Tule Lake Comm. v. Fed. Aviation Admin.

• Decision Date: 24 September 2020
• Docket Number: No. 2:20-cv-00688 WBS DMC,2:20-cv-00688 WBS DMC
• Court: U.S. District Court — Eastern District of California
• Parties: TULE LAKE COMMITTEE, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, CITY OF TULELAKE, CALIFORNIA, CITY COUNCIL OF THE CITY OF TULELAKE, BILL G. FOLLIS, JUDY COBB, PHIL FOLLIS, JACK SHADWICK, RAMONA ROSIERE, and MODOC NATION fka MODOC TRIBE OF OKLAHOMA Defendants.

TULE LAKE COMMITTEE, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, CITY OF TULELAKE, CALIFORNIA,CITY COUNCIL OF THE CITY OF TULELAKE, BILL G. FOLLIS,JUDY COBB, PHIL FOLLIS, JACK SHADWICK, RAMONA ROSIERE,and MODOC NATION fka MODOC TRIBE OF OKLAHOMA Defendants.

No. 2:20-cv-00688 WBS DMC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

September 24, 2020

MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS

Plaintiff Tule Lake Committee brought this action against the Federal Aviation Administration ("FAA"), the City of Tulelake, California ("the City") and its City Council (collectively, "the City defendants"), as well as the Modoc Nation and individual members of the Modoc Nation's Tribal Council (collectively, "the tribal defendants"), alleging that defendants' involvement in an agreement between the City and the Modoc Nation to sell land underlying the Tulelake Municipal Airport violated the National Historic Preservation Act, the terms of a federal land patent granting the land to the City, and a number of state statutes. The FAA, the City defendants, and the tribal defendants have moved to dismiss for lack of subject matter jurisdiction, failure to state a claim, and failure to join a necessary and indispensable party under Federal Rule of Civil Procedure ("FRCP") 19. (Docket Nos. 7, 12, 13).

I. Relevant Allegations

This case arises out of a dispute over property located on the site of a former Japanese internment camp at Tule Lake. (See Compl. ¶¶ 4, 14 (Docket No. 1).) In 1951, the United States conveyed 359 acres of the internment camp land to the City of Tulelake to use as an airport via a federal land patent. (Compl. ¶ 19.) The patent granting the City fee ownership of the property contained covenants requiring that the City develop an airport on the land and that the airport be operated as a "public airport." (Compl. ¶ 103.) Between 1974 and 2018, the City leased the airport property to Modoc County. (Compl. ¶¶ 21, 35.)

Plaintiff is a California non-profit public benefit corporation whose purpose is to preserve the history and experiences of the inmates of the Tule Lake camp, educate the general public about the false imprisonment of American citizens and immigrants of Japanese ancestry in the 1940s, and to recognize the unique role of the Tule Lake camp in the United States' system of Japanese internment. (Compl. ¶ 4.) Plaintiff has previously expressed the view that the airstrip on theproperty at issue should be relocated to preserve historic aspects of the property, including a cemetery that lay near the edge of the airport grant. (Compl. ¶¶ 20, 43-48.)

Sometime before or during 2018, the City defendants decided to sell their fee interest in the airport property to the Modoc Nation. (Compl. ¶ 50.) Once plaintiff learned that the City defendants were interested in selling the airport property, it made several written offers to purchase the property for $40,000, and it appeared at an open City Council meeting on July 31, 2018 to express its interest. (Compl. ¶¶ 49-70.)

The City defendants voted to sell the airport property to the Modoc Nation for $17,500 at the conclusion of the July 31, 2018 City Council meeting, contingent upon the FAA consenting to the transfer of the airport property to the Modoc Nation. (Compl. ¶ 70, Ex. C.) On August 9, 2018, the City defendants sent the FAA a copy of the parties' purchase and sale agreement ("the Purchase Agreement") for the airport property and requested that the FAA approve the sale. (See Compl. Ex. D.) A Manager from FAA's Regional Airport Division Office issued a letter ("the Armstrong Letter") in response, indicating that the office had no objection to the proposed sale. (See Compl. Ex. F.)

Following the City defendants' decision to sell the airport property to the Modoc Nation, plaintiff filed suit seeking to set aside the sale of the airport property. (See Compl. ¶¶ 191-200.) The complaint contains the following causes of action: (1) violation of the National Historic Preservation Act ("NHPA"), 54 U.S.C. §§ 3 0 6102-3016108, and Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702-706; (2) violation of the1951 Federal Land Patent and the APA; (3) violation of the California Surplus Act, Cal. Gov. Code §§ 54220-54222; (4) violation of public policy; (5) violation of the Ralph M. Brown Act, Cal. Gov. Code §§ 54953-54960; and (6) violation of 42 U.S.C. §§ 1981, 1983. (See generally Compl.)

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff's complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the complaint has stated "a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

III. Discussion

The only federal claims that plaintiff raises in its complaint are against the FAA.¹ Plaintiff first claims that the FAA violated the NHPA, 54 U.S.C. § 306108, by approving the City defendants' sale of the airport property without first complyingwith certain procedural requirements under the statute. (See Compl. ¶¶ 77-92.) Plaintiff also claims that the FAA violated the terms of the 1951 federal land patent by failing to prevent the sale of the property to the Modoc Nation. (See id.)

A. Violation of the NHPA

Plaintiff's claim under the NHPA seeks judicial review of the FAA's alleged approval of the sale of the airport property under APA section 702. APA section 702 allows persons "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" to seek judicial review. 5 U.S.C. § 702.

Because section 702 grants judicial review for legal wrongs caused by "agency action," in order for the court to have subject matter jurisdiction over this claim plaintiff's complaint must allege facts sufficient to support the conclusion that the FAA's approval of the airport transfer was an "agency action". Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800-01 (9th Cir. 2013) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 61-62 (2004)); see also Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008) (noting that the presence of a final agency action is "a jurisdictional requirement to obtaining judicial review under the APA"). The APA defines "agency action" as "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13).

The complaint must also allege facts sufficient to show that the FAA's action was "final" under the APA. Id. ("To maintain a cause of action under the APA, a plaintiff mustchallenge 'agency action' that is 'final.'" (quoting Norton, 542 U.S. at 61-62)); see also 5 U.S.C. § 704 (further limiting review under the APA to "final agency action for which there is no other adequate remedy in court") (emphasis added). The Supreme Court has articulated a two-part test to determine if an agency action is "final" under the APA:

First, the action must mark the consummation of the agency's decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citations removed).

Here, plaintiff's complaint identifies two potential agency actions taken as part of the FAA's approval: first, that the Armstrong Letter acted as a "permit, license, or approv[al]" for the City defendants to sell the airport property to the Modoc Nation (See Compl. ¶ 85); and second, that the FAA's failure to carry out the NHPA's procedural requirements prior to approving the sale of the airport property constituted a reviewable agency action (See Compl. ¶ 86). For the following reasons, neither action qualifies as "agency action," much less "final agency action," under the APA. See Wild Fish Conservancy, 730 F.3d at 800-01.

1. The Armstrong Letter

The Armstrong Letter is not "agency action" because it is not the type of "circumscribed, discrete agency action[]" that is ordinarily the subject of judicial review. See Norton, 542 U.S. at 62. "The definition of [agency action] begins with alist of five categories of decisions made or outcomes implemented by an agency--'agency rule, order, license, sanction [or] relief.'" Id. (quoting 5 U.S.C. § 551(13)).

The Armstrong Letter--which plaintiff attaches to the complaint as an exhibit--does not fall under any of those five categories. (See Compl. Ex. F.) The Letter outlines the terms of the parties' Purchase Agreement and acknowledges that the operator of the airport is subject to existing obligations under the law to receive federal grant funding from the FAA. (See id.) It then states that "based on [the] information and the conditions provided [by the parties], the FAA has no objection to the proposed Purchase Agreement of the Airport property from the City to the Tribe." (Id.)

The Armstrong Letter is essentially an advisory opinion informing the parties to the Purchase Agreement of the airport operator's obligations under law and under the terms of the 1951 land patent. It is not "an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy," 5 U.S.C. § 551(4) (definition of rule), or "a final disposition ... in a matter other than rule making," see id. at § 551 (6) (order). Nor is it a ...