Begay v. Public Service Co. (710 F. Supp. 2d 1161, 2010)

United States District Court for the District of New Mexico 2010-04-15

Indians Judiciary and Judicial Procedure

Citations

Full opinion text

MEMORANDUM OPINION

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on (i) the Federal Defendants’ Motion to Dismiss and Memorandum in Support, filed July 1, 2009 (Doc. 44); (ii) the Federal Defendants’ Motion to Strike, filed July 1, 2009 (Doc. 45); (iii) Motion to Strike Special Master Report (Exhibit A) from Plaintiffs’ Complaint, filed July 15, 2009 (Doc. 52); (iv) Defendant Transwestern Pipeline Company, LLC’s Motion to Dismiss Plaintiffs’ Claims for Ejectment or Removal of Pipeline and for Trespass for Lack of Jurisdiction, filed July 15, 2009 (Doc. 53); (v) El Paso’s Motion to Dismiss Pursuant to Rule 12(b)(6), filed July 15, 2009 (Doc. 54); (vi) El Paso’s Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(7), filed July 15, 2009 (Doc. 55); (vü) Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed July 15, 2009 (Doc. 56); (viii) Joint Motion to Dismiss and Memorandum in Support of Defendants Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(7), filed July 15, 2009 (Doc. 57); (ix) Joint Motion to Dismiss and Memorandum in Support of Defendants Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed.R.Civ.P. 12(b)(6), filed July 15, 2009 (Doc. 58); and (x) the Plaintiffs’ Motion for Leave to File Sur-Reply to Pages 11-16 of “El Paso’s Reply Memorandum in Support of Motion to Dismiss Pursuant to Rule 12(b)(6),” filed December 10, 2009 (Doc. 82). The Court will deny the motions to strike and will grant the Plaintiffs’ motion for leave to file sur-reply. Because the claims against the Federal Defendants are not ripe for review and because the Plaintiffs lack standing to bring this action individually or as a class, the Court will grant the Federal Defendants’ motion to dismiss. Because the Plaintiffs fail to allege a claim upon which relief can be granted under their constructive trust theory, the Court will- grant El Paso Corporation’s motion to dismiss pursuant to rule 12(b)(6). Because the Federal Energy-Regulatory Commission (“FERC”) has exclusive jurisdiction over claims involving interstate gas line pipelines, the Court will also grant Transwestern Pipeline Company, LLC’s motion to dismiss regarding ejectment, removal of pipeline and trespass. Accordingly, the Court will dismiss Plaintiffs’ Complaint without prejudice.

FACTUAL BACKGROUND

Plaintiffs Ida C. Begay, Nita R. Augustine, Kee Augustine, Kee Sandoval, George Harkes, Jr., Alice J. White, Ben C. Yazzie, and Louise J. Yazzie are members of the Navajo Nation in Arizona, New Mexico, and Utah. See Complaint for Equitable and Legal Relief ¶ 1, at 2, filed February 11, 2009 (Doc. l)(“Complaint”). The Navajo Nation is a federally recognized Indian tribe, and the individual Plaintiffs are residents of New Mexico. See Complaint ¶ 1, at 2. The individual Plaintiffs are also allottees who, pursuant to the General Allotment Act of 1887, 25 U.S.C. §§ 331-357, have an ownership interest in land within the boundaries of the Navajo Nation. See Complaint ¶ 1, at 2. In Indian law, allotment is a term of art which means a parcel of fixed land, taken from a larger, common parcel, granted to an individual. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 142, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972).

Shii Shi Keyah Allottees Association (“Association”) is an organization composed of 2,500 to 3,000 individual Indian allottees and landowners in the Four Corners Region. See Complaint ¶ 10, at 3. The Association represents the interests of Navajo allottees. See Complaint ¶ 10, at 3. The Association is a party only with respect to Count I of the Complaint and represents the interests of the allottee with regard to matters relating to rights-of-way for natural resources and utilities. See Plaintiffs’ Response to Motions to Dismiss and Strike at 38-39, filed September 9, 2009 (Doc. 62)(“Plaintiffs’ Response”).

Defendants are comprised of the following:

(i) Defendant Public Service Company of New Mexico (“PNM”), a wholly-owned subsidiary of PNM Resources, Inc., is organized under the laws of the State of New Mexico and has its principal place of business in Albuquerque, New Mexico. See Complaint ¶ 11, at 3.

(ii) Defendant New Mexico Gas Company (“NMGC”) is a subsidiary of Continental Energy Systems LLC, is organized under the laws of the State of New Mexico, and has a principal place of business in Albuquerque, New Mexico. See id. ¶ 12, at 3.

(iii) Defendant El Paso Corporation is a Delaware corporation with its principal place of business in Houston, Texas. See id. ¶ 13, at 4. The Court refers to El Paso Corporation and its subsidiary, El Paso Natural Gas Company, collectively as “El Paso Natural Gas.”

(iv) Defendant Enterprise Products Partners L.P. (“Enterprise”) is a publicly traded Delaware limited partnership with its principal place of business in Houston, Texas. See id. ¶ 14, at 4.

(v) Defendant Kinder Morgan is a group of entities comprised of Kinder Morgan Energy Partners, L.P., a publicly traded Delaware limited partnership, with its principal place of business in Lakewood, Colorado; Kinder Morgan Management, LLC, a publicly traded Delaware limited liability company with its principal place of business in Houston, Texas; and Knight Inc., a Delaware corporation with its principal place of business in Houston, Texas. See id. ¶ 15, at 4.

(vi) Defendant Transwestern Pipeline Co., LLC (“Transwestern”) is a Delaware limited liability company with its principal place of business in Houston, Texas. See id. ¶ 16, at 4.

(vii) Defendant Tucson Electric Power Company (“Tucson Electric”) is a wholly owned subsidiary of Unisource Energy Corporation, is organized under the laws of the State of Arizona and has its principal place of business in Tucson, Arizona. See Complaint ¶ 17, at 4-5.

(viii) Defendant Western Refining, Inc (“Western Refining”) is a publicly traded Delaware corporation organized under the laws of the State of Delaware, with its principal place of business in El Paso, Texas. See id. ¶ 18, at 5.

(ix) Defendant Ken Salazar is the Secretary of the Interior. See Complaint ¶ 19, at 4.

PNM, NMGC, El Paso Natural Gas, Enterprise, Kinder Morgan, Tucson Electric, and Western Refining are referred herein as the “Corporate Defendants.” Each of the Corporate Defendants owns rights-of-way on allotment lands in which one or more of the individual Plaintiffs own an interest. See id. ¶ 29, at 7. PNM owns several rights-of-way in New Mexico and has transferred some of its ownership interests in some rights-of-way to NMGC. See id. ¶ 11, at 3.

PROCEDURAL BACKGROUND

On February 11, 2009, the Plaintiffs filed their Complaint for Equitable and Legal Relief asserting that the Department of Interior’s Bureau of Indian Affairs (“BIA”) did not fulfill its statutory obligations under 25 U.S.C. § 325 and 25 C.F.R. §§ 169.1-.28 with regard to granting rights-of-way over the land of the individual Plaintiffs and of the potential class members. See Complaint ¶ 20, at 5. Specifically, the Plaintiffs assert that the BIA is required to review all proposed rights-of-way on allotment land for pipelines, electrical transmission lines, and other uses. See id. ¶ 31, at 8. The Plaintiffs also contend that the BIA is obliged to approved the proposed rights-of-way “only if they are priced at fair market value, and only after obtaining an appraisal value of the land at issue and advising the Navajo allottees regarding the appraisals to assist them in the [right-of-way] negotiations.” Id. (citing 25 C.F.R. § 169.12). The Plaintiffs allege that the Secretary, acting through the BIA’s offices, has breached his fiduciary duties by failing, and continuing to fail: (i) to obtain appraisals; (ii) to require market value as a condition for granting rights-of-way on allotment land; and (iii) to advise the landowners of the appraisal information. See Complaint ¶ 36, at 9. The Plaintiffs assert that the United States did not, in most cases, obtain appraisals of the rights-of-way, and, therefore, did not determine the fair market value of the rights-of-way. See id. ¶ 41^42, at 10-11. Further, they contend, the United States did not advise the allot-tees of appraisal information, or assist them with negotiating the rights-of-way or in deciding whether to consent to the rights-of-way. See id. ¶ 41-42, at 10-11. The Plaintiffs seek declaratory and injunctive relief against the United State for breach of trust because the United States has failed, and continues to fail, to obtain appraisals, to assist and to advise Navajo allottees of appraisal information, and to insist on fair market value “as a condition for granting [rights-of-way] on” Navajo allottees’ lands. Id. ¶ 47, at 11.

The Plaintiffs also seek certification as a class of all Navajo allottees with rights-of-way on their allotments in the Checkerboard Area within the Navajo Nation. See Complaint ¶ 48, at 11. The Checkerboard Area is the area of land within the Navajo Nation where Navajo allotment lands are intermingled with trust lands of the Navajo Nation, private lands that the Navajo Nation and individual Navajos own, land owned by non-Indians, and federal lands, in a checkerboard pattern. See id. ¶ 27, at 7. The Association brings its claim only with regard to Count I of the Complaint. See Plaintiffs’ Response at 38-39. The individual Plaintiffs, and the class they seek to certify, ask the Court to certify Count II as a class action on behalf of all Navajo allottees with rights-of-way owned by the Corporate Defendants on their allotments in the Checkerboard Area of the Navajo Nation and to designate the Plaintiffs’ counsel as class counsel. They further ask the Court to declare that the Corporate Defendants hold, and continuously have held, the rights-of-way in constructive trust for the benefit of the allottees, and that, by maintaining their pipelines and other transmission lines on the allottees’ property, the Corporate Defendants have breached that trust. Additionally, they request the Court to declare that the Corporate Defendants have continuously committed trespass and wrongful invasion and occupation of their allotments; to cancel the outstanding rights-of-way, and to enjoin the Defendants to immediately remove their pipelines and transmission lines from the allottees’ land. The Plaintiffs ask the Court to award damages, including punitive damages; to order the Corporate Defendants to pay the Plaintiffs the value of all rights-of-way from the time they received them, with interest thereon; to award disgorgement of profits, restitution, or other appropriate relief; and to award Plaintiffs costs of suit, including reasonable attorneys’ fees, and all other appropriate equitable or legal relief. See Complaint ¶¶ A-H, at 14-15, and ¶¶ A-I, at 16-17.

As part of their claims, the Plaintiffs request that their counsel be designated as class counsel. See id. ¶13, at 12. They request that a declaratory judgment be entered against the United States declaring that the practices of which the Plaintiffs complain in the Complaint are a breach of trust and violation of the fiduciary duty towards the Navajo allottees. See id. ¶ C, at 12. Additionally, they request that the Court preliminarily and permanently enjoin the United States to perform its duties under the statutes and regulations that regulate the grant of rights-of-way on trust lands; that the Court grant injunctive or other appropriate relief to prevent future renewal or awarding of rights-of-way on allottee land at below fair-market value and without an appraisal; and that the Court award the Plaintiffs their costs of suit, including reasonable attorneys’ fees and other appropriate equitable or legal relief. See Complaint ¶¶ D, E and F, at 13.

On July 1, 2009, the Federal Defendants filed the Federal Defendants’ Motion to Dismiss and Memorandum in Support (Doc. 44), moving the Court to dismiss Count I of the Complaint pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Federal Defendants assert that the Complaint contains claims that exceed the statute of limitations and that the allottees have failed to exhaust their administrative remedies. The Federal Defendants contend that the allottees do not have standing to pursue claim pertaining to allotments on which there are no recorded rights-of-way and that the Association lacks standing because it cannot meet the requirements necessary to be accorded “representational standing.”

On July 1, 2009, the Federal Defendants filed the Federal Defendants’ Motion to Strike (Doc. 45), requesting that pursuant to rule 12(f) the Court strike Exhibit A to the Complaint (the Site Visit Report) and any reference to it in the pleadings, because the report “was prepared by an officer of the court whose impartiality was called into question” and such striking “will serve to protect the public’s confidence in the judicial process.” Motion to Strike ¶ 8, at 4. The Federal Defendants argue that inclusion of the report in the pleadings is prejudicial to them. See id. ¶ 9, at 4. On July 15, 2009, the Corporate Defendants filed their Motion to Strike Special Master Report (Exhibit A) from Plaintiffs’ Complaint (Doc. 52), contending that the report “is redundant, immaterial, and impertinent to this ease,” particularly because it was suppressed in the litigation for which it was created. Motion to Strike Report ¶ 5, at 4.

On July 15, 2009, Transwestern filed Defendant Transwestern Pipeline Company, LLC’s Motion to Dismiss Plaintiffs’ Claims for Ejectment or Removal of Pipeline and for Trespass for Lack of Jurisdiction (Doc. 53), asserting that the Natural Gas Act of 1938, 15 U.S.C. §§ 717 through 717z (“NGA”), abrogates or preempts the Plaintiffs’ common-law trespass claims. See Transwestern’s Motion to Dismiss at 2. Further, it asserts that, under the NGA, FERC has exclusive jurisdiction over the dedication and abandonment of interstate natural-gas pipelines, and that the Plaintiffs’ request conflicts with FERC’s jurisdiction. See Transwestern’s Motion to Dismiss at 2. Transwestern argues that, accordingly, the Court is without jurisdiction to order Transwestern to abandon or to remove its pipelines which are under FERC’s governance. See id. at 2.

On July 15, 2009, El Paso Natural Gas filed its Motion to Dismiss pursuant to Rule 12(b)(6) (Doe. 54)(“E1 Paso’s First Motion to Dismiss”), asking the Court to dismiss the claim against El Paso Natural Gas under Counts II and III of the Complaint. See El Paso’s First Motion to Dismiss at 1. El Paso Natural Gas contends that the Federal Defendants do not have an enforceable trust duty to the Plaintiffs pertaining to the approval of rights of way, and, even if they did, the Plaintiffs cannot assert claims based on “private trust law principles of transferee liability” to “a third-party grantee from the government of [rights-of-way] on allotted lands.” El Paso’s First Motion to Dismiss at 3. El Paso Natural Gas also asserts that the NGA has displaced the trespass claims.

On July 15, 2009, El Paso Natural Gas filed El Paso’s Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(7) (Doc. 55)(“E1 Paso’s Second Motion to Dismiss”), requesting the dismissal of the Plaintiffs’ claims against them in Counts II and III of the Complaint. El Paso Natural Gas asserts that the Plaintiffs’ claims are not ripe for review because the Plaintiffs have not asserted that they exhausted their administrative remedies. See El Paso’s Second Motion to Dismiss at 2. El Paso Natural Gas further argues that, if the Court dismisses the claim against the Federal Defendants, it should also dismiss the claims against El Paso Natural Gas for inability to join an indispensable party. See id. El Paso Natural Gas points to deficiencies in the Yazzie allegations regarding allotment 1470, contending that Plaintiffs did not assert any facts regarding the date of the BIA’s approval of the application, how the acts violated the right-of-way statutes and regulations, and whether Yazzie appeals the BIA’s approval or renewal of the grant. See El Paso’s Second Motion to Dismiss at 5.

On July 15, 2009, Kinder Morgan filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 56), requesting the Court to dismiss the Plaintiffs claims regarding Allotments No. 11465 and 11469 for lack of standing.

On July 15, 2009, the Corporate Defendants filed their Joint Motion to Dismiss and Memorandum in Support of Defendant Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(7) (Doc. 57), contending that Plaintiffs have failed to exhaust their required administrative remedies, the action is not ripe for judicial review, the Federal Defendants’ immunity was not waived, and the claims against the Federal Defendants are time-barred. See Joint Motion to Dismiss at 3. They further allege that the Court should dismiss the Complaint because the Federal Defendants are indispensable parties. See Joint Motion to Dismiss at 3.

Also on July 15, 2009, the Corporate Defendants filed their Joint Motion to Dismiss and Memorandum in Support of Defendants Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 58), asserting that the General Right of Way Act of 1948, and its implementing regulations, do not impose a trust responsibility upon the United States which gives rise to liability against the Federal Defendants. Specifically, these Defendants contend that the Right of Way Act “and its regulations do not reflect the kind of pervasive management and control that give rise to a trust duty” and, therefore, the Plaintiffs’ constructive-trust claim fails. See Enterprise’s Second Motion to Dismiss at 3, 22. Further, they argue that the Right of Way Act “does not evince an intent to authorize a private right of action against” the third-party grantees of the rights-of-way. See Enterprise’s Second Motion to Dismiss at 3. The movants assert that, if the Plaintiffs cannot recover against the Federal Defendants, then the Plaintiffs cannot succeed on a claim against the Corporate Defendants. See id. at 3. They additionally argue that the Complaint fails to state a claim against them for trespass because the Plaintiffs consented to the movants entering their land for the right-of-way purposes. See Enterprises Second Motion to Dismiss at 3. Lastly, they argue the Complaint fails under the applicable statute of limitations. See Enterprise’s Second Motion to Dismiss at 3.

On September 9, 2009, the Plaintiffs’ filed them response, addressing all of the motions that the Federal Defendants and Corporate Defendants had previously filed. The Plaintiffs assert that the Federal Defendants breached their trust responsibilities under the Indian Rights of Way Act, 25 U.S.C. §§ 323-28 and its implementing regulations, to the detriment of the class. See Plaintiffs’ Response at 12. They argue that the Corporate Defendants benefitted from and participated in the breach by accepting the discounted rights-of-way. See id. at 12. They further contend that the Federal Defendants’ “failure to obtain appraisals, to assist allottees in negotiating [rights-of-way] and to obtain fair market value for [rights-of-way] continues to the present.” Id. at 17. The Plaintiffs seek declaratory and injunctive relief against the Federal Defendants to enforce the trust. See id. at 18. The Plaintiffs also seek all legal and equitable relief available against the Corporate Defendants. See id.

The Plaintiffs noted in their response that they cited the Indian Tucker Act, 28 U.S.C. § 1505, in their Complaint, but are not proceeding under the Act because, with regard to the Federal Defendants, they are not seeking money damages. See Plaintiffs’ Response at 18. The Plaintiffs base the Court’s jurisdiction on the federal-question jurisdiction statute, 28 U.S.C. § 1331, and the General Allotment Act, 25 U.S.C. § 345, and assert that the Federal Defendants have waived sovereign immunity under 5 U.S.C. § 702.

On October 23, 2009, the Federal Defendants filed their reply. See Doc. 64. On November 4, 2009, the Corporate Defendants filed their reply to their motion to strike, see Doe. 70, reiterating the points they previously argued in their motion and contending that, in their response, the Plaintiffs never explained why the Court should allow the report to be used in this matter. See Western Refining’s Report at 1. On November 4, 2009, the Corporate Defendants filed their reply briefs pertaining to their motions to dismiss under Fed. R.Civ.P. 12(b)(1) and 12(b)(7) and Fed. R.CivJP. 12(b)(6). See Docs. 71 and 72.

Also on November 4, 2009 Transwestern filed its reply in support of its motion to dismiss the Plaintiffs’ claims for ejectment or removal of pipeline, for trespass, and for lack of jurisdiction. See Doc. 73. On November 4, 2009, El Paso Natural Gas also filed its reply to its motion to dismiss under rule 12(b)(6), contending that the Plaintiffs do not allege that it violated any law or allege any facts upon which relief against a third party could be granted. See Doc. 74 at 1. On that same day, El Paso Natural Gas also filed its reply to its motion to dismiss under rule 12(b)(1) and 12(b)(7), see Doc. 75, arguing that the Plaintiffs’ response fails to establish that their claim presents a ripe case or controversy under Article III of the United States Constitution, particularly arguing that the Plaintiffs have failed to exhaust their administrative remedies and the United States is an indispensable party. See El Paso Natural Gas Reply at 1 at 15.

On December 10, 2009, the Plaintiffs filed the Plaintiffs’ Motion for Leave to File Sur-Reply to Pages 11-16 of “El Paso’s Reply Memorandum in Support of Motion to Dismiss Pursuant to Rule 12(b)(6),” Doc. 82, stating that El Paso Natural Gas argued for the first time in its reply brief that its activities were privileged under the Noerr-Pennington doctrine and seeking leave to file a surreply addressing that argument. See Plaintiffs’ Motion for Leave at 1.

STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1)

Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction over the subject matter.” Fed. R.Civ.P. 12(b)(1). The party invoking federal jurisdiction bears the burden of establishing its existence. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826 (2003). These two forms of attack differ.

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the attack is factual, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at **8-9 (D.N.M. Mar. 11, 2009) (Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d at 412-13 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

STANDARD FOR MOTIONS TO DISMISS UNDER 12(b)(6)

Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.... ” Id. (internal citation omitted). “[T]he Supreme Court [of the United States] recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Id. (alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (emphasis in original). The Tenth Circuit has stated:

“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).

The Supreme Court has recently expounded upon the meaning of Bell Atlantic Corp. v. Twombly.

Two working principles underlie [the] decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (citation omitted). Additionally, the Supreme Court has commented:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.

Id. at 1950.

STANDARD FOR MOTIONS TO DISMISS UNDER 12(b)(7)

Under rule 12(b)(7), the court may dismiss a case for failure to join a necessary and indispensable party under rule 19. The Court exercises discretion in deciding a rule 12(b)(7) motion. See Citizen Band Potawatomi Indian Tribe of Okla. v. Collier, 17 F.3d 1292, 1293 (10th Cir.1994) (citing Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1471 (10th Cir.1987)). The movant bears the burden to produce evidence which shows the nature of the interest, possessed by an absent party, that such party’s absence will impair the protection of that interest, and that, accordingly, the claims should be dismissed. See Citizen Band Potawatomi Indian Tribe v. Collier, 17 F.3d at 1293. Defendants can satisfy this burden with “affidavits of persons having knowledge of the interest as well as other relevant extra-pleading evidence.” Id. (quoting Mar tin v. Local 147, Int’l Bro. of Painters, 775 F.Supp. 235, 236-37 (N.D.Ill.1991)).

In deciding whether a person is indispensable under rule 19(b), the Court applies a three-part analysis. See Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 (10th Cir.2001). First, the Court determines, under rule 19(a), whether the party is a required or “necessary” party. A party is required if the party can be served with process, its joinder will not deprive the court of subject-matter jurisdiction, and:

(A) in that person’s absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed.R.Civ.P. 19(a). If a person is required, but has not been joined, the court must determine whether joinder is feasible. See Citizen Potawatomi Nation v. Norton, 248 F.3d at 997. If the party is required but cannot be joined, the Court must then determine under rule 19(b) whether the party is indispensable. To conclude that a party is indispensable, the Court must find “in equity and good conscience” that the action should not proceed in the party’s absence. Fed.R.Civ.P. 19(b). See Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1259 (10th Cir.2001). In making this determination, the Court, using its discretion, balances the following factors:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person’s absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed.R.Civ.P. 19(b). See Thunder Basin Coal Co. v. Sw. Pub. Serv. Co., 104 F.3d 1205, 1211 (10th Cir.1997).

Earlier case law generally describes those parties who should be joined under rule 19(a) as necessary parties, and those necessary parties whose absence requires that a case be dismissed under rule 19(b) as indispensable parties, or necessary and indispensable parties. The 2007 amendments to the rules changed the term necessary parties to required parties. These amendments were stylistic only, however, and much of the case law interpreting rule 19 predates the amendments and refers to necessary and indispensable parties.

1. Incomplete Relief.

One basis on which a party may be a required, or necessary, party is if, “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed.R.Civ.P. 19(a)(1)(A). A court is able to afford complete relief when a party’s absence “does not prevent the plaintiffs from receiving their requested ... relief.” Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1258 (10th Cir.2001). As Moore’s Federal Practice explains, this provision “requires joinder when nonjoinder precludes the court from effecting relief not in some overall sense, but between extant parties.” 4 J. Moore & R. Freer, Moore’s Federal Practice § 19.03[2][b], at 19-39 (3d ed.2009)(emphasis in original). “Properly interpreted, the Rule is not invoked simply because some absentee may cause future litigation.... The fact that the absentee might later frustrate the outcome of the litigation does not by itself make the absentee necessary for complete relief.” 4 Moore’s Federal Practice § 19.03[2][b], at 19-39 to 19-41 (footnotes omitted).

Those cases discussing the complete-relief segment of rule 19(a) look at whether a plaintiff or other claimant can be granted complete relief without adding parties. For example, in Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 320 F.3d 1081 (10th Cir.2003), the Tenth Circuit analyzed whether the district court could grant the plaintiff all the relief that it was seeking on its claims. See id. at 1097. In Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121 (2d Cir.1990), the United States Court of Appeals for the Second Circuit held that an absent party was a necessary party to afford a counter-claimant complete relief because the counterdefendant could not comply with the injunction that the counterclaimant sought without the consent of the absent party. See id. at 1124. In Champagne v. City of Kansas City, Kan., 157 F.R.D. 66 (D.Kan.1994), a number of paramedics filed suit against Kansas City, alleging overtime-pay violations. The City sought to join as plaintiffs other paramedics who had not sued. See id. at 67. The district court held:

Complete relief refers to relief as between the persons already parties to the action and not as between a present party and the absent party whose joinder is sought. The named plaintiffs in the present action would be able to obtain all the relief requested without the joinder of four additional paramedics. Defendant’s assertion that all persons whose claims are identical to the plaintiffs should be joined is not within the meaning of complete relief.

Champagne v. City of Kansas City, Kan., 157 F.R.D. at 67 (citation omitted).

2. Inconsistent Obligations.

Another way in which a party can be a required or necessary party is if the “person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may ... leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed. R.Civ.P. 19(a)(1)(B) and 19(a)(l)(B)(ii). Preventing inconsistent obligations does not curtail future litigation.

“Inconsistent obligations” are not ... the same as inconsistent adjudications or results. Inconsistent obligations occur when a party is unable to comply with one court’s order without breaching another court’s order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum. Unlike a risk of inconsistent obligations, a risk that a defendant who has successfully defended against a party may be found liable to another party in a subsequent action arising from the same incident — i.e., a risk of inconsistent adjudications or results — does not necessitate joinder of all of the parties into one action pursuant to Fed.R.Civ.P. 19(a).

Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir.1998) (citations omitted). While the Tenth Circuit has not devoted extended discussion to inconsistent obligations, it has given, as an example of inconsistent obligations, a hypothetical seenario in which a federal district court orders a defendant to transfer stock to the plaintiff while a state court orders the same defendant to transfer the same stock to a different party who is not involved in the federal litigation. See Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 320 F.3d at 1098.

The application of rule 19 is subject to rule 23. See Fed.R.Civ.P. 19(d).

RULE 23

Under rule 23(a), a class action may be maintained only if:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). To have a class action, the class must also satisfy one of the provisions of rule 23(b). See Dixon v. Valdez, 167 F.R.D. 688, 690 (D.N.M.1996) (Black, J.)(quoting Sollenbarger v. Mountain States Tel. & Tel. Co., 121 F.R.D. 417, 423 (D.N.M.1988)). Rule 23(a)(3) requires that the named representative’s claims be typical of the class’ claims. See Fed R. Civ. P. 23(a)(3). The typicality requirement ensures that absent class members are adequately represented by evaluating whether the named plaintiffs interests are sufficiently aligned with the class’ interest. See Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994); Nicodemus v. Union Pac. Corp., 204 F.R.D. 479, 490 (D.Wyo.2001). The essential characteristics of the named plaintiffs’ claims must be the same as or similar to the class’ claims, but they need not be identical; the Tenth Circuit has affirmed that factual differences among some of the class members will “not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988). “[T]here may be varying fact situations among individual members of the class and this is all right so long as the claims of the plaintiffs and the other class members are based on the same legal or remedial theory.” Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Accordingly, differences in the amount of damages will not defeat typicality. See Harrington v. City of Albuquerque, 222 F.R.D. 505, 511 (D.N.M.2004) (Hansen, J.).

To protect the due-process interests of unnamed class members — who are bound by any judgment in the action— rule 23(a)(4) requires that the named representative provide fair and adequate protection for the class’ interests. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 379 n. 5, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (characterizing adequacy of representation as a constitutional requirement); Lile v. Simmons, 143 F.Supp.2d 1267, 1277 (D.Kan.2001) (“Due process requires that the Court ‘stringently’ apply the competent representation requirement because class members are bound by the judgment (unless they opt out), even though they may not actually be aware of the proceedings.”). The Tenth Circuit has identified two questions relevant to the adequacy of representation inquiry: (i) whether the named plaintiffs and their counsel have any conflicts with other class members; and (ii) whether the named plaintiffs and their counsel vigorously prosecute the action on behalf of the class. See Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir.2002). In considering this second question, the experience and competence of the attorney representing the class may inform the court’s analysis. See Lopez v. City of Santa Fe, 206 F.R.D. 285, 289-90 (D.N.M.2002) (Vazquez, J.).

STANDARDS FOR MOTIONS TO STRIKE UNDER RULE 12(f)

A court “may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Hill v. Cray Research, Inc., 864 F.Supp. 1070, 1073 (D.N.M.1991). See Ysais v. N.M. Judicial Standard Comm’n, 616 F.Supp.2d 1176, 1184 (D.N.M.2009) (Browning, J.); Leviton Mfg. Co., Inc. v. Zhejiang Dongzheng Elec. Co., No. CIV 05-0301, 2006 WL 4060663, at *1 (D.N.M. Sept. 18, 2006) (Browning, J.); Fed.R.Civ.P. 12(f). “Motions to strike, however, are generally a disfavored and drastic remedy.” Sierra Club v. Tri-State Generation & Transmission Ass’n, Inc., 173 F.R.D. 275, 285 (D.Colo.1997). “To be impertinent or immaterial, the allegations must have no possible bearing on the controversy.” Employers Ins. of Wausau v. Musick, Peeler, & Garrett, 871 F.Supp. 381, 391 (S.D.Cal.1994). Evidentiary allegations are not usually proper pleading, but allegations supplying background or historical material or other matter of an evidentiary nature will not be stricken unless unduly prejudicial to defendant. See Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 402 F.Supp. 636, 637-38 (S.D.N.Y.1975). Irrelevant allegations will be stricken as scandalous only if they degrade defendants’ moral character, contain repulsive language, or detract from the dignity of the court. See Nault’s Auto. Sales v. Am. Honda Motor Co., 148 F.R.D. 25, 30 (D.N.H.1993) (citation omitted). Relevant allegations will be stricken as scandalous only if they satisfy the above criteria and go into unnecessary detail. See id. Motions to strike are granted or denied in the court’s discretion. See The Wilderness Soc’y v. Kane County, Utah, 581 F.3d 1198, 1226, n. 25 (10th Cir.2009).

LAW REGARDING STANDING

A federal court may hear cases only where the plaintiff has standing to sue. Standing has two components. First, standing has a constitutional component arising from Article Ill’s requirement that federal courts hear only genuine cases or controversies. Second, standing has a prudential component. See Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1224 n. 7 (10th Cir.2008) (noting that, in addition to constitutional standing requirements, “the Supreme Court recognizes a set of ‘prudential’ standing concerns that may prevent judicial resolution of a case even where constitutional standing exists”). The burden of establishing standing rests on the plaintiffs. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The plaintiffs must “allege ... facts essential to show jurisdiction. If they fail to make the necessary allegations, they have no standing.” FW/PBS v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (internal citations and quotations omitted). Moreover, where the defendant challenges standing, a court must presume lack of jurisdiction “unless the contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (quoting Bender v. Williamsport Area School Dist., 475 U.S. 534, 546, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (internal quotation omitted)). “It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings but rather must affirmatively appear in the record.” Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997) (quoting FW/PBS v. City of Dallas, 493 U.S. at 231, 110 S.Ct. 596) (internal citations and quotations omitted).

1. Article III Standing.

“Article III of the Constitution limits the jurisdiction of federal courts to Cases and Controversies.” San Juan County, Utah v. United States, 503 F.3d 1163, 1171 (10th Cir.2007). See U.S. Const, art. Ill, § 2. “In general, this inquiry seeks to determine ‘whether [the plaintiff has] such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ” Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241 (10th Cir.2008) (quoting Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007))(brackets in Wyoming ex rel. Crank v. United States, further internal quotation marks omitted). “[A] suit does not present a Case or Controversy unless the plaintiff satisfies the requirements of Article III standing.” San Juan County, Utah v. United States, 503 F.3d at 1171. To establish standing, a plaintiff must show three things: “(1) an injury in fact that is both concrete and particularized as well as actual or imminent; (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury would be redressed by a favorable decision.” Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir.2008) (internal quotation marks omitted).

“Standing is determined as of the time the action is brought.” Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir.2007) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005)). In Smith v. U.S. Court of Appeals, for the Tenth Circuit, the Tenth Circuit rejected a plaintiffs standing to challenge the Colorado appellate courts’ practice of deciding cases in non-precedential, unpublished opinions, which the plaintiff asserted allowed courts to affirm incorrect decisions without interfering with official, “published” law. The Tenth Circuit noted that the plaintiff had recently taken his state appeal, and therefore

was in no position to challenge the adequacy of state appellate review in cases culminating in unpublished opinions unless he could show that he would in fact receive such review from the state court of appeals (and from the state supreme court as well, if it took the case on certiorari).

Id., 484 F.3d at 1285.

By contrast, in Nova Health Sys. v. Gandy, the Tenth Circuit found that abortion providers had standing to challenge a recently enacted Oklahoma parental-notification law on the grounds that they were in imminent danger of losing patients because of the new law. Although finding standing, the Tenth Circuit was careful to frame the issue as whether, “as of June 2001 [the time the lawsuit was filed],” Nova faced any imminent likelihood that it would lose some minor patients seeking abox-tions. 416 F.3d at 1155. Moreover, while focusing on the time of filing, the Tenth Circuit allowed the use of evidence from later eveixts — prospective patients lost because of the notification law after the lawsuit began — to demonstrate that the plaintiff faced an imminent threat as of the time of filing. See id.

2. Prudential Standing.

“Prudential standing is not jurisdictional in the same sense as Article III standing.” Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir.2007). Prudential standing consists of “a judicially-created set of principles that, like constitutional standing, places limits on the class of persons who may invoke the courts’ decisional and remedial powers.” Bd. of County Comm’rs of Sweetwater County v. Geringer, 297 F.3d 1108, 1112 (10th Cir.2002) (internal quotation marks omitted). Generally, there are three prudential-standing requirements: (i) “a plaintiff must assert his own xights, rather than those belonging to third parties;” (ii) “the plaintiffs claim must not be a generalized grievance shared in substantially equal measure by all or a large class of citizens;” and (iii) “a plaintiffs grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Id. (internal quotation marks and citations omitted).

Most relevant here is the rule that a “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Aid for Women v. Foulston, 441 F.3d 1101, 1111 (10th Cir.2006) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). There is an exception to this general rule, however, known as third-party standing or jus tertii. Third-party standing is allowed when: (i) “the party asserting the right has a close relationship with the person who possesses the right;” and (ii) “there is a hindrance to the possessor’s ability to protect his own interests.” Aid for Women v. Foulston, 441 F.3d at 1111-12.

To have standing to seek judicial review of agency’s administrative actions, a plaintiff must demonstrate that he or she has suffered an injury in fact, and that his or her interest is arguably within the zone of interests intended to be protected by the relevant statute. Corrugated Container Corp. v. Community Services Administration, 429 F.Supp. 142, 150 (W.D.Va.1977). Additionally, it must be obvious “that relevant statutes neither preclude judicial review nor commit action in question solely to agency’s discretion.” Id.

With regard to a class action, courts have held that, if any single plaintiff has standing, the court has jurisdiction over the case and need not consider whether any other plaintiff has standing as well. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1232 (D.C.Cir.1996). Plaintiffs suing under the Administrative Procedures Act (“APA”) must also establish that they are “adversely affected or aggrieved ... within the meaning of a relevant statute” by some final agency action. 5 U.S.C. § 702. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Plaintiffs must establish standing as a prerequisite for declaratory relief. See Rector v. City & County of Denver, 348 F.3d 935, 946 (10th Cir.2003) (affirming dismissal of request for declaration that city ordinance is unconstitutional, on the basis that “the abstract possibility that Plaintiffs may receive a contestable parking ticket in the future certainly does not satisfy Article Ill’s requirements.”). As to injunctive relief, plaintiffs must demonstrate a “personal stake in the outcome.” F.E.R. v. Valdez, 58 F.3d 1530, 1534 (10th Cir.1995). Plaintiffs must demonstrate a sufficient likelihood that they will be harmed in the future by the allegedly illegal conduct. Id.

LAW REGARDING ASSOCIATION STANDING

An organization may represent its members’ interests provided it can establish that: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Am. Forest & Paper Ass’n v. EPA, 154 F.3d 1155, 1158-59 (10th Cir.1998). An association, representing a class, must meet a similar test for standing as individuals do.

1. Injury in Fact.

To meet the test’s first prong, “the association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” Warth v. Seldin, 422 U.S. at 511, 95 S.Ct. 2197. Further, the Supreme Court requires allegations of “specific, concrete facts demonstrating that the challenged practices harm [plaintiffs] and that [plaintiffs] personally would benefit in a tangible way from the court’s intervention.” Id. at 508, 95 S.Ct. 2197 (emphasis added).

2. Causation.

“The issue in the causation inquiry is whether the alleged injury can be traced to the defendant’s challenged conduct, rather than to that of some other actor not before the court.” Ecological Rights Found. v. Pacific Lumber, 230 F.3d 1141, 1151 (9th Cir.2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The Tenth Circuit has distinguished between the injury-in-fact requirement and the causation requirement:

Whether an increased risk will or will not occur due to the agency action determines whether a plaintiff has suffered injury in fact, not causation.... [T]he risk must be actual, threatened or imminent. However, once the plaintiff has established the likelihood of the increased risk for purposes of injury in fact, to establish causation ... the plaintiff need only trace the risk of harm to the agency’s alleged failure to follow the [law].

Comm, to Save the Rio Hondo v. Lucero, 102 F.3d 445, 451-52 (10th Cir.1996). The relevant showing for purposes of Article III standing, is injury to the plaintiff. See Friends of the Earth, Inc. v. Laidlaw Env. Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

3. Redressability.

To establish redressability, “a plaintiff must ... establish it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Comm. to Save the Rio Hondo v. Lucero, 102 F.3d at 452. A plaintiff seeking injunctive relief satisfies the redressability requirement “by alleging a continuing violation or the imminence of a future violation of an applicable statute or standard.” NRDC v. Sw. Marine, 236 F.3d 985, 995 (9th Cir.2000).

For purposes of a standing analysis, however, the court assumes that the alleged legal violations have occurred and asks whether a favorable decision in the case will redress the injury that the plaintiffs have alleged. See Comm. to Save the Rio Hondo v. Lucero, 102 F.3d at 452. To satisfy redressability, the plaintiff need show only “the likelihood (as opposed to speculation [or certainty]) that the injury will be redressed by a favorable decision.” Sw. Ctr. for Biological Diversity v. Clark, 90 F.Supp.2d 1300, 1310 (D.N.M.1999) (Mecham, Senior Judge). Where the plaintiff has established that the challenged action causes him or her an ongoing injury in fact, then an order invalidating and enjoining further engagement in the challenged action will redress the injury. See Friends of the Earth, Inc. v. Laidlaw Env. Services (TOC), Inc., 528 U.S. at 185-186, 120 S.Ct. 693.

4. Germane to Its Purpose.

The final element for the association to show is that the interests it seeks to protect are germane to the association’s purpose. See id. at 181, 120 S.Ct. 693. Merriam-Webster Online defines germane as (i) “closely akin” and (ii) “being at once relevant and appropriate.” http://www. merriamwebster. com/dictionary/germane.

Sometime standing is confused with ripeness. Standing and ripeness are closely related doctrines “in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention.” Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1234 (10th Cir.2004) (quoting Johnson v. Missouri, 142 F.3d 1087, 1090 n. 4 (8th Cir.1998)). The difference between the two is that standing concerns who may bring an action while ripeness concerns when the action may be brought. See ACORN v. City of Tulsa, Okla., 835 F.2d 735, 738 (10th Cir.1987).

LAW REGARDING RIPENESS

“The question of ripeness, like other challenges to a court’s subject matter jurisdiction, is treated as a motion under Rule 12(b)(1).” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). See Fed.R.Civ.P. 12(b)(1). “In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). Ripeness pertains to timing of a case and is intended “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Ripeness is a component of the Article III requirement that limits judicial review to “cases or controversies.” U.S. Const, art. Ill, § 2. See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999). To satisfy Article Ill’s case-or-controversy requirement, a claim must present an impending “injury in fact.” Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). To satisfy the injury in fact requirement, a “plaintiff must allege concrete plans rather than mere ‘some day intentions.’ ” Verizon Wireless (VAW) v. City of Rio Rancho, NM, 476 F.Supp.2d 1325, 1331 (D.N.M.2007) (quoting Roe # 2 v. Ogden, 253 F.3d 1225, 1229 (10th Cir.2001)).

In determining whether an issue is fit for judicial review, the central focus is on “whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” 13A Wright, Miller & Cooper, Federal Practice & Procedure, § 3532 at 112. To this end, courts frequently focus on whether a challenged government action is final and whether determination of the merits turns upon strictly legal issues or requires facts that may not yet be sufficiently developed. See Sierra Club [v. Yeutter], 911 F.2d [1405,] 1415 [ (10th Cir.2005) ]; El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 (1st Cir.1992). In assessing the hardship to the parties of withholding judicial resolution, our inquiry “ ‘typically turns upon whether the challenged action creates a “direct and immediate” dilemma for the parties.’ ” El Dia, Inc. v. Hernandez Colon, 963 F.2d at 495 (quoting W.R. Grace & Co. v. United States EPA 959 F.2d 360, 364 (1st Cir.1992)).

New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). Fitness of the issue for judicial resolution involves both whether the issue is purely legal and whether the agency action is final. See Abbott Labs. v. Gardner, 387 U.S. 136, 149-52, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The other prong of the ripeness test is the hardship to the parties of withholding judicial review. See id. This prong is concerned with “whether the challenged action creates a direct and immediate dilemma for the parties.” See, e.g., New Mexicans for Bill Richardson v. Gon zales, 64 F.3d 1495, 1499 (10th Cir.1995) (citing El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 (1st Cir.1992) (internal quotation marks omitted)). Harm includes “the heightened uncertainty and resulting behavior modification that may result from delayed resolution,” as well as traditional types of harm recognized by the courts. See Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1038 (8th Cir.2000) (citing Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733-34, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998)). “[T]o resolve an issue lacking factual development simply to avoid a threatened harm would be to favor expedition over just resolution.” Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d at 1039. Premature resolution would also run afoul of the “fundamental and long-standing princ