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Friends of Roeding Park, A California Non-Profit v. City of Fresno

April 5, 2012

FRIENDS OF ROEDING PARK, A CALIFORNIA NON-PROFIT UNINCORPORATED ASSOCIATION; AND LISA FLORES, ED BYRD, AND PATRICIA ESPINOZA, INDIVIDUALLY, PLAINTIFFS,
v.
CITY OF FRESNO, A CALIFORNIA MUNICIPAL CORPORATION; FRESNO'S CHAFFEE ZOO CORPORATION, A CALIFORNIA NON-PROFIT PUBLIC BENEFIT CORPORATION; ROEDING PARK PLAYLAND, A CALIFORNIA NON-PROFIT CORPORATION; FRESNO STORYLAND, A CALIFORNIA NON-PROFIT CORPORATION; AND HARRIS CONSTRUCTION COMPANY CO., INC., A CALIFORNIA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DISMISSING PLAINTIFFS' ENTIRE SECOND AMENDED COMPLAINT

This case concerns the planned expansion of the Fresno Chafee Zoo, located in Roeding Park, within the City of Fresno. Plaintiffs' Second Amended Complaint ("SAC") advances three claims. The first count alleges that the City of Fresno (the "City") violated the federal Land and Water Conservation Fund Act ("LWCFA"), 16 U.S.C. 460l-4, et seq. SAC at ¶¶ 34-43. The second count, asserted against both the City and Fresno's Chaffee Zoo Corporation (the "Zoo Corporation"), seeks "affirmative" declarations on the following issues purportedly arising under the LWCFA and the National Environmental Policy Act ("NEPA"), 42 U.S.C. 42 U.S.C. § 4321, et seq.:

A) Whether the Zoo Corporation's has a duty, pursuant to Section 21 of the lease agreement between the City and Zoo Corporation, to obtain final administrative approval under the LWCF Act from the Secretary of the U.S. Department of the Interior, National Park Service, and/or the California Department of Parks and Recreation prior to proceeding with construction of the African Safari Exhibit Project, which includes land subject to the jurisdiction of the Secretary of the U.S. Department of the Interior, National Park Service, and/or the California Department of Parks and Recreation;

B) Whether the Plaintiffs have the right to be notified of the administrative review and final administrative decision and action by the these agencies under NEPA and the LWCF Act; and

C) Whether Plaintiffs and the public have the right to participate in the federal and/or state administrative review process under NEPA and the LCWF Act, concerning the final administrative decision and action to approve proceed with construction of the African Safari Exhibit Project.

SAC at ¶ 45. The third count is a state law claim, alleging the City and the Zoo Corporation violated California Code of Civil Procedure 526a. The SAC does not name a federal defendant.

Scheduled for oral argument on April 9, 2012 were motions to dismiss filed by: (1) Defendant City of Fresno, Doc. 62, and (2) Defendant Fresno's Chaffee Zoo Corporation, Doc. 63.*fn1 Under Local Rule 230(c), Plaintiffs' oppositions to these motions were due no fewer than fourteen days before the April 9 hearing date, so no later than March 26, 2012. Furthermore, under Rule 230(c), "[a] responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question" and "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party."

Plaintiffs failed to file any oppositions or statements of non-opposition to the above-referenced motions. In addition, Plaintiffs previously failed to file an opposition or a statement of non-opposition to Federal Defendants' motion to dismiss for insufficient service of process. See Doc. 60. On March 27, 2012, Plaintiffs' were warned that their failure to comply with the local rules may warrant dismissal with prejudice, see Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995); see also Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal with prejudice for failure to abide by deadlines), and were ordered to show cause in writing no later than Friday, March 30, 2012 why the Court should not dismiss this action in its entirety. Doc. 65.

On March 30, 2012, Plaintiffs filed a fifteen page "Response to Order to Show Cause Re Dismissal With Prejudice." Doc. 68. Nowhere in that brief do Plaintiffs even attempt to explain their failure to timely file oppositions to the motions to dismiss or their failure to otherwise comply with the local rules regarding the filing of statements of non-opposition. Instead, Plaintiffs provide an untimely disquisition on the merits of their claims. Dismissal of Plaintiffs' entire case is warranted based upon their complete failure to show good cause why they failed to comply with the local rules.

In the alternative, Dismissal is also warranted on the merits. Plaintiffs have demonstrated a fundamental misunderstanding of the role a federal court may play in their dispute with the City and the Zoo Corporation. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Id. (internal citations and quotations omitted). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. The only possible basis upon which this Court could assert jurisdiction over this case is 28 U.S.C. § 1331 (federal question jurisdiction). The Declaratory Judgment Act, 28 U.S.C. § 2201, invoked as a basis for assertion of jurisdiction over Plaintiffs' second count, does not provide an independent basis for subject matter jurisdiction. Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005).

Plaintiffs have failed to state a claim that properly invokes the federal question jurisdiction of this Court. As the January 31, 2011 Memorandum Decision and Order Granting Defendants' earlier motion to dismiss indicates:

It is well-accepted that three of the federal statutes relied upon by Plaintiffs (NEPA, LWCFA, and NHPA*fn2 ) do not create private rights of action to enforce their provisions. See 16 U.S.C. 460l-4, et seq.; 16 U.S.C. 470, et seq.; 42 U.S.C. § 4321, et seq. A Plaintiff seeking relief for violations of these statutes must rely upon other authority, such as the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., to establish federal subject matter jurisdiction under these statutes. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1093 (9th Cir. 2005) (affirming dismissal of claim brought directly under NHPA rather than the APA, and analogizing NHPA to NEPA).

To permit a case to proceed directly under a federal statute and bypass the APA is not without consequence. The APA includes a series of procedural requirements litigants must fulfill before bringing suit in federal court. For instance, the challenged agency action must be final. 5 U.S.C. ยง 704. Also, a party generally cannot seek court review until all ...


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