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Cobian v. Department of Land and Natural Resources (DLNR) Land Division

United States District Court, D. Hawaii

November 18, 2016

LI COBIAN, Plaintiff,
v.
DEPARTMENT OF LAND AND NATURAL RESOURCES (DLNR) LAND DIVISION; RUSSELL TSUJI, ADMINISTRATOR; BARRY W. CHEUNG, LAND AGENT, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT, ECF NO. 11

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Li Cobian (“Plaintiff”), proceeding pro se, filed this action against Defendants State of Hawaii Department of Land and Natural Resources (“DLNR”) Land Division; Russell Tsuji (“Tsuji”), DLNR Administrator; and Barry W. Cheung (“Cheung”), DLNR Land Agent (collectively, “Defendants”), seeking injunctive relief requiring Defendants to cancel a revocable use permit issued by the State of Hawaii Board of Land and Natural Resources (“BLNR”) to Hawaii Motorsports Association Inc. (“HMA”). Currently before the court is Defendants' Motion to Dismiss Plaintiff's Complaint. ECF No. 11. Defendants contend, in part, that Plaintiff's Complaint fails to assert federal subject matter jurisdiction. For the reasons discussed below, the court agrees that Plaintiff has failed to allege federal subject matter jurisdiction and therefore, GRANTS Defendant's Motion without leave to amend.[1]

         II. BACKGROUND

         A. Factual Background

         As alleged in the Complaint, on March 29, 2010 and pursuant to Hawaii Revised Statute (“HRS”) § 171-55, the BLNR issued a revocable permit to HMA to occupy and use a parcel of state land for motorcycle and trail bike riding. ECF No. 1, Compl. ¶ III.B; ECF No. 1-4, Pl.'s Ex. 4. Under this permit, HMA operates the Kahuku Motocross Track Park (“KMTP”). ECF No. 1, Compl. ¶ III.B. The Complaint further alleges that HMA “officers and special ‘insiders'” have violated federal tax regulations, specifically, 26 C.F.R. §§ 53.4958-0 through 53.4958-8 concerning inurement, excessive private benefits, and insider business practices as applied to a 26 U.S.C. § 501(c)(7) non-profit entity. ECF No. 1, Compl. ¶¶ II, IV. The Complaint includes additional allegations that HMA mismanages KMTP and that “comments and questions by park members regarding mis-management (sic) and unethical business practices . . . have been received with non-civil intimidating threats, violent responses, physical altercations[, and] expulsion from the Park.” Id. ¶ IV.

         In an effort to obtain “justice for law abiding tax payers and the community's best interests, ” Plaintiff seeks injunctive relief directing Defendants to (1) require that BLNR permittees comply with federal tax regulations, (2) review HMA's business practices “with regard to” federal tax regulations, and (3) revoke HMA's permit for non-compliance. Id. ¶¶ II., III.A., III.B. Stated differently, by this action, Plaintiff seeks to require that “the Landlord (Defendant[s]) makes a reasonable responsible effort and attempt to ensure that future entities (Permittees) acquiring such ‘Revocable Permits' manage the park with accountability and civil professionalism” so that the “Park is a benefit to the Community” and is not operated in manner that “privately benefit[s] a select few through intimidation and threats.” Id. ¶ V.

         B. Procedural Background

         Plaintiff filed his Complaint on August 3, 2016. ECF No. 1. On September 6, 2016, Defendants filed the instant Motion. ECF No. 11. Plaintiff filed his Objection on October 7, 2016, ECF No. 17, and on October 17, 2016, Defendants filed their Reply, ECF No. 18.

         III. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims over which it lacks proper subject matter jurisdiction. The court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) so long as “the jurisdictional issue is [not] inextricable from the merits of a case.” Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).

         The moving party “should prevail [on a motion to dismiss] only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1060-61 (9th Cir. 2001) (citation and quotation marks omitted); Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the court may dismiss a complaint when its allegations are insufficient to confer subject matter jurisdiction. When the allegations of a complaint are examined to determine whether they are sufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). In such a facial attack on jurisdiction, the court ...


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