NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TULE LAKE COMMITTEE, No. 20-16955
Plaintiff-Appellant, D.C. No. 2:20-cv-00688-WBS-DMC v.
FEDERAL AVIATION MEMORANDUM* ADMINISTRATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Submitted April 18, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Tule Lake Committee (the Committee) appeals the district court’s dismissal
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. for lack of jurisdiction of its claims brought against the Federal Aviation
Administration (FAA), the City of Tulelake and its city council, and the Modoc
Nation (Tribe) and its tribal Council (non-federal defendants collectively referred
to as the City). The Committee seeks to invalidate the City’s transfer of property
underlying the Tulelake Municipal Airport to the Tribe. We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
We review de novo a district court’s decision on subject matter jurisdiction,
Jones v. Gordon, 792 F.2d 821, 824 (9th Cir. 1986), and review for abuse of
discretion a district court’s decision to decline supplemental jurisdiction over a
state-law claim, Vo v. Choi, 49 F.4th 1167, 1171 (9th Cir. 2022). The Committee
does not challenge the dismissal of its claims against the FAA, and therefore has
abandoned these claims on appeal. Miller v. Fairchild Indus., Inc., 797 F.2d 727,
738 (9th Cir. 1986). The only claims at issue on appeal are those against the City.
1. The Committee argues there is federal subject matter jurisdiction
under 18 U.S.C. § 1331 over its claims against the City based on the 1951 federal
land patent transferring the airport property to the City (1951 Patent), the Federal
Airport Act of 1946 (Pub. L. No. 79-377, 60 Stat. 170 (May 13, 1946)) (Airport
Act), the federal or state declaratory judgment acts, or a significant federal
question arising in its state-law claims. None of these arguments has merit.
Federal courts are courts of limited jurisdiction, and we must ensure we do
2 not exceed the scope of our power to hear a case. Negrete v. City of Oakland, 46
F.4th 811, 813 (9th Cir. 2022). Under 28 U.S.C. § 1331, federal courts “have
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” A case can “arise under” federal law in two ways:
either (1) the federal law creates a cause of action, or (2) a “substantial federal
question” arises in a state-law claim. Id. at 816–17.
a. The 1951 Patent cannot provide a basis for jurisdiction as the
Committee is a stranger to the patent and does not have any interest to support its
ability to challenge the City’s transfer. See Raypath, Inc. v. City of Anchorage, 544
F.2d 1019, 1021 (9th Cir. 1976). Even if the Committee had a legal interest in the
patent, the mere existence of a federal patent does not provide a basis for federal
jurisdiction simply because the title derived under an act of Congress. See Shulthis
v. McDougal, 225 U.S. 561, 570 (1912); see also Virgin v. Cnty. of San Luis
Obispo, 201 F.3d 1141, 1143 (9th Cir. 2000).
b. Assuming the complaint properly alleged a violation of the Airport
Act, the Committee cannot show that the Airport Act provides either an express or
implied right of action. The parties agree, and it is evident from the text of the
statute, that the Airport Act does not provide an express right of action. The
Committee attempts to argue an implied right of action under Cort v. Ash, 422 U.S.
66 (1975), but failed to raise the argument in its opening brief and thus we may
3 consider it waived. Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1271 n.3 (9th
Cir. 2017). Even if properly before us, based on the lack of support in the text of
the statute or the record, we are doubtful that the Airport Act was created for the
benefit of any particular class of individuals; rather, it appears to be intended to
benefit the public generally through the development of airports. See California v.
Sierra Club, 451 U.S. 287, 294–95 (1981) (noting that neither the text nor
legislative history indicated that the Rivers and Harbors Appropriation Act was
meant to benefit a special class, instead finding it was intended to benefit the
public at large by empowering the federal government to address obstructions in
navigable rivers). Furthermore, it seems unlikely that Congress intended to create
an implied right of action to protect the ability of certain groups to sue public
entities in California who received a land patent under the Act, especially
considering the Airport Act outlined a different process for public participation
through public hearings on project approvals. See First Pac. Bancorp, Inc. v.
Helfer, 224 F.3d 1117, 1121 (9th Cir. 2000) (noting the key inquiry under Cort v.
Ash is legislative intent).
c. Neither the federal Declaratory Judgment Act (28 U.S.C. § 2201) nor
its state analog (Cal. Civ. Proc. Code § 1060) can provide an independent basis for
federal jurisdiction. See Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 280 (9th Cir.
1988) (finding the Declaratory Judgment Act provides an additional remedy in
4 cases where jurisdiction is already established but does not itself confer subject
matter jurisdiction); Franchise Tax Bd. of Cal. v. Construction Laborers Vacation
Tr. for S. Cal. 463 U.S. 1, 18–19 (1983) (“[W]e hold that under the jurisdictional
statutes as they now stand federal courts do not have original jurisdiction, nor do
they acquire jurisdiction on removal, when a federal question is presented by a
complaint for a state declaratory judgment, but Skelly Oil [Co. v. Phillips
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
TULE LAKE COMMITTEE, No. 20-16955
Plaintiff-Appellant, D.C. No. 2:20-cv-00688-WBS-DMC v.
FEDERAL AVIATION MEMORANDUM* ADMINISTRATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Submitted April 18, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Tule Lake Committee (the Committee) appeals the district court’s dismissal
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. for lack of jurisdiction of its claims brought against the Federal Aviation
Administration (FAA), the City of Tulelake and its city council, and the Modoc
Nation (Tribe) and its tribal Council (non-federal defendants collectively referred
to as the City). The Committee seeks to invalidate the City’s transfer of property
underlying the Tulelake Municipal Airport to the Tribe. We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
We review de novo a district court’s decision on subject matter jurisdiction,
Jones v. Gordon, 792 F.2d 821, 824 (9th Cir. 1986), and review for abuse of
discretion a district court’s decision to decline supplemental jurisdiction over a
state-law claim, Vo v. Choi, 49 F.4th 1167, 1171 (9th Cir. 2022). The Committee
does not challenge the dismissal of its claims against the FAA, and therefore has
abandoned these claims on appeal. Miller v. Fairchild Indus., Inc., 797 F.2d 727,
738 (9th Cir. 1986). The only claims at issue on appeal are those against the City.
1. The Committee argues there is federal subject matter jurisdiction
under 18 U.S.C. § 1331 over its claims against the City based on the 1951 federal
land patent transferring the airport property to the City (1951 Patent), the Federal
Airport Act of 1946 (Pub. L. No. 79-377, 60 Stat. 170 (May 13, 1946)) (Airport
Act), the federal or state declaratory judgment acts, or a significant federal
question arising in its state-law claims. None of these arguments has merit.
Federal courts are courts of limited jurisdiction, and we must ensure we do
2 not exceed the scope of our power to hear a case. Negrete v. City of Oakland, 46
F.4th 811, 813 (9th Cir. 2022). Under 28 U.S.C. § 1331, federal courts “have
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” A case can “arise under” federal law in two ways:
either (1) the federal law creates a cause of action, or (2) a “substantial federal
question” arises in a state-law claim. Id. at 816–17.
a. The 1951 Patent cannot provide a basis for jurisdiction as the
Committee is a stranger to the patent and does not have any interest to support its
ability to challenge the City’s transfer. See Raypath, Inc. v. City of Anchorage, 544
F.2d 1019, 1021 (9th Cir. 1976). Even if the Committee had a legal interest in the
patent, the mere existence of a federal patent does not provide a basis for federal
jurisdiction simply because the title derived under an act of Congress. See Shulthis
v. McDougal, 225 U.S. 561, 570 (1912); see also Virgin v. Cnty. of San Luis
Obispo, 201 F.3d 1141, 1143 (9th Cir. 2000).
b. Assuming the complaint properly alleged a violation of the Airport
Act, the Committee cannot show that the Airport Act provides either an express or
implied right of action. The parties agree, and it is evident from the text of the
statute, that the Airport Act does not provide an express right of action. The
Committee attempts to argue an implied right of action under Cort v. Ash, 422 U.S.
66 (1975), but failed to raise the argument in its opening brief and thus we may
3 consider it waived. Barnes v. Fed. Aviation Admin., 865 F.3d 1266, 1271 n.3 (9th
Cir. 2017). Even if properly before us, based on the lack of support in the text of
the statute or the record, we are doubtful that the Airport Act was created for the
benefit of any particular class of individuals; rather, it appears to be intended to
benefit the public generally through the development of airports. See California v.
Sierra Club, 451 U.S. 287, 294–95 (1981) (noting that neither the text nor
legislative history indicated that the Rivers and Harbors Appropriation Act was
meant to benefit a special class, instead finding it was intended to benefit the
public at large by empowering the federal government to address obstructions in
navigable rivers). Furthermore, it seems unlikely that Congress intended to create
an implied right of action to protect the ability of certain groups to sue public
entities in California who received a land patent under the Act, especially
considering the Airport Act outlined a different process for public participation
through public hearings on project approvals. See First Pac. Bancorp, Inc. v.
Helfer, 224 F.3d 1117, 1121 (9th Cir. 2000) (noting the key inquiry under Cort v.
Ash is legislative intent).
c. Neither the federal Declaratory Judgment Act (28 U.S.C. § 2201) nor
its state analog (Cal. Civ. Proc. Code § 1060) can provide an independent basis for
federal jurisdiction. See Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 280 (9th Cir.
1988) (finding the Declaratory Judgment Act provides an additional remedy in
4 cases where jurisdiction is already established but does not itself confer subject
matter jurisdiction); Franchise Tax Bd. of Cal. v. Construction Laborers Vacation
Tr. for S. Cal. 463 U.S. 1, 18–19 (1983) (“[W]e hold that under the jurisdictional
statutes as they now stand federal courts do not have original jurisdiction, nor do
they acquire jurisdiction on removal, when a federal question is presented by a
complaint for a state declaratory judgment, but Skelly Oil [Co. v. Phillips
Petroleum Co., 339 U.S. 667 (1950),] would bar jurisdiction if the plaintiff had
sought a federal declaratory judgment.”).
d. All that remains is the possibility of federal jurisdiction under Grable &
Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308
(2005), which outlines the analysis to determine if a significant federal issue
imbedded in a state-law claim can provide federal courts with subject matter
jurisdiction.1 The only remaining state-law claims raised by the Committee as a
basis for federal jurisdiction are those under the Ralph M. Brown Act (Cal. Gov’t
Code § 54950 et seq.). The Committee’s Brown Act claims relate solely to the
conduct of the City during its public meetings and do not in any way necessarily
involve an interpretation of the Airport Act, 1951 Patent, or any other federal law.
1 To the extent the Committee argues that Grable can support jurisdiction over a substantial federal issue in a federal statute notwithstanding a lack of a right of action in that statute, it fundamentally misunderstands the holding of Grable, which only applies to jurisdiction over state law claims with imbedded federal issues.
5 Therefore, Grable does not support federal jurisdiction.
2. Given the lack of any claim within the original jurisdiction of the federal
courts, the district court did not abuse its discretion in declining to exercise
supplemental jurisdiction under 28 U.S.C. § 1367 over the state-law claims. See
Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1169 (9th Cir. 2002) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
The decision of the district court is AFFIRMED.