United States District Court, D. Hawaii
SANDRA L. DEMORUELLE, Plaintiff,
WILLIAM KUCHARSKI, et al., Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO
A. Otake United States District Judge
brings this action alleging that a county construction
project harms two endangered species-the Hawaiian hawk
(“hawk”) and the Hawaiian hoary bat
(“bat”)-in violation of the Endangered Species
Act. Presently before the Court is Defendants’ Motion
to Dismiss pursuant to Federal Rules of Civil Procedure
(“FRCP”) Rule 12(b)(1) and FRCP Rule 12(b)(6).
ECF No. 43. For the reasons set forth below, the motion to
dismiss for lack of standing is GRANTED.
to the Complaint, in 2008, the County of Hawai‘i
Department of Environmental Management (“DEM”)
published the Final Environmental Impact Statement
(“FEIS”) for the Ocean View Transfer Station and
Recycling Center (“Recycling Center”) in
Ka‘u, Hawai‘i. Pl.’s Compl. [ECF No. 1]
¶ 76. The FEIS advised that the Recycling Center’s
construction should take place outside the months of March
through August, which is the nesting season of the hawk, and
April through August, which is the pupping season for the
bat. Id. ¶¶ 78, 80, 87.
awarded the contract to build the Recycling Center to a
private construction firm in February 2019. Id.
¶ 89. The contract to build the Recycling Center
contains a provision prohibiting clearing activities between
April and August to prevent impacts to the bats and hawks.
Id. ¶ 92. The Complaint alleges that
construction of the Recycling Center began in March 2019, and
tree clearing occurred in late April 2019, id.
¶¶ 90–91, which has resulted in
“taking” of the bats and hawks in violation of
the Endangered Species Act (“ESA”) as defined in
16 U.S.C. § 1532. See Pl.’s Compl.
¶¶ 1, 2, 4, 26.
Plaintiff observed the construction of the Recycling Center
and related tree clearing in April 2019, Plaintiff notified
the DEM that they were in violation of the FEIS and requested
that the DEM stop all construction activities at the
Recycling Center, but Plaintiff received no response.
Id. ¶¶ 94, 99. Plaintiff filed the
Complaint on May 29, 2019, seeking, among other things, an
injunction to stop the construction activities. Id.
¶ 120. The Complaint was filed against Defendants David
Bernhardt, Secretary of the Department of the Interior;
William Kucharski, Director of DEM; Gregory Goodale, Division
Chief of County of Hawai‘i Department of Environmental
Management Solid Waste Division; and Allan Simeon, Deputy
Director of the County of Hawai‘i Department of Public
Works. It alleges that Defendants Kucharski and Goodale are
responsible for the construction of the Recycling Center
which is causing the taking of the bats and hawks by
impairing their essential behavioral patterns in violation of
16 U.S.C. § 1538(a)(1)(B) (Count 1); that Defendant
Simeon failed to include United States Fish and Wildlife
Service approval in certain construction permits in violation
of 16 U.S.C. § 1538(a)(1)(B) and the Administrative
Procedure Act (“APA”) (Count 2); that Defendant
Bernhardt failed to designate critical habitat for the bats
and hawks in violation of 16 U.S.C. § 1533(a)(3)(A) and
the APA (Counts 3 and 4); and that Defendant Bernhardt failed
to comply with various statutory provisions of the ESA, which
also amounts to a violation under the APA (Counts 5, 6, and
7). Id. ¶¶ 106–19. In her prayer for
relief, Plaintiff seeks numerous forms of injunctive and
declaratory relief, such as to cease the construction
activities until Defendants obtain incidental take permits
and a “Habitat Conservation Plan” as allegedly
required under the ESA, as well as to require Defendant
Bernhardt to render critical habitat designations for the
bats and hawks. Id. ¶ 120. But on June 13,
2019, Plaintiff dismissed David Bernhardt from the action.
ECF No. 21. Thus only Counts 1 and 2 against Defendants
Kucharski, Goodale, and Simeon remain.
filed the present Motion to Dismiss pursuant to Rules
12(b)(1) and 12(b)(6) on July 12, 2019. ECF No. 43. Plaintiff
filed an opposition on July 19, 2019, ECF No. 53, and
Defendants filed a reply on August 8, 2019, ECF No. 58. A
hearing was held on August 23, 2019. At the hearing, the
Court requested supplemental briefing from Defendants
regarding whether Plaintiff had adequately pled standing
under Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167 (2000). Defendants
filed the supplemental briefing on August 26, 2019. ECF No.
argue: (1) Plaintiff lacks standing to assert her claims; and
(2) the Complaint should be dismissed because the
construction of the Recycling Center is not in fact taking
any endangered species in violation of the ESA. Defendants
attach various exhibits to their motion to dismiss but
contend the Court should not convert the motion to dismiss
into one for summary judgment. ECF No. 43 at 13 n.3, 20 n.6.
Rule of Civil Procedure 12(b)(1) motions challenge the
court’s subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). Federal courts are presumed to lack subject matter
jurisdiction, and the plaintiff bears the burden of
establishing that jurisdiction is proper. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Dismissal under Rule 12(b)(1) is warranted when the plaintiff
fails to meet this burden. See Chandler v. State Farm
Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
2010). A motion to dismiss under Rule 12(b)(1) can amount to
a facial or factual challenge. See Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
facial challenge, the movant asserts that the allegations of
the complaint “are insufficient on their face to invoke
federal jurisdiction.” Leite v. Crane Co., 749
F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air,
373 F.3d at 1039). As in a motion to dismiss under Rule
12(b)(6), the Court accepts the plaintiff’s allegations
as true, draws all reasonable inferences in the