Quechan Indian Tribe v. U.S.

Decision Date10 January 2008
Docket NumberNo. CIV 02CV1096 JAH AJB.,CIV 02CV1096 JAH AJB.
Citation535 F.Supp.2d 1072
CourtU.S. District Court — Southern District of California
PartiesQUECHAN INDIAN TRIBE, Plaintiff, v. UNITED STATES of America, Defendant.

Bryan R Snyder, Law Office of Bryan R. Snyder APC, San Diego, CA, Frank R. Jozwiak, Sharon I. Haensly, Thane D. Somerville, Morisset Schlosser Jozwiak and McGaw, Seattle, WA, for Quechan Indian Tribe.

U.S. Attorney CV, U.S. Attorneys Office Southern District of California, Civil Division, San Diego, CA, Claire E. Douthit, Western Area Power Admin., U.S. Dept. of Energy, Lakewood, CO, Vince L. Farhat, Office of U.S. Attorney, Cent. Dist. of Cal., Los Angeles, CA, for United States.

ORDER: MOTIONS FOR SUMMARY JUDGMENT AND MOTIONS TO DISMISS [Doc. Nos. 103, 105, 109, 114, 124, 126, 134, 165]

JOHN A. HOUSTON, District Judge.

FACTUAL BACKGROUND
I. Reservation

The Fort Yuma Reservation was established by Executive Order in 1884. See President Chester A. Arthur, Executive Order, Tribe's Exh. 3; Govt's Exh. 8 (Douthit Decl.). The reservation includes 45,000 acres along the Colorado River. See id. In 1893, The Tribe and the United States entered into an agreement whereby the Tribe relinquished its interest in certain non-irrigable `land within the reservation. See Tribe's Exh. 4; Govt's Exh. 9 (Douthit Decl.).

A dispute arose over the status of the land at issue in the 1893 agreement. See Solicitor Opinion, January 8, 1936, Govt's Exh. 10 at 106 (Douthit Decl,). In 1936, the Solicitor of the Department of the Interior opined Indian title to the non-irrigable lands was extinguished. Id. at 113.

In 1951, Quechan filed an action before the Indian Claims Commission challenging the 1893 agreement, which the parties refer to as Docket No. 320. See Arizona v. California, 530 U.S. 392, 403, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000), Govt's Exh. 11 at 116 (Douthit Decl.). The matter was transferred to the Court of Claims in 1976. Id.

In 1977, the Solicitor issued another opinion on the title to lands within the Quechan Reservation. See 1978 Solicitor's Opinion, Tribe's Exh. 11 at 48; Govt's Exh. 7 at 69 (Douthit Decl.). The Solicitor again opined title to the land "was unconditionally ceded to the United States by virtue of a negotiated 1893 cession agreement and the 1894 statute, ratifying such agreement." Id. Upon finding "sharp and continuing divergences in legal views" on who owns title to the lands, the Solicitor issued another opinion on December 20, 1978. The Solicitor opined "the conditional cession in 1893 was never effected and the title to the non-irrigable acreage, therefore, [remained] with the Tribe." Id. at 49; Govt's Exh. 7 at 70. Based upon this decision, the parties entered into a settlement of the Docket No. 320 matter in 1978. Id.

The Secretary of the Interior issued an order approving the opinion on December 20, 1978. See Govt's Exh. 14 (Douthit Decl.). The Secretary noted the Tribe's title was subject to exceptions and conditions, namely third party rights. Id. at 135. On February 6, 1981; the Secretary issued a Secretarial Determination and Directives on the Quechan Reservation boundaries recognizing the 1884 boundaries of the reservation as modified by the Executive Order of December 19, 1900, and recognizing third party interests. See Tribe's Exh. 14; Govt's Exh. 16 (Douthit Decl.).

II. Transmission Line

The Congressional Act of 1924 authorized the Secretary of the Interior ("Secretary") to acquire a right of way or easement reserved to the United States for irrigation purposes. See Tribe's Exh. 9. On April 21, 1942, the Bureau of Reclamation ("BOR") applied for a right-of-way permit for a "transmission line in connection with [the] Parker Dam Power Project." Department of Interior Application, Tribe's Exh. 8; Govt's Exh. 8 (Douthit Decl.). The application was apparently approved on July 23, 1942. See Letter from Acting Commissioner to Secretary of the Interior, Govt's Exh. 5 (Douthit Decl.).1 Congress enacted An Act for the Acquisition of Indian Lands for Parker Dam Power Project on October 28, 1942, concerning the acquisition of "lands required in connection with the construction, operation, and maintenance of electric transmission lines and other works ..." Govt's Exh. 31 (Douthit Decl.).

On May 17, 1971, the BOR submitted an amended application for a 100-foot right-of-way for a 161-kv transmission line and a 50-foot access road under Section 4; Subsection P of the Act of December 5, 1924. Govt's Exh. 32 (Douthit Decl.). The Bureau of Land Management ("BLM") approved the request for the amended right-of-way on October 30, 1971.2 The BOR later transferred the right-of-way to Western. Area Power Administration ("Western").

In July 1994, in anticipation of pole replacement and transmission line maintenance, Western retained Western Cultural Resource Management ("WCRM") to conduct an inventory of cultural resources of the Gila-Knob 161-kv transmission line and access roads. See Tribe's Exh. 25 at 138, 153. WCRM surveyors located 26 archeological sites and 7 isolates which included Ethic scatters, temporary camps, ceremonial areas and geoglyphs. Id. at 153. Work began on the pole replacement project in October 1998. See Wood Pole Rehabilitation Program Weekly Log, Tribe's Exhs. 38, Western's Environmental Lessons Learned Investigation Damage to Archeological Resources During the Gila-Know Pole Replacement Project ("Lessons Learned Report"), Tribe's Exh. 46, URS Corporation, Documentation of Activities Along the Gila Know 161-kv Transmission Line Rehabilitation Project ("URS Report"), Tribe's Exh. 52. Certain cultural sites were damaged during the pole replacement project. Id. The Tribe was notified of the damage on March 2, 1999. See Lessons Learned Report, Tribe's Exh. 46 at 560.

PROCEDURAL BACKGROUND

Plaintiff, Quechan Indian Tribe (referred herein as "the Tribe," "Plaintiff," and "Quechan"), originally filed a complaint on June 7, 2002. The action was stayed pursuant to stipulation pending the outcome of land ownership issues in Arizona v. California, 530 U.S. 392, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000), on July 18, 2003. On March 23, 2004, Plaintiff filed a First Amended Complaint under seal. Thereafter, the case was transferred to this Court. On June 14, 2004, Plaintiff filed a motion to lift the stay and for a bifurcated schedule. Following settlement of Arizona v. California, and Defendant's (referred herein as "the government," "the United States," and "Defendant") notification that it no longer opposed lifting the stay, the Court granted the motion and denied the motion for bifurcated schedule as moot.3

Plaintiff filed a Second Amended Complaint ("SAC") under seal on March 16, 2005, suing in its own capacity and as parens patriae on behalf of its members. Plaintiff seeks damages, and injunctive and declaratory relief for negligence, negligence pea se, gross negligence, trespass and public and private nuisance pursuant to 28 U.S.C. § 2674.4 Specifically, Plaintiff alleges Western employees knowingly drove vehicles over and permanently scarred numerous cultural sites on the Fort Yuma Reservation during power pole replacement along the Gila-Knob power-line. ("Project").

I. Motions for Summary Judgment

On September 2, 2005, Plaintiff filed two motions for partial summary judgment: (1) for partial summary judgment as to liability for negligence, gross negligence, negligence per se, trespass, and private and public nuisance (Doc. No. 103); and (2) on the issue of Tribe's beneficial title to and non-property interests in the right-ofway lands (Doc. No. 105).

Defendant's two motions for summary judgment: (1) for summary judgment or in the alternative partial summary judgment(Doc. No. 114); and (2) on the issue of land ownership (Doc. No. 109) were filed nuns pro tunc to September 2, 2005.

On November 4, 2005, Defendant filed a' memoranda in opposition to Quechan's motions (Doc. Nos. 131, 132), and Plaintiff filed an opposition to Defendant's motion for partial summary judgment regarding land ownership and motion for summary judgment or in the alternative partial summary judgment (Doc. Nos. 122, 123). On December 9, 2005, the parties filed replies (Doc. Nos. 138, 144, 152, 153). Plaintiff filed a surreply (Doc. No. 173) to Defendant's motion regarding land ownership, upon leave of Court, on December 30, 2005.

II. Other Motions

On November 4, 2005, Plaintiffs filed two motions to strike: (1) to strike portions of Defendant's motions for summary judgment (Doc. No. 124) and (2) to strike deposition transcript of Dr. Jamie Cleland and references to the transcript in summary judgment motions (Doc. No. 126). Defendant filed oppositions to the motion to strike the Cleland deposition (Doc. No. 142) and motion, to strike portions of the motions for summary judgment (Doc. No. 143) on December 9, 2005. Plaintiff filed replies (Doc. Nos. 170, 171) on December 30, 2005.

On November 4, 2005, Defendant filed a motion to strike (Doc. No. 134) the following documents and issues: (1) Cachora letter and references to it in Plaintiffs memoranda and statement of undisputed facts, WCRM Report page 177a, (2) portions of deposition transcripts not cited in the record, Kaye F. Nealy Declaration and (3) all references to it in the motions. Plaintiff filed an opposition (Doc. No. 148) to Defendant's motion to strike on December 9, 2005. On December 23, 2005, Defendant filed a reply (Doc. No. 164).

Defendant also filed objections to declarations of Robert Bee and Clyde M. Woods (Doc. No. 141) and a reply (Doc. No. 139) to Plaintiffs opposition to Defendant's statement of material facts in support of motion for summary judgment. Plaintiff filed a response (Doc. No. 172) on December 30, 2005.

Plaintiff filed a ...

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