The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE FEDERAL DEFENDANTS' MOTION TO DISMISS (DOC. 102)
The Federal Emergency Management Agency and its Administrator, William C. Fugate ("FEMA" or "Federal Defendants") move to dismiss Counts 14, 15, and 16*fn1 of the Second Amended Complaint ("SAC") pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that Plaintiffs lack Article III standing. Doc. 102. Plaintiffs, the Coalition for a Sustainable Delta ("Coalition") and Kern County Water Agency ("KCWA"), oppose dismissal. Doc. 110. FEMA filed a reply. Doc. 115. Oral argument was heard April 26, 2010.
A.General Overview of the Case
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. § 1636(a)(2).
B. Endangered Species Act
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), 3 402.13(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.
C. The National Flood Insurance Act and Program
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. Co., 205 F.3d 386, 388 (9th Cir. 2000). To achieve these objectives, the NFIA authorizes FEMA to establish and carry out the NFIP. 42 U.S.C. §§ 4001(a), 4011, 4128. 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: (1) constrict the development of land which is exposed to flood damage where appropriate, (2) guide the development of proposed construction away from locations which are threatened by flood hazards, (3) assist in reducing damage caused by floods, and (4) otherwise improve the long-range land management and use of flood-prone areas.
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. 23 § 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.
III. STANDARD OF DECISION
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. 10 Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-969 (9th 11 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 (2005): In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir. 1992). "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. 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, 129 S.Ct. 1937 (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 (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. 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, (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 (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," in the complaint that are "plausibly suggestive" of the existence of standing.*fn2
A. General Legal Standard Re: Standing
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. 18 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 (1984). "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 (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 (1984). The court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.
Whitmore, 495 U.S. at 5-56; Schmier, 279 F.3d at 821. To have standing, a plaintiff must show three elements. First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (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: Since [the standing elements] are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such "mere allegations," but must "set forth" by affidavit or other evidence "specific facts," Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. Id. at 561; 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 (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 (2006)).
"[S]tanding is not dispensed in gross...." Lewis v. Casey, 518 U.S. 343, 358, n.6 (1996).
The actual-injury requirement would hardly serve the purpose ... of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.
Id. at 357. 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.
B. Summary of Relevant Allegations in the SAC
1. Allegations Regarding the Impact of the FEMA Flood Insurance Program on the Listed Species
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 Species by reducing habitat and increasing urban runoff that may be contaminated with substances harmful to the Listed Species. SAC ¶¶ 10, 52, 206-208. 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, ...