The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND
Defendant Manchester Pacific Gateway LLC ("MPG") moves to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Plaintiff San Diego Navy Broadway Complex Coalition ("NBCC") opposes the motion. The other defendants have not responded to the motion nor filed a statement of non-opposition. For the reasons set forth below, the motion to dismiss is granted with 20 days leave to amend from the date of entry of this order.
On January 4, 2007, NBCC commenced this action against the Untied States Department of Defense, the Department of the Navy, Naval Facilities Engineering Command, Naval Facilities Engineering Command Southwest, several individual federal officers in their official capacities (collectively "Federal Defendants"), and MPG. Plaintiff seeks declaratory and injunctive relief for alleged violations of the National Environmental Policy Act ("NEPA") and the Administrative Procedures Act ("APA").
The project at issue involves a development agreement between the City of San Diego and the Navy for the Navy Broadway Complex located on four city blocks along the waterfront in downtown San Diego. Plaintiff challenges the November 22, 2006 finding that the that the project will not have a significant impact on the environment ("FONSI"). The determination was based on an environmental impact statement prepared in 1990, a record of decision prepared in 1992, and an environmental assessment ("EA") prepared in 2006. (Compl. ¶5). Also on November 22, 2006, MPG and the Department of the Navy entered into a 99 year ground lease for the development of the project.
The Complaint alleges that Defendants (1) failed to prepare an Environmental Impact Statement ("EIS"); (2) failed to prepare a supplemental EIS ("SEIS"); and (3) failed to allow public participation before making the FONSI. (Compl. ¶12-26). Plaintiff alleges that the EA was prepared behind closed doors, without the public's knowledge, and without any opportunity for public comment on the accuracy and adequacy of the EA. (Compl. ¶¶19, 24). The EA concluded that there was no need to update the 1990 EIS. Plaintiff challenges this finding and alleges that a modern-day EIS or a SEIS is required to adequately assess the environmental impact of the project. (Compl. ¶¶15, 20, 24).
Plaintiff seeks a declaration from the court that Defendants failed to comply with NEPA and the APA and that Defendants must prepare an EIS or an SEIS. Furthermore, Plaintiff seeks an injunction to prohibit Defendants, or anyone in privity with them, from taking any action on any aspect of the project.
MPG argues that it is not a proper party to this action because it is a private development company, not a federal agency subject to NEPA. Plaintiff opposes the motion.
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Courts should not dismiss a complaint "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle [the party] to relief." Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 496 U.S. 906 (1990). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. See Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are ...