Opinion
1:22-cv-00017
2023-01-31
James HUNTER, Sheri Hunter, Bradley Hutchison, Katherine Hutchison, Susan Kelley, William McConnell, Cindy O'Hearn, Michael O'Hearn, Barbara Oliver, James Rine, Mary Rine, and Stephanie Sholes, Plaintiffs, v. PAGE COUNTY, IOWA; Board of Supervisors of Page County, Iowa; Alan Armstrong; Jacob Holmes; James King; Chuck Morris; and Carl Sonksen, Defendants, Shenandoah Hills Wind Project, LLC, Intervenor.
Theodore F. Sporer, Sporer Law Firm, Des Moines, IA, Shawn Shearer, The Shearer Law Office, Des Moines, IA, for Plaintiffs. Jason Michael Craig, Emily Kolbe, Maria Evelyne Brownell, Ahlers & Cooney PC, Des Moines, IA, for Defendants Iowa Page County, Board of Supervisors of Page County, Iowa. Robert M. Livingston, Stuart Tinley Law Firm LLP, Council Bluffs, IA, for Defendant Jacob Holmes. Brant Michael Leonard, Bret Alan Dublinske, Kristy Dahl Rogers, Fredrikson & Byron, P.A., Des Moines, IA, for Intervenor.
Theodore F. Sporer, Sporer Law Firm, Des Moines, IA, Shawn Shearer, The Shearer Law Office, Des Moines, IA, for Plaintiffs. Jason Michael Craig, Emily Kolbe, Maria Evelyne Brownell, Ahlers & Cooney PC, Des Moines, IA, for Defendants Iowa Page County, Board of Supervisors of Page County, Iowa. Robert M. Livingston, Stuart Tinley Law Firm LLP, Council Bluffs, IA, for Defendant Jacob Holmes. Brant Michael Leonard, Bret Alan Dublinske, Kristy Dahl Rogers, Fredrikson & Byron, P.A., Des Moines, IA, for Intervenor. ORDER ROBERT W. PRATT, Judge
Pending before the Court are Plaintiffs' Motion for Temporary Restraining Order (TRO), ECF No. 5; Motion for Reconsideration of the Court's Order granting Shenandoah Hills Wind Project, LLC (SHW)'s Motion to Intervene, and Motion for Reconsideration of the Court's Order denying Plaintiffs' Motion to Strike SHW's Resistance to TRO, ECF No. 25; Motion to Remand to State Court and/or In the Alternative, Abstain, Remand in Part & Stay, ECF No. 33; and Appeal of Magistrate Judge Decision granting leave for SHW to file a motion to dismiss, ECF No. 53. Defendants filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and Failure to State a Claim under Rule 12(b)(6). ECF No. 12. Defendant Holmes filed a Motion to Remand and Joinder in Plaintiffs' Motion to Remand. ECF No. 40. Defendants also filed a Notice and Consent to Remand. ECF No. 76. Intervenor filed a Motion to Dismiss for failure to state a claim under Rule 12(b)(6). ECF No. 54. Responsive briefs have been filed on the pending motions. On January 6, 2023, the Court heard oral argument on the Motions to Dismiss, ECF Nos. 12 and 54, and the Motions to Remand, ECF Nos. 33 and 40. The matter is fully submitted.
Plaintiffs also filed a Partial Motion for Summary Judgment. ECF No. 56. If this case is not dismissed or remanded, Intervenor and Defendants have been granted an extension of time to file responses in opposition to Plaintiffs' Motion for up to ten days after the Court's ruling on the Motions to Dismiss and Motions to Remand. ECF No. 75.
I. FACTUAL AND PROCEDURAL BACKGROUND
The public interest in developing clean, renewable energy is demonstrated by bipartisan state and federal policy goals. See ECF No. 54-1 at 3. "President Biden wants the nation's electricity to be 100 percent carbon-free by 2035, and many states and utilities plan to ramp up wind and solar power." David Gelles, The U.S. Will Need Thousands of Wind Farms. Will Small Towns Go Along?, N.Y. Times (Dec. 30, 2022), https://www.nytimes.com/2022/12/30/climate/wind-farm-renewable-energy-fight.html. Similarly, Iowa has an official policy "to encourage the development of alternate energy production facilities . . . to conserve [the State's] finite and expensive energy resources and to provide for their most efficient use." Iowa Code §§ 476.41; see also § 18B.1(3) (listing "clean, renewable, and efficient energy" as a smart principle of planning, zoning, and resource-management). While alternate-energy production is prioritized, Iowa balances that goal with maintaining community character, preserving agricultural land, and conserving its natural resources. See §§ 18B.1(7)-(9). That said, the advancement of wind energy as an alternate-energy source is met by strong opposition in some rural communities concerned about the impact of wind-energy systems on their health, property values, and overall quality of life. E.g., Mathis v. Palo Alto Cnty. Bd. of Supervisors, 927 N.W.2d 191 (Iowa 2019).
In 2019, Page County, Iowa's Board of Supervisors enacted the Wind Energy Conversion Systems (WECS) on Property Located in the Unincorporated Areas of Page County Ordinance ("Wind Ordinance"). WECS are windmill-like structures that include "[a]ll necessary devices that together convert wind energy into electricity, including Wind Turbines, electrical components, transformers, feeder lines, substation and meteorological towers." ECF No. 1-11 at 33. The purpose of the Wind Ordinance is "to promote the public health, safety, comfort and general welfare, while facilitating economic opportunities, for rural residents and promoting a goal of increased energy production from renewable energy sources." Id. at 31. The Wind Ordinance "serve[s] to establish guidelines for the siting, construction and operation of [WECS] which generate electricity." Id. Representatives from Invenergy, a third-party wind project developer, attended Board meetings prior to enactment of the Wind Ordinance and allegedly were involved in drafting the Wind Ordinance. ECF No. 1-2 at 17. Though Invenergy's level of involvement in drafting the Wind Ordinance is not clearly established in the record. The Board provided publication and notice of the proposed Wind Ordinance to the public on September 17, 2019, and a public reading was held on October 29, 2019. Id. at 15-16. Additional public readings were waived, and the Wind Ordinance was subsequently adopted by a majority vote. Id.; see also Iowa Code § 331.302(6)(a)-(b).
Intervenor SHW is an affiliate of Invenergy, LLC and for purposes of this Order functions as one and the same entity. See ECF No. 1-2 at 144 ("SHW and Invenergy LLC and their affiliated entities are collectively referred to as "Invenergy.").
On March 7, 2022, Invenergy submitted a Commercial WECS (C-WECS) application to the Board, in accordance with the Wind Ordinance. ECF No. 1-11 at 8; ECF No. 1-2 at 143-56. Invenergy sought to build approximately thirty-one wind turbine sites spanning over 30,000 acres of land in rural Page County. ECF No. 1-2 at 146-47. On March 8, 2022, the Board publicly discussed Invenergy's C-WECS application. Id. at 28. Many community members had recently expressed their concerns about the proposed wind project. Id. at 25. Community members asked the Board to take time to address problems in the Wind Ordinance before approving Invenergy's C-WECS application. Id. at 28-29. As a result, on March 29, 2022, the Board decided to enact a 180-day moratorium on approval of all C-WECS construction permits through September 24, 2022. Id. at 30. The moratorium, Resolution #26-2022 Moratorium on C-WECS Construction Permits, concludes as follows:
NOW THEREFORE BE IT RESOLVED by the Board of Supervisors of Page County, Iowa, that Page County now imposes a moratorium, effective immediately and for a period of one-hundred eighty days, on C-WECS permit applications for the purposes of drafting and adopting any necessary and proper revisions to the existing C-WECS ordinance. This moratorium shall not affect any construction permits already filed with Page County as of the effective date of this resolution.Id. at 157-56. Notably, "C-WECS permit applications" would be temporarily suspended, but the moratorium would not impact construction permits already filed on or before March 29, 2022. Id. The purpose of the moratorium was for the "drafting and adopting any necessary and proper revisions to the existing C-WECS ordinance." Id.
Months passed and the Board agreed to hire outside legal counsel to provide advice and answer questions about Invenergy's pending C-WECS application. Id. at 38. Then, on August 2, 2022, the Board heard additional concerns from the community, and it became clear that some project agreements had yet to be worked out. Id. at 40-41. In addition, at least one citizen questioned a specific Board member about a potential conflict of interest with Invenergy, which the Board member denied. Id. at 40. The Board determined by a majority vote that Invenergy sufficiently met the minimum C-WECS permit application requirements under the Wind Ordinance and thus a motion was carried to approve Invenergy's application. Id. at 41. On August 9, 2022, the C-WECS Moratorium was extended an additional 180 days through March 24, 2023. Id. at 42. The Court takes judicial notice that the Board also approved the August 2, 2022, meeting minutes on August 9, 2022. See Minutes, Page County Board of Supervisors, available at https://pagecounty.iowa.gov/offices/board-of-supervisors (last accessed Jan. 24, 2023). The Board posted its meeting minutes to the County's website and the minutes were available for public viewing. Id. These minutes provided community members with notice that approval of Invenergy's C-WECS application was a final decision. See Burroughs v. City of Davenport Zoning Bd. of Adjustment, 912 N.W.2d 473, 485-86 (Iowa 2018) (holding that approval of minutes containing board's decision and posting minutes to board's official website constitutes "filing of the decision in the office of the board").
The Board minutes are public record and "may be considered by the district judge without converting the motion into one for summary judgment." Charles Alan Wright & Arthur R. Miller, 5B Fed. Prac. & Proc. § 1357 (3d ed. 1998)
Today, Invenergy possesses an approved C-WECS application—in other words, a C-WECS permit—but there are additional steps that must occur before the wind project may commence, including: (a) entering into road-use and decommissioning agreements with Defendants, (b) providing proof of any necessary Federal Aviation Administration and Federal Communications Commission permits, and (c) obtaining construction permits from the County to build each wind turbine. See ECF No. 1-2 at 121. A construction permit is issued by the Zoning Administrator and is different than a C-WECS permit. Id. at 121, 211-13. In addition, the purpose of a road-use agreement is to establish the expectations for road restoration and maintenance during and following C-WECS construction. Id. at 124, 127-32. The purpose of a decommissioning plan is to agree on coverage of the means and costs for dismantling and removing wind turbines 180 days after cessation of use. Id. at 124, 136-41. These agreements are necessary before the Zoning Administrator may issue construction permits. Also, if prior to construction "there are any material changes to the information provided," then Invenergy must submit a new C-WECS application for approval. Id. at 121. In that sense, Invenergy has a conditional C-WECS permit until all of the above steps are completed.
Notably, "SHW was granted an exception to the height limit in the agriculture-zoned area for the switching station in December 2021, making that component of the project fully-permitted in Page County at the time of th[e] Application." ECF No. 1-2 at 144.
Approximately forty-one days after the Board's decision approving Invenergy's C-WECS application, Plaintiffs filed their Complaint in Iowa District Court challenging the legality of Defendants' actions. Plaintiffs are residents of Page County. Id. at 4. They "reside in the 'footprint' of the proposed [C-WECS] construction, several within 1500 feet of the proposed turbines." ECF No. 34 at 5. Their concerns include preserving their property values and they believe wind turbines will negatively impact their use, quiet enjoyment, solitude, and view of their property. Id. Plaintiffs also claim an "interest in a county government operating in accordance with the law, and in consistent enforcement of the acts of the Board." Id. They have sued the County, County Attorney, Zoning Administrator, and Board of Supervisors for enacting the Wind Ordinance, and for approving Invenergy's application to commence a C-WECS project. Plaintiffs seek to enjoin Defendants from entering into future road-use and decommissioning agreements with Intervenor—which the Wind Ordinance requires prior to C-WECS construction—and to enjoin the County from issuing construction permits. In their Complaint, Plaintiffs divide their requests for relief into four claims as set forth below.
Claim One challenges quasi-judicial and legislative actions taken by the Board. Plaintiffs seek a writ of certiorari and mandamus against Defendants for allegedly violating the open-meetings law under Iowa Code Chapter 21, zoning procedures under Chapter 335, and provisions governing home-rule authority under Chapter 331 and the Iowa Constitution Article III section 39A. Plaintiffs argue the Wind Ordinance is unenforceable because it conflicts with the 1997 Page County, Iowa Zoning and Subdivision Ordinance ("Zoning Ordinance"). Plaintiffs contend Invenergy's C-WECS permit is similarly unenforceable because granting the permit was arbitrary and capricious. Invenergy's C-WECS permit also violates the Zoning Ordinance and the County's C-WECS Moratorium. According to Plaintiffs, Invenergy did not have any construction permits pending at the time its C-WECS application was submitted and approved, and thus no exception to the C-WECS Moratorium could have applied. See ECF No. 1-2 at 157 ("This moratorium shall not affect any construction permits already filed with Page County as of the effective date of this resolution."). Defendants not only acted outside the scope of their home-rule authority but improperly subdelegated unlimited and unchecked power to Invenergy, a "private, for profit enterprise" in drafting the Wind Ordinance, amending or repealing the Zoning Ordinance, considering any amendments to the Wind Ordinance, and approving the C-WECS application. Id. at 60. Additionally, the Board held closed-meetings about threats of litigation from Invenergy, but Plaintiffs believe they were actually discussing drafting or amending the Wind Ordinance in violation of the Open Meetings Act. Plaintiffs seek a writ of certiorari voiding Defendants' actions.
Plaintiffs also seek mandamus and a declaration that the Wind Ordinance and approval of Invenergy's C-WECS application are ineffective to amend or repeal specific sections of the Zoning Ordinance, such as its height restrictions, permitted uses, and special-exception procedures. Plaintiffs ask the Court to mandate that Defendants "take actions to rectify and remove illegal acts from the laws of the County." Id. at 50. In addition, they ask the Court to force the Board "to initiate a restraining order . . . to prevent Invenergy from the unlawful construction of C-WECS, and to restrain and abate violations of the Page County Zoning Ordinance by Invenergy." Id. at 51 (citing Iowa Code § 335.23). Plaintiffs want to halt future construction of C-WECS and any negotiations with Invenergy until there is substantial compliance with the Zoning Ordinance and Iowa Code Chapters 331 and 335. Similarly, the Court should declare that Defendants' road-use and decommissioning negotiations violate the Open Meetings Act and C-WECS Moratorium, and therefore shall be enjoined.
In addition, Plaintiffs seek equitable tolling on the thirty-day limitations period to file a writ of certiorari. See Iowa R. Civ. P. 1.1402(3). Plaintiffs claim equitable tolling is justified by Defendants' misleading actions. Continually, the Board promised to amend the Wind Ordinance, which was the express purpose of the C-WECS Moratorium. But no amendment occurred. Plaintiffs claim they learned only after approval of Invenergy's C-WECS application that Defendants were proceeding with road-use and decommissioning agreements. Prior to Defendants' Notice of Removal, Plaintiffs moved for an extension of time to file their certiorari petition with the Iowa District Court. See ECF No. 1-15 at 10. According to Plaintiffs, Defendants were deceptive and "[t]he Board cannot be permitted to lie and placate the public and then renege and claim advantage of a limitation on time." ECF No. 1-2 at 108.
Next, Claim Two argues the Wind Ordinance is void for vagueness under the Iowa and Federal Constitutions. Plaintiffs argue a facial and as-applied challenge under the Iowa Constitution Article I, section 9, and the Fourteenth Amendment Due Process Clause. Claim Two is pleaded "in conjunction with, or as an alternative to" requests for certiorari and mandamus relief, should Defendants stipulate that the Wind Ordinance repealed or amended the Zoning Ordinance. Id. However, at oral argument Plaintiffs conceded that the Wind Ordinance is clear, and they have since abandoned their due process claim. See ECF No. 33-1 at 13-14.
Finally, Claims Three and Four seek other remedies in conjunction with or as an alternative to certiorari or mandamus relief. Claim Three argues injunctive relief is necessary in conjunction with mandamus under Iowa Code section 661.16 or Iowa Rule of Civil Procedure 1.1501 to enjoin Defendants from taking future illegal actions under the Wind Ordinance. Claim three is argued as an auxiliary or alternative remedy to a writ of certiorari or mandamus to preserve the status quo while the certiorari or mandamus actions are pending. Claim Four seeks declaratory relief under Iowa Rule of Civil Procedure 1.1101. Plaintiffs request ten separate declaratory judgments defining certain prohibited actions under the Zoning Ordinance, Iowa Open Meetings Act, and C-WECS Moratorium. In sum, Plaintiffs ask the Court to hold the Wind Ordinance and Invenergy's C-WECS permit are void and unenforceable going forward.
On October 18, 2022, Defendants filed a Notice of Removal in this Court under 28 U.S.C. §§ 1441(a) and 1446, alleging original federal jurisdiction exists under 28 U.S.C. § 1331 based on Plaintiffs' Fourteenth Amendment void-for-vagueness claim. ECF No. 1. Defendants also asserted the Court had supplemental jurisdiction over Claims One, Three, and Four pursuant to 28 U.S.C. § 1367 because these claims form part of the same case or controversy as the federal claim. Plaintiffs object to Defendants' removal by filing a Motion to Remand, which Defendant Holmes joins due to lack of his consent to removal. ECF No. 33, 40. Defendants filed a motion to dismiss for failure to state a claim under Rule 12(b)(6). Intervenor also filed a motion to dismiss under Rule 12(b)(6). At the last minute, Defendants filed a consent to remand due to "a change in the composition of the Page County Board of Supervisors." ECF No. 76. Defendants now "prefer to have this case heard in state court," but they do not join in Plaintiffs' Motion to Remand and do not allege any new facts or a change in the law in support of their sudden change in position. Id.
In their Motion to Dismiss, Defendants argue the Court lacks subject-matter jurisdiction over Plaintiffs' certiorari claim under Rule 12(b)(1) because Plaintiffs neglected to timely request a writ of certiorari. See Sergeant Bluff-Luton Sch. Dist. v. City Council of Sioux City, 605 N.W.2d 294, 297 (Iowa 2000) ("An untimely petition for writ of certiorari deprives the reviewing court of subject matter jurisdiction."). At oral argument, Defendants clarified they seek dismissal of all claims for failure to state a claim upon which relief can be granted under Rule 12(b)(6).
II. ANALYSIS
A. Jurisdiction
1. Standing
Article III, section 2 of the U.S. Constitution limits the jurisdiction of federal courts to "cases" or "controversies" arising under the Constitution, laws, or treaties of the United States. Standing has three elements: (1) injury in fact, (2) "a casual connection between the injury and the conduct complained of," and (3) an injury that is likely to be "redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). An injury in fact is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994) (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130). If "several events must transpire" before a specific harmful action will occur, then the claimed injury is merely conjectural. Id. Finally, "[t]he party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
"The doctrine of standing embodies both constitutional and prudential limits." Sierra Club, 28 F.3d at 757; Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). These limits are "founded in concern about the proper—and properly limited—role of the courts in a democratic society." Warth, 422 U.S. at 498, 95 S.Ct. 2197. Prudential standing is essentially "a judicially crafted set of expectations to the obligation to hear and decide matters that are within the court's jurisdiction." S. Todd Brown, The Story of Prudential Standing, 42 Hastings Const. L. Q. 95, 96 (2014). For example, "a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Yet, failure to establish prudential standing does not deprive a court of jurisdiction. Whereas constitutional standing is a strict jurisdictional requirement. E.g., Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). "If a litigant lacks Article III standing to bring [their] claim, then [federal courts] have no subject matter jurisdiction over the suit." Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013).
Intervenor and Defendants agree that Plaintiffs have Article III standing. Standing was initially raised by Intervenor in its Resistance to Plaintiffs' TRO Motion. Intervenor has since clarified that it challenges Plaintiffs' prudential standing on the due-process claim. At the same time, Plaintiffs argue Intervenor lacks Article III and prudential standing because it has no "legally cognizable interest" in this matter. ECF No. 78 at 4. Plaintiffs also challenge their own standing before the Court. Here, Defendants invoke removal jurisdiction, and thus they have the burden of establishing Plaintiffs' standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
The Court concludes that Defendants have met their burden showing Plaintiffs have Article III standing. Plaintiffs' standing is based on Claim Two, which argues the Wind Ordinance is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. Plaintiffs have a personal interest in the relief requested because they are residents of the County and "reside in the 'footprint' " of the approved C-WECS project. ECF No. 34 at 5. They have sufficiently alleged a concrete injury based on Defendants' final action granting Invenergy's C-WECS application under the Wind Ordinance. While there are several steps yet to be completed before wind-project construction commences, Plaintiffs' injury is concrete because Invenergy has a C-WECS permit, and it is anticipated that Defendants will soon finalize pre-construction negotiations. Because Defendants enacted the Wind Ordinance and granted Invenergy's C-WECS application, the injury is fairly traceable to Defendants' conduct. Finally, Plaintiffs' harm would be redressable if the Court were to order Defendants' actions illegal and unconstitutional. Therefore, Plaintiffs have Article III standing.
Plaintiffs do not, however, have prudential standing to challenge the Wind Ordinance on vagueness grounds. The void-for-vagueness doctrine is intended to protect individuals whose conduct is regulated by civil or criminal enactments. Because only Intervenor and similarly situated wind-energy applicants are regulated by the Wind Ordinance, Plaintiffs lack prudential standing. This does not deprive the Court of subject-matter jurisdiction, but the gravamen of Plaintiffs' argument under Claim Two does not "fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett, 520 at 162, 117 S.Ct. 1154. More so, even if the Court were to decide prudential standing exists, Plaintiffs' due-process argument collapses because (1) they were reasonably on notice of Defendants' actions; (2) receiving suggestions from an interested third-party developer during the drafting of a wind ordinance is not illegal subdelegation of home-rule authority, see Mathis, 927 N.W.2d at 196; and (3) Plaintiffs have conceded the Wind Ordinance is clear.
Additionally, Plaintiffs have not met their burden proving Intervenor lacks standing. Plaintiffs use their standing argument as another way to challenge the Court's Order granting Federal Rule of Civil Procedure 24(a) intervention. Intervenor has Article III and prudential standing to intervene because it has a C-WECS permit granted under and regulated by the Wind Ordinance. Intervenor would be harmed if the Court were to void its permit. Whether Intervenor's stake in the matter expands to actually constructing C-WECS is not ripe because no construction permits have been issued.
In summary, the Court concludes Plaintiffs have Article III standing to bring their challenge in federal court. This provides the Court with the necessary jurisdiction to hear and decide Plaintiffs' claims. Plaintiffs, however, lack prudential standing on Claim Two. And for that reason—in addition to failure to state a plausible claim—Claim Two is dismissed. Furthermore, the challenge to Intervenor's standing is meritless.
2. Removal Jurisdiction
Next, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States." § 1441(a). A claim arising under the U.S. Constitution presents the Court with original federal-question jurisdiction under § 1331. If it is clear from the face of a well-pleaded complaint that a plaintiff could have originally brought their claim in federal court, then a defendant may file a notice of removal. See generally Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The entire case may be removed, even if state claims are joined in the complaint. See § 1441(c); see also § 1367(a). After all, efficiency is best accomplished by adjudicating all factually related claims at the same time, in the same forum, when possible. But merely seeking removal based on a plaintiff's anticipation of a federal defense to an action originating in state court is insufficient to confer removal jurisdiction. Mottley, 211 U.S. at 152-53, 29 S.Ct. 42.
Removal procedures are governed by 28 U.S.C. § 1446. A defendant has thirty days after receiving a copy of a complaint to file a notice of removal. § 1446(b)(1). Additionally, under § 1446(2)(A), when a complaint is removed on grounds of federal-question jurisdiction, "all defendants who have been properly joined and served must join in or consent to the removal." E.g., Chicago R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). After removal, any party may object by filing a motion to remand; even the party who removed the case. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). This is in accordance with 28 U.S.C. § 1447(c), which states, "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."
Remand under § 1447(c) is only possible if the federal court lacks subject-matter jurisdiction. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), abrogated on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). This is consistent with the principle that federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Whether a federal court has subject-matter jurisdiction is based on the face of the complaint "at the time of removal." Schubert v. Auto Owners Ins., 649 F.3d 817, 822 (8th Cir. 2011) (citations omitted); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291, 58 S.Ct. 586, 82 L.Ed. 845 (1938). A plaintiff may later move to dismiss its federal claim and then seek remand on any supplemental state claims. But in that instance, a federal court has discretion to retain its supplemental jurisdiction over the state claims under § 1367 if jurisdiction was clearly established at removal. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); see also § 1367(c)(3) (providing that a court "may decline supplemental jurisdiction . . . [if it] has dismissed all claims over which it has original jurisdiction."). In exercising discretion to remand, a district court must consider "the principles of economy, convenience, fairness, and comity." Cohill, 484 U.S. at 357, 108 S.Ct. 614. If retaining jurisdiction would be inappropriate given the circumstances, then remand is proper. Id.
Here, Plaintiffs argue removal jurisdiction was absent at the outset of this case, and even if the Court had jurisdiction, it lost subject-matter jurisdiction when Plaintiffs abandoned their federal due-process claim. In addition, Plaintiffs argue the notice of removal lacked unanimous consent by Board members, in violation of § 1446(b)(2). For similar reasons, Defendant Holmes joins individually in Plaintiffs' Motion to Remand under §§ 1446(b)(2)(A) and 1447(c) and Local Rule 7. ECF No. 40. What is more, the federal void-for-vagueness challenge to the Wind Ordinance was pleaded to counter any possible defense to Claim One—that the Wind Ordinance conflicts with the Zoning Ordinance. A federal claim pleaded in anticipation of a defense cannot confer removal jurisdiction. Plaintiffs urge the Court to decline subject-matter jurisdiction and order remand because the federal due process claim is "micro-miniscule," unnecessary, inapplicable, and cannot provide original federal jurisdiction. ECF No. 33-1 at 13-15; see also Cohill, 484 U.S. at 350, 108 S.Ct. 614. Plaintiffs believe "this is a state court case raising state law issues of first impression in the state" and thus the State should decide the merits. ECF No. 78 at 5. In the alternative, Plaintiffs ask the Court to abstain from ruling on the matter under Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), or remand in part and stay the federal due-process claim until the state claims are decided.
By contrast, Defendants argue removal was proper because federal-question jurisdiction existed under § 1331 on the face of Plaintiffs' Complaint. Count Two of Plaintiffs' Complaint explicitly seeks relief under the Due Process Clause. Even if Plaintiffs pleaded their claim in the alternative, federal jurisdiction is not ousted. In addition, Defendant Holmes' lack of consent to removal is irrelevant because he is a nominal party and is excepted from the unanimity requirement under § 1446(b)(2)(A). See Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir. 2002). What is more, individual Board members lack power to bind the Board or the County to actions taken outside of their official capacities and are improperly joined. See Van Arkel v. Warren Cnty., 365 F. Supp. 2d 979, 988-89 (S.D. Iowa 2005). According to Defendants, the only respondents properly joined and served with notice of the Complaint are the County and the Board; and the County and the Board consented to removal. Despite arguing removal was proper, Defendants consent to remand. Whereas Intervenor argues the Court should retain its subject-matter jurisdiction and deny remand.
Here, the Court determines removal jurisdiction existed at the time of Defendants' Notice of Removal. On the face of Plaintiffs' Complaint, relief is sought under the Due Process Clause of the U.S. Constitution. Even if Plaintiffs intended to plead their due-process claim in the alternative, it is considered a claim for relief under Federal Rule of Civil Procedure 8(3). The claim arises under the Constitution and presents the Court with original federal-question jurisdiction. Plaintiffs could have originally brought their case in federal court; therefore, removal was proper. Plaintiffs also misunderstand precedent such as Mottley. It is correct that seeking removal based on a plaintiff's anticipation of a federal defense is insufficient to confer removal jurisdiction. Mottley, 211 U.S. at 153, 29 S.Ct. 42. But here, Plaintiffs pleaded an alternative federal claim under Rule 8 in anticipation of a state-law defense. In other words, removal was not based on a federal defense, it was based on Plaintiffs' alternative claim for relief under the U.S. Constitution on the face of the Complaint.
Furthermore, Defendants' notice of removal was timely and removal procedure was correct under § 1446. Plaintiffs do not specify whether they are suing individually named respondents in their individual or official capacity. Indeed, the equitable remedies sought could not be effectuated by any respondent in their individual capacity. Plaintiffs served notice on the Board and the County. The Board possesses and supplies the authority of the County. See Iowa Code § 331.301(2) ("A power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law."). Unanimous consent to removal was not required by individual Board members, and Defendant Holmes is a nominal party. See Thorn, 305 F.3d at 833. Therefore, proper consent to removal was obtained from the County and the Board.
Although Defendants and Plaintiffs consent to remand, remand is only required if the federal court lacks subject-matter jurisdiction. In this instance, the Court has subject-matter jurisdiction because it had supplemental jurisdiction over Claims One, Three, and Four at the time of removal under § 1367. In addition, this is an unusual docket. There are seventy-eight filings in the seventy-eight days between the filing of the petition in state court and the January 6, 2023, motion hearing in this case. There are also eight pending motions—including two dispositive motions—that have taken a significant investment of time and energy by the parties and the Court. Remand will only further delay proceedings in what is an otherwise straightforward case. Intervenor may be the only party who resists remand, but it presents compelling arguments for keeping the case in federal court, including judicial economy. Also, in anticipation of commencing its project, Intervenor invested significant time and money in obtaining the certifications and studies required for its C-WECS permit. Therefore, the Court exercises its discretion to retain subject-matter jurisdiction over Plaintiffs' claims. See Cohill, 484 U.S. at 357, 108 S.Ct. 614. Indeed, Mathis demonstrates—contrary to Plaintiffs' assertion—that the problems raised here are not issues of first impression in the State such that remand is appropriate. Nor does this case involve difficult questions of state law requiring abstention. Retaining jurisdiction is in the best interests of economy, convenience, fairness, and comity. See Cohill, 484 U.S. at 357, 108 S.Ct. 614; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). And because Claim Two is dismissed for lack of prudential standing, Plaintiffs' request for a partial remand or stay is moot. For the reasons stated above, the pending Motions to Remand are denied.
B. Motions to Dismiss
The Court now addresses the merits of the motions to dismiss. Defendants move to dismiss Plaintiffs' claims under Rule 12(b)(6). Defendants argue (1) Plaintiffs' request for certiorari is time-barred by the thirty-day limitations period under Iowa Rule of Civil Procedure 1.1402(3); (2) mandamus is not a legally cognizable remedy because certiorari is available, nor can mandamus be used to control Defendants' legislative discretion; (3) claims for injunctive and declaratory relief are duplicative of the request for certiorari and mandamus, which are time-barred or not legally viable; and (4) the Board is not a proper party outside of certiorari and mandamus actions—the only proper party sued is the County. Id. at 2.
Intervenor also moves to dismiss the Complaint under Rule 12(b)(6). According to Intervenor, every claim alleged in the Petition is either time-barred under Rule 1.1402(3), barred by the exclusive-remedy doctrine, unripe, or brought without prudential standing. Each claim also fails on the merits as a matter of law because the facts alleged do not plausibly assert relief based on any viable legal theory.
Plaintiffs counter that there are factual disputes necessitating discovery and the Court should liberally construe the Complaint rather than grant the motions to dismiss. When the facts are viewed in the light most favorable to Plaintiffs, there are plausible claims for certiorari, injunctive, and declaratory relief. Initially, the Board exceeded its home-rule authority when it enacted the Wind Ordinance. Then, the Board acted illegally, arbitrarily, and capriciously in disregarding the C-WECS Moratorium and the Zoning Ordinance when it approved Invenergy's C-WECS application. There are also allegedly thirtynine instances of closed Board meetings with Invenergy—presumably discussing the Wind Ordinance and Invenergy's C-WECS application—in violation of the Open Meetings Act. Further, Invenergy's application was never granted final approval by the Board on August 2, 2022. The thirty-day limitations period to file a writ of certiorari should thus start on September 6, 2022, when Plaintiffs realized that Defendants were going to proceed with entering into road-use and decommissioning agreements with Intervenor. If indeed Plaintiffs missed the thirty-day window to file for certiorari, then Plaintiffs argue they should be entitled to equitable tolling because they were misled by Defendants and precluded from closed meetings when key facts were hidden from the public.
1. Legal Standard
In order to survive a motion to dismiss, a plaintiff must "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "In determining whether to grant [a] motion to dismiss, a court views the well-pled facts of the petition 'in the light most favorable to the plaintiff with doubts resolved in that party's favor.' " Geisler v. City Council of Cedar Falls, 769 N.W.2d 162,165 (Iowa 2009) (citation omitted); St. Croix Waterway Ass'n v. Meyer, 178 F.3d 515, 519 (8th Cir. 1999). Pursuant to the standard outlined in Rule 8(a), "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Yet, a claim that is time-barred is not plausible on its face. See Charles Alan Wright & Arthur R. Miller, 5B Fed. Prac. & Proc. § 1357 (3d ed. 1998); e.g., Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) ("Generally, a motion to dismiss may be granted when a claim is [time-]barred"). "[I]f it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that [limitations period] was in fact tolled." Varner, 371 F.3d at 1016.
2. Certiorari or Mandamus
Under Claim One, Plaintiffs challenge Defendants' exercise of home-rule authority and seek certiorari or mandamus relief to halt Defendants' actions. The home rule amendments of the Iowa Constitution provide cities and counties with broad authority to govern local affairs in a manner consistent with state law. See Iowa Const. art. III, §§ 38A and 39A. Iowa Code section 331.301 sets forth the general scope of a county's power to legislate under its home-rule authority. A matter controlled by Chapter 331 is generally a "local matter, [but it may] also have statewide importance," as long as it does not conflict with state legislation. Goodell v. Humboldt Cnty., 575 N.W.2d 486, 494 (Iowa 1998). In sum, "for a county ordinance to be a valid exercise of the home rule authority, it must (1) "determine [its] local affairs," and (2) not be "inconsistent with the laws of the general assembly." " Worth Cnty. Friends of Agric. v. Worth Cnty., 688 N.W.2d 257, 261 (Iowa 2004) (citing Iowa Const. art. III, § 39A). By extension, Chapter 335 provides a county board of supervisors the authority to enact zoning ordinances and governs the procedures for making zoning-related decisions. Goodell, 575 N.W.2d at 493.
Rule 1.1401 outlines the procedure for filing a writ of certiorari to challenge a quasi-judicial or judicial decision made by a county board. "A party may commence a certiorari action when authorized by statute or when the party claims an inferior tribunal, board, or officer, exercising judicial functions, . . . exceeded proper jurisdiction or otherwise acted illegally." But "[t]he petition must be filed within [thirty] days from the time the tribunal, board or officer exceeded its jurisdiction or otherwise acted illegally." Rule 1.1402(3). If a petition for certiorari is timely filed, "[a]n illegality [may be] established if a board has not acted in accordance with a statute, if its decision was not supported by substantial evidence, or if its actions were unreasonable, arbitrary, or capricious." Norland v. Worth Cnty. Comp. Bd., 323 N.W.2d 251, 253 (Iowa 1982) (citations omitted).
Additionally, Iowa Code Chapter 661 permits mandamus relief. "The action of mandamus is one brought to obtain an order commanding an inferior tribunal, board, corporation, or person to do or not to do an act." § 661.1. "[M]andamus is a summary and extraordinary writ." Reed v. Gaylord, 216 N.W.2d 327, 331-32 (Iowa 1974) (citation omitted). "Mandamus can compel an inferior tribunal to act but cannot control its discretion." Id. (citing § 661.2). "Where there is right to appeal or to take writ of error such is a plain, speedy or adequate remedy in the ordinary course of the law and therefore mandamus is improper." Id. (citation omitted); see § 661.7. Availability of certiorari in the ordinary course of the law is such a remedy precluding mandamus relief. Id. at 331-32 (citations omitted).
Here, Claim One fails under Rule 12(b)(6) because the Board's approval of Invenergy's C-WECS application was a quasi-judicial act and Plaintiffs neglected to timely file a writ of certiorari "in the ordinary course of the law." See id. On August 9, 2022, the Board adopted its meeting minutes from August 2, 2022, finalizing its decision to approve Invenergy's C-WECS application. See Burroughs, 912 N.W.2d at 485-86. The minutes were posted online and made available to the public shortly thereafter. The time period to challenge the Board's action began on August 9 and ran through September 9, 2022. Plaintiffs filed their Complaint on September 19, 2022. Even if granting the C-WECS application was arbitrary given the C-WECS Moratorium, Plaintiffs failed to timely challenge the Board's decision. See Rule 1.1402(3). Because Plaintiffs could have timely filed for certiorari, mandamus relief is also precluded. See Reed, 216 N.W.2d at 331-32.
The Court further concludes certiorari challenging the Wind Ordinance is unavailing because the Board was "acting in a legislative function" when the Wind Ordinance was enacted. See, e.g., Muscarello v. Winnebago Cnty. Bd., 702 F.3d 909, 914 (7th Cir. 2012) ("The wind farm ordinance is legislation. It applies throughout the county"); see also Geisler, 769 N.W.2d at 166 (holding certiorari is unavailable against a municipality "if it was exercising a legislative function"). The Wind Ordinance was properly adopted under the County's broad home-rule authority under Chapter 331 and Article III, section 39A of the Iowa Constitution. Defendants followed legislative procedures under section 331.302 by holding public hearing and notice. Additional public readings were properly waived. See § 331.302(6)(a)-(b). After the Wind Ordinance was enacted by a majority vote, it was published and became law. See § 331.302(8). Even if enactment of the Wind Ordinance was a quasi-judicial act solely because notice and an opportunity to be heard were provided, certiorari would still be unavailable as time-barred. See Waddell v. Brooke, 684 N.W.2d 185, 191 (Iowa 2004) (determining decision was quasi-judicial because it followed statutory hearing, fact-finding, and notice requirements). And to that point, certiorari based on allegations of Open Meetings Act violations is time-barred by Rule 1.1401, in addition to Iowa Code section 21.6. See Iowa Code § 21.6(3)(c) (providing actions may be found void only if the suit is "brought within six months of the violation"). Any other allegations of Open Meetings Act violations related to Invenergy's C-WECS permit are too speculative for plausible relief to be granted.
Further, unlike the ordinance in Mathis, the Wind Ordinance is not a zoning ordinance or an amendment to a zoning ordinance. See Goodell, 575 N.W.2d at 495-97. It explicitly regulates land use in "unincorporated" areas of Page County and does not regulate land use within specific districts. See id. at 496-97. It does not clearly conflict with, or specifically amend or repeal, the Zoning Ordinance. See § 331.302(4) ("An amendment to an ordinance or to a code of ordinances shall specifically repeal the ordinance or code, or the section, subsection, paragraph, or subpart as amended."). Plaintiffs raise the Board's zoning procedures under Chapter 335—including amending or repealing the Zoning Ordinance, granting variances, and issuing special-use exemptions. Yet, if Plaintiffs sought to challenge enforcement of the Zoning Ordinance, then they should have filed an appeal directly to the Board of Adjustment—a board separate from the Board of Supervisors—"within a reasonable time," and timely sought certiorari within thirty days from any adverse decision. See §§ 335.13, 335.18; e.g., Perkins v. Bd. of Supervisors of Madison Cnty., 636 N.W.2d 58, 63 (Iowa 2001). Thus, the request for certiorari or mandamus related to the Zoning Ordinance is misplaced and untimely.
Considering the statewide policy goals promoting renewable wind energy, and the Wind Ordinance's purpose in promoting "public health, safety, comfort and general welfare," the Board properly exercised its home-rule authority. ECF No. 1-11 at 31. The Wind Ordinance is not inconsistent with any law enacted by the State legislature. See Worth Cnty. Friends of Agric., 688 N.W.2d at 261. Much like the Iowa Supreme Court held in Mathis:
In this case we are called upon to review the decisions of a county board of supervisors approving a wind energy ordinance and a specific wind energy project. Although the challengers raise a number of [ ] arguments, in the end we conclude they were matters for the board of supervisors—not the courts—to resolve.927 N.W. 2d at 193. Plaintiffs' "recourse is 'review by the electorate at the next election.' " Geisler, 769 N.W.2d at 166 (citation omitted). Indeed, "wind farms are not without drawbacks. But in this case the weighing of those drawbacks against any benefits was entrusted to the elected representatives on the [ ] Board of Supervisors." Mathis, 927 N.W.2d at 200.
a. Equitable Tolling
Plaintiffs ask the Court to consider equitable tolling on their certiorari claims. Rule 1.1402(3) expressly provides a way for parties to request an extension of time to file a writ of certiorari "upon a showing that failure to file the petition within the time provided was due to a failure of the tribunal, board or officer to notify the petitioner of the challenged decision." An extension to file for certiorari is consistent with Iowa's common practice of allowing "equitable exceptions to limitations statutes." Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 566 (Iowa 2018). Equitable tolling is "available for a number of reasons . . . . [And] in a wide-variety of settings." Id. It is "a fact-intensive inquiry." Id. at 575. Of course, "a potential claim should not be barred when the failure to bring a timely action arises from the plaintiff's lack of knowledge about key facts that are unknown to the plaintiff and cannot reasonably be discovered by the plaintiff even in the exercise of due diligence." Id. at 566.
In this instance, the facts as pleaded in the Complaint do not indicate Plaintiffs' thirty-day time limit to file a writ of certiorari should be equitably extended. Plaintiffs were given sufficient notice of the Board's approval of Invenergy's C-WECS application when the August 2 and August 9, 2022, meeting minutes were posted to the Board's website and made accessible to the public. Plaintiffs were also put on notice more than three years ago—when the Wind Ordinance was enacted—that road-use and decommissioning agreements would be negotiated with C-WECS permit owners. The Wind Ordinance explicitly states these agreements "shall not be unreasonably withheld" after a C-WECS permit is granted. See ECF No. 1-2 at 124. Additionally, the facts as alleged fail to demonstrate that key facts were withheld from Plaintiffs during closed meetings that would have impacted their ability to timely challenge the approval of Invenergy's C-WECS application. For these reasons, the Court denies Plaintiffs' request for an extension of time to file a writ of certiorari.
3. Exclusive-Remedy Doctrine
A writ of certiorari is an extraordinary and narrow writ; yet it "shall not be denied or annulled [if] plaintiff has another plain, speedy or adequate remedy." Rule 1.1403; see City of Johnston v. Christenson, 718 N.W.2d 290, 297 (Iowa 2006). This noticeably differs from Iowa's rule on mandamus relief because mandamus is precluded when another adequate remedy is available. Reed, 216 N.W.2d at 331-32. Still, Rule 1.1403 strictly limits certiorari review "to questions of jurisdiction or the legality of the challenged acts, unless otherwise provided by statute." This limitation on the scope of certiorari review aligns with the purpose of allowing the writ in the first place—to provide litigants a remedy for an illegal quasi-judicial decision where none would otherwise exist. See Massey v. City. Council of City of Des Moines, 239 Iowa 527, 31 N.W.2d 875 (1948). And in general, "the remedy by certiorari is full and complete." Stubenraugh v. Nerfenesch, 54 Iowa 567, 7 N.W. 1, 2 (1880). Though in extraordinary circumstances, "when the certiorari action will not afford complete relief," injunctive or declaratory remedies may also be available. See Christenson, 718 N.W.2d at 297; Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180, 182 (Iowa 2005). These remedies are intended to preserve the status quo while certiorari review is pending, rather than serve as independent actions challenging the same quasi-judicial decision. See Christenson, 718 N.W.2d at 296. In effect, certiorari functions as the "exclusive remedy" for challenging the legality of a quasi-judicial or administrative decision taken by a county board. Sutton v. Dubuque City Council, 729 N.W.2d 796 (Iowa 2006).
Here, Claims Three and Four fail under Rule 12(b)(6) because certiorari was the exclusive remedy for Plaintiffs' challenge to Invenergy's C-WECS permit. "[T]he gist of" Plaintiffs' Complaint "is, and always has been," the Board's approval of Invenergy's C-WECS application on August 2, 2022, as made final by the approved minutes on August 9, 2022. Sergeant Bluff-Luton Sch. Dist. v. City Council of Sioux City, 605 N.W.2d 294, 298 (Iowa 2000). The prospective injunctive and declaratory relief sought related to the Wind Ordinance and Invenergy's C-WECS permit is duplicative of the relief sought under Claim One. Plaintiffs' separately listed claims for injunctive or declaratory relief are futile because they are "dependent upon the legality of" Invenergy's C-WECS permit, which Plaintiffs neglected to timely challenge. Id.; see also Lewis, 703 N.W.2d at 186. There is no need to preserve the status quo because certiorari review is untimely. This is true even if Defendants acted arbitrarily by ignoring the C-WECS Moratorium at the time Invenergy's application was approved. The time to challenge the legality of Defendants' decision was thirty days after final approval of Invenergy's application, not after Defendants started negotiating agreements that are required for C-WECS permit holders. Because Plaintiffs cannot obtain relief in state court independent of certiorari, the Court determines Plaintiffs fail to state a claim upon which relief can be granted. See Sergeant Bluff-Luton, 605 N.W.2d at 297. In summary, Claims Three and Four fail to state plausible claims for relief under Rule 12(b)(6).
In conclusion, the Court dismisses Claim Two under Rule 12(b)(6) because Plaintiffs are deprived of prudential standing. Because the Court had subject-matter jurisdiction at the time of removal, the Court exercises its discretion to retain supplemental jurisdiction over Plaintiffs' state claims. The Court further grants Intervenor and Defendants' Motions to Dismiss Claims One, Three, and Four for failure to state plausible claims for relief under Rule 12(b)(6). Unlike the arguments in Mathis, Plaintiffs' claims are time-barred and do not cross the threshold of plausibility. It does not escape the Court that this case involves obvious public interests and implicates all three branches of government: legislative, executive, and judicial. This is evidenced by the large crowd that attended the January 6, 2023, motion hearing before the Court. The Court is fully aware of the impact its decision will have on all parties involved and the public at large, but Plaintiffs' only remedy here was a timely filed writ of certiorari or bringing their concerns directly to their elected representatives.
C. Intervention
Finally, Plaintiffs filed a Motion for Reconsideration of the Court's Order granting SHW's Motion to Intervene, and reconsideration of Chief U.S. Magistrate Judge Adams' denial of Plaintiffs' Motion to Strike Intervenor's Resistance to Plaintiffs' TRO. Under Federal Rule of Civil Procedure 24(a), "the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Here, Intervenor owns the approved C-WECS permit that is central to the actions challenged in Plaintiffs' Complaint. Plaintiffs also seek to enjoin Defendants from entering into future agreements with Intervenor which, if granted without allowing intervention, would impede Intervenor's ability to protect its interests and investments in the wind project. Tactically, Defendants have also taken a different approach to the case and seek remand, which Intervenor resists. Therefore, Intervenor has an interest in this case separate and independent of Defendants. Intervenor "has rebutted any presumption that [Defendants] will adequately represent its interests in this litigation." Mausolf v. Babbitt, 85 F.3d 1295, 1304 (8th Cir. 1996). Plaintiffs present no nonfrivolous grounds for the Court to reconsider intervention.
Plaintiffs also appeal Judge Adams' order granting leave for Intervenor to file a motion to dismiss. Under Federal Rule of Civil Procedure 72, a district court judge may only modify or set aside a magistrate judge's order on a nondispositive matter if it "is clearly erroneous or is contrary to law." The Court finds Plaintiffs' request moot and frivolous because Intervenor was properly allowed to intervene when the order granting leave was entered. An "intervenor is entitled to litigate fully on the merits once intervention has been granted. The intervenor may move to dismiss the proceeding." Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1920 (3d ed. 1998). Merely because Plaintiffs disagree with the Court's decision granting intervention does not mean Intervenor should be prohibited from litigating the case. Thus, Plaintiffs' Motion for Reconsideration (ECF No. 25) and Appeal of Magistrate Judge Decision (ECF No. 53) are denied.
III. CONCLUSION
For the reasons stated above, Plaintiffs and Defendant Holmes's Motions to Remand, ECF Nos. 33 and 40, are DENIED. Plaintiffs' Motion for TRO (ECF No. 5) and Partial Motion for Summary Judgement (ECF No. 56) are also DENIED as moot. Further, Plaintiffs' Motion for Reconsideration (ECF No. 25) and Appeal of Magistrate Judge's Order (ECF No. 53) are DENIED. Finally, Intervenor and Defendants' Motions to Dismiss for failure to state a claim under Rule 12(b)(6), ECF Nos. 12 and 54, are GRANTED.
IT IS SO ORDERED.