The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
ORDER [Re: Motion at Docket No. 70]
I. MOTION PRESENTED At Docket No. 70 defendants United States of America, as Trustee for the Indians of the Mooretown Rancheria, aka Maidu Indians of California, and the Department of Interior [Bureau of Indian Affairs] ("Government") have moved to dismiss the complaint for lack of subject matter jurisdiction. Plaintiffs Dennis Robinson, Spencer Robinson, Jr., Ricke Robinson, Cynthia Robinson, and Vickie Robinson ("Robinson") have opposed the motion, and the Government has replied.
At Docket No. 73 Robinson has requested the court take judicial of various documents. This request is granted.*fn1
At Docket No. 81 Robinson has requested oral argument. The Court having determined that oral argument would not materially assist in deciding the motion before the court, the request for oral argument is DENIED. The motion is submitted on the moving and opposing papers.
II. BACKGROUND/PROCEDURAL HISTORY
Robinson, the holder of the dominant tenement, brings this suit against the Government seeking relief under various statutory and common law causes of action related to an easement across property held in trust by the United States for the Indians of the Mooretown Rancheria, also known as the Maidu Indians of California ("Tribe"). The factual background underlying the various causes of action alleged in the lawsuit is well known to the parties and is set forth in detail in the decision of the Ninth Circuit in Robinson v. United States.*fn2 In the interests of brevity, those facts are not repeated here except to the extent necessary to an understanding of this decision.
This lawsuit arises out of the construction of homes and a casino by the Tribe on land subject to the easement. Robinson alleges eight causes of action, asserting claims for disruption of lateral and subjacent support, negligence, and nuisance. Robinson alleges that as a result of the construction activities by the Tribe, an unshored slope caused subsidence and that a curb, concrete walkway, wrought iron fence, and fire hydrant encroach onto the easement. The First
Count seeks damages for the loss of lateral support; the Second Count seeks damages for loss of subjacent support; the Third Count seeks damages under a strict liability theory for loss of lateral support; the Fourth Count seeks damages under a negligence theory for loss of lateral and subjacent support; the Fifth Count sounds in nuisance and seeks abatement; the Sixth Count alleges a continuing nuisance and seeks injunctive relief; the Seventh Count also alleges a continuing nuisance and seeks injunctive relief; and the Eighth Count, incorporating all the prior allegations, seeks injunctive relief.
Robinson contends that the United States knowingly and intentionally approved, or has since supported, the Tribe's construction of the improvements and related activities that damaged and interfered with the easement. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1346(b), and 2671, et seq.
The Government moved to dismiss the complaint on the grounds that the action was brought under the Quiet Title Act ("QTA"), 28 U.S.C. § 2409a. The Government argued that the waiver of the Government's immunity under the QTA did not extend to trust or restricted Indian lands. This court agreed, granted the Government's motion and dismissed the lawsuit for lack of jurisdiction. Robinson appealed. The Ninth Circuit, holding that the QTA did not apply, vacated the dismissal and remanded the matter to determine whether jurisdiction lies under the Federal Torts Claim Act ("FTCA") [28 U.S.C. §§ 1346(b), 2671, et seq.].*fn3
The Government contends that subject matter jurisdiction is lacking in that: (1) the United States has not waived its sovereign immunity; (2) the Robinsons have not exhausted their administrative remedies under the FTCA; and (3) the Maidu Tribe is an indispensable party.*fn4
The complaint must contain a short, plain statement of the grounds for the court's jurisdiction.*fn5 The defenses that the court lacks subject matter jurisdiction and failure to join an indispensable party are brought by motion.*fn6
Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute, which may not be expanded by judicial decree.*fn7 Any order or judgment entered by a court lacking subject matter jurisdiction is a nullity and void.*fn8 It is presumed that a cause lies outside this limited jurisdiction,*fn9 and the burden of establishing jurisdiction rests upon the party asserting jurisdiction.*fn10 A federal court always has a duty to examine its own subject-matter jurisdiction,*fn11 and may raise the question sua sponte.*fn12 Subject matter jurisdiction cannot be waived, conferred by either the actions or consent of the parties, or conferred under the principles of estoppel.*fn13 "It is along-settled principle that [jurisdiction] cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record."*fn14
Sovereign immunity is an important limitation on the subject matter jurisdiction of federal courts. The United States may only be sued to the extent that it has waived its sovereign immunity.*fn15 In terms of its scope, a waiver of sovereign immunity is strictly construed in favor of the sovereign.*fn16 Sovereign immunity cannot be waived by implication, but must be unequivocally expressed.*fn17
Exhaustion of remedies, a part of sovereign immunity, is also jurisdictional.*fn18 An action may not be brought under the FTCA, "unless the claimant shall have first presented the claim to the appropriate Federal agency and the claim shall have been finally denied by the agency in writing and sent by certified or registered mail."*fn19
Where subject matter jurisdiction is lacking, the complaint must be dismissed.*fn20 A complaint should not, however, be dismissed for lack of subject matter jurisdiction without leave to amend unless the complaint cannot be amended to cure the jurisdictional defect.*fn21 Leave to amend need not be given, however, where the amendment would be futile.*fn22
Joinder of an indispensable party is a three-step process.*fn23 First, the court must determine whether the party sought to be joined is a "necessary" party.*fn24 Second the court must determine whether joinder is feasible.*fn25 Third, if a person who is required to be joined if feasible cannot be joined, the court must determine whether the action should proceed among the existing parties or should be dismissed.*fn26 In making this determination, the court considers four factors:
(1) prejudice to the absent person or the parties; (2) the extent to which the prejudice may be lessened or avoided; (3) adequacy of a judgment in the absence of the party; and (4) the adequacy of an ...