Lewis et al v. Salazar et al

Filing 38

MEMORANDUM Decision Regarding 21 23 Defendants Motions to Dismiss signed by Judge Oliver W. Wanger on 4/20/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 4/27/2011) (Figueroa, O)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:10-cv-01281-OWW-DLB

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CLIFFORD M. LEWIS, et al.,

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Plaintiffs,

MEMORANDUM DECISION REGARDING
DEFENDANTS MOTIONS TO DISMISS
(Docs. 21, 23)

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v.
KEN SALAZAR, et al.,
Defendants.

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I. INTRODUCTION.
Plaintiffs bring this action against the Ken Salazar, the
Secretary of the Interior of the United States of America (“the
Secretary”),

and

Defendants”).

Plaintiffs filed a first amended complaint (“FAC”)

on August 17, 2010.

various

private

individuals

(“Individual

(Doc. 12).

On November 19, 2010, the Secretary filed a motion to dismiss
Plaintiffs’ FACt. (Doc. 21). Individual Defendants filed a motion
to dismiss on November 22, 2010. (Doc. 23).
Plaintiffs filed opposition to Individual Defendants’ motion
to dismiss on December 31, 2010.

(Doc. 25).

Plaintiffs filed

opposition to the Secretary’s motion to dismiss on January 5, 2010.
(Doc. 26).

The Secretary filed a reply on February 11, 2011.

(Doc. 29).

Individual Defendants also filed a reply on February

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11, 2011.

(Doc. 31).
II. FACTUAL BACKGROUND.

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In or about 1916, the United States purchased a parcel of land

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in Fresno County, California and thereafter held the land in trust

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for the Table Mountain Band of Indians.

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the Table Mountain Rancheria (“Rancheria”).

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considered an Indian Reservation and “Indian Country.”

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residents were recognized as Indians for the purposes of federal

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law.

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The land became known as
The Rancheria was
Rancheria

The California Rancheria Termination Act

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In 1958, Congress passed the California Rancheria Termination

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Act

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rancheria lands and assets to individual tribe members and called

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for a plan “for distributing to individual Indians the assets of

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the reservation or Rancheria, including the assigned and the

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unassigned lands, or for selling such assets and distributing the

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proceeds of sale, or conveying such assets to a corporation or

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other legal entity organized or designed by the group, or for

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conveying such assets to the group, as tenants in common."

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CTRA called for the government to give notice to all residents of

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the Rancheria who were recognized and designated as Indians under

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the 1916 Act before the land could be distributed. In addition, a

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government was required to do a survey of land on the Rancheria.

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The government was then required to improve or construct all roads

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serving the Rancheria, to install or rehabilitate irrigation,

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sanitation, and domestic water systems, and to exchange land held

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in trust for the Rancheria.

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(“CTRA”).

All

Indians

The

who

CTRA

called

received

a
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for

the

portion

distribution

of

the

of

assets

all

The

were

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ineligible to receive any more federal services rendered to them

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based on their status as Indians. All Indians who did not receive

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a portion of the assets were still eligible to receive federal

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services rendered to them based on their status as Indians.

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Very

few

of

the

Indians

were

given

actual,

written

or

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constructive notice of CRTA and those few who received notice, were

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given land offered by the government. The few Indians that were

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given land are the Individual Defendants named in this action:

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Clarence Jones, Lester Burrough, E.B. Barnes, Lewis Barnes, William

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Walker, Aaron Jones, Carolyn Walker and Twila Burrough. Any land

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not conveyed to the named Defendant Indians was to be earmarked and

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conveyed to a legal entity formed solely to receive the remaining

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parcels for the benefit of those Indians who did not receive any

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land under the initial distribution.

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1983 Settlement Agreement

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On or about March 28, 1983, the United States District Court

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for the Northern District of California [in an action entitled

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Table Mountain Rancheria Association et al. v. James Watt et al.

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Case

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re-instated the plaintiffs who had not participated in the 1958

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distribution as Indians under the laws of the United States prior

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to the 1958 CRTA and who were entitled to the benefits which they

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enjoyed prior to 1958 (“Watt Judgment”).

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ordered the Secretary of the Interior to prepare and provide to

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Plaintiffs a list of federal services, benefits, and programs and

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the eligibility criteria which were available to Indians because of

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their status as Indians between May 2, 1973 and June 25, 1975.

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Secretary did not comply.

No.

C-80-4595

MHP]

entered

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a

stipulated

judgment

which

The district court

The

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Plaintiffs contend the Secretary’s failure to comply with the

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Watt Judgment has caused Plaintiffs to expend great sums of their

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own funds to gain access to services, benefits and programs which

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the Secretary failed to provide to them. In many cases, because of

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the lack of funds, many Distributees were deprived of an education,

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adequate housing, prompt and adequate medical services. Plaintiffs

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were

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benefits, and programs including but not limited to education,

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medical

and

are

care

still

and

being

services,

deprived

of

vocational

the

federal

training

and

services,

services,

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housing services, repatriation of “remains,” observation of rituals

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and income from the land.

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The Watt Judgment provided that any land transferred as a

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result of the 1958 CRTA would continue to be owned by the buyers of

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1958. However, there was land remaining which was not transferred

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in the 1958 CRTA and was to be held in trust by the Secretary of

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the Interior for the benefits of the distributees, their heirs,

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assigns, executors, administrators, or successors. This land is

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described specifically in the Watt Judgment and during the past

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twenty-seven

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produced great revenues and income. None of the revenues or income

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have been distributed to the Plaintiffs, their heirs, assigns,

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executors, administrators, or successors.

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Individual Defendants failed to represent the members as required

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under

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relationship and a fiduciary duty to account for the revenues and

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distribute the income to the Plaintiffs, their heirs, assigns,

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executors, administrators and successors.

the

years

Watt

that

land

Judgment,

has

and

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increased in

that

value

and

has

Plaintiffs allege that

they

have

a

fiduciary

III. LEGAL STANDARD.

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Dismissal

under

Rule

12(b)(6)

is

appropriate

where

the

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complaint lacks sufficient facts to support a cognizable legal

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theory.

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(9th Cir.1990).

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survive a 12(b) (6) motion, the pleading "does not need detailed

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factual allegations" but the "[f]actual allegations must be enough

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to raise a right to relief above the speculative level." Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

(2007).

Mere

To sufficiently state a claim to relief and

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"labels

and

conclusions"

or

a

"formulaic

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recitation of the elements of a cause of action will not do." Id.

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Rather, there must be "enough facts to state a claim to relief that

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is plausible on its face." Id. at 570. In other

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"complaint must contain sufficient factual matter, accepted as

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true, to state a claim to relief that is plausible on its face."

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Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173

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L.Ed.2d 868 (2009) (internal quotation marks omitted).

words, the

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The Ninth Circuit has summarized the governing standard, in

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light of Twombly and Iqbal, as follows: "In sum, for a complaint to

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survive a motion to dismiss, the nonconclusory factual content, and

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reasonable

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suggestive of a claim entitling the plaintiff to relief." Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal

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quotation marks omitted). Apart from factual insufficiency, a

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complaint is also subject to dismissal under Rule 12(b)(6) where it

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lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or

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where the allegations on their face "show that relief is barred"

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for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.

inferences

from

that

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content,

must

be

plausibly

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910, 166 L.Ed.2d 798 (2007).

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In deciding whether to grant a motion to dismiss, the court

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must accept as true all "well-pleaded factual allegations" in the

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pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not,

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however, "required to accept as true allegations that are merely

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conclusory,

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inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988

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(9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss,

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if a district court considers evidence outside the pleadings, it

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must normally convert the 12(b)(6) motion into a Rule 56 motion for

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summary

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opportunity to respond."

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907 (9th Cir. 2003). "A court may, however, consider certain

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materials-documents

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incorporated by reference in the complaint, or matters of judicial

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notice-without converting the motion to dismiss into a motion for

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summary judgment."

unwarranted

judgment,

and

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it

must

of

give

fact,

the

or

unreasonable

nonmoving

party

an

United States v. Ritchie, 342 F.3d 903,

attached

to

the

complaint,

documents

Id. at 908.
IV. Discussion.

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deductions

A. First Cause of Action
Plaintiffs’ first cause of action is advanced only against the

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Secretary.

Plaintiffs

assert

violations

of

their

Fifth

and

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Fourteenth Amendment rights.

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to allege facts sufficient to establish that violation of the Watt

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Judgment is tantamount to a constitutional violation. Further,

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there is no apparent jurisdictional basis for Plaintiff’s claim.

As an initial matter, the FAC fails

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Plaintiffs concede that Bivens v. Six Unknown Named Agents,

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403 U.S. 388 (1971) does not provide a jurisdictional basis for

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their constitutional claims against the Secretary “because [the
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Secretary] is being sued in his official capacity.”

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Opposition at 6).

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alternative basis for jurisdiction over Plaintiffs’ constitutional

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claims against the Secretary, and nothing in the FAC indicates the

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existence

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concession that Bivens does not provide jurisdiction over their

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claims, no logical basis for jurisdiction is ascertainable from the

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FAC, or from Plaintiffs’ opposition. The only other jurisdictional

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grounds asserted in the FAC are the Indian Civil Rights act, 25

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U.S.C. § 1301 et seq. (“ICRA”), and purported violations of the

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Watt Judgment.1

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jurisdiction

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Secretary.

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Cir. 2004)(noting that a habeas petition is the only avenue for

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relief from a violation of ICRA) (citing Santa Clara Pueblo v.

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Martinez, 436 U.S. 49, 51-52, 67-70 (1978)); 25 U.S.C. § 1302 (ICRA

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applies to “Indian tribe [] exercising powers of self government”).

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Nor does the Secretary’s purported violation of the Watt Judgment

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provide a basis for federal jurisdiction.2

of

a

(Doc. 26,

Plaintiffs’ opposition does not identify any

cognizable

claim.

In

light

of

Plaintiffs’

The ICRA cannot serve as the basis for federal

over

Plaintiffs’

action

for

damages

against

the

See, e.g., Boozer v. Wilder, 381 F.3d 931, 935 n.2 (9th

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Violation of the Watt Judgment does not provide an independent

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basis for jurisdiction, as federal courts do not enjoy any inherent

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jurisdiction to enforce a settlement agreement "simply because the

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subject of that settlement was a federal lawsuit."

Alvarado v.

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In the section of the FAC entitled “jurisdiction,” Plaintiffs invoke 28 U.S.C.
§ 1343; 28 U.S.C. § 1357, and 28 U.S.C. § 1361. The facts alleged in the FAC and
the causes of action asserted do not give rise to jurisdiction under any of these
code sections.

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2

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The FAC does not allege any personal involvement by the Secretary. The legal
flaws inherent in Plaintiffs’ claim make it unnecessary to discuss factual
pleading deficiencies.

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Table Mt. Rancheria, 509 F.3d 1008, 1017 (9th Cir. 2007) (citing

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O'Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995)).

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Although

district

courts

have

ancillary

jurisdiction

to

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vindicate their authority and effectuate their own decrees, such

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jurisdiction is inapplicable here, as this court did not issue the

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order Plaintiffs allege has been violated.

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Keeton Enters. v. A All Am. Strip-O-Rama, 74 F.3d 178, 182 (9th

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Cir. 1996) (discussing power of court to enforce its own orders).

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Further, in issuing the Watt Judgment, the district court expressly

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limited its own jurisdiction to entertain claims for violation of

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its order to a one-year period.

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affirming the dismissal of a case concerning the Watt Judgment:

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See, e.g., William

As the Ninth Circuit noted in

The Watt settlement only extended jurisdiction “for a
period of one year from entry of judgment, or for such
longer time as may be shown to be necessary on a motion
duly noticed by any party within one year from entry of
judgment.” The Watt judgment was entered on June 16,
1983. Therefore, whatever ancillary jurisdiction the
district court had expired on June 6, 1984.

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Alvarado, 509 F.3d at 1018.

A fortiori, if the court that issued

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the Watt Judgment no longer has jurisdiction over Plaintiffs’ claim
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for breach, this court lacks jurisdiction.
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As Plaintiffs’s constitutional claims against the Secretary
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are legally and factually deficient, it is uneccessary to address
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the statute of limitations defense.

Nonetheless, Plaintiffs’ FAC

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suggests that any cognizable claim based on a breach of the
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settlement agreement is barred by the statute of limitations.
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Plaintiffs’ opposition is devoid of legal authority suggesting
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otherwise.

Plaintiffs FAC alleges they have suffered injury

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resulting from the Secretary’s purported breach “for the past 27
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8

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years.”

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violations doctrine based on “an ongoing pattern or practice” is of

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no avail.

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the FAC does not allege sufficient facts to support such a theory.

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B. Second Cause of Action

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Plaintiffs’

conclusory

invocation

of

the

continuing

Assuming arguendo Plaintiffs’ theory has legal merit,

Plaintiffs’ second cause of action is asserted against the

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Secretary and the Individual Defendants.

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second cause of action states that the claims asserted are: (1)

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Violation of the Watt Judgment; (2) Breach of Fiduciary Duty; and

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The heading for the

(3) Violation of the Fifth and Fourteenth Amendments.

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With respect to the Secretary, the second cause of action does

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not state any cognizable claim based on the Constitution or the

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Watt Judgment

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Plaintiffs’ breach of fiduciary duty claim against the Secretary,

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the FAC does not allege sufficient facts to establish the existence

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of

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government and Plaintiffs.

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540 F.3d 916, 924 (9th Cir. 2008) (“a trust relationship alone is

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not enough to imply a remedy in damages; ‘a further source of law

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[is] needed to provide focus for the trust relationship.’”);

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compare United States v. Navajo Nation, 537 U.S. 488, 505 (2003)

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(distinguishing “bare trust,” which did not impose a judicially

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enforceable fiduciary duty on United States, from trusts created by

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statutes that can "fairly be interpreted as mandating compensation

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by the Federal Government for damages sustained") with White

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Mountain Apache Tribe, 537 U.S. 465, 474 (2003)(holding that

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actionable

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"beyond a bare trust and permit[ed] a fair inference that the

any

for

actionable

reasons

discussed

fiduciary

fiduciary

above.

relationship

With

between

respect

the

to

federal

See Marceau v. Blackfeet Hous. Auth.,

relationship

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existed

where

statute

went

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Government [was] subject to duties as a trustee and liable in

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damages for breach.").

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As to the Individual Defendants, Plaintiffs’ claim for breach

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of the Watt Judgment does not state a claim because of the

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jurisdictional defects identified above.

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The nature of Plaintiffs’ constitutional claims against the

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Individual Defendants is unclear, but to the extent Plaintiffs’

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seek to assert a Bivens claim, the FAC is deficient because, inter

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alia, it does not allege facts sufficient to establish any action

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under color of federal law.

Nor does the complain allege any

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action under the color of state or tribal law.

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In opposition, Plaintiffs’ argue that Individual Defendants

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conduct amounted to a government taking within the meaning of the

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Fifth Amendment because Individual Defendants acted in concert with

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the Secretary to deprive Plaintiffs of their rights.

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not allege facts sufficient to support Plaintiffs’ conclusory

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conspiracy theory.

The FAC does

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The vague, conclusory, and contradictory allegations regarding

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the purported fiduciary duty owed by Individual Defendants to

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Plaintiffs do not state any cognizable claim for relief. Paragraph

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8 of the FAC alleges:

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Any land not conveyed to [Individual Defendants] was to
be earmarked and conveyed to a legal entity formed solely
to receive the remaining parcels and solely for the
benefit of those Indians who did not receive any land or
benefits under the 1958 [CTRA] distribution

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Paragraph 27 of the FAC suggests that the land referred to in

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paragraph 8 has been held in trust by the Individual Defendants:

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During the period 1983 to the present time, the lands of
the Table Mountain Rancheria not distributed in 1958 and

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held in trust by Defendants, have increased in value,
produced revenue through grazing rights, water rights and
certain other rights connected to the land. Defendants
have distributed that revenue amongst themselves and have
not distributed any of the revenue to Plaintiffs.
Paragraph 18, alleges that:
land remaining which was not transferred in the 1958 CRTA
and was and continues to be held in trust by the
Secretary of the Interior for the benefits of the
Plaintiffs,
their
heirs,
assigns,
executors,
administrators, or successors.
(FAC at 10).
It is not clear from the face of the FAC which entity

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Plaintiffs allege holds title to the lands in question.

The

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purported basis for any fiduciary duty is not clear from the face

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of the FAC either.

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to dismiss, Plaintiffs clarify that “the general theory of the FAC

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is that the [Individual Defendants], under the Watt Judgment, have

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a fiduciary duty to the residents of Table Mountain and their heirs

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and successors.” (Doc. 25, Opposition at 4). However, the FAC does

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not identify the operative language of the Watt Judgment Plaintiffs

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alleges creates a fiduciary relationship.

In opposition to Individual Defendant’s motion

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As the FAC is unintelligible, it is unnecessary to address the

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Individual Defendants statute of limitations defense or invocation

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of tribal immunity.
ORDER

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For the reasons stated, IT IS ORDERED:

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1) Plaintiffs’ first cause of action is DISMISSED, without

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prejudice;

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2) Plaintiffs’ second cause of action is DISMISSED, without

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prejudice;

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3) Plaintiffs shall file and amended complaint within fifteen
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days of electronic service of this decision; Defendants shall

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file responsive pleading within twenty days of service of any

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amended complaint; and

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4) Defendants shall submit a form of order consistent with

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this decision within five days of electronic service of this

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decision.

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IT IS SO ORDERED.

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Dated:
hkh80h

April 20, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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