The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the following motions filed by Defendants: Motion to Dismiss Complaint (Doc. # 17); Ex Parte Application for Request for Judicial Notice (Doc. # 45); and Ex Parte Application Requesting Judicial Notice of Supplemental Authorities (Doc. # 50).
This action concerns tribal regulation of non-Indian fee simple land located within the boundaries of the reservation of the Rincon Band of Luiseno Mission Indians. Defendants are tribal officials sued in their individual and official capacities. (Compl. ¶¶ 4-5, Doc. # 1).
On October 20, 2009, Plaintiff Rincon Mushroom Company of America ("RMCA") initiated this action by filing the Complaint. (Doc. # 1).
A. Allegations of the Complaint
In 1982, Plaintiff, a non-Indian corporation, purchased from a non-Indian five acres of land within the exterior boundary of the Rincon Tribal Reservation. Id. ¶ 9. In 1960, the property was "allotted and conveyed out of Tribal ownership," and since that time, "the property continuously has been, and now remains, non-Indian fee land." Id. (quotation omitted). Plaintiff owned the land in fee simple until 1999, when it sold the land to Marvin Donius, also a non-Indian. Id. ¶ 11. Plaintiff "receiv[ed] as partial consideration... a promissory note in a substantial amount, together with a 'carry-back' deed of trust." Id. Donius and Plaintiff used the land as a "non-tribal mixed use commercial facility," leasing parts of the land to various other businesses and residents, and grew mushrooms as well as other produce themselves. Id. at ¶ 13. "The property is located in an 'open' part of the Rincon Reservation, across a major San Diego County highway... from the Rincon Tribe's public casino." Id. ¶ 10.
On March 15, 1960, the Rincon Tribe enacted Articles of Association, which state that the "Rincon Tribal Business Committee... shall have jurisdiction over the lands within the boundaries of the Rincon Reservation." Id. ¶ 19. "In... April 2007,... the Rincon Tribe enacted a Tribal Environmental Policy Ordinance that... purportedly placed under the governmental jurisdiction of the Tribe the subject parcel, on the asserted basis that the Tribe's regulatory authority extended to and included all land within the exterior boundaries of the Rincon Reservation." Id. ¶ 20 (quotations omitted). "[T]he Rincon Tribe enacted an Environmental Enforcement Code that as revised on or about July 10, 2007 purported to extend tribal environmental regulatory authority over and as to [the] subject property, on the basis of the Tribe's claim of such authority over all lands within the exterior boundaries of the Rincon Indian Reservation." Id. ¶ 21 (quotations omitted). "On... September 30, 2008, these defendants caused the Rincon Tribe to enact a Tribal Court Jurisdiction Ordinance that purported to claim regulatory as well as in personam and subject matter adjudicative jurisdiction over non-tribal member plaintiff, non-tribal member Donius, and as to subject non-tribal fee property,... and also purports to extend the Tribe's Territorial Jurisdiction over any fee lands within the external boundaries of the Rincon Reservation...." Id. ¶ 22 (quotations omitted).
The first count of the Complaint seeks a judicial declaration that "any prospective or future actual or attempted enforcement by these defendants of" the above-referenced Articles of Association, Tribal Environmental Policy Ordinance, Environmental Enforcement Code, and Tribal Court Jurisdiction Ordinance is "facially unconstitutional, unconstitutional as applied, and/or illegal, and/or entirely unenforceable, pursuant to applicable provisions of federal and California law, both with respect to plaintiff as well as concerning subject property." Id. ¶ 23(a). "[P]laintiff contends that this Court should find, declare and adjudge that neither the Rincon Tribe nor the above-named Tribal defendants presently have, nor in the future could as a matter of law have, any regulatory or adjudicative authority of any nature whatever over or as to plaintiff and/or over or as to subject property...." Id. ¶ 23(d).
The second count of the Complaint seeks the issuance of "a mandatory injunction requiring and ordering that the above-named Tribal defendants desist and refrain from any further actual or attempted enforcement, prospectively and in the future, of any and all purported Rincon Tribe regulatory or adjudicative authority over or as to plaintiff and/or over or as to subject property." Id. ¶ 29.
"[A]t least four years ago, and continuing to the present date, the Rincon Tribe... and from time to time the Tribal defendants... have devised, and have attempted to implement and effectuate, a plan... to acquire... 'on the cheap' [Plaintiff's] five-acre parcel." Id. ¶ 14. The plan "has included various efforts by these defendants to diminish and depreciate the value of [the] subject property." Id. ¶ 15. In December 2005 and January 2006, "defendants embarked upon successful efforts to 'chill' and ultimately kill a proposed purchase of subject property by FF Realty, LLC--a purchase which would have been consummated but for defendants' action." Id. ¶ 46. Following an October 2007 wildfire which damaged the subject property along with other properties on the reservation, "defendants, in an effort to persuade [San Diego Gas & Electric] not to re-energize the property..., falsely represented that there was no 'easement for electrical service' on the property, such easement being required to allow re-energization." Id. ¶ 49(b). On December 29, 2007, "defendants attempted to prevent a 'cleanup' of those portions of the five-acre parcel destroyed by the [October 2007] fire... by ordering employees and representatives of... a contractor for the County of San Diego to cease work and leave the property." Id. ¶ 49(c). By letter dated January 14, 2008, Defendants "falsely represented" to the California Highway Patrol, the AAA Auto Club of Southern California, and a firm known as "Automotive Specialists," that "land use [of the subject property] is under the jurisdiction of the Rincon Band, and that such purported jurisdiction was exclusive," and that Donius was "operating as an unauthorized business and may violate federal and tribal law." Id. ¶ 49(d)-(f). Defendants made similar "misrepresentations" other times during 2008 in letters to other entities, including the United States Environmental Protection Agency and San Diego Gas & Electric. Id. ¶ 49(g); see generally id. ¶ 49. Defendant's actions have prevented Donius from using the property and Donius has therefore stopped paying Plaintiff money it is owed from the sale of the land. Id. at ¶ 34.
The Complaint alleges ten counts seeking monetary relief: (1) intentional interference with contract; (2) intentional interference with advantageous economic relationship; (3) conspiracy to intentionally interfere with contract; (4) conspiracy to intentionally interfere with advantageous economic relationship; (5) conspiracy to deprive plaintiff of equal protection and equal privileges and immunities under 42 U.S.C. § 1985(3); (6) civil RICO; (7) civil RICO conspiracy; (8) negligent interference with contract; (9) negligent interference with advantageous economic relationship; and (10) violation of 42 U.S.C. § 1983.
On December 11, 2009, Defendants filed the Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(7). (Doc. # 17). On March 25, 2010, the Court heard oral argument on the motion. (Doc. # 31). On December 11, 2009, January 28, 2010, April 7, 2010, September 1, 2010 and September 3, 2010, Defendants filed evidence in support of the Motion to Dismiss. (Doc. # 17, 28, 33-34, 45-50, 52). On January 11, 2010, March 31, 2010 and September 14, 2010, Plaintiff filed evidence in opposition to the Motion to Dismiss. (Doc. # 21, 25, 32, 53).
On April 9, 2010, the Court issued an Order which stated:
On March 25, 2010, at oral argument on Defendants' Motion to Dismiss, both parties asserted that Donius assigned his right to sue to RCMA. However, as Plaintiff conceded, nothing in the record before this Court establishes that Donius assigned this right to RCMA. On the record before this Court it is not clear that Plaintiff has standing to pursue its claims on behalf of Donius. If the plaintiff before a federal court lacks standing to pursue its claims, the court lacks jurisdiction to proceed. A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject ...