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

          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.

         I. BACKGROUND^[4]

         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 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, 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 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.

         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 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 ...