Case3:12-cv-01978-RS Document43 Filed07/23/12 Page1 of 32
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JAMES McMANIS (40958)
CHRISTINE PEEK (234573)
BRANDON ROSE (269196)
JENNIFER MURAKAMI (273603)
McMANIS FAULKNER
A Professional Corporation
50 West San Fernando Street, 10th Floor
San Jose, California 95113
Telephone:
(408) 279-8700
Facsimile:
(408) 279-3244
Email:
cpeek@mcmanislaw.com
7 Attorneys for Petitioners and Plaintiffs,
TIMOTHY WHITE,
8 ROBERT L. BETTINGER, and
MARGARET SCHOENINGER
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION
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TIMOTHY WHITE, an individual; ROBERT
L. BETTINGER, an individual; and
MARGARET SCHOENINGER, an individual,
Case No. C 12-01978 (RS)
(Alameda County Superior Court Case No.
RG-12-625891)
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Petitioners and Plaintiffs,
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vs.
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THE UNIVERSITY OF CALIFORNIA; THE
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; MARK G. YUDOF, in his
individual and official capacity as President of
the University; MARYE ANNE FOX, in her
individual and official capacity as Chancellor of
the University of California, San Diego; GARY
MATTHEWS, in his individual and official
capacity as Vice Chancellor of the University of
California, San Diego; KUMEYAAY
CULTURAL REPATRIATION COMMITTEE;
and DOES 1-50, inclusive,
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
MOTIONS TO DISMISS FIRST
AMENDED COMPLAINT UNDER FED.
R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6)
Date: August 24, 2012
Time: 10:00 a.m.
Ctrm: 3, 17th Floor
Judge: The Hon. Richard Seeborg
Respondents and Defendants.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page2 of 32
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TABLE OF CONTENTS
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INTRODUCTION ...........................................................................................................................1
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STATEMENT OF FACTS ..............................................................................................................2
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LEGAL ARGUMENT .....................................................................................................................6
I.
KCRC IS NOT ENTITLED TO SOVEREIGN IMMUNITY. ................................6
II.
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EVEN IF THIS COURT FINDS KCRC QUALIFIES FOR SOVEREIGN
IMMUNITY, KCRC WAIVED ANY SUCH IMMUNITY BY SUING THE
REGENTS AND INCORPORATING UNDER CALIFORNIA LAW. ...............10
8
A.
KCRC Waived Any Immunity It May Have Had By Initiating The
Southern District Action Against The Same Defendants, Under The Same
Federal Law, To Obtain The Same Skeletons In Dispute In This Action..10
B.
KCRC Waived Any Immunity It May Have Had By Incorporating Under
California Law. ..........................................................................................12
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III.
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THE TRIBES ARE NOT NECESSARY OR INDISPENSIBLE PARTIES. .......12
A.
No Tribe Other Than The La Posta Band Has Even A Hypothetical
Interest In The La Jolla Skeletons. .............................................................12
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B.
The La Posta Band Is Not A Necessary Party Because KCRC May
Represent The Tribe’s Interests. ................................................................13
15
C.
The La Posta Band Is Not A Necessary Party Because The Regents May
Represent The Tribe Adequately. ..............................................................14
D.
The Regents’ Concerns About Inconsistent Obligations Are Unfounded. 15
E.
At A Minimum, Plaintiffs Can Join Tribal Officials In This Action Under
The Doctrine Of Ex Parte Young. ..............................................................16
F.
The La Posta Band Is Not Indispensible Under The Rule 19 Factors. ......17
G.
Neither The La Posta Band Nor KCRC Are Indispensible Because The
Public Rights Exception Applies. ..............................................................19
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IV.
PLAINTIFFS’ PUBLIC TRUST AND FIRST AMENDMENT CLAIMS ARE
RIPE. ......................................................................................................................20
V.
PLAINTIFFS HAVE STANDING UNDER ARTICLE III. .................................22
VI.
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PLAINTIFFS CAN SEEK DECLARATORY AND INJUNCTIVE RELIEF
AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES. ...............24
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CONCLUSION ..............................................................................................................................25
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page3 of 32
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TABLE OF AUTHORITIES
2
CASES
3
4
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)................................................................. 21
5 Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006) ................................................... 6, 9
6 Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002) ........................................... 17
7 American Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336 (5th Cir. 1981)..... 25
8 American Greyhound Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 & n.5 (9th Cir. 2002) .... 14
9 American Vantage Companies. v. Table Mountain Rancheria, 292 F.3d 1091(9th Cir. 2002) ... 12
10 Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011).......................... 6, 7
11 Arizona Pub Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir. 1996) .................................................. 16
12 Big Horn County Elec. Coop., Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000) ............................... 16
13 Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Or. 2002) ........................................ 13, 23
14 Bonnichsen v. United States, 367 F.3d 864, 872-73 (9th Cir. 2004) ............................................ 23
15 Breakthrough Management Group, Inc. v. Chukchansi Gold Casino, 629 F.3d 1173
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(10th Cir. 2010)................................................................................................................... 7
17 Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885 (9th Cir. 1968) ............................ 16
18 Burlington N.R.R. v. Blackfeet Tribe, 924 F.2d 899 (9th Cir. 1991) ............................................ 16
19 Califano v. Sanders, 430 U.S. 99 (1977) ...................................................................................... 21
20 Cash Advance and Preferred Cash Loans v. Colorado, 242 P.2d 1099 (Colo. 2010) ............... 6, 7
21 Cf. Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. Alaska 2003) ...................................................... 20
22 Clinton v. Babbitt, 180 F.3d 1081 (9th Cir. 1999) ........................................................................ 17
23 Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir. 1996) ............................ 14
24 Confederated Tribes v. Lujan, 928 F.2d 1496 (9th Cir. 1991) ..................................................... 16
25 Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988) ....................................................................... 19
26 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................................. 23
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page4 of 32
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2
Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150
(9th Cir. 2002)................................................................................................................... 17
3 Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986) ............................. 6, 8
4 Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581 (9th Cir. 1998) ..................................... 6
5 Dodd v. Hood River County, 59 F.3d 852 (9th Cir.1995)............................................................. 20
6 EEOC v. Peabody Western Coal Co., 610 F.3d 1070, 1074 (9th Cir. 2008)................................ 17
7 Enterprise Mgmt. Consultants, Inc. v. United States, 883 F.2d 890 (10th Cir. 1989) ............ 11, 17
8
Forest Conserv. Council v. U.S. Forest Serv., 66 F.3d 1489 (9th Cir. 1995) ............................... 14
9 Giedosh v. Little Wound School Bd., 995 F. Supp. 1052 (D.S.D. 1997) ........................................ 6
10 Glanton ex rel. Alcoa Prescription Drug Plan v. AdvancePCS, Inc., 465 F.3d 1123
11
(9th Cir. 2006)................................................................................................................... 23
12 Graham v. Federal Emergency Management Agency, 149 F.3d 997 (9th Cir. 1998) .................. 22
13 Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000) ....................... 6
14 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012) .............................................. 22
15 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997) ...................................................... 24
16 In re Christian & Porter Aluminum Co., 584 F.2d 326 (9th Cir. 1978) ....................................... 14
17 J.L. Ward Assoc., Inc. v. Great Plains Tribal Chairman’s Health Bd., 2012 U.S. Dist.
18
LEXIS 4164, *36 (D.S.D. Jan. 13, 2012) ....................................................................... 6, 7
19 Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir. 1987)............................................ 11, 17
20 Kentucky v. Graham, 472 U.S. 159 (1985) ................................................................................... 25
21 Kescoli v. Babbitt, 101 F.3d 1304 (9th Cir. 1996) ........................................................................ 17
22 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) ................. 6
23 Lapides v. Bd. Of Regents of Univ. System of Georgia, 535 U.S. 613 (2002) .............................. 25
24 League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) ................. 15
25 Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 176 L. Ed. 2d 1131 (2010) ........................... 22
26 Linda S. v. Richard D., 410 U.S. 614 (1973) ................................................................................ 24
27 Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir. 1975) ......................................................... 17
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page5 of 32
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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 22
2 Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990)........................................................ 12
3 Manybeads v. United States, 209 F.3d 1164 (9th Cir. 2000) ........................................................ 17
4 Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006) .................................................. 6
5 Mayfield v. United States, 599 F.3d 964 (9th Cir. 2010) .............................................................. 24
6 McClendon v. United States, 885 F.2d 627 (9th Cir. 1989).............................................. 11, 12, 17
7 Memphis Biofuels, LLC v. Chicksaw Nation Industries, Inc., 585 F.3d 917 (6th Cir. 2009) ......... 6
8 Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995) ......................... 18
9 New York Coastal Partnership, Inc. v. United States Dep’t of Interior, 341 F.3d 112
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(2d Cir. 2003) .................................................................................................................... 24
11 Ninigret Development Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21 (1st
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Cir. 2000) ............................................................................................................................ 6
13 Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe,
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498 U.S. 505 (1991) .................................................................................................... 10, 11
15 Oregon Natural Resources Council v. Lyng, 882 F.2d 1417 n. 3 (9th Cir. 1989) ........................ 19
16 Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998) ................................... 6
17 Pit River Home & Agricultural Cooperative Ass’n v. United States, 30 F.3d 1088
18
(9th Cir. 1994)................................................................................................................... 11
19 Pochiro v. Prudential Ins. Co. of America, 827 F.2d 1246 (9th Cir. 1987) ................................. 11
20 Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994) ................................................... 16
21 Runyon v. Ass’n of Vill. Council Presidents, 84 P.3d 437 (Alaska 2004) ...................................... 8
22 Shermoen and Dawavendewa v. Salt River Project Agricultural Improvement and Power
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District, 276 F.3d 1150, (9th Cir. 2002) ........................................................................... 17
24 Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992) .......................................................... 12
25 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) ........................... 24
26 Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cro. 2006) ................................................. 6
27 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ...................................... 14
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
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Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032 (11th Cir. 2001) ............ 6
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Trbovich v. United Mine Works of Am., 404 U.S. 528 n.10 (1972) ........................................ 14, 15
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Trudgeon v. Fantasy Springs Casino, 71 Cal.App.4th 632 (1999)............................................. 6, 7
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United States v. Hall, 472 F. 2d 261, 264-66 (5th Cir. 1972) ....................................................... 16
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United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) .................................................. 10, 12, 16
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Warth v. Seldin, 422 U.S. 490 (1975) ........................................................................................... 24
7 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n,
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443 U.S. 658 n. 32 (1979) ................................................................................................. 16
9 Weeks Construction, Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668 (8th Cir. 1986) .................. 6
10 White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971) ................................ 6
11 Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 777 (D.C. Cir. 1986) .................................. 18
12 Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005) ........................................................................... 22
13 Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1178 (9th Cir. 2011)............................... 14
14 Wolfe v. Strankman, 392 F.3d 358 n. 2 (9th Cir. 2004) ................................................................ 25
15 Wright v. Colville Tribal Enterprise Corp., 147 P.2d 1275 (Wash. 2006) ............................... 6, 12
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STATUTES
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25 U.S.C. § 3001 et seq............................................................................................................. 2, 13
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25 U.S.C. § 3001(2) ........................................................................................................................ 5
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25 U.S.C. § 3001(9) .................................................................................................................... 2, 5
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25 U.S.C. § 3001(9)-(10) ................................................................................................................ 2
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25 U.S.C. § 3002(a) ...................................................................................................................... 13
23
25 U.S.C. § 3003 ....................................................................................................................... 3, 19
24 25 U.S.C. § 3013 ........................................................................................................................... 18
25 25 U.S.C. § 3005(a)(1) .................................................................................................................. 13
26 Cal. Code Civ. Proc., § 369.5(a) ................................................................................................... 14
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page7 of 32
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RULES
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Appellate Rule 43(c)(1) ................................................................................................................ 25
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Civil Rule 25(d)(1)........................................................................................................................ 25
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Fed. R. Civ. P. 13(a)(1) ................................................................................................................. 11
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Fed. R. Civ. P. 17(b) ..................................................................................................................... 14
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Fed. R. Civ. P. 17(b)(1)(A) ........................................................................................................... 14
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Fed. R. Civ. P. 19(b) ............................................................................................................... 13, 17
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Fed. R. Civ. P. 65(d) ..................................................................................................................... 16
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10 REGULATIONS
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43 C.F.R. § 10.9 ............................................................................................................................ 19
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43 C.F.R. § 10.11 .................................................................................................................... 12, 19
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43 C.F.R. § 10.11(c)(1) ................................................................................................................... 5
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43 C.F.R. § 10.11(c)(1)(i)-(ii) ....................................................................................................... 12
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page8 of 32
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INTRODUCTION
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Plaintiffs, Timothy White, Robert L. Bettinger, and Margaret Schoeninger (collectively,
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“plaintiffs”) hereby oppose the motions of defendants, the University of California, the Regents
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of the University of California, Mark G. Yudof, Marye Anne Fox, and Gary Matthews,
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(collectively the “Regents”), and Kumeyaay Cultural Repatriation Committee (“KCRC”) to
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dismiss with prejudice plaintiffs’ Petition For Writ Of Mandamus (Code Civ. Proc., § 1085), Or
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In The Alternative, For Writ Of Administrative Mandamus (Code Civ. Proc., § 1094.5); First
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Amended Complaint For Declaratory And Injunctive Relief (Code Civ. Proc., §§ 526a, 1060)
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(“FAC”). In the interests of efficiency, plaintiffs submit one memorandum of points and
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authorities in opposition to both motions.
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This is the Regents’ second motion to dismiss. In their first motion to dismiss, the
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Regents argued that the twelve Kumeyaay tribes were necessary and indispensible parties.
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Further, the Regents argued, the tribes could not be joined because they enjoyed sovereign
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immunity, and therefore, this action had to be dismissed. Plaintiffs then amended their
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Complaint to add KCRC, pursuant to Rule 20 of the Federal Rules of Civil Procedure. In their
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second motion, the Regents disagree that KCRC may represent the tribes’ interests. They
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continue to assert the tribes themselves must be joined, and claim that because the tribes cannot
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be joined, the action must be dismissed. KCRC also argues that it enjoys sovereign immunity.
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Defendants’ arguments lack merit. KCRC is not immune, and even if it is, it has waived
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its immunity by suing the Regents in the Southern District of California (the “Southern District
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action”), seeking relief as to the same human remains at issue here. In addition, the tribes are not
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necessary or indispensible parties, because their purported interests are represented adequately
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by KCRC or the Regents, or by allowing plaintiffs leave to amend to add tribal officials under
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the doctrine of Ex parte Young. Even as nonparties, the tribes may be enjoined under Rule 65(d)
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because they are acting in concert with the Regents to violate NAGPRA. Therefore, there is no
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risk of inconsistent obligations if this Court were to enter judgment in favor of plaintiffs.
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Further, the tribes are not indispensible because the public rights exception to Rule 19(b) applies.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page9 of 32
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The Regents also attack the FAC on other procedural grounds, including ripeness,
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standing, and incorrect party designation. These arguments also fail. All of plaintiffs’ claims are
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ripe because the Regents have threatened to transfer the remains regardless of whether NAGPRA
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applies or not, and have taken affirmative steps towards this goal. Plaintiffs have standing
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because a judgment in their favor likely would redress the Regents’ refusal to allow them to
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study the remains. Finally, plaintiffs correctly have sued state officials in their individual
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capacity under the doctrine of Ex parte Young. For all these reasons, plaintiffs respectfully
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request that this Court deny defendants’ motions to dismiss.
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STATEMENT OF FACTS
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This case concerns the Regents’ unlawful efforts to repatriate two extremely old, rare
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skeletons (the “La Jolla Skeletons”) discovered in 1976 on University property in San Diego.
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(FAC, ¶ 13, attached as Exhibit A to the Declaration of Christine Peek in Opposition To Motions
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To Dismiss First Amended Complaint Under Fed. R. Civ. P. 12(b)(7), 12(b)(1), and 12(b)(6)
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(“Peek Decl.”).) The bones have great scientific significance due to the age of the two skeletons,
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which are estimated to date back 8977 to 9603 years ago. (Id. at ¶ 13.) Because of their extreme
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age and relatively good condition, the La Jolla Skeletons represent a unique opportunity for all
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people to understand human origins in North America. (FAC, ¶ 13.)
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In 1990, Congress passed the Native American Graves Protection and Repatriation Act
(“NAGPRA”). NAGPRA defines “Native American” as follows:
‘Native American’ means of, or relating to, a tribe, people, or culture that is
indigenous to the United States.
25 U.S.C. § 3001(9). The Ninth Circuit has held that human remains must bear some
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relationship to a presently existing tribe, people, or culture to be considered “Native American”
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within the meaning of NAGPRA. See Bonnichsen v. United States, 367 F.3d 864, 875-76 (9th
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Cir. 2004). NAGPRA does not apply to remains that are not “Native American” or “Native
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Hawaiian.” See id. at 875; see also 25 U.S.C. § 3001(9)-(10). NAGPRA’s statutory scheme
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does not require repatriation of “culturally unidentifiable” human remains, however. See
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generally 25 U.S.C. § 3001 et seq.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
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NAGPRA requires those entities subject to it to compile an inventory of “Native
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American” human remains and cultural objects in their possession, and submit the inventory to
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the United States Department Of The Interior (“DOI”). 25 U.S.C. § 3003. Museums must make
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a “threshold determination” that culturally unidentifiable remains are “Native American” before
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including them on a federal inventory. (See 75 Fed.Reg. 12387 (response to Comment 55),
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attached as Exhibit U to Request for Judicial Notice in Opposition To Motions To Dismiss First
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Amended Complaint Under Fed. R. Civ. P. 12(b)(7), 12(b)(1), and 12(b)(6) (“RJN”).)
8
9
The University has created a system-wide University Advisory Group on Cultural
Repatriation and Human Remains and Cultural Items (“Advisory Group”). (FAC, ¶ 17.) The
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President or the President’s designee has final authority to approve or disapprove determinations
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regarding disposition of remains and cultural items. (Id., ¶ 17.)
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The Kumeyaay Nation (“Kumeyaay”), a coalition of twelve Native American tribes,
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13 claims to have occupied the site on which the La Jolla Skeletons were found. (Id., ¶ 19.) These
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twelve tribes are represented by defendant, Kumeyaay Cultural Repatriation Committee
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(“KCRC”), a California nonprofit corporation whose status currently is reported as “suspended”
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on the website of the California Secretary of State. (Id., ¶ 10; see also RJN, Exh. T.) Steven
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Banegas is the spokesperson for KCRC. (FAC, ¶ 27.) James Hill is the KCRC representative
18 for the La Posta Band of Diegueno Mission Indians (“La Posta Band”). See Declaration of
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20
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Steven Banegas in Support of Defendant’s Motion to Dismiss, Docket No. 41-1, p. 10.
Although the Kumeyaay have asserted that the La Jolla Skeletons are culturally affiliated
with their coalition of tribes, there is insufficient evidence to support the conclusion that the
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1 The twelve tribes are as follows: La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation,
California; Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Campo
Band of Diegueno Mission Indians of the Campo Indian Reservation, California; Ewiiaapaayp Band of Kumeyaay
Indians, California; Iipay Nation of Santa Ysabel, California (formerly the Santa Ysabel Band of Diegueno Mission
Indians of the Santa Ysabel Reservation); Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit
Reservation, California; Jamul Indian Village of California; Manzanita Band of Diegueno Mission Indians of the
Manzanita Reservation, California; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande
Reservation, California; San Pasqual Band of Diegueno Mission Indians of California; Sycuan Band of the
Kumeyaay Nation; and Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas
Reservation, California.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page11 of 32
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Kumeyaay are descended from the people who were buried at the site, approximately 10,000
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years ago. (FAC, ¶ 19.) In addition, there is insufficient evidence to conclude that any
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Kumeyaay tribe actually occupied the site at the time the La Jolla Skeletons were buried there.
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(Id., ¶ 19.) The evidence does not support a finding that there is any link between the La Jolla
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Skeletons and any Kumeyaay tribe, or any currently existing Native American tribe, for the
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following reasons, among other reasons:
7
•
The burial pattern of the La Jolla Skeletons differs from that of the Kumeyaay
as reported in early ethnographies. Before the Spanish explorers made contact
with North America, the Kumeyaay cremated, rather than buried, their dead.
•
Preliminary carbon and nitrogen stable isotope analysis of human bone
collagen from the La Jolla Skeletons is consistent with a year-round diet of
open-ocean and some nearshore marine fish or marine mammals. This
contrasts with the diet of the Kumeyaay, who lived on wild plants,
supplemented with more small than large game, and in some places, fish.
Seasonal dependence on marine foods would produce lower values of the
isotope signals than those recovered from the La Jolla Skeletons.
•
The skeletal morphology of the La Jolla Skeletons does not show any link to
the Kumeyaay, or any other Native American tribe. The La Jolla Skeletons
have long, narrow cranial vaults and short, relatively narrow faces compared
with extant Native Americans. A detailed 2007 morphological study by
Professor Douglas Owsley concluded the La Jolla Skeletons were not Native
American.
•
Because there has been no genetic testing of the La Jolla Skeletons (because
the University has not allowed any testing), there is no genetic or DNA
evidence linking the Kumeyaay or any other Native American tribe to the La
Jolla Skeletons.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
(Id., ¶ 19.)
On or about October 22, 2008, the University submitted a “Notice of Inventory
Completion” and inventory to the DOI, which included the La Jolla Skeletons and various other
22 items said to be associated with the remains. (Id., ¶ 20.) The 2008 report was silent on whether
23
the La Jolla Skeletons were “Native American” within the meaning of NAGPRA, and made no
24
attempt to determine whether or not the La Jolla Skeletons were subject to NAGPRA. (Id., ¶
25
21.) The 2008 report did conclude, however, that there was insufficient evidence to conclude the
26
remains were culturally affiliated with the Kumeyaay. (Id., ¶ 21.) Because there is insufficient
27
evidence to conclude the La Jolla Skeletons are “Native American” within the meaning of
28
4
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page12 of 32
1
NAGPRA, Defendants’ decision to include them on the October 22, 2008 inventory was legally
2
erroneous. (Id., ¶ 22.)
3
In 2010, the DOI and its Secretary Ken Salazar (“Salazar”) purported to promulgate a
4 new federal regulation governing the disposition of “culturally unidentifiable” human remains
5 that meet NAGPRA’s definition of “Native American.” (Id., ¶ 24.) Soon thereafter, Steven
6 Banegas wrote to the UCSD campus and requested that the La Jolla Skeletons be repatriated to
7 the La Posta Band, along with certain other objects. (Id., ¶ 27.)
8
On or about May 11, 2011, Yudof authorized UCSD to dispose of the La Jolla Skeletons
9 under NAGPRA, subject to the certain directions and recommendation. (Id., ¶ 30.) On or about
10 December 5, 2011, defendants published, or caused to be published, in the Federal Register, a
11 Notice of Inventory Completion: The University of California, San Diego, San Diego, CA
12 (“Repatriation Notice”). (Id., ¶ 37.) The Repatriation Notice stated that if no one else came
13 forward and claimed the La Jolla Skeletons by January 4, 2012, the La Jolla Skeletons would be
14 repatriated to the La Posta Band after that date. (Id., ¶ 37.) The Repatriation Notice also made
15 the following purported findings, among other findings:
16
•
The La Jolla Skeletons are “Native American,” pursuant to 25 U.S.C. §
3001(9).
•
Pursuant to 25 U.S.C. § 3001(2), a relationship of shared group identity
cannot be reasonably traced between the La Jolla Skeletons and any presentday Indian tribe.
•
Pursuant to 25 U.S.C. § 3001(3)(A), approximately 25 objects found at the
site are “reasonably believed” to have been placed with or near the La Jolla
Skeletons at the time of death or later as part of the “death rite or ceremony.”
•
Pursuant to 43 C.F.R. § 10.11(c)(1), and based upon request from the
Kumeyaay Cultural Repatriation Committee, on behalf of the 12 associated
Kumeyaay tribes, disposition of the La Jolla Skeletons is to the La Posta Band
of Diegueno Mission Indians of the La Posta Indian Reservation, California.
17
18
19
20
21
22
23
24
25
26
27
28
(Id., ¶ 37.)
The La Jolla Skeletons are in good enough condition that it may be possible to retrieve
DNA samples and perform DNA sequencing. (Id., ¶ 31.) Not only would this provide a wealth
of information of interest to the general public, such sequences also could be used to assess
5
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page13 of 32
1
whether or not the remains share any genetic affiliation with modern Native American groups.
2
(Id., ¶ 31.) Fox and UCSD have authority to grant requests to study the La Jolla Skeletons, but
3
have refused to allow any research to be conducted. (Id., ¶ 32.) White, Bettinger, and
4
Schoeninger have asked to study the La Jolla Skeletons, but the University has not granted their
5
requests. (Id., ¶¶ 33-35.) The University’s policy is that remains and cultural items shall
6
normally remain accessible for research by qualified investigators such as plaintiffs. (Id., ¶ 36.)
7
Therefore, it is highly probable that plaintiffs will be allowed to study the La Jolla Skeletons if
8
they remain in the University’s possession. (Id., ¶ 36.)
9
10
11
LEGAL ARGUMENT
I.
KCRC IS NOT ENTITLED TO SOVEREIGN IMMUNITY.
The Regents claim KCRC is not an adequate representative of any Kumeyaay tribe,
12
because KCRC enjoys sovereign immunity. KCRC also contends it is immune, because it acts
13
as an arm of its member tribes. In fact, tribal sovereign immunity does not extend to KCRC.
14
Defendants cite a variety of cases in which corporate entities or other non-tribes were
15 found to operate as an “arm of the tribe” and therefore enjoyed the tribe’s sovereign immunity.
2
16
17
18
19
20
21
22
23
24
25
26
27
28
2 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998); Allen v. Gold Country
Casino, 464 F.3d 1044 (9th Cir. 2006); Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006), vacated on
other grounds in Marceau v. Blackfeet Hous. Auth., 519 F.3d 838 (9th Cir. 2008); Smith v. Salish Kootenai College,
434 F.3d 1127 (9th Cir. 2006); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1187 (9th Cir. 1998); see
also Ninigret Development Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000);
Memphis Biofuels, LLC v. Chicksaw Nation Industries, Inc., 585 F.3d 917 (6th Cir. 2009); Amerind Management
Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011); Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040
(8th Cir. 2000); Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032 (11th Cir. 2001) (per
curiam); Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581 (9th Cir. 1998); Weeks Construction, Inc. v.
Oglala Sioux Hous. Auth., 797 F.2d 668 (8th Cir. 1986); Dille v. Council of Energy Resource Tribes, 801 F.2d 373
(10th Cir. 1986); J.L. Ward Assoc., Inc. v. Great Plains Tribal Chairman’s Health Bd., 2012 U.S. Dist. LEXIS 4164
(D.S.D. Jan. 13, 2012); Giedosh v. Little Wound School Bd., 995 F. Supp. 1052 (D.S.D. 1997); Trudgeon v. Fantasy
Springs Casino, 71 Cal.App.4th 632 (1999); Wright v. Colville Tribal Enterprise Corp., 147 P.2d 1275 (Wash.
2006); Cash Advance and Preferred Cash Loans v. Colorado, 242 P.2d 1099 (Colo. 2010) (en banc); White
Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971). Most of these cases offer scant or no analysis
of the factors relevant to the “arm of the tribe” question, and therefore will not be discussed in detail. In addition,
many of these cases were decided under rules applicable to Title VII cases, including Pink v. Modoc Indian Health
Project, discussed in the Regents’ brief. Applying Title VII cases here risks confusion, because Title VII expressly
exempts Indian tribes from the definition of “employer.” See Taylor, 261 F.3d at 1035. In Title VII cases, whether
a tribal entity may reap the benefits of the tribe’s immunity is considered for purposes of determining whether the
statutory exception applies. See J.L. Ward Assoc., Inc. v. Great Plains Tribal Chairman’s Health Bd., 2012 U.S.
Dist. LEXIS 4164, *25 (D.S.D. Jan. 13, 2012). No such statutory exception is at issue here.
6
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page14 of 32
1
While it may be theoretically possible for immunity to extend to agencies or corporations that
2
function as an “arm of the tribe,” tribal entities are not entitled to immunity unless, under the
3
relevant factors, they actually are acting as an arm of the tribe. The multi-factor test requires
4
analysis of the facts pertinent to each factor. See Breakthrough Management Group, Inc. v.
5 Chukchansi Gold Casino, 629 F.3d 1173, 1187 (10th Cir. 2010) (identifying six factors).
6
The Breakthrough factors are as follows: “1) the entity’s method of creation; 2) the
7 entity’s purpose; 3) the entity’s structure, ownership, and management, including the level of
8 control the tribe exercises over the entity; 4) whether the tribe intended to extend its sovereign
9 immunity to the tribe; 5) the financial relationship between the tribe and the entity; and 6)
10 whether the purposes of tribal immunity are served by granting immunity to the entity.” See J.L.
11 Ward Assoc., Inc. v. Great Plains Tribal Chairman’s Health Bd., 2012 U.S. Dist. LEXIS 4164,
12 *36 (D.S.D. Jan. 13, 2012) (citing Breakthrough, 629 F.3d at 1181); see also Cash Advance and
13 Preferred Cash Loans v. Colorado, 242 P.2d 1099 (Colo. 2010) (en banc) (using a variation on
14 factors one, three, and six); Trudgeon v. Fantasy Springs Casino, 71 Cal.App.4th 632, 638-39
15 (1999) (using a variation on factors two, three, and six).
16
The facts currently available to plaintiffs do not establish that KCRC is acting as an arm
17 of the tribes, under the relevant factors. Regarding the first factor, KCRC asserts that it was
18 incorporated under tribal law. See Banegas Decl., Docket No. 41-1, ¶ 5 & attachments. The
19 Banegas declaration omits the fact that KCRC also was incorporated under California law and
20 registered with the California Secretary of State. See RJN, Exh. T. Its Articles of Incorporation
21 state that it is a nonprofit public benefit corporation under California law, and also that it is
22 dedicated to “public and charitable purposes.” See RJN, Exh. T. These statements tend to rebut
23 the conclusion that KCRC’s sole purpose is to serve its member tribes.
24
Defendants argue that KCRC’s purpose – repatriation of remains and cultural items to the
25 Kumeyaay tribes – shows KCRC is an arm of the tribes and not a “mere business.” Amerind
26 Risk Management Corp. v. Malaterre, 633 F.3d 680, 685 (8th Cir. 2011), cited by the Regents,
27 does not support this argument. KCRC was not organized to produce revenue that would inure
28
7
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page15 of 32
1
to the benefit of the tribe and promote its financial autonomy. Similarly, J.L. Ward is
2
distinguishable because KCRC’s purpose is to advocate for repatriation to Kumeyaay tribes
3
generally, not to give tribes control over the administration of a federal program for their benefit.
4
The Regents must comply with NAGPRA regardless of the Kumeyaay’s interests; there is no
5
way KCRC could transfer control of the Regents decision-making process to the tribes.
6
7
Defendants point to the fact that the tribes fund KCRC and appoint representatives as
further evidence that KCRC is an arm of the tribes. However, it appears that not all tribes have
8 resolved to fund KCRC. See Banegas Decl., Docket No. 41-1, ¶ 5 & attachments. Those that
9
did refer to “contributions,” including the La Posta Band, did not promise to fund KCRC, but
10
merely to “consider contributions and other request[s] of support from KCRC.” See Banegas
11
Decl., Docket No. 41-1, ¶ 5 & attachments, p. 10. Further, it is not clear exactly how the tribal
12
representatives “represent” their respective constituencies, since no information was provided
13
about KCRC’s decision-making procedures. The Regents cite Dille v. Council of Energy
14
Resource Tribes, 801 F.2d 373, 376 (10th Cir. 1986), but this case dealt with Title VII and tribes’
15 ability to benefit from their own energy resources. No parallel concerns are at stake here.
16
KCRC argues that its member tribes must have intended to extend immunity because
17 otherwise, they would not have created KCRC. This argument is not supported by any evidence
18 and therefore is not persuasive. Further, as discussed in section III.E below, the tribes could not
19 avoid being joined in this action by advancing repatriation on their own behalf, because tribal
20 officials may be joined under the doctrine of Ex parte Young.
21
The entity’s financial relationship to the tribe is significant to the extent that a judgment
22 against the entity would reach the tribe’s assets. See Runyon v. Ass’n of Vill. Council Presidents,
23 84 P.3d 437, 440-41 (Alaska 2004) (fifty-six villages, which were members of nonprofit
24 corporation, were not liable on the corporation’s obligations; therefore corporation was not
25 entitled to sovereign immunity). Even if the tribes do fund KCRC, that is not significant. Here,
26 judgment against KCRC would not affect any tribe’s assets because this is not a suit for
27 damages. Nor would a judgment in plaintiffs’ favor impose any obligations on any tribe; the
28
8
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page16 of 32
1
tribe just would not receive the La Jolla Skeletons. Neither KCRC nor the Regents contend that
2
any tribe depends on KCRC for revenue to fund its activities. This factor was found to be
3
dispositive in Runyon, and should also be dispositive here.
4
Finally, KCRC’s argument that the purposes of sovereign immunity are served lacks
5
merit. As discussed above, tribal assets are not at risk here no matter what happens, because
6 plaintiffs are not seeking damages. Nor would allowing plaintiffs’ lawsuit to proceed undermine
7
tribal self-government or economic self-sufficiency. The tribes would remain free to form
8 whatever associations they wish to advocate for repatriation. Such advocacy does not have
9 anything to do with self-government or economic self-sufficiency. Cases such as Allen v. Gold
10 Country Casino, 464 F.3d 1044 (9th Cir. 2006) and J.L. Ward are distinguishable, because
11 KCRC is not operating a business, such as a casino, where the proceeds benefit the tribe, nor is
12 KCRC giving tribes control over the administration of a federal program for their benefit.
13
Plaintiffs are limited in their ability to respond to defendants’ immunity argument,
14 because they lack access to documents and other information relevant to the Breakthrough
15 factors. For example, defendants did not provide all documents relevant to KCRC’s formation,
16 and it remains unclear precisely what tribal laws authorized its creation. Since the Rule 19 issues
17 in this case may be disposed of on numerous other grounds, however, the Court may not need to
18 reach the issue of whether KCRC has sovereign immunity as an arm of the tribe at all. On the
19 other hand, if the immunity issue turns out to be dispositive, plaintiffs request that this Court
20 allow the parties to conduct limited discovery relevant to the Breakthrough factors, so that this
21 issue may be briefed fully before any decision. See Cash Advance, 242 P.2d at 1102 (court of
22 appeals compelled tribal entities to produce information relevant to immunity determination).
23 ///
24 ///
25 ///
26 ///
27 ///
28
9
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page17 of 32
1
II.
EVEN IF THIS COURT FINDS KCRC QUALIFIES FOR SOVEREIGN
IMMUNITY, KCRC WAIVED ANY SUCH IMMUNITY BY SUING THE
REGENTS AND INCORPORATING UNDER CALIFORNIA LAW.
2
3
4
5
A.
KCRC Waived Any Immunity It May Have Had By Initiating The Southern
District Action Against The Same Defendants, Under The Same Federal
Law, To Obtain The Same Skeletons In Dispute In This Action.
Even if KCRC were immune from suit, it waived any such immunity by filing the
6 Southern District action to compel the Regents to repatriate the La Jolla Skeletons. See RJN,
7 Exhs. A through S. By asking the Southern District to adjudicate the rights to the La Jolla
8 Skeletons, the KCRC unequivocally consented to a United States District Court’s exercise of
9 jurisdiction over the issue of whether the La Jolla Skeletons must be repatriated to the La Posta
10 Band. See United States v. Oregon, 657 F.2d 1009, 1014-16 (9th Cir. 1981) (tribe waived
11 immunity by intervening in prior action initiated by United States, and also by agreeing to be
12 bound by conservation agreement that was adopted as court order). The main issue in this action
13 – whether the Regents may transfer the remains – is the same in the Southern District action.
14 The KCRC waived any immunity it may have had by seeking equity from the Southern District,
15 specifically, by expressly and unequivocally asking the court to adjudicate the rights to the same
3
16 remains at issue here. See id. at 1015.
17
KCRC’s argument that it lacks authority to waive immunity on behalf of its member
18
tribes also fails. The issue is whether or not KCRC has waived its own immunity as an arm of
19
tribe, assuming, for the sake of argument, that it has any immunity to waive.
20
Defendants’ authorities holding that tribal immunity was not waived are distinguishable.
21
In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 508-09
22
(1991) (“Potawatomi Tribe”), the Oklahoma Tax Commission argued that the tribe’s suit to
23
enjoin a state tax assessment for past sales of cigarettes waived immunity for its counterclaims to
24
enforce the assessment and enjoin future sales to non-members without collection of the tax.
25
26
27
28
3 KCRC asserts that waiver must be not only unequivocal but also executed by the tribe per its internal policy or
tribal law. KCRC MTD, 8:22-24. Although KCRC’s meaning is not entirely clear, to the extent KCRC asserts
immunity cannot be waived by Congress, or by a tribe’s own act of intervening or bringing suit, KCRC is incorrect.
See United States v. Oregon, 657 F.2d at 1014-16.
10
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page18 of 32
1
The court held the tribe’s suit did not waive immunity for counterclaims, just because they were
2 compulsory under Rule 13(a) of the Federal Rules of Civil Procedure. Id. at 509-10. The
3 commission’s authority to tax past sales effectively would have been resolved through the tribe’s
4 own suit in any event, and the commission apparently did not appeal when it lost this issue
5 before the district court. See id. at 508-09. The only counterclaim not effectively resolved by
6 the tribe’s suit was the related claim to enjoin future sales. See id. The holding of Potawatomi
7 Tribe therefore applies to “related” compulsory counterclaims, but not necessarily those where
4
8 the legal issues and property in dispute are identical. See id. at 508-10; see also Jicarilla
9 Apache Tribe v. Hodel, 821 F.2d 537, 539-40 (10th Cir. 1987) (tribe’s initiation of suit did not
10 manifest consent to suit over subsequent issues relating to the same leases); McClendon v.
11 United States, 885 F.2d 627, 629-32 (9th Cir. 1989) (no waiver for suits on “related” matters).
12
Here, plaintiffs and the tribe all seek prospective relief against the same defendants with
13 regard to the same remains under the same federal law. As in United States v. Oregon, the
14 KCRC has already authorized the district courts to determine the rights to the La Jolla Skeletons.
15
Pit River Home & Agricultural Cooperative Ass’n v. United States, 30 F.3d 1088 (9th
16 Cir. 1994) is also distinguishable. In that case, two tribes (referred to as the “Association” and
17 the “Council” in the opinion) disputed which was the beneficial owner of property held in trust
18 by the United States. Id. at 1092. The court held that by bringing claims against the
19 government, the Council did not waive immunity as to the Association’s claims against the
20 government, since the Association could not have brought those claims against the Council. Id.
21 at 1100-01. The Pit River court simply did not consider the issues raised by United States v.
22 Oregon, nor did it discuss that case. See also Enterprise Mgmt. Consultants, Inc. v. United
23 States, 883 F.2d 890 (10th Cir. 1989) (plaintiff did not rely on United States v. Oregon, but only
24 on exception unique to the Tenth Circuit). In addition, plaintiffs have requested an injunction
25
26
27
28
4 A counterclaim is compulsory if it “arises out of the same transaction or occurrence that is the subject matter of the
opposing party’s claim.” Fed. R. Civ. P. 13(a)(1). Precise identity of issues and facts between the claim and
counterclaim is not required, however. See, e.g., Pochiro v. Prudential Ins. Co. of America, 827 F.2d 1246, 1249-52
(9th Cir. 1987). Rather, the claims simply must be “logically connected.” Id.
11
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page19 of 32
1
preventing the Regents from repatriating the La Jolla Skeletons to any tribe, ever, while the
2
KCRC has requested an injunction compelling repatriation to it. Peek Decl., Exh. A; RJN, Exh.
3
A. Here, as in United States v. Oregon, the Court must retain jurisdiction over the La Jolla
4 Skeletons to do equity. Compare United States v. Oregon, 657 F.2d at 1014-16; with
5 McClendon, 885 F.2d at 630-31 (distinguishing United States v. Oregon).
6
B.
7
KCRC Waived Any Immunity It May Have Had By Incorporating Under
California Law.
A tribe also may waive immunity by incorporating under state law rather than tribal law.
8
See Wright v. Colville Tribal Enterprise Corp., 147 P.2d 1275, 1280 (Wash. 2006). As noted
9
above, KCRC opted to incorporate under California law. (RJN, Exh. T.) Although the KCRC’s
10
corporate status currently is suspended, that fact does not erase KCRC’s voluntary decision to
11
accept rights and responsibilities under California law. The Regents’ authorities are
12
distinguishable. See American Vantage Companies. v. Table Mountain Rancheria, 292 F.3d
13
1091, 1099 (9th Cir. 2002) (incorporation under the Indian Reorganization Act of 1934); see also
14
Amerind, 633 F.3d at 682-83 (entity incorporated under federal charter and tribal law).
15
16
17
18
III.
THE TRIBES ARE NOT NECESSARY OR INDISPENSIBLE PARTIES.
A.
No Tribe Other Than The 5La Posta Band Has Even A Hypothetical Interest
In The La Jolla Skeletons.
To be considered “necessary,” the absent party must have a legally protected interest that
19
is more than a financial stake, and also, more than speculation about a future event. Makah
20
Indian Tribe v. Verity, 910 F.2d 555, 558-59 (9th Cir. 1990); see also Shermoen v. United States,
21
982 F.2d 1312, 1318 (9th Cir. 1992) (interest must not be patently frivolous). Here, any claimed
22
interest by tribes that have not made a claim, and are not designated as the proposed recipient in
23
24
25
26
27
28
5 In making this argument, plaintiffs do not concede that the La Posta Band’s purported claim is valid or
enforceable. First, the La Posta Band has no valid claim because the La Jolla Skeletons are not subject to NAGPRA
at all. Even assuming for the sake of argument they were subject to NAGPRA, and that 43 C.F.R. § 10.11 were (a)
implicated, and (b) valid and enforceable – none of which is true – defendants have presented no evidence that the
La Jolla Skeletons were removed from the aboriginal lands of the La Posta Band, specifically. See 43 C.F.R. §
10.11(c)(1)(i)-(ii).
12
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page20 of 32
1
the Repatriation Notice, would be patently frivolous. No evidence supports even a bare
2
expectation by those tribes that the La Jolla Skeletons will be repatriated to them.
3
The Regents argue that KCRC may not represent the tribes’ interests because
4
disagreements may develop among the tribes. This argument lacks merit. As NAGPRA
5
contemplates, only one tribe has been designated as the recipient of the La Jolla Skeletons. See
6
Peek Decl., ¶ 3, Exh. B (Repatriation Notice) to Exh. A (FAC); see also 25 U.S.C. §§ 3001(a),
7
3002(a), & 3005(a)(1); Bonnichsen v. United States, 217 F. Supp. 2d 1116, 1141-43 (D. Or.
8
2002) (Secretary of the Interior was required to evaluate each tribe’s claim individually and
9 could not repatriate remains to a coalition of tribal claimants). No conflict exists because none
10
11
12
of the other tribes have made competing claims, despite ample opportunity to do so.
B.
The La Posta Band Is Not A Necessary Party Because KCRC May Represent
The Tribe’s Interests.
The La Posta Band is not a necessary party under Rule 19(b), nor is any other Kumeyaay
13
tribe. An absent party is not a necessary party if the absent party is adequately represented. See
14
Shermoen, 982 F.2d at 1318 (quoting Makah, 910 F.2d at 558). Even though KCRC is not a
15
proper recipient of human remains or cultural items under NAGPRA, KCRC may represent the
16
interests of the La Posta Band adequately in this lawsuit.
17
Three factors determine whether an existing party may represent an absent party: (1)
18
“whether the interests of a present party to the suit are such that it will undoubtedly make all of
19
the absent party’s arguments”; (2) “whether the party is capable of and willing to make such
20
arguments”; and (3) “whether the absent party would offer any necessary element to the
21
proceedings that the present parties would neglect.” Shermoen, 982 F.2d at 1318 (citation and
22
internal quotation marks omitted). Here, the Banegas Declaration and page 42758 of Volume 68
23
of the Federal Register establish KCRC as the authorized NAGPRA representative of the La
24
Posta Band. See RJN, Exh. V. The tribe already has shown it can bring a lawsuit through
25
KCRC. The interests of the La Posta Band and KCRC are clearly aligned. There can be little
26
doubt KCRC would make all of the La Posta Band’s arguments, and that the KCRC is capable of
27
and willing to make such arguments. Moreover, there is no reason to suspect that the tribe would
28
13
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page21 of 32
1
offer any necessary element to the proceedings that KCRC would neglect. For all these reasons,
2
KCRC is an adequate representative, and the La Posta Band is not a necessary party.
3
The Regents argue incorrectly that KCRC may not represent the La Posta Band because
4
KCRC’s corporate status has been suspended. Even an unincorporated association may sue and
5 be sued in its own name under state law, (Cal. Code Civ. Proc., § 369.5(a)), and therefore may
6 sue or be sued in their own name in federal court. Fed. R. Civ. P. 17(b). In addition, Rule 17(b)
7
“allows an ‘unincorporated association’ to sue in federal court, regardless of its capacity to sue
8
under the law of the state in which the court sits, when the association is suing ‘for the purpose
9 of enforcing . . . a substantive right existing under the . . . laws of the United States.’”
10 Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 819-20 (9th Cir. 1996) (emphasis
11 added, citing prior version of Rule 17). In re Christian & Porter Aluminum Co., 584 F.2d 326,
12 331 (9th Cir. 1978) does not apply, because KCRC can still sue and be sued for purposes of
13 enforcing a right under federal law, even if its corporate status has been suspended under
14 California law. See Fed. R. Civ. P. 17(b)(3)(A).
15
C.
16
The La Posta Band Is Not A Necessary Party Because The Regents May
Represent The Tribe Adequately.
The Regents emphasize that their broad obligations to operate in the interests of the
17
people of California prevent them from representing the narrow interests of the La Posta Band.
18
The Regents cite various authorities in support of this proposition. 6 These cases are not
19
persuasive, because the Regents’ conduct with respect to the La Jolla Skeletons shows they have
20
abdicated their broader obligations to the public. Even if the Regents do not have a fiduciary
21
obligation to the tribes (see American Greyhound Greyhound Racing, Inc. v. Hull, 305 F.3d
22
1015, 1023-24 & n.5 (9th Cir. 2002)), they have acted as though they do. In addition,
23
circumstantial evidence suggests the Regents colluded with KCRC to file the Southern District
24
action.
25
26
6 Trbovich v. United Mine Works of Am., 404 U.S. 528, 538-39 (1972); Sw. Ctr. for Biological Diversity v. Berg,
27
268 F.3d 810, 823 (9th Cir. 2001); Forest Conserv. Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995),
abrogated on other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1178 (9th Cir. 2011).
28
14
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page22 of 32
1
To facilitate the parties' meet and confer efforts early in the case, plaintiffs provided the
2
Regents’ counsel with a copy of their draft complaint and its exhibits. Peek Decl., ¶ 5, Exh. C.
3
Plaintiffs and the Regents also entered into a Tolling Agreement, one provision of which
4
prohibited plaintiffs from filing an action until April 16, 2012. Peek Decl., ¶ 6, Exh. D. The
5
KCRC filed its suit on April 13, 2012, just one court day preceding the expiration of the bar on
6
filing. See Peek Decl., ¶ 6, Exh. D; see also RJN, Exh. A. The KCRC’s descriptions of the
7 defendants in the Southern District action appear to have been copied word for word from the
8 draft complaint that plaintiffs provided to the Regents. See Peek Decl., ¶ 5, Exh. C; RJN, Exh.
9 A. One reasonably may infer that the Regents acted to protect the La Posta Band’s interests by
10 providing KCRC a copy of the draft complaint and informing them of the deadline in the tolling
11 agreement.
12
For these reasons, the Regents’ argument that they cannot represent the interests of the La
13 Posta Band lacks merit. Through their conduct in this litigation, including their very
14 comprehensive motion to dismiss, the Regents have demonstrated they can make all of the La
15 Posta Band’s arguments, and that they are willing to make such arguments. Further, it is not
16 correct that the Regents need only make a “minimal” showing that representation may be
17 inadequate. The authorities they cite in support of this claim are cases supporting the right to
18 intervene in a case, not protecting a recalcitrant defendant from being joined. See, e.g., Trbovich
19 v. United Mine Works of Am., 404 U.S. 528, 538 n.10 (1972). League of United Latin American
20 Citizens v. Wilson, 131 F.3d 1297, 1305-06 (9th Cir. 1997) also does not help the Regents,
21 because here, the Regents have vigorously defended the tribe’s position at every turn. There is
22 no reason to believe they cannot be counted on to do so. See id.
23
D.
24
The Regents make much of the theoretical chance that they would be subject to
The Regents’ Concerns About Inconsistent Obligations Are Unfounded.
25 inconsistent obligations due to the Southern District action. The Regents fail to note, however,
26 that they filed a joint motion to toll the litigation deadlines so long as the preliminary injunction
27 in this case remains in place, and the Court ordered all deadlines tolled for one year on June 8,
28
15
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page23 of 32
1
2012. See RJN, Exhs. R & S. The Regents’ concerns are also unfounded because the tribes may
2
be enjoined here as nonparties acting in concert with the Regents to repatriate the La Jolla
3
Skeletons, in violation of NAGPRA and the Regents’ duty to administer the University as a
4
public trust. See Fed. R. Civ. P. 65(d). Alternately, the tribes may be enjoined under the rule
5
that “nonparties who interfere with the implementation of court orders establishing public rights
6
may be enjoined, … or the rule that a court possessed of the res in a proceeding in rem, such as
7
one to apportion a fishery, may enjoin those who would interfere with that custody.” See
8
Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658,
9
690, n. 32 (1979) (internal citations omitted), modified by Washington v. United States, 444 U.S.
10
816 (1979), and later proceeding at United States v. Washington, 506 F. Supp. 187, (W.D.
11
Wash., 1980); see also United States v. Hall, 472 F. 2d 261, 264-66 (5th Cir. 1972) (upholding
12 interim ex parte order against an undefined class of persons in school desegregation case).
13
14
E.
7
At A Minimum, Plaintiffs Can Join Tribal Officials In This Action Under
The Doctrine Of Ex Parte Young.
Even more importantly, plaintiffs can join individual tribal officials to represent the La
15
Posta Band’s interests, in the event this Court finds that neither KCRC nor the Regents can
16
represent them. In cases seeking prospective relief, sovereign immunity does not extend to tribal
17
officials acting beyond the scope of their authority, in violation of federal law. See Arizona Pub
18
Serv. Co. v. Aspaas, 77 F.3d 1128, 1133-34 (9th Cir. 1996); Burlington N.R.R. v. Blackfeet Tribe,
19
924 F.2d 899, 901-02 (9th Cir. 1991), overruled on other grounds as stated in Big Horn County
20
Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000). In such circumstances, individual
21
tribal members do not have immunity. See United States v. Oregon, 657 F.2d at 1013, n. 8.
22
Such a suit would be authorized here because the actions of Steven Banegas and James
23
Hill violate NAGPRA, by attempting to enforce NAGPRA in a manner that is illegal. Again, the
24
La Posta Band is not a necessary party if Banegas, Hill, or another tribal official were joined in
25
26
27
28
7 For these reasons, and because there are a number of possible representatives for the La Posta Band in this action,
Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9th Cir. 1994), Confederated Tribes v. Lujan, 928 F.2d 1496
(9th Cir. 1991), and Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885 (9th Cir. 1968), impose no barrier
to relief here.
16
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page24 of 32
1
this action, because such individuals may be counted on to make all arguments on behalf of the
2
tribe, having demonstrated their capability and willingness to do so through their participation in
3
KCRC. Unlike in Shermoen and Dawavendewa v. Salt River Project Agricultural Improvement
4
and Power District, 276 F.3d 1150, 1160-61 (9th Cir. 2002), which also appear incorrectly to
5 discount the doctrine of Ex parte Young, relief will not require affirmative action by any tribe, or
6 dispose of unquestionably sovereign property. At a minimum, plaintiffs should be given the
7 opportunity to amend their complaint to add Banegas or Hill as tribal officials.
8
8
F.
9
If the Court rejects the preceding arguments and finds the La Posta Band is a necessary
The La Posta Band Is Not Indispensible Under The Rule 19 Factors.
10 party, the following four factors determine whether the La Posta Band is indispensible under
11 Rule 19(b), assuming no other exception applies: (1) the extent to which a judgment rendered in
12 the tribes’ absence would prejudice the tribes or existing parties; (2) the extent to which any
13 prejudice could be lessened or avoided; (3) whether a judgment rendered in the tribes’ absence
14 would be adequate; and (4) whether plaintiffs would lack an adequate remedy if the action were
15
dismissed. Fed. R. Civ. P. 19(b). Defendants cite cases in which tribes were held to be
16 indispensible parties because preexisting settlement agreements or other contract rights were
9
17 implicated in some way. None of these cases control, because a judgment in plaintiffs’ favor
18 will not impair any contract rights.
19
Here, the tribes would not be prejudiced by a ruling in their absence. The majority
20 cannot claim a nonfrivolous interest in the La Jolla Skeletons, and even the La Posta Band’s
21 claimed interest is contingent on a finding that NAGPRA applies in the first place, which it does
22
23
24
25
26
27
28
8 Alternately, the Regents could have protected themselves against any potential prejudice by bringing their own
third-party claim for prospective relief against Banegas and Hill under Rule 14 of the Federal Rules of Civil
Procedure. See EEOC v. Peabody Western Coal Co., 610 F.3d 1070, 1074, 1080-87 (9th Cir. 2008). Their failure to
do so further suggests collusion, and reinforces the conclusion that the Regents may represent the tribe adequately.
9 See, e.g., Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002); Dawavendewa v. Salt River Project
Agric. Improvement & Power Dist., 276 F.3d 1150 (9th Cir. 2002); Manybeads v. United States, 209 F.3d 1164 (9th
Cir. 2000); Clinton v. Babbitt, 180 F.3d 1081 (9th Cir. 1999); Kescoli v. Babbitt, 101 F.3d 1304 (9th Cir. 1996);
McClendon v. United States, 885 F.2d 627 (9th Cir. 1989); Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir.
1975); Enterprise Mgmt. Consultants, Inc. v. United States, 883 F.2d 890 (10th Cir. 1989); Jicarilla Apache Tribe v.
Hodel, 821 F.2d 537 (10th Cir. 1987).
17
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page25 of 32
1
not. Any supposed prejudice could be lessened by joining or impleading a party to represent the
2
tribe’s interests, as discussed above in sections III.B, III.C, and III.E. As discussed above in
3
section III.D, judgment rendered in the tribe’s absence would be adequate. Because the tribes
4
may be enjoined as nonparties under Rule 65(d), or the rule applicable to court orders
5
establishing public rights, or the rule that a court possessed of the res in a proceeding in rem may
6
enjoin those who would interfere with its custody, the social interest in avoiding multiple suits is
7
not implicated. The relief sought here does not depend on compliance by the tribes, but by the
8
Regents. See Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 777 (D.C. Cir. 1986).
9
Finally, if the action is dismissed, plaintiffs and the public lack any remedy against the
10 willful destruction of a national treasure, which would deprive future generations – almost
11 certainly more technologically advanced – of any opportunity to study these rare human remains.
12 A ruling in defendants’ favor would mean that, effectively, no one could ever challenge a tribe’s
13 unlawful attempt to repatriate remains that are not subject to NAGPRA or affiliated with the
14 tribe, unless the tribe voluntarily intervened in the litigation. This is inconsistent with Congress’
15 intent that district courts shall have jurisdiction to resolve disputes over NAGPRA violations,
16 expressed in 25 U.S.C. § 3013.
17
Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397, 1405 (D. Haw. 1995),
18 cited by defendants, is not controlling. In Na Iwi, the plaintiff Hui Malama initially believed it
19 was the only claimant to the remains at issue, but later discovered there were fourteen other
20 claimants. Id. at 1405. After making this discovery, Hui Malama informally withdrew its claim
21 for violation of NAGPRA for failure to return the remains, effectively rendering that claim moot.
22 Id. The district court nevertheless addressed the claim, reasoning that Hui Malama had not
23 formally withdrawn it, defendants had moved for summary judgment on it, and the issue of
24 whether the federal government could represent the interests of any claimant would arise again.
25 Id. Rejecting the idea that the government could represent all the competing claimants, the court
26 remarked with virtually no analysis that the other claimants were indispensible. Id. Here, there
27 are no competing tribal claimants and a number of possible ways to ensure the La Posta Band
28
18
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page26 of 32
1
may be heard, so this reasoning does not apply. In addition, Na Iwi is distinguishable because
2 the court did not address the public rights exception, discussed in the next section below.
3
4
G.
Neither The La Posta Band Nor KCRC Are Indispensible Because The
Public Rights Exception Applies.
The La Posta Band and KCRC are not indispensible parties because this lawsuit
5
transcends plaintiffs’ private interests and seeks to vindicate important public rights. Traditional
6
joinder rules are relaxed in proceedings dedicated to the protection and enforcement of public
7
rights. See Connor v. Burford, 848 F.2d 1441, 1458-62 (9th Cir. 1988), disapproved on other
8
grounds as noted in Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1422, n.3 (9th
9
Cir. 1989), rev’d sub nom Oregon Natural Resources Council v. Madigan, 980 F.2d 1330 (9th
10
Cir. Or. 1992) ; see also Am. Greyhound, 305 F.3d at 1025-26 (recognizing exception).
11
Plaintiffs’ lawsuit seeks to enforce the public’s right to administrative compliance with
12
the requirements of NAGPRA, and the public’s interest in preservation of the public trust that is
13
the University. NAGPRA requires the Regents to determine whether or not items are subject to
14
NAGPRA before placing them on a federal inventory. 25 U.S.C. § 3003; 43 C.F.R. §§ 10.9,
15
10.11; see also RJN Exh. U. The public has an interest in enforcing this requirement, especially
16
where an unlawful application of NAGPRA threatens to cut off a source of public knowledge
17
such as the La Jolla Skeletons. In general, the public has an interest in preserving knowledge of,
18
and the ability to study, humanity’s collective history in North America.
19
Ninth Circuit cases declining to apply the public rights exception are distinguishable.
20
See, e.g., American Greyhound Racing, Inc., 305 F.3d at 1025-26 (plaintiffs’ interest in defeating
21
competition from Indian gaming predominated); Kescoli v. Babbitt, 101 F.3d 1304, 1311-12 (9th
22
Cir. 1996) (litigation implicated private rights and threatened tribal rights under existing lease
23
agreements and tribal sovereignty); Shermoen, 982 F.2d at 1319 (litigation threatened tribal
24
rights under existing Settlement Act). Here, although plaintiffs’ individual research interests are
25
sufficient to ensure they will vigorously litigate the case on behalf of the public, the purpose of
26
the lawsuit is to enforce compliance with the law to protect the public’s interest in learning our
27
common history. No existing legal entitlement will be threatened. The Repatriation Notice does
28
19
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page27 of 32
1
not grant an absolute entitlement, but contemplates that others may make competing claims to
2
the La Jolla Skeletons. See RJN, Exh. W. Further, no tribe could have a legal entitlement to the
3
La Jolla Skeletons absent the Regents’ compliance with NAGPRA, including the requirement
4
that the Regents determine whether the remains are subject to NAGPRA. Because the public
5
rights exception applies here, the tribes and KCRC are not indispensible parties.
6
7
IV.
PLAINTIFFS’ PUBLIC TRUST AND FIRST AMENDMENT CLAIMS ARE
RIPE.
The Regents argue that plaintiffs’ public trust and First Amendment claims are not ripe
8
because they involve “uncertain or contingent future events that may not occur as anticipated, or
9
indeed may not occur at all.” Dodd v. Hood River County, 59 F.3d 852, 860 (9th Cir. 1995). As
10
an initial matter, the Regents’ authorities are inapplicable, because plaintiffs’ public trust and
11
First Amendment claims are not phrased as direct appeals of an agency action. See Principal
12
Life Ins. Co. v. Robinson, 394 F.3d 665, 669-71 (9th Cir. 2005). The appropriate standard is
13
whether there is a substantial controversy between parties with adverse legal interests, of
14
sufficient immediacy to warrant relief. See id. at 671. Here, the dispute between plaintiffs and
15
the Regents is not abstract or hypothetical. Plaintiffs’ FAC seeks relief against the transfer of the
16
La Jolla Skeletons under NAGPRA, or on any other basis.
17
Even if the Regents’ authorities did apply, the Regents are incorrect that this case is not
18
ripe. The Regents’ decision to transfer the La Jolla Skeletons is not contingent on any future
19
event, including whether or not the transfer would violate NAGPRA. The Regents have
20
indicated that they would have transferred the La Jolla Skeletons to a tribe even if NAGPRA did
21
not apply. See RJN, Exh. 7 (letter from defendant Yudof) to Exh. P, pp. 1-2 (mentioning twice
22
the possibility that the University could proceed outside of NAGPRA). The Regents concede in
23
their brief that they may transfer the remains even if NAGPRA does not apply. These threats are
24
sufficient to establish a case or controversy. Cf. Jacobus v. Alaska, 338 F.3d 1095, 1104 (9th
25
Cir. 2003) (“While a generalized possibility of prosecution does not satisfy the ripeness
26
requirement, a genuine threat of imminent prosecution does.”); see also Stormans, Inc. v.
27
Selecky, 586 F. 3d 1109, 1123-24 (9th Cir. 2009).
28
20
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page28 of 32
1
There can be no doubt that the Regents have made a final decision to transfer the
2
remains, by whatever means they believe are available to them. To the extent the Court finds it
3
necessary for plaintiffs to amend their FAC to make this clear, plaintiffs respectfully request
4
leave to do so. Since the Regents already have made their decision, this is not a case where the
5
Regents must take additional steps before the controversy is ripe. Therefore, Texas v. United
6
States, 523 U.S. 296, 300 (1998), on which the Regents rely, is distinguishable. Because the
7
Regents’ decision is final (see Bonnichsen v. United States, 969 F. Supp. 2d 614, 621-22 (D. Or.
8
1997), Association of Medical Colleges v. United States, 217 F.3d 770, 782 (9th Cir. 2000), cited
9
by the Regents, is also distinguishable.
10
There is no need for further factual development before plaintiffs’ claims may proceed.
11
Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 736 (1998) does not compel a
12
different result. Even though the Repatriation Notice does not confer an absolute legal right on
13
the La Posta Band, it nonetheless inflicts practical harm on plaintiffs’ research interests, and the
14
public’s interest in maintaining the La Jolla Skeletons as part of the University’s research
15
collection. This is not a case where the Court must act without the benefit of a specific proposal.
16
See id. at 736-37. Ripeness does not depend on the Regents’ reasons for their decision, and in
17
any event, the Repatriation Notice and Yudof’s letter belie the Regents’ statement that no
18
decision has been made.
19
Courts considering ripeness must evaluate the hardship to the parties of withholding
20
review. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds
21
in Califano v. Sanders, 430 U.S. 99, 105 (1977). Withholding consideration of plaintiffs’ public
22
trust and First Amendment claims will waste scarce judicial resources. In the likely event that
23
plaintiffs prevail on their claims alleging violations of NAGPRA, they would then immediately
24
be forced to file another complaint and TRO application to prevent the Regents from transferring
25
the La Jolla Skeletons on some other purported basis. This arrangement merely would provide
26
defendants another opportunity to transfer the La Jolla Skeletons without the hindrance of
27
judicial oversight. It does not matter that plaintiffs would not be required to change their
28
21
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page29 of 32
1
behavior. The point is that the harm from the Regents’ decision to repatriate is already
2
imminent. Plaintiffs respectfully request that this Court decline the Regents’ invitation to resolve
3 this dispute through serial lawsuits.
4
5
V.
PLAINTIFFS HAVE STANDING UNDER ARTICLE III.
To establish Article III standing, plaintiffs must show (1) they have suffered an “injury in
6 fact” that is concrete and particularized, and actual or imminent, not conjectural or hypothetical;
7 (2) the injury is fairly traceable to the challenged action of defendants; and (3) it is likely that the
8
injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
9
560-61 (1992). To establish redressibility, plaintiffs “‘need not demonstrate that there is a
10
‘guarantee’ that their injuries will be redressed by a favorable decision…. [P]laintiffs “must
11
show only that a favorable decision is likely to redress [their injuries], not that a favorable
12
decision will inevitably redress [their injuries].”’” Wilbur v. Locke, 423 F.3d 1101, 1108 (9th
13
Cir. 2005) (emphasis in original) (quoting Graham v. Federal Emergency Management Agency,
14 149 F.3d 997, 1003 (9th Cir. 1998), abrogated on other grounds by Levin v. Commerce Energy,
15 Inc., 130 S. Ct. 2323, 176 L. Ed. 2d 1131 (2010)); see also Ibrahim v. Dep’t of Homeland Sec.,
16 669 F.3d 983, 993 (9th Cir. 2012) (though plaintiff’s future ability to obtain a visa was uncertain,
17 plaintiff did not have to show removal of her name from the No-Fly List would guarantee her a
18 visa, to have standing to challenge placement on the No-Fly List).
19
Here, plaintiffs alleged that they have asked to study the La Jolla Skeletons, but the
20 University has not granted their requests. (FAC, ¶¶ 33-35.) Further, plaintiffs alleged that the
21 University’s policy is that remains and cultural items shall normally remain accessible for
22 research by qualified investigators such as plaintiffs. (Id., ¶ 36.) Therefore, it is highly probable
23 that plaintiffs will be allowed to study the La Jolla Skeletons if they remain in the University’s
24 possession. (Id., ¶ 36.) These allegations are sufficient to show the declaratory and injunctive
25 relief plaintiffs seek would likely redress their injury. One reasonably may infer that plaintiffs’
26 requests were denied because of the Regents’ unlawful acts in furtherance of repatriation, and
27 that if the Regents were ordered to stop violating the law and refrain from repatriating the La
28
22
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page30 of 32
1
Jolla Skeletons, plaintiffs’ study requests would be granted. Because plaintiffs can establish
2
Article III standing, they do not need to rely on California Code of Civil Procedure section 526a.
3
The Regents effectively concede plaintiffs can establish the first two elements, disputing
4
only the third, redressibility. The Regents mischaracterize the nature of plaintiffs’ suit in making
5
this argument. Plaintiffs assert that repatriation is not authorized under NAGPRA or any other
6
law, not merely that repatriation is not required under NAGPRA. In other words, if NAGPRA
7
does not apply, no law permits defendants to give the La Jolla Skeletons to any tribe, because
8
doing so would breach the Regents’ duties to maintain the University as a public trust.
9
The Regents overestimate their discretion to dispose of the La Jolla Skeletons, which they
10
insinuate they may do for no reason at all (see Regents’ Motion, p. 22:2-6), contradicting their
11
earlier ripeness argument. The Human Remains policies specifically acknowledge that the
12
University “maintains these collections as a public trust and is responsible for preserving them
13
according to the highest standards while fulfilling its mission to provide education and
14
understanding about the past and present through continued teaching, research and public
15
service.” Peek Decl., ¶ 3, Exh. A (Policies) to Exh. A (FAC), p. 1. The FAC permits the
16
inference that the Regents routinely grant study requests if NAGPRA is not implicated.
17
Therefore, cases such as Glanton ex rel. Alcoa Prescription Drug Plan v. AdvancePCS, Inc., 465
18
F.3d 1123, 1125 (9th Cir. 2006), which emphasize defendants’ “broad discretion,” are not
19
persuasive. Similarly, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345-46 (2006) does not
20
control. That case considered whether plaintiffs had standing as taxpayers, a theory on which
21
plaintiffs here need not rely. The Regents’ discretion simply does not extend to violating their
22
duties under the Human Remains policies and their duties to preserve the public trust.
23
Plaintiffs do not need a statutory right to study the remains in order to have standing.
24
Bonnichsen v. United States, 367 F.3d 864, 872-73 (9th Cir. 2004) imposes no such requirement.
25
The Bonnichsen court merely observed that the plaintiffs had an opportunity to study the
26
skeletons under the federal statute at issue. See id. at 871-73; see also Bonnichsen, 217 F. Supp.
27
2d at 1165-67 (concluding that but for defendants’ assumption that NAGPRA applied, plaintiffs
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page31 of 32
1
almost certainly would have been allowed to study the remains, “based upon evidence that study
2
requests like those made by Plaintiffs are routinely granted”) (emphasis added). Plaintiffs’
3 allegations here support the same conclusion. Plaintiffs need only show that redressibility is
4 likely, not that it is inevitable. Non-binding authority from the Second Circuit cited by the
5
Regents does not establish a contrary rule. See New York Coastal Partnership, Inc. v. United
6
States Dep’t of Interior, 341 F.3d 112, 117 (2d Cir. 2003) (plaintiffs sought to compel specific
7
affirmative action by defendants in an area where defendants had substantial discretion). Here,
8
plaintiffs seek an order prohibiting defendants from violating the law, which would likely redress
9
plaintiffs’ injuries.
10
The Bonnichsen cases already have resolved the standing issue in favor of professors in a
11
similar factual context, and redressibility simply is not speculative here. Therefore, cases such as
12
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-45 (1976) (hospitals’
13
denial of service could not be traced to tax code), Warth v. Seldin, 422 U.S. 490, 507 (1975),
14
Linda S. v. Richard D., 410 U.S. 614, 618 (1973), cited by the Regents,, do not control. It is
15
reasonable to infer, and the Regents do not contest, that defendants’ NAGPRA violations are the
16
reason plaintiffs’ study requests were denied. Mayfield v. United States, 599 F.3d 964, 972-73
17
(9th Cir. 2010) also is inapplicable, since plaintiffs have not bargained away their right to
18
injunctive relief. Since the University’s usual policy is to permit study of remains and cultural
19
items, it is likely that a judgment in plaintiffs’ favor would redress their injuries. The Regents’
20
argument to the contrary lacks merit and should be rejected.
21
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VI.
PLAINTIFFS CAN SEEK DECLARATORY AND INJUNCTIVE RELIEF
AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES.
Under the doctrine of Ex parte Young, 209 U.S. 123 (1908), a plaintiff may seek
23
declaratory and injunctive relief against state officials in their individual capacities to enjoin
24
continuing violations of the United States Constitution or federal law. See id. at 159-61; Idaho v.
25
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270-79 (1997). By violating federal law, state
26
officials are stripped of their official or representative capacity, and may be sued personally. Ex
27
parte Young, 209 U.S. at 160. Plaintiffs’ suit against Yudof, Fox, and Matthews is proper under
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)
Case3:12-cv-01978-RS Document43 Filed07/23/12 Page32 of 32
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the doctrine of Ex parte Young, because plaintiffs allege that these defendants have acted and
2
continue to act in violation of NAGPRA and the United States Constitution. Nothing in
3
Kentucky v. Graham, 472 U.S. 159, 165-66 (1985) precludes seeking relief against defendants in
4
their individual capacities.
5
Plaintiffs also sued these defendants in their official capacities, which is permissible
6
because the University has waived any Eleventh Amendment immunity it may have had by
7
removing this action. Lapides v. Bd. Of Regents of Univ. System of Georgia, 535 U.S. 613, 619-
8
20 (2002). Even if the Regents were correct that plaintiffs must seek declaratory and injunctive
9
relief in an official capacity action, plaintiffs have done so. Wolfe v. Strankman, 392 F.3d 358,
10
360, n.2 (9th Cir. 2004) does not require dismissal of any claims, because plaintiffs did bring an
11
official capacity action. The Regents appear to misread American Civil Liberties Union of
12
Mississippi, Inc. v. Finch, 638 F.2d 1336, 1341-42 (5th Cir. 1981). That court held suit could be
13
brought against defendant officials in their personal capacity within the meaning of Ex parte
14
Young, “yet still be ‘official’ enough to require automatic substitution [of successor officials]
15
under Appellate Rule 43(c)(1) and Civil Rule 25(d)(1).” Id. The Regents’ argument to the
16
contrary is baseless.
17
18
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that this Court deny defendants’
19
motions to dismiss in their entirety.
20
DATED: July 23, 2012
McMANIS FAULKNER
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/s/ Christine Peek
CHRISTINE PEEK
Attorneys for Plaintiffs,
TIMOTHY WHITE,
ROBERT L. BETTINGER, and
MARGARET SCHOENINGER
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTIONS TO DISMISS
COMPLAINT UNDER FED. R. CIV. P. 12(B)(7), 12(B)(1), AND 12(B)(6), Case No. C 12-01978 (RS)