Santa Fe All. for Pub. Health v. City of Santa Fe

SANTA FE ALLIANCE FOR PUBLIC HEALTH AND SAFETY;ARTHUR FIRSTENBERG; and MONIKA STEINHOFF, Plaintiffs, v. CITY OF SANTA FE, NEW MEXICO and HECTOR BALDERAS, Attorney General ofNew Mexico; and the UNITED STATES OF AMERICA, Defendants.

Civ. No. 18-1209 KG/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 6, 2020

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon Defendant City of Santa Fe's Amended Motion to Dismiss for Failure to State a Claim, (Doc. 21), filed February 11, 2019; Plaintiffs' response to Defendant City of Santa Fe's Motion to Dismiss, (Doc. 22), filed February 25, 2019; Defendant City of Santa Fe's reply, (Doc. 25), filed March 11, 2019; and Plaintiffs' surreply, (Doc. 38), filed April 10, 2019. Also before the Court is Defendant United States' Motion to Dismiss, (Doc. 46), filed May 31, 2019; Plaintiffs' response to the United States' Motion to Dismiss, (Doc. 56), filed July 8, 2019; Defendant United States' reply, (Doc. 57), filed July 31, 2019; Plaintiffs' surreply, (Doc. 61), filed August 7, 2019; and Plaintiffs' Notice of Supplemental Authority, (Doc. 71), filed January 21, 2020. Having considered the Motions to Dismiss, the accompanying briefs, and the relevant law, the Court grants both Motions to Dismiss.¹

I. Background

Plaintiffs are residents of the City of Santa Fe who allege they have been injured by radio frequency (RF) waves emitted by wireless telecommunications facilities, such as cell towers and antennae that connect cell phones to the broader telecommunications network for calls and internet access. (Doc. 19) at 1-15. They state RF emissions (RFEs) are detrimental to human health and lead to increases in cancer, neurological and immunological disorders, and other diseases and symptoms. Plaintiffs also assert that RFEs harm the environment, causing changes in animal behavior, decreases in reproduction, increases in mortality, and negative impacts to the health of both animals and plants. Id.

Plaintiffs bring this action to challenge federal, state, and city laws regarding the permitting and regulation of wireless telecommunications infrastructure. Specifically, Plaintiffs challenge: (1) the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iv)-(v) (Section 704), which prohibits states and municipalities from considering the environmental effects of RFEs when making siting decisions for wireless telecommunications facilities; (2) the City of Santa Fe's repeal of land use regulations and notice requirements regarding RF emitting telecommunications facilities (Ordinance Nos. 2016-42 and 2017-18); (3) three executive Proclamations issued by the Mayor of Santa Fe temporarily suspending the city's Land Development Code with respect to telecommunications properties on city-owned property; and (4) the State of New Mexico's Wireless Consumer Advanced Infrastructure Investment Act (WCAII), NMSA 1978, §§ 63-9I-4(C) and 63-9I-5(B) (Repl. Pamp. 2018), which permits RF emitting antennae and supporting structures in public rights-of-way. Id. at 2-3.

Plaintiffs argue these laws "remove all public protection from injurious facilities in the public right-of-way, infringe on the public's right to speak about a danger to their own health,eliminate all public participation into the siting of such facilities, and deprive injured parties of any remedy for their injuries." Id. at 14. Therefore, Plaintiffs "seek a declaration that these laws, and any other laws that may be enacted by their City, their State, or the United States, that would deprive them of any means of protecting themselves from RF radiation and of any remedy for injury by such radiation, are unconstitutional, and to enjoin enforcement of these laws." Id. at 15.

Plaintiffs assert the Court has jurisdiction over their federal claims under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 2201 and 2202 (Declaratory Judgement Act), and 28 U.S.C. § 1343(a)(3) (civil rights claims), and that the Court may exercise supplemental jurisdiction over their state law claims pursuant to 28 U.S.C. § 1367. Id. at 22-23. Plaintiffs bring a total of twenty-two claims under federal and state law alleging violations of the United States and New Mexico Constitutions, New Mexico State Statutes, and Santa Fe's City Code and Charter. Id. at 37-67. Plaintiffs ask the Court to enjoin Defendants from enforcing Chapter 27 as amended by Ordinance Nos. 2016-42 and 2017-18, the WCAIIA, and Section 704 of the TCA. Plaintiffs also ask the Court to prohibit Defendants from granting any additional franchises and operating any cell towers or antennae erected under existing franchises or the Mayor's proclamations. Id. at 67-68. Finally, Plaintiffs ask the Court to enjoin the United States "from adopting or enforcing any law that prohibits States or local governments, with respect to wireless telecommunications facilities, from enforcing land use regulations in the public rights-of-way." Id. at 68.

Defendants move to dismiss all of Plaintiffs' claims for lack of standing and for failure to state a claim under Fed. R. Civ. P. 12(b)(1) and (b)(6). (Docs. 21 and 46).

II. Statutory and Legal Framework

The Telecommunications Act of 1996 (TCA) created uniform regulations for the wireless industry and vested enforcement and regulatory authority in the centralized Federal Communications Commission (FCC). 47 U.S.C. § 151. Section 704 of The TCA, codified at 47 U.S.C. § 332(c)(7), preserves local government control over "decisions regarding the placement, construction, and modification of personal wireless services facilities," but places several limitations on that power. 47 U.S.C. §§ 332(c)(7)(A) and (B); see also FCC v. League of Women Voters, 468 U.S. 364, 376 (1984) (explaining the commerce clause confers on Congress the authority to regulate telecommunications). The limiting provision at issue here is clause iv, which prohibits local governments from regulating "the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions." 47 U.S.C. § 332(c)(7)(B)(iv).

Chapter 27 of the Santa Fe City Code regulates telecommunications facilities in the City of Santa Fe. On November 9, 2016, the City adopted Ordinance 2016-42 to amend Chapter 27 to, in part, authorize franchisees to use public rights-of-way to provide telecommunications services. Ordinance 2016-42 (amending SFCC 1987 § 27-2.4(D) (2017)). On August 30, 2017, the City adopted Ordinance 2017-18, which repealed many franchise application requirements in order to streamline the land use review process for telecommunications facilities in public rights-of-way. Ordinance 2017-18 (amending SFCC 1987 §§ 27-2.19(C), (E), and (G) (2017)). Similarly, the WCAIIA exempts both new antennae and supporting structures for antennae from land use review. NMSA 1978, §§ 63-9I-4(C) and 63-9I-5(B) (Repl. Pamp. 2018).

In addition, on November 21, December 13, and December 26, 2017, the City Mayor issued Proclamations of Emergency due to "insufficient telecommunications capacity in the City, which have caused or are causing danger, or injury, or damage to persons and property within the City." (Docs. 19-5, 19-6, 19-7). Through these proclamations, the Mayor authorized the installation of temporary or mobile wireless telecommunications facilities on City of Santa Fe property, pending review and approval of permanent facilities, to allow emergency responders to better communicate with their departments, other agencies, and the public. Seven short cell towers have been built on City land pursuant to these proclamations. (Doc. 19) at 2-3, 20.

III. Standard of Review

In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, or under Rule 12(b)(6) for failure to state a claim, the Court "accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to [Plaintiffs]." Garling v. United States Environmental Protection Agency, 849 F.3d 1289, 1292 (10th Cir. 2017). Nevertheless, the Court will not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court is also not "bound to accept as true a legal conclusion couched as a factual allegation." Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (citing Twombly, 550 U.S. 544, 570 (2007)). In addition, the Court must "draw on its judicial experience and common sense" to determine whether the facts as alleged "permit the court to infer more than the mere possibility of misconduct." Id. at 679.

IV. Discussion

A. Plaintiffs' Standing

Federal courts are of limited jurisdiction, empowered by Article III of the Constitution to hear only cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992); Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017). An "essential and unchanging part of the case-or-controversy requirement" is the "irreducible constitutional minimum of standing." Lujan, 504 U.S. at 560. "The burden of establishing a federal court's subject matter jurisdiction rests upon the party asserting jurisdiction." Safe Streets Alliance, 859 F.3d at 878. To satisfy this burden, Plaintiffs must show: (1) they have suffered an "injury in fact" that is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged actions of Defendants; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Collins v. Daniels, 916...