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City of Los Angeles, A California Municipal v. Great Basin Unified Air Pollution

May 1, 2013


F.R.C.P. 12(B)(1) AND 12(B)(6)


This is an action for declaratory and injunctive relief by plaintiff City of Los Angeles by and through its Department of Water and Power ("City") against defendants California Air Resources Board ("CARB") and the State of California ex rel. State Lands Commission ("Commission") (collectively, the "State Defendants") and the Great Basin Unified Air Pollution Control District ("District"). The instant action is part of a long-running dispute between City and agencies having jurisdiction over air quality issues in the Owens Valley that have been exacerbated by the transfer of water to the Los Angeles basin that had historically drained into Owens Lake.. The result of this transfer of water from the Owens River and other tributaries to Owens Lake is the reduction of water level in the saline lake and the corresponding expansion of the area occupied by dry lake bed (the "Playa") that is the source of fine particulate air emissions that exceeds state and federal standards within the District. In its First Amended Complaint ("FAC"), City challenges the legal basis of yearly fees it pays to mitigate particulate emissions that emanate from the Playa. In the motions currently before the court, District and the State Defendants seek dismissal of City's FAC on both jurisdictional grounds and for failure to allege claims upon which relief can be granted. Venue is proper in this court.


Beginning in 1905, the City of Los Angeles began securing land and the appurtenant riparian rights to water in the Owens Valley. By 1913 Los Angeles had completed a 233-mile long aqueduct from the Owens Valley to Los Angeles and began transferring water that had historically flowed into Owens Lake. The Owens Valley and Owens Lake are in Inyo County. The transfer of water previously flowing into Owens Lake reduced the lake to a dry bed that is an abundant source of very fine particulate matter less than 10 microns in diameter that is readily blown into the air.

The federal Clean Air Act ("CAA"), 42 U.S.C. §§ 4701 et seq., establishes that particulate matter less than 10 microns in diameter (PM-10) is a criteria pollutant and establishes emissions standards for the control of this type of pollution. Air samples taken in the area administered for CAA purposes by District, including Alpine, Mono and Inyo Counties, was found to contain levels of PM-10 pollution substantially in excess of federally established standards due in substantial part to the generation of dust from the dry Owens Lake bed. Where a state fails to meet "National Ambient Air Quality Standards" ("NAAQS") with regard to any listed pollutant, the CAA requires the state to develop and implement a "State Implementation Plan" (SIP") to bring the offending air quality region within NAAQS standards in a specified period of time. City's FAC alleges that Defendant District, the entity tasked with responsibility under the CAA to implement the SIP, attempted to assert jurisdiction over City by way of writ of mandamus in the early 1980's. In 1983, the California legislature, in consultation with the City of Los Angeles, promulgated section 42316 of the California Health and Safety Code (hereinafter "Section 42316"), which authorized District to order City to undertake measures at City's expense to mitigate the production of dust from the Owens Lake basin. Although the suit for writ of mandamus was dismissed following the promulgation of Section 42316, City alleges that the Section "does not implicate, at all, the provisions of the CAA." Doc. # 21 at ¶ 32.

The FAC alleges that in November 1998, District submitted a SIP for PM-10 control within the Owens Valley Planning Area that "prescribes only three allowable mitigation control measures that can be used to control PM-10 [emissions within the Owens Valley Planning Area]: (1) shallow flooding; (2) managed vegetation; and (3) gravel cover." Doc. # 21 at ¶ 43. City alleges that it has made numerous attempts to expand the list of options for mitigation of PM-10 emissions but all such attempts have been refused. The FAC does not give any indication what mitigation techniques were requested and refused.

The FAC alleges the 1998 SIP was revised in 2003 and identified a maximum control area on Owens Lake of 29.8 square miles, within which mitigation measures assigned to City were "completed by City by the December 31, 2006, deadline set by the EPA in the 1998 SIP." Doc # 21 at ¶ 48. In 2006, District "attempted to impose additional control requirements on City, not under Section 42316, but instead under the CAA." Doc. 21 at ¶ 49. City objected to the additional orders, but to settle the dispute, District and City entered into an agreement (the "2006 Agreement") in which City agreed to expand mitigation measures for which it was responsible under the 1998 SIP to a total of 43 square miles of the Playa. Apparently a further SIP was developed in 2008 pursuant to which contingency measures for additional mitigation would be imposed on City in the event the measures imposed by the 2006 Agreement failed to make reasonable progress toward attainment of NAAQS standards for PM-10 emissions. City alleges that contingency measures have been imposed under the 2008 SIP in 2011 and 2012 that impose additional costs and duties on City. City alleges that neither the 2003 SIP nor the 2008 SIP were approved by the EPA.

Defendants have filed a notice of related cases that have been filed in California superior courts. Defendants contend that each of the cases filed in state court challenge the imposition of mitigation duties and associated fees under Section 42316 on grounds that are similar to or the same as the grounds advanced in this action. So far as the court is aware, the state court cases are still pending. The instant action was originally filed on October 12, 2012. City's FAC was filed on November 9, 2012. District and the State Defendants filed their motions to dismiss on December 18, 2012, and December 19, 2012, respectively. City filed its opposition to District's and State's motions to dismiss on February 4, 2013. Reply briefs were filed by District and State on February 19, 2013. The federal Defendants were voluntarily dismissed with prejudice on February 20, 2013. The matter was taken under submission as of February 25, 2013.


Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The City has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936);

Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).

A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No 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." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

"In resolving a Rule 12(b)(1) motion [to dismiss] for lack of subject matter jurisdiction, unlike motions brought pursuant to Rule 12(b)(6), courts are generally free to consider relevant materials outside the pleadings. [Citations.]" Nat'l Comty. Reinvestment Coalition v. Nat'l Credit Union Admin., 290 F.Supp.2d 124, 131 (D.C. 2003).

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).


City's FAC originally alleged fourteen claim for relief. City's first, second and third claims for relief implicate provisions of the CAA; the fourth claim for relief alleges violation of the Equal Protection Clause of the Fourteenth Amendment; the fifth claim alleges violation of the National Environmental Policy Act ("NEPA"); the eighth claim alleges violation of the National Historic Preservation Act; and City's fourteenth and final claim for relief is pursuant to the federal Quiet Title Act, 28 U.S.C. § 2409a. All other claims for relief alleged in the FAC arise under state law. It should be noted at the outset that the FAC does not allege any of the claims against an identified Defendant. The court also notes that, although the Defendant parties set fourth somewhat different grounds, their common contention is that City has failed to allege, or is prevented from alleging, any claims arising under federal law that would give rise to federal subject matter jurisdiction.

During the pendency of the instant motions to dismiss, the Federal Defendants -- Bureau of Land Management and Environmental Protection Agency -- were dismissed with prejudice. See Doc. # 41. The court is not aware that any of the federal claims for relief set forth in the FAC were dismissed along with the dismissal of the federal Defendants. However, the court does note that City's opposition to Defendants' motions to dismiss addresses specifically the claims arising under federal law alleged in City's first, third, and fourth claims for relief. Because dismissal of the federal claims alleged in City's second, fifth, eighth and fourteenth claims for relief are not opposed and because they appear by inspection to have been directed at the Federal Defendants, those claims will be dismissed without further discussion.

As Defendant District points out, City's action is, at its core, a challenge to the authority of the State to promulgate Section 42316, and the authority of District to enforce its provisions. Defendant District ...

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