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Demoruelle v. Kucharski

United States District Court, D. Hawaii

September 27, 2019

SANDRA L. DEMORUELLE, Plaintiff,
v.
WILLIAM KUCHARSKI, et al., Defendants.

          ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

          Jill A. Otake United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         A. Facts

         According 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.

         The DEM 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.

         B. Procedural History

         When 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.

         Defendants 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. 61.

         Defendants 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.

         II. LEGAL STANDARDS

         A. Rule 12(b)(1)

         Federal 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).

         In a 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 ...


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