IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM F. HOLDNER, D.B.A. 

HOLDNER FARMS 

Plaintiff, 

v. 

PORTLAND DIVISION 

KATY COBA, DIRECTOR OF OREGON 

DEPT. OF AGRICULTURE, IN HER 

INDIVIDUAL AND OFFICIAL CAPACITY; 

DICK PEDERSON, DIRECTOR OF THE 

OREGON DEPT. OF ENVIRONMENTAL 

QUALITY, IN HIS INDIVIDUAL AND 

OFFICIAL CAPACITY, 

Defendants. 

ACOSTA, Magistrate Judge: 

Civ. No. 3:15-cv-2039-AC 

OPINION AND ORDER 

Plaintiff William Holdner ("plaintiff') brings this civil rights and declaratory judgment 

lawsuit arising from the Oregon Department of Agriculture's regulation of plaintiffs cattle ranch 

and plaintiffs subsequent criminal prosecution for violation of state water pollution statues. 

Defendants Katy Coba and Dick Pederson ("defendants") move to dismiss plaintiffs lawsuit for 

lack of standing and for failure to state a claim (ECF No. 12). For the reasons discussed below, 

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defendants' motion 1s GRANTED and the complaint (ECF no. 1) 1s DISMISSED with 

prejudice.1 

Background 

Since 2007, State of Oregon authorities ("state authorities") have attempted to prevent 

plaintiff from discharging animal wastes from his cattle ranching operation into state waters, and 

to bring his beef facility operation under a state Confined Animal Feeding Operation ("CAFO") 

permit, as required by state law. These efforts culminated in civil administrate proceedings, a 

criminal prosecution, and two civil suits plaintiff filed in this court in an attempt to enjoin the 

State authorities from bringing enforcement actions against him. In every forum, the issues were 

adjudicated in favor of the state authorities. 

I. Civil Suits 

On August 20, 2009, plaintiff filed a civil action in the U.S. District Court, District of 

Oregon against the Oregon Department of Agriculture ("ODA"), entitled Holdner v. Oregon 

Department of Agriculture, Case No. 3:09-979-AC, challenging ODA's regulatory authority and 

the evidence supporting its administrative enforcement actions against him. 2009 WL 5149264 

(D. Or. Dec. 23, 2009). The court granted summary judgment in favor of the ODA, stating that 

plaintiff "failed to provide any evidence, or even to allege specific factual allegations, in support 

of his claim," and that he relied "exclusively on the allegation in his complaint and unsupported 

conclusory statements." Id. at * 14. 

Plaintiff filed a second civil action in this district on June 28, 2012, again alleging that the 

state authorities lacked authority to regulate water quality and asserting constitutional claims. 

Holdner v. John Kroger, et al, Case No. 3:12-cv-1159-PK. 2012 WL 6131637 (D. Or. Nov. 6, 

1 Defendants requested oral argument on their motion. The court finds this motion 

appropriate for disposition without oral argument, pursuant to Local Rule 7-l(d)(l). 

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2012).Plaintiff alleged that the state's water quality program was ultra vires and that the State 

generally, and ODA in particular, lacked authority to administer the NPDES program or to 

enforce any state law governing water quality. Id. at *14-*15. He alleged violations of his 

constitutional rights, including substantive due process. The court dismissed this action, stating 

that plaintiff's claims were barred by claim preclusion and the Younger abstention doctrine, and 

noting that plaintiff could have raised his ultra vires claim in any of his prior proceedings. Id. at 

*12-*14. The second civil action was thus dismissed on December 10, 2012. The Ninth Circuit 

affirmed the district court's decision on April 15, 2015, and the Supreme Court denied certiorari 

on October 5, 2015. 

II. State Criminal Proceedings 

On May 19, 2010, plaintiff was indicted on three felony and twenty-five misdemeanor 

counts of water pollution under state law. Plaintiff filed a motion to dismiss, arguing that the 

state lacks authority to regulate his livestock operations, and that the criminal enforcement action 

violated his constitutional rights. He also alleged that his land patent barred any criminal 

enforcement action, and that ODA did not have authority to administer the NPDES program. 

Plaintiff's motion was denied on July 19, 2011. Plaintiffs motions for reconsideration, as well 

as his "Motion to Renew Dismissal of Animal Pollution Charges," also were denied. 

On February 24, 2012, plaintiff was found guilty on 27 counts of water pollution. 

Judgment was entered May 21, 2012. Plaintiffs motion for arrested judgment and new trial 

motion were denied on June 22, 2012, and his conviction was upheld on appeal without opinion 

by the Oregon Court of Appeals on February 5, 2014. State of Oregon v. Holdner, CA No. 

Al51760 (Feb. 5, 2014). The Oregon Supreme Court denied review on June 12, 2014. State of 

Oregon v. William Frederick Holdner, 355 Or. 668, 330 P.3d 27 (Table). 

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On October 3, 2014, plaintiff was convicted of 95 counts of animal neglect. State of 

Oregon v. William F. Holdner, Columbia County Circuit Court Case No. 12-6240. Plaintiffs 

probationary conditions bar him from possessing livestock for a period of five years, until 

December 8, 2019. Plaintiffs appeal of this conviction is pending as of the date of this Opinion. 

III. Plaintiffs Complaint 

Plaintiff filed this lawsuit on October 29, 2015, alleging violations under 42 U.S.C. § 

1983 and requesting a declaratory judgment. Plaintiff's complaint disputes the state's authority 

to regulate livestock operations on his land. Plaintiffs complaint appears to allege three claims: 

(1) a § 1983 claim for deprivation of constitutional due process rights; (2) a claim that the 

Department of Environmental Quality ("DEQ") and ODA acted outside their enforcement 

authority; and (3) a claim that plaintiffs land patent bars the state from regulating water quality 

on plaintiffs land. 

Defendants now move to dismiss plaintiff's complaint under Federal Rule of Civil 

Procedure 12(b)(l) and 12(b)(6). They argue that plaintiff lacks standing to bring this action, 

that claim preclusion and issue preclusion bar his lawsuit, that Eleventh Amendment immunity 

bars his § 1983 claim, that defendants are entitled to qualified immunity, that he may not bring a 

private action under the Clean Water Act ("CW A"), and that he fails to state a claim on which 

relief can be granted. 

Legal Standards 

I. The Court's Review of Pro Se Filings 

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the 

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). When 

dismissing the complaint of a pro se litigant, the litigant "must be given leave to amend his or her 

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complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured 

by amendment."' Karim-Panahi v. Los Angeles Police Dep 't, 839 F.2d 621, 623 (9th Cir. 1988) 

(quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by 

statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en bane)). 

II. Motion to Dismiss 

A motion to dismiss under Rule 12(b)(l) tests the subject matter jurisdiction of the court. 

See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039-40 (9th Cir. 2003). Under 

Article III of the Constitution, federal judicial power extends only to "Cases" and 

"Controversies." U.S. CONST., art. III, § 2, cl. 1. Article III standing thus is a threshold 

requirement for federal court jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 

(1992). At a constitutional minimum, standing requires the party invoking federal jurisdiction to 

establish three elements: (1) injury in the form of an invasion of a legally protected interest 

which is (a) concrete and particularized and (b) actual or imminent, not conjectural or 

hypothetical; (2) a causal connection between the injury and the defendant's conduct; and (3) the 

likelihood, not mere speculation, that a favorable decision will redress the injury. Id. at 560-61. 

Discussion 

I. Standing 

Because it is a threshold requirement for establishing federal court jurisdiction, the court 

first addresses defendants' standing argument. Lujan, 504 U.S. at 559-60. The three elements of 

standing are (1) injury-in-fact; (2) causation; and (3) redressability. Id. at 560. It is the burden 

of the party invoking federal jurisdiction to establish that he has standing. Id. at 561. To provide 

standing, an alleged injury must be a "concrete and particularized" invasion of a "legally 

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protected interest." Id. at 560. The injury must be "actual or imminent, not 'conjectural' or 

'hypothetical."' Id. 

Defendants argue that plaintiff lacks standing to bring these claims because he has not 

alleged an injury-in-fact sufficient to meet the standard set forth by in Lujan. Here, because of 

probationary conditions imposed after his criminal convictions, plaintiff is prohibited from 

possessing livestock. ECF No. 12, Ex. 23, pp. 2; see also State of Oregon v. William F. Holdner, 

Columbia County Circuit Court Case No. 12-6240. Indeed, plaintiff does not allege that he 

possesses a cattle operation. See ECF No. 1. Because plaintiff cannot legally possess livestock 

until December 8, 2019, he has no legally protected interest in livestock as required for standing 

to bring his claims, and can show no "actual or imminent" injury sufficient to meet the standing 

requirement in federal court. 

Plaintiffs pending appeal of his state court criminal conviction for 95 counts of animal 

neglect2 does not affect the court's standing analysis because plaintiff has failed to show that a 

reversal on all 95 counts is sufficiently plausible to meet the "actual or imminent" standard set 

forth in Lujan. 504 U.S. at 560. Further, while plaintiff contends that he plans to lease his 

property to his son to raise cattle, plaintiff does not allege sufficient facts that would establish 

standing to bring claims on behalf of his son. In sum, plaintiff has not met his burden to show 

standing, and therefore fails to establish federal court jurisdiction. 

II. Claim Preclusion 

Equally dispositive of plaintiffs claims is that claim preclusion bars his lawsuit, which is 

substantially similar to the two lawsuits plaintiff previously filed in this court and involves 

2 To the extent that plaintiff asks the court to review his state court criminal conviction, 

his request is denied because the court lacks jurisdiction to review a state court criminal 

conviction unless by habeas petition. 

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claims which were raised or should have been raised in prior administrative and criminal 

proceedings. In Oregon, "[t]he doctrine of claim preclusion ... generally prohibits a party from 

relitigating the same claim or splitting a claim into multiple actions against the same opponent." 

Bloomfield v. Weakland, 339 Or. 504, 510 (2005) (en bane). The claim-splitting rule "forecloses 

a party that has litigated a claim against another from further litigation on that same claim on any 

ground or theory of relief that the party could have litigated in the first instance." Id at 511. 

Moreover, the Ninth Circuit's claim preclusion doctrine bars litigation of any claims that were 

raised or could have been raised in the prior action, and applies when there is: "(!) an identity of 

claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Owens v. 

Kaiser Found Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). 

Plaintiff misquotes Judge Papak's 2012 Recommendation as stating that "claim 

preclusion does not bar Plaintiffs claim."3 On the contrary, Judge Papak clearly stated that 

plaintiffs claims would be ban·ed by claim preclusion. In Holdner v. Kroger, et al, Case No. 

3:12-cv-01159-PK, 2012 WL 6131637 (D. Or. Nov. 6, 2012), plaintiffs second civil action filed 

in this court, Judge Papak stated that claim preclusion barred plaintiffs claims that the ODA 

exceeded its regulatory authority and lacked authority to enforce the CW A because he could 

have raised these claims "in any number of earlier proceedings."4 Id at *7. The claims raised in 

this case are substantially similar to the claims plaintiff alleged in Holdner v. Kroger. As 

plaintiffs prior proceedings were litigated to final judgment on the merits and the defendants in 

3 Plaintiff elsewhere acknowledges that the claims alleged in his complaint have been 

"raised" in previous court proceedings. Comp!. if 4. 

4 As noted, Judge Simon adopted Judge Papak's recommendation and dismissed 

plaintiffs case on December 10, 2012; the Ninth Circuit affirmed the decision, and the Supreme 

Court denied certiorari on October 5, 2015. 

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this action are in privity with the State of Oregon, a party to plaintiffs criminal proceeding, 

plaintiffs claims are barred by claim preclusion. Owens, 244 F.3d at 713. 

Plaintiff also contends his claims are not precluded, citing Doug Decker v. Northwest 

Environmental Defense Centers, 133 S.Ct. 1326 (2013). Plaintiff misreads Decker. In that case, 

respondents invoked federal jurisdiction under 33 U.S.C. 1356(a), which authorizes private 

enforcement of the provisions of the CW A and its implementing regulations. Id. at 1334. 

Petitioners argued that the NEDC's suit was baned by Section 1369(b), which provides for 

'judicial review in the United States courts of appeals of various particular actions by the [EPA] 

Administrator, including establishment of effluent standards and issuance of permits for 

discharge of pollutants." Id. 

The Court agreed with respondents and held that Section 13 69(b) did not bar 

respondents' suit, which originated as a citizen suit brought under Section 1365. That Section, 

the Court held, allows citizen suits against alleged violators of the CW A that seek to enforce an 

obligation imposed by the CW A or its regulations. Decker, 113 S.Ct. at 1334. Here, plaintiffs 

complaint is not brought to enforce any provision of the CW A, and defendants do not allege his 

complaint is barred under Section 1369(b).5 

Because the claims raised in plaintiff's complaint are substantially similar to those 

contained in plaintiffs prior civil suits, the court finds that plaintiffs claims are barred by claim 

preclusion. 

5 Plaintiff also argues that the Decker holding entails that "claim preclusion, ... 

[E]leventh [A]mendment and qualified immunity issues do not bar [his] claims. The court also 

rejects this contention as it appears to be based on a misreading of Decker. 

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III. Issue Preclusion 

Issue preclusion also bars plaintiffs claims because the issues raised in plaintiffs 

complaint were fully litigated to a final judgment on the merits in plaintiffs first federal court 

lawsuit, the state criminal proceedings, and the prior state administrative proceedings. "If one 

tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in 

another proceeding if five requirements are met." Nelson v. Emerald People's Util. District, 318 

Or. 99 104 (1993). First, the issue in the proceedings must be "identical." Id. at 104. Here, 

plaintiff may not relitigate whether the State of Oregon has the authority to regulate plaintiffs 

operations; plaintiff raised this issue as a defense in prior administrative and criminal 

proceedings. Plaintiff also raised the issue of his land patent and his ultra vires claim that the 

ODA lacks authority to enforce the CWA in prior proceedings. The first requirement is therefore 

met. 

Second, the issue must have been "actually litigated" and "essential to a final decision on 

the merits in the prior proceeding." Nelson, 318 Or. at 104. This requirement is met because the 

state criminal and administrative proceedings resulted in judgments for the state. Thus, there has 

been a previous finding that the state and its agents did not act outside their federal and statutory 

authority or in violation of an alleged exemption created by plaintiffs land patent. 

Third, the party to be precluded must have "had a full and fair opportunity to be heard" 

on the issue. Nelson, 318 Or. at I 04. Plaintiff had a full and fair opportunity to be heard on 

these issues in his four prior proceedings. In the prior proceedings, plaintiff presented extensive 

evidence and filed motions in an attempt to prove that the state and its agents acted outside their 

federal statutory authority. Plaintiff thus had ample opportunity to be heard on the issues raised 

in his complaint, and this requirement is met. 

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Fourth, the party to be precluded must have been a party to or "in privity with" a party to 

the prior proceeding. Id. Plaintiff is the party against whom preclusion is sought, and he was a 

party in each of the prior civil lawsuits, and the administrative proceeding, and the defendant in 

the criminal proceeding. This requirement is also met. 

Finally, the prior proceeding must have been "the type of proceeding to which [the] court 

will give preclusive effect." Id. The rules of preclusion apply "where both actions are criminal, 

where the prior action is criminal and the later action is civil, and where the prior adjudication is 

administrative in nature." Shuler v. Distribution Trucking Co., 164 Or. App. 615, 624 (1999). 

The prior proceedings meet these requirements. Because this requirement is also met, plaintiff is 

prohibited by issue preclusion from relitigating the issues raised in this lawsuit. 

IV. Eleventh Amendment Immunity and Qualified Immunity 

Plaintiffs claims are also barred by Eleventh Amendment immunity and qualified 

immunity. The Eleventh Amendment bars a citizen from bringing suit in federal court against 

the citizen's own state regardless of the relief sought. Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 100 (1984). A state agency is immune from suit under the Eleventh 

Amendment because the State is the real party in interest, Durning v. Citibank, NA., 950 F.2d 

1419, 1423 (9th Cir. 1991); similarly, state officials acting in their official capacity are immune 

from suit. Will v. Michigan Dep 't of State Police, 491 U.S. 58, 71 (1989). Because plaintiff has 

sued both agency directors in their official capacities, and the state has not waived immunity, 

defendants are shielded by the state's Eleventh Amendment immunity. 

To the extent that plaintiffs complaint can be interpreted as asserting a claim under 42 

U.S.C. § 1983, defendants are entitled to qualified immunity from such a claim. To avoid 

qualified immunity, plaintiffs complaint must (1) state a claim for civil rights violations; and (2) 

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establish that the constitutional right violated was so clearly established that it would have been 

clear to a reasonable person that the conduct he complains of was unlawful. Ashcroft v. Iqbal, 

556 U.S. 662, 676 (2009) (plaintiff must plead a violation of his constitutional rights); Sweaney 

v. Ada County, Idaho, 119 F.3d 1385 (9th Cir. 1997) (plaintiff initially bears the burden of 

showing the violation of a clearly established federal right). 

As discussed in Sections V and VI below, the court has examined plaintiffs entire 

complaint and finds that he has failed to state a claim for relief under§ 1983 for a violation of his 

constitutional rights, or under any other provision of federal law. Therefore, qualified immunity 

also bars his suit. 

V. CWAClaims 

Plaintiffs complaint appears to allege (1) that the state lakes the authority to enforce the 

CWA, and (2) a claim or "citizen suit" brought under the CW A. Plaintiffs allegations fail to 

state a claim for relief. First, as set forth in the Federal Register, the EPA has affirmatively 

determined that Oregon meets the criteria under the CW A to administer the NPDES permit 

program in lieu of the EPA. "The contents of the Federal Register shall be judicially noticed." 

44 U.S.C. § 1507. Thus, while plaintiff alleges that the state lacks authority to implement the 

CW A pe1mit program, the court need not accept as true allegations that contradict matters 

properly subject to judicial notice in a motion to dismiss. Sprewell v. Golden State Warriors, 

266 F.3d 979, 988, opinion amended on denial ofrehearing, 275 F.3d 1187 (9th Cir. 2001). 

Second, the private action provision in the CW A does not contemplate a lawsuit against a 

state regarding either its authority to enforce its own environmental protection laws or to manage 

its NPDES permitting program. 33 U.S.C. § 1365. Plaintiffs claim that this action is a citizen 

suit under the CW A therefore lacks merit. Furthermore, plaintiff does not seek to enforce 

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effluent standards; rather, he seeks to nullify Oregon's ability to enforce water quality standard. 

Insofar as plaintiff challenges the state's decision to issue, or refuse to issue, a water quality 

permit as not compliant with the CW A, such challenge fails to state a claim because the CWA 

does not provide a federal cause of action to challenge a state agency's issuance of a NPDES 

permit.6 District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C. Cir. 1980). For these 

reasons, plaintiff has not stated a claim for relief under the CW A. 

VI. Failure to Allege Facts 

The court also finds that plaintiff fails to meet the standard for adequate pleadings set 

forth in Fed. R. Civ. P. 12(b)(6). As articulated in Bell Atlantic Corp. v. Twombly, recitation of 

mere labels, conclusions, and elements is insufficient to state a claim for relief. 550 U.S. 544, 

555 (2007). Here, plaintiffs complaint fails to allege any actions taken by either of the named 

defendants. Plaintiff does not allege that he applied for a water quality permit, that a pe1mit was 

denied, or that he currently holds a permit. He does not allege that he owns any cattle or 

livestock, or that he currently operates a CAFO. He alleges no financial loss imposed by the 

State's permitting process, nor any injury caused by any state actor or resulting from a state 

decision. He does not allege or describe any injury caused by the relationship between the EPA, 

the DEQ, or the ODA. In sum, the complaint before the court is a series of legal conclusions 

lacking any allegations which connect either defendant to any specific violation of law. 

Accordingly, plaintiff fails to meet the requirements of Fed. R. Civ. P. 12(b)(6). 

6 Nor does plaintiff have an implied cause of action under the CW A; the Supreme Court 

has held that the CW A's "unusually elaborate enforcement provisions" contain no implied cause 

of action for private citizens. Middlesex County Sewerage Authority v. National Sea Clammers 

Ass 'n, 453 U.S. 1, 13-15, 17-18 (1981). Further, the remedies provided by Congress in the CWA 

foreclose a private remedy under§ 1983. Id. at 19-21. 

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VII. Leave to Amend 

If the court dismisses a complaint, it must decide whether to grant leave to amend. See 

28 U.S.C. § 1653. The Ninth Circuit has repeatedly held that dismissal without leave to amend 

is improper, even if no request to amend the pleading was made, unless it is clear that the 

defective pleading cannot possibly be cured by the allegation of additional facts. Snell v. 

Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 

F.3d 668, 692 (9th Cir. 2001)); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). Here, 

plaintiffs complaint is substantially similar to the two civil complaints he previously filed in this 

court, and it contains claims that were or should have been raised in prior administrative and 

criminal proceedings in state court. See Holdner v. ODA, U.S. District Court Case No. 3:09-979-

AC; Holdner v. John Kroger, et al, U.S. Dist. Court Case No. 3:12-cv-1159-PK. Further, his 

claims are barred by Eleventh Amendment immunity and qualified immunity, fail to comply 

with Fed. R. Civ. P. 12(b)(6), and fail to state a claim under the CW A. It is clear that plaintiffs' 

claims cannot be cured by the allegation of additional facts. The comt thus finds plaintiff should 

not be granted leave to amend and the complaint is dismissed with prejudice. 

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Conclusion 

After careful consideration of plaintiffs complaint in light of the Rule 12(b) standard, 

defendants' motions to dismiss (#12) is GRANTED and the complaint (#1) DISMISSED with 

prejudice. 

IT IS SO ORDERED. 

I f 

DATED this_/_ day of June, 2016. 

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' \ JOHN ACOSTA 

Unidd States Magistrate Judge 

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