The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants' motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The Winnemem Wintu Tribe, Caleen Sisk Franco, and Mark Franco ("plaintiffs") oppose defendants' motion. For the reasons set forth below,*fn1 defendants' motion is GRANTED in part and DENIED in part.
Plaintiffs instituted this action seeking tort damages as well as declaratory and injunctive relief for alleged harm to various areas that the Winnemem Wintu Tribe (the "Winnemem") use as cultural and religious sites. (Compl., filed Apr. 19, 2009, ¶¶ 100-04.) Plaintiffs allege that the Winnemem is a California Native Tribe recognized by the California Native American Heritage Commission and identify Caleen Sisk-Franco as the current tribal leader of the Winnemem. (Id. ¶¶ 19, 21.) Mark Franco is allegedly a member of the Winnemem. (Id. ¶ 1.) The complaint names as defendants the United States Department of the Interior ("DOI"); Bureau of Reclamation ("BOR"); Bureau of Indian Affairs ("BIA"); Bureau of Land Management ("BLM"); United States Forest Service ("USFS"); United States Department of Agriculture ("USDA"); the current Secretary of the Interior Kenneth Salazar; and the current Secretary of Agriculture Tom Vilsack.
The Winnemem is not a federally recognized Indian tribe. (Id. ¶ 19.) Plaintiffs allege that the U.S. government, through the BIA, made an error that resulted in the Winnemem's exclusion from the list of Indian tribes eligible to receive federal benefits. (Id.)
Plaintiffs identify several USFS activities in five areas as the bases for their action. First, in the Nosoni Creek area, plaintiffs allege that in 2001 the USFS damaged an area of cultural value to the Winnemem without regard to plaintiffs' protests and in violation of an alleged prior project agreement between the Winnemem and the USFS. (Id. ¶¶ 27-29.) Specifically, plaintiffs allege the USFS cut down three ancient "grandfather" grapevines that the Winnemem had used for medicinal purposes, dumped dirt on a "sacred site" without the guidance of any archeological monitoring or guidance, and rendered inaccessible an area for ceremonial storytelling by bulldozing and filling in a vegetated area. (Id.) Plaintiffs claim that these actions were in violation of Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f. (Id.)
Second, in the Dekkas area, plaintiffs allege that in 2005 the USFS ignored an agreement with the Winnemem by cutting substantial quantities of old-growth manzanita trees that had been the only source of wood used for a centuries-old religious and cultural celebration. (Id. ¶ 32-33.) Plaintiffs allege that, in 2006, the USFS facilitated entry of other people to the area by removing a lock from a gate. (Id. ¶ 31.) Plaintiffs also allege that the USFS ordered the Winnemem to remove their items from the area in 2006. (Id. ¶ 34.) Defendants' activities at Dekkas, plaintiffs claim, interfered with plaintiffs' use and enjoyment of an area with religious significance to the Winnemem. (Id. ¶¶ 30-34.)
Third, plaintiffs allege that the USFS failed to respond to plaintiffs' request to protect the Coonrod area, a Winnemem cultural site. (Id. ¶ 35.) Fourth, plaintiffs allege that the USFS violated another agreement with the Winnemem by causing the loss of culturally important medicinal plants in the Gilman Road area. (Id. ¶ 36.) Finally, in the Buck Saddle area, plaintiffs allege that the USFS breached a Memorandum of Understanding and failed to include the Winnemem when conducting activities that were "acts of deliberate desecration" in an area of religious significance to the Winnemem. (Id. ¶ 37.)
In addition to past activities, plaintiffs also complain of future and threatened harms. (Id. ¶ 39.) Plaintiffs allege that the USFS intends to build a parking lot over a village and burial site at the Rocky Ridge area. (Id.) Plaintiffs also allege that defendants will raise the level of Shasta Dam. (Id. ¶ 40.) Plaintiffs claim that the raised level will cause irreparable damage to a number of areas that are culturally and religiously significant to the Winnemem. (Id.) Defendants, however, challenge plaintiffs' assertions that the relevant agencies have already finalized these decisions. (Defs.' Reply Supp. Mot. Dismiss ("Defs.' Reply"), filed Aug. 14, 2009, at 8.) Defendants present evidence that the Shasta Dam project is still in the feasibility study phase and that there are currently no plans to build a parking lot in the Rocky Ridge area. (Defs.' Ex. C, ¶ 4; Defs.' Ex. E, ¶ 3.)
Plaintiffs assert various tort claims for damages to the areas named in the complaint, claiming that defendants breached duties owed to plaintiffs under federal law and state law. (Compl. ¶¶ 2, 43-93.) Plaintiffs also assert a claim for mandamus and injunctive relief pursuant to 28 U.S.C. § 1361, requesting an order that defendants investigate and report to plaintiffs the extent that defendants' activities and planned activities have damaged and will damage Winnemem cultural sites along the McCloud River. (Id. ¶¶ 97-98, 101.) Additionally, plaintiffs seek declaratory relief pursuant to 28 U.S.C. §§ 2201-02 that the defendants' actions constitute violations of federal, state, and common law. (Compl. ¶¶ 94-95.)
Defendants move to dismiss plaintiffs' claims on the grounds that: (1) plaintiffs lack Article III standing; (2) the court does not have subject matter jurisdiction to hear plaintiffs' complaint; and (3) plaintiffs fail to state a claim upon which relief can be granted. (Defs.' Mem. Supp. Mot. Dismiss ("Defs.' Mem."), filed June 29, 2009, at 1.)
A. Lack Of Subject Matter Jurisdiction
The Eleventh Amendment limits the subject matter jurisdiction of the federal courts. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53-54 (1996). Lack of subject matter jurisdiction may be asserted by either party or the court, sua sponte, at any time during the course of an action. Fed. R. Civ. P. 12(b)(1). Once challenged, the burden of establishing a federal court's jurisdiction rests on the party asserting the jurisdiction. See Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).
There are two forms of 12(b)(1) attacks on subject matter jurisdiction: facial and factual attacks. See Thornhill Publ'g Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In a facial attack, a court construes jurisdictional allegations liberally and considers uncontroverted factual allegations to be true. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994); Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981). However, in an action such as this, when the defendant refers to matters outside the complaint to challenge plaintiff's assertion of subject matter jurisdiction, the 12(b)(1) motion is a factual attack. See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the district court may review affidavits or evidence relating to the jurisdictional issue and need not presume the truthfulness of the plaintiff's allegations. Id. The burden then falls upon the party opposing the motion to present affidavits or other evidence to establish subject matter jurisdiction. Id.
B. Failure To State A Claim
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp.2d 1035, 1042 (C.D. Cal. 1998).
Ultimately, the court may not dismiss a complaint in which the plaintiff alleged enough facts to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. When there are well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.