The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge
Order GRANTING IN PART and DENYING IN PART Defendants' Motion to Dismiss  [Filed 06/07/11]
Pending before the Court is Defendants, Ken Salazar, in his official capacity as Secretary of the Interior; United States Bureau of Land Management; Robert Abbey, in his official capacity as Director, Bureau of Land Management; Teri Raml, in her official capacity as District Manager, Bureau of Land Management, California Desert Division; Roxie Trost, in her official capacity as Field Manager, Bureau of Land Management, Barstow Field Office, and the United States Department of the Interior's (collectively, "Federal Defendants") Motion to Dismiss Plaintiffs' Compliant pursuant to both Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). (Dkt. No. 25.) On July 20, 2011, Defendant, Chevron Energy Solutions ("Chevron" and collectively with Federal Defendants, "Defendants"), joined in Federal Defendants' Motion to Dismiss. (Dkt. No. 31.)
Subsequently, Plaintiffs, La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee ("La Cuna"); Californians for Renewable Energy ("CARE") (collectively, the "Organizational Plaintiffs"); Alfredo Acosta Figueroa; Phillip Smith; Patricia Figueroa; Ronald Van Fleet; and Catherine Ohrin-Greipp (collectively, "Individual Plaintiffs" and collectively with Organizational Plaintiffs, "Plaintiffs") filed an Opposition on August 22, 2011, to which Federal Defendants filed a Reply on August 29, 2011. (Dkt. Nos. 32, 34.)
Having considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) is GRANTED in Part and DENIED in Part and Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED without prejudice.
This lawsuit arises out of Plaintiffs' challenges to Defendants' actions in connection with a solar-electricity generation project called the Chevron Energy Solutions Lucerne Solar Project (the "Project"). (Compl. ¶ 7.) Because the Project is located on federal land, Chevron was required to obtain certain approvals from the Bureau of Land Management ("BLM") prior to constructing and operating the Project.
In October 2010, Federal Defendants granted the requisite approval, which included an amendment to the existing California Desert Conservation Area ("CDCA") Plan and right-of-way authorization. (Compl. ¶ 7A.) Plaintiffs allege that, in so doing, Defendants failed to comply with several federal laws. Specifically, Plaintiffs allege that Federal Defendants: (1) failed to consult with Plaintiffs regarding the Project as required under the National Historic Perseveration Act ("NHPA"); (2) failed to "conduct an adequate analysis of the cumulative impacts, failed to prepare a programmatic environmental impact statement, failed to adequately identify and evaluate the significance of the affected cultural environment, and failed to conduct an adequate analysis of alternatives to the Project" in violation of the National Environmental Policy Act ("NEPA"); (3) failed to prepare a programmatic environmental impact statement for the Project in violation of NEPA; and (4) allowed permanent impairment of the lands affected by the Project and unnecessary degradation of the lands in violation of the Federal Land Policy and Management Act of 1976 ("FLPMA"). (Compl. ¶ 8A-D.) Additionally, Plaintiffs assert that approval of the Project will result in "the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known to be or strongly suspected of being on the Project's site," in violation of the Native American Graves Protection and Repatriation Act ("NAGPRA").*fn1 (Compl. ¶ 8E.)
As a result of the foregoing, on January 13, 2011, Plaintiffs filed a Complaint in this Court against Defendants. Defendants now seek to dismiss Plaintiffs' Complaint in its entirety pursuant to both Rule 12(b)(1) and Rule 12(b)(6). The main thrust of Defendants' 12(b)(1) Motion is that Plaintiffs lack standing to maintain this suit.
Individual Plaintiffs, however, argue that they have standing because they "reside in the areas affecting [sic] by the actions challenged in this lawsuit and have an interest in the responsible development of renewable energy and in the preservation of and respect for Native American culture." (Compl. ¶ 3.) Further, Individual Plaintiffs purport to attach religious and cultural significance to the affected land, in which they allegedly reside. (Compl. ¶ 16.) La Cuna, an organization dedicated to protecting sacred sites from Needles, California to Yuma, Arizona, (Compl. ¶ 1), contends that it has standing because it is "comprised of 15 indigenous and culturally aware individuals who are dedicated to physically protecting the Blythe Giant Intaglios, other geoglyphs, and several hundred sacred sites . . . ." (Compl.¶ 1.) Finally, CARE asserts that it has standing because it is "a non-profit organization formed to promote public education concerning the responsible development of renewable energy and in the preservation of an respect for Native American culture." (Compl. ¶ 2.)
The Court addresses the parties' arguments below.
Because "[f]ederal courts must determine they have jurisdiction before proceeding to the merits[,]" Lance v. Coffman, 549 U.S. 437, 439 (2007) (citations omitted), the Court first addresses Defendants' Motion to Dismiss pursuant to Rule 12(b)(1).
On a Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing that subject matter jurisdiction is proper. See United States v. Orr Water Ditch Co., 600 F.3d 1152, 1157 (9th Cir. 2010) ("The party asserting federal jurisdiction has the burden of establishing it."). The nature of the plaintiff's burden, however, depends on whether the Rule 12(b)(1) motion raises a facial or a factual challenge to the ...