Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc.

• Citation: 489 F.Supp.3d 611
• Decision Date: 23 September 2020
• Docket Number: Civil Action No. 5:19-cv-01084-OLG
• Parties: TAP PILAM COAHUILTECAN NATION, San Antonio Missions Cemetery Association, Raymond Hernandez, Plaintiffs, v. ALAMO TRUST, INC., Douglass W. McDonald, CEO of the Alamo Trust, Texas General Land Office and George P. Bush, Commissioner of the General Land Office of the State of Texas and the Texas Historical Commission, City of San Antonio, Texas, Defendants.
• Court: U.S. District Court — Western District of Texas

489 F.Supp.3d 611

TAP PILAM COAHUILTECAN NATION, San Antonio Missions Cemetery Association, Raymond Hernandez, Plaintiffs,

v.ALAMO TRUST, INC., Douglass W. McDonald, CEO of the Alamo Trust, Texas General Land Office and George P. Bush, Commissioner of the General Land Office of the State of Texas and the Texas Historical Commission, City of San Antonio, Texas, Defendants.

Civil Action No. 5:19-cv-01084-OLG

United States District Court, W.D. Texas, San Antonio Division.

Signed September 23, 2020

Adrian A. Spears, II, Law Office of Adrian A. Spears II, Charles H. Sierra, Sierra Spears, PLLC, San Antonio, TX, Arturo I. Martinez de Vara, Martinez de Vara Law Firm, Von Ormy, TX, for Plaintiff Tap Pilam Coahuiltecan Nation.

Adrian A. Spears, II, Law Office of Adrian A. Spears II, San Antonio, TX, Arturo I. Martinez de Vara, Martinez de Vara Law Firm, Von Ormy, TX, for Plaintiffs San Antonio Missions Cemetery Association, Raymond Hernandez.

Blake W. Stribling, Manuel Mungia, Matthew E. Pepping, Chasnoff Mungia Valkenaar Pepping & Stribling LLP, S. Mark Murray, Law Office of S. Mark Murray, San Antonio, TX, for Defendants Alamo Trust, Inc., Douglass W. McDonald.

Donato D. Ramos, Jr., Donato D. Ramos, Sr., James Brandon Hughes, Law Offices of Donato D. Ramos, PLLC, Laredo, TX, for Defendants Texas General Land Office, George P. Bush.

ORDER

ORLANDO L. GARCIA, Chief United States District Judge On this day, the Court considered Defendant George P. Bush, Commissioner of the Texas General Land Office's Motion to Dismiss First Amended Complaint (docket no. 47) and Defendant Douglass W. McDonald's Motion to Dismiss Plaintiffs’ First Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7) (docket no. 48). After careful consideration, the Court finds that the motions should be GRANTED, and this case be DISMISSED. Because these Motions to Dismiss are granted, the remaining pending motions (docket nos. 9, 19, and 42) are DISMISSED AS MOOT.

BACKGROUND

This lawsuit centers around the human remains found at the Alamo. Plaintiffs contend that they are the descendants of those remains, and thus initiated this lawsuit seeking an injunction protecting their interests in light of the ongoing renovation at the Alamo (the "Alamo Plan"). Plaintiff Tap Pilam Coahuiltecan Nation is a tribal community of American Indians who trace their ancestry to the Spanish Colonial Missions of Texas and Northeastern Mexico, including Mission San Antonio de Valero, or the Alamo. See docket no. 44 at ¶ 1. Plaintiff Raymond Hernandez is an enrolled member of the tribe who is a direct descendant of ancestors from the Alamo. Id. Plaintiff San Antonio Missions Cemetery Association is a nonprofit consisting of lineal descendants of those buried in the San Antonio Missions Cemeteries, including the Alamo. Id.

Plaintiffs originally initiated this lawsuit against the City of San Antonio, the Texas General Land Office and its Commissioner George P. Bush, the Texas Historical Commission, and Alamo Trust, Inc. and its CEO Douglass W. McDonald. See docket no. 1. After each Defendant moved to dismiss the case, this Court dismissed each of the state and local agencies on either sovereign immunity or standing grounds. See docket no. 43. The Court noted that Plaintiffs could amend their complaint for their claims against Commissioner George P. Bush (the "Commissioner") and Alamo Trust, Inc. CEO Douglass W. McDonald ("McDonald") (collectively "Defendants"). Id. As was made clear in the briefing, these Defendants were the officials in charge of the Alamo Plan. Id. ; Tex. Nat. Res. Code Ann § 31.451(a) - (b) (vesting the power over the Alamo "solely in the GLO"); Tex. Nat. Res. Code Ann. § 31.451(d) (authorizing the GLO to "partner with a qualifying nonprofit organization ... for the performance of any activity."). Plaintiffs filed their First Amended Complaint against both Defendants, and Defendants subsequently filed the present Motions to Dismiss. See docket nos. 44, 47, & 48.

Plaintiffs’ injuries remain the same. First, Plaintiffs allege that Defendants denied them equal protection of the law as guaranteed by the Fourteenth Amendment by excluding them from the human remains protocol. See docket no. 44 at ¶ 52. They allege that the Commissioner enacted a policy "to set up the structure of the Alamo Trust, Inc. and several nonprofits," which in turn "formed the archaeological committee and drafted the human remains protocol which officially excluded Plaintiffs from the project." Id. Plaintiffs allege that this policy was intentionally crafted to block them from participating in the project. Id. Likewise, Plaintiffs allege that the Commissioner selectively applied federal laws in order to permit federally recognized Indian tribes, as opposed to Plaintiffs, to participate in the human remains protocol. Id. at ¶¶ 53, 55. This policy, Plaintiffs allege, discriminates against them based on their race and national origin, and, accordingly, strict scrutiny should apply. Id. at ¶ 57. With respect to McDonald, Plaintiffs allege that, acting as a state actor, McDonald executed and implemented these policies. Id. at ¶¶ 59-61.

Second, Plaintiffs assert that Defendants have denied the free exercise of their religion in violation of the First Amendment in two ways. One, Plaintiffs allege that they were not permitted to conduct their Sunrise Memorial Ceremony in the Alamo Chapel in September of 2019. Id. at ¶ 66. Plaintiffs allege that this religious ceremony was prohibited by the Commissioner's policy and McDonald's execution of that policy. Id. Plaintiffs further allege that the Alamo Chapel permitted tourists to enter on the same day. Id. Two, Plaintiffs allege that their exclusion from the human remains protocol and the process for the reinterment of discovered remains also inhibits the free exercise of their religion. Id. at ¶ 65. Specifically, Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place. Id. Plaintiffs believe that these ceremonies are sacred obligations, and that when they are performed, "the spirits will guide and heal and give blessings as a result of the practice." Id. And, "if the ceremonies are not performed, [Plaintiffs] believe that there will be spiritual repercussions and that evil will come their way." Id. In sum, Defendants’ exclusion of Plaintiffs from the human remains protocol prevents them from performing these ceremonies.

Finally, Plaintiffs allege that Defendants are violating their due process rights. Plaintiffs state that because they have been involved in human remains protocols at previous construction projects, their exclusion here violates their right to due process. Id. at ¶ 79-80. Moreover, Plaintiffs allege that the "regulation" is void for vagueness as it granted too much discretion to the officials to selectively apply laws to avoid including them in the project. Id. The Court notes that this final cause of action is ambiguous and vague.

In response, both Defendants filed their Motions to Dismiss. See docket nos. 47 & 48. After Plaintiffs failed to timely respond, the Court granted them an additional ten days. See docket no. 49. Plaintiffs’ counsel then requested a further extension due to health issues, prompting the Court to stay the motions pending further notice from the parties. See docket no. 50. Less than a month later, Defendants notified the Court that Plaintiffs’ counsel had filed a separate lawsuit in state court seeking a similar injunction against the Alamo Plan. See docket no. 51. Accordingly, the Court ordered Plaintiffs to respond to the motions, granting them an additional 14 days. See docket no. 52. Plaintiffs’ response appears to be largely cut and pasted from their amended complaint. Compare docket no. 53 with docket no. 44. The response also fails to cite to any case law supporting their argument that they have adequately alleged legal claims, in violation of Local Rule CV-7(e)(1). See Local Rule CV-7(e)(1) ("The response must contain a concise statement of the reasons for opposition to the motion and citations of the legal authorities on which the party relies."). Regardless, Defendants filed their replies, and the Court now turns to the merits of their Motions to Dismiss.

ANALYSIS

1. Rule 12(b)(1)

Both Defendants seek dismissal of Plaintiffs’ claims pursuant to Rules 12(b)(1) and 12(b)(6). Rule 12(b)(1) provides for a case's dismissal for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Because subject matter jurisdiction goes to the heart of the Court's power to hear the case, the Court should consider these arguments first. See Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). In considering a Rule 12(b)(1) motion, the Court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint, undisputed facts, and the Court's resolution of disputed facts. Spotts v. United States , 613 F.3d 559, 566 (5th Cir. 2010). In other words, the Court may "weigh the evidence and satisfy itself" that subject matter jurisdiction exists. MDPhysicians & Assocs., Inc. v. State Bd. of Ins. , 957 F.2d 178, 181 (5th Cir. 1992) (quoting Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981) ). Both Defendants challenge this Court's jurisdiction for the same two reasons: Eleventh Amendment sovereign immunity protects them from suit and Plaintiffs lack standing. See docket nos. 47 & 48.

A. Sovereign Immunity

With respect to sovereign immunity, the Eleventh Amendment generally "bars private suits against nonconsenting states in federal court." City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019). This protection extends to state agencies and officials acting in their official capacity. Id. (citing Edelman v. Jordan , 415 U.S. 651, 663-69, 94 S.Ct. 1347, 39...