Jensen v. United States National Park Service

Filing 28

Judge Richard G. Stearns: ORDER entered granting 23 Motion to Dismiss for Lack of Jurisdiction; granting 23 Motion to Dismiss (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-14095
LEYAH JENSEN
v.
UNITED STATES NATIONAL PARK SERVICE
MEMORANDUM AND ORDER ON
GOVERNMENT’S MOTION TO DISMISS
July 6, 2015
STEARNS, D.J.
Plaintiff Leyah Jensen instituted this action under the Native American
Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001-3013,
seeking injunctive relief and a monetary award against defendant, National
Park Service (NPS), for its failure “to comply with Congressional mandates.”
Compl. ¶ II(B). Jensen alleges that she found “exposed human remains” in
a sewer drain at a National Historic Landmark on Nantucket Island,
Massachusetts. Compl. ¶¶ I, II(B). She filed a police report and notified
defendant NPS and the U.S. Department of the Interior informing them that
the remains were unprotected in violation of NAGPRA. Having received no
response from the NPS, Jensen “made consultation with the local Tribe
Officer and the remains were validated as human by the State Coroner.” Id.

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¶ II(B). Jensen contends that the situation has caused “irreparable damage
to American history,” as well as causing her “two years of financial, mental,
emotional, and physical stresses of attempting to maintain lawful protocols
while awaiting response from the National Park Service.” Id. ¶ II(C)(2).
The NPS asks the court to dismiss Jensen’s Complaint for lack of
jurisdiction and her failure to state a claim for which relief may be granted.
The NPS asserts that Jensen lacks standing to bring a NAGPRA claim and
cannot establish that the United States has waived sovereign immunity and
consented to suit. Substantively, the NPS argues that Jensen has failed to
allege the necessary elements of a claim under NAGPRA.
DISCUSSION
The NPS moves to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction.

“‘The party invoking federal jurisdiction bears the

burden of establishing’ standing.” Clapper v. Amnesty Int’l USA, 133 S.Ct.
1138, 1148 (2013), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). “The federal courts are required to determine whether Article III
jurisdiction exists prior to proceeding to the merits of the case.” United
Seniors Ass’n, Inc. v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007).

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“Federal courts lack jurisdiction over claims against the United States
unless the government has waived its sovereign immunity.” Sanchez v.
United States, 740 F.3d 47, 50 (1st Cir. 2014), citing F.D.I.C. v. Meyer, 510
U.S. 471, 475, (1994). Jensen alleges personal injuries – “financial, mental,
emotional, and physical stresses” – that result from the NPS’s “neglect” and
asks for compensatory money damages. 1 Compl. ¶ II(C). This claim(s)
sounds in tort. The Federal Tort Claims Act (FTCA) comprises a limited
waiver of federal sovereign immunity, which allows the government to be
held liable for certain tortious acts and omissions. See 28 U.S.C. § 1346(b)(1).
However, prior to permitting suit against the United States, a litigant is
required to file an administrative claim with the agency having jurisdiction.
See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim
against the United States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office
or employment, unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been finally denied

The only statute cited in Jensen’s Complaint is NAGPRA. Notably,
NAGPRA does not authorize an award of monetary damages. See Castro
Romero v. Becken, 256 F.3d 349, 354-355 (5th Cir. 2001); Who Dat Yat
Chat, LLC v. Who Dat? Inc., 2010 WL 4812956, at *4 (E.D. La. Nov. 17,
2010).

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by the agency in writing and sent by certified or registered mail.”). Jensen
has failed to allege that she has complied with that procedural prerequisite
and, therefore, the court lacks subject-matter jurisdiction over the claim(s).
Jensen’s remaining non-tort claim is under NAGPRA. To demonstrate
standing, Jensen must “‘allege[ ] such a personal stake in the outcome of the
controversy’ as to warrant [the] invocation of federal-court jurisdiction and
to justify exercise of the court’s remedial powers on [her] behalf.” Warth v.
Seldin, 422 U.S. 490, 498-499 (1975), quoting Baker v. Carr, 369 U.S. 186,
204 (1962). To establish Article III standing, a plaintiff must show an injury
that is “concrete, particularized, and actual or imminent; fairly traceable to
the challenged action; and redressable by a favorable ruling.” Clapper, 133
S.Ct. at 1147, quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
149 (2010). NAGPRA establishes rights of tribes and lineal descendants to
obtain repatriation of human remains and cultural items from federal
agencies and museums, and protects human remains and cultural items
found on federal public and tribal lands. See 25 U.S.C. § 3001.; see also
Thorpe v. Borough of Thorpe, 770 F.3d 255, 262 (3d Cir. 2014) (“NAGPRA
enables Native American groups affiliated with items excavated on federal
lands to claim ownership. Second, NAGPRA provides for repatriation of
cultural items currently held by federal agencies, including federally-funded
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museums.”). Jensen does not claim to be a tribal or descendant claimant of
the remains, a requisite for standing within the “zone of interests” protected
by NAGPRA. Bonnichsen v. United States, 357 F.3d 962, 970 (9th Cir.
2004). Nor did she discover the human remains on tribal or federal lands.
The NPS proffers unrebutted affidavits establishing that there are no tribal
lands on the Island of Nantucket. See Peters Decl. ¶ 5 (“I am the Tribal
Historic Preservation Officer for the Mashpee Wampanoag Tribe [and]
[t]here are no tribal lands within the meaning of NAGPRA on the [I]sland of
Nantucket.”). 2 Nor is the site at issue – along the north shore of Nantucket
– federal land. 3 See McManus Decl. ¶¶ 4-5 (“[T]he site location that Ms.
Jensen provided . . . appears to be municipal or state-owned-land.”).
Moreover, Jensen fails to identify the remains as Native American (“relating
to a tribe, people, or culture indigenous to the United States”), see 43 C.F.R.
§ 10.2(d), of a currently existing tribe as required by the statute. See
Bonnichsen, 367 F.3d at 875-876. For these reasons, Jensen lacks standing

In evaluating a motion to dismiss for lack of subject matter jurisdiction,
the court “‘may consider whatever evidence has been submitted . . . such as
depositions and exhibits.’” Carroll v. United States, 661 F.3d 87, 94 (1st Cir.
2011), quoting Aversa v. United States, 99 F.3d 1200, 1209-1210 (1st Cir.
1996).
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Federal lands are defined in the statute as “land other than tribal lands
which are controlled or owned by the United States.” 25 U.S.C. § 3001(5).
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to invoke NAGPRA, and the court therefore lacks subject-matter jurisdiction
to entertain her claim.
ORDER
For the foregoing reasons, the NPS’s motion to dismiss the Complaint
is ALLOWED. The Clerk will now close the case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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