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Sun State Towers LLC v. County of Coconino

United States District Court, D. Arizona

July 13, 2017

Sun State Towers LLC, Plaintiff,
County of Coconino, Defendant.



         Pending before the Court is Defendant's Motion to Dismiss Count II from Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(1). (Doc. 14.) The Court denies the motion.[1]


         Sun State Towers, LLC (“Sun State”) seeks to construct a personal wireless service tower in Coconino County (the “County”) for lease to Verizon Wireless (“Verizon”).[2] (Doc. 1 at 2.) Sun State leased a site to construct the tower and entered an agreement by which Verizon would install its equipment on it. (Id.) Sun State's application for a conditional permit to build the tower was approved by the Coconino County Planning and Zoning Commission (the “Commission”) on November 30, 2016. (Doc. 1 at 3.) However, it was later denied upon an appeal from the Navajo Tribal Utility Authority (“NTUA”). (Id.) The NTUA argued that a tower on tribal land is already available for collocation. (Id.) The Commission's written denial of Sun State's application stated that collocation is preferable to constructing a new tower, and that the proposed tower would obstruct the view of the San Francisco Peaks. (Doc. 1 at 4.)

         Sun State filed this Telecommunications Act (“TCA”) Complaint against the County. (Doc. 1.) It contains two separate claims, the first of which is not at issue. (Doc. 1 at 4-6.) The County, however, asserts that Sun State does not have standing to bring Count Two, in which Sun State argues that the County's denial of its tower permit prohibits the provision of personal wireless services in violation of the TCA. (Doc. 14 at 3.) According to the County, Sun State lacks standing to bring such a claim because Sun State does not actually provide wireless services, but only leases towers to wireless service providers. (Id.) The County asserts that the TCA affords a legally protected interest only to wireless service providers and not to others. (Doc. 14 at 6-8.) Thus it argues that this Court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) because Sun State has not suffered “an invasion of a legally protected interest” under the effective prohibition subdivision of the TCA and therefore lacks the “injury in fact” element of Article III standing. (Id.)


         I. Legal Standard

         Federal courts are confined to adjudicating actual “cases” and “controversies.” U.S. Const. art. III. As a necessary element of this requirement, litigants are required to demonstrate Article III standing for each claim they assert. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); Nw. Requirements Utils. v. F.E.R.C., 798 F.3d 796, 807 (9th Cir. 2015). In order to meet the “irreducible constitutional minimum of standing, ” a plaintiff must satisfy three elements:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted).

         In addition to establishing constitutional standing, a plaintiff must demonstrate standing to sue under the statute in question. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1387 (2014); see also Table Bluff Reservation (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 886 (9th Cir. 2001) (internal citation omitted) (noting courts need not address statutory standing if a plaintiff does not establish constitutional standing). A plaintiff has statutory standing if its interests are of the type protected by the statute. See Nw. Requirements Utils., 798 F.3d at 807-08 (“[T]he plaintiff is not the subject of the contested regulatory action . . . if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” (quotation marks and internal citation omitted)).

         The court must accept all material allegations in the complaint as true and construe the complaint in favor of the complaining party. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000) (internal citation omitted). The party seeking to establish subject matter jurisdiction has the burden of establishing Article III standing to sue. San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (internal citation omitted). The court may allow or require the plaintiff to supply amendments or affidavits to support the plaintiff's factual allegations of Article III standing. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (internal citations omitted).

         II. Analysis

         Plaintiff satisfies both the statutory and constitutional requirements for bringing a claim under Count Two. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n.2(1998) (contrasting statutory standing inquiry with Article III standing inquiry, which “has nothing to do with the text of the statute relied upon”); Smith v. Arthur AndersenLLP, 421 F.3d 989, 1006 (9th Cir. 2005) (“[T]he question of whether a plaintiff has standing to bring suit, and thus whether the ...

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