Self v. Cher-Ae Heights Indian Cmty. of the Trinidad Rancheria, A158632

• Court: California Court of Appeals
• Writing for the Court: BURNS, J.
• Citation: 60 Cal.App.5th 209,274 Cal.Rptr.3d 255
• Parties: Jason SELF et al., Plaintiffs and Appellants, v. CHER-AE HEIGHTS INDIAN COMMUNITY OF the TRINIDAD RANCHERIA, Defendant and Respondent.
• Decision Date: 26 January 2021
• Docket Number: A158632

60 Cal.App.5th 209
274 Cal.Rptr.3d 255

Jason SELF et al., Plaintiffs and Appellants,
v.
CHER-AE HEIGHTS INDIAN COMMUNITY OF the TRINIDAD RANCHERIA, Defendant and Respondent.

A158632

Court of Appeal, First District, Division 5, California.

Filed January 26, 2021

J. Bryce Kenny, Eureka, for Plaintiffs and Appellants.

Hobbs, Straus, Dean & Walker, Timothy C. Seward, Sacramento, for Respondent.

BURNS, J.

60 Cal.App.5th 212

The question in this case is whether sovereign immunity bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe. We hold that the tribe's sovereign immunity bars the action. Congress has not abrogated tribal immunity for a suit to establish a public easement. The plaintiffs fail to persuade us that a common law exception to sovereign immunity for "immovable property" applies here. Consistent with decades of Supreme Court

274 Cal.Rptr.3d 257

precedent, we defer to Congress to decide whether to impose such a limit, particularly given the importance of land acquisition to federal tribal policy. We affirm the trial court's dismissal of the suit.

60 Cal.App.5th 213

BACKGROUND

A.

As " ‘separate sovereigns pre-existing the Constitution,’ " Indian tribes possess the " ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ " ( Michigan v. Bay Mills Indian Cmty. (2014) 572 U.S. 782, 788, 134 S.Ct. 2024, 188 L.Ed.2d 1071 ( Bay Mills ).) Tribes are domestic dependent nations subject to Congress's plenary authority. ( Ibid . ) Tribal immunity is part and parcel of Indian sovereignty and self-governance. ( Ibid. ) It protects tribes from the financial burdens of defending against suits, encourages economic development and self-sufficiency, and furthers tribal self-governance. ( People v. Miami Nation Enterprises (2016) 2 Cal.5th 222, 235, 211 Cal.Rptr.3d 837, 386 P.3d 357 ( Miami Nation ).)

Because it is a matter of federal law, tribal immunity is "not subject to diminution by the States." ( Bay Mills , supra , 572 U.S. at p 789, 134 S.Ct. 2024.) Tribes enjoy immunity from suit regardless of whether their activities are commercial in nature or whether their activities take place on a reservation. ( Id . at p. 790, 134 S.Ct. 2024 ; Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 758-760, 118 S.Ct. 1700, 140 L.Ed.2d 981 ( Kiowa ).) The United States Supreme Court has "time and again ... dismissed any suit against a tribe absent congressional authorization (or a waiver)." ( Bay Mills , supra , 572 U.S. at p. 789, 134 S.Ct. 2024.) In so doing, the court has deferred to Congress to determine the nature and limits of tribal immunity because it is Congress's job, not the courts’, to weigh competing policies and create exceptions to tribal immunity. ( Id . at pp. 800-801, 134 S.Ct. 2024.)

In short, tribal immunity is the rule, subject only to two exceptions: when a tribe has waived its immunity or Congress has authorized the suit. ( Bay Mills , supra , 572 U.S. at pp. 789-791, 134 S.Ct. 2024.)

B.

Defendant Cher-Ae Heights Indian Community of the Trinidad Rancheria ("Tribe") is a federally recognized Indian tribe. (See 84 Fed.Reg. 1200-01, 1201 (Feb. 1, 2019).) It purchased the coastal property at issue in fee simple absolute. The Tribe has applied to the federal Bureau of Indian Affairs ("Bureau") to take the property into trust for the benefit of the Tribe. (See 25 U.S.C. § 5108.) Some background on the administrative process is helpful to understanding the parties’ arguments.¹

60 Cal.App.5th 214

As part of the trust acquisition process, federal law requires a review of the Tribe's title and sets forth a process for resolving title issues. (See 25 C.F.R. § 151.13.) If the

274 Cal.Rptr.3d 258

federal government approves the Tribe's trust application, interested parties may appeal that decision. (See 25 C.F.R. § 151.12(d) ; see also, e.g., Crest-Dehesa-Granite Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific Regional Director, Bureau of Indian Affairs (IBIA 2015) 61 IBIA 208, 214-215 [remanding decision to take tribal property into trust due to failure to address adjacent property owners’ concerns regarding easement rights].) Federal law also includes a mechanism for obtaining a right of way over tribal trust lands, with the consent of the tribe. ( 25 U.S.C. §§ 323, 324 ; 25 C.F.R. § 169.101.)

Because the Tribe's proposed trust acquisition involves coastal property, the federal Coastal Zone Management Act imposes additional requirements. Each federal agency whose activity affects a coastal zone must certify that the activity is consistent to the maximum extent practicable with the state's coastal management policies. (See 16 U.S.C. § 1456(c) ; see also 15 C.F.R. § 930.36.) The state may concur or object to the federal consistency determination as part of a public process. ( 16 U.S.C. § 1456(c)(3)(A) ; 15 C.F.R. §§ 930.35, 930.39, 930.41, 930.42, 930.43.)

Here, the Bureau determined the Tribe's proposal is consistent with state coastal policies, including public access requirements in the state Coastal Act. (See Pub. Resources Code, § 30210 ["maximum access ... and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse"]; see also, e.g., Pub. Resources Code, §§ 30211, 30212, 30214.)

Our Coastal Commission—the agency primarily responsible for implementing the Coastal Act (see Pub. Resources Code, § 30330 )—concurred with the Bureau's determination. After securing commitments from the Tribe to protect coastal access and coordinate with the state on future development projects, the Commission concluded that the Tribe's proposal "would not interfere with the public's right to access the sea" and would be consistent with public access policies.

60 Cal.App.5th 215

In the future, if the Tribe violates the state's coastal access policies, the Coastal Commission may request that the Bureau take appropriate remedial action. (See 15 C.F.R. § 930.45(b)(1) ; see also 16 U.S.C. § 1456(c)(3)(A) [requiring new consistency review for future development projects that require federal permits].)

C.

According to the complaint, plaintiff Jason Self uses the Tribe's coastal property to access the beach for recreational purposes and for his kayaking business. Plaintiff Thomas Lindquist also uses the property to access the beach for recreation. They allege that the prior owner of the property dedicated a portion of it to public use, either expressly or impliedly, between 1967 and 1972. (See Civ. Code, § 1009, subd. (b) [limiting implied dedications of public easements to those established prior to March 4, 1972].) The complaint seeks to quiet title to a public easement for vehicle access and parking on the property.

Self and Lindquist do not allege that the Tribe has interfered with their coastal access or that it plans to do so. They worry that the Tribe might do so in the future, and they filed this case out of "an abundance of caution." Once the land is placed in trust, the federal government would hold title to it for the benefit of the Tribe. (See 25 U.S.C. § 5108.) The United States is immune to actions to quiet title to Indian trust land. ( 28 U.S.C. § 2409a(a).)

274 Cal.Rptr.3d 259

In the trial court, the Tribe entered a special appearance and, citing sovereign immunity, moved to quash service of process and to dismiss the complaint for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the case with prejudice.²

DISCUSSION

A.

It is settled that an Indian tribe is immune to suit in the absence of waiver or congressional abrogation of the tribe's immunity. ( Bay Mills , supra , 572 U.S. at pp. 788-790, 134 S.Ct. 2024 ; Kiowa , supra , 523 U.S. at p. 754, 118 S.Ct. 1700.) Self and Lindquist do not argue either exception applies here. Ordinarily, then, we

60 Cal.App.5th 216

must affirm the trial court's dismissal. ( Bay Mills , supra , 572 U.S. at p. 791, 134 S.Ct. 2024 ("Unless Congress has authorized Michigan's suit, our precedents demand that it be dismissed.")

Self and Lindquist argue that we should recognize an existing common law exception to sovereign immunity. They contend that, at common law, sovereigns such as states and foreign governments were not immune to property disputes, under the immovable property exception. The United States Supreme Court has never applied such an exception to a tribe and recently declined to decide the question in Upper Skagit Indian Tribe v. Lundgren (2018) ––– U.S. ––––, ––––, 138 S.Ct. 1649, 1652, 200 L.Ed.2d 931 ( Upper Skagit ).)

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