The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiff Public Lands for the People, Inc. ("PLP" or "Plaintiffs") a nationwide miners' association, along with a number of individual miners, seek to invalidate a California statute, SB 670, signed into law by Governor Schwarzenegger on August 5, 2009 and codified as California Fish and Game Code § 5653.1. SB 670 imposes a temporary moratorium on instream suction mining in California until the Department of Fish and Game ("DFG") completes a full environmental review of that mining process. In suction mining, silt, sand and small gravels are vacuumed from streambeds and a dredge machine is used to filter out gold before screened material is passed back into the waterway.
Plaintiffs' Complaint includes numerous causes of action which allege, inter alia, violations of equal protection, due process, unlawful takings, violations of interstate and foreign commerce provisions, and improper preemption of federal statutes and regulations. Now before the Court is Defendants' Motion to Dismiss, also brought on numerous grounds, including contentions under Federal Rule of Civil Procedure 12(b)(1) that the Court lacks subject matter jurisdiction because most of Plaintiffs' claims are barred by the Eleventh Amendment of the United States Constitution, and because Plaintiffs lack standing to bring this action. Defendants also move to dismiss on abstention grounds, arguing that the Court should refrain from hearing this matter in any event under the principles set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). As set forth below, Defendants' Motion will be granted.
In 2005 the Karuk Tribe of California sued the DFG in Alameda County in an effort to enjoy suction dredge mining in the Klamath, Scott and Salmon Rivers of Northwest California, where the Karuk Tribe has its homeland.*fn1 The Tribe argued that suction mining practices posed environmental dangers and violated various provisions of the California Fish and Game Code. Ultimately, the 2005 litigation was concluded pursuant to an Order and Consent Judgment whereby the DFG agreed to conduct an updated environmental review pursuant to the California Environmental Quality Act ("CEQA"), California Resources Code § 21000, et seq.
When the required CEQA review did not take place within 18 months as the Karuk Plaintiffs anticipated, three tribe members filed a new taxpayer action, entitled Hillman et al. v. California Department of Fish and Game, No. RG 09434444 (Alameda Sup. Ct.); Pls.' Compl., ¶ 32.*fn2 That lawsuit, filed in February 2009, sought to stop public funding of the suction mining permitting process and, like its predecessor, was filed in Alameda County Superior Court.
The Hillman court ultimately issued a preliminary injunction on July 10, 2009, which prohibited the DFG from spending any monies from the State's General fund for the issuance of suction dredge permits until after DFG completed the CEQA review previously ordered in the 2005 lawsuit. (See Defs.' Request for Judicial Notice, Ex. E). Plaintiff PLP, which intervened in the action, has appealed the trial court's injunction. That appeal remains pending.
In the meantime, on August 5, 2009, less than a month after the Alameda County injunction was issued, Governor Schwarzenegger signed SB 670 into law, a statute which like the injunction establishes a temporary ban on suction mining until after DFG's environmental review of the practice. That prompted PPL to sue the State of California, as well as the Governor and the DFG's former director, Donald Koch, in their official capacities. As indicated above, Plaintiffs' lawsuit contains a plethora of some eleven different counts which seek, among other relief, a declaration that SB 670 is invalid, an injunction against the statute's enforcement, and damages. As indicated above, Defendants now challenge that lawsuit through concurrently filed motions seeking either dismissal, the striking of certain portions of the Complaint, or a more definite statement of the allegations Plaintiffs do attempt to levy.
In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 (b)(1), the challenging party may either make a "facial attack" on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis ("factual attack"). Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
If the Court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Generally, leave to amend should be denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).
A. Eleventh Amendment Claims
The Eleventh Amendment bars all suits in federal court, whether in law or equity, against states, state agencies, and state officials sued in their official capacities. See Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 952 (9th Cir. 2008) (as to states); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (as to state agencies); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (as to state officials). As the Ninth Circuit explained in In re Jackson, 184 F.3d 1046 (9th Cir. 1999), "Eleventh Amendment sovereign immunity limits ...