Save Our Springs All., Inc. v. Tex. Dep't of Transp.

• Decision Date: 26 June 2020
• Docket Number: 1:19-CV-762-RP
• Parties: SAVE OUR SPRINGS ALLIANCE, INC., Plaintiff, v. TEXAS DEPARTMENT OF TRANSPORTATION and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.
• Court: U.S. District Court — Western District of Texas

SAVE OUR SPRINGS ALLIANCE, INC., Plaintiff, v. TEXAS DEPARTMENT OF TRANSPORTATION andUNITED STATES FISH AND WILDLIFE SERVICE, Defendants.

1:19-CV-762-RP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

June 26, 2020

ORDER

Before the Court is Defendant Texas Department of Transportation's ("TxDOT") motion to dismiss Count 3¹ of Plaintiff Save Our Springs Alliance, Inc.'s ("SOS") complaint. (Partial Mot. Dismiss, Dkt. 10; Compl., Dkt. 1, at 23-24; see also Resp. Partial Mot. Dismiss, Dkt. 14; Reply Partial Mot. Dismiss, Dkt. 15). After considering the parties' arguments, the record, and the relevant law, the Court denies TxDOT's motion.

I. BACKGROUND

In this case, SOS challenges Defendants TxDOT and United States Fish and Wildlife Service's ("FWS"; collectively, "Defendants") actions during consultation on the Oak Hill Parkway Project, "a highway expansion and grade separation project in Travis County, Texas." (Compl., Dkt. 1, at 1). Three of SOS's allegations concerning violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), are relevant to a discussion of TxDOT's partial motion to dismiss. First, in Count 1, SOS asserts a procedural violation: that Defendants failed to use the best scientific data available in concluding that the protect is not likely to adversely affect the Austin Blind Salamander or the Barton Springs Salamander, both federally protected species. (Compl., Dkt. 1, at 21-22).Second, in Count 2, SOS asserts another procedural violation: that Defendants failed to analyze the project's cumulative effects on the salamanders in conjunction with the effects of other reasonably foreseeable activities. (Id. at 23). Third, in Count 3, SOS asserts a substantive violation: that TxDOT failed in its obligation to ensure the salamanders would not be placed in jeopardy. (Id. at 23-24).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a "court accepts 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). "To survive a Rule 12(b)(6) motion to dismiss, a complaint 'does not need detailed factual allegations,' but must provide the [plaintiffs'] grounds for entitlement to relief—including factual allegations that when assumed to be true 'raise a right to relief above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

Meanwhile, under Federal Rule of Civil Procedure 12(f), a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Motions to strike under Rule 12(f) are generally disfavored, but a motion to strike a defense should be granted where the challenged defense is insufficient as a matter of law." Brown v. Aetna Life Ins. Co., No. EP-13-CV-131-KC, 2013 WL 3442042, at *2 (W.D. Tex. July 8, 2013) (citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)). If "the challenged matter is 'directly relevant to the controversy at issue' and is at least 'minimally supported' by the allegations set forth in the pleadings, it should not be stricken under Rule 12(f)." Id. (quoting United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012)). When Fifth Circuit district courts considering motions to strike under Rule 12(f) find that they that are "more akin to . . . motion[s] to dismiss" under Rule 12(b)(6), the courts tend to construe the motions as the latter. Id. at *1 (collecting cases).

III. ANALYSIS

TxDOT argues that Count 3 of SOS's complaint (which SOS characterizes as procedural) duplicates Counts 1 and 2 (which SOS characterizes as substantive) because it putatively seeks the same relief as those counts, presenting the same elements as a different theory of liability. (Partial Mot. Dismiss, Dkt. 10, at 3-8). TxDOT alternatively argues that Count 3 should be dismissed for failure to state a claim. (Id. at 8). The Court disagrees with both contentions and will address each in turn.

A. TxDOT's Duplicative Claims Argument

The ESA provides "both substantive and procedural provisions designed to protect endangered species and their habitat." Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1121 (9th Cir. 1997). "The ESA's procedural requirements call for a systematic determination of the effects of a federal project on endangered species," Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985), overruling on other grounds recognized in Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015), while ESA § 7's substantive requirement obliges federal agencies to "insure that any action authorized, funded, or carried out by [the] agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species," 16 U.S.C. § 1536(a)(2). See also Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 667 (2007) ("[ESA] § 7(a)(2), unlike NEPA, imposes a substantive (and not just a procedural) statutory requirement."); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1036 (9th Cir. 2015).

Courts that consider many ESA cases regularly discuss the ESA's procedural and substantive provisions as separate and discrete obligations, viewing procedural violations as existing independently of substantive violations and vice versa. See, e.g., WildEarth Guardians v. Provencio, 923 F.3d 655, 670 (9th Cir. 2019); Ctr. for Biological Diversity, 807 F.3d at 1036; Cottonwood, 789 F.3d at 1089 n.13; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir. 2014); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990); Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), overruling on other grounds recognized in Cottonwood, 789 F.3d at 1075. As SOS puts it, while a finding of a procedural violation would make a substantive violation "more plausible," the former is "not a necessary predicate" for the latter. (Resp. Partial Mot. Dismiss, Dkt. 14, at 5). These courts also recognize that because claims alleging procedural violations of the ESA and claims alleging substantive violations address distinct agency obligations, plaintiffs may assert simultaneous, parallel claims alleging procedural and substantive violations. See, e.g., Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008); Defs. of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005), rev'd on other grounds and remanded sub nom. Nat'l Ass'n of Home Builders, 551 U.S. at 644; Ctr. for Envtl. Health v. Wheeler, 429 F. Supp. 3d 702 (N.D. Cal. 2019); All. for the Wild Rockies, Inc. v. United States Army Corps of Engineers, 237 F. Supp. 3d1079, 1085 (D. Or. 2017); Pacificans for a Scenic Coast v. California Dep't of Transportation, 204 F. Supp. 3d 1075, 1083 (N.D. Cal. 2016). While plaintiffs may combine the claims into one for pleading purposes, see, e.g., Sierra Club v. Glickman, 156 F.3d 606, 611 (5th Cir. 1998), they are not required to do so.

This approach comports with liberal pleading standards. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A]t the pleading stage, a plaintiff may plead claims hypothetically and alternatively, and it is too early for the court to assess whether they are in fact duplicative." Brennan v. HCA, Inc. Health & Welfare Benefits Plan, No. CV SA-15-CA-276-XR, 2016 WL 11578914, at *3 (W.D. Tex. July 15, 2016) (citing Silva v. Metro. Life Ins. Co., 762 F.3d 711 (8th Cir. 2014)); see also Fed. R. Civ. P. 8(a)(3), 18. The Federal Rules of Civil Procedure expressly provide that even if a party's claims overlap, it "may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones." Fed. R. Civ. P. 8(d)(2). "The plaintiff is simply not allowed to recover twice." Silva, 762 F.3d at 726. And, if the plaintiff's complaint is still deficient, courts may—and are strongly encouraged to—allow amendment. See Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002).

Against this backdrop, TxDOT's motion fails for several reasons. First, it does not make clear whether it seeks to have SOS's Count 3 dismissed as failing to state a claim, under Rule 12(b)(6), or stricken as redundant, under Rule 12(f). (See Partial Mot. Dismiss, Dkt. 10, at 3). Given this ambiguity, the Court will consider it as a motion to dismiss under Rule 12(b)(6):...