Coal. For A Sustainable Delta v. Fed. Emergency Mgmt. Agency

711 F.Supp.2d 1152

COALITION FOR A SUSTAINABLE DELTA and Kern County Water Agency, Plaintiffs,v.FEDERAL EMERGENCY MANAGEMENT AGENCY and William Craig Fugate, in his official capacity as Administrator of the Federal Emergency Management Agency, Defendants.

No. 1:09-CV-2024 OWW DLB.

United States District Court E.D. California.

May 10, 2010.

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Audrey M. Huang, Paul S. Weiland, Robert C. Horton, Nossaman LLP, Irvine, CA, Amelia Minaberrigarai, Kern County Water Agency, Bakersfield, CA, for Plaintiffs.

James A. Maysonett, Kevin William McArdle Ethan Carson Eddy, Wildlife & Marine Resources Section, Department of Justice, Washington, DC, for Defendants.

MEMORANDUM DECISION RE FEDERAL DEFENDANTS' MOTION TO DISMISS (DOC. 102)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

The Federal Emergency Management Agency and its Administrator, William C. Fugate (“FEMA” or “Federal Defendants”) move to dismiss Counts 14, 15, and 16 ¹ of the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that Plaintiffs lack Article III standing. Doc. 102. Plaintiffs, the Coalition for a Sustainable Delta (“Coalition”) and Kern County Water Agency (“KCWA”), oppose dismissal. Doc. 110. FEMA filed a reply. Doc 115. Oral argument was heard April 26, 2010.

II. BACKGROUND

A. General Overview of the Case.

This case involves a challenge to FEMA's administration of the National Flood Insurance Program (“NFIP”) in the Sacramento-San Joaquin Delta (“Delta”). The Coalition is a California corporation that represents the interests of entities and individuals that use Delta water for agricultural purposes. KCWA is a California state agency that contracts for Delta water on behalf of individual water districts in Kern County. Both Plaintiffs allege that they depend on Delta water from the California State Water Project (“SWP”) and the Central Valley Project (“CVP”), two of the largest water distribution systems in California.

The SAC was filed on July 23, 2009 against numerous federal agencies, challenging a number of federal activities in and around the Delta. The claims against FEMA, asserted in Claims 14-16 of the SAC, were severed from the remaining claims in the SAC. In Claims 14-16, Plaintiffs allege that FEMA's administration of the NFIP encourages development in the Delta, which adversely affects four species listed as threatened or endangered under the Endangered Species Act (“ESA”): the delta smelt, the Sacramento River winter-run Chinook salmon, the Central Valley spring-run Chinook salmon, and the Central Valley steelhead (collectively the “Listed Species”). Plaintiffs further allege that FEMA is administering the NFIP in violation of ESA Section 7, which requires federal agencies to insure, in consultation with the U.S. Fish and Wildlife Service (“FWS”) in the case of listed terrestrial and inland fish species such as the delta smelt and the National Marine Fisheries Service (“NMFS”) in the case of listed marine and anadromous fish species including listed salmonids, that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat. See 16 U.S.C. § 1536(a)(2).

B. Endangered Species Act.

The ESA provides for the listing of species as threatened or endangered. 16 U.S.C. § 1533. ESA Section 7 directs each federal agency to insure, in consultation with FWS or NMFS (the “consulting agency”), that “any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of” any listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). If the agency proposing the action (“action agency”) determines that the action “may affect” listed species or critical habitat, the action agency must pursue either informal or formal consultation with the consulting agency. 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the action agency determines, with the consulting agency's written concurrence, that the proposed action is “not likely to adversely affect” a listed species or critical habitat. §§ 402.14(b)(1), 402.13(a). If formal consultation is required, the consulting agency must prepare a biological opinion stating whether the proposed action is likely to “jeopardize the continued existence of” any listed species or destroy or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.

C. The National Flood Insurance Act and Program.

The purpose of the National Flood Insurance Act of 1968 (“NFIA”) is to provide affordable flood insurance to the general public and reduce the risks and costs of flood damage. 42 U.S.C. §§ 4001(d)-(f), 4011, 4014; Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 388 (9th Cir.2000). To achieve these objectives, the NFIA authorizes FEMA to establish and carry out the NFIP. 42 U.S.C. §§ 4001(a), 4011, 4128.

The NFIA directs FEMA to make flood insurance available in communities that have (1) evidenced interest in securing flood insurance through the NFIP and (2) adopted adequate flood plain management regulations consistent with criteria developed by FEMA. §§ 4012(c), 4022(a); 44 C.F.R. § 60.1(a). The NFIA mandates that FEMA design the criteria to encourage, to the maximum extent feasible, the adoption of state and local flood plain regulations that will:

(1) constrict the development of land which is exposed to flood damage where appropriate,

(2) guide the development of proposed construction away from locations which are threatened by flood hazards,

(3) assist in reducing damage caused by floods, and

(4) otherwise improve the long-range land management and use of flood-prone areas.

42 U.S.C. § 4102(c). FEMA promulgated regulations setting forth the community eligibility criteria in 1976. 41 Fed.Reg. 46,975 (Oct. 26, 1976); 44 C.F.R. §§ 60.1-60.26. Flood insurance is marketed in eligible communities either directly by FEMA or through arrangements with private sector property insurance companies. See 44 C.F.R. § 62.23(a); 42 U.S.C. § 4081.

The NFIA also directs FEMA to implement a “community rating system program” that provides discounts on flood insurance premiums in communities that establish additional floodplain management regulations that exceed FEMA's minimum eligibility criteria. 42 U.S.C. § 4022(b). Participation in the community rating system program is entirely voluntary. Id.

Finally, the NFIA directs FEMA to undertake certain activities peripheral to the NFIP, such as the preparation of maps of the floodplain. The NFIA directs FEMA to “identify and publish information with respect to all floodplain areas, including coastal areas located in the United States,” 42 U.S.C. § 4101(a), and update the maps as provided in the statute, § 4101(e)-(i). The mapping activity is based solely on technical evaluation of the base flood elevation and effectively involves drawing a topographic line around the floodplain. See, e.g., § 4104; 44 C.F.R. § 64.3, 65.1-65.17.

III. STANDARD OF DECISION

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of jurisdiction over the subject matter.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-969 (9th Cir.1981).

A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004), cert. denied, 544 U.S. 1018, 125 S.Ct. 1973, 161 L.Ed.2d 856 (2005):

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.

In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003), cert. denied, 541 U.S. 1009, 124 S.Ct. 2067, 158 L.Ed.2d 618 (2004); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev'd on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.

The standards used to resolve motions to dismiss under Rule 12(b) (6) are relevant to disposition of a facial attack under 12(b)(1). See Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir.2009) (applying Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) to a motion to dismiss for lack of subject matter jurisdiction). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading “does not need detailed factual allegations” but the “[f]actual allegations must be enough to raise...