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    Court Rules on Government’s Motion to Dismiss Pebble Mine FACA Claims, and Some Claims Survive
    Pebble Limited Partnership has sued the U.S. Environmental Protection Agency in federal court in Alaska. EPA filed a motion to dismiss all of the plaintiff’s claims. The court recently issued an order granting in part and denying in part EPA’s motion to dismiss. The court’s order is available here.

      “Plaintiff alleges that defendants formed three advisory committees to assist the EPA ‘in developing and implementing an unprecedented plan to assert EPA’s purported authority under Section 404(c) of the federal Clean Water Act ... in a manner that will effectively preempt [p]laintiff from exercising its right through the normal permit process to extract minerals from the Pebble Mine deposit in Southwest Alaska.’ Plaintiff alleges that these three committees were formed in violation of the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2 §§ 1-16.”


      “The three ‘committees’ that plaintiff alleges defendants established or utilized in violation of FACA are identified by plaintiff as 1) the Anti-Mine Coalition, 2) the Anti-Mine Scientists, and 3) the Anti-Mine Assessment Team.”


      “Plaintiff alleges that defendants violated FACA as to each of these three ‘committees’ because defendants did not, among other things, (1) prepare and file charters, (2) chair all the meetings, (3) publish notices of meetings, and (4) ensure that membership in the committees was fairly balanced.”

    The court’s order court summarizes its decision on EPA’s motion to dismiss as follows:

      “Defendants’ motion to dismiss is granted in part and denied in part. Those portions of plaintiff’s FACA-based claims in Counts One and Two which are based on allegations that defendants ‘established’ the Anti-Mine Coalition and the Anti-Mine Scientists are dismissed with prejudice. Plaintiff’s Count Four is also dismissed with prejudice. Defendants are excused from answering certain paragraphs in plaintiffs’ First Amended Complaint as set out in detail above. Defendants’ motion to dismiss is otherwise denied”

    The court’s decision on the specific issues that are raised in EPA’s motion to dismiss is briefly discussed below. The court devotes much of its order to deciding whether the three advisory committees may be subject to FACA because the plaintiff adequately alleges that EPA established or utilized the committees. First, however, the court decides that the plaintiff has standing to bring these claims.  

    The Court Denies EPA’s Argument that the Plaintiff
    Lacks Standing to Bring the Claims in Federal Court

    The Court denied EPA’s Motion to dismiss on standing grounds because:

      “As for whether plaintiff has standing, FACA accords plaintiff the procedural rights that plaintiff alleges it has been denied. Id. at 1364. Exercise of those rights could protect 18Memorandum of Law in Support of Defendants’ Motion to Dismiss at 20, Docket No. 97. -9- Case 3:14-cv-00171-HRH Document 128 Filed 06/04/15 Page 9 of 18 plaintiff’s concrete interest in the mineral development rights to the Pebble Deposit. And, plaintiff’s interest falls within FACA’s zone of interest. One of the purposes ‘of the FACA is ‘to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals.’ Id. (quoting Public Citizen, 491 U.S. at 453). Plaintiff’s alleged injury, that defendant’s FACA violations led to a biased report, i.e., the BBWA, plainly falls within FACA’s zone of interest. Thus, plaintiff has standing to bring its FACA-based APA claims and to seek injunctive relief for defendant’s alleged violation of the FACA.”

    The Court Grants in Part and Denies in Part EPA’s Argument that
    the Complaint Should be Dismissed for Failure to State a Claim

    The court’s order explains:

      “Defendants next argue that plaintiff’s first amended complaint should be dismissed pursuant to Rule 12(b)(6).…Rule 12(b)(6) authorizes courts to dismiss a complaint for ‘failure to state a claim upon which relief can be granted.’”


      “As for the Anti-Mine Coalition, plaintiff has failed to state a plausible claim that defendants established this ‘committee’ but plaintiff has stated a plausible claim that defendants ‘utilized’ this ‘committee.’”


      “As for the Anti-Mine Scientists, plaintiff has failed to allege a plausible claim that defendants established this ‘committee’ but plaintiff’s allegations that defendants ‘utilized’ this ‘committee’ are plausible.”


      “As for the Anti-Mine Assessment Team,.. [a]ccepting plaintiff’s allegations as true, it is plausible that the Anti-Mine Assessment Team was subject to FACA.”


      “Although [EPA] defendants do not raise this argument, plaintiff has failed to state a claim in Count Four of its First Amended Complaint. In Count Four, plaintiff asserts a claim for injunctive relief. ‘An injunction is a remedy, not a separate claim or cause of action. A pleading can, as [plaintiff’s First Amended Complaint] does here, request injunctive relief in connection with a substantive claim, but a separately pled claim or cause of action for injunctive relief is inappropriate.’ Jensen v. Quality Loan Service Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010)”

    The Court Denies EPA’s Arguments that the Complaint Should be Dismissed Because it Does Not Comply with FRCP 8, but the Court Rules that EPA Does Not Have to Answer All the Allegations in the Plaintiffs’ Complaint

    The court’s order explains:

      “Finally, defendants argue that plaintiff’s First Amended Complaint should be dismissed because it violates Rule 8. “Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that each claim in a pleading be supported by ‘a short and plain statement of the claim showing that the pleader is entitled to relief....’”

    The court’s order denies EPA’s Rule 8 motion to dismiss, but relieves EPA of responding to some of the plaintiff’s factual allegations:

      “Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that each claim in a pleading be supported by ‘a short and plain statement of the claim showing that the pleader is entitled to relief....’” Landers v. Quality Communications, Inc., 771 F.3d 638, 640 (9th Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)). Defendants complain that plaintiff’s First Amended Complaint contains irrelevant, redundant, and contradictory allegations. Defendants contend that plaintiff’s First Amended Complaint has been “written more as a press release” and is “prolix in evidentiary detail” and that such a complaint “fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996).

      Plaintiff’s First Amended Complaint is lengthy and does contain irrelevant and redundant allegations and unnecessary factual details. But rather than dismissing the First Amended Complaint, the court will excuse defendants from answering the following paragraphs of plaintiff’s First Amendment complaint: paragraphs 2-7 (irrelevant introductory allegations), paragraphs 14-28 (irrelevant statutory background allegations and allegations about plaintiff’s FOIA case); paragraphs 51-54 (unnecessary factual detail); paragraphs 58-63 (unnecessary factual detail); paragraphs 68-69 (unnecessary factual detail); paragraph 75 (irrelevant allegation); paragraphs 106-107 (unnecessary factual detail); and paragraph 112 (irrelevant allegation).”
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