848 F. Supp. 2d 1152
E.D. Cal.2012Background
- This case challenges Fresno Zoo expansion in Roeding Park and related lease with FCZC, alleging multiple federal and state claims.
- Plaintiffs allege violations of LWCF Act, NHPA, and NEPA, plus 42 U.S.C. §1983 equal protection/due process, California Code §526a, and CEQA.
- Defendants City of Fresno and FCZC moved to dismiss for lack of jurisdiction and failure to state claims; DOI not yet appeared; venue shifted to Fresno Division.
- Meas. Z funding approved in 2004; lease of 39 acres with 21-acre expansion area; expansion would encroach on open space.
- CEQA EIR certified June 2011; City approved Master Plans and a conditional use permit for Sea Lion Cove; Plaintiffs filed an FAC Aug. 15, 2011.
- Court grants dismissal of most claims with leave to amend on some, dismisses CEQA without leave to amend, and dismisses federal claims for lack of private rights of action or proper defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA/LWCF/NHPA claims can proceed given lack of private rights of action. | Plaintiffs rely on these statutes to establish federal jurisdiction. | These statutes do not create private rights of action; APA jurisdiction required. | GRANTED: no private right of action; lack jurisdiction. |
| Whether the City can be a proper NEPA defendant. | The City is part of a federal action through interrelated federal involvement. | City is not a federal agency; no NEPA jurisdiction over City. | GRANTED: NEPA claim against City dismissed. |
| Whether NHPA claim against City survives. | NHPA applicability to City under federal undertaking. | NHPA applies only to federal or federally assisted undertakings. | GRANTED: NHPA claim against City dismissed. |
| Whether §1983 Equal Protection claim is cognizable. | Minority status alleged as basis of unequal treatment. | Conclusive allegations without specifics fail to show disparate treatment. | GRANTED: Equal Protection claim dismissed. |
| Whether CEQA claim is time-barred under 90-day hearing requirement. | CEQA claim timely; filing did not toll 90-day clock. | Failure to request a hearing within 90 days warrants automatic dismissal. | DISMISSED: CEQA claim dismissed for failure to timely request hearing. |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (U.S. 1994) (jurisdiction must be affirmatively shown; presumption against jurisdiction)
- San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005) (APA as basis when no private right of action; exhaustion required)
- Laub v. U.S. Dept. of Interior, 342 F.3d 1080 (9th Cir. 2003) (federal action intertwined; non-federal defendant may be included under NEPA)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (pleading must show plausibility, not mere possibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standards apply to federal claims (Iqbal))
- Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) (non-conclusory facts must support plausible claims)
- White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (facial vs. factual attacks on jurisdiction)