EDWARD J. LODGE, District Judge.
Pending before the Court in the above-entitled matter is Defendant United States' Motion to Dismiss or for Partial Summary Judgment (Dkt. 20). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
The events that gave rise to Plaintiff Judy Family Trust's (the "Trust") claims occurred throughout June of 2009. The Trust is the owner of real property in Bonneville County, Idaho, and part of that land was designated wild bird and mule deer habitat with the Idaho Department of Fish and Game. As a result of its habitat designation, the land was seeded with natural flora to promote wildlife. The land was additionally under a designated soil and water quality conservation program. In early to mid June 2009, a BPA survey crew, an excavation crew hired by BPA and a construction crew entered the Trust's land without permission. The survey crew walked and drove vehicles on the Trust's land, the excavation crew entered the Trust's land with trucks and equipment and the construction crew constructed a gravel road approximately 1, 485 feet in length and 20 feet wide. (Compl. Dkt. No. 1, p. 2-3.) As a result of BPA's entrance onto the Trust's land, the Trust claims there were multiple events of trespass, each one causing damage to the surface and subsurface of the land, to the wildlife habitat, to the soil and water conservation program and the seeded flora. BPA had a permit for the work that they ended up doing on the Trust's land, but there was a mistake as to the location of that work. (Def's Ex. A, Dkt. No. 6-1, p. 1.) BPA admitted their error in laying the gravel road on the Trust's land, but the Trust prohibited BPA from entering back onto the land to remove the gravel. (Def's Ex. B, Dkt. No. 6-2.) The Court determined the action was properly filed in district Court. (Dkt. 9.) The parties participated in a settlement conference, but were unable to resolve the claims.
The United States' now seeks dismissal of claims for certain kinds of Idaho statutory damages and Conservation Reserve Program ("CRP") damages. The United States also seeks partial summary judgment as to the legal limit of damages the Trust may seek for trespass. Finally, the United States argues the Trust failed to mitigate its damages when the United States offered to restore the property and the offer was not accepted. So in the alternative, the United States argues damages should be capped at what the United States would have paid in 2010 to remove the gravel road ($4, 500). The Plaintiff concedes that certain types of damages may not be applicable, but that trespass damages are not limited in the manner suggested by the United States. Plaintiff has an estimate from an excavator to restore the property for a cost of $77, 988. Moreover, Plaintiff maintains it has not failed to mitigate its damages.
STANDARD OF REVIEW
1. Motion to Dismiss
A defendant may move to dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. Id. On the other hand, the defendant may instead launch a "factual" attack, "attacking the existence of subject matter jurisdiction in fact." Id. A "factual" attack made pursuant to Rule 12(b)(1) may be accompanied by extrinsic evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Trentacosta v. Frontier P. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733.
However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction [pursuant to a "factual attack"]... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). "When a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief, a motion to dismiss for lack of subject matter jurisdiction, rather than for failure to state a claim, is proper only when the allegations of the complaint are frivolous." Id. In such a case, "the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
A motion to dismiss pursuant to Rule 12(b)(6) should not be granted "unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party. See Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Generally, the Court may not consider any material beyond the pleadings in ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). If materials outside the pleadings are considered, the motion is converted to a motion for summary judgment governed by Fed.R.Civ.P. 56. See Jacobsen v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
However, pursuant to Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994), there are times when documents other than the pleadings can be considered without converting a motion to dismiss into a motion for summary judgment. "[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch, 14 F.3d at 453.
2. Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut, " but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327.
"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). ...