Farnsworth v. Flagstaff

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSEPH FARNSWORTH, et al., Plaintiffs/Appellants,

v.

CITY OF FLAGSTAFF, et al., Defendants/Appellees.

No. 1 CA-CV 20-0483
FILED 1-4-2022

Appeal from the Superior Court in Coconino County
No. S0300CV201900391
The Honorable Ted Stuart Reed, Judge

AFFIRMED

COUNSEL

Davis Miles McGuire Gardner, Tempe
By David W. Williams, Angelika O. Doebler
Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli PLC, Phoenix
By Michele Molinario, Derek R. Graffious, Justin M. Ackerman
Counsel for Defendant/Appellee City of Flagstaff

Arizona Attorney General’s Office, Phoenix
By L. John LeSueur
Counsel for Defendants/Appellees State of Arizona and Arizona Game and Fish
Commission
 FARNSWORTH, et al. v. FLAGSTAFF, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 This is an appeal from the dismissal of a declaratory judgment
action by which Joseph Farnsworth and Patricia Buchanan (collectively,
“Plaintiffs”) challenged the validity of the City of Flagstaff’s municipal
ordinance regulating the feeding of wildlife. We affirm because Plaintiffs
failed to state a claim upon which relief could be granted.

FACTS AND PROCEDURAL HISTORY

¶2 The City adopted the ordinance at issue in 2013. The
ordinance authorized Arizona Game and Fish Commission officers (among
others) to enforce its terms, and the City agreed to Game and Fish’s request
that it serve as the lead enforcement agency.

¶3 From November 2017 through October 2018, Game and Fish
officers issued Plaintiffs multiple citations for violating the ordinance.
Plaintiffs brought a civil action against the City, the State, and Game and
Fish in August 2019. Plaintiffs’ second amended complaint requested
declaratory relief from the ordinance on the theories that the ordinance was
preempted by state law (Count 1) and enforcement had been unlawfully
delegated to Game and Fish (Count 2).

¶4 The defendants moved to dismiss the second amended
complaint under Ariz. R. Civ. P. (“Rule”) 12(b)(6), arguing that the claims
were time-barred and legally insufficient. The superior court granted
dismissal.

¶5 Plaintiffs filed a notice of appeal and a motion for new trial.
In denying the new trial motion, the superior court explained that it had
dismissed the action because (1) Plaintiffs’ claims accrued at the time of the
initial citation in November 2017 and therefore were time-barred under
A.R.S. § 12-821; (2) the ordinance was not preempted by state law; and (3)
Game and Fish had the authority to enforce the ordinance under A.R.S. §§
13-3871 and 17-211.

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 FARNSWORTH, et al. v. FLAGSTAFF, et al.
Decision of the Court

DISCUSSION

¶6 Dismissal under Rule 12(b)(6) is proper when “as a matter of
law [ ] plaintiffs would not be entitled to relief under any interpretation of
the facts susceptible of proof.” Coleman v. City of Mesa, 230 Ariz. 352, 356,
¶ 8 (2012) (citation omitted). We review a dismissal under Rule 12(b)(6) de
novo, assuming the truth of all well-pleaded factual allegations and all
reasonable inferences therefrom. Id. at ¶¶ 8–9. We review the application
of a statute of limitations de novo, looking to the nature of the claim rather
than its form and applying the longer limitations period where two
constructions are possible. Broadband Dynamics, L.L.C. v. SatCom Mktg., Inc.,
244 Ariz. 282, 285, ¶ 5 (App. 2018).

¶7 Under A.R.S. § 12-821, “[a]ll actions against any public entity
or public employee shall be brought within one year after the cause of
action accrues and not afterward.” The statute extends to claims for
declaratory relief. Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 267,
¶ 17 (App. 2013). The limitations period for declaratory relief claims is
determined by “examining the substance of th[e] action to identify the
relationship out of which the claim arises and the relief sought.” Canyon del
Rio Invs., L.L.C. v. City of Flagstaff, 227 Ariz. 336, 341, ¶ 21 (App. 2011)
(citation omitted). When a declaratory relief claim relates to a damaging
event, it must be brought before the expiration of the damages claim’s
limitations period. Id. at ¶ 22. But the claim is not time-barred when the
relief sought is strictly prospective and relates to chilled potential conduct
rather than incurred harm. Cf. id. (holding that “a claim for declaratory
judgment concerning a zoning ordinance cannot be time-barred if it is
brought before a related damage action accrues”); Cook v. Town of Pinetop-
Lakeside, 232 Ariz. 173, 176, ¶ 14 (App. 2013) (holding that “[t]he statute of
limitations does not run against a plaintiff in possession who brings a quiet
title action purely to remove a cloud on the title to his property”).

¶8 In their second amended complaint’s prayer for relief,
Plaintiffs sought declaratory judgment “barring enforcement and
prosecution under the . . . [o]rdinance.” Because that request for relief was
purely prospective, it did not implicate the statutory limitations period.
The superior court’s wholesale dismissal of the second amended complaint
on limitations grounds therefore was error.1

1 To the extent that Plaintiffs suggested in their pleading’s factual
allegations that they sought relief specific to the citations they received, the

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 FARNSWORTH, et al. v. FLAGSTAFF, et al.
Decision of the Court

¶9 We next address whether the dismissal was warranted for the
legal insufficiency of the claims. As an initial matter, we note that Plaintiffs
do not contest the dismissal of Count 1, the preemption claim, on the merits.
We therefore consider any challenge to Count 1’s dismissal abandoned. See
DeElena v. S. Pac. Co., 121 Ariz. 563, 572 (1979).

¶10 With respect to the dismissal of Count 2, the unlawful-
delegation claim, we conclude that Plaintiffs failed to state a claim.
Plaintiffs alleged that the ordinance was invalid because Game and Fish
was not contractually authorized to enforce the ordinance under A.R.S. §
11-952. But § 11-952 does not prohibit agency cooperation absent a
contract—it merely prescribes what a contract between public agencies for
services or the joint exercise of powers (including mutual law enforcement
aid, see A.R.S. § 13-3872) must contain. Indeed, Game and Fish officers are
statutorily authorized to “[g]enerally exercise the powers of peace officers,”
A.R.S. § 17-211(E)(6), and a peace officer’s authority statutorily “may
extend . . . to any place within the state” where, as here, “he has the prior
consent of the chief of police, marshal, sheriff, or other department or
agency head with peace officer jurisdiction, or his duly authorized
representative, having the primary responsibility for law enforcement
within the jurisdiction,” A.R.S. § 13-3871. The City’s assignment of primary
enforcement to Game and Fish through an agreement outside the confines
of § 11-952 has no bearing on the ordinance’s validity.

CONCLUSION

¶11 We affirm for the reasons set forth above.

AMY M. WOOD • Clerk of the Court
FILED: AA

limitations period did apply to bar relief concerning events that occurred
more than one year before Plaintiffs filed their initial complaint.

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