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Protect Our Communities Foundation v. Imperial County Board of Supervisors

United States District Court, Ninth Circuit

May 15, 2013

PROTECT OUR COMMUNITIES FOUNDATION, BACKCOUNTRY AGAINST DUMPS, and DONNA TISDALE, Plaintiffs,
v.
IMPERIAL COUNTY BOARD OF SUPERVISORS, and DOES I-XX, Defendants, PATTERN ENERGY GROUP LP, OCOTILLO EXPRESS LLP and DOES XI-XX, Real parties in interest.

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND [Dkt. No. 12.]

GONZALO P. CURIEL, District Judge.

Before the Court is Plaintiffs' motion to remand the case to state court for lack of subject matter jurisdiction. (Dkt. No. 12.) An opposition and a reply were filed by the parties. (Dkt. Nos. 13, 18.) Based on the briefing, supporting documentation and applicable law, the Court GRANTS Plaintiffs' motion to remand.

Background

Plaintiffs The Protect Our Communities Foundation; Backcountry Against Dumps; and Donna Tisdale filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief in state court. (Dkt. No. 1.) They seek to enjoin the Imperial County Board of Supervisors ("County") and real parties in interest, Pattern Energy Group, LP and Ocotillo Express, LLP ("collectively known as "Ocotillo"), from taking any action to construct the Ocotillo Wind Energy Facility ("Project"); directing the County to set aside and vacate its certification of the Environmental Impact Report ("EIR"); and to set aside and vacate its approval of the Conditional Use Permit and Variance[1] issued for the Project as not in compliance with the California Environmental Quality Act ("CEQA"). (Id.) Ocotillo and Pattern, as real parties in interests, are named as defendants as they are the Project proponent and the applicant for the Project and the Conditional Use Permit and Variance.

Ocotillo seeks to construct a 112 wind turbine renewable energy facility located in Imperial County. In December 2010, Ocotillo submitted an application to Imperial County for a Conditional Use Permit for the operation of the Project and for a Variance from the County's 100-foot height limit. (Id. § 20.) Ocotillo also submitted an application to the United States Bureau of Land Management ("BLM") for a right-of-way ("ROW") grant and an amendment to the California Desert Conservation Area ("CDCA") Plan to allow the construction of the Project. (Id.)

BLM and Imperial County prepared and issued a joint Draft Environmental Impact Statement/Draft Environmental Impact Report in June 2011. (Id. § 21.) Public and agency comments were made on the project. (Id.) In March 2012, Imperial County and BLM issued a Final Environmental Impact Statement/Final Environmental Impact Report ("FEIR") that addressed impacts of six alternatives for the Project. (Id. § 22.) Prior to final consideration, Ocotillo proposed a new Project configuration of 112 wind turbines. (Id. § 24.) Imperial County approved the 112 wind turbines by certifying the FEIR and allegedly issued a Conditional Use Permit and Variance for the Project on April 25, 2012. (Id. § 24.) On May 11, 2012, BLM approved Ocotillo's right-of-way application. (Id. § 25.)

On May 25, 2012, Plaintiffs filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief challenging the County's actions concerning the Project in the San Diego Superior Court. (Dkt. No. 1-1.) On May 31, 2012, real parties in interest, Pattern Energy Group, LP and Ocotillo Express, LLC, filed a notice of removal. (Dkt. No. 1.) On July 2, 2012, Plaintiffs filed a motion to remand to state court for lack of subject matter jurisdiction. (Dkt. No. 12.) Ocotillo filed an opposition on July 23, 2012. (Dkt. No. 13.) Plaintiffs filed a reply on July 30, 2012. (Dkt. No. 18.)

Discussion

I. Legal Standard on Motion to Remand

Plaintiffs argue that the case should be remanded to state court as they are challenging the County's decision made pursuant to the state CEQA law, not federal law. Ocotillo contends that removal is proper under the federal officer removal statute pursuant to 28 U.S.C. § 1442(a).

28 U.S.C. § 1442(a)(1), also known as the federal officer removal statute, provides that an action may be removed by "[a]ny officer... of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office...." 28 U.S.C. § 1442(a)(1). Removal under § 1442(a)(1) requires the moving party to show "that (a) it is a person' within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and (c) it can assert a "colorable federal defense." Durham v. Lockheed Martin Corp. , 445 F.3d 1247, 1251 (9th Cir. 2006) (citing Jefferson Cnty. Alabama v. Acker , 527 U.S. 423, 431 (1999)); Mesa v. California , 489 U.S. 121, 124-25 (1989).

Generally, there is a strong presumption against removal jurisdiction and the defendants always have the burden of establishing that removal is proper. Gaus v. Miles , 980 F.2d 564, 566 (9th Cir. 1992). However, the federal officer removal statute is an exception to this general rule and § 1442 is interpreted broadly in favor of removal. Durham , 445 F.3d at 1252; Ballenger v. Agco, No. 06-2271 CW , 2007 WL 1813821, at *2 (N.D. Cal. June 22, 2007). For example, under § 1442, federal officers can remove both civil and criminal cases while § 1441 only provides for civil removal; a federal officer can remove a case even if the plaintiff couldn't have filed the case in federal court in the first instance; removals under § 1441 are subject to the well-pleaded complaint rule while those under § 1442 are not; and where all defendants must consent to removal under § 1441, a federal officer or agency defendant can unilaterally remove a case under § 1442. Durham , 445 F.3d at 1253. Under the federal officer removal statute, cases against federal officers "may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law." Acker , 527 U.S. at 431.

II. Federal Officer Removal Statute

While the parties do not dispute that Pattern and Ocotillo, the moving parties, are "persons" within the meaning of the statute, Plaintiffs challenge whether Ocotillo, Pattern, and the County of Imperial[2] acted under the ...


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