The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on motions to dismiss plaintiffs' first amended complaint by 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"), and United States Department of Agriculture ("USDA") (collectively, "the agency defendants") and District Ranger for the Shasta-Trinity National Recreation Area, Kristy Cottini, and Forest Supervisor for Shasta-Trinity National Forest, J. Sharon Heywood (collectively, "the individual defendants"). Defendants move to dismiss 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 filed their initial complaint on April 19, 2009, asserting various tort claims under the Federal Tort Claims Act ("FTCA") against the agency defendants and against Secretary of the Interior Kenneth Salazar and Secretary of Agriculture Tom Vilsack. (Compl. ¶¶ 2, 43-93.) Plaintiffs also asserted a claim for mandamus and injunctive relief pursuant to 28 U.S.C. § 1361, requesting an order directing the defendants to investigate and report on damage allegedly caused to sites of cultural importance to the Winnemem Wintu Tribe (the "Winnemem") along the McCloud River. (Id. ¶¶ 97-98, 101.) Finally, plaintiffs sought a declaratory judgment pursuant to 28 U.S.C. §§ 2201-02 that various actions by the defendants constituted violations of federal, state, and common law. (Id. ¶¶ 94-95.)
On June 29, 2009, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The court issued a Memorandum and Order on September 14, 2009, granting in part and denying in part the defendants' motion (the "Order").
In an amended complaint, filed October 14, 2009, plaintiffs reorganized their allegations to assert claims against the agency defendants pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., for alleged violations of various federal statutes and the United States Constitution. (Amend. Compl. ¶¶ 75-146.) Plaintiffs also bring a claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against defendants Cottini and Heywood in their individual capacities, seeking monetary damages for alleged violations of plaintiffs' First Amendment and Fifth Amendment rights. (Id. ¶¶ 147-53.)
Plaintiffs allege that the Winnemem are 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. ¶¶ 43, 47.) However, the Winnemem are not a federally recognized Indian tribe. (Id. ¶ 51.) Plaintiffs allege that the U.S. government made an error in 1978 that resulted in the Winnemem's exclusion from the list of Indian tribes eligible to receive federal benefits. (Id.) Plaintiffs allege that the Federal Court of Claims had previously recognized the Winnemem's federal status in 1928, 1954, and 1968. (Id. ¶ 42, 45). Plaintiffs also point to federal permits allegedly issued to Caleen Sisk-Franco and the Winnemem to possess eagle feathers and parts as further evidence of previous federal tribal recognition. (Id. ¶¶ 47-48.)
In their amended complaint, plaintiffs seek declaratory and injunctive relief for alleged harm resulting from defendants' failure to acknowledge the Winnemem as a federally recognized Indian tribe and for alleged harm to various areas that the Winnemem use as cultural and religious sites. (Amend. Compl. ¶¶ 154-68.)
Plaintiffs allege that the USFS engaged in various actions causing damage to the Nosoni Creek area, a site of cultural importance to the Winnemem, without regard to plaintiffs' protests and in violation of a previous project agreement between the Winnemem and the USFS. (Id. ¶¶ 53-55.) Specifically, plaintiffs allege that in 2001, the USFS cut down three ancient "grandfather" grapevines that the Winnemem had used for medicinal purposes for more than 100 years. (Id. ¶ 53.) Plaintiffs further allege that the USFS dumped dirt on a "sacred site" without archeological monitoring or guidance and rendered inaccessible an area for ceremonial storytelling by bulldozing and filling in a vegetated area. (Id. ¶¶ 54-55.) In addition, plaintiffs allege that the USFS allowed unmonitored construction and industrial activities that "create biological hazards and disturb natural ecosystems" at the site. (Id. ¶ 77.) Finally, plaintiffs allege that the USFS blocked access to the site for religious and ceremonial activities. (Id.)
Plaintiffs assert that these actions violate several federal statutes: the Archaeological Resource Protection Act ("ARPA"), 16 U.S.C. §§ 470ee; the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f; the American Indian Religious Freedom Act ("AIRFA"), 42 U.S.C. § 1996; and the Religious Freedom and Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1(b) (Id. ¶¶ 79, 131.)
In the Dekkas area, plaintiffs allege that in 2005 the USFS ignored an agreement with the Winnemem and cut substantial quantities of old-growth manzanita trees that for centuries had been the only source of wood used for religious and cultural celebrations. (Id. ¶ 61.) Plaintiffs allege that the cutting took place in violation of an agreement that an archaeologist and tribal representatives be present. (Id. ¶ 62.)
Plaintiffs further allege that in 2006, the USFS facilitated entry by campers, hikers, and others into the Dekkas site by removing a lock from a gate. (Id. ¶ 60.) Plaintiffs allege that also in 2006, the USFS ordered the Winnemem to remove all their items from the Dekkas site, including rocks of historical and cultural significance to the Winnemem. (Id. ¶ 63.)
Finally, plaintiffs allege that in 2007, the USFS and/or defendant Cottini forbade plaintiffs from using "Cultural Property" at Dekkas, including "an ancient fire pit with rocks that have been used by the Winnemem for hundreds of years," by improperly revoking a special use permit and refusing to issue new permits without cause (Id. ¶ 59.) Plaintiffs claim that defendants' actions in connection with the Dekkas area interfered with plaintiffs' use and enjoyment of a site that has religious significance for the Winnemem. (Id. ¶¶ 59-63.)
Plaintiffs assert that defendants' actions in connection with the Dekkas area violate the ARPA, NHPA, AIRFA, RFRA, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321. (Id. ¶¶ 83, 131.)
Plaintiffs allege that the USFS allowed campers, hikers, and hunters to intrude into the Coonrod Cultural Site, an area of ceremonial importance to the Winnemem. (Id. ¶ 64.) Plaintiffs further allege that the USFS failed to prevent cattle from trampling over a fire pit of religious significance to the Winnemem, despite a 2005 request by the Winnemem that the USFS replace or rebuild a fence around the site. (Id.) In addition, plaintiffs allege that defendants permitted recreational vehicles to drive into the site. (Id. ¶ 89.) Plaintiffs also allege that defendants refused to take steps to preserve cultural artifacts and that defendants arbitrarily denied requests to expand the boundaries of the Coonrod site to encompass newly discovered cultural resources. (Id.)
Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, AIRFA, and RFRA. (Id. ¶¶ 89, 131.)
Plaintiffs allege that the USFS violated an agreement regarding Gilman Road by causing medicinal plants to be cut and sprayed with herbicides. (Id. ¶ 65.) Plaintiffs further allege that the USFS failed to disclose to the Winnemem projects that damaged cultural and religious sites or to take all possible steps to mitigate the damage. (Id. ¶ 95.)
Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, and NEPA. (Id.)
E. Buck Saddle Prayer Site
Plaintiffs allege that the USFS built a recreational bike trail through the Buck Saddle Prayer Site without disclosing the project in advance or taking sufficient measures to protect the site. (Id. ¶ 101.) Defendants further allege that the USFS breached a Memorandum of Understanding by reorienting rocks, (Id. ¶ 66), and that the USFS converted a prayer rock sacred to the Winnemem into a ramp for dirt bikes. (Id. ¶ 101.) In addition, plaintiffs assert that defendants have "enabl[ed] ongoing degradation" of ecosystems, natural resources, and archaeological sites, and permitted general access to the area without taking sufficient measures to protect artifacts. (Id. ¶ 101.)
Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, NEPA, AIRFA, and RFRA. (Id. ¶¶ 101, 131.)
Plaintiffs allege that the USFS allowed damage to Panther Meadow to occur by permitting visitors to scatter human cremation remains and to otherwise damage a site of religious and cultural importance to the Winnemem and by failing to close Panther Meadow or to regulate public access as necessary to prevent damage to the site's resources. (Id. ¶ 67, 107.)
Plaintiffs assert that the these alleged actions and omissions violate the ARPA, NHPA, and NEPA. (Id. ¶ 107.)
G. Shasta Reservoir Indian Cemetery
Plaintiffs allege that defendants permitted damage to occur to the Shasta Reservoir Indian Cemetery and interfered with plaintiffs' use of the cemetery, including the right to use the cemetery for burials. (Id. ¶ 113.) Plaintiffs further allege that the DOI, BLM, and BOR have not responded to Freedom of Information Act requests for the title and deed and trust documents for the cemetery. (Id. ¶ 69.)
Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, and NEPA. (Id. ¶ 113.)
H. Rocky Ridge Village Site
Plaintiffs allege that defendants have permitted campers to park recreational vehicles at the Rocky Ridge Village Site in ceremonial areas that the Winnemem use for religious worship. (Id. ¶ 119.) Plaintiffs further allege that the USFS intends to permit the construction of a parking lot on a village and burial site, despite objections by the Winnemem, (Id. ¶ 71.), and that defendants have failed to engage in pre-project consultation in connection with the planned parking lot. (Id. ¶¶ 119-20.)
Plaintiffs assert that these alleged actions and omissions violate the NHPA, NEPA, and the Native American Grave Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §§ 3002, 3013 (Id. ¶¶ 119, 121.)
Finally, plaintiffs allege that defendants are evaluating proposals to raise the level of Shasta Dam, and assert that this project would cause the innundation and destruction of numerous burial, cultural, and religious sites of the Winnemem. (Id. ¶¶ 72, 125.) Plaintiffs allege that defendants have failed to consult with the Winnemem or "to consider, assess and mitigate potential project impacts." (Id. ¶¶ 125-26.)
Plaintiffs assert that these alleged actions and omissions violate the NHPA, NEPA, and NAGPRA. (Id. ¶ 125.)
A. Lack Of Subject Matter Jurisdiction
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Lack of subject matter jurisdiction may be asserted by either party or by a court, sua sponte, at any time during the course of an action. Fed. R. Civ. P. 12(h)(2)-(3). 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, where the defendant refers to matters outside the complaint to challenge the 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, a 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
Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
On a motion to dismiss, the factual 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). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
Nevertheless, 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). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, 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 Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
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). Rule 201 permits a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute" because the fact is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court can take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).
Ultimately, the court may not dismiss a complaint in which the plaintiff has 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. 554, 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. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
The agency defendants move to dismiss plaintiffs' first through twelfth claims on the grounds that: (1) the court does not have subject matter jurisdiction to hear plaintiffs' complaint; (2) plaintiffs lack Article III standing; and (3) plaintiffs fail to state a claim upon which relief can be granted. (Defs.' Mem. Supp. Mot. Dismiss Amend. Compl. ("Agency Defs.' Mem."), filed Dec. 11, 2009, at 1-2.) Defendants Cottini and Heywood move to dismiss plaintiffs' thirteenth claim for failure to state a claim upon which relief can be granted. (Cottini and Heywood's Mem. Supp. Mot. Dismiss Amend. Compl. ("Individual Defs.' Mem."), filed Mar. 26, 2010, at 1-2.)
A. Non-justiciable Political Question
Plaintiffs' eleventh and twelfth claims allege that defendants violate the Due Process Clause of the Fifth Amendment by refusing to acknowledge the Winnemem as a previously federally recognized Indian tribe. (Amend. Compl. ¶¶ 135-46.) Plaintiffs assert that the Winnemem were once a federally recognized tribe but no longer receive such acknowledgment as a result of a bureaucratic error. (Id. ¶¶ 42, 49-51.) Plaintiffs argue that once "the government has treated the Winnemem as federally recognized for some purposes, . . . that status must exist for all purposes." (Id. ¶ 47.) Plaintiffs claim that defendants' refusal to acknowledge the Winnemem as a previously-recognized tribe deprives plaintiffs of substantive rights, protections, and assistance that flow from federal recognition status, in violation of the Due Process Clause of the Fifth Amendment. (Id. ¶ 137.) In addition, plaintiffs allege that other, similarly- situated Indian tribes received federal acknowledgment outside the regular administrative recognition process, and that defendants' refusal to provide such treatment for the Winnemem denies plaintiffs equal protection of the laws, in violation of the Due Process Clause of the Fifth Amendment. (Id. ¶ 141-44.) In their prayer for relief, plaintiffs, inter alia, seek a declaration that the Winnemem have been federally recognized as a tribe and that Congress never terminated that status. (Id. ¶ 161.)
Defendants argue that federal recognition of Indian tribe status is a non-justiciable political question and thus, that the court is precluded from adjudicating the issue of whether or not the Winnemem are entitled to federal acknowledgment.*fn2 (Agency Defs.' Mem. at 5-6.)
"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). The Supreme Court has articulated criteria for determining when a case involves a non-justiciable political question. Baker v. Carr, 369 U.S. 186 (1962). Specifically, the Court has explained that "[p]rominent on the surface of any case held to involve a political question" may be found "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Id. at 217.
Article I of the U.S. Constitution provides that Congress shall have the power "[t]o regulate Commerce . . . with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. The Supreme Court has explained that "in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts." United States v. Sandoval, 231 U.S. 28, 46 (1913); see also United States v. Holliday, 70 U.S. 407, 419 (1865) (stating that in regard to the recognition of Indian tribes, "it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs"). Consequently, "'the action of the federal government in recognizing or failing to recognize a tribe has traditionally been held to be a political one not subject to judicial review.'" Miami Nation of Indians of Ind. v. U.S. Dep't of Interior, 255 F.3d 342, 347 (7th Cir. 2001)(quoting William C. Canby, Jr., American Indian Law in a Nutshell 5 (3d ed. 1998)).
In this case, the gravamen of plaintiffs' due process and equal protection claims is that defendants' failure to grant them federal acknowledgment as a previously recognized tribe violates the Constitution. However, the determination of whether the Winnemem are entitled to such acknowledgment is a non-justiciable political question and thus beyond the purview of the court. While plaintiffs disingenuously contend that they do not seek federal recognition through this litigation, (See Compl. ¶ 161), their constitutional claims necessarily require the court to inject itself in processes expressly left to the province of Congress. Accordingly, defendants' motion to dismiss plaintiffs' eleventh and twelfth claims is GRANTED without leave to amend.*fn3