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Kawaiisu Tribe of Tejon and David Laughing Horse Robinson v. Ken Salazar

February 4, 2011

KAWAIISU TRIBE OF TEJON AND DAVID LAUGHING HORSE ROBINSON, CHAIRMAN, KAWAIISU TRIBE OF TEJON,
PLAINTIFFS,
v.
KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SMS ORDER RE DEFENDANTS‟ MOTIONS TO DISMISS (DOCS. 81, 83, 85, 100); AND PLAINTIFFS‟ REQUEST FOR LEAVE TO AMEND COMPLAINT (DOC. 100) AND FOR CERTIFICATION OF THE CEQA ADMINISTRATIVE RECORD (DOC. 105)

I.INTRODUCTION

Plaintiffs, the Kawaiisu Tribe of Tejon ("Kawaiisu"), a non-federally recognized Indian group, and David Laughing Horse Robinson ("Robinson"), who claims to be the Kawaiisu Chairman, (collectively, "Plaintiffs"), challenge Kern County‟s authorization of a large construction project ("Project") on private property by Tejon Mountain Village LLC ("Tejon"). First Amended Complaint ("FAC"), Doc. 71. The FAC alleges that "the historical Tejon/Sebastian Indian Reservation" existed, at least at one time, on portions of the subject property. FAC at ¶¶ 12-22, 65. Plaintiffs allege that "[w]ithin the proposed project development area, there are over 50 pre-historic village sites,numerous graves, and other sacred sites directly related to the Tribe." FAC at ¶ 30. The FAC also alleges that the Department of the Interior ("DOI" or "Federal Defendant") has failed to "engage the Tribe and protect its interests pursuant to treaties, Executive Orders, and other Acts of Congress." FAC at ¶ 1.

The first claim for relief in the FAC alleges that DOI violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, et seq. , by unreasonably delaying action on the Kawaiisu‟s federal recognition petition before the Bureau of Indian Affairs ("BIA"), a branch of DOI. FAC at ¶¶ 23-27, 42-48.

The third claim for relief names only Kern County, and alleges that approval of the Project violates the California Environmental Quality Act ("CEQA"), as well as the federal Native American Graves Protection and Repatriation Act ("NAGPRA"), the National Historic Preservation Act ("NHPA"), and the Archaeological Resource Protection Act ("ARPA"). FAC at ¶¶ 53-60. Tejon, the developer of the Project, is named as the real party in interest.

The second claim alleges that DOI has violated both the APA and the Equal Protection Clause of the Fourteenth Amendment*fn1 to the United States Constitution because "every other tribal signatory" to an 1849 Treaty with Utah "has received some sort of recognition," with the exception of the Kawaiisu. This is alleged to be "arbitrary, capricious, and otherwise contrary to law," in violation of the APA.

The fourth claim, brought under 42 U.S.C. § 1983 against only the California Native American Heritage Commission ("NAHC"), which allegedly plays a role in listing individuals as "Most Likely Descendants" of California Native American Tribes, alleges that NAHC violated Plaintiff Robinson‟s civil rights by not including him on the list of Native American Contacts for Kern County, despite being "almost identically situated to the other 11 groups listed." See FAC at ¶ 61-63. NAHC allegedly had neither Plaintiff on its list of Native American Contacts. As a result, the FAC alleges that neither was contacted by Kern County for consultation on the Project‟s potential impacts to sacred, archeological, and historical sites. FAC at ¶ 32.

II.STANDARDS OF DECISION

A.Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Fed. R. Civ. Pro. 12(b)(1).

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of jurisdiction over the subject matter." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court‟s subject matter jurisdiction. Thompson v. McCombe , 99 F.3d 352, 353 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp. , 655 F.2d 968, 968-969 (9th Cir. 1981).

A challenge to subject matter jurisdiction may be facial or factual. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). A s explained in Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1038 (9th Cir. 2004):

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.

In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003); McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988). "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan , 719 F. Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir. 1992). "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id .

The standards used to resolve motions to dismiss under Rule 12(b)(6) are relevant to disposition of a facial attack under 12(b)(1). See Cassirer v. Kingdom of Spain , 580 F.3d 1048, 1052 n.2 (9th Cir. 2009), rev'd on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Ashcroft v. Iqbal , 129 S. Ct. 1937 (2009) to a motion to dismiss for lack of subject matter jurisdiction).

B.Motion to Dismiss for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6).

To survive a Rule 12(b)(6) motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Iqbal , 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A complaint does not need detailed factual allegations, but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555.

In deciding a motion to dismiss, the court should assume the veracity of "well-pleaded factual allegations," but is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 127 S. Ct. at 1950. "Labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555. ""Naked assertion [s]‟ devoid of "further factual enhancement‟" are also insufficient. Iqbal , 127 S. Ct. at 1949 (quoting Twombly , 550 U.S. at 557). Instead, the complaint must contain enough facts to state a claim to relief that is "plausible on its face." Twombly , 550 U.S. at 570.

A claim has facial plausibility when the complaint‟s factual content allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Iqbal , 127 S. Ct. at 1949. "The plausibility standard is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (quoting Twombly , 550 U.S. at 556). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is very remote and unlikely.‟" Twombly , 550 U.S. at 556 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)).

The Ninth Circuit summarizes the governing standard as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv ., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).

If a district court considers evidence outside the pleadings, a Rule 12(b)(6) motion to dismiss must be converted to a Rule 56 motion for summary judgment, and the nonmoving party must be given an opportunity to respond. United States v. Ritchie , 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id . at 908.

III.DISCUSSION

A.Claims Against Federal Defendant.

1. Federal Defendant‟s Motion to Dismiss.

On September 3, 2010, Federal Defendant moved to dismiss both of the claims against DOI. As to the first claim alleging DOI‟s handling of Plaintiffs‟ recognition petition violated the APA, DOI argues that in 2006, the then-Chairman of the Kern Valley Indian Community, the name under which Plaintiffs allege they filed their initial recognition petition in 1979, wrote DOI requesting that the group‟s petition for recognition be withdrawn. DOI argues Plaintiffs‟ abandonment of the administrative process amounts to a failure to exhaust. In addition, DOI argues that the six-year statute of limitations applicable to civil actions against the United States, 28 U.S.C. § 2401(a), bars both Plaintiffs‟ APA and Equal Protection Claim. Doc. 81-1.

2. Plaintiffs‟ Request for Leave to Voluntarily Dismiss Claims Against Federal Defendant Without Prejudice.

On December 2, 2010, Plaintiffs filed a request for leave to voluntarily dismiss without prejudice their "two stated claims for relief" against DOI. As a threshold matter, while Plaintiff‟s request seeks dismissal of both claims against DOI, the final paragraph of their request specifies that they seek dismissal of only paragraphs 43-46; 50-52; and 69-70. This inexplicably fails to reference the final two paragraphs (47 and 48) of the first claim or four paragraphs of the prayer for relief against DOI (paragraphs 71 - 74):

47. Most recently, these injuries have manifested themselves from Interior‟s failure to step in and protect one of their most vital resources: the sacred places and burial grounds of their ancestors. Despite all parties clearly being within the zones of interest that NAGPRA, NHPA, and ARPA were designed to regulate and protect, Interior‟s insouciance has created a scenario where Kern County and TMV can deny accountability with no explanation needed other than to remind the Tribe that their name doesn‟t appear on the list.

48. Interior‟s lack of engagement with the Tribe has been arbitrary, capricious, and otherwise contrary to the law. 5 U.S.C. §706(2)(a). Without immediate action, there will certainly be irreparable injury to the Tribe in a manner that no monetary award could later compensate. For these reasons, the Tribe is entitled to relief prayed for below.

***

71. Order Interior to remove jurisdiction from the Native American Heritage Commission to determine California Most Likely Descendants and return that jurisdiction to the National Park Service. Require that Interior work with the National Park Service to establish and incorporate a policy requiring all California Native American Consultants, Monitors and Most Likely Descendants working on California projects to present a California Certified Degree of Indian Blood (CDIB) certificate from Interior.

72. Order Interior to restore the Tejon/Sebastian Indian Reservation School Building and land as Trust property of the Kawaiisu Tribe of Tejon pursuant to Public Law 85-31, May 16, 1957, S.998, 71 Stat 29.

73. Order Interior to restore to Trust status the Kawaiisu allotments that were sold without approval.

74. Order Interior to provide an accounting of accrued revenues from resources extracted from the Tejon/Sebastian Indian Reservation (oil, minerals, water, agricultural, leases).

Plaintiffs wish to dismiss the substantive claims against DOI, while retaining the right to obtain relief against Federal Defendant. Plaintiffs cannot have it both ways. Without a viable claim premised on a waiver of sovereign immunity, a court cannot enter judgment against an agency of the United States.

Plaintiffs‟ request for dismissal of the claims against Federal Defendant is governed by Federal Rule of Civil Procedure

41.*fn2 The parties engage in a lengthy debate over whether dismissal should be with or without prejudice, without referring to the relevant ...


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