Case 4:15-cv JSW Document 31 Filed 02/22/16 Page 1 of 21

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1 Case :-cv-0-jsw Document Filed 0// Page of 0 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice DAVID B. GLAZER (D.C. 00) Natural Resources Section Environment & Natural Resources Division United States Department of Justice 0 Howard Street, Suite 00 San Francisco, California 0 TEL: () FAX: () - david.glazer@usdoj.gov Attorneys for Federal Defendant UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 0 THE COYOTE VALLEY BAND OF POMO INDIANS OF CALIFORNIA and THE ROUND VALLEY INDIAN TRIBES OF CALIFORNIA, Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants. No. :-cv-0-jsw FEDERAL DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS Date: April, 0 Time: :00 a.m. Courtroom No. Hon. Jeffrey S. White Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

2 Case :-cv-0-jsw Document Filed 0// Page of 0 TABLE OF CONTENTS I. SUMMARY OF ARGUMENT... II. STATUTORY BACKGROUND... A. NEPA... B. The Surface Transportation Project Delivery Program... C. Section (f) of the Department of Transportation Act... D. The National Historic Preservation Act... III. ARGUMENT... A. Standard of Review... B. Plaintiffs Have No Claim Against the Federal Defendants Under NEPA or Section (f)... C. Plaintiffs Have No Claim Against the Federal Defendants for Failure to Engage in Government-to-Government Consultation under the NHPA... D. Plaintiffs Prayer for Damages Must be Dismissed... IV. CONCLUSION... 0 Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss ii

3 Case :-cv-0-jsw Document Filed 0// Page of 0 0 Cases Alvarado v. Table Mountain Rancheria, TABLE OF AUTHORITIES 0 F.d 00 (th Cir. 00)... Anderson v. Holder, F.d 0 (th Cir. 0)... Ashcroft v. Iqbal, U.S. (00)...,, Balistreri v. Pacifica Police Dep t, 0 F.d (th Cir. 0)... Bell Atl. Corp. v. Twombly, 0 U.S. (00)..., Califano v. Sanders, 0 U.S. ()... Center for Biological Diversity v. Federal Highway Admin., No. C -0 JSW, 0 U.S. Dist. LEXIS (N.D. Cal. Sept., 0)...,, Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0 ()... City of Oakland v. Lynch, F.d (th Cir. 0)..., Clinton v. Babbitt, 0 F.d 0 (th Cir. )... Coal. Against a Raised Expressway, Inc. v. Dole, F.d 0 (th Cir. )... Dep t of the Army v. Blue Fox, Inc., U.S. ()... El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, F.d (th Cir.)... Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss iii

4 Case :-cv-0-jsw Document Filed 0// Page of 0 0 Exxon Mobil Corp. v. Allapattah Servs., Inc., U.S. (00)... Federal Deposit Ins. Corp. v. Meyer, 0 U.S. ()... Grand Canyon Trust v. Williams, F. Supp. d 0 (D. Ariz. 0)..., Hells Canyon Pres. Council v. U.S. Forest Serv., F.d (th Cir. 00)..., Kokkonen v. Guardian Life Ins. Co. of Am., U.S. ()... Loeffler v. Frank, U.S. ()... Mendiondo v. Centinela Hosp. Medical Ctr., F.d 0 (th Cir. 00)... Moss v. U.S. Secret Serv., F.d (th Cir. 00)... Muckleshoot Indian Tribe v. U.S. Forest Serv., F.d 00 (th Cir. )... Oregon Natural Res. Council v. Thomas, F.d (th Cir. )... Orff v. United States, U.S. (00)...,, Outdoor Media Group, Inc. v. City of Beaumont, 0 F.d (th Cir. 00)... Quechan Indian Tribe of the Fort Yuma Indian Reserv. v. U.S. Dep t of Interior, F. Supp. d 0 (D. Ariz. 00)..., San Carlos Apache Tribe v. United States, F.d 0 (th Cir. 00)... Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss iv

5 Case :-cv-0-jsw Document Filed 0// Page of 0 0 Skokomish Indian Tribe v. United States, 0 F.d 0 (th Cir. 00)..., Southwest Ctr. for Biological Diversity v. Klasse, No. CIV S-- GEB JF, WL (E.D. Cal. Apr., )... Swartz v. KPMG LLP, F.d (th Cir. 00)... Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep t of Interior, 0 F.d (th Cir. 00)...,, United States v. Sherwood, U.S. ()... United States v. Testan, U.S. ()... Statutes U.S.C U.S.C U.S.C 0a U.S.C. 0f... 0 U.S.C. 0i... U.S.C. 0s... U.S.C.... passim U.S.C...., U.S.C. (l)...,, U.S.C. (d)...,, 0 U.S.C.... U.S.C. (b)... U.S.C. (b)()... U.S.C. 0(a)..., U.S.C. 0h..., Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss v

6 Case :-cv-0-jsw Document Filed 0// Page of 0 0 U.S.C.... U.S.C.... U.S.C.... U.S.C U.S.C U.S.C. 0(c)..., U.S.C. 0(c)()... U.S.C. (f)... U.S.C U.S.C ,, 0 U.S.C Pub. L. No Pub. L. No Rules Fed. R. Civ. P. (b)()...,,, Fed. R. Civ. P. (b)()... Fed. R. Civ. P. (h)()... Regulations C.F.R..0(a)... C.F.R..(a)()... C.F.R..(c)()... C.F.R..(f)... C.F.R..... C.F.R. Part C.F.R. 00.(b)()... C.F.R. 00.(b)... 0 C.F.R. 0.(a)... Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss vi

7 Case :-cv-0-jsw Document Filed 0// Page of Federal Register Notices Fed. Reg. 0 (Jan., 00)... Fed. Reg. Reg., (Mar., 00) Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss vii

8 Case :-cv-0-jsw Document Filed 0// Page of 0 0 NOTICE OF MOTION Federal Defendants Federal Highway Administration ( FHWA ), FHWA Administrator Gregory G. Nadeau, U.S. Department of Transportation ( USDOT ), and Secretary of Transportation Anthony Foxx move to dismiss Plaintiffs Complaint ( Compl. ), ECF No., as to the Federal Defendants. Their motion is scheduled for April, 0, at :00 a.m., in Courtroom No., U.S. Courthouse, Oakland, California, before the Honorable Jeffrey S. White. I. SUMMARY OF ARGUMENT Two California Indian tribes challenge the Willits Bypass ( Project ), a highway project in Northern California, suing under the National Environmental Policy Act ( NEPA ), U.S.C. 0h, the National Historic Preservation Act ( NHPA ), U.S.C. 00, Section (f) of the Department of Transportation Act, U.S.C. 0(c), and Section (a) of the Federal-Aid Highway Act, U.S.C.. Plaintiffs name the California Department of Transportation ( Caltrans ) and Caltrans Director Malcolm Dougherty, in addition to the Federal Defendants, alleging that Defendants have not adequately protected and minimized Project impacts on cultural resources, primarily buried Native American artifacts. But Caltrans has been assigned and has assumed responsibility for environmental review of the Project, as well as defense of litigation; therefore, Plaintiffs should not have named the Federal Defendants in this Action. Center for Biological Diversity v. Federal Highway Administration, No. C -0 JSW, ECF No., 0 U.S. Dist. LEXIS, at * (N.D. Cal. Sept., 0). Any claims against the Federal Defendants arising from alleged actions or omissions predating that assignment and assumption would be barred by the statute of limitations. Id. at * ; U.S.C. (l); City of Oakland v. Lynch, F.d, (th Cir. 0); Hells Canyon Pres. Council v. U.S. Forest Serv., F.d, 0 (th Cir. 00); U.S.C. 0(a). Nor have Plaintiffs stated a claim against the Federal Defendants for insufficient government-to-government consultation, but instead seek relief available only from Caltrans and even then fail to adequately plead their claim. Te Moak Tribe of W. Shoshone of Nev. v. U.S. Dep t of Interior, 0 F.d, 0 (th Cir. 00); Quechan Indian Tribe of the Fort Yuma Indian Reserv. v. U.S. Dep t of Interior, F. Supp. d 0, 0 (D. Ariz. 00); Grand Canyon Trust v. Williams, F. Supp. d 0, 0 (D. Ariz. 0). Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

9 Case :-cv-0-jsw Document Filed 0// Page of Finally, Plaintiffs request for damages must be dismissed because this Court lacks jurisdiction over such a demand. Orff v. United States, U.S., 0 (00); Skokomish Indian Tribe v. United States, 0 F.d 0, 0 (th Cir. 00) (en banc). II. STATUTORY BACKGROUND A. NEPA NEPA requires preparation of an Environmental Impact Statement ( EIS ) for major Federal 0 0 actions significantly affecting the quality of the human environment. U.S.C. (C). Under NEPA s implementing regulations, a major Federal Action may include the provision of funding for, rather than work on, a project. 0 C.F.R. 0.(a). NEPA is a procedural statute enacted to ensure that government agencies make major decisions significantly affecting the environment only after considering the impacts of those decisions and exploring possible alternatives. U.S.C.,. B. The Surface Transportation Project Delivery Program The Surface Transportation Project Delivery Program ( Program ), U.S.C., allows a state to accept assignment of sole responsibility and liability for environmental review of a highway project, subject to certain exceptions not relevant here. That assignment of responsibilities and liability is to be memorialized in a written agreement. Id. (a)()(a), (c). The FHWA and Caltrans have entered into a Memorandum of Understanding ( MOU ) under which Caltrans agreed to accept assignment of all such responsibilities, including those under NEPA, the NHPA, Section (f) of the Department of Transportation Act, and Section of the Federal-Aid Highway Act, excepting only those not subject to such assumption. See Compl.,, (noting assignment of responsibilities); Glazer Decl. Exh. A,.,. (copy of MOU). Under the Program, a district court has exclusive Those regulations, codified at 0 C.F.R. Parts 00, have been promulgated by the Council on Environmental Quality ( CEQ ). The CEQ is established under Sections 0 0 of NEPA, U.S.C.. Its regulations govern implementation of the statute by all federal agencies. Section 0 of NEPA, U.S.C., further requires all federal agencies to provide for NEPA compliance in their own regulations and procedures. For instance, conformity determinations under Section of the Clean Air Act, U.S.C. 0, may not be assigned. U.S.C. (a)()(b)(iv)(ii). The Court may take judicial notice of the MOU under Federal Rule of Evidence 0. See Anderson v. (Footnote continued) Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

10 Case :-cv-0-jsw Document Filed 0// Page 0 of 0 0 jurisdiction over an action against a state for failure to carry out any responsibility assigned under the Program, U.S.C. (d), and a state participating in the Program is solely responsible and solely liable for carrying out, in lieu of the Secretary [of Transportation], the responsibilities assumed..., id. (e). C. Section (f) of the Department of Transportation Act Where a transportation project is anticipated to use historic resources or public park land, Section (f) of the Department of Transportation Act requires an agency to consider whether a prudent and feasible avoidance alternative exists that would avoid use of Section (f)-protected properties. U.S.C. 0(c)(); C.F.R..(a)(); see Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0, (). A feasible and prudent avoidance alternative is one that avoids using Section (f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section (f) property. C.F.R.. (definition of Feasible and prudent avoidance alternative at ()). Where no feasible and prudent alternative exists, the agency must select from other alternatives the one that poses the least overall harm. C.F.R..(c)(). Section (a) of the Federal-Aid Highway Act, U.S.C., contains a virtually identical provision but applies only to FHWA activities. See Fed. Reg.,,, n. (Mar., 00) (final rule modifying Section (f) approval procedures). The FHWA s NEPA regulations provide that to the fullest extent possible, all environmental investigations, reviews, and consultations be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental review document required by Holder, F.d 0, 0 n. (th Cir. 0) (Court may take judicial notice of the records of administrative agencies). The MOU and its renewal can be found at (listing U.S.C. NEPA Assignment MOU (October, 0) and U.S.C. Pilot Program MOU with Federal Highway Administration Original (July, 00)) (last updated Jan., 0). Section (f) was originally codified at U.S.C. (f), but was later repealed and recodified without substantial change at U.S.C. 0. Act of Jan.,, Pub. L. No. -, 0, Stat.,. See Coal. Against a Raised Expressway, Inc. v. Dole, F.d 0, 0 n. (th Cir. ). The statutory provision continues to be referred to as Section (f), despite the recodification. As context allows, U.S.C. 0(c) and U.S.C. will for convenience be referred to collectively as Section (f). Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

11 Case :-cv-0-jsw Document Filed 0// Page of 0 0 this regulation. C.F.R..0(a). An EIS should document compliance with requirements of all applicable environmental laws, Executive orders, and other related requirements. Id... Under FHWA s Section (f) regulations, a Section (f) evaluation is ordinarily documented as part of an EIS or Record of Decision. C.F.R..(f). The FHWA prepared the EIS and Section (f) evaluation for the Project, in 00, prior to the FHWA-Caltrans MOU. See Compl.. D. The National Historic Preservation Act The NHPA provides that federal agencies having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property. U.S.C. 00. Regulations governing compliance with the NHPA are codified at C.F.R. Part 00. These regulations direct agencies to determine if a project qualifies as an undertaking that has the potential to cause effects on historic properties. Id. 00.(a). If so, the agency must consult with the state historic preservation officer ( SHPO ) to [d]etermine and document the area of potential effects[.] Id. 00.(a)(); see also id. 00.(d). The agency, along with the SHPO, is then directed to apply the National Register criteria to arguably eligible sites within the area of potential effects surrounding the project. Id. 00.(c)(). If the agency finds that historic sites may be affected, it must solicit the views of various parties. Id. 00.(d)(). The agency then applies the criteria of the regulations to determine if there is an adverse effect, id. 00.(a), and if so, engages in further consultation to resolve any such adverse effects, id The NHPA s implementing regulations, promulgated by the interagency Advisory Council on Historic Preservation ( ACHP ), require agencies to provide a federally recognized Indian tribe with a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties,... articulate its views on the undertaking s effects on such properties, and participate in the resolution of adverse effects. C.F.R. 00.(c)()(ii)(A). The ACHP has been established and authorized under U.S.C. 00, 00, 00 (and its statutory predecessors, U.S.C. 0i, 0j, 0s) to advise and make recommendations to other federal agencies on matters of historic preservation and to promulgate regulations implementing the NHPA. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

12 Case :-cv-0-jsw Document Filed 0// Page of 0 When addressing a program or the resolution of adverse effects from complex project situations or multiple undertakings, an agency may use a Programmatic Agreement to satisfy its NHPA obligations. C.F.R. 00.(b). Programmatic Agreements are particularly useful [w]hen effects on historic properties cannot be fully determined prior to approval of an undertaking. C.F.R. 00.(b)()(ii). Compliance with the procedures established by an approved programmatic agreement satisfies the agency s... responsibilities for all individual undertakings of the program covered by the agreement until it expires or is terminated.... Id. 00.(b)()(iii). Like NEPA, the NHPA does not prohibit harm to historic properties, but creates obligations that are chiefly procedural in nature[.] San Carlos Apache Tribe v. United States, F.d 0, 0 (th Cir. 00) (citation omitted). Both statutes have the goal of generating information about the impact of federal actions on the environment; and both require that the relevant federal agency carefully consider the information produced. Id.; see Te-Moak Tribe, 0 F.d at 0. III. ARGUMENT A. Standard of Review A defendant may move under Rule (b)() to dismiss a claim for lack of federal subject matter 0 jurisdiction. Fed. R. Civ. P. (b)(). It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., U.S., () (internal citations omitted). In determining whether it has jurisdiction, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Outdoor Media Group, Inc. v. City of Beaumont, 0 F.d, 00 (th Cir. 00) (quoting Swartz v. KPMG LLP, F.d, (th Cir. 00)), aff d after remand, F. App x (th Cir. 0). However, a court does not have to accept as true allegations that are conclusory in nature. See Ashcroft v. Iqbal, U.S., (00) ( [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. ). If [a] court determines... that it lacks subject-matter jurisdiction, [then it] must dismiss the action. Fed. R. Civ. P. (h)(). Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

13 Case :-cv-0-jsw Document Filed 0// Page of 0 0 Similarly, a complaint must be dismissed for failure to state a claim upon which relief can be granted under Rule (b)() if it suffers from either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep t, 0 F.d, (th Cir. 0). Although at the pleading stage the complaint need not contain detailed factual allegations to survive a Rule (b)() dismissal, it must provide more than a formulaic recitation of the elements of a cause of action. Mendiondo v. Centinela Hosp. Medical Ctr., F.d 0, 0 (th Cir. 00) (quoting Bell Atl. Corp. v. Twombly, 0 U.S., (00)); accord Moss v. U.S. Secret Serv., F.d, (th Cir. 00). Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege enough facts to state a claim to relief that is plausible on its face. 0 U.S. at 0. 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. Iqbal, U.S. at (citing Twombly, 0 U.S. at ). 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.... Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (quoting Twombly, 0 U.S. at ) (internal quotation marks omitted). B. Plaintiffs Have No Claim Against the Federal Defendants Under NEPA or Section (f) Plaintiffs first two claims arise solely under NEPA and Section (f). Compl. ;. Plaintiffs allegations and the clear statutory directive of U.S.C. compel the conclusion Plaintiffs also assert violations of the Administrative Procedure Act ( APA ), U.S.C. 0, under their first two claims, but Section 0 of the APA is merely a limited waiver of sovereign immunity for judicial review of certain federal agency actions. It is not an independent grant of subject matter jurisdiction. Califano v. Sanders, 0 U.S., 0 0 (). One can no more violate APA Section 0 than one can violate the federal question statute, U.S.C.. El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, F.d, (th Cir.) ( There is no right to sue for a violation of the APA in the absence of a relevant statute whose violation forms the legal basis for [the] complaint. ) (internal quotation marks and citations omitted); Sw. Ctr. for Biological Diversity v. Klasse, No. CIV S-- GEB JF, WL, at * (E.D. Cal. Apr., ) (same); see also Alvarado v. Table Mountain Rancheria, 0 F.d 00, 0 (th Cir. 00) (statutory grant of subject matter jurisdiction must exist in addition to a waiver of sovereign immunity); Or. Natural Res. Council v. Thomas, F.d, n.0 (th Cir. ) ( [T]here can be no arbitrary and capricious review under APA 0()(A) independent of another statute. ). For these reasons, Plaintiffs first two claims must be read to plead only NEPA and Section (f) claims. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

14 Case :-cv-0-jsw Document Filed 0// Page of 0 0 that the Federal Defendants must be dismissed from those claims. In enacting Section, Congress determined that a participating state should be solely liable as the proper defendant and that a reviewing court would have jurisdiction over the state in lieu of the federal government. U.S.C. (d), (e). Plaintiffs plead nothing in their Complaint that would support any independent claim under NEPA or Section (f) against the Federal Defendants, nor could they. Under Section, Caltrans has assumed responsibility for compliance with those (and other) environmental review statutes. U.S.C. (d). Section further vests the district court with jurisdiction only over Caltrans, in lieu of the Federal Defendants. Id. (e). In thus limiting the Court s subject matter jurisdiction by statute, Congress is acting within its authority under Article III of the U.S. Constitution to place limits on the power of federal courts to entertain certain types of suits. See Exxon Mobil Corp. v. Allapattah Servs., Inc., U.S., (00) (discussing limitations on diversity jurisdiction), superseded by statute, Class Action Fairness Act of 00, Pub. L. No. 0-, Stat. (00). Such congressional limitations preclude Plaintiffs first two claims, and those claims must be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure (b)(). Plaintiffs often refer casually to Defendants, rather than solely to Caltrans, when alleging which parties have taken or failed to take certain actions. See, e.g., Compl. ( Defendants failed to: [sic] (a) adequately address the direct, indirect, and cumulative cultural, environmental, and historic impacts of the Willits Bypass Project; (b) identify and finalize the details of the mitigation plan or its environmental and cultural impacts; and (c) commit to necessary mitigation measures. ). None of those activities are the responsibility of the Federal Defendants under U.S.C. and the MOU. Plaintiffs cannot create a federal cause of action where none exists simply by lumping the Federal Defendants together with Caltrans. Plaintiffs failure to plead sufficient facts to state a plausible claim that the Federal Defendants are liable under the statutes in question dooms their first two claims against the Federal Defendants. Twombly, 0 U.S. at 0; Iqbal, U.S. at. Elsewhere, Plaintiffs properly identify Caltrans as the relevant actor. See, e.g., Compl. ( Caltrans s Final EIS/EIR for the Project includes mitigation measures for Unanticipated archaeological discoveries, Unanticipated discovery of human remains, and Establishment of Environmentally Sensitive Area Action Plan intended to address archaeological resources. ). Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

15 Case :-cv-0-jsw Document Filed 0// Page of 0 0 Finally, because U.S.C. provides that only a participating state is potentially liable and that jurisdiction is available only over that party, judicial review here is precluded under Section 0 of the APA, U.S.C. 0, which provides that judicial review is unavailable if prohibited by another statute. Without the APA, there is no other waiver of sovereign immunity that would allow Plaintiffs first two claims to proceed against the Federal Defendants. Plaintiffs first two claims against the Federal Defendants must therefore be dismissed under Federal Rule of Civil Procedure (b)() and (b)(). See United States v. Sherwood, U.S., () (Where sovereign immunity bars suit against the United States, the Court lacks subject matter jurisdiction over the barred claims); Clinton v. Babbitt, 0 F.d 0, 0 (th Cir. ) (same). In the earlier case challenging the Project, Center for Biological Diversity v. Federal Highway Administration, this Court dismissed the plaintiffs NEPA claims against the Federal Defendants, which fell within the scope of the FHWA-Caltrans MOU. The Court found that U.S.C. (e) precluded suit against the FHWA. 0 U.S. Dist. LEXIS, at *. Just as in the earlier case, Plaintiffs here do not allege that the Federal Defendants learned of new information requiring a supplemental EIS prior to the effective date of the MOU. Indeed, Plaintiffs allege that information learned after that date required a supplemental EIS, see, e.g., Compl. 0 (information in March, 0 correspondence), (Caltrans learned of information as early as 0 ), (citing that literature/studies even go back to 00. ). But even if Plaintiffs allegations of subsequently acquired information were true, under U.S.C. and the FHWA-Caltrans MOU it would be Caltrans, not the FHWA, that would be responsible for preparing any supplemental EIS. Under Center for Biological Diversity, such claims cannot be brought against the Federal Defendants. 0 U.S. Dist. LEXIS, at *. Even if Plaintiffs had alleged that information known prior to July 00 required a supplemental EIS, Plaintiffs claim that Federal Defendants unlawfully failed to prepare one would be barred by the 0-day limitations period of U.S.C. (l). In its earlier decision, the Court held that any claims Although the Court s earlier opinion is designated not for publication, it is cited because it is relevant under the doctrines of law of the case, res judicata or collateral estoppel. See Civil L.R. (e). In addition, the decision was not designated not for citation. See id.; Civil L.R. -. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

16 Case :-cv-0-jsw Document Filed 0// Page of 0 0 against the FHWA based on allegations occurring before July, 00, the effective date of the MOU, would be barred by that limitations period. 0 Center for Biological Diversity, 0 U.S. Dist. LEXIS, at *. That limitations provision requires that a suit challenging a permit, license, or approval be brought within 0 days after publication in the Federal Register of a notice announcing such permit, license, or approval. In this case, the FHWA published a Notice of Final Federal Agency Actions on Proposed Highway in California in the Federal Register on January, 00, Fed. Reg. 0 (Jan., 00), which required that suit be brought by July, 00, Fed. Reg Finally, even if not barred by U.S.C. (l), any claims against the Federal Defendants for actions or omissions predating the FHWA-Caltrans MOU would at a minimum be barred by the six-year statute of limitations provided in U.S.C. 0(a). That limitations period applies generally to claims against the United States (subject to exceptions not relevant here), including claims brought under the APA. Lynch, F.d at ; Hells Canyon Pres. Council, F.d at 0. Therefore, a claim for the alleged failure to prepare a supplemental EIS based on information known prior to July, 00, would have to have been filed no later than June 0, 0, if not by July, 00. Such claims are therefore time-barred. C. Plaintiffs Have No Claim Against the Federal Defendants for Failure to Engage in Government-to-Government Consultation under the NHPA Plaintiffs third claim alleges violations of the NHPA. Compl.. Like their first two claims, Plaintiffs third claim charges the Federal Defendants with violations of law alleged to have been committed by Caltrans, not the Federal Defendants. See, e.g., Compl. ( In 00 and 0, after the construction contract for the Willits Bypass Project was awarded, but before the start of construction, and without any government-to-government consultation with Plaintiffs, Caltrans carried out a geoarchaeological investigation in order to determine the potential for obscured and buried archaeological resources within the Project alignment s areas of direct impact. ). Elsewhere, just like Plaintiffs first two claims, Plaintiffs third claim also mixes in the Federal Defendants where they should be left out. 0 The Court therefore found that amendment of the complaint would be futile. 0 U.S. Dist. LEXIS, at *. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

17 Case :-cv-0-jsw Document Filed 0// Page of 0 0 See, e.g., Compl. ( Defendants commenced ground disturbing [sic] activities which damaged Plaintiffs historic properties.... ) (emphasis added), ( Even though Caltrans and FHWA have been constructing the Willits Bypass Project for over two years.... ) (emphasis added). But notwithstanding Plaintiffs loose allegations, it is Caltrans, not the Federal Defendants, that is constructing the Project. Moreover, just as with Plaintiffs NEPA and Section (f) claims, responsibilities under the NHPA have been assigned to and assumed by Caltrans. See Compl., ; Glazer Exh. A..(I). For that reason, Caltrans is the party responsible for both conducting the required historical evaluation and defending a lawsuit challenging that evaluation. U.S.C. (d), (e). Just as Plaintiffs first two claims, their third claim should therefore be dismissed as to the Federal Defendants. The Federal Defendants anticipate that Plaintiffs may argue that, while NHPA obligations may be Caltrans s responsibility, government-to-government consultation with Indian tribes under the NHPA has not been assigned to and assumed by Caltrans. See Glazer Decl. Exh. A... But Plaintiffs seek no relief against the Federal Defendants for an alleged failure to engage in government-togovernment consultation. Instead, they seek relief that by its terms applies only to Caltrans. See Compl. (alleging Caltrans s failure to properly implement mitigation measures); Compl. Prayer for Relief (seeking injunction against Project implementation until compliance with the NHPA ). Although elsewhere Plaintiffs recite that Defendants have failed to properly engage in government-togovernment consultation, see, e.g., Compl., Plaintiffs are really complaining about how Caltrans is proceeding with the Project, see, e.g., Compl. 0, 0. Caltrans, not the Federal Defendants, is the party responsible for those activities. Beyond that, the NHPA s implementing regulations only require agencies to provide a tribe with a reasonable opportunity to identify its concerns about historic properties, advise on the identifica- Plaintiffs cite Section 0 of the NHPA, formerly codified at U.S.C 0a- and now appearing at U.S.C. 00, but that statutory provision applies only to potential World Heritage sites, and Plaintiffs bring no allegations concerning any such sites in their Complaint. Federal Defendants assume Plaintiffs cited that provision in error and meant instead to cite NHPA 0, formerly codified at U.S.C. 0f and now at U.S.C. 00. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss 0

18 Case :-cv-0-jsw Document Filed 0// Page of 0 0 tion and evaluation of historic properties..., articulate its views on the undertaking s effects on such properties, and participate in the resolution of adverse effects. Te-Moak Tribe, 0 F.d at 0 (quoting C.F.R. 00.(c)()(ii)(A)) (emphasis added). The fact that a tribe may be unsatisfied with a proposed NHPA Programmatic Agreement, see Compl., and will not sign it does not arm the tribe with veto power over the challenged project. Te-Moak Tribe, 0 F.d at 0 (reciting agency consultation efforts); Muckleshoot Indian Tribe v. U.S. Forest Serv., F.d 00, 0 0 (th Cir. ) (noting that agency made a reasonable and good faith effort to identify historic properties ). Indeed, the NHPA regulations do not even require that Plaintiffs sign the Programmatic Agreement. See Quechan Indian Tribe, F. Supp. d at 0 (citing C.F.R. 00.(c)()(ii), (iii)). Nor is a Project-specific Programmatic Agreement even required in this case, because Caltrans, the FHWA, SHPO, and the ACHP have already entered into a Statewide Programmatic Agreement that covers all Federal-Aid Highway projects in California. See Glazer Decl. Exh. B. It is therefore simply incorrect for Plaintiffs to recite that Project activities are proceeding in the absence of a Programmatic Agreement. See Compl.. Finally to the extent, as Plaintiffs extensively recite, see, e.g., Compl.,,,, that potentially NRHP-eligible properties were, and may still be, discovered after approval of the Project Record of Decision, Caltrans could proceed under the post-review process outlined in C.F.R. 00.(b)() and memorialized in the Post-Review Discovery and Monitoring Plan applicable to the Project (submitted as Glazer Decl. Exh. C). Grand Canyon Trust, F. Supp. d at 0. Under those procedures, it was enough that Caltrans could notify Plaintiffs of the discovery of potentially NRHP-eligible properties and work with Plaintiffs to avoid or mitigate adverse effects. See id. at 0 ; Glazer Decl. Exh. C, at. Because Caltrans is the agency to which responsibility for NHPA compliance has been indisputably assigned, any claim for failure to properly implement the procedures required by C.F.R. 00.(b)() must be made only against that party. Those paragraphs recite the alleged dissatisfaction with the draft Programmatic Agreement of the Sherwood Valley Band, which is not a plaintiff. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

19 Case :-cv-0-jsw Document Filed 0// Page of 0 0 In short, Plaintiffs simply have pled no claim against the Federal Defendants stemming from any failure to engage in government-to-government consultation. D. Plaintiffs Prayer for Damages Must be Dismissed Although Plaintiffs have pled no statutory entitlement to damages, their prayer for relief seeks compensatory damages. Compl. Prayer for Relief. A suit against the United States or its agencies or employees acting in their official capacities may proceed only in accordance with an applicable statutory waiver, including such conditions on the waiver as Congress may impose. Federal Deposit Ins. Corp. v. Meyer, 0 U.S., (); Loeffler v. Frank, U.S., (); United States v. Testan, U.S., (). Any such waiver must be strictly construed in the government s favor and must be unequivocally expressed in the statutory text. Orff, U.S. at 0 0 ; Dep t of the Army v. Blue Fox, Inc., U.S., (). If Plaintiffs mean their request for damages to sound in tort, they fail to satisfy a crucial element of the federal government s waiver of sovereign immunity under the Federal Tort Claims Act, U.S.C. (b). Plaintiffs may assert that their request for damages stems from the alleged failure of the relationship between federal and tribal sovereigns (that is, from insufficient government-to-government consultation). But to bring a claim for damages against the United States on those grounds, Plaintiffs would have to allege that their claims have arisen under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. U.S.C. (b)(). But private persons by definition cannot engage in government-to-government consultation. Plaintiffs claims therefore do not sound in tort and cannot come within the waiver of (b)(). Skokomish Indian Tribe, 0 F.d at 0. On the other hand, claims for damages not sounding in tort and based, instead, on an alleged breach of Plaintiffs sovereign rights must be brought in the Court of Federal Claims. Skokomish Indian Tribe, 0 F.d. at 0 (tribe s claims for property damage did not sound in tort and therefore must be brought, if at all, in the Court of Federal Claims). Thus, at a minimum, Plaintiffs request for damages has been brought in the wrong court and should be dismissed for that reason. Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

20 Case :-cv-0-jsw Document Filed 0// Page 0 of More fundamentally, however, Plaintiffs do not identify any statutory basis for their asserted entitlement to damages or any applicable waiver of sovereign immunity that would allow it to proceed in any court. That aspect of their prayer for relief should therefore be dismissed. Orff, U.S. at 0 (affirming dismissal of claim where no applicable waiver of sovereign immunity was available). IV. CONCLUSION Plaintiffs have improperly named the Federal Defendants in this action. For the reasons set forth above, all of Plaintiffs claims against the Federal Defendants should be dismissed under Federal Rule of Civil Procedure (b)() and (b)(). 0 0 DATED: February, 0 OF COUNSEL BRETT J. GAINER Senior Attorney Federal Highway Administration Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/david B. Glazer DAVID B. GLAZER Natural Resources Section Environment & Natural Resources Division United States Department of Justice 0 Howard Street, Suite 00 San Francisco, California Tel: () - Fax: () - David.Glazer@usdoj.gov Attorneys for Federal Defendant Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss

21 Case :-cv-0-jsw Document Filed 0// Page of CERTIFICATE OF SERVICE I, David B. Glazer, hereby certify that, on February, 0, I caused the foregoing to be served upon counsel of record through the Court s electronic service. I declare under penalty of perjury that the foregoing is true and correct. 0 0 Dated: February, 0 /s/david B. Glazer David B. Glazer Coyote Valley Band of Pomo Indians, et al. v. U.S. Dep t of Transportation, et al., No. :-cv-0 Federal Defendants Notice of Motion and Motion to Dismiss