The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING MOTION TO DISMISS
Defendants City of South Lake Tahoe and the City Council of the City of South Lake Tahoe (collectively, "the City") move for dismissal of the first, second, and fourth claims in Plaintiff League to Save Lake Tahoe's ("the League's") First Amended Complaint ("FAC"), arguing under Federal Rule of Civil Procedure 12(b)(1) that the League lacks standing and its claims are not ripe for judicial review. The claims involved in this motion are the federal claims on which subject matter jurisdiction is based, and the City also argues that if the motion is granted, the remaining state claims should be decided in state court. The City also moves for dismissal of these claims under Rule 12(b)(6), arguing that the League fails to state claims upon which relief can be granted. The League opposes the motion.
"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (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." Id. "[T]he moving party converts the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court," and once the moving party does so, "the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (internal quotations and citation omitted).
Here, the gravamen of the City's jurisdictional attack is its argument that "[the League] has neither sustained, nor is in imminent threat of sustaining injury-in-fact from the alleged misconduct arising out of [its] claims," and the City presents evidence supporting this argument. (Defs.' Mot. to Dismiss ("Mot.") 1:16-17; Defs.' Request for Judicial Notice ("Defs.' RJN") Exs. A-G.) Since the motion attacks the truth of the League's injury allegations rather than their facial sufficiency, and the City supports its motion with evidence, the City's jurisdictional attack is factual.
When "[f]aced with a factual attack on subject matter jurisdiction, "the trial court may proceed as it never could under Rule 12(b)(6) . . . . [N]o 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.
Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist."
Thornhill Pub. Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (9th Cir. 1979)).
II. REQUESTS FOR JUDICIAL NOTICE
Each party requests that judicial notice be taken of the Tahoe Regional Planning Compact, specific Tahoe Regional Planning Agency ordinances and rules of procedure, and portions of the City's General Plan Update and corresponding Environmental Impact Report. These requests are granted, since these documents are "capable of accurate determination," are "referenced in the complaint," and their "authenticity is unquestioned." Fed. R. Evid. 201(b); Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (stating "a court may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned"); Pl.'s Request for Judicial Notice ("Pl.'s RJN") Exs. AC; Defs.' RJN Exs. A-E. Further, the City attached as Exhibit G to its motion the declaration of Hilary Hodges which can be considered under the 12(b)(1) standard. Thornhill Pub. Co., Inc., 594 F.2d at 733 ("Where the jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary.").
A. Tahoe Regional Planning Compact
The Tahoe Regional Planning Compact ("TRP Compact") is a congressionally ratified agreement between California and Nevada that governs development surrounding Lake Tahoe. League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 105 Cal. App. 3d 394, 396 (1980). The TRP Compact establishes a bistate agency, the Tahoe Regional Planning Agency ("TRPA"), with "jurisdiction over the entire region." People ex rel. Younger v. Cnty. of El Dorado, 5 Cal. 3d 480, 487 (1971). Pursuant to the TRP Compact, the TRPA maintains and enforces a regional plan, which plans for land-use, transportation, conservation, recreation, and public services and facilities. TRP Compact Art. V (c), (d). TRPA's regional plan "establish[es] minimum [environmental] standard[s] applicable throughout the region," but "leav[es] to the jurisdiction of the respective States, counties and cities the enactment of specific and local ordinances, and rules, regulations and policies which conform to the regional plan." TRP Compact Art. VI(a).
The TRP Compact proscribes the development of any "project" in the region which is not a TRPA approved project. TRP Compact Art. VI(a) ("No project . . . may be developed in the region without obtaining the review and approval of the [TRPA] . . . ."). Furthermore, the TRPA must "[p]repare and consider a detailed environmental impact statement before deciding to approve or carry out any project," and "no project may be approved unless it is found to comply with [TRPA's] regional plan and with the ordinances, rules and regulations enacted . . . to effectuate that plan." TRP Compact Art. VII(a)(2) & VI(b). The TRP Compact requires that "[t]he public . . . be consulted during the environmental impact statement process" through the solicitation of "views . . . during a public comment period not to be less than 60 days." TRP Compact Art. VII(b), (c).
The TRPA has been in the process of updating the current operative regional plan (the "1987 Regional Plan") "[s]ince 2002." (City of South Lake Tahoe Final Environmental Impact Report ("Final EIR") 4.1-3, attached as Ex. E to Defs.' RJN.) The City alleges that "TRPA ...