Robinson v. Salazar

Decision Date17 January 2012
Docket NumberDoc. 136, 137, 139,CASE NO. 09-cv-01977-BAM
CourtU.S. District Court — Eastern District of California

Three motions to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1) and 12(b)(6) are pending before this Court: (1) motion by defendant Ken Salazar, in his capacity as the Secretary, U.S. Department of the Interior (doc.136), (2) motion by County of Kern (doc. 137), and (3) motion by Tejon Mountain Village, LLC and Tejon Ranch Corporation (doc. 139). Plaintiffs David Laughing Horse Robinson and Kawaiisu Tribe of Tejon filed oppositions, objections, and evidentiary support to their oppositions (see Doc. 155, 161, 163). Moving parties filed reply briefs and supporting evidence. (See Doc. 168, 170-173, 175.) The parties consented to the conduct of all proceedings before the assigned Magistrate Judge. The Court conducted a hearing on the motions on December 12, 2011. Plaintiffs appeared by telephone by counsel Evan Granowitz. Defendant Ken Salazar appeared by telephone by counsel Barbara Marvin and Barbara Coen. Defendants Tejon Mountain Village, LLC and Tejon Ranch Corporation appeared by telephone by counsel Jena MacLean and Benjamin Sharp. Having considered the moving, opposition, and reply papers, including supporting evidence and objections, as well as the argument of counsel and the Court's file, the Court issues the following order.


The following factual overview is taken from the Second Amended Complaint ("SAC"). The well pled factual allegations are taken as true.

A. The Plaintiffs

Plaintiff, the Kawaiisu Tribe of the Tejon ("Tribe"), is an Indian tribe which "resided in the State of California since time immemorial." Plaintiff alleges that the Tribe "descends from signatories to of the 1849 Treaty with the Utah and the 'Utah tribe of Indians' that was recognized by the government of the United States in that treaty" and are descendants from the Indians for whom the 1853 Tejon/Sebastian Reservation was created. (Doc. 133, SAC ¶3.) The Tribe acknowledges that it is not on the list of federally recognized tribes by the Bureau of Indian Affairs. (Doc. 133 SAC ¶5.) The Tribe alleges it is a State recognized Indian tribe and its members are located in the County of Kern.

Plaintiff David Laughing Horse Robinson is the Chairman of the Kawaiisu Tribe of Tejon.1

B. The Defendants

Defendant Tejon Mountain Village, LLC and Defendant Tejon Ranch Corporation are private entities which hold title or interest in 270,000 acres of land which the Tribe claims is a portion of the reservation and aboriginal lands of the Tribe. (Doc. 133 SAC ¶¶8-9.) These entities intent to develop "Tejon Mountain Village" with 3,450 residences, additional commercial development, including a hotel and resort facilities, a golf course and other recreational and educational facilities. (Doc. 133, SAC ¶36.)

Defendant County of Kern ("Kern") was the lead agency for the land development project and ultimately approved the project after hearing and Environmental Impact Report. (Doc. 133, SAC ¶7.)

Defendant Ken Salazar is sued in his official capacity as Secretary of the United States Department of Interior.

C. Plaintiffs' Claims to Land

Plaintiffs claim a right to occupy some or all of the 270,000 acres proposed for the defendants' development. Plaintiffs' sources of land claims include (1) aboriginal rights, which the right to occupy the land, and (2) treaty rights, which is the permissive right to occupy. Plaintiffs allege that the Tribeis entitled to its aboriginal tribal land. Plaintiffs claim that the Tribe descends from the Shoshone Paiute tribes which territory extended from Utah to the Pacific Ocean. (SAC ¶16.) "They have inhabited this areas from time immemorial." The Tribe is not currently on the list of federally recognized tribes maintained by the Bureau of Indian Affairs (SAC ¶ 5), but claims to be federally recognized by virtue of, inter alia, the 1849 Treaty with the Utah entered into with the United States and that was ratified by Congress (9 Stat. 984) and by virtue of Treaty D. (Doc. 133, SAC ¶¶ 3, 18-23.) Plaintiffs allege to be descendants of the "signatories to the Treaty with the Utah." (SAC 20.) The Tribe alleges that Treaty D was entered into with the United States in 1851, but which Congress did not ratify. (SAC ¶ 25). In Treaty D, the Tribe agreed to cede large portions of its land in exchange for a reservation, among other things. (SAC ¶25.) Plaintiffs allege that the Senate secretly neglected to ratify the treaty so that Indian land would be open for exploitation. (SAC ¶25.)

The Tribe also alleges that it has right to the land by virtue of its reservation. On March 3, 1853, Congress passed an Act authorizing the President to create"five military reservations for the protection of Indians" in the State of California. (SAC ¶26, citing 10 Stat 226.) In 1853, an Indian reservation was established by Congress for the Kawaiisu's benefit. A reservation was established at Tejon Pass for the Tejon Indians (SAC ¶27), and which was resurveyed as late as 1858, on which the Kawaiisu lived at one time on 75,000 acres. The establishment of the Tejon/Sebastian Reservation was re-surveyed to 19,928 acres in 1858. (SAC ¶27.)

Plaintiff alleges that in 1856 California Indian Superintendent Edward F. Beale created land patents for the 270,000 acres that now comprise Tejon Ranch, all of which was with the Tribe's aboriginal land. (SAC ¶28.) The Indians located on the Tejon/Sebastian Reservations were then forcibly moved to the Tule Reservation. Plaintiffs allege that defendants TRC and TMV derive their title from Superintendent Beale's patents. Plaintiffs allege that "[t]o the extent that any title descending from Beale's self appointed patents has deprived the Tribe of lands, which the Tribe historically occupied or lands reserved pursuant to the 1853 executive order," the title is unlawful. (SAC ¶28.) Plaintiffs allege that only an act of Congress can terminate a Reservation and no act of Congress terminated the 1853 Reservation. ("The 1853 Reservation") (SAC ¶29.)

Plaintiffs allege the 1853 Reservation was allotted to the Tribe. In 1880, Congress authorizedthe issuance of allotments from the 1853 Reservation and in 1893, 70 allotments were issued to predecessors of the Tribe. These allotments were inappropriately sold off. Nonetheless, plaintiff alleges that members of the Tribe have been present on the land from 1915 through 1945. (SAC ¶30.) The California Indian Agency took a roll in 1949 which found 3,384 acres of Indian trust land in Kern County and 62 Indians on the Census Roll. (SAC ¶32.)

Plaintiff allege alternatively their aboriginal title encompasses 270,000 acres or 49,000 acres which comprise the 1858 Survey of the Tejon/Sebastian reservation. (SAC ¶34-35.) Plaintiffs allege the following claims for relief:

(1) Unlawful possession under common law, Violation of Non-Intercourse Act, trespass and accounting, against TRC and TMV;
(2) Violation of the Native American Graves Protection and Repatriation Act, against TRC and TMV;
(3) Violation of Civil Rights, 42 U.S.C. §1983 against Kern;
(4) Violation of the California Environmental Quality Act (CEQA) and Govt. Code 65352.3 against Kern, TRC and TMV; and
(5) Declaratory relief against defendant Salazar.
A. Standard for Motion to Dismiss
1. Motion to Dismiss for Failure to State a Claim

A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the pleadings set forth in the complaint. A Fed. R. Civ. P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the factual allegations of the complaint in question, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008); Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969).

To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to reliefthat is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007). A claim has facial plausibility,"when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937 (2009). "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

A court is "free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Farm Credit Services v. American State Bank, 339 F.3d 765, 767 (8th Cir. 2003) (citation omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (internal citations omitted). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to pl...

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