United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
before the Court is Defendant the United States of
America's Motion to Dismiss for lack of subject-matter
jurisdiction (Dkt. 23). The Court heard argument on the
motion on September 6, 2016, and now issues its decision. For
the reasons explained below, the Court will grant the motion
with leave to amend.
Lake is a 22, 000-acre marsh in eastern Idaho, northeast of
Soda Springs. Orestes S. John first surveyed Grays Lake in
1877, describing it as "a shallow lake of uncertain or
variable extent. . . margined by fields of rule, and
treacherous bog." See Sibbett Dec. ¶¶
2, 3 & Ex. 1. The marsh was historically used by ranchers
and homesteaders for haying and grazing.
time, tensions arose between the ranchers and the United
States government. Both sides claimed ownership to the
property. The government wished to use the marsh as a water
storage facility for the Shoshone Bannock Tribes and for a
wildlife refuge, while the ranchers wished to continue using
the marsh for haying and grazing.
1965, to clarify uses and ameliorate tensions, various
ranchers (including the plaintiffs here) and the government
entered into identical 99-year Refuge Use and Cooperative
Use Agreements. Compl., Dkt. 1, ¶ 4; see also
Agreement, Dkt. 23-3. The agreement provides that the
government will use the middle of the lakebed - which
plaintiffs describe as a donut hole, or the inner ring - for
a wildlife refuge and for water storage. As for the
remaining, 1/2 -mile wide outer ring, the ranchers would
continue to use that area for haying and grazing.
See Dkt. 23-3.
government also proposed to build a "perimeter
dike" that would enclose the donut hole. The basic idea
was that the water within the dike would be used for the
Tribes and for waterfowl, while the dried area outside the
dike would be used for continued haying and grazing.
government began construction on the dike, but eventually
gave up, concluding that it was not feasible. The government
left the partially constructed dike in place, rather than
removing it. Plaintiffs say that say the partially
constructed dike has exacerbated spring flooding on their
2009, the plaintiffs notified the government that they were
rescinding the agreement. They demanded that the government
cease its use and occupation of Grays Lake. The government
has not done so, contending, among other things, that the
agreement allows it to leave structures - partially built or
otherwise - in place.
ranchers filed this action in December 2012. Shortly
thereafter, the Court granted the parties' motion to stay
the proceedings while they attempted to settle their
differences. Mar. 13, 2013 Stay Order, Dkt. 10.
Several co-plaintiffs (including the Crystals, the Sibbetts,
and Mr. Riley) resolved their disputes, which included
selling their lakebed properties to the government. See
Motion, Dkt. 23, at 3; Response, Dkt. 27, at
18-19. The remaining two plaintiffs - Beavertail, Inc. and
Grays Lake Land & Cattle, Inc. - have not settled. In
November 2015, the Court lifted the stay, and the government
later filed its motion to dismiss.
Rule 12(b)(1) - Subject Matter Jurisdiction
defendant may move to dismiss a complaint for lack of subject
matter jurisdiction under Rule 12(b)(1) in one of two ways.
See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th
Cir. 2014). The first is known as a "facial"
attack, and it accepts the truth of the plaintiffs
allegations but asserts that they are insufficient on their
face to invoke federal jurisdiction. Id. The second
method is known as a "factual" attack, and it does
not assume the truth of plaintiff s allegations but instead
challenges them by introducing extrinsic evidence, requiring
the plaintiff to support his jurisdictional allegations with
"competent proof." Id.
the government has launched a factual attack. When
considering such an attack, Court may review evidence beyond
the complaint without converting the motion to dismiss into a
motion for summary judgment. White v. Lee, 227 F.3d
1214, 1242 (9th Cir. 2000). "Once the moving
party has converted the motion to dismiss into a factual
motion by presenting affidavits or other evidence properly
brought before the court, the party opposing the motion must
furnish affidavits or other evidence necessary to satisfy its
burden of establishing subject matter jurisdiction."
Safe Air for Everyone v. Meyer,373 F.3d 1035, 1039
(9th Cir.2004) (internal quotations omitted). Where no