Mathis v. Lozier

• Decision Date: 02 July 2020
• Docket Number: No. C19-3035-LTS,C19-3035-LTS
• Parties: BERTHA I. SOLOMON MATHIS, Plaintiff, v. RICHARD W. LOZIER, JR., et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

BERTHA I. SOLOMON MATHIS, Plaintiff, v. RICHARD W. LOZIER, JR., et al., Defendants.

No. C19-3035-LTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

July 2, 2020

ORDER

I. INTRODUCTION

This matter is before me on a motion to dismiss (Doc. No. 5) filed by defendants Geri D. Huser, Nick Wagner and Richard W. Lozier, Jr. (defendants). Plaintiff Bertha Solomon Mathis has filed a resistance (Doc. No. 6) and defendants have filed a reply (Doc. No. 13). I find that oral argument is not necessary. See Local Rule 7(c).

II. BACKGROUND

On December 5, 2017, Solomon Mathis and Stephen Mathis filed a Petition for Declaratory Order with the Iowa Utilities Board (the Board) requesting the Board declare that a certificate of public convenience, use and necessity pursuant to Iowa Code § 476A.2 was required for a MidAmerican Energy Company (MidAmerican) wind energy project in Palo Alto County, Iowa (the Project). Mathis v. Iowa Utilities Board, 934 N.W.2d 423, 425 (Iowa 2019). The Project consists of 170 turbines. Id. at 424. Each turbine has a capacity of two megawatts (MW). Id. The overall capacity of the Project is up to 340 MW of energy. Id.

If the Board were to declare that a certificate was required for the Project, then MidAmerican would have had to submit an application for a certificate. Iowa Code § 476A.3. Once an application is received, the Board schedules and holds a public hearing on the application. Id. § 476A.4; but see id. § 476A.15 (the Board could waive the public hearing requirement if it determined that the public interest would not be adversely affected).

The certificate of public convenience, use and necessity would have been required for the Project if the Project was a "facility" within the meaning of Iowa Code § 576A.1(5). A "facility" means "any electric power generating plant or a combination of plants at a single site, owned by any person, with a total capacity or twenty-five megawatts of electricity or more . . . ." Id. § 576A.1(5). Thus, the issue the Board needed to resolve was whether the Project met the definition of a facility.

On February 2, 2018, the Board issued its declaratory order, finding:

The Board has ruled on the issue presented by Petitioners on several prior occasions, beginning with its order in Zond. Development Corporation, Docket Nos. DRU-97-5 and DRU-97-6. In Zond, the Board found that "facility" "refers to the wind turbines connected to a common gathering line." Zond, "Declaratory Ruling" (November 6, 1997). On multiple occasions the Board has confirmed the gathering line standard as its interpretation of "facility." See e.g., MWW Holdings, LLC and Storm Lake Power Partners I, LLC, "Order Granting Waiver," Docket No. WRU-2015-0001-3700 (February 6, 2015) ("[I]f the capacity of turbines connected to a single gathering or feeder line is less than 25 MW of nameplate capacity, there is no facility as defined in Iowa Code § 476A.1(5)."); MidAmerican Energy Company, "Declaratory Order," Docker No. DRU-03-3 (June 6, 2003) ("[T]he term 'facility' refers to the wind turbines connected to a common gathering line at a single site.")

The Petitioners request that the Board reconsider its prior decisions on this issue and find that the Project meets the definition of a facility even though it will have less than 25 MW of capacity on any gathering line. However, Petitioners have presented no compelling justification to overturn this well-established Board precedent, nor have Petitioners distinguished the facts and circumstances surrounding the Project from any of the other wind energy projects that the Board has considered when finding that the term "facility" refers to the wind turbines connected to a common gathering line at a single site. Further, the Board issued the Zond decision on November 6, 1997. Since that decision, the Legislature has not taken action to modifythe statutory language or otherwise addressed the Board's interpretation. Nor has any court addressed the issue.

For the foregoing reasons, the Board reaffirms its long-standing determination that the term "facility" is measured by the nameplate generating capacity of the wind turbines connected to a single gathering line.

In re Bertha Mathis and Stephen Mathis, No. DRU-2017-0003, 2018 WL 741219 (Iowa Utilities Board Feb. 2, 2018). Therefore, the Board found that a certificate of public convenience, use and necessity was not required and it did not need to hold a public hearing on the Project.

On February 5, 2018, Solomon Mathis and Stephen Mathis filed a petition for judicial review in the Iowa District Court for Palo Alto County pursuant to Iowa Code § 17A.19. Mathis, 934 N.W.2d at 426. On July 3, 2018, the district court affirmed the Board's declaratory order. Id. On July 10, 2018, Solomon Mathis and Stephen Mathis appealed the district court's order and the Iowa Supreme Court retained the appeal. Id. On May 3, 2019, the Iowa Supreme Court affirmed the Board. Id. at 433. The Iowa Supreme Court concluded:

As a court of generalists, not energy specialists, we are unable to say with confidence that the common-gathering-line standard is superior to all other tests for when a wind project should be deemed a single site or facility. What we can say is that compared to the standard advanced by the Mathises, it is more consistent with the underlying statutory language and more in line with the legislature's policy goals. Further, it is supported by a longstanding IUB administrative interpretation, apparent legislative acquiescence in that interpretation, and the legislature's endorsement of a similar standard in a different wind-energy statute. For the foregoing reasons, we affirm the judgment of the district court.

Id. at 432-33.

Solomon Mathis asserts that shortly after the Iowa Supreme Court's decision, she submitted a request to the Board for the gathering lines layout of the Project so she could determine that each gathering line in the Project had less than a 25 MW capacity. Doc.No. 30 at 5. She claims that the Board replied by stating it had no documents responsive to her request. Id.

On July 12, 2019, Solomon Mathis filed a complaint in this court against defendants, the members of the Board, requesting injunctive relief. See Doc. No. 1. Her complaint alleges defendants, in their official capacities, violated the Ninth Amendment and Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983 by failing to hold a public hearing for a certificate of public convenience, use and necessity for the Project. Doc. No. 1 at 4. Defendants then filed their motion to dismiss, arguing, in part, that this court does not have subject matter jurisdiction over Solomon Mathis' claim because a ruling in Solomon Mathis' favor would require this court to overrule the Iowa Supreme Court's decision. See Doc. No. 5.

In response to defendants' motion to dismiss, Solomon Mathis filed a motion to amend her complaint. See Doc. No. 21. Her amended complaint was meant to clarify that she was not seeking federal review of the Iowa Supreme Court's decision and that she was also seeking monetary relief. See Doc. No. 30. Solomon Mathis stated that her claim is based on the Board's lack of factual support that the Project actually has less than 25 MW of capacity on each gathering line. Id. at 4. She asserts that the capacity of the Project is 340 MW and, therefore, a certificate of public convenience, use and necessity was required and the Board should have held a public hearing. Id.

Defendants did not resist granting leave to amend but noted in a response that "the proposed amendments in no manner or respect negate Defendants' previously asserted grounds for dismissal and, consequently, the amendment is futile." Doc. No. 27 at 2. Defendants then went on to expound their argument why the amended complaint warranted dismissal. Id. Chief Magistrate Judge Kelly K.E. Mahoney granted the motion to amend, finding that "the parties' arguments related to the motion to dismiss . . . can be considered with substitution of the amended complaint." Doc. No. 29. Solomon Mathis then filed a reply (Doc. No. 31) addressing the issues raised in defendants' response.

III. APPLICABLE STANDARDS

A. Rule 12(b)(1)

Rule 12(b)(1) provides for a pre-answer motion to dismiss "for lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). As the Eighth Circuit Court of Appeals has explained:

"The existence of subject-matter jurisdiction is a question of law that this court reviews de novo." ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). The party seeking to invoke federal jurisdiction . . . carries the burden, which may not be shifted to another party. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010).

Jones v. United States, 727 F.3d 844, 846 (8th Cir. 2013); accord Key Med. Supply, Inc. v. Burwell, 764 F.3d 955, 961 (8th Cir. 2014) (review is de novo). Dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may be permissible on the basis of a defense or exception to jurisdiction. See, e.g., Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013).

Where a party limits its attack to the face of the complaint, the attack is a "facial challenge" to subject matter jurisdiction. Jones, 727 F.3d at 846 (citing BP Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 680 (8th Cir. 2002)). On a "facial challenge," "'the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).'" Id. (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). Those protections include treating the complainant's factual allegations as true and dismissing only if it appears beyond a doubt that the complainant can prove no set of facts in support of its claim that would entitle it to relief. Osborn, 918 F.2d at 729 & n.6.

By contrast, on a "factual...