Hood Canal Sand and Gravel, LLC v. Brady et al

Filing 42

ORDER granting 38 Defendants' Motion to Dismiss by Judge Benjamin H. Settle. (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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HOOD CANAL SAND AND GRAVEL,
LLC,

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Plaintiff,

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v.

CASE NO. C14-5620 BHS
ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS

11 MICHAEL D. BRADY, et al.,
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Defendants.

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This matter comes before the Court on Defendants Michael Brady, Ray Mabus,

15 the Department of Navy, and the United States of America’s (“Federal Defendants”)
16 motion to dismiss (Dkt. 38). The Court has considered the pleadings filed in support of
17 and in opposition to the motion and the remainder of the file and hereby grants the
18 motion for the reasons stated herein.
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I. PROCEDURAL AND FACTUAL BACKGROUND
On July 7, 2014, the United States Navy acquired an easement from the State of

21 Washington. Dkt. 34 (“Comp.”) ¶ 1. The easement encompasses portions of state-owned
22 aquatic lands located on the bed of the Hood Canal (“bedlands”). Id. Plaintiff Hood

ORDER - 1

1 Canal Sand and Gravel, LLC (“Hood Canal”) owns property adjacent to the bedlands. Id.
2 ¶ 2. Although the easement does not physically encroach on Hood Canal’s property, the
3 easement blocks Hood Canal’s ability to construct a pier for shipping sand and gravel
4 products. Id. ¶¶ 14, 70. Federal Defendants did not prepare an environmental impact
5 statement or an environmental assessment before acquiring the easement. Id. ¶ 53.
6

On August 4, 2014, Hood Canal filed suit against Federal Defendants, as well as

7 Defendants Peter Goldmark, Washington State Department of Natural Resources, and
8 State of Washington (“State Defendants”). Dkt. 1. On August 27, 2014, State
9 Defendants moved to dismiss on Eleventh Amendment immunity grounds. Dkt. 10. On
10 October 22, 2014, the Court dismissed all claims against State Defendants and directed
11 Hood Canal to amend its complaint. Dkt. 20.
12

On November 6, 2014, Hood Canal filed a second amended complaint against

13 Federal Defendants. Dkt. 23. On February 12, 2015, Federal Defendants moved to
14 dismiss. Dkt. 29. On April 13, 2015, the Court dismissed some of Hood Canal’s claims
15 with prejudice and granted Hood Canal leave to amend the remaining claims. Dkt. 33.
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On April 24, 2015, Hood Canal filed its third amended complaint. See Comp.

17 Hood Canal asserts three claims: (1) Federal Defendants exceeded their authority under
18 10 U.S.C. § 2663(c) when they purchased the easement and therefore acted arbitrarily
19 and capriciously under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701; (2)
20 Federal Defendants violated Hood Canal’s right to equal protection; and (3) Federal
21 Defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332,
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ORDER - 2

1 by not preparing an environmental impact statement before purchasing the easement. Id.
2 ¶¶ 73–98.
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On May 22, 2015, Federal Defendants moved to dismiss. Dkt. 38. On June 22,

4 2015, Hood Canal responded. Dkt. 40. On June 26, 2015, Federal Defendants replied.
5 Dkt. 41.
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II. DISCUSSION

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Federal Defendants seek to dismiss Hood Canal’s claims for lack of subject matter

8 jurisdiction and for failure to state a claim. Dkt. 29.
9 A.

Rule 12(b)(1)
Rule 12(b)(1) provides for dismissal of claims based on lack of subject matter

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11 jurisdiction. “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
12 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “A federal court is presumed to lack
13 jurisdiction in a particular case unless the contrary affirmatively appears.” A-Z Int’l v.
14 Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). Courts lack subject matter jurisdiction
15 over actions in which the plaintiff lacks standing. See Bernhardt v. County of Los
16 Angeles, 279 F.3d 862, 868 (9th Cir. 2002). The plaintiff bears the burden of establishing
17 jurisdiction. Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995).
18 B.

Rule 12(b)(6)

19

Motions to dismiss brought under Rule 12(b)(6) may be based on either the lack of

20 a cognizable legal theory or the absence of sufficient facts alleged under such a theory.
21 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Material
22 allegations are taken as admitted and the complaint is construed in the plaintiff’s favor.

ORDER - 3

1 Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to
2 dismiss, the complaint does not require detailed factual allegations but must provide the
3 grounds for entitlement to relief and not merely a “formulaic recitation” of the elements
4 of a cause of action. Twombly, 127 S. Ct. at 1965. Plaintiffs must allege “enough facts to
5 state a claim to relief that is plausible on its face.” Id. at 1974.
6

Generally, the scope of review on a motion to dismiss is limited to the contents of

7 the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The Court,
8 however, may consider documents that are not attached to the complaint “if the
9 documents’ authenticity . . . is not contested and the plaintiff’s complaint necessarily
10 relies on them.” Id. (internal quotation marks omitted). Hood Canal references the
11 easement numerous times throughout its amended complaint. See generally Comp.
12 Because the easement’s authenticity is not disputed and Hood Canal’s amended
13 complaint necessarily relies on it, the Court will consider the easement in connection with
14 this motion.
15 C.

10 U.S.C. § 2663 Claim

16

Hood Canal alleges that Federal Defendants exceeded their authority under 10

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

ORDER - 4

1

“[I]n addition to constitutional standing requirements, under the APA a plaintiff

2 must assert an interest ‘arguably within the zone of interests to be protected or regulated
3 by the statute or constitutional guarantee in question.’” Nevada Land Action Ass’n v.
4 U.S. Forest Serv., 8 F.3d 713, 715–16 (9th Cir. 1993) (quoting Assoc. of Data Processing
5 Serv. Org., Inc. v. Camp, 397 U.S. 150, 153 (1970)). “The purpose of the ‘zone of
6 interests’ test is ‘to exclude those plaintiffs whose suits are more likely to frustrate rather
7 than further statutory objectives.’” Id. at 716 (quoting Clarke v. Sec. Indus. Ass’n, 479
8 U.S. 388, 397 n.12 (1987)). The test “is not meant to be especially demanding,” and “the
9 benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of
10 Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012). Nevertheless, the zone of
11 interests test forecloses suit “when a plaintiff’s ‘interests are so marginally related to or
12 inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed
13 that Congress intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).
14

The focal point of the zone of interests test is “the statute whose violation is the

15 gravamen of the complaint.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 797 (9th
16 Cir. 2013) (quoting Air Courier Conf. of Am. v. Am. Postal Workers Union, ALF-CIO,
17 498 U.S. 517, 529 (1991)). Here, the relevant statute is 10 U.S.C. § 2663(c). See Comp.
18 ¶¶ 73–79.
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The Court is not aware of any case applying the zone of interests test to § 2663(c),

20 and the parties have cited none. The Court must therefore look to the “obvious purpose”
21 of § 2663(c), Bennett v. Spear, 520 U.S. 154, 176 (1997), and determine whether Hood
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ORDER - 5

1 Canal’s interests “are among the sorts of interests [the statute was] specifically designed
2 to protect.” Lujan v. Nat’l Wildlife Foundation, 497 U.S. 871, 886 (1990).
3

Section 2663(c) provides, in relevant part, that military departments may acquire

4 interests in land needed for national defense without first obtaining specific authorization
5 from Congress, provided that the acquisition does not exceed $750,000. 10 U.S.C.
6 § 2663(c)(1). The statute was intended to streamline the military’s acquisition of smaller
7 interests in land by reducing paperwork and administrative expenses. 1 See Military
8 Public Works: Hearing on H.R. 8625 and H.R. 9893 Before the H. Comm. on Armed
9 Services, 84th Cong. 6766 (1956); Military Public Works Construction: Hearing on S.
10 3122 Before the Subcomm. on Real Estate and Military Construction of the Comm. on
11 Armed Servs., 84th Cong. 771 (1956); H.R. Rep. No. 84-1890, at 22 (1956); S. Rep. No.
12 84-2364, at 26 (1956).
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In this case, the Court finds that Hood Canal has not alleged an interest that falls

14 within the zone of interests protected by § 2663(c). Hood Canal alleges that Federal
15 Defendants’ acquisition of the easement blocks Hood Canal’s ability to construct a pier.
16 Comp. ¶ 70. Nothing in the statute or its legislative history indicates that § 2663(c) was
17 designed to protect Hood Canal’s interests. Although the zone of interests test is not
18 especially demanding, the Court cannot conclude that Hood Canal’s interests in this case
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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);
21 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
22 Quebec v. Harris, 729 F.3d 937, 945 n.2 (9th Cir. 2013).

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ORDER - 6

1 are marginally related to the purpose of § 2663(c). Accordingly, Hood Canal lacks
2 prudential standing to pursue an APA claim based on § 2663(c).
3

Hood Canal argues that the Supreme Court’s holding in Patchak compels a

4 different result. Dkt. 40 at 11. In Patchak, the Secretary of the Interior decided to
5 acquire property for a tribal casino under the Indian Reorganization Act (“IRA”). 132 S.
6 Ct. at 2203. Patchak, the owner of nearby property, brought suit under the APA, arguing
7 that the Secretary’s decision violated the IRA. Id. at 2202–03. Patchak contended that he
8 had prudential standing based on environmental, aesthetic, and economic harms. Id. at
9 2203. The government argued that Patchak’s interests were not within the zone of
10 interests protected by the IRA, which focused on land acquisition. Id. at 2210. The
11 Supreme Court rejected this argument, finding that the IRA dealt with land use generally,
12 and required the Secretary to consider “potential conflicts of land use which may arise”
13 from acquisitions. Id. at 2211. Because the IRA encompassed land use, the Court held
14 that Patchak’s interests fell within the statute’s zone of interests. Id. at 2212.
15

Unlike the plaintiff in Patchak, Hood Canal’s interests do not fall within the zone

16 of interests protected by § 2663(c). The statute in Patchak required the government to
17 consider interests like those asserted by Patchak. Hood Canal has cited no provision of
18 § 2663(c) that requires the government to consider potential conflicts of land use that
19 may arise from acquiring land for national defense purposes. Because Hood Canal has
20 not alleged an interest within the zone of interests protected by § 2663, the Court grants
21 Federal Defendants’ motion and dismisses this claim.
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ORDER - 7

1 D.

Equal Protection Claims

2

Hood Canal alleges two equal protection violations. 2 Comp. ¶¶ 80–93. First,

3 Hood Canal asserts that Federal Defendants discriminated against Hood Canal by not
4 expressly excluding Hood Canal’s pending lease application from the easement’s
5 restrictions when other pending leases and a pending easement were expressly excluded.
6 Id. ¶ 93. Second, Hood Canal alleges that the easement discriminates against commercial
7 docks and associated vessel traffic while allowing residential docks and associated vessel
8 traffic. Id. ¶¶ 84, 90. Federal Defendants argue that Hood Canal has failed to state any
9 equal protection claim. Dkt. 38 at 10–17; Dkt. 41 at 4–8.
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1.

Class of One Claim

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Hood Canal’s first equal protection claim is a “class of one” claim. See Engquist

12 v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008) (“[A]n equal protection claim can in
13 some circumstances be sustained even if the plaintiff has not alleged class-based
14 discrimination, but instead claims that she has been irrationally singled out as a so-called
15 ‘class of one.’”); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008)
16 (“When an equal protection claim is premised on unique treatment rather than on a
17 classification, the Supreme Court has described it as a ‘class of one’ claim.”). To state a
18 class of one claim, Hood Canal must allege that Federal Defendants “intentionally treated
19 [Hood Canal] differently from others similarly situated and that there is no rational basis
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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
22 under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).

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ORDER - 8

1 for the difference in treatments.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
2 (per curiam).
3

To support its class of one claim, Hood Canal alleges that Federal Defendants

4 acquired the easement to intentionally prevent Hood Canal from developing its pier.
5 Comp. ¶ 81. Hood Canal further alleges that it is similarly situated to the parties whose
6 pending leases were excluded from the easement’s restrictions and that there is no
7 rational basis for not excluding Hood Canal’s pending lease application from the
8 easement’s restrictions. Id. ¶¶ 71, 93.
9

Contrary to Hood Canal’s assertions, Hood Canal is not similarly situated to the

10 other lease applicants. The easement excludes pending leases for geoduck culture,
11 aquaculture, wet storage, and a salmon pen. Dkt. 38, Ex. A at 21–24. None of these
12 pending leases contemplates the construction of a pier. See id. Thus, Hood Canal is not
13 sufficiently comparable to the other lease applicants. See Thorton v. City of St. Helens,
14 425 F.3d 1158, 1167–68 (9th Cir. 2005) (finding businesses that engaged in different land
15 uses were not similarly situated for class of one claim); see also Ruston v. Town Bd. for
16 the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“Class-of-one plaintiffs must
17 show an extremely high degree of similarity between themselves and the persons to
18 whom they compare themselves.”); Purze v. Village of Winthrop Harbor, 286 F.3d 452,
19 455 (7th Cir. 2002) (“[Class of one plaintiffs] must demonstrate that they were treated
20 differently than someone who is prima facie identical in all relevant respects.”). Because
21 Hood Canal is not similarly situated to the parties whose pending leases were excluded
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ORDER - 9

1 from the easement’s restrictions, the Court grants Federal Defendants’ motion and
2 dismisses this claim.
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2.

4

Hood Canal’s second equal protection claim is a “classification” claim. Analysis

Classification Claim

5 of an equal protection claim alleging improper classification involves two steps. United
6 States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995). The first step is to identify
7 the classification. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995).
8 “To accomplish this, a plaintiff can show that the law is applied in a discriminatory
9 manner or imposes different burdens on different classes of people.” Id. The next step is
10 to identify the proper level of scrutiny. Id. “[U]nless a classification warrants some form
11 of heightened review because it jeopardizes exercise of a fundamental right or categorizes
12 on the basis of an inherently suspect characteristic, the Equal Protection Clause requires
13 only that the classification rationally further a legitimate state interest.” Nordlinger v.
14 Hahn, 505 U.S. 1, 10 (1992).
15

To support its classification claim, Hood Canal alleges that the easement

16 discriminates against commercial docks and associated vessel traffic while allowing
17 residential docks and associated vessel traffic. Comp. ¶¶ 84, 90. Although the easement
18 does not facially regulate vessel traffic, it is uncontested that the easement differentiates
19 between types of development. See Dkt. 38, Ex. A at 5–6. The easement prohibits
20 “residential, scientific, commercial and industrial uses on the [bedlands] . . . beyond those
21 presently established on the site or as allowed under Section 7.” Id. at 5. Section 7, in
22 turn, permits “private recreational docks or mooring buoys associated with residential

ORDER - 10

1 uses on abutting parcels per RCW 79.105.430.” Id. at 7. Nevertheless, the easement
2 prohibits any activity or use of the bedlands that is inconsistent with the easement’s
3 purpose. Id. at 5. The easement’s express purpose is “to limit future improvement,
4 development, or use of the [bedlands] in a manner that would be incompatible” with
5 Federal Defendants’ military operations and the preservation of the bedlands. Id. at 4.
6

Because Hood Canal does not allege that Federal Defendants discriminated against

7 a suspect class, rational basis scrutiny applies. S. Pac. Transp. Co. v. City of Los Angeles,
8 922 F.2d 498, 507 (9th Cir. 1990). As other courts have recognized, “rational basis
9 review at the motion to dismiss stage poses unique challenges.” HSH, Inc. v. City of El
10 Cajon, 44 F. Supp. 3d 996, 1008 (S.D. Cal. 2014) (quoting Immaculate Heart Central
11 Sch. v. N.Y. State Pub. High Sch. Athletic Ass’n, 797 F. Supp. 2d 204, 211 (N.D.N.Y.
12 2011)). To avoid a Rule 12(b)(6) dismissal, a plaintiff must allege sufficient facts to state
13 a plausible claim for relief. Twombly, 127 S. Ct. at 1974. The Court must accept all
14 factual allegations in the complaint as true and must construe those facts in the plaintiff’s
15 favor. Lee, 250 F.3d at 688. Meanwhile, under rational basis review, the Court must
16 uphold a government classification “if there is any reasonably conceivable state of facts
17 that could provide a rational basis for the classification.” F.C.C. v. Beach Commc’ns,
18 Inc., 508 U.S. 307, 313 (1993). The government also has no obligation to provide
19 evidence to sustain the rationality of a classification. Heller v. Doe, 509 U.S. 312, 320
20 (1993). Rather, the burden is on the plaintiff “to negative every conceivable basis which
21 might support” the classification. Id.
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ORDER - 11

1

Hood Canal asserts that there is no rational basis for Federal Defendants to

2 conclude that commercial vessel traffic is a threat to its military operations. Comp.
3 ¶¶ 42, 86, 91–92. Federal Defendants argue that the easement’s distinction between
4 types of development is rationally related to a legitimate government interest. Dkt. 41 at
5 5–6. Specifically, Federal Defendants contend that commercial and industrial
6 development would likely increase large vessel traffic, which in turn would negatively
7 impact military operations and conservation efforts. Id.
8

In this case, the Court finds that the easement’s distinction between types of

9 development passes rational basis review. The easement’s limitation on commercial and
10 industrial development bears a rational relation to preventing the disruption of military
11 operations and preserving the bedlands—two legitimate government interests. A
12 government classification “does not fail rational-basis review because it is not made with
13 mathematical nicety or because in practice it results in some inequality.” Heller, 509
14 U.S. at 321. The Court grants Federal Defendants’ motion and dismisses this claim.
15 E.

NEPA Claim

16

Finally, Hood Canal alleges that Federal Defendants violated NEPA by failing to

17 prepare an environmental impact statement before purchasing the easement. Comp.
18 ¶¶ 95–98. Federal Defendants argue that Hood Canal’s NEPA claim should be dismissed
19 because Hood Canal lacks both Article III standing and prudential standing. Dkt. 29 at
20 21 & n.13.
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ORDER - 12

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1.

2

“Article III of the Constitution limits the judicial power of the United States to the

Article III Standing

3 resolution of ‘Cases’ and ‘Controversies,’ and ‘Article III standing . . . enforces the
4 Constitution’s case-or-controversy requirement.’” Hein v. Freedom From Religion
5 Foundation, Inc., 551 U.S. 587, 597–98 (2007) (quoting DaimlerChrysler Corp. v. Cuno,
6 547 U.S. 332, 342 (2006)). To establish Article III standing, a plaintiff must show that:
7 (1) it suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct;
8 and (3) the injury is likely to be redressed by a favorable decision. Friends of the Earth,
9 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
10

Hood Canal brings a procedural claim under NEPA, alleging that Federal

11 Defendants failed to prepare an environmental impact statement before acquiring the
12 easement. Comp. ¶ 97. “To satisfy the injury in fact requirement, a plaintiff asserting a
13 procedural injury must show that ‘the procedures in question are designed to protect
14 some threatened concrete interest of his that is the ultimate basis of his standing.’”
15 Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (quoting Lujan, 504
16 U.S. at 573 n.8). “Once a plaintiff has established an injury in fact under NEPA, the
17 causation and redressability requirements are relaxed.” Id. at 682.
18

Hood Canal alleges two concrete interests to support its NEPA claim. First, Hood

19 Canal alleges that it is unable to construct a pier for shipping sand and gravel products.
20 Comp. ¶¶ 14, 70; Dkt. 40 at 25. Second, Hood Canal alleges that air and water pollution
21 will increase if Hood Canal cannot build its proposed pier because truck traffic “would
22 likely” increase to serve the regional sand and gravel market. Comp. ¶¶ 28–29, 97.

ORDER - 13

1 Neither of these interests is sufficient to establish Article III standing for Hood Canal’s
2 NEPA claim.
3

Hood Canal’s first interest—the inability to build a pier—is not an interest

4 protected by NEPA. NEPA “is directed at environmental concerns, not at business
5 interests.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir. 2005).
6 Thus, a plaintiff asserting a procedural injury under NEPA must allege a concrete
7 environmental interest, such as an aesthetic or recreational interest, rather than a business
8 interest. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). Hood
9 Canal’s inability to build a pier is not an interest that NEPA was enacted to protect.
10

Although Hood Canal’s second interest—potential air and water pollution if truck

11 traffic increases—concerns the environment, it is not a concrete interest. The fact that
12 Hood Canal is seeking to enforce a procedural right does not affect the injury in fact
13 analysis. Cantrell, 241 F.3d at 679. Hood Canal must still show the “invasion of a
14 legally protected interest” that is “concrete and particularized” and “actual or imminent,
15 not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560 (internal citations omitted).
16 Hood Canal’s allegations regarding increased trucking and increased pollution are
17 hypothetical and conjectural. See Comp. ¶¶ 28–29, 97. Because Hood Canal has failed
18 to allege a concrete environmental interest to support its NEPA claim, Hood Canal has
19 failed to establish Article III standing.
20

2.

21

“In addition to [Article III standing] requirements, a plaintiff bringing suit under

Prudential Standing

22 the Administrative Procedure Act for a violation of NEPA must show that his alleged

ORDER - 14

1 injury falls within the ‘zone of interests’ that NEPA was designed to protect.” Cantrell,
2 241 F.3d at 679. As noted above, NEPA was enacted to protect the environment. Thus,
3 “a plaintiff must allege injury to the environment; economic injury will not suffice.”
4 Ranchers Cattleman Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of
5 Agric., 415 F.3d 1078, 1103 (9th Cir. 2005).
6

For the reasons discussed above, Hood Canal’s inability to build a pier does not

7 fall within NEPA’s zone of interests. See Ashley Creek, 420 F.3d at 939. With regard to
8 Hood Canal’s interest in transporting sand and gravel resources in an environmentally
9 sound manner, Federal Defendants contend that this interest is merely an economic
10 interest in disguise because it concerns how Hood Canal operates its business. Dkt. 41 at
11 12–13.
12

Even assuming Hood Canal’s interest in ensuring sand and gravel is transported in

13 an environmentally sound manner is sufficient to establish prudential standing under
14 NEPA, Hood Canal’s claim is still subject to dismissal because NEPA does not require
15 an environmental impact statement for federal actions that maintain the environmental
16 status quo. See Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir. 1995) (“[A]n
17 [environmental impact statement] is unnecessary when the action at issue does not alter
18 the natural, untouched physical environment at all.”); United States v. 0.95 Acres of Land,
19 994 F.2d 696, 699 (9th Cir. 1993) (“The filing of the condemnation action and the
20 subsequent transfer of legal title are not major Federal actions significantly affecting the
21 environment.” (internal quotation marks omitted)); Sabine River Authority v. U.S. Dep’t
22 of Interior, 951 F.2d 669, 680 (5th Cir. 1992) (“The acquisition of a negative easement

ORDER - 15

1 which prohibits development does not result in the requisite ‘change’ to the physical
2 environment.”).
3

The easement at issue in this case does not alter the physical environment. In

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

Leave to Amend

19

Leave to amend shall be freely given when justice so requires. Fed. R. Civ. P.

20 15(a). “If the underlying facts or circumstances relied upon by a plaintiff may be a
21 proper subject of relief, he ought to be afforded an opportunity to test his claim on the
22 merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). On a Rule 12(b)(6) motion, “a

ORDER - 16

1 district court should grant leave to amend even if no request to amend the pleading was
2 made, unless it determines that the pleading could not possibly be cured by the allegation
3 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). The Court’s
4 “discretion to deny leave to amend is particularly broad where plaintiff has previously
5 amended the complaint.” City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440,
6 454 (9th Cir. 2011).
7

Here, Hood Canal has not requested leave to amend. See Dkt. 40. The Court

8 previously granted Hood Canal leave to amend after Federal Defendants’ first motion to
9 dismiss. Dkt. 33 at 11. In the Court’s discretion, the Court declines to provide Hood
10 Canal with another opportunity to amend its complaint.
11
12

III. ORDER
Therefore, it is hereby ORDERED that Federal Defendants’ motion to dismiss

13 (Dkt. 38) is GRANTED. The Clerk shall close this case.
14

Dated this 1st day of September, 2015.

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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 17