129 F. Supp. 3d 1118
W.D. Wash.
2015

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendants Michael Brady, Ray Mabus, the Department of Navy, and the United States of America’s ‘ (“Federal Defendants”) motion to dismiss (Dkt. 38). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein. ’ " ’

I. PROCEDURAL AND FACTUAL BACKGROUND

On July 7, 2014, the United States Navy acquired an easement from the State of Washington. Dkt. 34 (“Comp.”) ¶ 1. The easement encompasses portions of state-owned aquatic lands located on the bed of the Hood Canal (“bedlands”). Id. Plaintiff Hood Canal Sand and Gravel, LLC (“Hood Canal”) owns property adjacent to the bedlands. Id. ¶ 2. Although the easement does not physically encroach on Hood Canal’s property, the easement blocks Hood Canal’s ability to construct a pier for shipping sand and gravel products. Id. ¶¶ 14, 70. Federal Defendants did not prepare аn environmental impact statement or an environmental assessment before acquiring the easement. Id. ¶ 53.

On August 4, 2014, Hood Canal filed suit against Federal Defendants, as well as Defendants Peter Goldmark, Washington State Department of Natural Resources, and State of Washington (“State Defendants”). Dkt. 1. On August 27, 2014,. State Defendants moved to dismiss on Eleventh Amendment immunity grounds. Dkt, 10. On October'22, 2014, the Court -dismissed all claims against State Defendants and directed Hood Canal to amend its complaint. Dkt. 20.

On November 6, 2014, Hood Canal filed a second amendеd complaint against Federal Defendants. Dkt. 23. On February 12, 2015, Federal Defendants moved to dismiss. Dkt. 29. On April 13, .2015, the Court dismissed some of Hood Canal’s claims with prejudice and granted Hood Canal leave to amend the remaining claims. Dkt. 33.

On April 24, 2015, Hood Canal filed its third amended complaint. See Comp. Hood Canal asserts three claims: (1) Federal Defendants exceeded their authority under 10 U.S.C. § 2663(c) when they purchased the easement and therefore acted arbitrarily and caрriciously under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701; (2) Federal Defendants violated Hood Canal’s right to equal protection; and (3) Federal Defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332, by not preparing an environmental impact statement before purchasing the easement. Id, ¶¶. 73-98.

On May 22, 2015, Federal Defendants moved to dismiss. Dkt. 38. On June 22, 2015, Hood Canal responded. Dkt. 40. On June 26, 2015, Federal Defendants replied. Dkt. 41.

II. DISCUSSION

Federal Defendants seek to dismiss. Hood Canal’s claims for lаck of subject matter jurisdiction and for failure to state a claim. Dkt. 29.

A. Rule 12(b)(1)

Rule 12(b)(1) provides for dismissal of claims based on lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir.2003). Courts lack subject matter jurisdiction over actions in which the plaintiff lacks standing. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002). The plaintiff bears the burden of establishing jurisdiction. Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995).

B. Rule 12(b)(6)

Motions to dismiss brought undеr Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). Material allegations are taken as admitted and the complaint is construed in the plaintiffs favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir.1983). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a “formulaic recitation” of the elements оf a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974.

Generally, the scope of review on a motion to dismiss is limited to the contents of the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). The Court, however, may consider documents that are not attached to the complaint “if the documents’ authenticity ... is not contested and the plaintiffs complaint necessarily relies on them.” Id. (internal quotation marks omitted). Hоod Canal references the easement numerous times throughout its amended complaint. See generally Comp. Because the easement’s authenticity is not disputed and Hood Canal’s amended complaint necessarily relies on it, the Court ‍​​‌‌‌‌‌‌‌‌​​‌‌​‌​​​​​​‌​‌​​‌‌‌​​​​‌‌​​‌​‌‌​‌​‌​‌‍will consider the easement in connection with this motion. ■ *

C. 10 U.S.C. § 2663 Claim

Hood Canal alleges that Federal Defendants exceeded their authority under 10 U.S.C. § 2663(c) when they acquired the easement. Comp. ¶¶ 73-79. Because § 2663(c) .does not crеate a private cause of action, Hood Canal brings , suit under the APA, which provides a cause of action for persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. Federal Defendants argue that Hood Canal lacks prudential standing to bring this claim because Hood Canal has not alleged an interest within the zone of interests protected by § 2663(c). Dkt. 38 at 6-9'.

“[I]n addition to constitutional standing requirements, under the APA a plaintiff must assert an interest ‘arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 715-16 (9th Cir.1993) (quoting Assoc. of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). “The purpose of the ‘zone of interests’ test is ‘to exclude those plaintiffs whose suits are more likely to frustrate rather than further statutory objectives.’” Id. at 716 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). The test “is not meant to be especially demanding,” and “the benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, — U.S. -, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012). Nevertheless, the zone of interests test forecloses suit “when' a plaintiffs' ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399, 107 S.Ct. 750).

The focal point of the zone of interests test is “the statute whose violation is the gravamen of the complaint.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 797 (9th Cir.2013) (quoting Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 529, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991)). Here, the relevant statute is 10 U.S.C. § 2663(c). See Comp. ¶¶ 73-79.

The Court is not aware of any case applying' the zоne of interests test to § 2663(c), and the parties have cited none. The Court must therefore look to the “obvious purpose” of § 2663(c), Bennett v. Spear, 520 U.S. 154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), and determine whether Hood Canal’s interests “are among thé sorts of interests [the statute was] specifically designed to protect.” Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 886, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

Section 2663(c) provides, in relevant part, that military departments may acquire interests in land needed for national defense without first obtaining specific authorization from Congress, provided thаt the acquisition does not exceed $750,000. 10 U.S.C. § 2663(c)(1). The statute was intended to streamline the military’s acquisition of smaller interests in land by reducing paperwork and administrative expenses.1 See Military Public Works: Hearing on H.R. 8625 and H.R. 9893 Before-the H. Comm, on Armed Services, 84th Cong. 6766 (1956); Military Public Works Construction: Hearing on S. 3122 Before the Subcomm. on Real Estate and Military Construction of the Comm, on Armed Servs., 84th Cong. 771 (1956); H.R,Rep. No: 84-1890, at 22 (1956); S.Rep. No. 84-2364, at 26 (1956).

In this case, the Court finds that Hood Canal has not alleged an interest that falls within the zone of interests protected by § 2663(c). Hood Canal alleges that Federal Defendants’ acquisition of the easement blocks Hood Canal’s ability to construct a pier. Comp. ¶ 70. Nothing in the statute or its legislative history indicates that § 2663(c) was designed to protect Hood Canal’s interests. Although the zone of interests test is not especially demanding, the Court cannot conclude, that Hood Canal’s interests in this case are marginally related to the purpоse of § 2663(c). Accordingly, Hood Canal lacks prudential standing to pursue an APA claim based on § 2663(c).

Hood Canal argues that the Supreme Court’s holding in Patchak compels a different result. Dkt. 40 at 11. In Patchak, the Secretary of the Interior decided to acquire property for a tribal casino under the Indian Reorganization Act (“IRA”). 132 S.Ct. at 2203. Patchak, the owner of nearby property, brought suit under the APA, arguing that the Secretary’s decision violated the IRA. Id. at 2202-03. Patchak contended that he had prudential standing based on environmental, aesthetic, and economic harms. Id. at 2203. The government argued that Patchak’s interests were not within the zone of interests protected by. the IRA, which focused on land acquisition. Id. at 2210. The Supreme Court rejected this argument, finding that the IRA dealt with land use generally, and required the Secretary to consider “potential conflicts of land use which may arise” from acquisitions. Id. at 2211. Because the IRA encompassed land use, the Court held that Patchak’s interests fell within the statute’s zone of interests. Id. at 2212.

Unlike the plaintiff in Patchak, Hood Canal’s interests do not fall within the zone of interests protected by § 2663(c). The.statute in Patchak required the government to consider interests like those asserted by Patchak. Hood Canal has cited no provision of § 2663(c) that requires the government to consider potential conflicts of land use that may arise from ‍​​‌‌‌‌‌‌‌‌​​‌‌​‌​​​​​​‌​‌​​‌‌‌​​​​‌‌​​‌​‌‌​‌​‌​‌‍acquiring land for national defense purposes. Because Hood Canal has not alleged an interest within the zone of interests protected by § -2663, the Court grants Federal Defendants’ motion and dismisses this claim.

D. Equal Protection Claims

Hood Canal alleges two equal protection violations.2 Comp. ¶¶ 80-93. First, Hood Canal asserts that Federal Defendants discriminated against Hood Canal by not expressly excluding Hood Canal’s pending lease application from the easement’s restrictions when other pending leases and a pending easement were expressly excluded. Id. ¶ 93. Second, Hood Canal alleges that the easement discriminates against commercial docks and associated vessel traffic while allowing residential docks and associated vessel traffic. Id. ¶¶84, 90. Federal Defendants argue that Hood Canal has failed to state any equal protection claim. Dkt. 38 at 10-17; Dkt.-41 at 4-8.

1. Class of One Claim

Hood Canal’s first equal protection claim is a “class of one” claim. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (“[A]n equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called ‘class of one.’ ”); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir.2008) (“When an equal protection claim is premised' on unique treatment rather than on a classification, the Supreme Court has described it as a ‘class of one’ claim.”); To state a class of one claim, Hood Canal must allege that Federal Defendants “intentionally treated [Hood Canal] differently from others similarly situated and that there is no rational basis for the difference in treatments.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam).

To support its class of one claim, Hood Canal alleges that Federal Defendants acquired the easement to intentionally prevent Hood Canal from developing its pier. Comp. ¶81. Hood Canal further alleges that it is similarly situated to the -parties whose pending leases were excluded from the easement’s restrictions and that there is no rational basis for not excluding Hood Canal’s pending lease application from the easement’s restriсtions. Id. ¶¶ 71, 93.

Contrary to Hood Canal’s assertions, Hood Canal is not similarly situated to the other lease applicants. The easement excludes pending leases for geoduck culture, aquaculture, wet storage, and a salmon pen. Dkt. 38, Ex. A at 21-24. None of these pending leases contemplates the construction of a pier. See id. Thus, Hood Canal is not sufficiently comparable to the other lease applicants. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167-68 (9th Cir.2005) (finding businesses that engaged in different land uses were not similarly situated for class of one claim); see also Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010) (“Class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.”); Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002) (“[Class of one plaintiffs] must demonstrate that they were treated .differently than someone who is prima fade identical in all relevant respects.”)., Because Hood Canal is not similarly situated to the parties whose pending leases were excluded from, the easemеnt’s restrictions, the Court grants Federal Defendants’ motion and dismisses this claim.

2. Classification Claim

Hood Canal’s second equal protection claim is a “classification” claim; Analysis of an equal protection claim alleging improper classification involves two steps. United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir.1995). The first step is to identify the classification. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995). “To accomplish this, a plaintiff can show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people.” Id. The next step is to identify the proper level of scrutiny. Id. “[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.” Nord linger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

To support its classification claim, Hood Canal alleges that the easement discriminates against commercial docks and associated vessel traffic while allowing residential docks and associated vessel traffic. Comp. ¶¶ 84, 90. Although the easement does not facially regulate vessel traffic, it is uncontested that the easement differentiates between types of development. See Dkti 38, Ex. A at 5-6, The easement prohibits “residential, scientific, commercial and industrial uses on the [bedlands] ... beyond those presently established on the site or as allowed under Section 7.” Id. аt 5. Section 7, in turn, permits “private recreational docks or mooring buoys associated with residential uses on abutting parcels per RCW 79.105.430.” Id. at 7. Nevertheless, the easement prohibits any activity or use of the bedlands that is inconsistent with the easement’s purpose. Id. at 5. The easement’s express purpose is “to limit future improvement, development, or use of the [bedlands] in a manner that would be incompatible” with Federal Defendants’ military operatiоns and the preservation of the bedlands. Id. at 4.

Because Hood Canal does not allege that Federal Defendants discriminated ‍​​‌‌‌‌‌‌‌‌​​‌‌​‌​​​​​​‌​‌​​‌‌‌​​​​‌‌​​‌​‌‌​‌​‌​‌‍against a suspect class, rational basis scrutiny applies. S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 507 (9th Cir.1990). As other courts have recognized, “rational basis review at the motion to dismiss stage poses unique challenges.” HSH, Inc. v. City of El Cajon, 44 F.Supp.3d 996, 1008 (S.D.Cal.2014) (quoting Immaculate Heart Central Sch. v. N.Y. State Pub. High Sch. Athletic Ass’n, 797 F.Supp.2d 204, 211 (N.D.N.Y.2011)). To avoid a Rule 12(b)(6) dismissal, a plaintiff must allege sufficient facts to state a plausible claim for rеlief. - Twombly, 127 S.Ct. at 1974. The Court must accept all factual allegations in the complaint as true and must construe those facts in the plaintiffs favor. Lee, 250 F.3d at 688. Meanwhilé; under rational basis review, the Court must uphold a government classification “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The government also has no obligation to provide evidence to sustain the rationality of a classification. Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Rather, the burden is on the plaintiff “to negative every conceivable"' basis which might support” the classification. Id.

Hood Canal asserts that there is no rational basis for Federal Defendants to conclude that commercial vessel traffic is a threat to its military operations. Comp. ¶¶ 42, 86, 91-92.. Federal Defendants argue that the .easement’s distinction between types of development is rationally related to a legitimate government interest. Dkt. 41 at 5-6. Specifically, Federal Defendants contend that commercial and industrial development would likely increase large vessel traffic, which in turn would negatively impact military operations and conservation efforts. Id.

In this case, the Court finds that the easement’s distinction between types of development passes rational basis review. The easement’s limitation on commercial and industrial development bears a rational relation to preventing the disruption of military operations and preserving the bedlands — two legitimate government interests. A government classification “does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. The Court grants Federal Defendants’ motion and dismisses this claim.

E. NEPA Claim

Finally, Hood Canal alleges that Federal Defendants violated NEPA by failing' to prepare an environmental impact statement before purchasing the easement. Comp. ¶¶ 95-98. Federal Defendants argue that Hood Canal’s NEPA claim should be dismissed because Hood Canal lacks both Article III standing and prudential standing. Dkt. 29 at 21 & n. 13.

1. Article III Standing

“Article III of the Constitution limits the judicial power of the United States to the resolution of ‘Cases’' and ‘Controversies,’ and ‘Article III standing .'.. enforces the Constitution’s case-or-controversy requirement.’ ” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). To establish Article III standing, a plaintiff must show that: (1) it suffered an injury in fact; (2) thе injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

Hood Canal brings a procedural claim under NEPA, alleging that Federal Defendants failed to prepare an environmental impact statement before acquiring the easement. Comp. ¶ 97. “To satisfy the injury in fact requirement, a plaintiff asserting a procedural injury must show that ‘the procedures in question arе designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.’ ” Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “Once a plaintiff has established an injury in fact under NEPA, the causation and redressability requirements are relaxed.” Id. at 682.

Hood Canal alleges two concrete interests to support its NEPA claim. First, Hood Canal alleges that 'it is unable to construct a pier for shipping sand and gravel products. Comp. ¶¶ 14, 70; Dkt. 40 at 25. Second, Hood Canal alleges that air and wáter pollution will increase if Hood Canal cannot build its proposed pier because truck traffic “would likely” increase to serve the regional'sand and gravel market. Comp. ¶¶ 28-29, 97. Neither of these interests is sufficient to establish Article III standing for Hood Canal’s NEPA claim.

Hood Canal’s first interest — the inability to build a pier — is not an interest protected by NEPA. NEPA “is directed at environmental concerns, not at business interests.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir.2005). Thus, a plaintiff asserting a procedural injury under NEPA must allege a concrete environmental interest, such as an aesthetic or recreational interest, rather than a business interest. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir.2004). Hood Canal’s inability to build a pier is not an interest that NEPA was enacted to protect.

Although Hood Canal’s second'interest — potential air and water pollution if truck traffic increases — concerns the environment, it is not a concrete interest. The fact that Hood Canal is seeking to enforce a procеdural right does not affect the injury in fact analysis. Cantrell, 241 F.3d at 679.- Hood Canal must still show the “invasion of- a legally protected interest” that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations omitted). Hood Canal’s allegations regarding in creased trucking and increased pollution ‍​​‌‌‌‌‌‌‌‌​​‌‌​‌​​​​​​‌​‌​​‌‌‌​​​​‌‌​​‌​‌‌​‌​‌​‌‍are hypothetical and conjectural. See Corap. ¶¶ 28-29, 97. Because Hood Canal has failed to allege a concrete environmental interest to support its NEPA claim, Hood Canal has failed to establish Article III standing.

2. Prudential Standing

“In addition to [Article JII standing] requirements, a plaintiff bringing suit under the Administrative Procedure Act for a violation of NEPA must show that- his alleged injury falls within the ‘zone of interests’ that NEPA was designed to protect.” Cantrell, 241 F.3d at 679. As noted above, NEPA was enacted to protect the environment. Thus, “a plaintiff must allege injury to the environment; economic injury will not suffice.” Ranchers Cattlemen Action Lеgal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1103 (9th Cir.2005).

For the reasons discussed above, Hood Canal’s inability to build a pier' does not fall within NEPA’s zone of interests. See Ashley Creek, 420 F.3d at 939. With regard to Hood Canal’s interest in transporting sand and gravel resources in an environmentally sound manner, Federal Defendants contend that this interest is merely an economic interest in disguise because it concerns how Hood Canal operates its business. Dkt. 41 at 12-13.

Even assuming Hood Canal’s interest in ensuring sand and grаvel is-transported in an environmentally sound manner is sufficient to establish prudential standing under NEPA, Hood Canal’s claim is still subject to dismissal because NEPA does not require an environmental impact statement for federal actions that maintain the environmental status quo. See Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir.1995) (“[A]n [environmental impact statement] is unnecessary when the action at issue does not alter the natural, untouched physical, environment at all.”); United States v. 0.95 Acres of Land, 994 F.2d 696, 699 (9th Cir.1993) (“The filing of the condemnation action and the subsequent transfer of legal title are not major Federal actions significantly, affecting the environment.” (internal quotation marks omitted)); Sabine River Authority v. U.S. Dep’t of Interior, 951 F.2d 669, 680 (5th Cir.1992) (“The acquisition of a negative easement which prohibits development does not result in the requisite ‘change’ to the physical environment.”).

The easement at issue in this case does not alter the physical environment. In conveying the easement to Federal Defendants, the State of Washington noted that it wanted “to рrotect a variety of conservation values, including but not limited to, native species and species assemblages, ecological systems ... and marine, tidal and upland natural features....” Dkt. 38, Ex. A at 4. The easement’s stated purpose is “to limit future improvement, development, or use of the [bedlands] in a manner that would be incompatible” with Federal Defendants’ military operations and the preservation of the bedlands. Id. The easement therefore prohibits “[t]he placement or construction ... of any buildings, structures,' or other improvements of any kind....” Id. at 5. Indeed, Hood Canal acknowledges in its amended complaint that the easement prohibits future development of the bedlands. See Comp. ¶¶ 1, 69-70. Because the easement in this case prohibits development and does not Change the physical environment, NEPA does not require an environmental impact statement. See Douglas Cty., 48 F.3d at 1505; Sabine River Authority, 951 F.2d at 680. The Court grants Federal Defendants’ motiоn and dismisses this claim.

F. Leave to Amend

Leave to amend shall be freely given when justice so requires. Fed. R.Civ.P. 15(a). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to-test his claim. on. the. merits.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). On a Rule 12(b)(6) motion, “a district court should grant leave to amend, even if no request to amend the pleading was made,, unless it. determines that the pleading could not possibly be cured by the allegation of other facts,” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000). The Court’s “discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir.2011).

Here, Hood Canal has not requested leave to amend. See Dkt. 40. The Court previously granted Hood Canal leave to amend after Federal Defendants’" first motion to dismiss. Dkt. 33 at 11. In the Court’s discretion, the Court declines to provide Hood Canal with another opportunity to amend its complaint.

III. ORDER

Therefore, it is hereby ORDERED that Federal Defendants’ motion to dismiss (Dkt. 38) is GRANTED. The Clerk shall close this сase.

Notes

. Section 2663(c) originally appeared as part of 10 U.S.C. § 2672. See National Defense Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, § 2821(a), 119 Stat. 3136 (2006); United States v. 32.42 Acres of Land, 683 F.3d 1030, 1034 n, 1 (9th Cir.2012), Thus, the ‍​​‌‌‌‌‌‌‌‌​​‌‌​‌​​​​​​‌​‌​​‌‌‌​​​​‌‌​​‌​‌‌​‌​‌​‌‍relevant legislative history for § 2663(c) is that associated with § 2672. The Court may take judicial notice of a'statute's legislative history. Ass'n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 945 n. 2 (9th Cir.2013).

. The Fifth Amendment applies to actions of the federal government. Lee, 250 F.3d at 687. Although the Fifth Amendment contains no equal protection clause, the Court’s approach to Fifth Amendment equal protection claims is "precisely the same as to equal protection claims under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2; 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975).
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