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Round Valley Indian Tribes of California v. United States Department of Transportation

United States District Court, N.D. California

March 10, 2017

ROUND VALLEY INDIAN TRIBES OF CALIFORNIA, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          ORDER GRANTING, IN PART, AND DENYING IN PART MOTION TO DISMISS RE: DKT. NO. 68

          JEFFREY S. WHITE DISTRICT JUDGE

         Now before the Court for consideration is the motion to dismiss filed by the United States Department of Transportation, Secretary of Transportation Anthony Foxx, the Federal Highway Administration (“FHWA”), and FHWA Administrator Gregory G. Nadeau (collectively the “Federal Defendants”). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it has had the benefit of oral argument. For the reasons set forth herein, the Court HEREBY GRANTS, IN PART, AND DENIES, IN PART, the Federal Defendants' motion.

         BACKGROUND

         A. Factual Background.

         This litigation arises out of a highway project that is under construction around the community of Willits, California (the “Willits Bypass Project”). Plaintiffs, the Coyote Valley Band of Pomo Indians of California (“Coyote Valley”) and the Round Valley Indian Tribes of California (“Round Valley”) (collectively “Plaintiffs”), allege the Federal Defendants violated the National Environmental Protection Act (“NEPA”), Section 4(f) of the Department of Transportation Act, 49 U.S.C. section 303(c) (“Section 4(f)”), Section 18(a) of the Federal-Aid Highway Act, 23 U.S.C. section 138 (“Section 18(a)”), and the National Historic Preservation Act (“NHPA”).

         On July 1, 2007, the FHWA entered into a Memorandum of Understanding (“MOU”) with defendant California Department of Transportation (“Caltrans”), in which the FHWA assigned certain responsibilities and liabilities for various projects, including the Willits Bypass Project, to Caltrans, pursuant to the Surface Transportation Project Pilot Delivery Program (the “Pilot Program”), 23 U.S.C. section 327. (See First Amended Complaint (“FAC”) ¶¶ 15, 66, 97; Dkt. No. 32-1, Declaration of David B. Glazer (“Glazer Decl.”), Ex. A (MOU), §§ 1.1.1, 3.1.1.)[1] The parties agreed the FHWA would assign and Caltrans would assume “all of the USDOT Secretary's responsibilities for environmental review, consultation, or other such action pertaining to the review or approval of a specific project as required under” other specific federal environmental laws including, Section 4(f), Section 18(a), and the NHPA. (MOU §§ 3.2.1.I, 3.2.1.Y; see also FAC ¶¶ 15, 206-207.) However, Caltrans did not assume the Federal Defendants' responsibilities for government-to-government consultation under the NHPA. (See MOU § 3.2.3.)

         Plaintiffs allege all Defendants, including the Federal Defendants: (1) failed to properly identify and protect the Plaintiffs' “ancestral, sacred, cultural, and archeological sites and resources;” and (2) destroyed certain sites during the construction of the Willits Bypass Project. (See, e.g, FAC ¶¶ 1, 45-46, 211.) Plaintiffs also allege all Defendants, including the Federal Defendants, failed to “(a) adequately address the direct, indirect, and cumulative cultural, environmental, and historic impacts of the Willits Bypass Project; (b) identify and finalize the details of the mitigation plan or its environmental and cultural impacts; and (c) commit to necessary mitigation measures.” (Id. ¶ 8.)

         According to Plaintiffs, “the Federal Defendants failed to retain their duty to consult” with them under the NHPA “until at least 2013, when consultation commenced, and from that point, the Federal Defendants failed to properly consult with Plaintiffs.” (FAC ¶ 184.) For example, Plaintiffs allege in 2005 the Federal Defendants concluded a Section 106 review and issued a finding of “conditional No Adverse Effect to historic properties.” (Id. ¶ 17.) Plaintiffs contend the Federal Defendants issued that finding without any government-to-government consultation with Plaintiffs. (Id.) Plaintiffs also allege in 2006 Caltrans identified only one archaeological site eligible for registry on the National Register of Historic Places (“NRHP”). (Id.) According to Plaintiffs, since 2013 Caltrans has identified an additional thirty (30) archeological sites that are eligible for registry on the NRHP. Plaintiffs further allege the California State Office of Historic Preservation has indicated the entire area of the Willits Bypass Project might have to be designated as an archeological district of ancestral sites. (Id. ¶ 19; see also ¶¶ 21-43.)

         Plaintiffs allege that, following a government-to-government consultation in 2015, they asked the FHWA to require that Caltrans prepare a supplemental EIS and asked the FHWA to reassume regulatory jurisdiction over the Willits Bypass Project. (Id. ¶ 200.) Plaintiffs also allege that, during this meeting, they asked the FHWA to follow a “protocol similar to that outlined in [a] 2005 Memorandum of Understanding between Caltrans” and another Pomo Indian tribe and raised the failure of the Federal Defendants to “provide [Coyote Valley] with information regarding activities impacting archaeological sites and Caltrans' ongoing destruction of sites.” (Id. ¶¶ 201, 201.1, 201.3.) Round Valley also raised issues relating to the fact that it was not an “invited signatory party” to a programmatic agreement entered into in 2014.[2] (Id. ¶ 201.5.) According to Plaintiffs they also raised concerns that the Mendocino County Resource Preservation District had insufficient experience and expertise to adequately protect Plaintiffs' archeological and cultural sites in the Willits Bypass Project area. (Id. ¶ 201.6.)

         Plaintiffs allege they followed up on these issues in a letter dated March 17, 2015, and continued to: complain about the “treatment of Native American cultural resources impacted by the Willits Bypass Project, ” including the destruction and inadequate protection of sites discovered after construction began; request preparation of a Supplemental EIS; and request the FHWA reassume responsibilities for the Willits Bypass Project. (See Id. ¶¶ 202-203.)

         Plaintiffs also allege the Federal Defendants “have failed to reassume any part of their responsibilities for processing the Willits Bypass Project in terms of good faith government-to-government consultation, ” including taking steps to protect properties of importance to Plaintiffs that may be eligible for inclusion on the NRHP and failing to provide Plaintiffs with “a reasonable opportunity to identify … concerns about historic properties, advise on the identification and evaluation of historic properties …, articulate … views on the” Willits Bypass Project's effects on those properties and participate in the resolution of adverse effects. (Id. ¶ 207.)

         The Court shall address additional facts as necessary in the analysis.

         B. Procedural History.

         On October 30, 2015, Plaintiffs filed the original complaint in this case. (Dkt. No. 1.) On August 2, 2016, the Court granted the Federal Defendants' motion to dismiss. (Dkt. 58, Order Granting Federal Defendants' Motion to Dismiss (“August 2 Order”).) The Court concluded that the terms of the MOU would bar Plaintiffs' claims under NEPA and Section 4(f) and Section 18(a). It also found Plaintiffs had not alleged sufficient facts to make Section 3.2.3 of the MOU relevant. (Id. at 6:4-24.) The Court also concluded that Plaintiffs' claims under the NHPA “appear to be based on conduct that would fall within the scope of the responsibilities that Caltrans has assumed under the MOU.” (Id. at 7:12-8:10.) The Court gave Plaintiffs leave to amend, and it directed Plaintiffs to specifically identify which Defendant acted, or failed to act, in a particular manner. (Id. at 7:1-10, 8:11-16.)

         On August 24, 2016, Plaintiffs filed the FAC.[3]

         ANALYSIS

         A. Applicable Legal Standards.

         The Federal Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A motion to dismiss under Rule 12(b)(1) may be “facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where a defendant makes a facial attack on jurisdiction, a court takes the factual allegations of the complaint as true. Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion dismiss, [courts] presume that general allegations embrace those specific facts that are necessary to support the claim.”) (internal citation and quotations omitted). The plaintiff is then entitled to have those facts construed in the light most favorable to him or her. Federation of African Am. Contractors, 96 F.3d at 1207.

         Where a defendant makes a factual attack on jurisdiction, the moving party questions the veracity of the plaintiff's allegations that “would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. The plaintiff's allegations are questioned by “introducing evidence outside the pleadings.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). “[T]he plaintiff must support … jurisdictional allegations with ‘competent proof, ' under the same evidentiary standard that governs in the summary judgment context.” Id. (quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010)). While the plaintiff typically has the burden of proof to establish subject matter jurisdiction, “if ...


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