal proceedings. After the jury in the criminal case acquitted Mr. Leen on all charges and the criminal case was forever closed, Mr. Thomas continued, directly and through those he enlisted to assist him, to stall and disrupt the decision making process of the SWRCB.
29. After plaintiffs received word from the SWRCB in June 2006 that they had a lawfully-issued and valid Water License, plaintiffs noticed that the point of diversion ("POD")
30. Thereafter, in or about February 2008, Mr. Thomas and Mr. Lane made repeated false statements, improper threats, and demands in an attempt to have the SWRCB rescind its approval of the amended Water License. For instance, Mr. Lane called John O'Hagan ("Mr. O'Hagan"), an employee with the SWRCB, demanding to know why the SWRCB had approved the correction to the POD of the Water License without first complying with the California Environmental Quality Act ("CEQA"). Notably, Mr. Lane made his improper threats and demands without the benefit of having inspected the Property and the alleged illegal waterway, and therefore he had no objectively reasonable basis on which to make this assertion. Mr. Lane continued to assert that the proposed amendment to the Water License lacked compliance with CEQA without ever disclosing any factual or scientific basis for making that assertion. In fact, when Mr. Lane made that same assertion to the SWRCB on September 10, 2012, he had been provided the historical maps, demonstrating that the irrigation ditch had been in place since 1947 without any significant changes in site conditions or adverse environmental impacts. The "CEQA" claim was yet another knowingly false and misleading statement intended to prevent the restoration of plaintiffs' property rights. On February 14, 2008, Mr. O'Hagan wrote to plaintiffs, stating that the information provided to him by Mr. Thomas and Mr. Lane showed that the POD was "new." Mr. Thomas was listed as a copyee on that letter, prompting Mr. Thomas, upon receiving the letter, to send Mr. O'Hagan an e-mail thanking him for the letter and notifying him of the date of Mr. Leen's sentencing.
31. Plaintiffs, through their attorney, attempted to set the record straight. They were not, however, provided access to much of the evidence (e.g., certain mocked-up aerial depictions of their Property) that Mr. Thomas, Mr. Lane and Ms. Morey had provided to the SWRCB. In addition, Mr. O'Hagan refused to grant plaintiffs an extension of time to respond to the claims by Mr. Thomas, et al., which was requested because plaintiffs were attending Ms. Leen's father's funeral. The reason for Mr. O'Hagan's refusal was due to his promise to Mr. Thomas that he would provide the SWRCB's decision (as to whether to rescind the approval of the amendment) before a particular hearing in the criminal case scheduled for April 22, 2008. In Mr. Thomas's declaration dated May 8, 2008, submitted in the criminal proceeding, he confirmed the reach of his influence, stating: "[o]n March 5, 2008 I received an email from Mr. O'Hagan indicating that they had received a request for a delay from [plaintiffs' counsel] and asking if such a delay would interfere with Court consideration of the matter on April 22, 2008. I responded that as long as we had a letter by April 1, 2008 we could submit the material to the Court in time for the Defendant's response."
32. On or about March 10, 2008, Mr. Lane again communicated with the SWRCB regarding plaintiffs' water rights. This time, Mr. Lane falsely claimed that Mr. Leen had performed an "unnatural manipulation" of the streambed and that this action "is detrimental to future groundwater recharge . . . and may also create problems for groundwater users down gradient of the subject property." Mr. Lane and Mr. Thomas knew at the time that this storyline was false, because plaintiffs had already shared with them the maps and other information demonstrating the Irrigation Ditch had been in that location for over 50 years.
33. Through counsel, plaintiffs responded to Mr. O'Hagan's letter on March 25, 2008, stating that "Mr. Thomas has provided inaccurate and incomplete information . . . in what appears to be an attempt to undermine Mr. Leen's water rights in order to bolster his position in the misdemeanor criminal action." Plaintiffs' counsel also pointed out that:
Plaintiffs, through counsel, specifically requested that the SWRCB provide Mr. Leen with an "appropriate hearing" on this matter and again asked for the opportunity to view the information provided by Mr. Thomas, Mr. Lane and Ms. Morey.
34. Plaintiffs' protests fell on deaf ears. On April 14, 2008, Mr. O'Hagan wrote a letter confirming that the SWRCB had rescinded its earlier order correcting the Water License. In the same letter, Mr. O'Hagan declined to meet with plaintiffs and directed that if they wished to maintain the Water License, they were required to file a petition to change the license.
35. The judge then assigned to the criminal case, the Honorable William Lamb, expressed concern, at proceedings on April 23, 2008, about Mr. Thomas's attempt to interfere with regulatory proceedings in order to acquire a prosecutorial advantage, stating:
Judge Lamb went on to say, "I am just saying there is something about this that makes me a little queasy. . . ."
36. The Leens thereafter filed the Petition for Change of Point of Diversion and Place of Use ("Petition for Change"), which required an $1850.00 fee, not because they subscribed to anything stated by Mr. Thomas or Mr. O'Hagan. They filed the Petition for Change because they had no choice. A prerequisite to having any water rights at all in the future was thus tied to a determination that plaintiffs had a valid water license running with the land. Thus, the Leens filed their Petition for Change in June 2008, which the SWRCB simply ignored for an entire year.
37. At the time that all of this was happening with the SWRCB, Mr. Thomas was reaping the benefits of his regulatory shenanigans. A further consequence of not completing pretrial diversion was that the trial court would take a no contest plea, which was conditionally entered and not accepted by the trial court back in 2004, and enter it as a final conviction. Mr. Thomas got his conviction and demanded as the sentence that Mr. Leen submit to all of the terms and conditions of the "restoration" of the apocryphal historical, natural waterways. The court, however, started but did not ever finish the sentencing hearing. Instead, Judge Lamb imposed a probationary sentence, but stayed all terms and conditions pending Mr. Leen's appeal of the conviction, which triggered a series of appeals, writs and remands, lasting three years (from April 2008 to January 2011). By the time Mr. Leen eventually appeared for his first day of trial in March 2011, he had made over 70 court appearances in the criminal case. This state of indecision in the criminal case prompted Mr. Thomas to continue his practice of delivering false and misleading information to the SWRCB in hope that he could create enough confusion to delay a final decision in the regulatory proceedings while he worked through the criminal proceedings. His objective was to use the criminal sentence as a means of commanding the regulatory process, knowing that he lacked the facts, evidence or environmental science to otherwise get what he wanted.
38. Plaintiffs are informed and believe that Mr. Thomas, Mr. Lane, and Ms. Morey knowingly and wrongfully contacted the SWRCB in July 2008, demanding that the agency refrain from taking action on the Petition for Change while the criminal case was still pending. After another year went by, the SWRCB responded in June 2009 to plaintiffs' Petition for Change, and inquired of Mr. Thomas, Mr. Lane and Ms. Morey whether their earlier concerns and protests had been resolved. In addition to the usual litany of false and misleading claims about natural water courses and unlawful diversion of a stream, Mr. Thomas and Ms. Morey demanded, in unison, that plaintiffs' Petition for Change be immediately terminated based on nonuse. Ms. Morey also provided a lengthy report on what she believed were various "findings" by the court in the criminal case, including that:
As plaintiffs' counsel explained in her response, dated August 13, 2009, there were no such findings by the court in the criminal case. In fact, Judge Lamb suspended the sentencing hearing, never resumed the taking of any evidence, and did not make any findings. There is also no evidence in the record of the proceedings that Ms. Morey ever attended any of the criminal court proceedings. Therefore, Ms. Morey could only have obtained this (false) information from Mr. Thomas. However, this ties to another admission by Ms. Morey in her letter, when she stated that "[t]he Department is concerned that approval of this petition may be contrary to law in that approval of the petition may prevent remedy pursuant to a Butte County Superior Court conviction." In other words, if the SWRCB granted the Petition for Change, it might impede Mr. Thomas's ability to obtain an order in the criminal proceedings forcing Mr. Leen to cease use of his Irrigation Ditch and "restore" the allegedly historical natural waterways. Thus, Ms. Morey frankly acknowledged that she was misusing her regulatory authority as a Regional Manager of Fish and Game to help her co-worker, Mr. Thomas, gain an unfair and improper advantage in the criminal case.
39. Notably, Ms. Marr was copied on this correspondence and reported to Mr. Thomas at one point during the proceedings that she had spent over 100 hours on the case in the event that he could recoup costs for her time. As noted, plaintiffs, through counsel, provided a detailed response, by letter dated August 13, 2009, to Mr. Thomas's and Ms. Morey's protest letters. The SWRCB nonetheless placed the Petition for Change back on hold for the next two years, pending the outcome of the criminal proceedings. At that point, for the seventh consecutive year, plaintiffs were still deprived of their use and enjoyment of the Irrigation Ditch.
40. On March 10, 2011, the jury reached its verdict — Mr. Leen was acquitted on all charges. Separate and apart from the criminal prosecution and continuing after the final conclusion of the criminal proceedings, Mr. Thomas, assisted by Mr. Lane, Mr. Ramsey and Ms. Morey, engaged in a course of conduct intended to restrict and interfere with plaintiffs' use and enjoyment of their real property, to wit their use of the Irrigation Ditch and their water rights. Said defendants, and each of them, acted under color of state authority to maliciously and wrongfully cause a rescission of the duly issued amended Water License and to thereafter delay and obstruct all other administrative remedies available to plaintiffs to resolve this water rights issue. Mr. Thomas further made it clear that he would aggressively prosecute Mr. Leen or anyone acting with him if he used, repaired or maintained his Irrigation Ditch prior to a resolution of the water rights licensing issue.
41. In or about April 2011, plaintiffs notified the SWRCB and again asked that the SWRCB approve their Petition for Change. Mr. Thomas continued with his behind-the-scenes campaign to disparage plaintiffs and oppose their Petition for Change. By reason of those communications, which plaintiffs are informed and believe consisted of false statements, improper threats and demands by Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey, the SWRCB refused to act on plaintiffs' Petition for Change until late 2012.
42. After the trial, the Leens observed low flying helicopters over their Property near their Irrigation Ditch. These helicopters typically circled the Leens' house and Property for ten minutes and the passengers in the helicopters appeared to be taking pictures of the Property and the Irrigation Ditch. Based on documents recently provided by the SWRCB, the Leens now know the purpose of these flyovers. By email dated April 4, 2011 (notably, just three weeks after Mr. Leen's acquittal) to Mr. O'Hagan, copied to Mr. Ramsey, Mr. Thomas attempted to draw the SWRCB into a new criminal prosecution against Mr. Leen. Mr. Thomas told Mr. O'Hagan that Mr. Leen was unlawfully impounding water in a dam on his Property. Mr. Thomas attached a photograph to his email which was taken by a helicopter flying over the Leens' home and Property in early April 2011. In late May 2011, Mr. Thomas again emailed the SWRCB about Mr. Leen's alleged improper dam. This time, Mr. Thomas emailed Nathan Jacobsen of the SWRCB and claimed that "Mr. Leen was caught rebuilding the dam" in 2002. In this communication, Mr. Thomas asked Mr. Jacobsen to reach-out to Mr. Lane and Ms. Marr for more information. Mr. Thomas closed the email by wishing Mr. Jacobsen luck in this endeavor to go after Mr. Leen. These allegations were false, and Mr. Thomas knew it. Mr. Thomas had spent days reviewing Mr. Leen's property, including photographs and maps, during the criminal trial. He knew, or should have known, based on the many items admitted as trial exhibits, that there was only one water impoundment with a dam on Mr. Leen's property and that it had been there long before Mr. Leen purchased the Property. He had heard the sworn testimony of a civil engineer, Sean Santillan, who had performed maintenance work on the water impoundment area in the late 1970's or early 1980's. Secondly, Mr. Thomas's claim that a spillway area was constructed in 2002 by Mr. Leen was also false. Mr. Thomas knew that the aforementioned spillway had been present since the dam was created and that the only thing that happened in 2002 was Mr. Leen's neighbor installed a culvert into the dam. Later, this area was washed-out during winter storms in 2002/2003. Mr. Leen did not rebuild it or attempt any kind of repair, because he was told that if he touched that part of his Property, he would leave his Property in handcuffs. Finally, Mr. Thomas's accusation that Mr. Leen was caught rebuilding the dam was also false. Mr. Thomas was apprised of every event that had to do with Mr. Leen's criminal trial and Mr. Thomas knew that Mr. Leen had never been "caught" rebuilding the dam. Mr. Thomas had no factual basis to make such statements. He made these statements to ensure that plaintiffs would continue to be denied their property rights.
43. At about the same time that Mr. Thomas was privately communicating with the SWRCB in an attempt to bring new charges against Mr. Leen, plaintiffs, through counsel, reached out to Mr. Thomas, because they naively believed that Mr. Thomas would respect the outcome of the criminal case and cease his misconduct. Mr. Thomas informed plaintiffs' counsel that he would not withdraw his protests to the Leens' amended Water License in light of Mr. Leen's acquittal. Mr. Thomas refused to withdraw his protests absent unwarranted concessions by the Leens (i.e., that plaintiffs agree to the Restoration Plan). Counsel for plaintiffs confirmed this communication, with a copy to the SWRCB, by letter to Mr. Thomas dated May 5, 2011. Mr. Thomas responded in an email dated May 9, 2011, strongly denying that he demanded regulatory concessions from plaintiffs as a condition of withdrawing his protest, and yet in communications with the SWRCB as late as September 2012, he continued to condition his withdrawal of the protests on such concessions.
44. Plaintiffs are informed and believe that Mr. Thomas's communications, which were a continuation of his previous false statements about the Property, caused the SWRCB to refuse to act on plaintiffs' request for the amended Water License. And so, the Petition for Change, which had been filed in June 2008, continued to stay on hold with no apparent end in sight. Plaintiffs were required to continue to pay approximately $1000 per year to maintain the administrative process. Plaintiffs are informed and believe, based on repeated threats by Mr. Thomas and representatives of Fish and Game, that if they used, maintained, or otherwise improved their irrigation ditch, they would be subjected to civil fines and penalties and possibly criminal charges.
45. Plaintiffs are informed and believe that Mr. Ramsey knew about, authorized and ratified the conduct of the individually named defendants herein. During the pendency of the criminal case, in or about 2006 and 2007, Mr. Leen spoke with Mr. Ramsey. In one such instance, Mr. Leen was at Mr. Ramsey's office making a presentation on why Mr. Thomas's demands for restoration were extreme and without merit. Mr. Ramsey clearly indicated that he knew about and fully supported Mr. Thomas's actions. Indeed, in presentations before the Board of Supervisors, when discussing budgeting for the District Attorney's office, including obtaining a travel allowance for Mr. Thomas to supplement his Fish and Game paycheck, Mr. Ramsey stated that he was well aware of Mr. Thomas's actions in regard to Mr. Leen and others in Butte County. Mr. Ramsey had direct and indirect knowledge of Mr. Thomas's continuing and relentless misconduct, he specifically authorized and directed it, and he responded with deliberate indifference, thereby ratifying, encouraging, facilitating, aiding and abetting the unlawful conduct of Mr. Thomas.
46. On May 16, 2012, the Leens filed the instant action. After many years of collecting dust on the SWRCB shelves, the Leens' Petition for Change saw the light of day. The SWRCB contacted the Leens and scheduled a field investigation for September 11, 2012.
47. On the day before the site investigation, Mr. Lane and Mr. Thomas tried one last time to improperly influence the SWRCB. On September 10, 2012, Mr. Thomas sent an email to Kathy Mrowka of the SWRCB, copied only to Mr. Lane, in which he attempted to paint Mr. Leen as a criminal even though he had been acquitted of all charges. Mr. Thomas told Ms. Mrowka that another man, Mr. Frank Green, was also charged in 2003 for helping Mr. Leen perform this "streambed alteration," that Mr. Green was convicted of a Fish and Game Code violation for that act, and that Mr. Green's admission of guilt should be attributed to Mr. Leen. Mr. Lane also did what he could to influence the SWRCB the day before the site visit. He submitted a letter to Kathy Mrowka at the SWRCB and urged that the SWRCB do what the jury decided in March 2011 that he and Mr. Thomas could not do, i.e., order "that the unnamed streambed be restored to its former (pre 2002) condition as stipulated in the restoration plan previously prepared by River Partners." The criminal case and the "restoration" issues had nothing to do with the September 11, 2012 site visit (which was preparatory to deciding the Petition for Change). As such, these communications were improper and served no legitimate purpose.
48. Mr. Lane actively aided and abetted Mr. Thomas's violation of plaintiffs' constitutional rights. Specifically, after Mr. Leen was acquitted, and a mere one day before the SWRCB finally scheduled its site inspection of Mr. Leen's property, Mr. Lane wrote letter dated September 10, 2012 to SWRCB protesting Mr. Leen's water rights on the grounds that (a) Mr. Leen's unnatural manipulation of his streambed was a wrongful act which created harm to future groundwater recharge as well as problems for groundwater users downgradient of Mr. Leen's property; and (b) that the streambed should be restored to its pre-2002 condition as stipulated in the proposed restoration plan. Mr. Lane knew at the time that this was a false and misleading statement. He had heard Mr. Leen's expert, Mr. Brown, testify at the criminal trial about these very issues and present clear, compelling evidence that Mr. Lane's theories and contentions were without factual or scientific support. The irrigation ditch had been in place dating back to 1947, which directly refuted the contention that Mr. Leen created the diversion in 2002. There was no connectivity between the irrigation ditch and groundwater. Mr. Lane did not rebut that testimony, and he was aware, at the time that he made the 2012 statement to the SWRCB, that the jury specifically rejected the charges arising from this claim. Despite this, Mr. Lane, at the direction of Mr. Thomas and for the purpose of aiding and abetting these violations of plaintiffs' constitutional rights, continued to work behind the scenes to ensure that plaintiffs' rights would not he restored. Mr. Lane had no rational basis for making the factual statements in his letter dated September 10, 2012. His sole purpose was to convince the SWRCB to implement the "restoration plan" (which was wrongfully conceived and without factual basis) something he and Mr. Thomas were unable to accomplish in the criminal action.
49. On November 13, 2012, Mr. Thomas urged another colleague at Fish and Game, Tina Bartlett, also a Regional Manager, to write to the SWRCB setting forth Fish and Game's continued protest of the Petition for Change, and request that further conditions be placed on the amended Water License.
50. On February 6, 2013, the SWRCB issued a decision which approved the Leens' Petition to Change their POD. Although the Leens did not and do not agree with everything in the decision, they decided not to submit a protest thereto because they desperately wanted the ability to use and irrigate their land. Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey did not directly respond or comment in any way on the SWRCB's decision to grant the Petition for Change. The Butte County District Attorney's Office and Fish and Game each sent letters indicating that their respective offices would not be protesting the SWRCB's decision. This may signal the conclusion of a decade-long struggle with Mr. Thomas and those who do his bidding. However, plaintiffs are informed and believe that Mr. Thomas is relentless in his quest for what he oddly defines as justice (i.e., to impose his environmental theories and beliefs on those he pursues no matter how misguided or at odds with the facts and science). Plaintiffs are therefore convinced that unless and until they have a judgment against Mr. Thomas, such that he can see the actual consequences of his misconduct, Mr. Thomas he will find a way, directly or indirectly, to further threaten, intimidate and harass plaintiffs.
51. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 50 as though set forth fully herein.
52. Plaintiffs were subjected to continuing arbitrary and irrational treatment by defendants and each of them for close to a decade. Plaintiffs complied with all laws and regulations pertaining to the right to receive the amendment to their Water License. They duly applied for an amendment to their Water License in 2007, completed all the necessary paperwork and inspections, and were granted the amendment in January 2008. The Leens fulfilled all the qualifications necessary for obtaining a benefit under state law. Approximately one month later, the SWRCB abruptly and without cause rescinded its approval but assured the Leens that they would have the opportunity to resolve the matter once the criminal case concerning the Irrigation Ditch was concluded. After Mr. Leen was acquitted of all charges in the criminal case, the SWRCB still refused to act on plaintiffs' application because Mr. Thomas, Mr. Lane and Ms. Morey continued to assert a protest to the proposed amendment to the Water License. Absent in this discourse was any substantive reason from the SWRCB as to why the clearly biased and scientifically baseless objectives from another agency served as a rational basis for refusing to act on the application. The Leens therefore continued to pay $1000 per year for the privilege of having an application pending in order to avoid the permanent loss of their Water License. In addition, plaintiffs have incurred thousands of dollars of legal fees and costs in trying to preserve and protect their water rights from Mr. Thomas and those who have aided, abetted, facilitated and encouraged him. The plaintiffs, in defending their rights, exhausted their personal savings, including money that
53. For the past ten years, plaintiffs were deprived of their right to make beneficial use of the Irrigation Ditch water for their ranching and other irrigation needs. Plaintiffs could not maintain and repair their Irrigation Ditch, including the crossings for cattle. In once instance, a pregnant heifer (i.e., a female that has never had a calf) broke her hip trying to cross over the pond area during a storm. The heifer tried to get out of the pond, but due to her broken hip, was unable to do so. Due to the stress on the heifer as she tried to get out of the ponded area, the heifer went into premature labor and had her calf. The calf was born into the muddy pond and suffocated. The heifer had to be destroyed because of her broken hip. The only reason Mr. Leen was unable to help the heifer and the calf was because he was told by Fish and Game that if he touched that area of his Property, he would leave in handcuffs. Mr. Thomas reiterated this position over the years. Notably, in Fish and Game's final protest letter by Ms. Bartlett, dated November 13, 2012, the complaint was that the Irrigation Ditch had fallen into disrepair such that it was unsafe, and further that the amendment should be conditioned on completing these repairs. This was traumatic to the Leen family as well as a financial loss to them. They also could not remove any of the water from their ditch. It will take many years for plaintiffs to financially recover from the economic damage caused by Mr. Thomas and the other defendants named herein.
54. There is nothing unique or environmentally fragile about plaintiffs' farm and ranch land. This was the undisputed opinion of the experts called at trial by the defense (the district attorney did not call any experts to counter these opinions). Plaintiffs, like their neighbors who share this flow of irrigation runoff, make good use of the water for crops and ranching needs. Plaintiffs are informed and believe that the SWRCB has not refused to process applications or denied water licensing rights, including requests for reasonable and justified amendments to water licenses, to other similarly situated persons in farming regions of California, including Butte County, California. Likewise, plaintiffs are informed and believe that no other water licenses in Butte County have been issued a POD correction only to have the license summarily rescinded based on an orchestrated campaign of harassment by regulators. As well, plaintiffs are informed and believe that the SWRCB is required to promptly review and decide applications for the amendment of water licenses, and typically does so for the citizens of this state. What was different in this case was a relentless campaign of misinformation and veiled threats implemented by Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey.
55. As further evidence of the arbitrary and capricious manner in which the defendants have acted, Fish and Game authorized Caltrans in April 2013 to go onto the Leens' Property and clear out the same irrigation ditch that Mr. Leen tried to clean when charges were brought against him. The Caltrans employee in charge of the clean-up spoke to Mr. Leen about the project (which was done to repair a fence and re-establish the fence line on the Leens' Property so that their cattle did not escape onto public roads) and learned that Mr. Leen was afraid to repair the fence himself given his history with Mr. Thomas and Fish and Game. Therefore, in an abundance of caution, the Caltrans employee reached out to Ms. Marr at the Department of Fish and Game and asked for permission to complete the work. Ms. Marr referred him to Tim Nozzle, also with Fish and Game, who gave the green light to the project. Thus, Fish and Game in April of this year agreed to allowed Caltrans clean the Irrigation Ditch. While Ms. Bartlett of Fish and Game, in her November 13, 2012 protest letter, issued a veiled threat if the Leens ever in the future wish to cut back vegetation along the Irrigation Ditch, Fish and Game approved work by Cal Trans that cut back large piles of trees and brush.
56. Plaintiffs have been singled out for disparate treatment by these regulators in order to harass and punish Mr. Leen for refusing to bend to Mr. Thomas's will and for later prevailing in the criminal case. Mr. Thomas and others at Fish and Game made it clear through their actions in 2011 and 2012 that they were not prepared to accept the outcome of the criminal case and that it is, in effect, personal for them. Mr. Thomas, in particular, continued (years after the criminal trial concluded) to exhibit malignant animosity for Mr. Leen by unlawfully assisting, aiding and abetting regulators in other state agencies in a campaign of intimidation and harassment in order to (a) wrongfully delay and obstruct the Leens' lawful application for an amendment to their Water License; and (b) coerce from the Leens' land use agreements and/or improper restrictions on the Leens' use and enjoyment of their irrigation ditch, which the regulators and Mr. Thomas would not otherwise be able to obtain. Mr. Thomas also claimed that he would not withdraw his objections to the application for an amended Water License until and unless Mr. Leen agreed to resume negotiations with Fish and Game over the return to what Mr. Thomas regards as the Property's natural and historic conditions. The Leens have lived in constant fear of retribution by these state regulators and the District Attorney's office, including fear of unlawful arrest and/or imprisonment if Mr. Leen attempted to maintain and manage farm irrigation water runoff and other natural storm water flow over his land, including his Irrigation Ditch, without first resolving his water licensing issues. All the while, Mr. Thomas, Mr. Lane, Ms. Morey and Ms. Marr all worked behind-the-scenes to delay and obstruct the processing of plaintiffs' application to amend the Water License. Mr. Thomas's supervisors, Mr. Ramsey and Mr. on Bonham, ratified, approved and/or willfully ignored such misconduct. Defendants and each of them have acted as alleged herein with the intention of causing injury to plaintiffs, with a willful and conscious disregard for the rights of plaintiffs, and with the intention of depriving plaintiffs of property and legal rights, causing injury to plaintiffs.
57. The actions of defendants and each of them bear no relation to public health, safety, morals or the general welfare of the state. The motive was to help Mr. Thomas achieve an unfair advantage in a criminal proceeding and to support fellow regulators — right or wrong — to make certain that private citizens understand the absolute power of state regulators over their lives and property. And after the criminal trial, the motive was to appease and assist Mr. Thomas in his continued campaign to impose his will on plaintiffs.
58. Defendants Mr. Thomas's, Mr. Lane's, Ms. Morey's and Ms. Marr's actions, as described herein, have violated the rights of plaintiffs under the Fourteenth Amendment to the United States Constitution by depriving plaintiffs of their right to the use and enjoyment of their property without due process of law.
59. Defendants Mr. Thomas's, Mr. Lane's, Ms. Morey's and Ms. Marr's actions, as described herein, have violated plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by depriving plaintiffs of their right to equal protection under the law. Defendants' actions deprived plaintiffs of their right to equal protection under the law by subjecting plaintiffs to improper, arbitrary and irrational regulatory actions with no legitimate basis. The requested amendment to the Water License was a simple, routine process that is typically completed for similarly situated citizens and property owners in a matter of weeks so that farmers and ranchers can obtain lawful access to their irrigation ditches. The process is also typically transparent and all agency communication about what is or is not required is clearly conveyed. There is typically a written application, an inspection and prompt notification of the decision by the agency. Here, on account of the wrongful actions of said defendants (i.e., the refusal to process the Leens' application), plaintiffs were singled out and subjected to an indeterminate and secret regulatory process, for which there is no end in sight nor reason given.
60. Defendants Mr. Thomas, Mr. Lane, Ms. Morey and Ms. Marr individually and collectively violated clearly established constitutional or other rights, of which the defendants knew, or of which reasonable public officials should have known, rendering defendants liable to plaintiffs under 42 U.S.C. section 1983.
61. Mr. Ramsey's and Mr. Bonham's acquiescence in and ratification of the constitutional deprivation of the Leens showed a reckless or callous indifference to the rights of plaintiffs. By such actions and/or inactions, Mr. Ramsey and Mr. Bonham permitted their agents and employees, to wit, defendants Mr. Thomas and Mr. Lane, Ms. Morey, and Ms. Marr, to engage in the following improper practices: (a) unlawfully interfering with plaintiffs' petition to amend their Water License; (b) allowing a bad-faith rescission, denial, delay and/or obstruction of plaintiffs' efforts to amend their Water License; (c) allowing their employees to provide false and misleading information to the SWRCB for the purpose of delaying and obstructing the processing of a Petition for Change to plaintiffs' Water License and assisting Mr. Thomas in his prosecution of the criminal case against Mr. Leen; (d) allowing their to Lodge allowing their employees to threaten, intimidate and punish
62. Wherefore, as against defendants and each of them, plaintiffs seek damages suffered proximately caused by their wrongful conduct in an amount to be proven at trial. Defendants have acted as alleged herein with the intention of causing injury to plaintiffs, with a willful and conscious disregard of the rights of plaintiffs, and with the intention of depriving plaintiffs of property and legal rights, causing injury to plaintiffs. Plaintiffs are thereby entitled to all damages suffered therefrom, as well as exemplary and punitive damages.
63. Plaintiffs also seek injunctive relief to protect plaintiffs from continued animosity, threats, harassment and intimidation by Mr. Thomas and those acting at his behest, concerning plaintiffs' property and water rights. While his employers — Fish and Game and the District Attorney's Office — agreed in 2013 not to oppose the SWRCB's February 6, 2013 decision to approve the amendment to the Leens' Water License, the Leens have received no personal assurances from Mr. Thomas that this nightmare is really over. The history of this case predicts that Mr. Thomas will continue to use back channels to instigate and promote improper regulatory action against the Leens. Further, plaintiffs have no other reasonable means by which to compel Mr. Thomas and those willing to assist him to cease their misconduct. Mr. Thomas typically works by emails and telephone calls to other agencies, and having been caught in the act here, he will develop still more surreptitious ways to cover his tracks. Plaintiffs also fear further threats to Mr. Leen's liberty if Mr. Thomas and/or Mr. Ramsey subject him to or ratify unwarranted and wrongful criminal prosecutions. Plaintiffs fear a future of unwarranted regulatory enforcement actions against plaintiffs draining what remains of their now limited resources. Related to this, plaintiffs seek injunctive relief so that they and defendants know their rights and responsibilities with respect to the use and enjoyment of their property, including their Irrigation Ditch and water rights.
1. For all special and general damages, as well as consequential and economic damages, in a sum in excess of the minimum jurisdiction of this Court, together with prejudgment interest accrued thereon at the statutory rate, and such further sums as will be shown according to proof.
2. For an award of exemplary and/or punitive damages.
3. For the issuance of a preliminary and, if necessary, permanent injunction restraining defendants and each of them from further violating plaintiff's constitutional rights as set forth herein:
4.
5.
6.
Plaintiffs Irvine H. Leen and Aleta Leen allege for this Complaint herein as follows:
1. Plaintiffs Irvine Leen and Aleta Leen are, and at all relevant times mentioned herein were, residents of the County of Butte, California.
2. Plaintiffs are informed and believe that defendant Harold M. Thomas ("Mr. Thomas") is, and was at all times mentioned in this complaint, an employee of the California Department of Fish and Wildlife (formerly known as the California Department of Fish & Game), and that Mr. Thomas is also an employee and/or agent of the Butte County District Attorney's Office. Plaintiffs are informed and believe that Mr. Thomas reports to the California State Bar his current business address to be 1416 — 9
3. Plaintiffs are informed and believe that defendant John Lane ("Mr. Lane") is, and was at all times mentioned in this complaint, an agent of Mr. Thomas, Mr. Ramsey, the Butte County District Attorney's Office and/or the California Department of Fish and Wildlife. Mr. Lane is named in his individual capacity because he facilitated, aided and abetted the unlawful conduct of Mr. Thomas.
4. Plaintiffs are informed and believe that defendant Sandra Morey ("Ms. Morey") is, and was at all relevant times mentioned in this complaint, an employee of the California Department of Fish and Wildlife. Ms. Morey is named in her individual capacity because she facilitated, aided, and abetted the unlawful conduct of Mr. Thomas.
5. Plaintiffs are informed and believe that defendant Jenny Marr ("Ms. Marr") is, and was at all relevant times mentioned in this complaint, an employee of the California Department of Fish and Wildlife. Ms. Marr is named in her individual capacity because she facilitated, aided and abetted the unlawful conduct of Mr. Thomas.
6. Plaintiffs are informed and believe that defendant Michael Ramsey ("Mr. Ramsey") is the Butte County District Attorney, as well as an employee of that office. Mr. Ramsey is named in his individual capacity. He was and remains Mr. Thomas's supervisor, he had direct and indirect knowledge of his employee's continuing and relentless misconduct and he specifically authorized and directed said conduct. Specifically, at the Butte County Board of Supervisors meeting on May 19, 2009, Mr. Ramsey stated to the Board (in a recorded statement), regarding Mr. Thomas, that when people in the community claim that Mr. Thomas "is doing this," or "is doing that," they should "scratch that out. Mr. Ramsey is doing that, within Mr. Ramsey's discretion." In that same statement, about five minutes later, Mr. Ramsey made it clear that this statement applied to Mr. Thomas's conduct and statements with respect to plaintiff Irvine Leen and plaintiffs' property as herein alleged. Mr. Ramsey has responded to all of Mr. Thomas's misconduct with deliberate indifference, and he has expressly ratified, encouraged, facilitated, aided and abetted the unlawful conduct of Mr. Thomas. He thereby directly and specifically engaged in acts that violated plaintiffs' constitutional rights, including property interests.
7. Sometime in 2012, the California Department of Fish and Game changed its official name to the California Department of Fish and Wildlife. For ease of reference, throughout this complaint, this state agency shall be referred to as "Fish and Game."
8. Plaintiffs are ignorant of the true names and capacities of defendants sued as Does 1 through 20, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained.
9. Plaintiffs are informed and believe, and thereon allege that at all times herein mentioned, defendants, including the Doe defendants, and each of them, were agents, servants, alter egos and/or employees of their defendants, and in doing the things hereinafter alleged, were acting within the scope of their authority as agents, servants, and employees, and with the permission and consent of their co-defendants.
10. Plaintiffs Irvine Leen and Aleta Leen are residents of Oroville, California, which is located in Butte County.
11. Defendants Mr. Thomas and Ms. Morey are citizens of the State of California and reside in or near Sacramento, California. Defendants Ms. Marr, Mr. Lane and Mr. Ramsey are citizens of the State of California and reside in or near Butte County, California.
12. The claims and events referenced in this complaint occurred in or arose from Oroville, County of Butte, State of California.
13. This case is subject to the unlimited jurisdiction of the Superior Court in that the amount in controversy exceeds $50,000.
14. This case was removed by defendants Mr. Thomas, Mr. Lane and Mr. Ramsey to the United States District Court, Eastern District of California on or about June 18, 2012.
15. Plaintiff Irvine Leen is a farmer and a rancher. He grazes his cattle on portions of real property (the "Property") that he owns with his wife, plaintiff Aleta Leen. The Property is located in Oroville, California. An irrigation ditch runs through the Property, which is principally fed from agricultural runoff flowing from properties upstream (the "Irrigation Ditch"). Plaintiffs have a License for the Diversion and Use of Water (the "Water License") issued and/or overseen by the California State Water Resources Control Board, Division of Water Rights ("SWRCB"). The Water License allows for the diversion of water from the irrigation ditch for the purpose of irrigating the Property.
16. In or about the summer of 2002, Mr. Leen's neighbor, Frank Green, cleared out debris (e.g., old bicycles, tires, car batteries, cans, bottles) and brush from the Irrigation Ditch. At the time, the water in the Irrigation Ditch was very low, and had insufficient flow to continue on past the Leens' property lines. As such, it had no connectivity, at the time, with other downstream waterways. When the brush was cleared away, Mr. Green placed matting along the banks to prevent erosion. In the turn of one season, the Irrigation Ditch vegetation returned.
17. In or about October 2002, a Fish and Game deputy reported observations of persons clearing out debris and brush from the Irrigation Ditch. On the eve of the expiration of the statute of limitations, on October 15, 2003, Mr. Thomas and Mr. Ramsey filed a criminal complaint against Mr. Leen for clearing out garbage and debris from the Irrigation Ditch. The charges included the unlawful obstruction of a stream, failing to obtain a streambed alteration permit, depositing silt into the Irrigation Ditch such that it is deleterious to fish, plants or bird life, and trespass. Mr. Leen accepted pretrial diversion in October 2004, on the understanding that he had no water license rights and that he needed to work with Fish and Game to restore historical waterways and wetlands on his Property. Thus, the criminal case proceedings were suspended from October 2004 to August 2006, during which time Mr. Leen tried to meet the ever-increasing regulatory demands by Mr. Thomas, Ms. Marr, and Mr. Lane to replace and restore alleged natural waterways and wetlands on plaintiffs' Property. From August 2006 to January 2010, Mr. Leen was engulfed in court proceedings in an effort to reinstate his plea of not guilty and proceed to trial on the criminal charges. In or about March 2011, after Mr. Thomas had exhausted all appeals opposing Mr. Leen's right to try his case to jury, the matter proceeded to trial. On March 10, 2011, a jury in the criminal case delivered a verdict of not guilty on all charges.
18. Concurrent with but separate from the criminal prosecution, Mr. Thomas embarked upon a scheme to misuse his authority as a regulator (i.e., an employee of Fish and Game) to convince the SWRCB to unlawfully withhold and restrain plaintiffs' rights under the Water License. Mr. Thomas was aided and abetted by Ms. Marr, Ms. Morey and Mr. Lane, who made patently erroneous statements to the SWRCB in order to unlawfully restrain and take from plaintiffs their right to make lawful use of the Irrigation Ditch. In a series of private emails over a ten-year period, and continuing after the criminal case concluded, Mr. Thomas used his influence and access to regulatory agencies to obstruct and delay plaintiffs' efforts to obtain from the SWRCB a simple and routine amendment to the Water License: adjusting the point of diversion ("POD"), as is common in agricultural uses of man-made irrigation waterways.
19. On February 6, 2013, the SWRCB issued to plaintiffs an amendment to their Water License. This concluded a decade-long regulatory nightmare for plaintiffs, whereby they were threatened with regulatory penalties and criminal prosecution if they used or attempted to maintain the Irrigation Ditch.
20. Because Mr. Thomas was both a prosecutor and a state regulator, he possessed unique powers and access. Aided and abetted by the other defendants named herein, Mr. Thomas has grossly abused those powers. He was relentless, refusing to acknowledge the clear evidence that his environmental theories were wrong and that there was nothing to restore based on aerial photographs dating back to the 1940s. At all relevant times, Mr. Thomas's unlawful conduct was open and known, ratified and supported by his supervisor, Mr. Ramsey. Minimal supervision and review of Mr. Thomas's actions would have prevented much of the harm suffered by plaintiffs at his hands for the past decade.
21. Plaintiffs' troubles started in the summer of 2002, when they did what many owners of agricultural property do — they cleared away debris and brush. The Irrigation Ditch in this case was particularly troublesome because the property adjacent to the ditch had been used for outdoor concerts by the prior owners leaving behind an accumulation of garbage. There was also an abandoned beaver dam. The combination of these objects obstructed the flow of water and caused it to be dispersed away from the Irrigation Ditch. The month of August was the best time for this project because the water flow was reduced to a mere trickle and there was no connectivity to downstream water on other properties. Finally, there were no fish in the Irrigation Ditch aside from mosquito fish that were planted in local waterways by the County as mosquito abatement, and these were expected to die off or be eaten by animals during the summer months. Thus, plaintiffs were removing obstructions and they did so at a time when it would be physically impossible to cause harm to fish in the Irrigation Ditch or downstream.
22. This matter was initiated by a citation issued by Fish and Game. Mr. Thomas thereafter initiated criminal proceedings, and among the contentions in that case was that the man-made Irrigation Ditch was a natural waterway, and that clearing the debris out of the ditch was an impermissible "streambed alteration." In addition, Mr. Thomas charged that Mr. Leen illegally deposited silt into the Irrigation Ditch, which potentially harmed fish in the waterway or downstream. Mr. Thomas also contended that Mr. Leen did not have a water right or water license, and that he therefore unlawfully diverted water through his irrigation ditch. Mr. Thomas was wrong about all of the facts giving rise to these charges.
23. Believing that he did not possess a water license, Mr. Leen agreed in August 2004 to pretrial diversion, which meant that criminal proceedings would be suspended and Mr. Leen would work with Fish and Game to prepare and implement a "Restoration Plan" for the Property. This Restoration Plan would restore allegedly natural waterways and wetlands. Upon successful completion of the conditions of pretrial diversion, the criminal charges would be dismissed.
24. For the next two years and at considerable expense, plaintiffs hired consultants and experts, and tried without success to respond to false claims and meet unreasonable demands interposed by Mr. Thomas, Ms. Marr and Mr. Lane.
a. During that time, plaintiffs complained that Mr. Thomas and other Fish and Game representatives repeatedly trespassed on their Property to take measurements and conduct investigations. In one instance, Fish and Game representatives left a gate open in an area where livestock were corralled.
b. Mr. Leen proposed several restoration plans, at great cost to him and his family, but Mr. Thomas, Mr. Ramsey, Mr. Lane and Ms. Marr rejected each of them. In order to increase the financial pressure on plaintiffs to consent to their arbitrary and capricious regulatory demands, Mr. Thomas and Ms. Marr concocted a plan whereby they would contend that plaintiffs had destroyed wetlands. Mr. Thomas would then be able to seek steep monetary retribution from the Leens for allegedly destroying valuable natural resources. As of June 2005, Ms. Marr, who had not yet been to the Property, nonetheless, out of loyalty to her colleague, Mr. Thomas, contacted two economics professors at California State University at Chico to request that they quantify the annual ecological services value of wetlands.
c. Mr. Thomas, Ms. Marr, Mr. Lane and Ms. Morey, among others, also took the position that the path of the irrigation ditch should be modified so as to restore it to its alleged natural and historic conditions. In fact, at the behest of Mr. Thomas and Mr. Ramsey, and before ever seeing the Leens' Property, Ms. Marr signed declarations, dated August 2, 2005 and March 14, 2006, in which she made knowingly false statements about the topography on the Leens' Property so that they could ensure that the Leens' proposed restoration plan would never be approved by the court. After Ms. Man finally inspected the Leens' Property, she continued to submit false evidence about the characteristics and conditions of the Leens' Property.
d. Ms. Marr claims to have spent hundreds of hours researching the history of plaintiffs' property but yet never mentioned or acknowledged the historical maps that plaintiffs' expert, Mr. Brown, located, demonstrating that the irrigation ditch had been in place since before 1947 and there were no natural waterways to be restored. As such, Ms. Marr offered drawings, diagrams, and various opinions to the SWRCB without any rational basis aside from her desire to deliver what Mr. Thomas had improperly requested — an official agency objection to the proposed amendment to the POD. In fact, Ms. Marr confessed to Mr. Thomas and her colleagues at Fish and Game that she had no experience in the field of water rights. Thus, in an email to Sharon Stohrer, also with Fish and Game, dated June 23, 2009, Ms. Marr asked for assistance in writing the protest letter requested by Mr. Thomas, admitting "I know about a dime's worth about water rights . . . ." Two days later, Ms. Man wrote to Mr. Thomas, by email dated June 25, 2009, acknowledging that Fish and Game had no legal or other basis on which to protest plaintiffs' water rights:
Then after preparing a draft of the protest letter, Ms. Marr states:
From this point forward, Mary Lisa Lynch took over the process of completing the protest letter, which was ultimately submitted under Ms. Morey's signature, by letter dated July 6, 2009. The exchange here demonstrates once again that defendants (i.e., Mr. Thomas, Ms. Marr and Ms. Morey) had no rational basis on which to oppose the proposed amendment to the POD. Ms. Lynch states in an email dated July 5, 2009:
Thus, the July 6, 2009 letter was prepared by Ms. Marr and Ms. Lynch, and signed by Ms. Morey without regard to the facts, law or regulations.
25. The precise nature of the natural and historic conditions on the Property was among the issues addressed by plaintiffs' consultants. Mr. Leen and his consultants tried repeatedly to demonstrate to Mr. Thomas, Mr. Ramsey, Mr. Lane, and Ms. Marr that those defendants had it wrong on this point. Mr. Leen and his consultants demonstrated this by reference to historical photographs dating back many decades. These photographs demonstrated that the Irrigation Ditch had been in place since before the 1940's and that there was no water flowing in the areas that Mr. Thomas and others contended were the natural waterways, now removed due to the alleged illegal diversion by Mr. Leen. The most concise record of this explanation is in the transcript of proceedings on March 8 and 9, 2011, which memorializes the testimony of Mr. Leen's expert, Damon Brown, who qualified at the criminal trial as an expert in hydrogeology. Mr. Lane was present in court during this testimony, present to assist Mr. Thomas and potentially testify as a rebuttal witness. Mr. Brown meticulously explained, using historical aerial photographs going back over 60 years, that there was no geological evidence of these so-called natural braids or historical wetlands. In fact, the Irrigation Ditch, which Mr. Thomas claimed was created by plaintiffs' alleged illegal obstruction and/or diversion of waterflow (and therefore needed to be removed), could be seen in aerial photographs dating back to 1947. Notable in each photograph is the absence of any sign of waterways in the area in which the so-called natural waterways once flowed and now needed to be "restored." Mr. Thomas has never offered a response to this compelling evidence of the error in his core contention in this case. Indeed, Ms. Marr, Mr. Lane, and Ms. Morey, who have never hesitated to send letters and declarations to the SWRCB offering opinions to the contrary, were not called as witnesses to rebut Mr. Brown's testimony. As well, Mr. Thomas presented no expert testimony at that trial. Thus, Mr. Thomas offered no admissible evidence of the so-called natural and historic conditions on the Property.
26. As noted, Mr. Thomas had earlier claimed that Mr. Leen had no water license for the Irrigation Ditch. This false claim served as the basis for Mr. Thomas's, Mr. Lane's, and Ms. Marr's demand that plaintiffs cease using the Irrigation Ditch and "restore" the natural waterways on the Property. On June 29, 2006, Mr. Leen received a letter from the SWRCB informing him that he did, in fact, enjoy water rights on his Property.
27. Based on this information, which meant that there was nothing to restore and, more importantly, that the proposed Restoration Plan advocated by Mr. Thomas and those assisting him would deprive him of a vested property right, Mr. Leen went to court and asked to be relieved of his obligations under the pretrial diversion agreement. Mr. Leen was prepared to go to trial to prove his case. This motion in the criminal case unleashed a firestorm of activity from Mr. Thomas and those who he enlisted to aid and abet his efforts, as he struggled to silence Mr. Leen, prevent the trial, and stop the SWRCB from approving Mr. Leen's application for an amendment to his Water License.
28. From 2006 through January 2011, Mr. Thomas filed multiple writs and appeals in an effort to block Mr. Leen from proceeding to trial in the criminal case, as was his right as a prosecutor. Mr. Thomas concurrently stepped outside of his role as prosecutor and attempted to manipulate and control the regulatory proceedings in order to achieve an advantage in the criminal proceedings. After the jury in the criminal case acquitted Mr. Leen on all charges and the criminal case was forever closed, Mr. Thomas continued, directly and through those he enlisted to assist him, to stall and disrupt the decision making process of the SWRCB.
29. After plaintiffs received word from the SWRCB in June 2006 that they had a lawfully-issued and valid Water License, plaintiffs noticed that the POD and place of use ("POU") were not accurately listed on their Water License. To remedy this, plaintiffs were informed that they needed to request a routine correction to their Water License to clarify the POD and POU. Plaintiffs are informed and believe that such requests are typically processed administratively and without delay because they seek clarification and updating of the placement of irrigation. In 2007, the SWRCB twice sent a representative to the Property to investigate plaintiffs' request. The SWRCB representative agreed with plaintiffs and found that "the original POU description was almost a mirror image of what actually existed implying that there may have been an error in the transcription of the original data." In or about January 2008, the SWRCB administratively approved that request after making a site inspection, and issued an "Order Correcting the Description of the Point of Diversion and the Place of Use, Adding or Updating Standard License Terms, and Issuing Amended License" and "Amended License for Diversion and Use of Water."
30. Thereafter, in or about February 2008, Mr. Thomas and Mr. Lane made repeated false statements, improper threats, and demands in an attempt to have the SWRCB rescind its approval of the amended Water License. For instance, Mr. Lane called John O'Hagan ("Mr. O'Hagan"), an employee with the SWRCB, demanding to know why the SWRCB had approved the correction to the POD of the Water License without first complying with the California Environmental Quality Act ("CEQA"). Notably, Mr. Lane made his improper threats and demands without the benefit of having inspected the Property and the alleged illegal waterway, and therefore he had no objectively reasonable basis on which to make this assertion. Mr. Lane continued to assert that the proposed amendment to the Water License lacked compliance with CEQA without ever disclosing any factual or scientific basis for making that assertion. In fact, when Mr. Lane made that same assertion to the SWRCB on September 10, 2012, he had been provided the historical maps, demonstrating that the irrigation ditch had been in place since 1947 without any significant changes in site conditions or adverse environmental impacts. The "CEQA" claim was yet another knowingly false and misleading statement intended to prevent the restoration of plaintiffs' property rights. On February 14, 2008, Mr. O'Hagan wrote to plaintiffs, stating that the information provided to him by Mr. Thomas and Mr. Lane showed that the POD was "new." Mr. Thomas was listed as a copyee on that letter, prompting Mr. Thomas, upon receiving the letter, to send Mr. O'Hagan an e-mail thanking him for the letter and notifying him of the date of Mr. Leen's sentencing.
31. Plaintiffs, through their attorney, attempted to set the record straight. They were not, however, provided access to much of the evidence (e.g., certain mocked-up aerial depictions of their Property) that Mr. Thomas, Mr. Lane and Ms. Morey had provided to the SWRCB. In addition, Mr. O'Hagan refused to grant plaintiffs an extension of time to respond to the claims by Mr. Thomas, et al., which was requested because plaintiffs were attending Ms. Leen's father's funeral. The reason for Mr. O'Hagan's refusal was due to his promise to Mr. Thomas that he would provide the SWRCB's decision (as to whether to rescind the approval of the amendment) before a particular hearing in the criminal case scheduled for April 22, 2008. In Mr. Thomas's declaration dated May 8, 2008, submitted in the criminal proceeding, he confirmed the reach of his influence, stating: "[o]n March 5, 2008 I received an email from Mr. O'Hagan indicating that they had received a request for a delay from [plaintiffs' counsel] and asking if such a delay would interfere with Court consideration of the matter on April 22, 2008. I responded that as long as we had a letter by April 1, 2008 we could submit the material to the Court in time for the Defendant's response."
32. On or about March 10, 2008, Mr. Lane again communicated with the SWRCB regarding plaintiffs' water rights. This time, Mr. Lane falsely claimed that Mr. Leen had performed an "unnatural manipulation" of the streambed and that this action "is detrimental to future groundwater recharge . . . and may also create problems for groundwater users down gradient of the subject property." Mr. Lane and Mr. Thomas knew at the time that this storyline was false, because plaintiffs had already shared with them the maps and other information demonstrating the Irrigation Ditch had been in that location for over 50 years.
33. Through counsel, plaintiffs responded to Mr. O'Hagan's letter on March 25, 2008, stating that "Mr. Thomas has provided inaccurate and incomplete information . . . in what appears to be an attempt to undermine Mr. Leen's water rights in order to bolster his position in the misdemeanor criminal action." Plaintiffs' counsel also pointed out that:
Plaintiffs, through counsel, specifically requested that the SWRCB provide Mr. Leen with an "appropriate hearing" on this matter and again asked for the opportunity to view the information provided by Mr. Thomas, Mr. Lane and Ms. Morey.
34. Plaintiffs' protests fell on deaf ears. On April 14, 2008, Mr. O'Hagan wrote a letter confirming that the SWRCB had rescinded its earlier order correcting the Water License. In the same letter, Mr. O'Hagan declined to meet with plaintiffs and directed that if they wished to maintain the Water License, they were required to file a petition to change the license.
35. The judge then assigned to the criminal case, the Honorable William Lamb, expressed concern, at proceedings on April 23, 2008, about Mr. Thomas's attempt to interfere with regulatory proceedings in order to acquire a prosecutorial advantage, stating:
Judge Lamb went on to say, "I am just saying there is something about this that makes me a little queasy. . . ."
36. The Leens thereafter filed the Petition for Change of Point of Diversion and Place of Use ("Petition for Change"), which required an $1850.00 fee, not because they subscribed to anything stated by Mr. Thomas or Mr. O'Hagan. They filed the Petition for Change because they had no choice. A prerequisite to having any water rights at all in the future was thus tied to a determination that plaintiffs had a valid water license running with the land. Thus, the Leens filed their Petition for Change in June 2008, which the SWRCB simply ignored for an entire year.
37. At the time that all of this was happening with the SWRCB, Mr. Thomas was reaping the benefits of his regulatory shenanigans. A further consequence of not completing pretrial diversion was that the trial court would take a no contest plea, which was conditionally entered and not accepted by the trial court back in 2004, and enter it as a final conviction. Mr. Thomas got his conviction and demanded as the sentence that Mr. Leen submit to all of the terms and conditions of the "restoration" of the apocryphal historical, natural waterways. The court, however, started but did not ever finish the sentencing hearing. Instead, Judge Lamb imposed a probationary sentence, but stayed all terms and conditions pending Mr. Leen's appeal of the conviction, which triggered a series of appeals, writs and remands, lasting three years (from April 2008 to January 2011). By the time Mr. Leen eventually appeared for his first day of trial in March 2011, he had made over 70 court appearances in the criminal case. This state of indecision in the criminal case prompted Mr. Thomas to continue his practice of delivering false and misleading information to the SWRCB in hope that he could create enough confusion to delay a final decision in the regulatory proceedings while he worked through the criminal proceedings. His objective was to use the criminal sentence as a means of commanding the regulatory process, knowing that he lacked the facts, evidence or environmental science to otherwise get what he wanted.
38. Plaintiffs are informed and believe that Mr. Thomas, Mr. Lane, and Ms. Morey knowingly and wrongfully contacted the SWRCB in July 2008, demanding that the agency refrain from taking action on the Petition for Change while the criminal case was still pending. After another year went by, the SWRCB responded in June 2009 to plaintiffs' Petition for Change, and inquired of Mr. Thomas, Mr. Lane and Ms. Morey whether their earlier concerns and protests had been resolved. In addition to the usual litany of false and misleading claims about natural water courses and unlawful diversion of a stream, Mr. Thomas and Ms. Morey demanded, in unison, that plaintiffs' Petition for Change be immediately terminated based on nonuse. Ms. Morey also provided a lengthy report on what she believed were various "findings" by the court in the criminal case, including that:
As plaintiffs' counsel explained in her response, dated August 13, 2009, there were no such findings by the court in the criminal case. In fact, Judge Lamb suspended the sentencing hearing, never resumed the taking of any evidence, and did not make any findings. There is also no evidence in the record of the proceedings that Ms. Morey ever attended any of the criminal court proceedings. Therefore, Ms. Morey could only have obtained this (false) information from Mr. Thomas. However, this ties to another admission by Ms. Morey in her letter, when she stated that "[t]he Department is concerned that approval of this petition may be contrary to law in that approval of the petition may prevent remedy pursuant to a Butte County Superior Court conviction." In other words, if the SWRCB granted the Petition for Change, it might impede Mr. Thomas's ability to obtain an order in the criminal proceedings forcing Mr. Leen to cease use of his Irrigation Ditch and "restore" the allegedly historical natural waterways. Thus, Ms. Morey frankly acknowledged that she was misusing her regulatory authority as a Regional Manager of Fish and Game to help her co-worker, Mr. Thomas, gain an unfair and improper advantage in the criminal case.
39. Notably, Ms. Marr was copied on this correspondence and reported to Mr. Thomas at one point during the proceedings that she had spent over 100 hours on the case in the event that he could recoup costs for her time. As noted, plaintiffs, through counsel, provided a detailed response, by letter dated August 13, 2009, to Mr. Thomas's and Ms. Morey's protest letters. The SWRCB nonetheless placed the Petition for Change back on hold for the next two years, pending the outcome of the criminal proceedings. At that point, for the seventh consecutive year, plaintiffs were still deprived of their use and enjoyment of the Irrigation Ditch.
40. On March 10, 2011, the jury reached its verdict — Mr. Leen was acquitted on all charges. Separate and apart from the criminal prosecution and continuing after the final conclusion of the criminal proceedings, Mr. Thomas, assisted by Mr. Lane, Mr. Ramsey and Ms. Morey, engaged in a course of conduct intended to restrict and interfere with plaintiffs' use and enjoyment of their real property, to wit their use of the Irrigation Ditch and their water rights. Said defendants, and each of them, acted under color of state authority to maliciously and wrongfully cause a rescission of the duly issued amended Water License and to thereafter delay and obstruct all other administrative remedies available to plaintiffs to resolve this water rights issue. Mr. Thomas further made it clear that he would aggressively prosecute Mr. Leen or anyone acting with him if he used, repaired or maintained his Irrigation Ditch prior to a resolution of the water rights licensing issue.
41. In or about April 2011, plaintiffs notified the SWRCB and again asked that the SWRCB approve their Petition for Change. Mr. Thomas continued with his behind-the-scenes campaign to disparage plaintiffs and oppose their Petition for Change. By reason of those communications, which plaintiffs are informed and believe consisted of false statements, improper threats and demands by Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey, the SWRCB refused to act on plaintiffs' Petition for Change until late 2012.
42. After the trial, the Leens observed low flying helicopters over their Property near their Irrigation Ditch. These helicopters typically circled the Leens' house and Property for ten minutes and the passengers in the helicopters appeared to be taking pictures of the Property and the Irrigation Ditch. Based on documents recently provided by the SWRCB, the Leens now know the purpose of these flyovers. By email dated April 4, 2011 (notably, just three weeks after Mr. Leen's acquittal) to Mr. O'Hagan, copied to Mr. Ramsey, Mr. Thomas attempted to draw the SWRCB into a new criminal prosecution against Mr. Leen. Mr. Thomas told Mr. O'Hagan that Mr. Leen was unlawfully impounding water in a dam on his Property. Mr. Thomas attached a photograph to his email which was taken by a helicopter flying over the Leens' home and Property in early April 2011. In late May 2011, Mr. Thomas again emailed the SWRCB about Mr. Leen's alleged improper dam. This time, Mr. Thomas emailed Nathan Jacobsen of the SWRCB and claimed that "Mr. Leen was caught rebuilding the dam" in 2002. In this communication, Mr. Thomas asked Mr. Jacobsen to reach-out to Mr. Lane and Ms. Marr for more information. Mr. Thomas closed the email by wishing Mr. Jacobsen luck in this endeavor to go after Mr. Leen. These allegations were false, and Mr. Thomas knew it. Mr. Thomas had spent days reviewing Mr. Leen's property, including photographs and maps, during the criminal trial. He knew, or should have known, based on the many items admitted as trial exhibits, that there was only one water impoundment with a dam on Mr. Leen's property and that it had been there long before Mr. Leen purchased the Property. He had heard the sworn testimony of a civil engineer, Sean Santillan, who had performed maintenance work on the water impoundment area in the late 1970's or early 1980's. Secondly, Mr. Thomas's claim that a spillway area was constructed in 2002 by Mr. Leen was also false. Mr. Thomas knew that the aforementioned spillway had been present since the dam was created and that the only thing that happened in 2002 was Mr. Leen's neighbor installed a culvert into the dam. Later, this area was washed-out during winter storms in 2002/2003. Mr. Leen did not rebuild it or attempt any kind of repair, because he was told that if he touched that part of his Property, he would leave his Property in handcuffs. Finally, Mr. Thomas's accusation that Mr. Leen was caught rebuilding the dam was also false. Mr. Thomas was apprised of every event that had to do with Mr. Leen's criminal trial and Mr. Thomas knew that Mr. Leen had never been "caught" rebuilding the dam. Mr. Thomas had no factual basis to make such statements. He made these statements to ensure that plaintiffs would continue to be denied their property rights.
43. At about the same time that Mr. Thomas was privately communicating with the SWRCB in an attempt to bring new charges against Mr. Leen, plaintiffs, through counsel, reached out to Mr. Thomas, because they naively believed that Mr. Thomas would respect the outcome of the criminal case and cease his misconduct. Mr. Thomas informed plaintiffs' counsel that he would not withdraw his protests to the Leens' amended Water License in light of Mr. Leen's acquittal. Mr. Thomas refused to withdraw his protests absent unwarranted concessions by the Leens (i.e., that plaintiffs agree to the Restoration Plan). Counsel for plaintiffs confirmed this communication, with a copy to the SWRCB, by letter to Mr. Thomas dated May 5, 2011. Mr. Thomas responded in an email dated May 9, 2011, strongly denying that he demanded regulatory concessions from plaintiffs as a condition of withdrawing his protest, and yet in communications with the SWRCB as late as September 2012, he continued to condition his withdrawal of the protests on such concessions.
44. Plaintiffs are informed and believe that Mr. Thomas's communications, which were a continuation of his previous false statements about the Property, caused the SWRCB to refuse to act on plaintiffs' request for the amended Water License. And so, the Petition for Change, which had been filed in June 2008, continued to stay on hold with no apparent end in sight. Plaintiffs were required to continue to pay approximately $1000 per year to maintain the administrative process. Plaintiffs are informed and believe, based on repeated threats by Mr. Thomas and representatives of Fish and Game, that if they used, maintained, or otherwise improved their irrigation ditch, they would be subjected to civil fines and penalties and possibly criminal charges.
45. Plaintiffs are informed and believe that Mr. Ramsey knew about, authorized and ratified the conduct of the individually named defendants herein. During the pendency of the criminal case, in or about 2006 and 2007, Mr. Leen spoke with Mr. Ramsey. In one such instance, Mr. Leen was at Mr. Ramsey's office making a presentation on why Mr. Thomas's demands for restoration were extreme and without merit. Mr. Ramsey clearly indicated that he knew about and fully supported Mr. Thomas's actions. Indeed, in presentations before the Board of Supervisors, when discussing budgeting for the District Attorney's office, including obtaining a travel allowance for Mr. Thomas to supplement his Fish and Game paycheck, Mr. Ramsey stated that he was well aware of Mr. Thomas's actions in regard to Mr. Leen and others in Butte County. Mr. Ramsey had direct and indirect knowledge of Mr. Thomas's continuing and relentless misconduct, he specifically authorized and directed it, and he responded with deliberate indifference, thereby ratifying, encouraging, facilitating, aiding and abetting the unlawful conduct of Mr. Thomas.
46. On May 16, 2012, the Leens filed the instant action. After many years of collecting dust on the SWRCB shelves, the Leens' Petition for Change saw the light of day. The SWRCB contacted the Leens and scheduled a field investigation for September 11, 2012.
47. On the day before the site investigation, Mr. Lane and Mr. Thomas tried one last time to improperly influence the SWRCB. On September 10, 2012, Mr. Thomas sent an email to Kathy Mrowka of the SWRCB, copied only to Mr. Lane, in which he attempted to paint Mr. Leen as a criminal even though he had been acquitted of all charges. Mr. Thomas told Ms. Mrowka that another man, Mr. Frank Green, was also charged in 2003 for helping Mr. Leen perform this "streambed alteration," that Mr. Green was convicted of a Fish and Game Code violation for that act, and that Mr. Green's admission of guilt should be attributed to Mr. Leen. Mr. Lane also did what he could to influence the SWRCB the day before the site visit. He submitted a letter to Kathy Mrowka at the SWRCB and urged that the SWRCB do what the jury decided in March 2011 that he and Mr. Thomas could not do, i.e., order "that the unnamed streambed be restored to its former (pre 2002) condition as stipulated in the restoration plan previously prepared by River Partners." The criminal case and the "restoration" issues had nothing to do with the September 11, 2012 site visit (which was preparatory to deciding the Petition for Change). As such, these communications were improper and served no legitimate purpose.
48. Mr. Lane actively aided and abetted Mr. Thomas's violation of plaintiffs' constitutional rights. Specifically, after Mr. Leen was acquitted, and a mere one day before the SWRCB finally scheduled its site inspection of Mr. Leen's property, Mr. Lane wrote letter dated September 10, 2012 to SWRCB protesting Mr. Leen's water rights on the grounds that (a) Mr. Leen's unnatural manipulation of his streambed was a wrongful act which created harm to future groundwater recharge as well as problems for groundwater users downgradient of Mr. Leen's property; and (b) that the streambed should be restored to its pre-2002 condition as stipulated in the proposed restoration plan. Mr. Lane knew at the time that this was a false and misleading statement. He had heard Mr. Leen's expert, Mr. Brown, testify at the criminal trial about these very issues and present clear, compelling evidence that Mr. Lane's theories and contentions were without factual or scientific support. The irrigation ditch had been in place dating back to 1947, which directly refuted the contention that Mr. Leen created the diversion in 2002. There was no connectivity between the irrigation ditch and groundwater. Mr. Lane did not rebut that testimony, and he was aware, at the time that he made the 2012 statement to the SWRCB, that the jury specifically rejected the charges arising from this claim. Despite this, Mr. Lane, at the direction of Mr. Thomas and for the purpose of aiding and abetting these violations of plaintiffs' constitutional rights, continued to work behind the scenes to ensure that plaintiffs' rights would not he restored. Mr. Lane had no rational basis for making the factual statements in his letter dated September 10, 2012. His sole purpose was to convince the SWRCB to implement the "restoration plan" (which was wrongfully conceived and without factual basis) something he and Mr. Thomas were unable to accomplish in the criminal action.
49. On November 13, 2012, Mr. Thomas urged another colleague at Fish and Game, Tina Bartlett, also a Regional Manager, to write to the SWRCB setting forth Fish and Game's continued protest of the Petition for Change, and request that further conditions be placed on the amended Water License.
50. On February 6, 2013, the SWRCB issued a decision which approved the Leens' Petition to Change their POD. Although the Leens did not and do not agree with everything in the decision, they decided not to submit a protest thereto because they desperately wanted the ability to use and irrigate their land. Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey did not directly respond or comment in any way on the SWRCB's decision to grant the Petition for Change. The Butte County District Attorney's Office and Fish and Game each sent letters indicating that their respective offices would not be protesting the SWRCB's decision. This may signal the conclusion of a decade-long struggle with Mr. Thomas and those who do his bidding. However, plaintiffs are informed and believe that Mr. Thomas is relentless in his quest for what he oddly defines as justice (i.e., to impose his environmental theories and beliefs on those he pursues no matter how misguided or at odds with the facts and science). Plaintiffs are therefore convinced that unless and until they have a judgment against Mr. Thomas, such that he can see the actual consequences of his misconduct, Mr. Thomas will find a way, directly or indirectly, to further threaten, intimidate and harass plaintiffs.
51. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 50 as though set forth fully herein.
52. Plaintiffs were subjected to continuing arbitrary and irrational treatment by defendants and each of them for close to a decade. Plaintiffs complied with all laws and regulations pertaining to the right to receive the amendment to their Water License. They duly applied for an amendment to their Water License in 2007, completed all the necessary paperwork and inspections, and were granted the amendment in January 2008. The Leens fulfilled all the qualifications necessary for obtaining a benefit under state law. Approximately one month later, the SWRCB abruptly and without cause rescinded its approval but assured the Leens that they would have the opportunity to resolve the matter once the criminal case concerning the Irrigation Ditch was concluded. After Mr. Leen was acquitted of all charges in the criminal case, the SWRCB still refused to act on plaintiffs' application because Mr. Thomas, Mr. Lane and Ms. Morey continued to assert a protest to the proposed amendment to the Water License. Absent in this discourse was any substantive reason from the SWRCB as to why the clearly biased and scientifically baseless objectives from another agency served as a rational basis for refusing to act on the application. The Leens therefore continued to pay $1000 per year for the privilege of having an application pending in order to avoid the permanent loss of their Water License. In addition, plaintiffs have incurred thousands of dollars of legal fees and costs in trying to preserve and protect their water rights from Mr. Thomas and those who have aided, abetted, facilitated and encouraged him. The plaintiffs, in defending their rights, exhausted their personal savings, including money that had been reserved for their childrens' college education.
53. For the past ten years, plaintiffs were deprived of their right to make beneficial use of the Irrigation Ditch water for their ranching and other irrigation needs. Plaintiffs could not maintain and repair their Irrigation Ditch, including the crossings for cattle. In once instance, a pregnant heifer (i.e., a female that has never had a calf) broke her hip trying to cross over the pond area during a storm. The heifer tried to get out of the pond, but due to her broken hip, was unable to do so. Due to the stress on the heifer as she tried to get out of the ponded area, the heifer went into premature labor and had her calf. The calf was born into the muddy pond and suffocated. The heifer had to be destroyed because of her broken hip. The only reason Mr. Leen was unable to help the heifer and the calf was because he was told by Fish and Game that if he touched that area of his Property, he would leave in handcuffs. Mr. Thomas reiterated this position over the years. Notably, in Fish and Game's final protest letter by Ms. Bartlett, dated November 13, 2012, the complaint was that the Irrigation Ditch had fallen into disrepair such that it was unsafe, and further that the amendment should be conditioned on completing these repairs. This was traumatic to the Leen family as well as a financial loss to them. They also could not remove any of the water from their ditch. It will take many years for plaintiffs to financially recover from the economic damage caused by Mr. Thomas and the other defendants named herein.
54. There is nothing unique or environmentally fragile about plaintiffs' farm and ranch land. This was the undisputed opinion of the experts called at trial by the defense (the district attorney did not call any experts to counter these opinions). Plaintiffs, like their neighbors who share this flow of irrigation runoff, make good use of the water for crops and ranching needs. Plaintiffs are informed and believe that the SWRCB has not refused to process applications or denied water licensing rights, including requests for reasonable and justified amendments to water licenses, to other similarly situated persons in farming regions of California, including Butte County, California. Likewise, plaintiffs are informed and believe that no other water licenses in Butte County have been issued a POD correction only to have the license summarily rescinded based on an orchestrated campaign of harassment by regulators. As well, plaintiffs are informed and believe that the SWRCB is required to promptly review and decide applications for the amendment of water licenses, and typically does so for the citizens of this state. What was different in this case was a relentless campaign of misinformation and veiled threats implemented by Mr. Thomas, Mr. Lane, Ms. Marr and Ms. Morey.
55. As further evidence of the arbitrary and capricious manner in which the defendants have acted, Fish and Game authorized Caltrans in April 2013 to go onto the Leens' Property and clear out the same irrigation ditch that Mr. Leen tried to clean when charges were brought against him. The Caltrans employee in charge of the clean-up spoke to Mr. Leen about the project (which was done to repair a fence and re-establish the fence line on the Leens' Property so that their cattle did not escape onto public roads) and learned that Mr. Leen was afraid to repair the fence himself given his history with Mr. Thomas and Fish and Game. Therefore, in an abundance of caution, the Caltrans employee reached out to Ms. Marr at the Department of Fish and Game and asked for permission to complete the work. Ms. Marr referred him to Tim Nozzle, also with Fish and Game, who gave the green light to the project. Thus, Fish and Game in April of this year agreed to allowed Caltrans clean the Irrigation Ditch. While Ms. Bartlett of Fish and Game, in her November 13, 2012 protest letter, issued a veiled threat if the Leens ever in the future wish to cut back vegetation along the Irrigation Ditch, Fish and Game approved work by Cal Trans that cut back large piles of trees and brush.
56. Plaintiffs have been singled out for disparate treatment by these regulators in order to harass and punish Mr. Leen for refusing to bend to Mr. Thomas's will and for later prevailing in the criminal case. Mr. Thomas and others at Fish and Game made it clear through their actions in 2011 and 2012 that they were not prepared to accept the outcome of the criminal case and that it is, in effect, personal for them. Mr. Thomas, in particular, continued (years after the criminal trial concluded) to exhibit malignant animosity for Mr. Leen by unlawfully assisting, aiding and abetting regulators in other state agencies in a campaign of intimidation and harassment in order to (a) wrongfully delay and obstruct the Leens' lawful application for an amendment to their Water License; and (b) coerce from the Leens' land use agreements and/or improper restrictions on the Leens' use and enjoyment of their irrigation ditch, which the regulators and Mr. Thomas would not otherwise be able to obtain. Mr. Thomas also claimed that he would not withdraw his objections to the application for an amended Water License until and unless Mr. Leen agreed to resume negotiations with Fish and Game over the return to what Mr. Thomas regards as the Property's natural and historic conditions. The Leens have lived in constant fear of retribution by these state regulators and the District Attorney's office, including fear of unlawful arrest and/or imprisonment if Mr. Leen attempted to maintain and manage farm irrigation water runoff and other natural storm water flow over his land, including his Irrigation Ditch, without first resolving his water licensing issues. All the while, Mr. Thomas, Mr. Lane, Ms. Morey and Ms. Marr all worked behind-the-scenes to delay and obstruct the processing of plaintiffs' application to amend the Water License. Mr. Thomas's supervisor, Mr. Ramsey, ratified, approved and/or willfully ignored such misconduct. Defendants and each of them have acted as alleged herein with the intention of causing injury to plaintiffs, with a willful and conscious disregard for the rights of plaintiffs, and with the intention of depriving plaintiffs of property and legal rights, causing injury to plaintiffs.
57. The actions of defendants and each of them bear no relation to public health, safety, morals or the general welfare of the state. The motive was to help Mr. Thomas achieve an unfair advantage in a criminal proceeding and to support fellow regulators — right or wrong — to make certain that private citizens understand the absolute power of state regulators over their lives and property. And after the criminal trial, the motive was to appease and assist Mr. Thomas in his continued campaign to impose his will on plaintiffs.
58. Defendants Mr. Thomas's, Mr. Lane's, Ms. Morey's and Ms. Marr's actions, as described herein, have violated the rights of plaintiffs under the Fourteenth Amendment to the United States Constitution by depriving plaintiffs of their right to the use and enjoyment of their property without due process of law.
59. Defendants Mr. Thomas's, Mr. Lane's, Ms. Morey's and Ms. Marr's actions, as described herein, have violated plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by depriving plaintiffs of their right to equal protection under the law. Defendants' actions deprived plaintiffs of their right to equal protection under the law by subjecting plaintiffs to improper, arbitrary and irrational regulatory actions with no legitimate basis. The requested amendment to the Water License was a simple, routine process that is typically completed for similarly situated citizens and property owners in a matter of weeks so that farmers and ranchers can obtain lawful access to their irrigation ditches. The process is also typically transparent and all agency communication about what is or is not required is clearly conveyed. There is typically a written application, an inspection and prompt notification of the decision by the agency. Here, on account of the wrongful actions of said defendants (i.e., the refusal to process the Leens' application), plaintiffs were singled out and subjected to an indeterminate and secret regulatory process, for which there is no end in sight nor reason given.
60. Defendants Mr. Thomas, Mr. Lane, Ms. Morey and Ms. Marr individually and collectively violated clearly established constitutional or other rights, of which the defendants knew, or of which reasonable public officials should have known, rendering defendants liable to plaintiffs under 42 U.S.C. section 1983.
61. Mr. Ramsey's acquiescence in and ratification of the constitutional deprivation of the Leens showed a reckless or callous indifference to the rights of plaintiffs. By such actions and/or inactions, Mr. Ramsey permitted defendants Mr. Thomas and Mr. Lane to engage in the following improper practices: (a) unlawfully interfering with plaintiffs' petition to amend their Water License; (b) allowing a bad-faith rescission, denial, delay and/or obstruction of plaintiffs' efforts to amend their Water License; (c) allowing their employees to provide false and misleading information to the SWRCB for the purpose of delaying and obstructing the processing of a Petition for Change to plaintiffs' Water License and assisting Mr. Thomas in his prosecution of the criminal case against Mr. Leen; (d) assisting Fish and Game employees with lodging protests to plaintiffs' Water License based on information that they knew or should have know was false or without merit; and (e) assisting Fish and Game employees with threatening, intimidating and punishing plaintiffs for their failure to consent to improper regulatory demands.
62. Wherefore, as against defendants and each of them, plaintiffs seek damages suffered proximately caused by their wrongful conduct in an amount to be proven at trial. Defendants have acted as alleged herein with the intention of causing injury to plaintiffs, with a willful and conscious disregard of the rights of plaintiffs, and with the intention of depriving plaintiffs of property and legal rights, causing injury to plaintiffs. Plaintiffs are thereby entitled to all damages suffered therefrom, as well as exemplary and punitive damages.
63. Plaintiffs also seek injunctive relief to protect plaintiffs from continued animosity, threats, harassment and intimidation by Mr. Thomas and those acting at his behest, concerning plaintiffs' property and water rights. While his employers — Fish and Game and the District Attorney's Office — agreed in 2013 not to oppose the SWRCB's February 6, 2013 decision to approve the amendment to the Leens' Water License, the Leens have received no personal assurances from Mr. Thomas that this nightmare is really over. The history of this case predicts that Mr. Thomas will continue to use back channels to instigate and promote improper regulatory action against the Leens. Further, plaintiffs have no other reasonable means by which to compel Mr. Thomas and those willing to assist him to cease their misconduct. Mr. Thomas typically works by emails and telephone calls to other agencies, and having been caught in the act here, he will develop still more surreptitious ways to cover his tracks. Plaintiffs also fear further threats to Mr. Leen's liberty if Mr. Thomas and/or Mr. Ramsey subject him to or ratify unwarranted and wrongful criminal prosecutions. Plaintiffs fear a future of unwarranted regulatory enforcement actions, draining what remains of their now limited resources.
1. For all special and general damages, as well as consequential and economic damages, in a sum in excess of the minimum jurisdiction of this Court, together with prejudgment interest accrued thereon at the statutory rate, and such further sums as will be shown according to proof.
2. For an award of exemplary and/or punitive damages.
3. For costs of suit herein incurred, including attorneys' fees and costs incurred by plaintiffs in responding to and protecting plaintiffs' rights in connection with the harm caused by defendants, and incurred by plaintiffs as a result of defendants' wrongful conduct, as set forth herein.
4. For such other and further relief as the court may deem just and proper.
5. Plaintiffs demand a jury trial.
