Young

MEMORANDUM *

Plaintiffs-appellants, students at the University of Montana who have paid out-of-state tuition but who claim that they would have qualified for in-state status, appeal the district court’s dismissal of their action for lack of standing. We hold that the students have alleged sufficient facts to maintain their standing, and thus their suit, at this stage. We therefore reverse.

1. Standing under Article III of the Constitution is an element of subject matter jurisdiction; consequently, a defense based on lack of Article III standing may be raised in a 12(b)(1) motion. See 15 Moore’s Federal Practice § 101.30[1] (3d ed. 1999). Generally, on a 12(b)(1) motion, unlike a 12(b)(6) motion, a court need not defer to a plaintiffs factual allegations regarding jurisdiction. But the Supreme Court has held that where a 12(b) motion to dismiss is based on lack of standing, the reviewing court must defer to the plaintiffs factual allegations, and must “presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992). (internal quotation marks…