Franco v. United States Dep't of the Interior, NO. CIV S-09-1072 KJM-KJN

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Docket NumberNO. CIV S-09-1072 KJM-KJN
Decision Date26 July 2012
PartiesCALEEN SISK FRANCO, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

CALEEN SISK FRANCO, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

NO. CIV S-09-1072 KJM-KJN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: July 26, 2012


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")1 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

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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

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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.2

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

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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

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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.)

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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.)

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