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Winnemem Wintu Tribe, In Their v. United States Forest Service

March 29, 2013



Plaintiffs are members of a non-federally recognized Indian tribe in the McCloud River Valley in Shasta County, California who allege that defendant United States Forest Service (USFS) did not meet its obligation to protect significant historical and cultural sites as required by the Archeological Resource Protection Act (ARPA), 16 U.S.C. §§ 470aa, et seq., the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001, et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470, et seq. (ECF 85.) USFS moves to strike the Sixth Cause of Action from plaintiff's third amended complaint. (ECF 88.) For the reasons explained below, USFS's motion is DENIED as untimely. On its own motion, however, in light of the limits articulated in its prior order granting leave to amend, the court strikes plaintiffs' NAGPRA claim as to the Antler's Bridge site.


Plaintiffs filed their original complaint against several federal agencies and individual defendants on April 19, 2009. (ECF 1.) On September 15, 2009, the court granted in part and denied in part defendants' motion to dismiss, granting plaintiffs leave to amend several of their claims. (ECF 24.) Plaintiffs filed their First Amended Complaint (FAC) on October 14, 2009. (ECF 30.) Defendants filed a motion to dismiss on December 11, 2009. (ECF 33.) The court issued an order on July 16, 2010, granting defendants' motion in part and denying defendants' motion in part, allowing plaintiffs leave to amend the majority of claims. (ECF 51.)

On August 20, 2010, plaintiffs filed a Second Amended Complaint (SAC), which defendants moved to dismiss on October 1, 2010. (ECF 54, 55.) On July 27, 2012, the court granted the motion to dismiss in part and denied it in part. (ECF 82.) The court dismissed plaintiffs' claims that defendants violated ARPA by allegedly failing to prevent harm to archaeological resources at numerous sites. (ECF 82 at 21.) ARPA requires a permit for any "activity . . . undertaken for the purpose of furthering archaeological knowledge in the public interest." 16 U.S.C. § 470cc(b)(2). However, "[n]o ARPA permit is required to conduct activities on public lands when those activities are entirely for purposes other than the excavation or removal of archaeological resources." San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 888 (D. Ariz. 2003); Attakai v. United States, 746 F. Supp. 1395, 1410--11 (D. Ariz. 1990) (dismissing ARPA claims where no purposeful activities aimed at archaeological resources were alleged). In dismissing these claims, the court reasoned that plaintiffs had not alleged intentional disturbance of archaeological resources at the sites that would have required defendants to comply with ARPA. (ECF 82 at 20.)

The court granted plaintiffs leave to amend, but only as to the claim that USFS violated ARPA through activities at the Antler's Bridge site, the former location of a large village and burial sites, where USFS and other agencies conducted a bridge realignment project in 2010. (ECF 82 at 9, 20-21.) Although plaintiffs' claim did not allege that USFS's activities at Antler's Bridge were in conjunction with archaeological activities, the court granted leave to amend because the allegations "appear[ed] to come close to stating a claim under ARPA" and "the SAC [was] the first opportunity plaintiffs [] had to allege this claim." (ECF 82 at 20-21.) The court did not grant plaintiffs leave to amend any other claims that were dismissed in the order of July 27, 2012, including claims under the NHPA concerning Antler's Bridge. (Id. at 27.)

Plaintiffs filed a third amended complaint against the sole remaining defendant, USFS, on September 4, 2012 (ECF 85.) Section F of this complaint is designated "Sixth Claim for Relief: Violation of ARPA, NAGPRA and the [Administrative Procedures Act] (Interference with and Failure to Protect Archaeological Resources at the Antler's Bridge Site)." (ECF 85 ¶¶ 68-75.) This section contains allegations that USFS violated NAGPRA as well as ARPA. (Id.)


On November 5, 2012, USFS both answered the third amended complaint and filed a motion to strike plaintiffs' claims as to the Antler's Bridge site. (ECF 88, 89.) USFS argues that the allegations in plaintiffs' Sixth Claim for Relief exceed the scope of the court's July 27 order granting leave to amend because plaintiffs assert a new claim under NAGPRA rather than addressing the deficiencies of its original ARPA claim. USFS argues that plaintiffs should have sought leave to amend the complaint under Federal Rule of Civil Procedure 15(a) before altering the complaint in this way. (ECF 88 at 3-5.)

A. Standard

Federal Rule of Civil Procedure 12(f) provides that: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. FED. R. CIV. P. 12(f). "Redundant matter is defined as allegations that 'constitute a needless repetition of other averments or are foreign to the issue.'" Taheny v. Wells Fargo Bank, N.A., No. CIV. S-10-2123 LKK/EFB, 2011 WL 1466944, at *2 (E.D. Cal. Apr. 18, 2011) (quoting Thornton v. Solutionone Cleaning Concepts, Inc., No. CIV F 06-1455 AWI SMS, 2007 WL 210586, at *1 (E.D. Cal. Jan. 26, 2007); other citation omitted). "'Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded[,] [and] [i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.'" Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706--07, 711 (1990)), rev'd on other grounds by 510 U.S. 517 (2004).

A 12(f) motion to strike serves "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Sidney--Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The granting of a motion to strike "may be proper if it will make trial less complicated or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues." Taheny, 2011 WL 1466944, at *2 (citing Fantasy, 984 F.2d at 1527--28). However, "[m]otions to strike are disfavored and infrequently granted." Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (citations omitted). Indeed, a motion to strike "'should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.'" Id. (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)); see also Wynes v. Kaiser Permanente Hosps., 2011 WL 1302916, at *12 (E.D. Cal. Mar. 31, 2011) (noting "courts often require ...

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