The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER GRANTING FRESNO'S (DOC. 39) AND FRESNO CHAFEE ZOO CORPORATION'S (DOC. 41) MOTIONS TO DISMISS
This case concerns the planned expansion of the Fresno Chafee Zoo, located in Roeding Park, within the City of Fresno. In the currently-operative First Amended Complaint ("FAC"), Plaintiffs, the Friends of Roeding Park ("FORP"), a California non-profit unincorporated association, and individuals Lisa Flores, Ed Byrd, and Patricia Espinoza, challenge various actions and inactions related to the planning and approval of the Zoo expansion project. Doc. 13. The FAC alleges:
(1) The City of Fresno ("City"), the California Department of Parks and Recreation ("CDPR"), and the United States Department of the Interior ("DOI")*fn1 violated the Land and Water Conservation Fund Act ("LWCFA"), 16 U.S.C. 460l-4, et seq.;
(2) The City, CDPR, and DOI violated the National Historic Preservation Act ("NHPA"), 16 U.S.C. 470, et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.;
(3) The City and the Fresno Chafee Zoo Authority ("FCZA")*fn2
are liable under 42 U.S.C. § 1983 for depriving residents of
the City and Fresno County "who are members of minority groups
including Latin-Americans, African-Americans, and Asian-Americans who
use the free open space in Roeding Park ... of their rights of Equal
Protection and Due Process under the Fifth and Fourteenth Amendments
to the Constitutions of the United States and Article 1, section 7(a)
of the California Constitutions by the unlawful expansion of the
Fresno's Chaffee Zoo and the Roeding Park Playland and Fresno
Storyland facilities in the federally protected open space in Roeding
(4) The City and the FCZA violated California Code of Civil Procedure Section 526a, which prohibits the illegal expenditure of public funds by public officials; and
(5) The City and FCZA violated the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code § 21000, et seq. Doc. 13, filed Aug. 15, 2011.
The City moves to dismiss all of the claims against it pursuant to Federal Rules of Civil Procedures 12(b)(1) and 12(b)(6), arguing that the FAC: (1) fails to assert grounds for federal subject matter jurisdiction; (2) fails to state a claim for violations of NEPA, NHPA, and/or the LWCFA against the City; (3) fails to state a claim under 42 U.S.C. §1983 against the City; and fails to state a cognizable claim under CEQA because Plaintiffs failed to request a hearing within 90 days of filing this action as required by California Public Resources Code § 21167.4(a). Doc. 39. The Fresno Chafee Zoo Corporation ("FCZC"), which is not named as a Defendant in any claim but which is alleged to have "financial and legal interest in the subject matter of this action," FAC at ¶ 14, also moves to dismiss all of the claims in the case pursuant to Federal Rules of Civil Procedures 12(b)(1) and 12(b)(6), arguing:
(1) the Court lacks subject matter jurisdiction over Plaintiffs' NEPA, NHPA, and LWCFA claims; (2) Plaintiffs fail to state any cognizable claims under 42 U.S.C. § 1983; (3) the FAC fails to state a California Code of Civil Procedure § 526(a) claim; and (4) the CEQA claim must be dismissed for failure to request a hearing within 90 days of the filing of the petition. Doc. 41. Plaintiff failed to file any opposition or statement of non-opposition by the January 24, 2012 deadline. See Local Rule 230(c). As the issues raised by these motions are clear and defined, the Court deems the matter submitted on the moving papers and VACATES the hearing, currently set for February 7, 2012.
II.FACTUAL BACKGROUND & PROCEDURAL HISTORY
In November 2004, Fresno County voters approved "Measure Z," referred to as the "Save Our Zoo Measure," which provided: "To help ensure the survival of the Chaffee Zoo by providing necessary funding to repair and restore the zoo, bring back large animal exhibits, further revitalize the zoo, and preserve the zoo's Species Survival Plan and ongoing Education Program, shall Fresno County voters approve a one-tenth of one percent sales tax for ten years with all net proceeds dedicated exclusively to the Chaffee Zoo?" FAC at ¶ 22.
In the Spring of 2005, the City entered into a lease with the FCZC for thirty-nine (39) acres within Roeding Park, which includes the existing Zoo footprint of approximately eighteen (18) acres plus another twenty-one (21) acres for the proposed Zoo expansion. FAC at ¶ 25. The proposed Zoo expansion would extend the Zoo into areas that are currently used for open space recreation, some of which had been improved pursuant to six (6) grants issued under the LWCFA through the CDPR. Id.
Plaintiffs objected to the City's approval of the lease for the additional 21 acres, arguing it would result in commercial and retail development of land previously used for open space recreational uses, for which no fee was charged, other than a vehicle entry fee. FAC at ¶ 26.
On June 21, 2011, CDPR provided written notice to the City that no permission would be required from DOI for approval of the Sea Lion Cove Exhibit Project or for approval of the Master Plans, and that the proposed Plans were consistent with the LWCFA and/or provisions of the 2008 California Comprehensive Outdoor Recreation Plan. FAC at ¶ 33. On June 30, 2011, the City certified an Environmental Impact Report ("EIR") under CEQA and approved the Roeding Park and Fresno Chaffee Zoo Master Plans. FAC at ¶ 27. On July 20, 2011, the City approved Conditional Use Permit C-08-186 for the construction and development of the proposed Sea Lion Cove Exhibit. FAC at ¶ 28.
On July 27, 2011, the FCZA Board, acting as a responsible agency under CEQA, adopted findings that the EIR was legally adequate under CEQA and authorized expenditure of over $9.0 million for the construction and development of the Sea Lion Cove Project. FAC at ¶ 29.
Plaintiffs filed their initial Complaint on August 1, 2011, followed by the FAC on August 15, 2011, both of which were filed in the Sacramento Division of the Eastern District of California. The City, the County of Fresno, and CDPR filed motions to dismiss. Docs. 15, 17 & 20. FCZC filed a motion to change venue. Doc. 22. Plaintiff did not oppose any of these motions. As a result, on October 19, 2011, District Judge Morrison England vacated the hearing date and ordered Plaintiffs to show cause why the FAC should not be dismissed in its entirety. Doc. 26. Plaintiffs responded to the order to show cause, requesting leave to amend, agreeing to dismiss both the County and the FCZA, and requesting that the Sacramento Division retain jurisdiction over some claims, while transferring the remaining claims to the Fresno Division. Doc. 28. On December 15, 2011, Judge England granted the motion to change venue in its entirety on the ground that the action arises in Fresno and should have been filed in the Fresno Division. Doc. 34. The then-pending motions to dismiss were vacated. Plaintiffs' request for leave to amend was not addressed. Id. A stipulation to dismiss the County and the FCZA followed. Doc. 38. The instant motions, as well as a renewed-motion by CDPR which has already been granted, were re-filed after the intra-district transfer.
III.STANDARDS OF DECISION
A.Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction.
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. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968--69 (9th 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):
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); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "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. ...