Tule Lake Committee v. Federal Aviation Administration

Opinion

----oo0oo---- TULE LAKE COMMITTEE, No. 2:20-cv-00688 WBS DMC Plaintiff, v. MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS CITY OF TULELAKE, CALIFORNIA, TULELAKE, BILL G. FOLLIS, JUDY SHADWICK, RAMONA ROSIERE, and MODOC NATION fka MODOC TRIBE OF OKLAHOMA Defendants.

----oo0oo---- Plaintiff Tule Lake Committee brought this action against the Federal Aviation Administration (“FAA”), the City of Tulelake, California (“the City”) and its City Council (collectively, “the City defendants”), as well as the Modoc Nation and individual members of the Modoc Nation’s Tribal Council (collectively, “the tribal defendants”), alleging that defendants’ involvement in an agreement between the City and the Modoc Nation to sell land underlying the Tulelake Municipal Airport violated the National Historic Preservation Act, the terms of a federal land patent granting the land to the City, and a number of state statutes. The FAA, the City defendants, and the tribal defendants have moved to dismiss for lack of subject matter jurisdiction, failure to state a claim, and failure to join a necessary and indispensable party under Federal Rule of Civil Procedure (“FRCP”) 19. (Docket Nos. 7, 12, 13). I. Relevant Allegations This case arises out of a dispute over property located on the site of a former Japanese internment camp at Tule Lake. (See Compl. ¶¶ 4, 14 (Docket No. 1).) In 1951, the United States conveyed 359 acres of the internment camp land to the City of Tulelake to use as an airport via a federal land patent. (Compl. ¶ 19.) The patent granting the City fee ownership of the property contained covenants requiring that the City develop an airport on the land and that the airport be operated as a “public airport.” (Compl. ¶ 103.) Between 1974 and 2018, the City leased the airport property to Modoc County. (Compl. ¶¶ 21, 35.) Plaintiff is a California non-profit public benefit corporation whose purpose is to preserve the history and experiences of the inmates of the Tule Lake camp, educate the general public about the false imprisonment of American citizens and immigrants of Japanese ancestry in the 1940s, and to recognize the unique role of the Tule Lake camp in the United States’ system of Japanese internment. (Compl. ¶ 4.) Plaintiff has previously expressed the view that the airstrip on the property at issue should be relocated to preserve historic aspects of the property, including a cemetery that lay near the edge of the airport grant. (Compl. ¶¶ 20, 43-48.) Sometime before or during 2018, the City defendants decided to sell their fee interest in the airport property to the Modoc Nation. (Compl. ¶ 50.) Once plaintiff learned that the City defendants were interested in selling the airport property, it made several written offers to purchase the property for $40,000, and it appeared at an open City Council meeting on July 31, 2018 to express its interest. (Compl. ¶¶ 49-70.) The City defendants voted to sell the airport property to the Modoc Nation for $17,500 at the conclusion of the July 31, 2018 City Council meeting, contingent upon the FAA consenting to the transfer of the airport property to the Modoc Nation. (Compl. ¶ 70, Ex. C.) On August 9, 2018, the City defendants sent the FAA a copy of the parties’ purchase and sale agreement (“the Purchase Agreement”) for the airport property and requested that the FAA approve the sale. (See Compl. Ex. D.) A Manager from FAA’s Regional Airport Division Office issued a letter (“the Armstrong Letter”) in response, indicating that the office had no objection to the proposed sale. (See Compl. Ex. F.) Following the City defendants’ decision to sell the airport property to the Modoc Nation, plaintiff filed suit seeking to set aside the sale of the airport property. (See Compl. ¶¶ 191-200.) The complaint contains the following causes of action: (1) violation of the National Historic Preservation Act (“NHPA”), 54 U.S.C. §§ 306102-3016108, and Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702-706; (2) violation of the 1951 Federal Land Patent and the APA; (3) violation of the California Surplus Act, Cal. Gov. Code §§ 54220-54222; (4) violation of public policy; (5) violation of the Ralph M. Brown Act, Cal. Gov. Code §§ 54953-54960; and (6) violation of 42 U.S.C. §§ 1981, 1983. (See generally Compl.) II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff’s complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. III. Discussion The only federal claims that plaintiff raises in its complaint are against the FAA.1 Plaintiff first claims that the FAA violated the NHPA, 54 U.S.C. § 306108, by approving the City defendants’ sale of the airport property without first complying

1 Though the complaint also claims that the City defendants violated 42 U.S.C §§ 1981 and 1983, plaintiff conceded in its opposition to the City defendants’ motion to dismiss that its complaint had not stated a § 1981 or § 1983 claim and requested that the court dismiss that claim. (See Pl.’s Opp’n City Def. Mot. Dismiss at 12 (Docket No. 16).) with certain procedural requirements under the statute. (See Compl. ¶¶ 77-92.) Plaintiff also claims that the FAA violated the terms of the 1951 federal land patent by failing to prevent the sale of the property to the Modoc Nation. (See id.) A. Violation of the NHPA Plaintiff’s claim under the NHPA seeks judicial review of the FAA’s alleged approval of the sale of the airport property under APA section 702. APA section 702 allows persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” to seek judicial review. 5 U.S.C. § 702. Because section 702 grants judicial review for legal wrongs caused by “agency action,” in order for the court to have subject matter jurisdiction over this claim plaintiff’s complaint must allege facts sufficient to support the conclusion that the FAA’s approval of the airport transfer was an “agency action”. Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800–01 (9th Cir. 2013) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 61-62 (2004)); see also Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008) (noting that the presence of a final agency action is “a jurisdictional requirement to obtaining judicial review under the APA”). The APA defines “agency action” as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The complaint must also allege facts sufficient to show that the FAA’s action was “final” under the APA. Id. (“To maintain a cause of action under the APA, a plaintiff must challenge ‘agency action’ that is ‘final.’” (quoting Norton, 542 U.S. at 61-62)); see also 5 U.S.C. § 704 (further limiting review under the APA to “final agency action for which there is no other adequate remedy in court”) (emphasis added). The Supreme Court has articulated a two-part test to determine if an agency action is “final” under the APA: First, the action must mark the consummation of the agency’s decisionmaking process--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citations removed). Here, plaintiff’s complaint identifies two potential agency actions taken as part of the FAA’s approval: first, that the Armstrong Letter acted as a “permit, license, or approv[al]” for the City defendants to sell the airport property to the Modoc Nation (See Compl. ¶ 85); and second, that the FAA’s failure to carry out the NHPA’s procedural requirements prior to approving the sale of the airport property constituted a reviewable agency action (See Compl. ¶ 86). For the following reasons, neither action qualifies as “agency action,” much less “final agency action,” under the APA. See Wild Fish Conservancy, 730 F.3d at 800–01. 1. The Armstrong Letter The Armstrong Letter is not “agency action” because it is not the type of “circumscribed, discrete agency action[]” that is ordinarily the subject of judicial review. See Norton, 542 U.S. at 62. “The definition of [agency action] begins with a list of five categories of decisions made or outcomes implemented by an agency--‘agency rule, order, license, sanction [or] relief.’” Id. (quoting 5 U.S.C. § 551(13)). The Armstrong Letter--which plaintiff attaches to the complaint as an exhibit--does not fall under any of those five categories. (See Compl. Ex. F.) The Letter outlines the terms of the parties’ Purchase Agreement and acknowledges that the operator of the airport is subject to existing obligations under the law to receive federal grant funding from the FAA. (See id.) It then states that “based on [the] information and the conditions provided [by the parties], the FAA has no objection to the proposed Purchase Agreement of the Airport property from the City to the Tribe.” (Id.) The Armstrong Letter is essentially an advisory opinion informing the parties to the Purchase Agreement of the airport operator’s obligations under law and under the terms of the 1951 land patent. It is not “an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy,” 5 U.S.C. § 551(4) (definition of rule), or “a final disposition ... in a matter other than rule making,” see id. at § 551(6) (order). Nor is it a “permit ... or other form of permission.” See Id. at § 551(8) (license). While Congress intended the APA’s definition of an “agency action” to be “‘expansive,’ federal courts ‘have long recognized that the term [agency action] is not so all- encompassing as to authorize [federal courts] to exercise judicial review over everything done by an administrative agency.’” Wild Fish Conservancy, 730 F.3d at 800–01 (quoting Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006)). By its own terms, the Armstrong Letter does not purport to approve, license, or give permission for anything. (See Compl. Ex. F.) It is therefore not an “agency action” subject to judicial review within the meaning of 5 U.S.C. § 551(13). See Wild Fish Conservancy, 730 F.3d at 800–01; see also Bituminous Cas. Corp. v. Walden Res., LLC, 672 F. Supp. 2d 835, 845-46 (E.D. Tenn. 2009) (holding that an agency letter describing the consequences of a party’s failure to follow federal law was not a final agency action, and that it was “doubtful that [the] letter constitute[d] ‘action’ at all”). Even if the Armstrong Letter were an “agency action” subject to review, the court would still lack subject matter jurisdiction because the Letter’s issuance does not meet either of the finality requirements set out in Bennett. See Bennett, 520 U.S. at 177-78. First, the Letter does not “mark the consummation of the agency’s decisionmaking process.” See id. It does not appear to have been issued as the result of any sort of formal decisionmaking process by the FAA; in fact, a Manager from the agency’s Regional Airport Division Office issued the Letter just eight days after receiving the City’s request. (See Compl. Exs. D, F.) The FAA did not hold hearings, solicit additional input, or rely on any other evidence beyond the Purchase Agreement before it issued the Letter. (See id.) In fact, the Letter specifically notes that it only “represents the present views of the FAA’s Regional Airport Division Office,” not the views of the FAA as a whole. See Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1268 (D.C. Cir. 2018), cert. denied sub nom. Soundboard Ass’n v. F.T.C., 139 S. Ct. 1544 (2019) (holding that an informal agency letter did not represent the consummation of the agency’s decisionmaking process because it only expressed the views of agency staff, not the agency as a whole). Second, the issuance of the Armstrong Letter is not an action “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 177-78. Plaintiff’s complaint does not identify--and the court is not aware of--any authority that requires the FAA to approve a sale or transfer of the airport property to the Modoc Nation. Instead, the complaint alleges that the FAA had to decide whether to approve the sale of the airport property because the parties agreed to condition the sale of the property on FAA approval. (See Compl. ¶ 64.) An agency action cannot become final merely because private parties agree to treat it as determinative. The APA requires that rights, obligations, or legal consequences flow from agency action, not the parties’ own, self-imposed contracts. See Bennett, 520 U.S. at 177-78 (“[T]he action challenged must be one by which rights or obligations have been determined, or from which legal consequences will flow.” (emphasis added) (internal quotation marks omitted)). Because the Purchase Agreement is the only alleged source of legal rights, obligations, or consequences that could flow from the FAA’s issuance of the Armstrong Letter, the Letter cannot constitute a “final” agency action. See id. In short, an informal agency letter that (1) merely advises the City defendants and the tribal defendants of independent legal obligations that arise under federal law and the 1951 land patent, (2) does not represent the view of the agency as a whole, (3) does not purport to approve or license the sale of the airport property in any way, and (4) does not give rise to any legal rights, obligations, or consequences outside of a private agreement between the City defendants and the tribal defendants is not reviewable under the APA. The court therefore lacks subject matter jurisdiction to review the FAA’s issuance of the Armstrong Letter under the statute. Wild Fish Conservancy, 730 F.3d at 802. 2. Failure to Act Pursuant to the NHPA The FAA’s failure to consider the impact of the sale of the airport property under the NHPA was also not a final agency action. While a failure to act can constitute an agency action under the APA, see 5 U.S.C. § 551(13), the plaintiff must “assert that an agency failed to take a discrete agency action that it is required to take.” Norton, 542 U.S. at 64 (2004). Here, the complaint alleges that NHPA section 106 requires the FAA to consider the impact of its actions on historic property. (See Compl. ¶ 82.) Specifically, section 106 states that “prior to the approval of the expenditure of any Federal funds on [a Federal] undertaking or prior to the issuance of any license, [the agency] shall take into account the effect of the undertaking on any historic property.” 54 U.S.C. § 306108 (emphasis added). The FAA’s failure to act under NHPA section 106 cannot constitute a final agency action because section 106 only imposes an obligation on the FAA prior to the agency’s approval of the expenditure of federal funds or issuance of a license. See id. As noted above, the FAA did not issue any license or approval of the sale of the airport property in this case, and plaintiff has not identified any source of law authorizing or requiring the FAA to issue such an approval or license. The complaint therefore does not allege that the FAA failed to take any discrete agency action that it was required to take. See Norton, 542 U.S. at 64 (2004). Accordingly, neither the FAA’s issuance of the Armstrong Letter nor its failure to act under the NHPA constitute a “final agency action” by the FAA. Bennett, 520 U.S. at 177-78. The court therefore does not have subject matter jurisdiction over plaintiff’s claim that the FAA violated the NHPA by approving the transfer of the airport property to the Modoc Nation, and the court will dismiss plaintiff’s first claim against the FAA. See Wild Fish Conservancy, 730 F.3d at 802. B. Violation of the 1951 Federal Land Patent Plaintiff next claims that the FAA violated the terms of the 1951 federal land patent by failing to enforce its provisions. Plaintiff’s complaint claims that the land patent contains a covenant that prohibits the airport property from being conveyed to the Tribal defendants. (See Compl. ¶¶ 94-105.) As with its first claim, plaintiff seeks judicial review of the FAA’s failure to enforce the terms of the 1951 land patent under APA section 702. (See Compl. ¶108.) For the same reason that the court lacks subject matter jurisdiction over plaintiff’s claim that the FAA failed to comply with procedural requirements imposed by the NHPA, the court also lacks subject matter jurisdiction over plaintiff’s claim that the FAA failed to enforce the terms of the 1951 land patent. Though failures to act are reviewable the APA, see 5 U.S.C. § 551(13), the plaintiff must “assert that [the] agency failed to take a discrete agency action that it is required to take.” Norton, 542 U.S. at 64 (2004). Here, plaintiff’s complaint does not identify--and the court is not aware of--any authority that requires the FAA to enforce the terms of the 1951 land patent. The FAA’s failure to enforce the land patent is therefore not an “agency action” within the meaning of the APA. See id. Accordingly, the court will dismiss plaintiff’s second claim for lack of subject matter jurisdiction. See Wild Fish Conservancy, 730 F.3d at 802. C. Supplemental Jurisdiction Because the court will dismiss plaintiff’s only federal claims, the court no longer has federal question jurisdiction. See id. Federal courts have “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). But a district court “may decline to exercise supplemental jurisdiction . . . [if] the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en banc) (explaining that a district court may decide sua sponte to decline to exercise supplemental jurisdiction). The Supreme Court has stated that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine--judicial economy, convenience, fairness, and comity--will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Comity weighs in favor of declining to exercise supplemental jurisdiction over plaintiff’s state law claims because the state court is competent to hear those claims and may have a better understanding of the relevant state law. As for judicial economy, this action is still at the motion to dismiss stage, and plaintiff’s state law claims have not been the subject of any litigation. Judicial economy does not weigh in favor of exercising supplemental jurisdiction. Lastly, convenience and fairness do not weigh in favor of exercising supplemental jurisdiction. The federal and state fora are equally convenient for the parties. There is no reason to doubt that the state court will provide an equally fair adjudication of the issues. Accordingly, the court declines to exercise supplemental jurisdiction and will dismiss plaintiff’s remaining state law claims. IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Docket Nos. 7, 12, 13) be, and the same hereby are, Plaintiff’s claims against defendant Federal Aviation Administration are DISMISSED WITH PREJUDICE. Plaintiff’s claim against defendants City of Tulelake and the City Council of Tulelake under 42 U.S.C. §§ 1981, 1983 is also DISMISSED WITH QAOe 2. CU UV OOTY MIVINY MYVUUTIOTIL Oe PIR Vee AY OT I Ot

PREJUDICE. Plaintiff’s claims under California law against defendants City of Tulelake, City Council of the City of Tulelake, Bill G. Follis, Judy Cobb, Phil Follis, Jack Shadwick, Ramona Rosiere, and the Modoc Nation are DISMISSED WITHOUT PREJUDICE to refiling in state court. The Clerk of Court shall enter final judgment in favor of all defendants. Dated: September 24, 2020 Md / . ak. a / UNITED STATES DISTRICT JUDGE 14