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Caleen Sisk Franco, et al v. United States Department of the Interior

July 26, 2012

CALEEN SISK FRANCO, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



ORDER

Plaintiffs are members of a non-federally recognized Indian tribe that resides in the McCloud River Valley in Shasta County, California. In this action, they contend defendants 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, "defendants")*fn1 have failed to protect historic and cultural sites that are important to them. This matter is before the court on defendants' motion to dismiss plaintiffs' second amended complaint. The

Winnemem Wintu Tribe, Caleen Sisk Franco, and Mark Franco (collectively, "plaintiffs") oppose defendants' motion. The court heard argument on August 31, 2011. Assistant United States Attorney Erica Lynn Ernce appeared on behalf of the government defendants; Jayne Flemming, Reed Smith LLP, appeared on behalf of the plaintiffs. For the reasons set forth herein, defendants' motion is GRANTED in part and DENIED in part.

I. PROCEDURAL BACKGROUND

Plaintiffs filed their initial complaint on April 19, 2009, asserting equitable claims

under 28 U.S.C. §§ 1361, 2201-2202, violations of a litany of other statutes, a passing miscitation to the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. ("APA") as a jurisdictional basis for the action, and various claims under the Federal Tort Claims Act ("FTCA") against the defendants as well as Secretary of the Interior Kenneth Salazar and Secretary of Agriculture Tom Vilsack. (ECF 1.) On June 29, 2009, defendants moved to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(1) and Rule 12(b)(6). (ECF 8.) On September 12, 2009, the court dismissed the FTCA claims with prejudice for lack of subject matter jurisdiction and the claims against Salazar and Vilsack for failure to state a cognizable claim. (ECF 24.) In that order, the court found plaintiffs sufficiently alleged Article III standing as well as prudential standing under the APA. (Id.)

Plaintiffs then focused their pleadings around the APA for violations of various statutes and also asserted a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On December 11, 2009, defendants moved to dismiss the first amended complaint. (ECF 33.) On July 16, 2010, the court denied defendants' motion to dismiss on one claim but otherwise granted the motion, granting leave to amend on the majority of claims. (ECF 51.) In that order, the court cautioned plaintiffs that their claims "are replete with vague, conclusory allegations . . . [that] generally fail to set forth how the numerous statutes referenced have been violated or how defendants are responsible for the conduct or consequences at issue." (ECF 51 at 22 n.5.) The court allowed amendment so that these defects could be remedied.

Plaintiffs filed their second amended complaint (the "SAC") on August 20, 2010. (ECF 54.) In this complaint, plaintiffs assert claims against defendants under the APA for statutory violations of the Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa, et seq., National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and the National Environmental Policy Act, 42 U.S.C. §§ 4332 et seq. Plaintiffs also seek declaratory relief regarding their rights in the Shasta Reservoir Indian Cemetery. As explained below, plaintiffs claim the USFS has failed to protect several sites to which they attach religious and cultural significance as required by the statutes on which they rely.*fn2

On October 1, 2010, defendants moved to dismiss the SAC. (ECF 55.) On January 20, 2011, the case was reassigned to the undersigned. (ECF 68.) On July 7, 2011, prior to hearing, the court ordered further briefing on the standard of review applicable to a Rule 12(b)(1) motion attacking claims brought under the APA. (ECF 74.)

II. FACTUAL ALLEGATIONS

The Winnemem Wintu Tribe and its ancestors have lived in the Shasta Lake and

McCloud River area for six thousand years. (SAC ¶ 39.) Their historic and cultural sites, naturally, populate the region. Plaintiffs challenge defendants' failure to protect various sites around the McCloud River in Shasta County, California. In particular, for each site, plaintiffs claim that archaeological resources exist, and therefore the Archaeological Resources Protection Act ("ARPA"), 16 U.S.C. §§ 470aa, et seq., requires that the USFS either issue permits or prevent activities that harm those resources. For some sites, as discussed below, plaintiffs claim that the USFS is failing to protect historic properties from degradation in violation of the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470, et seq. Also for some sites, they claim that the USFS failed to develop environmental protection plans in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4332, et seq. Plaintiffs challenge USFS actions and inaction based on the APA, which allows interested parties to challenge federal agency activity. 5 U.S.C. § 702.

A. Nosoni Creek (Claim 1)

Prior to the 1980s, the Winnemem Wintu ("Winnemem" or "Tribe") would camp and initiate hunts at the Nosoni Creek site. (SAC ¶ 46.) Plaintiffs claim that the Nosoni Creek site contains remains of past human life such as structures, graves, skeletal remains, pottery and tools. (Id. ¶¶ 69, 75.) It is also the site of pre-historic house pits, a section of a pre-historic trail, and the remains from a tribal hunting cabin built in or about 1867. (Id. ¶ 70.)

In 2000, the USFS began a project to replace the Nosoni Creek bridge. (Id. ¶ 71.) The USFS allowed construction workers to cut down three ancient "grandfather" grapevines used as medicine by the Tribe for over 100 years, as well as an ancient oak tree. (Id. ¶¶ 46, 72.) In addition, in 2001 to 2002, the USFS allowed a truck ramp to be built leading to the creek. This ramp is used on a daily basis by logging trucks that drive over the site, park on the truck ramp, and draw water from the creek four to five times per day, every day of the year. (Id. ¶¶ 71, 84.) These same trucks spill diesel onto the site and into the creek. (Id. ¶¶ 72--73.) Plaintiffs aver this activity has destroyed archeological resources at the site. (Id.) Plaintiffs claim other damages to Nosoni Creek without explaining whether they flow from the bridge or ramp projects. (Id. ¶¶ 47-- 48.)

The Tribe was not notified prior to commencement of the bridge replacement or the truck ramp, and defendants did not follow any public consultation process. (Id. ¶ 77.) Ignoring plaintiffs' persistent complaints, USFS has not done anything to remedy the alleged harms. (Id. ¶¶ 49, 77, 80.) Plaintiffs also allege these construction activities were undertaken without an ARPA permit. (Id. ¶ 72.) Work was done in July 2010 to fix the problems with the truck ramp, but the Tribe was excluded from discussions of how to mitigate any damage. (Id. ¶ 80.) Plaintiffs allege that the bridge and truck ramp projects violates the ARPA because no ARPA permits were issued (id. ¶ 72), that those projects violated NHPA because the bridge is a historic site and the USFS failed to properly consult with the tribe prior to allowing construction (id. ¶ 77), and that no environmental analysis preceded the truck ramp project in violation of NEPA. (Id. ¶ 83.)

B. Dekkas Site and Gilman Road Shaded Fuelbreak Project (Claim 2)

The Dekkas site is a "rock island" that rises above the McCloud River. (Id. ¶ 95.)

Plaintiffs allege that in pre--historic times, Dekkas contained a lower bench where manzanita grew, a middle bench that included a dance circle, cisterns and a sacred fire pit, and an upper bench with numerous pit houses. (Id. ¶ 88.) Former tribal leader Florence Jones used the fire pit for healing activities until her death in 2003. (Id. ¶ 89.) The fire pit was surrounded by special rocks used to tell the journey of life of the Tribe, and the cisterns were used in a doctoring ceremony. (Id. ¶¶ 89--90.) The Tribe attended to several trees that were used in religious rituals. (Id. ¶ 90.) In 2005, the USFS consulted with the Tribe regarding the site, agreed that the old-growth manzanita was an important resource, filed a "protection plan," and flagged the area to be preserved. (Id. ¶ 91.) Wood from these manzanita provided the sole source of fuel for the fire pit. (Id. ¶ 54.) Nevertheless, in February 2005, the USFS destroyed the manzanita. (Id. ¶¶ 54, 91.) Plaintiffs allege their agreement with USFS was violated when the manzanita was cut without an archaeologist or tribal representative onsite at the time. (Id. ¶ 55.) The USFS allows open access to the site, which has led to ongoing damage from camping, the use of ATVs and other recreational activity. (Id. ¶¶ 53, 92.) The damage includes vehicles driving over dance grounds, burning trash and dislodging rocks around the sacred fire pit. (Id. ¶ 92.) Despite requests, the USFS has not developed a mitigation plan to address the damage. (Id. ¶ 92.)

Plaintiffs claim the USFS's failure to develop a mitigation plan along with their allowance of destructive activities without a permit violates ARPA. (Id. ¶¶ 92--93.)

The Tribe alleges it had an exclusive use permit for the site for many years. (Id. ¶ 102.) In 2005, the USFS revoked the permit and the Tribe's requests for a new one were denied. (Id.) The USFS stated the reason was because no permit was available for the Tribe to apply for, despite other groups having been granted comparable permits. (Id.)

The USFS implemented the Gilman Road Shaded Fuelbreak project on the Dekkas site in 2001, 2003 and 2005. (Id. ¶ 97.) This project has damaged culturally important trees on the site that the Tribe has cultivated. (Id. ¶¶ 96--97, 100.) While the fuelbreak project was completed in 2005, related ongoing cleanup continues to threaten important resources. (Id. ¶ 100.) Defendants did not consult with interested parties during the planning and execution of the project even though the Tribe indicated an interest in consultation. (Id. ¶¶ 98--99.) Plaintiffs also allege that the process defendants used to evaluate the land was inadequate under NHPA. (Id. ¶ 99.)

C. Coonrod Flat Cultural Site (Claim 3)

Coonrod Flat is a large, open, dry meadow on the lower slopes of Mt. Shasta, bordered by Ash Creek to the north and old river beds to the south. (Id. ¶ 109.) The site includes a pre-historic village with a fire pit used for the "August Ceremony," and house pits to the northeast along the creek. (Id. ¶¶ 109, 112.) The site is listed on the National Register of Historic Places ("National Register"). (Id. ¶ 110.)

The USFS allows campers, hikers, hunters and off-road vehicles to trespass over ceremonial areas causing damage to the site. (Id. ¶¶ 57, 107, 110.) In 2005, the USFS issued a grazing permit for a 5,000 acre allotment to a rancher, allowing cattle to defecate on the sacred fire pit area as well as create habitual paths of 6--8 inches deep and degrade the riparian area near Ash Creek. (Id. ¶¶ 57, 107, 111.) To minimize the damage, the Tribe requested to rebuild a fence to control access to the site in 2005, but the USFS did not respond. (Id. ¶ 57.) Plaintiffs allege that the USFS violated ARPA by allowing destruction to the area by persons not having proper ARPA permits (id. ¶ 108) and violated NHPA by failing to formulate a preservation plan for the area. (Id. ¶ 112.)

D. Buck Saddle Prayer Site (Claim 4)

Plaintiffs aver that the Buck Saddle prayer site is an historic site due to its age and

its association with important spiritual and religious activities in the past. (Id. ¶ 121.) The large prayer rock at the site, approximately 10 feet by 10 feet in size with a bedrock base that has numerous cupules, is a documented archaeological site. (Id. ¶ 116.) The USFS allowed damage to occur at the site in 2007 when it permitted the construction of a bike path on the Clikapudi trail, which leads to the prayer rock. (Id. ¶¶ 59, 117, 128.) Plaintiffs aver this violated ARPA. The bike trail was a project funded and approved by the USFS. (Id. ¶ 122.) The Clikapudi bike path ramp disturbed and damaged the rock site. (Id. ¶¶ 117--118, 124.) Despite complaints by the Tribe, the USFS has failed to address this ongoing issue, nor has it developed a plan of mitigation or protection of these resources. (Id. ¶¶ 119, 128.) Plaintiffs allege that defendants' failure to develop a protection plan or consult with the Tribe prior to permitting the bike path violate NHPA. (Id. ¶ 124.) In addition, plaintiffs allege the USFS has failed to perform any environmental analysis on the effects of the bike path as required by NEPA. (Id. ¶ 127.)

E. Panther Meadow (Claim 5)

Panther Meadow is located on the south slope of Mt. Shasta just below the timberline. It includes an upper and lower meadow and a large spring at its highest point. (Id. ¶ 137.) Panther Meadow is listed on the National Register. (Id.) The spring is considered the genesis point for the Winnemem and constitutes their primary cultural site. (Id. ¶ 132.) The site is used for cultural events such as a tribal "World Renewal Ceremony" conducted since the early 1900s, as well as for healing, prayer and other ceremonies since pre-historic times. (Id. ¶¶ 132, 137.)

A large proportion of the public visitation to Mt. Shasta is concentrated in Panther Meadow. (Id. ¶ 141.) Visitation has caused significant damage to important resources at the site, including contaminating the spring and harming vegetation. (Id. ¶ 133.) Some members of the public have scattered human cremation remains in the spring and the USFS has not implemented any measures to stop the practice or apprehend the perpetrators. (Id. ¶¶ 60, 140--141.) Despite the Tribe's complaints, the USFS has failed to properly regulate public visitation and use, or close the area to avoid ongoing damage. (Id. ¶¶ 60, 133, 135.) The USFS has not formulated any preservation plan for Panther Meadow. (Id. ¶ 138.) Plaintiffs claim that by permitting visitors to degrade the area without ARPA permits, defendants have violated ARPA (id. ¶ 133) and by failing to develop a protection plan for the area, they have violated NHPA. (Id. ¶¶ 138--139.)

F. Rocky Ridge (Claim 6)

Rocky Ridge is a pre-historic village site connected to a larger village complex.

(Id. ¶ 145.) The village contained approximately 15 house pits and a burial site and would likely contain remains of human culture, including food stuffs, broken crockery, stone and metal tools, and organic matter. (Id.) Plaintiffs aver the site is eligible for listing on the National Register due to its age, its association with historic events such as doctoring, herbal medicine, cultural and religious ceremonies, and its potential to yield archaeological resources. (Id. ¶ 151.)

Jones Valley Resort operates a permitted parking lot near the site. (Id. ¶ 147.) The resort has been using the Rocky Ridge site adjacent to the permitted parking lot as an overflow parking lot for recreational vehicles and boat trailers for more than a decade. (Id.) The USFS maintains a gate to prevent access to the site, but the agency has allowed the Resort to install its own lock to allow for this implicitly authorized use. (Id. ¶ 152.) The USFS is aware that the "overflow" parking lot exists, but denies issuing any permit for the site and has said it has no plans to authorize any permits. (Id. ¶¶ 147, 152.) Plaintiffs have complained to the USFS about the parking lot and the damage to important resources caused by its use. (Id. ¶¶ ...


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