La Jolla Friends v. Nat'L Oceanic and Atmos.
| Decision Date | 28 April 2009 |
| Docket Number | Case No. 08cv1847 WQH (POR). |
| Citation | 630 F.Supp.2d 1222 |
| Court | U.S. District Court — Southern District of California |
| Parties | LA JOLLA FRIENDS OF THE SEALS, a nonprofit organization; and JameS H.N. Hudnall, Jr., an individual, Plaintiffs, v. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE ("NMFS"), an agency of the U.S. Dept. of Commerce; Carlos M. Gutierrez, Secretary of Commerce; James W. Balsiger, Acting Director of NMFS; Rodney McInnis, Acting Regional Administrator of NMFS; James Lecky, Director of Office of Protected Resources at NMFS; City of San Diego; and Does 1 to 100, Defendants. |
Bryan W. Pease, Byran W. Pease Inc., San Diego, CA, Norman B. Blumenthal, Blumenthal, Nordrehaug & Bhowmik, La Jolla, CA, for Plaintiffs.
Kevin W. McArdle, US Department of Justice, Washington, DC, Thomas C. Stahl, US Attorneys Office Southern District of California, George F. Schaefer, Law Offices of George F. Schaefer, San Diego, CA, for Defendants.
The matter before the Court is the motion to dismiss the Complaint for lack of subject matter jurisdiction filed by the Federal Defendants. (Doc. # 12).
Plaintiffs, an organization and an individual with conservationist, aesthetic and recreational interests in marine mammal protection, brought this action against Defendants National Atmospheric Administration National Marine Fisheries Service (NMFS); Carlos M. Gutierrez, Secretary of Commerce; James W. Balsiger, Acting Director of the NMFS; James Lecky, Director of Office of Protected Resources at the NMFS (collectively "the Federal Defendants"); and Defendant City of San Diego. In the second cause of action against the Federal Defendants,1 Plaintiffs seek "judicial review of agency action under 5 U.S.C. § 702 to prevent the NOAA from ceding its authority to the City of San Diego to interpret and apply the Marine Mammal Protection Act." (Doc. # 1 at 7).
Plaintiffs allege that the NMFS has taken the position that Section 109(h) of the Marine Mammal Protection Act (MMPA) which provides that the take prohibitions of the Act do not apply to local officials in the course of their official duties to protect the public health and remove nuisance animals, authorizes the City of San Diego to remove seals from the La Jolla Children's Pool Beach without a permit. Plaintiffs allege in relevant part:
On October 21, 2008, the City will appear in state court in the case O'Sullivan v. City of San Diego, San Diego Superior Court case number GIC826918, to defend itself against a motion requesting an order requiring the immediate dispersal of the already pregnant seals at [Children's Pool Beach] based upon a mandatory injunction requiring the City `to employ all reasonable means to restore the Pool to its 1941 condition by removing the sand buildup and further to reduce the level of water contamination in the Pool to levels certified by the County of San Diego as being safe for humans.'...
NMFS has taken the position that 16 USCS 1379(h), also referred to as Section 109(h) of the MMPA, authorizes the City to remove the seals from [Children's Pool Beach] without a permit. Defendant James Lecky stated as much before the San Diego City Council on September 14, 2004, which was the entire basis for the state court's belief that it could order the dredging of [Children's Pool Beach] without running afoul of the MMPA, notwithstanding the fact that Mr. Lecky wrote a letter to the City just a year before making [ ] statements that completely contradicted that position. . . .
On November 3, 2005, the Executive Director of the MMPA wrote a letter to Defendant Rodney McInnis questioning whether section 109(h) applies to this situation, and noting that this is a question of federal law that should not be left up to the City to determine.
. . .
Despite the City's previous representation that concerned parties would have an opportunity to be heard in a permitting process and that the seals would not be dispersed unless and until dredging can take place after the issuance of a Clean Water Act permit, there is an immediate threat that the state court will now order the seals to be dispersed on October 21, 2008 independent of the dredging process....
Plaintiffs imminently need a declaration from this federal court as to whether exceptions to the MMPA allow the City to destroy the seal rookery without a permit without violating federal law.
The federal requirements contained in the MMPA should be determined by a federal court, not by government bureaucrats who have made contradictory statements on the matter or by a state court cherry picking those statements, or by the City Attorney's office. The necessity for correct interpretation and uniform application of federal law that Congress intended demands a federal forum for these issues.
(Doc. # 1 at 7-8, 17). Plaintiffs seek a judgment against the Federal Defendants "requiring a MMPA permit to be issued prior to NMFS officials allowing the disturbance of seals at Children's Pool Beach." (Id. at 18).
Federal Defendants contend that the Complaint against them must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds that this Court lacks subject matter jurisdiction. Federal Defendants contend that Plaintiffs have not identified a waiver of sovereign immunity or stated a cause of action that allows Plaintiffs to proceed against the them in federal court. Plaintiffs contend that the actions of the Federal Defendants are reviewable under the Administrative Procedures Act (APA) on the grounds that the challenged agency actions create legal consequences. Plaintiffs contend that a formal decision has been made by the NMFS to allow the City of San Diego to actively disperse the seals at the Children's Pool under the Section 109(h) of the MMPA.
"A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989). Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008) (quotation omitted). Subject matter jurisdiction must exist at the time the action is commenced and must be disclosed in the complaint. Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988). "If jurisdiction is lacking at the outset, the district court has `no power to do anything with the case except dismiss.'" Id. quoting 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3844, at 332 (1986).
When assessing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the court assumes the truth of all allegations in the complaint. Castaneda v. United States, 546 F.3d 682, 684 n. 1 (9th Cir.2008). Rule 12(b)(1) attacks on jurisdiction can be either facial, confining the inquiry to the allegations in the complaint, or factual, permitting the court to look beyond the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). With a factual Rule 12(b)(1) attack, the court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. Id.
The MMPA prohibits "taking" a marine mammal without a permit. 16 U.S.C. § § 1372, 1374. "Taking" is defined in the MMPA as harassing, hunting, capturing, or killing a marine mammal, as well as attempting to do so. Id. § 1362(13), (18), 50 C.F.R. § 216.3. Section 109(h) of the MMPA provides in relevant part: "Nothing in this subchapter . . . shall prevent a Federal, State, or local government official . . . from taking, in the course of his or her duties as an official . . . a marine mammal in a humane manner (including euthanasia) if such taking is for—(A) the protection or welfare of the mammal, (B) the protection of the public health and welfare, and (C) the nonlethal removal of nuisance animals." 16 U.S.C. § 1379(h)(1).
Section 104(d)(6) of the MMPA provides that "[a]ny applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit." 16 U.S.C. § 1374(d)(6). The MMPA does not otherwise provide a private right of action. See Didrickson v. United States Department of Interior, 982 F.2d 1332, 1338 (9th Cir.1992); see also, Cetacean Community v. Bush, 386 F.3d 1169, 1178 (9th Cir.2004) (). The allegations of Plaintiffs' complaint in this case do not involve the grant or denial of an application under Section 104(d) of the MMPA. In order to proceed with their claim against the Federal Defendants, Plaintiffs must establish waiver of sovereign immunity under the APA. 5 U.S.C. §§ 702, 704; see Rattlesnake Coalition v. U.S. Environmental Protection Agency, 509 F.3d 1095, 1103 (9th Cir.2007). The APA permits a citizen suit against an agency when an individual has suffered "a legal wrong because of an agency action" or has been "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. When a claim is brought pursuant the APA, there must be "final agency action for which there is no other adequate remedy in court." 5 U.S.C. § 704.
Federal Defendants contend that NMFS enforcement decisions under the MMPA are committed to agency discretion and immune from judicial...
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