Santa Fe Alliance for Public Health and Safety et al v. City of Santa Fe

Filing 40

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting 22 Amended MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, dismissing without prejudice 18 Amended Complaint and denying 39 MOTION for Leave to File Surreply (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

SANTA FE ALLIANCE FOR PUBLIC HEALTH
AND SAFETY, ARTHUR FIRSTENBERG, and
MONIKA STEINHOFF,
Plaintiffs,

v.

No. 18 CV 32 JAP-SCY

CITY OF SANTA FE,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs Santa Fe Alliance for Public Health and Safety (the Alliance), Monika
Steinhoff (Ms. Steinhoff), and Arthur Firstenberg (Mr. Firstenberg) (collectively, Plaintiffs)
allege that the amended approval process for telecommunications facilities adopted by Defendant
City of Santa Fe (Defendant or the City) violates Plaintiffs’ rights under federal and state law.1
Defendant contends that Plaintiffs lack standing to challenge the ordinances and proclamations
that amended the facility siting process, that Plaintiffs’ claims are not ripe for review, and that
Plaintiffs’ Complaint fails to state a claim and fails to join an indispensable party.2 The Motion
has been fully briefed.3 The Court will grant the Motion and, concluding that Plaintiffs do not
have standing to bring their federal claims, will dismiss Plaintiffs’ Complaint without prejudice
for lack of jurisdiction.
1

See FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND PRELIMINARY AND
PERMANENT INJUNCTIVE AND OTHER RELIEF (Doc. No. 18) (Complaint).
2
See DEFENDANT CITY OF SANTA FE’S AMENDED MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM (Doc. No. 22) (Motion).
3
See PLAINTIFF’S RESPONSE TO DEFENDANT’S AMENDED MOTION TO DISMISS (Doc. No. 24)
(Response); DEFENDANT CITY OF SANTA FE’S REPLY SUPPORTING ITS AMENDED MOTION TO
DISMISS (Doc. No. 37) (Reply); MOTION TO FILE SURREPLY (Doc. No. 39).

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I.

BACKGROUND4

Plaintiffs are residents of the City, and an Alliance of those residents, who allege that
they have been forced to abandon homes or businesses due to the effects of radio frequency (RF)
radiation. They assert that RF radiation negatively affects human health, leading to increases in
cancer, neurological and immunological disorders, and other diseases and symptoms. Plaintiffs
state that RF radiation is also detrimental to the environment, causing changes in animal
behavior, decreases in reproduction and increases in mortality, and negative impacts to the health
of both animals and plants. Plaintiffs maintain that doctors and scientists worldwide have called
for regulation, limitation, or banning of RF radiation due to these consequences. However,
Plaintiffs allege that Defendant has instead reduced protections against RF radiation, despite
knowing of these dangers, by amending its telecommunications facility approval process.
Chapter 27 of the Santa Fe City Code regulates telecommunications facilities that are
located in public rights-of-way. As enacted in 1998, Chapter 27 required a site-specific lease for
every facility placed in a public right-of-way and charged a fee for the lease. However, revisions
adopted in 2010 eliminated site-specific leases and fees in favor of a franchise system. This
allowed a telecommunications company to submit an application for a franchise, with a map of
proposed routes and antenna locations, rather than for a single location. The routes could be
approved after a public hearing, and the company would not need to provide notice or seek
further approval for the specific antenna locations along an approved route, but it would be
required to pay a franchise fee.
Qwest Corporation challenged the fee structure, which charged 3 percent of the annual
gross revenue that the provider derived from facilities located in public rights-of-way, and the

4

Facts are drawn from allegations in the Complaint or from documents undisputed by the parties, of which the
Court may take judicial notice. See Pace v. Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir. 2008).

2

United States District Court for the District of New Mexico struck it down. See Qwest Corp. v.
City of Santa Fe, 2013 WL 12241199 (D.N.M. 2013). The City then appealed to the Tenth
Circuit, and on July 1, 2015, Qwest and the City signed a settlement agreement and stipulated to
the dismissal of the appeal. The settlement agreement reduced the franchise fee to 2 percent of
only the revenue that Qwest derived from its retail services.
On November 9, 2016, after a public hearing, the City adopted Ordinance 2016-42 to
amend Chapter 27 in accordance with the Qwest Corp. settlement that had been approved by the
Tenth Circuit Court of Appeals. The new ordinance imposed a franchise fee of 2 percent of gross
revenue from telecommunications retail services only. On December 8, 2016, Plaintiffs Mr.
Firstenberg and the Alliance filed suit in the State of New Mexico First Judicial District Court
seeking a declaration that Ordinance 2016-42 was void and unenforceable.5 See Santa Fe
Alliance v. City of Santa Fe, Case No. D-101-CV-2016-02801. However, because no franchises
had yet been awarded, the state court dismissed the complaint on June 6, 2017 as not ripe for
review. On July 25, 2017, it denied Plaintiffs’ motion to reconsider that dismissal.
Meanwhile, on March 20, 2017, telecommunications company CNSP, Inc. d/b/a
NMSURF also challenged Chapter 27, arguing that certain provisions were invalid,
unconstitutional, and preempted by the Telecommunications Act, 47 U.S.C. § 253. See CNSP v.
City of Santa Fe, No. 17-cv-00355-KG-SCY (D.N.M.). This suit was recently dismissed by
United States District Judge Kenneth Gonzales. See id., Final Order of Dismissal (Doc. No. 55,
entered March 14, 2018). But on August 30, 2017 while the suit was still pending, the City
adopted Ordinance 2017-18 in response to the litigation. Ordinance 2017-18 repealed many of
5

The Court will take judicial notice of the fact that Plaintiffs have filed numerous lawsuits similar to this one, in
both state and federal court, all of which have been dismissed. See St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in
other courts, both within and without the federal judicial system, if those proceedings have a direct relation to
matters at issue.”).

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the franchise application requirements in order to streamline the land use review process for
telecommunications facilities in the public rights of way. The City has not yet awarded any
franchises under Chapter 27 as amended by either of the challenged ordinances, but it has
scheduled five public hearings to be held May 9, 2018, regarding proposed telecommunications
franchises.
On November 21, 2017, Santa Fe Mayor Javier Gonzales issued a Proclamation of
Emergency due to “insufficient telecommunications capacity in the City, which have caused or
are causing danger, or injury or damage to persons and property within the City.” Doc. 20-1.
Mayor Gonzales authorized the installation of temporary or mobile wireless telecommunications
facilities on City property, pending review and approval of fixed wireless facilities, to allow
emergency responders to better communicate with their departments, other agencies, and the
public. On December 8, 2017, seven facilities were approved and construction began shortly
thereafter. Mayor Gonzales issued two substantially identical Proclamations on December 13,
2017, and December 26, 2017.
Plaintiffs allege that in adopting Ordinance 2016-42 and Ordinance 2017-18 and issuing
the Proclamations of Emergency, the City violated Plaintiffs’ rights under the United States
Constitution, the New Mexico Constitution, and numerous state statutes and city ordinances.
Plaintiffs request declaratory relief and ask the Court to temporarily and permanently enjoin
Defendant (1) from enforcing Chapter 27 as amended by Ordinance 2016-42 and Ordinance
2017-18; (2) from awarding any franchises under Chapter 27 pending the outcome of this
lawsuit; (3) from enforcing the Mayor of Santa Fe’s Proclamations of Emergency, including any
construction of telecommunications facilities authorized by the Proclamations.

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II.

LEGAL STANDARD

Plaintiffs’ Complaint recites twenty claims, raising issues under both federal and state
law. The Court construes Plaintiffs’ claims 1–3 and 9 to be based on federal law, while claims
17–20 are not causes of action, but plead “additional issues,” some of which involve federal law,
in anticipation that Defendant will raise preemption by federal or state law as a defense. Claims
4–8 and 10–14 allege violations of only state law, and claims 15–16 appear to be requests for
relief and do not state a cause of action. The Court has original jurisdiction over claims brought
under federal law, see 28 U.S.C. § 1331, and it may exercise supplemental jurisdiction over
related state law claims, see 28 U.S.C. § 1367. Defendant argues primarily that Plaintiffs’
Complaint should be dismissed in its entirety under Rule 12(b)(6) for failure to state a claim and
Rule 12(b)(7) for failure to join an indispensable party. However, Defendant also contends that
dismissal under Rule 12(b)(1) is appropriate because Plaintiffs lack standing and Plaintiffs’
claims are not ripe for review.
In evaluating a motion to dismiss under Rule 12(b)(1) or 12(b)(6), the Court “accept[s] as
true all well-pleaded factual allegations in the complaint and view[s] them in the light most
favorable to [Plaintiffs].” Garling v. United States Environmental Protection Agency, 849 F.3d
1289, 1292 (10th Cir. 2017). But the Court will not credit “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Nor is it “‘bound to accept as true a legal conclusion couched as a factual
allegation.’” Id. (quoting Twombly, 550 U.S. at 555). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Court must “draw on its judicial experience and common sense” to determine whether the

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facts as alleged “permit the court to infer more than the mere possibility of misconduct.” Id. at
679. Additionally, the Court may exercise its discretion to dismiss a case under Rule 12(b)(7) for
failure to join a necessary and indispensable party. See Northern Arapaho Tribe v. Harnsberger,
697 F.3d 1272, 1277 (10th Cir. 2012).
III.

DISCUSSION

“Both standing and ripeness present the threshold jurisdictional question of whether a
court may consider the merits of a dispute.” Southern Utah Wilderness Alliance v. Palma, 707
F.3d 1143, 1152 (10th Cir. 2013).
Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases”
and “Controversies.” To establish Article III standing, an injury must be concrete,
particularized, and actual or imminent; fairly traceable to the challenged action;
and redressable by a favorable ruling. Although imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its purpose, which is to
ensure that the alleged injury is not too speculative for Article III purposes—that
the injury is certainly impending.
Clapper v. Amnesty Intern. USA, 568 U.S. 398, 408 (2013). The ripeness inquiry is closely
related. See Southern Utah Wilderness Alliance, 707 F.3d at 1157–58. “In evaluating ripeness the
central focus is on whether the case involves uncertain or contingent future events that may not
occur as anticipated, or indeed may not occur at all.” Id. at 1158 (internal quotation marks
omitted). “The doctrine of ripeness prevents courts ‘from entangling themselves in abstract
disagreements over administrative policies,’” while also “‘protect[ing] the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.’” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
The Court will first address Plaintiffs’ standing to bring their federal claims. Plaintiffs
allege two types of injury in connection with the Ordinances and Proclamations challenged in

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claims 1–3 and 9: (1) increased risk of physical harm to citizens, including Plaintiffs, and to the
environment due to the proliferation of radio frequency radiation; and (2) procedural injury
through the repeal of notice and hearing requirements that previously applied to the approval of
telecommunications facilities located in the public rights-of-way.
Plaintiffs’ allegations of physical harm are largely based on generalized statements of
increased incidents of, and risk for, negative health impacts based on the worldwide proliferation
of RF radiation. Plaintiffs allege that their homes were rendered uninhabitable to them as a result
of nearby cell towers, but this is not traceable to the challenged Ordinances because Plaintiffs
admit that no telecommunications facilities have yet been approved or constructed under those
provisions. Plaintiffs do state that some mobile or temporary facilities have been constructed in
accordance with the Proclamations, but they do not identify the location of these facilities nor do
they allege any particularized injury that has resulted from them. The home Mr. Firstenberg
describes as uninhabitable was located in Brooklyn, New York, and was abandoned by Mr.
Firstenberg in 1996, long before the Ordinances were adopted. Compl. ¶ 38. The cell tower Ms.
Steinhoff complains of was erected in 2013. Id. ¶ 39. While various members of the Alliance
also allege that they are “refugees from homes they had to leave when a cell tower was erected,”
id. ¶ 40, they do not describe when or where this occurred, and they have not established that this
is traceable to the Proclamations or amended Ordinances, or that it is redressable by a favorable
ruling.
Plaintiffs also allege future harm because as a result of Defendant’s actions they “will no
longer be safe in their homes, at work, or while traveling on the public streets.” Id. ¶ 73. They
argue that “the placement of wireless telecommunications facilities on the sidewalk directly in
front of Plaintiffs’ homes and businesses will render their homes and businesses uninhabitable

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and unusable.” Id. ¶ 81. And they contend that this injury is imminent because Defendant has set
five public hearings to be held May 9, 2018, regarding proposed telecommunications franchises,
which Plaintiffs contend are likely to be approved. But even if the Court assumes that franchise
approval is likely, Plaintiffs have no information as to whether any new facilities would be
placed near Plaintiffs’ homes or businesses or in any locations that will result in concrete, actual,
and particularized injury to Plaintiffs. Finally, the increased risk of physical harm alleged by
Plaintiffs is neither traceable to the challenged actions nor redresseable by a favorable ruling.
The Ordinances and Proclamations challenged by Plaintiffs did not newly authorize the existence
of any allegedly harmful telecommunications facilities, they only amended the procedure
Defendant requires for the application and approval of such facilities. A ruling in Plaintiffs’
favor would not redress any injuries caused by the proliferation of RF radiation of which
Plaintiffs complain because it would not prevent the construction of any additional
telecommunications facilities; it would only require Defendant to alter its approval procedures.
Plaintiffs assert that the procedural changes alone are a cognizable injury because they
deprive Plaintiffs of their right to notice and a hearing before a decision is made regarding
approval and location of telecommunications facilities. “But deprivation of a procedural right
without some concrete interest that is affected by the deprivation—a procedural right in vacuo—
is insufficient to create Article III standing.” Summers v. Earth Island Institute, 555 U.S. 488,
496 (2009). Plaintiffs have not alleged any concrete interest that is affected by Defendant’s
changed procedure because the locations of any proposed telecommunications facilities, and
whether they would have any particularized effect on Plaintiffs, are unknown. See id. (interest in
commenting on agency actions insufficient without demonstration that the actions would impact
the plaintiffs’ concrete plans to visit a particular location). Additionally, notice and hearing will

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still be given prior to at least some facility decisions, as demonstrated by Plaintiffs’ knowledge
of the City’s plan to hold five public hearings on May 9, 2018. “[A] plaintiff raising only a
generally available grievance about government—claiming only harm to his and every citizen’s
interest in proper application of the Constitution and laws, and seeking relief that no more
directly and tangibly benefits him than it does the public at large—does not state an Article III
case or controversy.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 (1992). The Court
concludes that Plaintiffs do not have standing to bring the federal claims 1–3 or 9, and
consequently, that the Court lacks jurisdiction to consider them.
Plaintiffs’ claims 17–20 purport to also raise federal law, but are brought merely to
request declaratory relief in anticipation that Defendant will assert a preemption defense. This is
insufficient to confer federal jurisdiction. See Firstenberg v. City of Santa Fe, 696 F.3d 1018,
1025 (10th Cir. 2012). Even if the Court were to construe Plaintiffs’ mention of the First and
Fifth Amendments in claims 18–20 as alleging a federal cause of action, Plaintiffs would not
have standing to bring these claims. Plaintiffs challenge the constitutionality of Section 704 of
the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iv)-(v), based on allegations that it is a
burden on the content of speech and a potential violation of substantive due process if it is held
to bar their claims. However, Section 704 applies to regulatory agencies and the regulated
facilities, and governs what and how regulation may be applied to mobile services and wireless
facilities. See § 332(c)(7)(B)(iv)-(v). It does not apply to Plaintiffs. The Wireless Consumer
Advanced Infrastructure Investment Act (WCAII), H.B. 38, 53rd Leg., 2d Sess. (NM 2018),
regulates the interactions of wireless providers and municipal authorities, and is also inapplicable
to Plaintiffs. Apart from the potential application of preemption to bar their other claims,
Plaintiffs do not allege any injury from these provisions other than the previously discussed

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procedural deprivations and generalized risks of physical harm. The Court concludes that
Plaintiffs do not have standing to challenge the constitutionality of the Telecommunications Act
or the WCAII, and the Court therefore lacks jurisdiction to consider claims 17–20 even if they
are liberally construed to raise a federal cause of action.
Having concluded that it lacks jurisdiction over Plaintiffs’ federal claims, the Court may
no longer exercise supplemental jurisdiction over Plaintiffs’ state law claims 4–12. “‘Since a
court must have original jurisdiction in order to exercise supplemental jurisdiction, a dismissal
for lack of subject matter jurisdiction precludes a district court from exercising supplemental
jurisdiction over related state claims.’” Ferguson v. Oklahoma Secretary of State, 6 F. App’x
797, 799 (10th Cir. 2001) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,
1188 (2d Cir. 1996) (brackets omitted)).
IT IS THEREFORE ORDERED that:
(1) DEFENDANT CITY OF SANTA FE’S AMENDED MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM (Doc. No. 22) is GRANTED;
(2) Plaintiffs’ FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT
AND PRELIMINARY AND PERMANENT INJUNCTIVE AND OTHER RELIEF
(Doc. No. 18) is DISMISSED without prejudice for lack of jurisdiction; and
(3) Plaintiffs’ MOTION TO FILE SURREPLY (Doc. No. 39) is DENIED as moot.

SENIOR UNITED STATES DISTRICT JUDGE

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