Franco v. United States Dep't Of The Interior

• Citation: 725 F.Supp.2d 1119
• Decision Date: 16 July 2010
• Docket Number: No. Civ. 2:09-cv-01072-FCD EFB.,Civ. 2:09-cv-01072-FCD EFB.
• Court: U.S. District Court — Eastern District of California
• Parties: WINNEMEM WINTU TRIBE, in their tribal and individual capacities; Caleen Sisk Franco; Mark Franco, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF the INTERIOR; Bureau of Reclamation; Bureau of Indian Affairs; Bureau of Land Management; United States Forest Service; United States Department of Agriculture; and, in their Individual Capacities, Kristy Cottini and J. Sharon Heywood, Defendants.

725 F.Supp.2d 1119

WINNEMEM WINTU TRIBE, in their tribal and individual capacities; Caleen Sisk Franco; Mark Franco, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF the INTERIOR; Bureau of Reclamation; Bureau of Indian Affairs; Bureau of Land Management; United States Forest Service; United States Department of Agriculture; and, in their Individual Capacities, Kristy Cottini and J. Sharon Heywood, Defendants.

No. Civ. 2:09-cv-01072-FCD EFB.

United States District Court,E.D. California.

July 16, 2010.

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Cheryl B. Kahn, Eric L. Toscano, Eugenia S. Chern, Reed Smith LLP, San Francisco, CA, for Plaintiffs.

Lynn Trinka Ernce, Govt., United States Attorney's Office, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER

FRANK C. DAMRELL, JR., District Judge.

This matter is before the court on motions to dismiss plaintiffs' first amended complaint by defendants the 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, “the agency defendants”) and District Ranger for the Shasta-Trinity National Recreation Area, Kristy Cottini, and Forest Supervisor for Shasta-Trinity National Forest, J. Sharon Heywood (collectively, “the individual defendants”). Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The Winnemem Wintu Tribe, Caleen Sisk Franco, and Mark Franco (“plaintiffs”) oppose defendants' motion. For the reasons set forth below, ¹ defendants' motion is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiffs filed their initial complaint on April 19, 2009, asserting various tort claims under the Federal Tort Claims Act (“FTCA”) against the agency defendants and against Secretary of the Interior Kenneth Salazar and Secretary of Agriculture Tom Vilsack. (Compl. ¶¶ 2, 43-93.) Plaintiffs also asserted a claim for mandamus and injunctive relief pursuant to 28 U.S.C. § 1361, requesting an order directing the defendants to investigate and report on damage allegedly caused to sites of cultural importance to the Winnemem Wintu Tribe (the “Winnemem”) along the McCloud River. ( Id. ¶¶ 97-98, 101.) Finally, plaintiffs sought a declaratory judgment pursuant to 28 U.S.C. §§ 2201-02 that various actions by the defendants constituted violations of federal, state, and common law. ( Id. ¶¶ 94-95.) On June 29, 2009, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The court issued a Memorandum and Order on September 14, 2009, granting in part and denying in part the defendants' motion (the “Order”).

In an amended complaint, filed October 14, 2009, plaintiffs reorganized their allegations to assert claims against the agency defendants pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 551 et seq., for alleged violations of various federal statutes and the United States Constitution. (Amend. Compl. ¶¶ 75-146.) Plaintiffs also bring a claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants Cottini and Heywood in their individual capacities, seeking monetary damages for alleged violations of plaintiffs' First Amendment and Fifth Amendment rights. ( Id. ¶¶ 147-53.)

Plaintiffs allege that the Winnemem are a California Native Tribe recognized by the California Native American Heritage Commission and identify Caleen Sisk-Franco as the current tribal leader of the Winnemem. ( Id. ¶¶ 43, 47.) However, the Winnemem are not a federally recognized Indian tribe. ( Id. ¶ 51.) Plaintiffs allege that the U.S. government made an error in 1978 that resulted in the Winnemem's exclusion from the list of Indian tribes eligible to receive federal benefits. ( Id.) Plaintiffs allege that the Federal Court of Claims had previously recognized the Winnemem's federal status in 1928, 1954, and 1968. ( Id. ¶ 42, 45). Plaintiffs also point to federal permits allegedly issued to Caleen Sisk-Franco and the Winnemem to possess eagle feathers and parts as further evidence of previous federal tribal recognition. ( Id. ¶¶ 47-48.)

In their amended complaint, plaintiffs seek declaratory and injunctive relief for alleged harm resulting from defendants' failure to acknowledge the Winnemem as a federally recognized Indian tribe and for alleged harm to various areas that the Winnemem use as cultural and religious sites. (Amend. Compl. ¶¶ 154-68.)

A. Nosoni Creek

Plaintiffs allege that the USFS engaged in various actions causing damage to the Nosoni Creek area, a site of cultural importance to the Winnemem, without regard to plaintiffs' protests and in violation of a previous project agreement between the Winnemem and the USFS. ( Id. ¶¶ 53-55.) Specifically, plaintiffs allege that in 2001, the USFS cut down three ancient “grandfather” grapevines that the Winnemem had used for medicinal purposes for more than 100 years. ( Id. ¶ 53.) Plaintiffs further allege that the USFS dumped dirt on a “sacred site” without archeological monitoring or guidance and rendered inaccessible an area for ceremonial storytelling by bulldozing and filling in a vegetated area. ( Id. ¶¶ 54-55.) In addition, plaintiffs allege that the USFS allowed unmonitored construction and industrial activities that “create biological hazards and disturb natural ecosystems” at the site. ( Id. ¶ 77.) Finally, plaintiffs allege that the USFS blocked access to the site for religious and ceremonial activities. ( Id.)

Plaintiffs assert that these actions violate several federal statutes: the Archaeological Resource Protection Act (“ARPA”), 16 U.S.C. §§ 470ee; the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f; the American Indian Religious Freedom Act (“AIRFA”), 42 U.S.C. § 1996; and the Religious Freedom and Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1(b) ( Id. ¶¶ 79, 131.)

B. Dekkas Site

In the Dekkas area, plaintiffs allege that in 2005 the USFS ignored an agreement with the Winnemem and cut substantial quantities of old-growth manzanita trees that for centuries had been the only source of wood used for religious and cultural celebrations. ( Id. ¶ 61.) Plaintiffs allege that the cutting took place in violation of an agreement that an archaeologist and tribal representatives be present. ( Id. ¶ 62.)

Plaintiffs further allege that in 2006, the USFS facilitated entry by campers, hikers, and others into the Dekkas site by removing a lock from a gate. ( Id. ¶ 60.) Plaintiffs allege that also in 2006, the USFS ordered the Winnemem to remove all their items from the Dekkas site, including rocks of historical and cultural significance to the Winnemem. ( Id. ¶ 63.)

Finally, plaintiffs allege that in 2007, the USFS and/or defendant Cottini forbade plaintiffs from using “Cultural Property” at Dekkas, including “an ancient fire pit with rocks that have been used by the Winnemem for hundreds of years,” by improperly revoking a special use permit and refusing to issue new permits without cause ( Id. ¶ 59.) Plaintiffs claim that defendants' actions in connection with the Dekkas area interfered with plaintiffs' use and enjoyment of a site that has religious significance for the Winnemem. ( Id. ¶¶ 59-63.)

Plaintiffs assert that defendants' actions in connection with the Dekkas area violate the ARPA, NHPA, AIRFA, RFRA, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321. ( Id. ¶¶ 83, 131.)

C. Coonrod Cultural Site

Plaintiffs allege that the USFS allowed campers, hikers, and hunters to intrude into the Coonrod Cultural Site, an area of ceremonial importance to the Winnemem. ( Id. ¶ 64.) Plaintiffs further allege that the USFS failed to prevent cattle from trampling over a fire pit of religious significance to the Winnemem, despite a 2005 request by the Winnemem that the USFS replace or rebuild a fence around the site. ( Id.) In addition, plaintiffs allege that defendants permitted recreational vehicles to drive into the site. ( Id. ¶ 89.) Plaintiffs also allege that defendants refused to take steps to preserve cultural artifacts and that defendants arbitrarily denied requests to expand the boundaries of the Coonrod site to encompass newly discovered cultural resources. ( Id.)

Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, AIRFA, and RFRA. ( Id. ¶¶ 89, 131.)

D. Gilman Road

Plaintiffs allege that the USFS violated an agreement regarding Gilman Road by causing medicinal plants to be cut and sprayed with herbicides. ( Id. ¶ 65.) Plaintiffs further allege that the USFS failed to disclose to the Winnemem projects that damaged cultural and religious sites or to take all possible steps to mitigate the damage. ( Id. ¶ 95.)

Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, and NEPA. ( Id.)

E. Buck Saddle Prayer Site

Plaintiffs allege that the USFS built a recreational bike trail through the Buck Saddle Prayer Site without disclosing the project in advance or taking sufficient measures to protect the site. ( Id. ¶ 101.) Defendants further allege that the USFS breached a Memorandum of Understanding by reorienting rocks, ( Id. ¶ 66), and that the USFS converted a prayer rock sacred to the Winnemem into a ramp for dirt bikes. ( Id. ¶ 101.) In addition, plaintiffs assert that defendants have “enabl[ed] ongoing degradation” of ecosystems, natural resources, and archaeological sites, and permitted general access to the area without taking sufficient measures to protect artifacts. ( Id. ¶ 101.)

Plaintiffs assert that these alleged actions and omissions violate the ARPA, NHPA, NEPA, AIRFA, and RFRA. ( Id. ¶¶ 101, 131.)

F. Panther Meadow

Plaintif...