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Stew Farm, Ltd. v. Natural Resource Conservation Service

United States District Court, S.D. Ohio

August 26, 2013

STEW FARM, LTD., Plaintiff,

Page 1165

For Stew Farm, Ltd., Plaintiff: Richard Todd Ricketts, LEAD ATTORNEY, Ricketts Co., LPA, Pickerington, OH.

For Natural Resource Conservation Service, Defendant: John J. Stark, LEAD ATTORNEY, U.S. Attorney Office, Columbus, OH.

For Pickaway County Soil and Water Conservation District, Defendant: Mark David Landes, LEAD ATTORNEY, Aaron Michael Glasgow, Isaac Wiles Burkholder & Teetor, LLC, Columbus, OH.

For Watershed Management, LLC, Defendant: Scott Evan Williams, LEAD ATTORNEY, Hammond Sewards & Williams, Columbus, OH; Michael N Beekhuizen, Carpenter & Lipps LLP, Columbus, OH.

For Carl Hamman, Defendant: Scott Evan Williams, LEAD ATTORNEY, Hammond Sewards & Williams, Columbus, OH.

For Douglas Kohli, Defendant: Aaron Michael Glasgow, LEAD ATTORNEY, Isaac, Wiles, Burkholder & Teetor, LLC, Columbus, OH.




Page 1166


Plaintiff Stew Farm, Ltd. brings this action for money damages and declaratory judgment against the Natural Resources Conservation Service, the Pickaway County Soil and Water Conservation District, and private Defendants Watershed Management, LLC, Carl Hamman, and Douglas Kohli. This matter is before the Court on Defendant Natural Resources Conservation Service's Motion to Dismiss (Doc. 16), Defendants Watershed Management, LLC and Carl Hamman's Motion for Judgment on the Pleadings (Doc. 17) and Motion to Dismiss the First Amended Complaint (Doc. 43), Defendant Pickaway County Soil and Water Conservation District's Motion to Dismiss for Lack of Jurisdiction (Doc. 30), and Defendant Douglas Kohli's Motion to Dismiss for Failure to State a Claim (Doc. 42). All of the motions are fully briefed and ripe for review. For the reasons that follow, all of the Defendants' Motions are GRANTED.


Plaintiff Stew Farm is an Ohio limited liability company whose principal place of business is located in Pickaway County, Ohio. Plaintiff is the owner of an approximately 300 acre farm located off Caldwell Road in Pickaway County (" the Farm" ). (Am. Compl. ¶ ¶ 1, 21). Defendant The Natural Resources Conservation Service (Natural Resources), formerly known as the Soil Conservation Service, is an agency within the United States Department of Agriculture that works with landowners, state and local governments, and other federal agencies to provide conservation planning and assistance on private lands to benefit the soil, water, air, plants, and

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animals. See 7 U.S.C. § 6962 (authorizing Secretary of Agriculture to establish and maintain Natural Resources Conservation Service); 7 C.F.R. Parts 600 (Organization) and 601 (functions assigned); see also " About NRCS -- A Legacy of Conservation" available at

Defendant the Pickaway County Soil and Water District (" Pickaway County" ), is an instrumentality of the State of Ohio and Pickaway County that shares office space with Natural Resources, and its employees are supervised by employees of Natural Resources. (Am. Compl. ¶ 3). Defendant Doug Kohli is an employee of Pickaway County and has served as a district technician in the offices of Pickaway County and Natural Resources. Mr. Kohli was responsible for supervising the projects at issue in this case. (Am. Compl. ¶ 4). Defendant Watershed Management, LLC (" Watershed" ) is an Ohio limited liability company that conducts business in Ohio, including Pickaway County. (Am. Compl. ¶ 5). Defendant Carl Hamman is an owner or manager of Watershed and made certain representations regarding the issue in this case. (Am. Compl. ¶ 6). Plaintiff Stew Farms seeks money damages and declaratory relief from the aforementioned Defendants based on the installation of grassed waterways for a previous owner, John Neff, by Defendant Watershed.

In 2008, Stew Farm purchased its farm from John Neff. Mr. Neff began experiencing drainage and erosion problems on the Farm after a township road project in 2005 altered the flow of the water in the area. Mr. Neff discussed the issue with the Pickaway County Engineer and the Township Trustees, and Mr. Kohli. Kohli suggested the construction of two grass waterways on the Fram to prevent further erosion of the Farm. Kohli had explained that Neff could receive federal funding for up to 90 percent of the cost of construction as well as rental fees for maintaining the land in a conservation use. Neff and Watershed Management entered into an oral contract whereby Watershed Management agreed to charge Neff the same amount as Neff would be reimbursed from the federal government for installing the waterways, plus any additional fees for extra materials or required work. Kohli designed the waterways and Watershed Management finished the work. Kohli examined the waterways and certified they were constructed as designed and working properly. Kohli forwarded his plans and certification to Defendant Natural Resources, which agreed with Kohli's assessments and certified that the waterways were satisfactorily completed so that Neff could receive federal reimbursement. See Watershed Mgmt. LLC v. Neff, 2012 Ohio 1020, 2012 WL 832829, ** 1--2.

Neff also certified that the waterways had been constructed as designed and requested federal reimbursement. Federal reimbursement was approved and the funds were paid to Neff. But Neff did not pay his bill to Watershed, believing there was a lip, or ridge, along the edge of the grassed waterways that prevented his fields from draining. In April 2009, Watershed filed a breach of contract action against Neff in the Court of Common Pleas in Pickaway County since Neff had not paid for the work. 2012 Ohio 1020, Id . at *2; Watershed Mgmt. LLC. v. Neff, 2009-CI-0188 (Ex. A, LLC Trial Ct. Docket Sheet). In May 2009, Neff counterclaimed for breach of contract and breach of warranty. Id . Neff failed to present any evidence of damages due to the waterways he claimed were defective, so the court granted summary judgment to Watershed on Neff's counterclaims. The court of appeals affirmed the trial court's judgment for Watershed Management on Neff's counterclaims.

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Watershed Mgmt., 2012 Ohio 1020, 2012 WL 832829 at **9-10.

At the same time Neff filed his counterclaims in May 2009, Plaintiff Stew Farm moved to intervene in the action. Ex. A (May 20, 2009 Trial Court Docket Entry). The trial court denied Stew Farm's motion. The trial court found that the dispute between Neff and Watershed was about the contract to construct the waterways and that Stew Farm was unrelated to that transaction and had not demonstrated any entitlement to intervene. Watershed Mgmt., 2012 Ohio 1020, 2012 WL 832829, at *3. Plaintiff Stew Farm then initiated this action in April 2012, one month after the Ohio Court of Appeals issued its decision affirming in part, reversing in part, and remanding to the Court of Common Pleas, Pickaway County in Watershed Mgmt. LLC v. Neff, 2012 Ohio 1020, 2012 WL 832829, ** 1-2. Despite knowing about the state court dispute no later than May 2009 when it tried to intervene, Stew Farm alleges that it first learned in August, 2010 that " the Waterways were not properly designed by Defendants NRCS, PCSWD, Mr. Kohli and/or its TSP." (Am. Compl. ¶ 50). Plaintiff further alleges that Defendants failed to properly inspect and improperly certified the work on the waterways and violated applicable federal law. (Am. Compl. ¶ ¶ 50-57).

Stew Farm alleges that Defendant Watershed was a Natural Resources " Technical Service Provider" (" TSP" ). According to Stew Farm, the TSP is directly responsible to the landowner for the failures of the services they provide, and Natural Resources and Pickaway County are responsible for supervising and certifying that the project was constructed and installed in accordance with " applicable federal law."


A. Rule 12(b)(1)

Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction. Under the Federal Rules of Civil Procedure, " [p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion . . . ." Weaver v. Univ. of Cincinnati, 758 F.Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg' Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F.Supp.2d 1008, 1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) (" The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction" ).

Motions under Rule 12(b)(1) generally come in two varieties, either facial or factual attacks on the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack on the subject matter jurisdiction alleged by a complaint merely questions the sufficiency of the pleading. Id . In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard employed under Rule 12(b)(6) motions to dismiss. Id . On the other hand, when a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); see also Nat'l Ass'n of Minority Contractors v. Martinez, 248 F.Supp.2d 679, ...

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