Slockish v. U.S. Federal Highway Admin., No. CV-08-1169-ST.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Stewart
• Citation: 664 F.Supp.2d 1192
• Parties: Hereditary Chief Wilbur SLOCKISH, a resident of Washington, individually and as Hereditary Chief of the Klickitat/Cascade Tribe; The Klickitat/Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Chief Johnny Jackson, a resident of Washington, individually and as Chief of the Cascade Tribe; The Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Carol Logan, a resident of Oregon; Cascade Geographic Society, an Oregon nonprofit corporation; and Mount Hood Sacred Lands Preservation Alliance, an unincorporated nonprofit association, Plaintiffs, v. UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, an Agency of the Federal Government; United States Bureau of Land Management, an Agency of the Federal Government; Advisory Council on Historic Preservation, an Agency of the Federal Government; and Matthew Garrett, Director of the Oregon Department of Transportation, an Agency of the State of Oregon, Defendants.
• Docket Number: No. CV-08-1169-ST.
• Decision Date: 13 October 2009

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664 F.Supp.2d 1192 Hereditary Chief Wilbur SLOCKISH, a resident of Washington, individually and as Hereditary Chief of the Klickitat/Cascade Tribe; The Klickitat/Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Chief Johnny Jackson, a resident of Washington, individually and as Chief of the Cascade Tribe; The Cascade Tribe, a confederated tribe of the Yakama Indian Nation; Carol Logan, a resident of Oregon; Cascade Geographic Society, an Oregon nonprofit corporation; and Mount Hood Sacred Lands Preservation Alliance, an unincorporated nonprofit association, Plaintiffs,
v.
UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, an Agency of the Federal Government; United States Bureau of Land Management, an Agency of the Federal Government; Advisory Council on Historic Preservation, an Agency of the Federal Government; and Matthew Garrett, Director of the Oregon Department of Transportation, an Agency of the State of Oregon, Defendants. No. CV-08-1169-ST. United States District Court, D. Oregon. October 13, 2009.

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James J. Nicita, Oregon City, OR, for Plaintiffs.

John Clinton Geil, Department of Justice, Sarah D. Foreman, Oregon Department of Justice, Matthew J. Donohue, State of Oregon, Salem, OR, for Defendants.

OPINION AND ORDER

STEWART, United States Magistrate Judge:

INTRODUCTION

This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project ("Wildwood-Wemme project" or "the project") near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration ("FHWA"), United States Bureau of Land Management ("BLM"), Advisory Council on Historic Preservation ("ACHP"), and Matthew Garrett, the Director of the Oregon Department of Transportation ("ODOT"), violated the National Historic Preservation Act ("NHPA"), 16 USC §§ 470-470x-6, National Environmental Policy Act ("NEPA"), 42 USC §§ 4321-4347, § 4(f) of the Department of Transportation Act ("DTA"), 49 USC § 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.

The federal defendants have filed a motion to dismiss (docket # 28) asserting that this court lacks subject-matter jurisdiction because the case is moot and some of the plaintiffs lack standing. Alternatively, the federal defendants assert that several of plaintiffs' claims in the First Amended Complaint ("FAC") fail to state a claim upon which relief can be granted.

Plaintiffs concede that their public trust doctrine, due process, and fiduciary duty claims are deficient and seek leave to amend to cure these deficiencies. However, a response to defendants' motion to dismiss is not the proper vehicle to do so. See LR 7.1(b). Otherwise, plaintiffs assert this court has subject matter jurisdiction over their remaining claims.

All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons that follow, defendants motion is GRANTED as to the Tenth, Eleventh, and Twelfth Claims and as to plaintiffs Slockish, Jackson, and the Klickitat and Cascade tribes.

STANDARDS

Motions to dismiss under FRCP 12(b)(1) for lack of subject-matter jurisdiction generally take two forms. First, a defendant may facially attack the allegations in the complaint as insufficient to establish subject-matter jurisdiction. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). "In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995).

Second, a party may go beyond the allegations in the complaint and attack the factual basis for subject matter jurisdiction. Thornhill, 594 F.2d at 733. If a party factually attacks subject matter jurisdiction,

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then no presumptive truthfulness attaches to the factual allegations in the complaint. Id. In that instance, a court has wide discretion to allow additional evidence in order to resolve disputed jurisdictional facts under FRCP 12(b)(1). Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983). Furthermore, a court's reference to evidence outside the pleadings does not convert the motion to a FRCP 56 summary judgment motion. Id. However, a court is required to convert a FRCP 12(b)(1) motion to dismiss into a FRCP 12(b)(6) or FRCP 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983).

Motions to dismiss for failure to state a claim pursuant to FRCP 12(b)(6) are governed by the standards recently enunciated in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In order to survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Thus,

[i]n keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 1950 (the "Twombly two-step").

FACTUAL ALLEGATIONS

I. Plaintiffs

Wilbur Slockish is a resident of the State of Washington and the hereditary Chief of the Klickitat Tribe, which is a confederated tribe within the Yakama Indian Nation. FAC, ¶ 4. He is a direct descendent of Sla-kish, a signatory to the 1855 Treaty between the United States and the confederated tribes of the Yakama Indian Nation. Id. Johnny Jackson is a resident of the State of Washington and the hereditary Chief of the Cascade Tribe. Id. ¶ 6. Together they claim harm, both as individuals and representatives of their tribes, from the damage to the cultural and historical resources located within the right-of-way of the Wildwood-Wemme project in which they and their tribes have an interest. Id. ¶¶ 4(A), 6(A). They also claim injury, both individually and as representative of their tribes, from various procedural violations committed by defendants in the course of approving and carrying out the Wildwood-Wemme project, including the defendants' failure to consult with them as representatives of their respective tribes throughout the course of the project. Id. ¶¶ 4(B), 6(B).

The Klickitat and Cascade Tribes are confederated Tribes of the Yakama Indian

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Nation.¹ They both consider the Mount Hood area, including the region located within the project, to be a "traditional cultural property."² Id. ¶¶ 5, 7. They claim injuries identical to those suffered by their respective leaders. Id.

Carol Logan is a resident of Oregon and is of Native American ancestry. Id. ¶ 8. She is a member of the Mount Hood Sacred Land Preservation Alliance ("MHSLPA"). Id. Logan and the MHSLPA use the affected area of the Wildwood-Wemme project for cultural, religious, recreational, and aesthetic purposes. Id. Logan has engaged in advocacy to preserve and protect Native American sacred lands within the Mount Hood area since the 1980s. Id. She claims injury from the damage to the cultural and historical resources located in the project area. Id.

The Cascade Geographic Society ("CGS") is a nonprofit corporation based in Oregon. Id. ¶ 9. It is dedicated to preserving and promoting the cultural, historical, and natural resources of the Cascade Mountain Range and its rivers. Id. It coordinates preservation efforts with Native Americans, descendants of pioneers, and other interested parties within this region. Id. It also uses the area affected by the Wildwood-Wemme highway project for cultural, recreational, and aesthetic purposes. Id. The CGS also claims injury due to the damage to cultural, historical, and natural resources located within the project area. Id. ¶ 9(A).

II. Wildwood-Wemme Project

The FHWA and ODOT widened U.S. Highway 26 from two to four lanes in the 1980s. Id. ¶ 17. That project included an environmental impact statement ("EIS") pursuant to NEPA. Id. Included in that project was the stretch of highway at issue here: a bow-shaped right-of-way adjacent to the Mountain Air Park subdivision and the Wildwood Recreation Area between the villages of Wildwood and Wemme near the town of Welches. Id. ¶¶ 1, 16-19. This segment of U.S. Highway 26 also includes within its right-of-way a section of the A.J. Dwyer Scenic Area, located in the northeast corner of the Wildwood Recreation Area which is owned by the BLM. Id. ¶ 11. Defendant ODOT owns the right-of-way for U.S. Highway 26. Id. ¶ 13.

During the development of the EIS for the 1980s project, an archaeologist identified an archaeological site located within the U.S. Highway 26 right-of-way as a potential stone tollbooth for the historic Barlow Road. Id. ¶¶ 16-17. This road

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served as a final leg of the Oregon Trail, bringing pioneers over the...