ORDER GRANTING INTERVENORS' MOTIONS TO DISMISS
This matter comes before the Court on remand from the Ninth 6 Circuit Court of Appeals, with a mandate to consider the grounds 7 for dismissal of Plaintiffs Potrero Hills Landfill, et al.'s First 8
Amended Complaint ("FAC")(Doc. #17), other than Younger abstention, 9 presented by Intervenors Sustainability, Parks, Recycling and Wildlife Legal Defense Fund ("SPRAWLDEF"), Sierra Club, and Northern California Recycling Association ("NCRA"). See Potrero Hills Landfill, Inc. v. City of Solano, 657 F.3d 876, 879, 890 (9th Cir. 2011) (hereinafter "PHLI").
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts and procedural history leading up to the filing of the pending case were aptly summarized by the Ninth Circuit, and need not be repeated here. See PHLI, 657 F.3d at 879-881. However, the developments in the concurrent state court cases, now consolidated on appeal to the First District Court of Appeals, are relevant to the Court's inquiry and therefore summarized below.
In May 2010, the Solano County Superior Court issued a written opinion regarding the constitutionality of Measure E. Doc. #67 at 3; see also Doc. #67, Exhibit A. The state court upheld Measure E, in part, by applying California law to judicially reform the challenged Measure. In doing so, the court found that Measure E would not offend the federal Commerce Clause, as it would apply only to waste generated within other counties in California, and it 2 issued a writ of mandamus, directing Defendant Solano County to 3 enforce the measure only against waste produced within California. 4
Id. The state court also denied Intervenors' request to overturn a 5 landfill expansion permit approved by the court in June 2009 and 6 subsequently rejected Intervenors' motions to reconsider. Several 7
Plaintiffs, Defendant, and Intervenors appealed the rulings, which 8 were consolidated on appeal. Id. Their petitions are currently 9 pending before the First District Court of Appeals, and no date for oral argument has been set.
Currently pending before this Court are two motions to dismiss Plaintiffs' FAC, filed by Intervenors SPRAWLDEF (Doc. #31) and Sierra Club and NCRA (Doc. #34), respectively, which Plaintiffs and Defendant oppose. See Doc. ##42, 43. Following the Ninth Circuit's opinion, and an order by this Court, the parties filed supplemental briefing on the issues raised by the original motions to dismiss. See Doc. ##69, 70, 72, 73, 75. This Court heard argument on the submitted motions to dismiss, and supplemental briefing, on January 11, 2012. At the conclusion of the hearing, the Court ordered further supplemental briefing on the Colorado River abstention doctrine, as well as dismissal pursuant to the Declaratory Relief Act. These issues were fully briefed and submitted by the parties on February 3, 2012. See Doc. ##85-90.
Through its mandate, the Ninth Circuit directed this Court to consider Intervenors' alternative grounds for dismissal, including the applicability of the Pullman abstention doctrine, R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941), "in the first 2 instance." See PHLI, 657 F.3d at 890. It is important to note, at 3 the outset, that a Court has discretion to choose among threshold 4 jurisdictional issues. See, e.g., Sinochem International Co., LTD 5 v. Malaysia International Shipping Corp., 549 U.S. 422, 430-431 6 (2007). However, unlike Younger, abstention under Pullman requires 7 a federal court to retain jurisdiction by staying the action where 8 abstention is appropriate. See id.; accord Pullman, 312 U.S. 496. 9
Indeed, Pullman abstention has not been found to be one of the "threshold grounds for denying audience to a case on the merits," Sinochem International, 549 U.S. at 431 (citations omitted), as it "does not implicate [a federal court's] subject matter jurisdiction. . . ." Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 802 (9th Cir. 2001).
Importantly, the Supreme Court has made clear that a federal district court cannot "assume jurisdiction," in order to address a "merits question." Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 93-96 (1998). In this case, it is necessary to first address the arguments for dismissal presented by Intervenors relating to Plaintiffs' Article III standing, ripeness and prudential standing. As further described below, because this Court finds that Plaintiffs have not properly alleged standing or ripeness in the FAC, this Court is precluded from addressing Pullman "in the first instance." See City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 232 (9th Cir. 1980) ("[W]e find that standing must be ascertained before a court proceeds to exercise its discretion to abstain [under Pullman]."); Miller-Davis Company v. Illinois State Toll Highway Authority, 567 F.2d 323, 325-26 (7th Cir. 1977) (finding a district 2 court erred in abstaining under Pullman before it "resolved any 3 problems as to its jurisdiction").
Intervenors move to dismiss Plaintiffs' FAC under Federal Rule 5 of Civil Procedure 12(b)(1), arguing that Plaintiffs have failed to 6 plead they have standing under Article III to maintain their 7 section 1983 claim, that Plaintiffs' claim fails because it is not 8 ripe for judicial review, and that Plaintiffs lack prudential 9 standing to bring the present lawsuit. See Doc. ##34, 47. The Court will address each of these jurisdictional arguments in turn.
A court may dismiss an action under Rule 12(b)(1) "when the District Court lacks subject matter jurisdiction over the claim." FED. R. CIV. P. 12(b)(1). A motion made pursuant to Rule 12(b)(1) "may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint. Because challenges to standing implicate a federal court's subject matter jurisdiction . . . they are properly raised in a [12(b)(1)] motion to dismiss." Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393, *3 (N.D. Cal. July 20, 2010) (internal citations omitted). ...