ORDER GRANTING DEFENDANT'S MOTION TO DISMISS IN PART AND DENYING IN PART

JOHN A. MENDEZ, District Judge.

This matter is before the Court on Defendant Tahoe Regional Planning Agency's ("Defendant" or "TRPA") Motion to Dismiss Plaintiffs' Complaint (Doc. #7). Plaintiffs Sierra Club and Friends of the West Shore (Collectively "Plaintiffs") oppose the motion (Doc. #14). Defendant replied (Doc. #16).1 For the following reasons, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs filed their complaint with this Court on February 11, 2013 (Doc. #1). Plaintiffs allege five causes of action against Defendant: (1) Delegation of TRPA's project approval and review duties in violation of the Tahoe Regional Planning Compact ("Compact"); (2) failure of the regional plan to establish and ensure compliance with minimum regional standards; (3) failure to properly make threshold findings pursuant to the Compact and code sections 4.5 and 4.6; (4) failure to adequately analyze significant impacts in violation of the Compact; and (5) failure to mitigate significant impacts in violation of the Compact. Compl. ¶¶ 72-102. Defendant moves to dismiss Plaintiffs' complaint for failure to prosecute, moves to dismiss Plaintiffs' state law claims, and moves to dismiss the first and second causes of action. Plaintiffs' state law claims are not distinct causes of action; instead, they are mentioned as alternatives to Plaintiffs' federal Compact claims in the jurisdictional allegations, Compl. ¶¶ 8-10, and request for relief, Compl. at 32:23-25.

A. The Compact

In 1968, California and Nevada entered into the Tahoe Regional Planning Compact, Pub. L. No. 95-551, 94 Stat. 3233 (1980); Cal. Gov. Code §§ 66800, 66901; Nev. Rev. Stat. §§ 277.200 et seq. ("Compact"), designed to protect the natural resources and control development in the Lake Tahoe Basin ("Basin"). Compl. ¶¶ 1-2, 8. The Compact created the Tahoe Regional Planning Agency ("TRPA") to serve as the region's land use and environmental protection agency. Id. ¶ 1. The Compact became effective by congressional authorization in December 1969. Id. In 1980, the initial Compact was amended to increase the level of environmental protection for the Basin; Congress authorized the amendments in December 1980. Id. In 1987, a Regional Plan was adopted pursuant to the Compact to strengthen its provisions. Id. ¶ 2.

B. Regional Plan Update

Beginning in 2010, TRPA undertook the Regional Plan Update ("RPU") to revise the 1987 Regional Plan. Id. ¶ 3. On December 12, 2012, TRPA adopted the RPU. Id. ¶ 4. Under the RPU, TRPA has authority to delegate to local governments TRPA's project review and approval duties. Id. The RPU also opens over 300 acres of undeveloped land to "resort recreation" development, expanding Tahoe's urban boundary; allows up to 3,200 new residential units and 200,000 square feet of new commercial floor area; and allows increased concentration of coverage closer to the Lake in urban core areas. Id. ¶ 6.

II. OPINION

A. Legal Standard

1. Failure to Prosecute

Courts have discretion to dismiss a case for failure to prosecute "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed. R. Civ. P. 41(b). "[D]ismissal for lack of prosecution must be supported by a showing of unreasonable delay," which, if shown, "creates a presumption of injury to the defense." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citations omitted). However, dismissal is a harsh penalty and is to be imposed only in extreme circumstances. Id. (citing Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981)).

To determine whether dismissal with prejudice is warranted for failure to prosecute, the Court must weigh the following factors: "(1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

2. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

B. Judicial Notice

Both parties request judicial notice.

1. Defendant's request

Defendant requests judicial notice of the Compact, TRPA's Code of Ordinance ("Code"), and select Articles of TRPA's Rule of Procedure. See Def.'s Request for Judicial Notice ("DRJN"), Exs. A-C attached to Declaration of Howard F. Wilkins ("Wilkins Decl."), Doc. #11. Plaintiffs do not oppose Defendant's request. Exhibits A, B, and C are appropriate for judicial notice because they are government publications, public records, and their contents are "not subject to reasonable dispute." Fed. R. Evid. 201(b); see Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (noting that judicial notice may be taken of public records); Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1025, n. 4 (9th Cir. 2008) (judicial notice taken of city ordinance and definitions contained in administrative regulation).

Accordingly, the Court grants Defendant's request for judicial notice.

2. Plaintiffs' Request

Plaintiffs request judicial notice of Exhibits A through G to the Declaration of Wendy S. Park ("Park Declaration") and Exhibit A to the Declaration of Laurel W. Ames ("Ames Declaration"). Pls.' Request for Judicial Notice ("PRJN"), Doc. #14-6, at 1. Defendant opposes Plaintiffs' request on relevancy grounds. Def.'s Opposition to PRJN, Doc. #16, at 1-3. Exhibits A and B attached to the Park Declaration involve record preparation costs for an unrelated action and therefore are not relevant as to whether TRPA had authority to adopt TRPA Rules of Procedure 10.6.2, which is purely a legal question.

Exhibits C through G to the Park Declaration and Exhibit A to the Ames Declaration are public records related to ongoing local area planning efforts, TRPA Rules of Procedure, and TRPA Regional Plan. The Court finds these public records relevant to determine Plaintiffs' standing and appropriate for judicial notice. Santa Monica Food Not Bombs, 450 F.3d at 1025 n.2.

Accordingly, the Court grants Plaintiffs' request for judicial notice as to Exhibits C through G to the Park Declaration and Exhibit A to the Ames Declaration but denies Plaintiffs' request as to Exhibits A and B attached to the Park Declaration.

C. Evidentiary Objections

Defendant objects to several sections of the declarations offered by Plaintiffs. Objections to Ames, Quashnick, Anderson, Gearhart, and Park Declarations, Doc. #16. Plaintiffs filed a response to these objections. Response to Reply, Doc. #17.

For the reasons stated above, Defendant's relevancy objections as to local area planning efforts are overruled because the Court finds the information relevant and Defendant's relevancy objection as to the costs in an unrelated case is sustained. Finally, the Court need not address all other objections because the Court did not rely on any portion of the evidence to which Defendant objected.

Accordingly, the Court sustains in part and overrules in part Defendant's evidentiary objections.

D. Discussion

1. Dismissal for Failure to Pay for the Administrative Record

Defendant argues that Plaintiffs have failed to prosecute this case diligently by refusing to pay a fee to Defendant for the preparation of the administrative record. Plaintiffs argue that they are not required to pay the fee and even if they are required, they have not failed to prosecute their case to warrant dismissal. Both parties agree that the administrative record is essential. Mot. at 10; Opp. at 5, 10.

(a) Costs for the Administrative Record

TRPA Rule of Procedure 10.6.2 ("Rule 10.6.2") provides as follows:

Rule 10.6.2, TRPA's Rule of Procedure, Ex. C attached to Wilkins Decl., Doc. #11, at 10-1. Defendant claims that the Compact authorizes such fee recovery: "The agency may fix and collect reasonable fees for any service rendered by it." Compact, Art. VIII(b) ("Article VIII(b)"), Ex. A attached to Wilkins Decl., Doc. #11, at 18.

Plaintiffs argue that TRPA lacked authority to adopt Rule 10.6.2 and Rule 10.6.2 conflicts with the American Rule on costs, which typically requires parties to bear their own costs in litigation. Plaintiffs rely on the definition of "service," which, from the definitions provided by Plaintiffs, generally means work done for others. Opp. at 6. However, this definition does not prevent TRPA from adopting Rule 10.6.2 because it is broad enough to encompass production of an administrative record for plaintiffs in litigation.

As Plaintiffs point out, TRPA's authority to adopt Rule 10.6.2 could have been clearer if Article VIII(b) were located in the litigation section of the Compact. Nevertheless, because Article VIII(b) is located in the Finances section, it gives TRPA broad authority to adopt several similar rules. See, e.g., TRPA Rule of Procedure 10.7.1 ("Whenever the Agency performs services for members of the public . . . the Agency shall collect a reasonable charge for the purpose of recovering costs to the Agency."); TRPA Rule of Procedure 10.8.1 ("Fee schedules for project review and preparation of environmental documents shall be set by resolution of the Body.")

Moreover, even though "[u]nder the American rule, litigants ordinarily are required to bear the expenses of their litigation," this is only a default rule that may be altered if "a statute or private agreement provides otherwise." Grove v. Wells Fargo Fin. California, Inc., 606 F.3d 577, 579 (9th Cir. 2010). Here, Article VIII(b) in conjunction with Rule 10.6.2 provide otherwise and therefore, the American rule does not apply to the administrative record's cost.

Finally, regardless of which party pays the administrative record's cost, the prevailing party will be able to recover these costs to the extent permissible under Federal Rule of Civil Procedure 54, 28 U.S.C. 1920, and the case law interpreting this rule and statute. Therefore, Rule 10.6.2 does not usurp the power of the Court to award most if not all costs, including most labor costs, to the prevailing party when the issue is properly presented to the Court for determination. See, e.g., Tahoe Tavern Prop. Owners Ass'n v. U.S. Forest Serv., CIV. S06-407 LKK/GGH, 2007 WL 1725494, at *2 (E.D. Cal. June 14, 2007) (denying labor costs associated with preparing the administrative record); Conservation Cong. v. U.S. Forest Serv., 208-CV-02483-GEB-DAD, 2010 WL 2557183, at *1 (E.D. Cal. June 21, 2010) (awarding labor costs associated with making copies of the administrative record); League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 3:09-CV-478-RCJ-RAM, 2012 WL 3206412, at *2 (D. Nev. Aug. 3, 2012) (awarding labor costs related to work completed by associates, paralegals, and support staff on the administrative record but not professionals).

Accordingly, the Court finds that TRPA had the authority to adopt Rule 10.6.2.2

(b) Failure to Prosecute

Defendant argues that Plaintiffs refusal to pay for the record is a failure to prosecute. Plaintiffs have stated that if ordered to do so, they will pay for the record and therefore, there is no failure to prosecute but merely a legitimate disagreement on costs. Opp. at 11. In the reply, Defendant argues that the Court should order Plaintiffs to comply with Rule 10.6.2 with a 15-day deadline for submitting payment and appears to abandon its failure to prosecute argument at this time. Reply at 1, 4.

Accordingly, because the Court has found that Rule 10.6.2 is valid, the Court orders Plaintiffs to pay the fee for the administrative record within 15 days from the date of this Order and the Court need not reach the merits of the failure to prosecute argument at this time.

2. State Law Claims

Defendant argues that the Court should dismiss Plaintiffs' state law claims for lack of subject matter jurisdiction and because they fail to state a claim. Plaintiffs contend that the state law claims should not be dismissed because the Compact does not preempt its state law counterparts and it is unnecessary for the Court to decide now whether Plaintiffs properly present state law claims.

Congressional consent transformed the Compact into federal law. Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'l Planning Agency, 24 F.Supp.2d 1062, 1068 (E.D. Cal. 1998). Consequently, interpretation of the Compact is a matter of federal law not state law. See League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 507 F.2d 517, 523 (9th Cir. 1974) ("The Supreme Court has made it clear that the construction of an interstate compact is a matter of federal law, not the law of the party states.") Moreover, as federal law, TRPA preempts state law and state constitutional provisions. See Jacobson v. Tahoe Reg'l Planning Agency, 566 F.2d 1353, 1358 (9th Cir. 1977) aff'd in part, rev'd in part Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391 (1979); Lake Tahoe Watercraft Recreation Ass'n, 24 F. Supp. 2d at 1069. "The only exception to this rule is where a compact specifically reserves the right of the state to impose state law on the compact organization." Lake Tahoe Watercraft Recreation Ass'n, 24 F. Supp. 2d at 1069.

Because congressional consent transformed the Compact into federal law, the Compact cannot be understood as both federal and state law; it "is a matter of federal law, not the law of the party states." League to Save Lake Tahoe, 507 F.2d at 523. Therefore, no equivalent state law claims exist. Additionally, if there are separate state law provisions, they are preempted by the Compact unless the Compact specifically reserves the right of the state to impose state law on TRPA, which neither party here has claimed. Finally, Plaintiffs argue that it is unnecessary for the Court to decide now whether Plaintiffs properly present state law claims. However, they have provided no case law or any persuasive reason for delaying this determination.

Accordingly, the Court dismisses Plaintiffs' state law claims, which they mention as alternatives to their federal Compact claims in the jurisdictional allegations, Compl. ¶¶ 8-10, and the request for relief, Compl. at 32:23-25. Consequently, if Plaintiffs ultimately prevail on any Compact claim, attorneys' fees under California state law will not be available. Opp. at 25. Because Plaintiffs cannot allege valid state law claims, the complaint cannot be saved by amendment and therefore granting leave to amend would be futile.

3. Plaintiffs' First Cause of Action

Defendant seeks to dismiss Plaintiffs' first claim for improper delegation of Defendant's project review and approval duties to local governments because Plaintiffs lack standing and the claim is not ripe. Defendants argue that Plaintiffs lack standing because they have not alleged any injury arising from the RPU's provision authorizing the delegation of project review. Plaintiffs claim that they have organizational standing and independent standing.

(a) Organizational Standing

An organization has standing to bring suit on behalf of its members when "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (citations omitted). Individual members have standing if they can demonstrate that an actual or threatened injury exists, which is fairly traceable to the challenged action, and that such injury is likely to be redressed by a favorable decision. Id. (citations omitted).

In this case, the parties dispute Plaintiffs' individual members' standing, in particular, whether Plaintiffs have sufficiently alleged a concrete injury in fact. Mot. at 19; Opp. at 1. "The `injury in fact' requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant's conduct." Ecological Rights Found., 230 F.3d at 1147. In addition, "an increased risk of harm can itself be injury in fact sufficient for standing." Ecological Rights Found., 230 F.3d at 1151.

To establish injury here, Plaintiffs have offered declarations from several of their members. The members declare that they live, work, or recreate around the area protected by the Compact—the Basin. Declaration of Laurel W. Ames, Doc. #14, ("Ames Decl.") at ¶¶ 2-4, 14; Declaration of Jennifer Quashnick, Doc. #14, ("Quashnick Decl.") at ¶¶ 2, 5-6, 27-29. Although Plaintiffs have shown that they have an interest in the area, it is unclear how TRPA's delegation of project review will impair their interest or even increase the risk of harm. The delegation itself does not increase development in the area or authorize more projects. Plaintiffs mention an increase in development in the region will increase population and traffic, but those alleged harms are a result of the RPU itself not TRPA's delegation power. See Opp. at 14; Compl. ¶ 6. Even if there is a harm to their interest, Plaintiffs have failed to allege a causal connection between the harm to their interest and the TRPA's delegation power. Cf. League to Save Lake Tahoe v. City of S. Lake Tahoe, 2:11-CV-01648-GEB, 2012 WL 170170, at *7 (E.D. Cal. Jan. 19, 2012) ("However, this argument and the allegations in the League's FAC fail to identify a causal connection between the [harm to the League members' property values or environmental, aesthetic, and recreational interests] and [the mere existence of inconsistent provisions in the General Plan Update].") (citation and internal quotations omitted).

Moreover, relying on Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009), and Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1150 (2013), Defendant argues that Plaintiffs' alleged injury is hypothetical and speculative because RPU only sets criteria for future delegation but it does not itself result in any delegation. Mot. at 19-20. In Clapper, the Supreme Court held that the plaintiffs' alleged harm was not "certainly impending" because they had no evidence that the government would target their communications under 50 U.S.C. § 1881a of the Foreign Intelligence Surveillance Act, which merely authorized surveillance and did not mandate it; therefore, the plaintiffs' allegations were based on "a speculative chain of possibilities." Clapper, 133 S.Ct. at 1150. Similarly, in Summer, the Supreme Court held that the plaintiffs did not have standing because plaintiffs' individual members' vague desire to return to the geographical area without concrete plans was "insufficient to satisfy the requirement of imminent injury." Summers v. Earth Island Inst., 555 U.S. 488, 495-96 (2009). In this case, Plaintiffs argue that the delegation is imminent because at least one county, Douglas County, is in the process of drafting a Memorandum of Understanding ("MOU"), which delegates TRPA's project duties for certain projects. Park Decl., Ex. C at 1, Ex. D at 7; Ames Decl., Ex. A at 13-14. However, TRPA's approval of the MOU is not scheduled until July 2013; therefore, there is still the possibility that TRPA may reject the MOU. Id.

Plaintiffs also argue that at least five local governments are preparing area plans and "[a]fter TRPA finds that an Area Plan is in conformance with the Regional Plan, TRPA and the lead agency shall enter into a [MOU] that clearly specifies the extent to which the activities within the Area Plan are delegated or exempt from TRPA review and approval." Code § 13.7.1, Ex. B attached to Wilkins Decl., at 13. However, as with the MOU, TRPA approval is still necessary. Therefore, Plaintiffs have not alleged a concrete injury because delegation is not certainly impending.

Accordingly, the Court finds that the Plaintiffs have not sufficiently alleged organizational standing.

(b) Independent Standing

An organization suing on its own behalf can establish an injury when it suffered "both a diversion of its resources and a frustration of its mission." Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002).

Plaintiffs argue that because they are required to go through a burdensome process of administrative remedy exhaustion at the local government level, pay an appeal fee, and present a statement within 15 days of the local government decision before they can obtain TRPA review of a project, they have to divert resources from educating members about the area. Opp. at 21-22. Defendants argue that no delegation or appeal has occurred and therefore it is speculative. Reply at 9. Because no delegation or appeal has occurred and they may possibly not occur, as mentioned above, the Court finds that Plaintiffs have not yet suffered an injury.

Accordingly, the Court finds that Plaintiffs do not have standing to bring their first cause of action for delegation of project review and approval duties. Because Plaintiffs do not have standing, the Court need not address whether Plaintiffs' claim is ripe; however, the Court notes that the ripeness inquiry coincides with standing's injury-in-fact prong. Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 773 (9th Cir. 2006) ("In many cases, the constitutional component of the ripeness inquiry coincides squarely with standing's injury in fact prong.") (citations and internal quotation marks omitted). The Court dismisses Plaintiffs' first cause of action without prejudice to allow Plaintiffs to bring this claim when delegation is certainly impending. Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) ("Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may reassert [its] claims in a competent court.")

4. Plaintiffs' Second Cause of Action

Defendant moves to dismiss Plaintiffs' second cause of action for failure to state a claim. Plaintiffs argue that it does state a claim and Defendant's arguments are premature.

In Plaintiffs' second cause of action, they allege that the RPU violates the Compact Article VI(a) ("Article VI(a)") because its implementing ordinances fail to establish a "minimum standard applicable throughout the region" related to the protection of soil and water resources. Compl. ¶¶ 78-80. Article VI(a) provides, "The governing body shall adopt all necessary ordinances, rules, and regulations to effectuate the adopted regional plan. Except as otherwise provided in this compact, every such ordinance, rule, or regulation shall establish a minimum standard applicable throughout the region." Compact, Art. VI(a).

Defendant argues that Article VI(a) does not specify any minimum performance requirements for the Regional Plan or its implementing regulations because the requirements are set forth in Article V and therefore, Plaintiffs' second cause action does not state a cognizable claim. Mot. at 23. However, as Plaintiffs point out, this argument seems to be based on a misreading of the claim. Plaintiffs' allegation is that the RPU does not establish minimum requirements on soil and water resources throughout the region as Article VI(a) requires, not that the RPU does not meet the minimum performance requirements set forth in Article VI(a).

In the Reply, Defendant argues that the RPU complies with Article VI(a) because it provides further minimum standards applicable throughout the region and that public agencies are only permitted to adopt and enforce requirements equal to or higher than the requirements in the RPU. Reply at 10. However, Defendant's argument goes to the merits of the claim (i.e., whether the RPU fails to establish minimum standards). Consequently, the Court finds it inappropriate to address this argument in a motion to dismiss.

Accordingly, the Court finds that Plaintiffs have stated a claim and denies Defendant's motion to dismiss Plaintiffs' second cause of action.

III. ORDER

For the reasons set forth above, the Court GRANTS Defendants' motion to dismiss in part and DENIES in part: The Court orders Plaintiffs to pay the fee for the administrative record within 15 days from the date of this Order. The Court GRANTS WITH PREJUDICE Defendants' motion to dismiss Plaintiffs' state law claims. The Court DISMISSES WITHOUT PREJUDICE Plaintiffs' first cause of action. The Court denies Defendant's motion to dismiss Plaintiffs' second cause of action.

IT IS SO ORDERED.