OLIVER W. WANGER, District Judge.
The Federal Emergency Management Agency and its Administrator, William C. Fugate ("FEMA" or "Federal Defendants") move to dismiss Counts 14, 15, and 16
This case involves a challenge to FEMA's administration of the National Flood Insurance Program ("NFIP") in the Sacramento-San Joaquin Delta ("Delta"). The Coalition is a California corporation that represents the interests of entities and individuals that use Delta water for agricultural purposes. KCWA is a California state agency that contracts for Delta water on behalf of individual water districts in Kern County. Both Plaintiffs allege that they depend on Delta water from the California State Water Project ("SWP") and the Central Valley Project ("CVP"), two of the largest water distribution systems in California.
The SAC was filed on July 23, 2009 against numerous federal agencies, challenging a number of federal activities in and around the Delta. The claims against FEMA, asserted in Claims 14-16 of the SAC, were severed from the remaining claims in the SAC. In Claims 14-16, Plaintiffs allege that FEMA's administration of the NFIP encourages development in the Delta, which adversely affects four species listed as threatened or endangered under the Endangered Species Act ("ESA"): the delta smelt, the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, and the Central Valley steelhead (collectively the "Listed Species"). Plaintiffs further allege that FEMA is administering the NFIP in violation of ESA Section 7, which requires federal agencies to insure, in consultation with the U.S. Fish and Wildlife Service ("FWS") in the case of listed terrestrial and inland fish species such as the delta smelt and the National Marine Fisheries Service ("NMFS") in the case of listed marine and anadromous fish species including listed salmonids, that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. See 16 U.S.C. § 1536(a)(2).
The ESA provides for the listing of species as threatened or endangered. 16 U.S.C. § 1533. ESA Section 7 directs each federal agency to insure, in consultation with FWS or NMFS (the "consulting agency"), that "any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of" any listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). If the agency proposing the action ("action agency") determines that the action "may affect" listed species or critical habitat, the action agency must pursue either informal or formal consultation with the consulting agency. 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the action agency determines, with the consulting agency's written concurrence, that the proposed action is "not likely to adversely affect" a listed species or critical habitat. §§ 402.14(b)(1), 402.13(a). If formal consultation is required, the consulting agency must prepare a biological opinion stating whether the proposed action is likely to "jeopardize the continued existence of" any listed species or destroy or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
The purpose of the National Flood Insurance Act of 1968 ("NFIA") is to provide affordable flood insurance to the general public and reduce the risks and costs of flood damage. 42 U.S.C. §§ 4001(d)-(f), 4011, 4014; Flick v. Liberty Mut. Fire Ins.
The NFIA directs FEMA to make flood insurance available in communities that have (1) evidenced interest in securing flood insurance through the NFIP and (2) adopted adequate flood plain management regulations consistent with criteria developed by FEMA. §§ 4012(c), 4022(a); 44 C.F.R. § 60.1(a). The NFIA mandates that FEMA design the criteria to encourage, to the maximum extent feasible, the adoption of state and local flood plain regulations that will:
42 U.S.C. § 4102(c). FEMA promulgated regulations setting forth the community eligibility criteria in 1976. 41 Fed.Reg. 46,975 (Oct. 26, 1976); 44 C.F.R. §§ 60.1-60.26. Flood insurance is marketed in eligible communities either directly by FEMA or through arrangements with private sector property insurance companies. See 44 C.F.R. § 62.23(a); 42 U.S.C. § 4081.
The NFIA also directs FEMA to implement a "community rating system program" that provides discounts on flood insurance premiums in communities that establish additional floodplain management regulations that exceed FEMA's minimum eligibility criteria. 42 U.S.C. § 4022(b). Participation in the community rating system program is entirely voluntary. Id.
Finally, the NFIA directs FEMA to undertake certain activities peripheral to the NFIP, such as the preparation of maps of the floodplain. The NFIA directs FEMA to "identify and publish information with respect to all floodplain areas, including coastal areas located in the United States," 42 U.S.C. § 4101(a), and update the maps as provided in the statute, § 4101(e)-(i). The mapping activity is based solely on technical evaluation of the base flood elevation and effectively involves drawing a topographic line around the floodplain. See, e.g., § 4104; 44 C.F.R. § 64.3, 65.1-65.17.
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of jurisdiction over the subject matter." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-969 (9th Cir.1981).
A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004), cert. denied, 544 U.S. 1018, 125 S.Ct. 1973, 161 L.Ed.2d 856 (2005):
In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting
The standards used to resolve motions to dismiss under Rule 12(b) (6) are relevant to disposition of a facial attack under 12(b)(1). See Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009) (applying Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) to a motion to dismiss for lack of subject matter jurisdiction). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotation marks omitted). The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted).
The Twombly/Iqbal standard as articulated in Moss is consistent with Ninth Circuit precedent requiring, "[t]he party seeking to invoke the jurisdiction of the federal Courts" to allege at the pleading stage "specific facts sufficient to satisfy" all of the elements of standing for each claim he seeks to press. Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir.2002). "A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing." Whitmore v. Arkansas, 495 U.S. 149, 155-56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). "It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). "The facts to show standing must be clearly apparent on the face of the complaint." Baker v. United States, 722 F.2d 517, 518 (9th Cir.1983). However, contrary to Federal Defendant's assertions, the factual allegations need not be made with particularity beyond that required by Twombly/Iqbal. Applying Moss, 572 F.3d at 969, standing may be based on "nonconclusory factual content, and reasonable inferences from that content,"
Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir.2001). "To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
The doctrine of standing "requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing. Whitmore, 495 U.S. at 155-56, 110 S.Ct. 1717; Schmier, 279 F.3d at 821. To have standing, a plaintiff must show three elements.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted).
The Supreme Court has described a plaintiff's burden of proving standing at various stages of a case as follows:
Id. at 561, 112 S.Ct. 2130; see also Churchill County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir.1998).
In addition, where an organization or association is bringing suit on behalf of its members, that organization or association must demonstrate that: (1) its members would otherwise have standing to sue in their own right; (ii) the interests it seeks to protect are germane to the organization's purpose; and (iii) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
Standing is evaluated on a claim-by-claim basis. "A plaintiff must demonstrate standing `for each claim he seeks to press' and for `each form of relief sought.'" Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir.2009) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). "[S]tanding is not dispensed in gross...." Lewis v. Casey, 518 U.S. 343, 358, n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
Id. at 357, 116 S.Ct. 2174. Plaintiffs must therefore demonstrate standing for each aspect of FEMA's administration of NFIP that they seek to challenge, including FEMA's develop[ment of] the minimum eligibility criteria" in 1976, "determining whether communities satisfy such criteria, updating maps, ... administering the community rating system," and issuing or authorizing the issuance of flood insurance. SAC ¶¶ 216, 199-203, 209, 221.
The SAC alleges that numerous factors are currently contributing to the decline of the Delta and the Listed Species that live in, migrate through, or otherwise depend on the Delta for their survival and continued existence. SAC ¶ 3. Discretionary actions and programs implemented by FEMA and other federal agencies may have adverse effects on the Listed Species and their critical habitat within the Delta. SAC ¶ 6. Plaintiffs contend that FEMA has undertaken certain activities in violation of Section 7(a) of the ESA, by failing to consult with FWS and/or NMFS. Id.
FEMA administers the NFIP, which offers subsidized flood insurance to property owners in eligible local communities. SAC ¶¶ 10, 197-203. It is alleged that this subsidized flood insurance leads to additional development in the flood-prone areas of the Delta. SAC ¶¶ 10, 204. Development in the Delta adversely impacts on the Listed
Under the NFIP, local communities only become eligible for flood insurance once they have adopted "adequate land use and control measures" that are consistent with criteria developed by FEMA. SAC ¶ 197. The criteria are designed to reduce threats to lives and to minimize damage to structures and water systems; they do not address aquatic habitat, threatened or endangered species, or other environmental values. SAC ¶ 200.
FEMA regulates NFIP-participating communities to ensure that they are complying with the program and its eligibility requirements. SAC ¶ 202. FEMA conducts community visits to assess local programs and provide technical assistance to local officials. If a community fails to enforce minimum land-use regulations, FEMA may place the community on probation or suspend its participation in the Flood Insurance Program. Id. The NFIA prohibits other federal agencies from providing loans to property owners in communities that do not participate in the NFIP. SAC ¶ 204. Federally-regulated banks are also prohibited from making, increasing, extending, or renewing any loan secured by property located within a floodplain area unless that property is covered by flood insurance. Id. Thus, the SAC alleges, development within flood-prone areas is inextricably tied to participation in the NFIP. Id.
FEMA further promotes development by providing discounted flood insurance to communities that adopt land-use regulations that go beyond NFIP eligibility requirements. SAC ¶¶ 203, 210. These discounts are granted by a Community Rating System implemented by FEMA which "also rewards activities that are detrimental to floodplains and aquatic species." SAC ¶ 203, quoting Nat'l Wildlife Fed'n v. Fed. Emergency Mgmt. Agency, 345 F.Supp.2d 1151, 1157 (W.D.Wash.2004).
Currently, there are 15 communities in the Delta that participate in the NFIP. SAC ¶ 205. In 2007, the Public Policy Institute of California estimated that over 130,000 new homes were in the planning stages in the Delta. SAC ¶ 206. In the years since the listing of the Listed Species, FEMA has issued hundreds of new individual flood insurance policies for new structures within floodplains utilized by and relied upon by the Listed Species, without consulting with the Fish and Wildlife Service or the National Marine Fisheries Service. SAC ¶ 205. FEMA also continues to revise flood maps, assure community compliance, and review local regulations under the NFIP without consulting under the ESA. Id.
The SAC alleges that FEMA's actions under the NFIP impact the Listed Species by leading to increased development, which (a) destroys the habitat of the Listed Species by converting tidal wetlands to upland development, and (b) increases wastewater and urban runoff from lawns, sidewalks, and roads, which contains pesticides and other contaminants that harm the Listed Species. SAC ¶¶ 207-208, 210. Further, land use activities associated with the increased development, such as road construction, recreation, and agriculture, have significantly altered fish habitat quantity and quality by modifying stream bank and channel morphology, altering water temperatures, and eliminating spawning and rearing habitat. SAC ¶ 208.
According to the SAC, the Coalition is comprised of individual and agricultural
Certain Coalition members have contracts for delivery of water from the SWP and rely on the deliveries of water from the Delta. SAC ¶ 17. Accordingly, the Coalition alleges that its members claim to have a long-term interest in the overall health of the Delta and its ecosystem, including the maintenance of viable populations of the Listed Species. Id. In addition, reduced deliveries of water from the SWP will result in overdraft of the groundwater basins that underlie the lands of Coalition members. SAC ¶ 18. The SAC alleges that reduced water availability and reduced deliveries of SWP water have economic impacts on members of the Coalition because such members are required to pay for the full contractual entitlement, even if the entitlement is not delivered and because the members must develop other sources of water for irrigation of their crops or forego irrigation altogether thus impacting their livelihood. Id.
The Coalition also claims that its members view, enjoy, and use the Delta ecosystem by routinely engaging in various recreational activities in the Delta, including boating, fishing, and wildlife viewing, and have concrete plans to continue to do so in the future. SAC ¶ 19. It is alleged that Coalition members derive significant use and enjoyment from the aesthetic, recreational, and conservation benefits of the Delta ecosystem, including the delta smelt and other Listed Species, and that the decline of the Listed Species has had and continues to have a substantial negative impact on Coalition members, impairing their use and enjoyment of the Delta and the Listed Species. Id.
KCWA is a public agency charged by the California Legislature with the power to acquire and contract for water supplies for Kern County. SAC ¶ 21. KCWA provides a portion of and in some cases the entire water supply for approximately 719,000 acres of farmland and 500,000 residents of Kern County. KCWA depends on SWP deliveries from the Delta for 98 percent of its water supply. SAC ¶ 23. The operation of the State Water Project is, in turn, dependent on the overall health of the Delta and its ecosystem, which includes the maintenance of viable populations of species living in the Delta and protected by the ESA, including the Listed Species. Id. The SAC alleges that FEMA's ESA violations have injured KCWA by reducing the amount of water available to KCWA. SAC ¶ 24.
Federal Defendants concede that Plaintiffs' allegations that FEMA's administration of the NFIP provides an "incentive" for third parties to engage in development, recreation, and agriculture that adversely affect the Listed Species must be assumed true for purposes of a facial 12(b)(1) challenge. Nevertheless, Federal Defendants maintain that Plaintiffs have failed to allege how the operation of any such incentive translates into economic injury to the
Federal Defendants argue that Plaintiffs claims of economic injury are insufficient. The SAC alleges that KCWA and unidentified Coalition members have suffered monetary harm as a result of a reduction in the availability of Delta water. SAC ¶¶ 16-18, 21-24. Specifically, KCWA alleges that it "has a contract with the State of California for a supply of water from the SWP," SAC ¶ 77, and that "KCWA's contract for delivery of SWP water requires payment for its full contract amount regardless of the amount of water actually delivered in any given year through the SWP," SAC ¶ 22. Like KCWA, the Coalition alleges that some of the unidentified contracts for SWP water held by its members "require payment for their full contractual entitlement regardless of the amount of water actually delivered in any given year through the SWP," and that "[r]educed water availability and reduced deliveries of SWP water have an economic impact on members of the Coalition because such members are required to pay for the full contractual entitlement, even if the entitlement is not delivered and because the members must develop other sources of water for irrigation of their crops or forego irrigation altogether thus impacting their livelihood," with additional adverse consequences. SAC ¶ 18.
Federal Defendants complain, however, that neither KCWA nor the Coalition allege any of its members have actually paid their full contract amount in any particular year, despite not receiving its full entitlement of SWP water, due to some particular action of the federal government. Nor do Plaintiffs allege that such a scenario is imminent. Federal Defendants insist that to establish the requisite "personal stake in the outcome," the Supreme Court has "required Plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm." Summers v. Earth Island Institute, ___ U.S. ___, 129 S.Ct. 1142, 1151-52, 173 L.Ed.2d 1 (2009).
Federal Defendants rely on Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), in which plaintiffs challenged FWS's biological opinion regarding the Bureau of Reclamation's operation of the Klamath Irrigation Project. The biological opinion identified certain reasonable and prudent alternatives that would avoid jeopardy, including maintaining minimum water levels in the reservoirs from which Plaintiffs "currently receive[d] irrigation water." Id. at 159, 167, 117 S.Ct. 1154. It was specifically alleged that the restrictions imposed in the biological opinion "adversely affect [plaintiffs] by substantially reducing the quantity of available irrigation water." Id. at 167, 117 S.Ct. 1154.
Federal Defendants maintain that the SAC's "vague allegations bear no resemblance to the specific allegations of immediate harm advanced by the plaintiffs in Bennett," noting that the Coalition merely
First, it is not necessary to identify specific names of members at the pleading stage. See NW Envt'l Defense Ctr. v. Brown, 476 F.Supp.2d 1188, 1192 (D.Or. 2007) (finding sufficient general allegations that organization's members use the bodies of water in question for recreation and that at least one member has been injured by defendant's conduct and acknowledging that the vast majority of cases requiring individual members to come forward were decided on motions for summary judgment.).
Second, although "[a]llegations of possible future injury do not satisfy the requirements of Art[icle] III," Whitmore, 495 U.S. at 158, 110 S.Ct. 1717, Plaintiffs need not show actual harm; "an increased risk of harm can itself be injury in fact sufficient for standing," Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir.2000); see also Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 860 (9th Cir.2004). In Ocean Advocates, the U.S. Army Corps of Engineers authorized the expansion of an oil refinery dock without first preparing an environmental impact statement pursuant to the National Environmental Policy Act. Id. at 855. The Ninth Circuit concluded that plaintiffs, who expressed aesthetic and environmental concerns for the affected area, demonstrated injury in fact because the dock extension would result in increased traffic, which would increase the potential for an oil spill, and an "oil spill would cause a markedly decreased opportunity for [plaintiffs] to study the ecological area, observe wildlife, and use Cherry Point for recreation." Id. at 859-60. To "`require actual evidence of environmental harm, rather than an increased risk ... would unduly limit the enforcement of statutory environmental protections.'" Id. (quoting Ecological Rights Found., 230 F.3d at 1151).
In general, the allegations in the SAC satisfy this requirement by alleging that KCWA and Coalition members rely on water from the Delta for their livelihood and economic wellbeing. SAC ¶¶ 16-17, 21-23. KCWA and Coalition members hold contracts for the delivery of water from the Delta that require payment for the full contractual entitlement regardless of the amount of water actually delivered in any given year. SAC ¶¶ 18, 22. The Complaint also alleges that the combined operation of the Projects is dependent on the overall health of the Delta and its ecosystem, which includes the maintenance of viable populations of the Listed Species. SAC ¶ 23. Further, it is alleged that FEMA's implementation and enforcement of the Flood Insurance Program has contributed to the decline of the Listed Species, SAC ¶¶ 6, 10, 52, 197-210, which in turn injures Plaintiffs by contributing to conditions that require reductions in the Projects' water supply and in the amount of water available to Plaintiffs, SAC ¶¶ 18, 24.
However, Federal Defendants also argue that allegations in the complaint
However, in addition to allegations of economic harm, KCWA alleges that its central purpose is to acquire and contract for water supplies for the different water districts in Kern County and that reduced water availability threatens KCWA's ability to serve its central function. This stand-alone allegation of injury is unaffected by KCWA's status as a wholesaler.
The Coalition and KCWA satisfy the injury-in-fact requirement.
When a plaintiff seeks to vindicate a procedural harm, rather than a substantive right, the causation and redressibility requirements are relaxed:
Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008) (emphasis in original) (internal citations and quotations omitted).
Defenders of Wildlife v. EPA, 420 F.3d 946, 957-58 (9th Cir.2005) ("DOW v. EPA"), reversed on other grounds by National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007), applied this relaxed standard to a claim brought under
But, the reach of this relaxed standard has limits, excusing a plaintiff only from the requirement to plead that the procedurally invalid agency action will, in fact, be modified once the proper procedures are followed:
Lujan, 504 U.S. at 573 n. 7, 112 S.Ct. 2130 (1992).
Similarly, in Summers, plaintiffs claimed that the Forest Service deprived them of their alleged statutory right to comment on a timber sale. The Supreme Court held that plaintiffs adequately alleged standing to challenge the project by "claiming that but for the allegedly unlawful abridged procedures they would have been able to oppose the project that threatened to impinge on their concrete plans to observe nature in that specific area." 129 S.Ct. at 1151. In cases involving procedural injuries the normal standards for redressability and immediacy may be relaxed such that "standing existed with regard to the [project,] for example, despite the possibility that [plaintiff's] allegedly guaranteed right to comment would not be successful in persuading the Forest Service to avoid impairment of Earth Island's concrete interests." Id.; see also Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226-27 (9th Cir.2008) (noting that "[p]laintiffs alleging procedural injury can often establish redressibility with little difficulty, because they need to show only that the relief requested—that the agency follow the correct procedures—may influence the agency's ultimate decision of whether to take or refrain from taking a certain action") (emphasis added).
Under these cases, it may be assumed at the pleading stage, that, if Plaintiffs' succeed, FEMA would have to change the manner in which it administers the NFIP; that the change would lead third-party developers to change or limit their development activities; and that this change would lessen the alleged adverse impacts of development on listed species in the Delta. However, Plaintiffs' claimed injuries
In standard (i.e., non procedural-injury) cases, "[t]here is no redressability, and thus no standing, where ... any prospective benefits depend on an independent actor who retains broad and legitimate discretion the courts cannot presume either to control or to predict." Glanton v. AdvancePCS Inc., 465 F.3d 1123, 1125 (9th Cir.2006). Nothing in the procedural-injury jurisprudence relaxes this rule. See Nuclear Information Resource Service v. Nuclear Regulatory Commission, 457 F.3d 941, 955 (9th Cir.2006) ("NIRS"). In NIRS, the plaintiffs challenged the NRC's decision to revise regulations governing the exemption standards for the transportation of radioactive material. Plaintiffs alleged that NRC failed to comply with its procedural obligations under NEPA. NRC objected that the plaintiffs' procedural injuries were not redressable because the Department of Transportation ("DOT") had promulgated identical exemption standards that would be unaffected by the lawsuit. The Ninth Circuit agreed with NRC and held that plaintiffs lacked standing:
NIRS, 457 F.3d at 955; see also Center for Law & Educ. v. Dept. of Educ., 396 F.3d 1152, 1160-61 (D.C.Cir.2005) (causal chain between alleged procedural violation and injury too attenuated where injury was the result of regulatory action by the State of Illinois permitted but not required by federal agency against whom suit was brought).
Similarly, in Renee v. Duncan, 573 F.3d 903 (9th Cir.2009), California public school students and their parents challenged the Secretary of Education's regulation allowing teachers who participated in "alternative route programs" to be considered "highly qualified" under the No Child Left Behind Act. However, the Act itself also defines "highly qualified" to include a teacher who is fully certified under state law. Id. at 906. California's regulations allow participants in alternative route programs to achieve full certification status— and thus be "highly qualified" under the Act—regardless of the validity of the challenged federal regulation. Id. at 910. The Ninth Circuit held that plaintiffs' injuries
Id. at 911 (internal citation and quotations omitted); Levine v. Vilsack, 587 F.3d 986, 991-997 (9th Cir.2009) (no standing where redressability depended on "independent decision" by agency-defendant which "may be subject to a number of political and legal factors quite independent from" the court's ruling).
However, causation/redressibility may be shown if "a causal relation[ship] is `probable'..., even if the chain cannot be definitively established." Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 867 (9th Cir.2003); see also Coalition v. Koch, 2009 WL 2151842, at *13 n. 6 (E.D.Cal. Jul. 16, 2009) ("So long as there is evidence that the third party, whether possessing a four-chambered heart or not, will behave in a predictable manner, the causal chain is not necessarily rendered `tenuous' for the purposes of the standing analysis.") (emphasis added); see also Loggerhead Turtle v. County Council, 148 F.3d 1231, 1247 (11th Cir.1998) ("standing is not defeated merely because the alleged injury can be fairly traced to the actions of both parties and non-parties" (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130)).
In National Audubon Society v. Davis, 307 F.3d 835 (9th Cir.2002), relied upon in Koch, bird enthusiasts alleged that a California law banning the use of leghold traps to capture or kill wildlife violated the Migratory Bird Treaty Act. Id. at 842-843. Prior to the passage of that California law, federal officials used leghold traps against predators to protect several bird species. Id. at 844. The Ninth Circuit held that plaintiffs had standing to challenge the leghold trap ban, finding their injury was "fairly traceable" to the proposition because:
Id. at 849. "This chain of causation has more than one link, but it is not hypothetical or tenuous; nor do appellants challenge its plausibility." Id.
Here, Plaintiffs challenge FEMA's administration of the NFIP and related programs, and assert alleged harm, in the form of reduced water deliveries, caused by an entirely separate regulatory action. Plaintiffs have pointed to no legal authority suggesting that the regulators of the CVP and SWP are under any legal obligation to change their regulatory actions if FEMA is forced to engage in ESA Section 7 consultation.
Plaintiffs' alleged injury is reduced water deliveries due to the biological opinions issued in connection with the joint operation of the CVP and SWP. As Federal Defendants acknowledge, for the purposes of this motion to dismiss, the court must assume: (a) Plaintiffs will succeed on the merits of their claims against FEMA; (b) FEMA will engage in section 7 consultation which will result in modifications to or elimination of the NFIP in the Delta; (c) third party actors will suspend development activities in the Delta; and (d) this
For the purposes of pleading, Plaintiffs' allegations satisfy the causation and redressibility requirements. Federal Defendants' motion to dismiss the complaint on standing grounds is DENIED with respect to Plaintiffs' economic/water supply delivery theory of injury.
Alternatively, the Coalition alleges that it has standing to vindicate its members' purported interests in "boating, fishing, and wildlife viewing," which supposedly have been harmed by all of the actions misjoined in the SAC. SAC ¶¶ 19-20. Federal Defendants initially argued that this alternative theory of standing fails because (1) according to Coalition's by-laws it "has no members"; and (2) it was not formed to promote anyone's interests in boating, fishing, or wildlife viewing.
The Coalition maintains that the statement in its by-laws that it "has no members" is not dispositive of the existence of membership for purposes of standing. The California Corporations Code defines a "member" of a corporation by the right to vote on significant corporate matters. Cal. Corp.Code § 5056(a). A Nonprofit Mutual Benefit Corporation, such as the Coalition, may "provide in its articles or bylaws that it shall have no members." Cal. Corp.Code § 7310(a). In the case of a corporation with no "members," any action requiring a vote shall only require the approval of the board. Id. § 7310(b)(1). However, the Coalition has non-voting members, as the Coalition's Bylaws explain:
FEMA also argues that the Coalition's purpose is not germane to the recreational and aesthetic interests of its members. To support this argument, FEMA cites to a portion of the Coalition's Articles of Incorporation and 2007 Restated Articles of Incorporation, which state:
McArdle Decl., Doc. 104-2, Ex. 1 at 4-5,
The Coalition does not dispute the absence of any aesthetic/environmental interest in these articles of incorporation. Instead, the Coalition cites to their 2009 Restated Articles of Incorporation, which state:
Hamilton Decl., Doc. 110-2, at ¶¶ 4-5, Exh. 4, p. 1. Similar language is contained within the Coalition's 2009 Amended and Restated Bylaws. Id. ¶ 3, Exh. 3 (Amended and Restated Bylaws) p. 1. However, the 2009 Amended and Restated Bylaws are dated December 2009, while the Restated Articles of Incorporation are dated January 21, 2010. Both post-date the filing of the SAC on July 23, 2009. Doc. 75.
"As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint ... The party invoking the jurisdiction of the court cannot rely on events that unfolded after the filing of the complaint to establish its standing." Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir.2005) (internal quotations and citations omitted); see also Lujan, 504 U.S. at 570 n. 4, 112 S.Ct. 2130 (same). "Subject matter jurisdiction must exist as of the time the action is commenced." Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988).
In the alternative, Federal Defendants argue that the allegations in the SAC are insufficient to satisfy the injury-in-fact requirement based on aesthetic/environmental interests. The relevant standards were set forth in Coalition for a Sustainable Delta, 2008 WL 2899725, at *11-*13.
The SAC alleges that Coalition members visit the Delta and appreciate and use the Delta ecosystem in a variety of ways, including routinely engaging in boating, fishing, and wildlife viewing activities.
The germaneness test for associational standing is not demanding. For example, in Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1159 (9th Cir.1998), plaintiff had organizational standing to assert a claim under the National Environmental Policy Act because the "Club's stated purpose to `improve and maintain grounds and buildings for athletic purposes' implies the corollary purpose of maintaining an environment, both natural and built, suitable for the game of golf and post-game activities." Here, the Coalition's stated purpose of promoting the long-term ecological health of the Sacramento-San Joaquin Delta and its native species directly implicates the conservation and aesthetic interests allegedly expressed by its members. The Coalition's interest in conservation is just as valid as the conservation interests of an environmental organization. Where, as is often the case, the health of an ecosystem impacts the economic well being of humans, those impacted economically can organize themselves to promote conservation.
Federal Defendants also attack the complaint on the ground that it does not allege the name of any individual member whose aesthetic interests have been harmed. But, Federal Defendants point to no authority requiring such specificity in a complaint. Individual members of organizations seeking standing typically file declarations in connection with motions for summary judgment on the issue of standing. See N.W. Envt'l Defense Ctr. v. Brown, 476 F.Supp.2d 1188 (D.Or.2007) ("Most of the cases cited by defendants... hash out this issue in a motion for summary judgment when there is an evidentiary record, typically in the form of a declaration from an individual member explaining their particular use of the area and injury suffered by the environmental harm. Because this is a motion to dismiss, there is no such declaration.").
Nevertheless, the Coalition's conservation interests were not included in the Coalition's Articles of Incorporation until after the SAC was filed. Therefore, this purpose cannot form the basis of the Coalition's standing unless the SAC is amended.
Federal Defendants maintain that it is improper for the district court to grant Plaintiffs leave to amend, citing Morongo, 858 F.2d at 1380, which held: "If jurisdiction is lacking at the outset, the district court has no power to do anything with the case except dismiss." Id. Morongo concerned an Indian tribe's assertion of jurisdiction under various provisions of Title 28. The Ninth Circuit rejected all of the Tribe's asserted bases for jurisdiction and held that, because jurisdiction itself was lacking at the time the complaint was filed, leave to amend should not have been granted. Id. at 1381-87. The Ninth Circuit noted:
Id. at 1382 n. 3. In contrast, where jurisdiction is lacking, "the district court ... ha[s] no power to grant ... leave to amend...." Id.
Here, with respect to the allegations of aesthetic/conservation injury, standing was lacking at the time the complaint was filed. However, Plaintiffs' assertion of standing based on economic injury survives this motion to dismiss. Therefore, subject matter jurisdiction is not entirely lacking and leave to amend may be granted.
For all the reasons stated above, Federal Defendants' motion to dismiss for lack of standing:
(1) DENIED as to Plaintiffs' assertions of economic injury; and
(2) GRANTED as to the Coalition's assertions of aesthetic/conservation injury because the Coalition did not express aesthetic or conservation interests as one of its organizational purposes prior to the filing of the complaint.
Plaintiffs shall have thirty (30) days from electronic service of this memorandum decision to file an amended complaint.
SO ORDERED.
At the same time, Iqbal does not require specificity on the order of that required under Rule 9. To survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 129 S.Ct. at 1949. Thus, while something more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are required, "the pleading standard Rule 8 announces does not require `detailed factual allegations.'" Id. (emphasis added).
