David Laughing Horse Robinson et al v. U.S. Department of Interior et al

Filing 130

ORDER RE: Defendants' Motion to Dismiss 81 83 85 100 and Request for Leave to Amend Complaint 100 and for Certification of the Administrative Record 105 , signed by Judge Oliver W. Wanger on 2/22/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KAWAIISU TRIBE OF TEJON, and DAVID LAUGHING HORSE ROBINSON, Chairman, Kawaiisu Tribe of Tejon Plaintiffs, vs. KEN SALAZAR, in his official capacity as Secretary of the United States Department of Interior, et. al. Defendants

Case No.: 1:09 CV 01977 OWW SMS PLAINTIFF'S ORDER RE DEFENDANTS' MOTIONS TO DISMISS (DOCS. 81, 83, 85, 100); AND PLAINTIFFS' REQUEST FOR LEAVE TO AMEND COMPLAINT (DOC. 100) AND FOR CERTIFICATION OF THE ADMINISTRATIVE RECORD (DOC. 105)

Upon consideration of Defendant Salazar's, Kern County's, and Tejon Mountain Village LLC's Motions to Dismiss and Plaintiffs' Request for Leave to Voluntarily Dismiss Claims

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Against Defendant Salazar, and having heard and considered the arguments of counsel on January 24, 2011, and consistent with the memorandum decision dated February 4, 2011, IT IS HEREBY ORDERED that Defendants' Motions to Dismiss Plaintiffs' First Amended Complaint and Plaintiffs' Request for Leave to Voluntarily Dismiss Claims are GRANTED, as set forth

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below: (1) Plaintiffs' request for voluntary dismissal of claims against Defendant Salazar is GRANTED and all claims against Defendant Salazar are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(A)(i); (2) Defendants Kern County's and Tejon Mountain Village's Motions to Dismiss:

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(a) the NEPA and NHPA claims are GRANTED WITHOUT LEAVE TO
PLAINTIFF'S ORDER RE DEFENDANTS' MOTIONS TO DISMISS (DOCS. 81, 83, 85, 100); AND PLAINTIFFS' REQUEST FOR LEAVE TO AMEND COMPLAINT (DOC. 100) AND FOR CERTIFICATION OF THE ADMINISTRATIVE RECORD (DOC. 105)- 1 Case No.: 1:09 CV 01977 OWW SMS

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AMEND and WITH PREJUDICE; (b) the ARPA claim is GRANTED WITHOUT LEAVE TO AMEND but WITHOUT PREJUDICE to the extent that the Bureau of Indian Affairs later grants Plaintiffs federal recognition in accordance with the procedures for establishing that an American Indian group exists as an Indian tribe set forth in 25 C.F.R. Part 83;

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(c) the NAGPRA claim is GRANTED WITH LEAVE TO AMEND if Plaintiffs can first establish a current possessory interest in the land in question through some mechanism other than NAGPRA; (3) Plaintiffs' unopposed request for leave to amend its 42 U.S.C. § 1983/equal protection claim against NAHC is GRANTED and NAHC's motion to dismiss is DENIED as

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MOOT; (4) There is no basis for the exercise of supplemental jurisdiction over Plaintiffs' CEQA, California Public Resources Code section 5097.94, and SB 18 claims. Accordingly, Kern County and Tejon Mountain Village's Motions to Dismiss are GRANTED WITH LEAVE

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TO AMEND, subject to Plaintiffs' alleging a valid federal cause of action against Kern County and Tejon Mountain Village that substantially relates to Plaintiffs' CEQA, California Public Resources Code section 5097.94, and SB 18 claims; (5) Plaintiffs' request that the Court order Kern County to produce a CEQA administrative record is DENIED;

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(6) Plaintiffs shall be afforded the opportunity to assert a land-based claim for enforcement of aboriginal title in any amended complaint, subject to any defenses ; and (7) Plaintiffs shall have fifteen days from entry of this order to file an amended complaint that complies with requirements set forth under Iqbal and Twombly.
PLAINTIFF'S ORDER RE DEFENDANTS' MOTIONS TO DISMISS (DOCS. 81, 83, 85, 100); AND PLAINTIFFS' REQUEST FOR LEAVE TO AMEND COMPLAINT (DOC. 100) AND FOR CERTIFICATION OF THE ADMINISTRATIVE RECORD (DOC. 105)- 2 Case No.: 1:09 CV 01977 OWW SMS

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IT IS SO ORDERED.

Date: February 22, 2011

By:

/s/ OLIVER W. WANGER Honorable Oliver W. Wanger Judge of the United States District Court Eastern District of California

PLAINTIFF'S ORDER RE DEFENDANTS' MOTIONS TO DISMISS (DOCS. 81, 83, 85, 100); AND PLAINTIFFS' REQUEST FOR LEAVE TO AMEND COMPLAINT (DOC. 100) AND FOR CERTIFICATION OF THE ADMINISTRATIVE RECORD (DOC. 105)- 3 Case No.: 1:09 CV 01977 OWW SMS

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