United States District Court, D. New Mexico
SANTA FE ALLIANCE FOR PUBLIC HEALTH AND SAFETY, ARTHUR FIRSTENBERG, and MONIKA STEINHOFF, Plaintiffs,
v.
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.
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 ...