The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the motion to dismiss the Complaint for lack of subject matter jurisdiction filed by the Federal Defendants. (Doc. # 12).
ALLEGATIONS OF THE COMPLAINT
Plaintiffs, an organization and an individual with conservationist, aesthetic and recreational interests in marine mammal protection, brought this action against Defendants National Atmospheric Administration National Marine Fisheries Service (NMFS); Carlos M. Gutierrez, Secretary of Commerce; James W. Balsiger, Acting Director of the NMFS; James Lecky, Director of Office of Protected Resources at the NMFS (collectively "the Federal Defendants"); and Defendant City of San Diego. In the second cause of action against the Federal Defendants,*fn1 Plaintiffs seek "judicial review of agency action under 5 U.S.C. § 702 to prevent the NOAA from ceding its authority to the City of San Diego to interpret and apply the Marine Mammal Protection Act." (Doc. # 1 at 7).
Plaintiffs allege that the NMFS has taken the position that Section 109(h) of the Marine Mammal Protection Act (MMPA) which provides that the take prohibitions of the Act do not apply to local officials in the course of their official duties to protect the public health and remove nuisance animals, authorizes the City of San Diego to remove seals from the La Jolla Children's Pool Beach without a permit. Plaintiffs allege in relevant part:
On October 21, 2008, the City will appear in state court in the case O'Sullivan v. City of San Diego, San Diego Superior Court case number GIC826918, to defend itself against a motion requesting an order requiring the immediate dispersal of the already pregnant seals at [Children's Pool Beach] based upon a mandatory injunction requiring the City 'to employ all reasonable means to restore the Pool to its 1941 condition by removing the sand buildup and further to reduce the level of water contamination in the Pool to levels certified by the County of San Diego as being safe for humans.'. . .
NMFS has taken the position that 16 USCS 1379(h), also referred to as Section 109(h) of the MMPA, authorizes the City to remove the seals from [Children's Pool Beach] without a permit. Defendant James Lecky stated as much before the San Diego City Council on September 14, 2004, which was the entire basis for the state court's belief that it could order the dredging of [Children's Pool Beach] without running afoul of the MMPA, notwithstanding the fact that Mr. Lecky wrote a letter to the City just a year before making  statements that completely contradicted that position. . . .
On November 3, 2005, the Executive Director of the MMPA wrote a letter to Defendant Rodney McInnis questioning whether section 109(h) applies to this situation, and noting that this is a question of federal law that should not be left up to the City to determine. . . .
Despite the City's previous representation that concerned parties would have an opportunity to be heard in a permitting process and that the seals would not be dispersed unless and until dredging can take place after the issuance of a Clean Water Act permit, there is an immediate threat that the state court will now order the seals to be dispersed on October 21, 2008 independent of the dredging process. . ..
Plaintiffs imminently need a declaration from this federal court as to whether exceptions to the MMPA allow the City to destroy the seal rookery without a permit without violating federal law.
The federal requirements contained in the MMPA should be determined by a federal court, not by government bureaucrats who have made contradictory statements on the matter or by a state court cherry picking those statements, or by the City Attorney's office. The necessity for correct interpretation and uniform application of federal law that Congress intended demands a federal forum for these issues. (Doc. # 1 at 7-8, 17). Plaintiffs seek a judgment against the Federal Defendants "requiring a MMPA permit to be issued prior to NMFS officials allowing the disturbance of seals at Children's Pool Beach." (Id. at 18).
CONTENTIONS OF THE PARTIES
Federal Defendants contend that the Complaint against them must be dismissed pursuant to Fed. R. Civ. P. 12 (b)(1) on the grounds that this Court lacks subject matter jurisdiction. Federal Defendants contend that Plaintiffs have not identified a waiver of sovereign immunity or stated a cause of action that allows Plaintiffs to proceed against the them in federal court. Plaintiffs contend that the actions of the Federal Defendants are reviewable under the Administrative Procedures Act (APA) on the grounds that the challenged agency actions create legal consequences. Plaintiffs contend that a formal ...