Case :0-cv-0-KJM-KJN Document Filed 0// Page of BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney 0 I Street, Suite -0 Sacramento, CA Telephone: () -0 Attorneys for United States Forest Service IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 0 WINNEMEM WINTU TRIBE, in their tribal and individual capacities; CALEEN SISK, et al., v. Plaintiffs, UNITED STATES FOREST SERVICE, Defendant. Case No. :0-cv-0 KJM KJN UNITED STATES FOREST SERVICE S CONSOLIDATED OPPOSITION TO PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF FOREST SERVICE S SUMMARY JUDGMENT MOTION Date: March, 0 Time: :00 p.m. Place: Courtroom, th Floor 0 I Street, Sacramento Judge: Hon. Kimberly J. Mueller
Case :0-cv-0-KJM-KJN Document Filed 0// Page of TABLE OF CONTENTS Page I. INTRODUCTION... II. ARGUMENT... A. Plaintiffs Are Using This Lawsuit To Circumvent The Federal Recognition Process.... B. None Of The Affirmative Relief Plaintiffs Seek Is Available Under The APA.... C. The Forest Service Should Be Granted Summary Judgment On The Nosoni Creek Claims..... Even Under The New 00 MOU Theory, The Claims Are Time-Barred..... Plaintiffs Have Abandoned Their NHPA Claims About The Nosoni Bridge..... The Court Lacks Jurisdiction Over The Nosoni Truck Ramp Claims.... D. Plaintiffs Old-Growth Manzanita Claim Is Meritless And Moot.... E. The Coonrod Flat Claim Is Moot.... F. The Forest Service Is Entitled To Summary Judgment On The Buck Saddle Claims.... G. The Court Lacks Jurisdiction Over The Rocky Ridge Parking Lot Claims.... H. The Forest Service Is Entitled To Summary Judgment On The Antler s Bridge Claim... I. The Court Should Deny Plaintiffs Motion To Strike The Forest Service s Declarations.... III. CONCLUSION... 0 i
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 I. INTRODUCTION The wide-ranging affirmative relief that plaintiffs ask the Court to order against the United States Forest Service ( Forest Service ) confirms that they are using this Administrative Procedure Act ( APA ) lawsuit to circumvent the United States Department of Interior Bureau of Indian Affairs administrative process for determining whether they meet the required criteria to become a federally recognized tribe. If the Court were to grant the requested relief, the Forest Service would be required to treat plaintiffs as though they are a federally recognized tribe under applicable federal statutes, when plaintiffs have not been granted that favored status by the Bureau of Indian Affairs. The Court has previously declined to inject itself into the federal recognition process, which is expressly left to the province of Congress, and the Court should again decline to do so now. Moreover, the relief that plaintiffs seek against the Forest Service is not the type of relief that the Court can grant under the APA. The Court should reject plaintiffs last-ditch efforts to avoid summary judgment by raising completely new claims that are not pleaded in their Fourth Amended Complaint ( FAC ). Focusing on the claims they actually pleaded, plaintiffs have failed to meet their burden of proving that: the claims not are time-barred or moot; the Court has subject matter jurisdiction over claims for which there has been no final agency action; any decision of the Forest Service was arbitrary and capricious; and the Forest Service did not comply with its statutory obligations. Accordingly, the Court should grant summary judgment in favor of the Forest Service and deny plaintiffs cross-motion in its entirety. II. ARGUMENT A. Plaintiffs Are Using This Lawsuit To Circumvent The Federal Recognition Process. In identifying the relief they want the Court to order against the Forest Service, plaintiffs do not request any relief that is specifically tailored to address the alleged harms set forth in the FAC. Instead, Winnemem Wintu v. U.S. Dep t of Interior, F. Supp. d, (E.D. Cal. 0) (dismissing as a nonjusticiable political question earlier claims that the Forest Service violated plaintiffs rights by not acknowledging them as a previously recognized tribe; While plaintiffs disingenuously contend that they do not seek federal recognition through this litigation... their constitutional claims necessarily require the court to inject itself in processes expressly left to the province of Congress ).
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 plaintiffs want the Court to order relief that would obviate the need for them to prove through the federal recognition administrative process that they meet the criteria to be a federally recognized tribe. For example, their request that the Court grant them automatic consulting party status on all Forest Service undertakings under the National Environmental Policy Act ( NEPA ) and the National Historic Preservation Act ( NHPA ), when they are only entitled to receive notice as members of the public under those statutes, would elevate plaintiffs to the status of a federally recognized Indian tribe without any formal determination of their status by the Bureau of Indian Affairs. Plaintiffs also want the Court to require the Forest Service to enter into an agreement which favors plaintiffs use of sacred sites to the exclusion of others, and to determine that any cultural items held by the Forest Service belong to plaintiffs and should be repatriated to them. Simply put, plaintiffs want to the Court to order the Forest Service to accord them favored consulting status and treatment, contrary to the statutory requirements of the NHPA and NEPA, and to the detriment and exclusion of all other Wintu and other tribes. But their statement that other Wintu tribes and groups have officially deferred to [them] as the experts and traditional cultural practitioners, pending the result of the Tribe s recognition status, ignores that other Wintu tribes have come forward during this litigation to oppose plaintiffs prosecution of this lawsuit. See Dkt. No. at (letter from United Tribe of Northern California, Inc. stating that plaintiffs do not speak on behalf of all Winnemem Wintu Indian people. We do not recognize them as tribal or spiritual leaders... ); Id. at (stating that any sort of determination in favor of plaintiffs and their position is detrimental to other Winnemem Wintu people ); Dkt. No. 0 (stating that plaintiffs do not have the exclusive right to oversee or make decisions regarding our sacred sites and cemetery. They are but one faction of the people ). As this Court (Damrell, J.) previously confirmed, the action of the federal government in recognizing or failing to recognize a tribe has traditionally been held to be a political one not subject to judicial review. Winnemem, F. Supp. d at (internal quotations and citations omitted). Non-federally recognized tribes are entitled only to notice and information as interested members of the public. See, e.g., C.F.R. 00.(d) (NHPA); see also Winnemem, F. Supp. d at (plaintiffs lack standing to assert injuries to tribal interests).
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 If plaintiffs want to be treated as a federally recognized tribe, and receive concomitant benefits and treatment, they must pursue federal recognition through the administrative process established by the Bureau of Indian Affairs. The Court should reject plaintiffs blatant efforts to sidestep the federal recognition process by using this lawsuit as a means to obtain status and treatment to which they are not statutorily entitled given their current status as a non-recognized tribe. B. None Of The Affirmative Relief Plaintiffs Seek Is Available Under The APA. All of plaintiffs claims against the Forest Service are brought under Section 0() of the APA (see FAC,, 0,,,, ), which permits a court to hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. U.S.C. 0(). Affirmative injunctive relief is not an appropriate remedy under Section 0(). Pinnacle Armor, Inc. v. United States, 0 WL, * n. (E.D. Cal. July 0, 0) (citing U.S.C. 0(); Slockish v. U.S. Fed. Highway Admin., F. Supp. d, (D. Or. 0)). Instead, remand is usually the appropriate remedy in Section 0() cases. See id. (citing Defenders of Wildlife v. U.S. Envt l Protection Agency, 0 F.d, (th Cir. 00), rev d on other grounds, Nat l Ass n of Home Builders v. Defenders of Wildlife, U.S., S. Ct., L. Ed. d (00)). Even if plaintiffs were to claim, contrary to their specific arbitrary and capricious allegations in the FAC, that they are asserting so-called failure to act claims under Section 0() of the APA, the Court still does not have the power to grant any of the wide-ranging affirmative relief that plaintiffs seek. Under Section 0(), courts are authorized to compel agency action unlawfully withheld or unreasonably delayed. Pinnacle Armor. at * n. (citing U.S.C. 0(); Slockish, F. Supp. d at ). The Supreme Court has stressed the limits of district court authority under Section 0(), explaining that courts may only order action where an agency has failed to take a discrete agency action that it is required to take. Norton v. Southern Utah Wilderness Alliance, U.S., (00) As this Court has explained, When making claims for a failure to act, a plaintiff must show that an agency failed to take a discrete agency action that it is required to take. Norton v. Southern Utah Wilderness Alliance, U.S.,, S. Ct., L. Ed. d (00). A required act is one in the face of clear statutory duty or is of such a magnitude that it amounts to an abdication of statutory responsibility. ONRC Action v. BLM, 0 F.d, (th Cir. ) (quoting Public Citizen Health Research Group v. Comm r, Food and Drug Admin., 0 F.d, (D.C. Cir. )). Franco v. U.S. Dep t of Interior, 0 WL 00, * (E.D. Cal. July, 0).
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 (emphasis in original) (describing such actions as ministerial or non-discretionary ); Hells Canyon Preservation Council v. United States Forest Serv., F.d, (th Cir. 0) ( [T]he purportedly withheld action must not only be discrete, but also legally required in the sense that the agency s legal obligation is so clearly set forth that it could traditionally have been enforced through a writ of mandamus ) (emphasis in original). The Supreme Court emphasized that, under the APA, courts are not empowered to enter general orders compelling compliance with broad statutory mandates. Southern Utah Wilderness Alliance, U.S. at. Thus, as the Ninth Circuit has repeatedly observed, [e]ven if a court believes that the agency is withholding or delaying an action the court believes it should take, the ability to compel agency action is carefully circumscribed to situations where an agency has ignored a specific legislative command. Gardner v. U.S. Bureau of Land Management, F.d, - (th Cir. 0) (quoting Hells Canyon, F.d at ); see, e.g., Zixiang Li v. Kerry, F.d, 0 (th Cir. 0) (explaining that there is no judicial authority to compel agency action merely because the agency is not doing something [the plaintiff or the court] may think it should do ); Our Children s Earth Found. v. EPA, F.d, (th Cir. 00) ( To compel agency action..., [plaintiff] must point to a nondiscretionary duty that is readily-ascertainable, and not only... the product of a set of inferences based on the overall statutory scheme. (internal quotation marks omitted)). None of the relief that plaintiffs seek relates to non-performance of discrete actions that the Forest Service was legally required to take. Instead, plaintiffs demands are of the sort more commonly made during settlement negotiations. But the Forest Service cannot agree to treat plaintiffs more favorably than they are entitled to be treated under applicable statutes due to their non-recognized status and, since the requested relief does not seek to compel discrete, statutorily mandated actions by the Forest Service, the Court cannot order such relief under Section 0() either. Likewise, if the Court determines that any Forest Service decision was arbitrary and capricious, appropriate relief under Section 0() would be for the Court to set aside that specific decision and remand the matter to the Forest Service so that it can comply with its statutory obligations. Defenders of Wildlife, 0 F.d at. It would not be to order the affirmative relief that plaintiffs have requested.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 C. The Forest Service Should Be Granted Summary Judgment On The Nosoni Creek Claims.. Even Under The New 00 MOU Theory, The Claims Are Time-Barred. In an effort to avoid summary judgment on their Nosoni Creek claims based on the Forest Service s statute of limitations defense, plaintiffs argue for the first time that the final agency action at issue is not the Forest Service s May 000 Decision Memo on the Nosoni Bridge project or the alleged construction of a truck ramp at Nosoni Creek in 00 or 00. See FAC, -, -. They now claim that the final agency action at issue is the signing of a 00 Memorandum of Understanding ( 00 MOU ). Dkt. No. - at :-. Therefore, they argue that their Nosoni Creek claims are not time-barred because they filed suit within six years of the 00 MOU. Id. But plaintiffs Nosoni Creek claims in the FAC are very specific and have nothing to do with a 00 MOU. FAC, -, -. Instead, plaintiffs allege that the Forest Service violated the NHPA by: not designating the Nosoni Bridge as a historic site; not undertaking a Section evaluation for the bridge project; and approving the bridge project in 000 without consulting them. Id.,. They also allege that the Forest Service constructed a truck ramp in 00 or 00 without an appropriate NEPA analysis. Id.,,. There is no allegation anywhere in the FAC about a 00 MOU and there is no such claim in this lawsuit. It is apparent that the 00 MOU is being raised now solely to avoid the APA s six-year statute of limitations. U.S.C. 0. But, even if the FAC did include allegations about the 00 MOU, the claims still would be time-barred because any claim based on the 00 MOU had to be filed within six years by 0. Id. The FAC was filed in 0, so any such claims would be untimely. In any event, if plaintiffs wanted to assert a claim based on the 00 MOU, they had to seek leave to amend the complaint by no later than November, 0. Dkt. No. at. Plaintiffs should not be permitted to raise entirely new claims in the midst of summary judgment briefing. Allowing new claims to proceed after over five years of litigation would be very prejudicial to the Forest Service, and no good cause exists under Rule (b) to modify the scheduling order to permit amendment at this very late date. In sum, the Forest Service is entitled to summary judgment because, under any of plaintiffs theories, the Nosoni Creek claims are time-barred.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0. Plaintiffs Have Abandoned Their NHPA Claims About The Nosoni Bridge. Plaintiffs have abandoned their claims that the Forest Service violated the NHPA not designating the Nosoni Bridge as a historic site; not undertaking a Section evaluation for the bridge project; and approving the bridge project without consulting them because they have not responded to any of the Forest Service s evidence and argument on these issues, and they have not cited to any evidence in the record to meet their burden of proving these claims. Instead, plaintiffs attempt to assert a new claim against the Forest Service that, in installing the new bridge, it did not do what it agreed it would do to protect traditional cultural properties. Dkt. No. - at. But no such claim is asserted in the FAC. Nor have plaintiffs identified what mitigation measures under NEPA were not implemented. They only argue that, in August 00, a large amount of dirt was placed on the old road bed and the home site and grape vines were destroyed and buried. Id. The statute of limitations on such a claim ran more than six years ago, so the claim is time-barred.. The Court Lacks Jurisdiction Over The Nosoni Truck Ramp Claims. Plaintiffs have not cited any evidence in the administrative record to prove that the Forest Service constructed a truck ramp at Nosoni Creek, and all of the evidence cited by the Forest Service proves that no such project exists. See Dkt. No. - at :0-. Since there has not been any major federal action or final agency action to build a truck ramp at Nosoni Creek, the Forest Service had no obligations under the NHPA or the NEPA. Therefore, the Court lacks jurisdiction over such claims, and plaintiffs lack standing to assert them. Without pointing to any evidence in the record, plaintiffs speculate that users of the truck ramp had to possess a permit or other authority by the Forest Service, which would be an NHPA undertaking that would trigger Section. Dkt. No. - at :-. This is another brand-new claim that is not in the FAC, so it is not properly before the Court. Instead, plaintiffs have submitted a declaration of Luisa Navejas, which is improper extrarecord evidence that should be excluded. However, the Navejas declaration confirms that the dirt was deposited at Nosoni Creek around 00, so it supports the Forest Service s statute of limitations defense. Notably, Ms. Navejas does not identify who deposited the dirt at the site, and she does not state that the Forest Service did this. Nothing in the Navejas declaration proves that the Forest Service actually undertook a project to construct a truck ramp at Nosoni Creek or that it dumped dirt at the site. The undated photos attached to the declaration do not support plaintiffs claim. If anything, the photos support the Forest Service s position that no truck ramp has been constructed at Nosoni Creek.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of D. Plaintiffs Old-Growth Manzanita Claim Is Meritless And Moot. Plaintiffs admit that the Forest Service consulted with them about the Gilman Road Shaded Fuelbreak project. Dkt. No. - at - ( In 00, the Forest Service consulted with the Tribe regarding a plan to remove shrubs and small trees along Gilman Road, which included the Dekkas site ). Therefore, they have conceded that their NHPA consultation claim is meritless. This is consistent with evidence in the record proving that plaintiffs had actual notice of, and participated in the NHPA/NEPA process. See Winnemem, F. Supp. d at ; AR -,, 0,. Their claim also is timebarred. See Dkt. No. - at :-. Regarding the claim that the Forest Service violated the Programmatic Agreement, the only alleged violation that plaintiffs have identified is that, in 00, old-growth manzanita was cut during implementation of the shaded fuelbreak project. Dkt. No. - at -. The Court should reject this claim under the NHPA for the following reasons. First, plaintiffs cannot establish that cutting the manzanita was a final agency action reviewable under the APA. See Winnemem, F. Supp. d at (noting that, by alleging that the Forest Service cut old-growth manzanita, plaintiffs had not identified any final agency action under the NHPA nor any major federal action under NEPA). Id. at. The only final agency action was the June 00 Decision Notice and Finding of No Significant Impact for the Gilman shaded fuelbreak project (AR ), and any claims related to the DN and FONSI are time-barred since they were not raised until 0. Dkt. No. ; U.S.C. 0(a). Thus, the Court lacks jurisdiction over this claim. 0 Since plaintiffs have not addressed the claims that the Forest Service violated the Programmatic Agreement by not preparing accurate annual reports, not monitoring project activities, and not making annual reports available to the public, they apparently have conceded those claims. Plaintiffs argue that the Forest Service violated both the NHPA and the NEPA. See Dkt. No. - at. But there is no NEPA claim regarding Dekkas in the FAC. See FAC, -. And, even if there were a NEPA claim for Dekkas, it would lack merit. Judge Damrell noted in 0 that, even assuming that cutting old-growth manzanita trees might qualify as a major federal action, plaintiffs fail to specify how the USFS allegedly violated NEPA with this action. Plaintiffs do not allege that the USFS failed to prepare an EIS or EA and do not allege that the cutting was not encompassed within a categorical exclusion. Further, plaintiffs do not plead any facts establishing that they have exhausted any available administrative remedies. Id. Plaintiffs still have not alleged or met any of these requirements for a NEPA claim. Accordingly, any claim by plaintiffs claim that the Forest Service violated the NEPA by cutting old-growth manzanita would fail.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 Second, nothing in the Programmatic Agreement specifies that the old-growth manzanita at Dekkas should not be cut, so it is unclear how cutting the manzanita would violate the terms of that agreement. Additionally, plaintiffs are not a consulting party to the agreement, so they cannot prove that they have standing to assert a violation of that agreement. See AR -. Furthermore, the agreement specifies the process by which members of the public, such as plaintiffs, may comment on proposed undertakings and on implementation, and the public must follow those procedures as well as regulatory procedures for appealing agency decisions. See AR (Section IX.E.) Plaintiffs have not shown that they exhausted administrative remedies by complying with these procedural requirements. Third, the Court previously rejected plaintiffs claims for the cutting of the old-growth manzanita and plaintiffs have not done anything to cure the defects. They originally sued for damage to the oldgrowth manzanita under the Federal Tort Claims Act ( FTCA ). See Original Complaint, Dkt. No.,, -, -. Judge Damrell dismissed these claims because plaintiffs had failed to exhaust their FTCA administrative remedies. See Dkt. No. at. After the FTCA claims failed, plaintiffs asserted the same claim about the manzanita under the NHPA instead. See First Amended Complaint, Dkt. No. 0, -,. Judge Damrell dismissed the NHPA claim because plaintiffs do not allege that any portion of the Dekkas Site is eligible for inclusion in the National Register. Winnemem, F. Supp. d at 0. Plaintiffs have not shown that Dekkas or the manzanita is eligible for the National Register. Fourth, as this Court previously has noted, the NHPA is a procedural statute. Franco v. U.S. Dep t of the Interior, 0 WL 00, at * (E.D. Cal. July, 0) (citing Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dept. of Interior, 0 F.d, (th Cir. 0)). Section of NHPA is a stop, look, and listen provision that requires each federal agency to consider the effects of its programs. Id. (citations omitted). Thus, the NHPA is a strictly procedural statute that does not confer substantive rights and does not dictate particular outcome. See Te-Moak, 0 F.d at 0,. Finally, because the old-growth manzanita cannot be restored, plaintiffs claims are moot. See Headwaters, Inc. v. Bureau of Land Management, F.d, - (th Cir. 0) (holding that claims for declaratory and injunctive relief regarding logged trees were moot: Where the activities sought to be enjoined have already occurred, and the [] courts cannot undo what has already been done, the action is moot. ) (citations omitted).
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 E. The Coonrod Flat Claim Is Moot. The only Coonrod Flat claim before the Court is plaintiffs allegation that, in 00, the Forest Service violated the NHPA by granting a cattle grazing permit without conducting a Section analysis. FAC,. The Forest Service has shown that the 00/00 modified permit upon which this claim is based no longer exists, having been replaced and superseded by a new 0 permit. See Dkt. No. - at :-:. Therefore, there is no present controversy as to which the Court can grant effective relief as to 00/00 permit, and plaintiffs claim as to that permit is moot. Tur v. Youtube, Inc., F.d, (th Cir. 00). Recognizing that their NHPA challenge fails, plaintiffs now resort to a new argument: that the Forest Service has violated the Programmatic Agreement by not demarcating or excluding Coonrod Flat from the grazing permit and not monitoring the site. Dkt. No. - at. But there is no such claim alleged in the FAC based upon violation of the Programmatic Agreement or otherwise; nor is there any claim that the Forest Service did not consult with plaintiffs prior to issuing the grazing permit. See FAC,. Such claims therefore are not before the Court and the Court should disregard them. Additionally, plaintiffs new claim that the Forest Service violated the Programmatic Agreement regarding Coonrod Flat also suffers from the same defects that preclude such a claim regarding Dekkas. See supra at II.D. Nor can plaintiffs make substantive challenges to the Section analysis performed in 00 for the 0 permit for the first time during summary judgment briefing. Since that claim is not in the FAC, the Court should disregard it. Plaintiffs argue that the claim is not moot because they are more broadly claiming that the Forest Service is allowing Coonrod Flat to be damaged. But, as shown in section II.B above, the Court s power under the APA is limited to setting aside a final agency action that was arbitrary and capricious (Section 0()) or compelling the Forest Service to take a discrete action that was it was statutorily required to take (Section 0()). Plaintiffs more general claim that the Forest Service is allowing Coonrod Flat to be damaged falls under neither category of APA claim. Plaintiffs specific claim against the Forest Service in the FAC is that it did not conduct a Section analysis for the 00 modified grazing permit. The Forest Service has shown that such claim is moot, and plaintiffs have not proved otherwise.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 F. The Forest Service Is Entitled To Summary Judgment On The Buck Saddle Claims. The Forest Service has proved that it complied with the NEPA and the NHPA for the Clikapudi Trail Loop at the Buck Saddle site by using NEPA public notification processes and by conducting a categorical exclusion for the project. See Dkt. No. - at :-:. The NHPA requires that the Forest Service provide the public with information about an undertaking and its effects on historic properties and seek public comment and input. C.F.R. 00.(d)(). Plaintiffs claim that the Forest Service did not send the Schedule of Proposed Actions ( SOPA ) for the project to Caleen Sisk at her Redding, California address, but they do not explicitly state that they did not know about the project. Nor do they address the fact that evidence in the record shows that the Forest Service listed the project on its website and in local papers. The NHPA does not require that plaintiffs receive direct notice of all undertakings. Such treatment is reserved for federally recognized Indian tribes. See C.F.R. 00.(c). The Forest Service s public notification process including the mailing and publishing information on its website and local papers satisfied its obligations to provide the public with information and to seek public comment and input. The Court should disregard plaintiffs belated attempt to challenge the sufficiency of the notice of the bike trail loop in the SOPA because there is no such claim asserted in the FAC, even though the SOPA and other notices about the project have been in the administrative record since November 0. Accordingly, that claim is not before the Court for decision. Likewise, any claim regarding the Forest Service s determination in October 0 that the sacred prayer rock at Buck Saddle was not an archaeological feature is not before the Court. That claim is not alleged in the FAC even though the October 0 memorandum regarding this issue has been in the administrative record since November 0. Plaintiffs apparently have abandoned their claims that the Forest Service violated Section of the NHPA by not developing a protection plan before allowing the bike path to be created because they have not responded to the Forest Service s arguments on that issue and they have not presented any evidence in the record to support such a claim. FAC,.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of 0 G. The Court Lacks Jurisdiction Over The Rocky Ridge Parking Lot Claims. Plaintiffs have not identified any evidence in the administrative record to prove that the Forest Service has given Jones Valley Resort a permit for a parking lot at Rocky Ridge, or that the Forest Service has approved an overflow parking lot project, as alleged in the FAC. FAC,,. Since no Rocky Ridge parking lot project exists, there is no final agency action and no injury-in-fact, plaintiffs lack standing to pursue this claim, and the Court lacks jurisdiction. Moreover, since there is no Rocky Ridge parking lot project, no NHPA Section analysis is required and the claim fails on the merits. The Court should disregard plaintiffs new arguments that the Forest Service has violated the Programmatic Agreement by not implementing protection measures in connection with the granting of a parking permit to Jones Valley Resort. See Dkt. No. - at :-. They have not alleged such a claim in the FAC, so it is not properly before the Court. And any claim based on the Programmatic Agreement would suffer from the same defects that preclude such a claim as to Dekkas. See supra at II.D. In any event, since the Forest Service has not granted a parking permit to Jones Valley Resort (see Dkt. No. - at :-), any claim based on the granting of such a permit fails. Since there is no final agency action, plaintiffs claim fails for lack of standing and the Court lacks jurisdiction. H. The Forest Service Is Entitled To Summary Judgment On The Antler s Bridge Claim. The only Antler s Bridge claim properly before the Court is plaintiffs assertion that the Forest Service did not consult with them regarding the ARPA permit issued to CalTrans in October 0. FAC,. The Forest Service has shown that it was not required to consult with or give plaintiffs notice about the permit because they are not a federally recognized tribe. See Dkt. No. - at. Regardless, however, evidence in the administrative record proves that plaintiffs received actual notice of, and participated in, meetings about the ARPA permit and future excavations, and were given an opportunity to review key documents and agreements and to be a concurring party, but declined. See Dkt. No. - at -0 (citing AR 0-0, -,,, -). Indeed, plaintiffs admit in their brief that they were consulted regarding the ARPA permit and provided input into that process. See Docket - at (stating the Winnemem and the Redding Rancheria requested that any recovered cultural materials be reburied ). By this admission, and their failure to raise any argument or evidence to prove an ARPA consultation violation, plaintiffs effectively have conceded this claim.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of Since they cannot prove their consultation claim, plaintiffs now claim for the first time that discovery of a midden deposit in January 0, which led up to the issuance of the CalTrans ARPA permit in October 0, was a late discovery that required a Section evaluation under the NHPA. Dkt. No. - at :-. They also claim that the Forest Service violated NHPA communication and documentation requirements about its permit decision set forth in C.F.R. 00. and 00.. Id. at :-:. But the FAC does not assert any Antler s Bridge NHPA claim against the Forest Service. Therefore, these brand-new NHPA claims are not before the Court. I. The Court Should Deny Plaintiffs Motion To Strike The Forest Service s Declarations. Plaintiffs have moved to strike the declarations of Kristy Cottini, Winfield Henn, and Peter Schmidt cited by the Forest Service has cited in support of its summary judgment motion. Arguing that the Court s review of administrative decisions is limited to a review of the record, plaintiffs claim that the Forest Service s declarations are inappropriate and should not be considered. However, the cases that plaintiffs cite to support this argument are inapposite. The Forest Service is not offering the declarations to supplement the administrative record for the Court s review and determination of the merits of plaintiffs APA claims. Instead, the Forest Service offers the declarations as evidence to support its factual attack on the Court s jurisdiction, including over the Nosoni Bridge truck ramp and Rocky Ridge parking lot claims, because there is no final agency action as to either claim that can be reviewed by the Court under the APA. It is well established that 0 jurisdiction is a threshold issue that must be addressed prior to any consideration of the merits of a case. Steel Co. v. Citizens for a Better Env t, U.S., -, S. Ct. 0, 0 L. Ed. d (). Plaintiffs also have moved to strike an October, 0 memo (AR -) from the record. However, that document has been in the administrative record since it was originally filed in November 0 and the deadline for plaintiffs to file motions on the adequacy of the administrative record was February, 0. See Dkt. No.. With the exception of the Schmidt declaration, these are the same declarations that the Forest Service submitted to support its factual attacks on jurisdiction in motions to dismiss earlier complaints. In connection with the motion to dismiss the second amended complaint, the Court declined to consider declarations because the declarants had not been deposed. See Franco, 0 WL 00 at *. The Court later ordered that no discovery would be permitted in this APA action. Dkt. No. at. Accordingly, the Forest Service submits that it is proper for the Court to consider the declarations now to determine the preliminary issue of whether there is final agency action and, therefore, subject matter jurisdiction, over plaintiffs claims.
Case :0-cv-0-KJM-KJN Document Filed 0// Page of Even if the Court excludes the Forest Service s declarations, however, the Forest Service still must prevail because there is no evidence in the record to prove that the Forest Service ever undertook to construct a truck ramp at Nosoni Creek and an overflow parking lot at Rocky Ridge. Federal courts are courts of limited jurisdiction.... 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.,, S. Ct. () (internal citations omitted). Since there is no evidence in the record of any final agency action regarding a Nosoni Creek truck ramp or a Rocky Ridge parking lot, plaintiffs cannot meet their burden of establishing that the Court has jurisdiction under the APA. III. CONCLUSION The Court should grant summary judgment in favor of the United States Forest Service on all of plaintiffs claims in the fourth amended complaint, and it should deny plaintiffs cross-summary judgment motion in its entirety. 0 DATED: February, 0 By: BENJAMIN B. WAGNER United States Attorney /s/ Lynn Trinka Ernce LYNN TRINKA ERNCE Assistant United States Attorney