United States District Court, D. Maine
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court orders further proceedings under Federal Rule of Civil
Procedure 12(b)(1) to resolve whether the Court has subject
February 6, 2015, Portland Pipe Line Corporation (PPLC) and
the American Waterways Operators (AWO) (collectively,
Plaintiffs) filed a nine-count complaint in this Court,
challenging the constitutionality of a municipal ordinance
that prohibits the “bulk loading” of crude oil
onto marine vessels in the harbor of South Portland, Maine.
Compl. for Declaratory and Injunctive Relief (ECF
No. 1) (Compl.). PPLC owns and operates the United
States portion of a transportation system that includes
12-inch diameter, 18-inch diameter, and 24-inch diameter
pipelines and associated facilities extending from South
Portland, Maine to Montreal, Quebec. Id. ¶ 11.
At the time of the filing of the Complaint in February 2015,
approximately forty-eight ships offloaded at South Portland
annually, and PPL transported crude oil to Quebec via
pipeline at a rate of approximately 2.4 million barrels of
oil per month. Id. The practical effect of the
Ordinance is to prevent PPLC from reversing the flow of its
existing pipeline infrastructure to transport oil south from
Montreal, Quebec, to vessels in the South Portland harbor.
March 31, 2015, the city of South Portland and its code
enforcement officer (collectively, Defendants) filed a motion
to dismiss for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1), arguing,
inter alia, that the Plaintiffs' claims are
unripe and that the Plaintiffs lack standing. Defs.'
Mot. to Dismiss the Compl. Pursuant to Rule 12(b)(1)
(ECF No. 16); Mem. of Law in Supp. of Defs.' Mot. to
Dismiss Pursuant to Rule 12(b)(1) (ECF No. 17).
Specifically, the Defendants argued that the Plaintiffs have
no concrete plan to reverse the flow of oil and thereby
violate the Ordinance, that the present effect of the
Ordinance on the Plaintiffs consists of a “threadbare
claim of economic uncertainty, ” and that the
Plaintiffs' claims rest on a “chain of
contingencies, including whether PPLC ever decides to bulk
load crude oil in the City and whether it initiates a process
for federal, state and local approvals that may conflict with
the Ordinance.” Id. at 11-18.
February 11, 2016, the Court issued an order denying the
Defendants' Motion to Dismiss. Order on Defs.'
Mot. to Dismiss (ECF No. 29). Viewing the facts in the
light most favorable to the Plaintiffs, the Court concluded
that “but for the Ordinance, PPLC would commence plans
to reverse the flow of crude oil and would begin marketing
that oil.” Id. at 38-38. However, the Court
cautioned that “it remains to be seen whether PPLC will
amass a set of facts sufficient for the Court to make its
legal determinations [regarding justiciability] . . .
.” Id. at 40.
to the Court's Order, the parties engaged in discovery,
and on November 17, 2016, the parties filed cross motions for
summary judgment with supporting statements of material
facts. Pls.' Mot. for Summ. J. (ECF No. 87);
Pls.' Statement of Material Facts (ECF
No. 89); Defs.' Consolidated Mot. to Dismiss
Pursuant to Rule 12(b)(1) and Mot. for Summ J. (ECF
No. 88) (Defs.' Mot.); Defs.' Rule
12(b)(1) and Loc. R. 56(b) Statement of Undisputed
Material Facts [Redacted Verion] (ECF No. 95). As part
of their motion for summary judgment, the Defendants also
renewed their motion to dismiss for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). Defs.'
Mot. at 2-3. In their motion, the Defendants contend:
Now that discovery is complete, it is plain that the
[Defendants'] initial arguments were correct and that, in
denying the [Defendants'] initial motion, the Court was
misled by statements and arguments by the Plaintiffs that are
demonstrably untrue. Specifically, contrary to
Plaintiffs' representations, PPLC has no current plans to
reverse the flow of oil in its pipeline . . ., did not
receive all of the permits necessary to reverse the flow . .
. and, in fact, has full knowledge that there is not
sufficient volume of crude oil available in the existing
west-to-east pipeline network [which would supply PPLC] to
make its project viable. . . . Thus, the [Defendants] renew
[their] motion to dismiss based upon ripeness and standing.
FACIAL VERSUS FACTUAL RULE 12(b)(1) CHALLENGES
Rule 12(b)(1), a court must dismiss a case over which it
lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1),
(h)(2). Rule 12(b)(1) is a “large umbrella,
overspreading a variety of different types of challenges to
subject-matter jurisdiction, ” including ripeness and
standing. Valentin v. Hosp. Bella Vista, 254 F.3d
358, 362-63 (ripeness); see Blum v. Holder, 744 F.3d
790, 795-96 (1st Cir. 2014) (standing). The plaintiff, as the
party asserting subject matter jurisdiction, has the burden
of demonstrating its existence. Aversa v. United
States, 99 F.3d 1200, 1209 (1st Cir. 1996).
First Circuit has established two ways to challenge a
court's subject matter jurisdiction under Rule 12(b)(1):
facial challenges and factual challenges. In a facial
challenge, the defendant “accepts the plaintiff's
version of the jurisdictionally-significant facts as true and
addresses their sufficiency, thus requiring the court to
assess whether the plaintiff has propounded an adequate basis
for subject matter jurisdiction.” Id. at 363.
In performing this task, the court must proceed as it would
under Rule 12(b)(6), accepting the well-pleaded facts
contained in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff. Id.
mounting a factual challenge, by contrast, the defendant
controverts “the accuracy (rather than the sufficiency)
of the jurisdictional facts asserted by the plaintiff and
proffer[s] materials of evidentiary quality in support of
that position.” Id. Faced with a factual
challenge, the court must first “determine whether the
relevant facts, which would determine the court's
jurisdiction, also implicate the elements of the
plaintiff's cause of action.” Torres-Negron v.
J&N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007).
If the court determines that the disputed jurisdictional
facts are intertwined with the merits of the case, then
“the district court should employ the standard
applicable to a motion for summary judgment.”
Id. (quoting Autery v. United States, 424
F.3d 944, 956 (9th Cir. 2005)).
however, the court determines that the contested
jurisdictional facts are not intertwined with the elements of
the plaintiff's cause of action, then the court
“must address the merits of the jurisdictional claim by
resolving the factual disputes between the parties.”
Valentin, 254 F.3d at 363. This is because “at
issue in a factual 12(b)(1) motion is the trial court's
jurisdiction-its very power to hear the case . . . .”
Torres-Negron, 504 F.3d at 163 (quoting Lawrence
v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990));
see also Valentin, 254 F.3d at 364 (“A
court's authority to hear a particular case is a
necessary precondition to the proper performance of the
judicial function”). When resolving the factual
disputes, the court “may proceed as it never could
under [Rule 12(b)(6) or Rule 56].”
Torres-Negron, 504 F.3d at 163 (alteration added).
The plaintiff's factual allegations are entitled to no
presumptive weight; rather, the court is free to weigh the
evidence and “enjoys broad authority to order
discovery, consider extrinsic evidence, and hold evidentiary
hearings in order to determine its own jurisdiction.”
Valentin, 254 F.3d at 363; see also
Hernandez-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st
Cir. 2005); Nulankeyutmonen Nkihtaqmikon, 462
F.Supp. 2d. 86, 90 (D. Me. 2006) (internal quotations marks
and citation omitted), rev'd on other grounds503 F.3d 18 (1st Cir. 2007); 2 James Wm. Moore, Moore's
Federal Practice § 12.30 (3d ed. ...