1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 TULE LAKE COMMITTEE, No. 2:20-cv-00688 WBS DMC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE:

MOTIONS TO DISMISS

15 FEDERAL AVIATION ADMINISTRATION,

CITY OF TULELAKE, CALIFORNIA,

16 CITY COUNCIL OF THE CITY OF

TULELAKE, BILL G. FOLLIS, JUDY

17 COBB, PHIL FOLLIS, JACK SHADWICK, RAMONA ROSIERE, and 18 MODOC NATION fka MODOC TRIBE OF

OKLAHOMA

19 Defendants. 20

21 ----oo0oo---- 22 Plaintiff Tule Lake Committee brought this action 23 against the Federal Aviation Administration (“FAA”), the City of 24 Tulelake, California (“the City”) and its City Council 25 (collectively, “the City defendants”), as well as the Modoc 26 Nation and individual members of the Modoc Nation’s Tribal 27 Council (collectively, “the tribal defendants”), alleging that 28 1 defendants’ involvement in an agreement between the City and the 2 Modoc Nation to sell land underlying the Tulelake Municipal 3 Airport violated the National Historic Preservation Act, the 4 terms of a federal land patent granting the land to the City, and 5 a number of state statutes. The FAA, the City defendants, and 6 the tribal defendants have moved to dismiss for lack of subject 7 matter jurisdiction, failure to state a claim, and failure to 8 join a necessary and indispensable party under Federal Rule of 9 Civil Procedure (“FRCP”) 19. (Docket Nos. 7, 12, 13). 10 I. Relevant Allegations 11 This case arises out of a dispute over property located 12 on the site of a former Japanese internment camp at Tule Lake. 13 (See Compl. ¶¶ 4, 14 (Docket No. 1).) In 1951, the United States 14 conveyed 359 acres of the internment camp land to the City of 15 Tulelake to use as an airport via a federal land patent. (Compl. 16 ¶ 19.) The patent granting the City fee ownership of the 17 property contained covenants requiring that the City develop an 18 airport on the land and that the airport be operated as a “public 19 airport.” (Compl. ¶ 103.) Between 1974 and 2018, the City leased 20 the airport property to Modoc County. (Compl. ¶¶ 21, 35.) 21 Plaintiff is a California non-profit public benefit 22 corporation whose purpose is to preserve the history and 23 experiences of the inmates of the Tule Lake camp, educate the 24 general public about the false imprisonment of American citizens 25 and immigrants of Japanese ancestry in the 1940s, and to 26 recognize the unique role of the Tule Lake camp in the United 27 States’ system of Japanese internment. (Compl. ¶ 4.) Plaintiff 28 has previously expressed the view that the airstrip on the 1 property at issue should be relocated to preserve historic 2 aspects of the property, including a cemetery that lay near the 3 edge of the airport grant. (Compl. ¶¶ 20, 43-48.) 4 Sometime before or during 2018, the City defendants 5 decided to sell their fee interest in the airport property to the 6 Modoc Nation. (Compl. ¶ 50.) Once plaintiff learned that the 7 City defendants were interested in selling the airport property, 8 it made several written offers to purchase the property for 9 $40,000, and it appeared at an open City Council meeting on July 10 31, 2018 to express its interest. (Compl. ¶¶ 49-70.) 11 The City defendants voted to sell the airport property 12 to the Modoc Nation for $17,500 at the conclusion of the July 31, 13 2018 City Council meeting, contingent upon the FAA consenting to 14 the transfer of the airport property to the Modoc Nation. 15 (Compl. ¶ 70, Ex. C.) On August 9, 2018, the City defendants 16 sent the FAA a copy of the parties’ purchase and sale agreement 17 (“the Purchase Agreement”) for the airport property and requested 18 that the FAA approve the sale. (See Compl. Ex. D.) A Manager 19 from FAA’s Regional Airport Division Office issued a letter (“the 20 Armstrong Letter”) in response, indicating that the office had no 21 objection to the proposed sale. (See Compl. Ex. F.) 22 Following the City defendants’ decision to sell the 23 airport property to the Modoc Nation, plaintiff filed suit 24 seeking to set aside the sale of the airport property. (See 25 Compl. ¶¶ 191-200.) The complaint contains the following causes 26 of action: (1) violation of the National Historic Preservation 27 Act (“NHPA”), 54 U.S.C. §§ 306102-3016108, and Administrative 28 Procedure Act (“APA”), 5 U.S.C. §§ 702-706; (2) violation of the 1 1951 Federal Land Patent and the APA; (3) violation of the 2 California Surplus Act, Cal. Gov. Code §§ 54220-54222; (4) 3 violation of public policy; (5) violation of the Ralph M. Brown 4 Act, Cal. Gov. Code §§ 54953-54960; and (6) violation of 42 5 U.S.C. §§ 1981, 1983. (See generally Compl.) 6 II. Legal Standard 7 Federal Rule of Civil Procedure 12(b)(6) allows for 8 dismissal when the plaintiff’s complaint fails to state a claim 9 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The 10 inquiry before the court is whether, accepting the allegations in 11 the complaint as true and drawing all reasonable inferences in 12 the plaintiff’s favor, the complaint has stated “a claim to 13 relief that is plausible on its face.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is 15 not akin to a ‘probability requirement,’ but it asks for more 16 than a sheer possibility that a defendant has acted unlawfully.” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 18 recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice.” Id. 20 III. Discussion 21 The only federal claims that plaintiff raises in its 22 complaint are against the FAA.1 Plaintiff first claims that the 23 FAA violated the NHPA, 54 U.S.C. § 306108, by approving the City 24 defendants’ sale of the airport property without first complying

25 1 Though the complaint also claims that the City defendants violated 42 U.S.C §§ 1981 and 1983, plaintiff conceded 26 in its opposition to the City defendants’ motion to dismiss that 27 its complaint had not stated a § 1981 or § 1983 claim and requested that the court dismiss that claim. (See Pl.’s Opp’n 28 City Def. Mot. Dismiss at 12 (Docket No. 16).) 1 with certain procedural requirements under the statute. (See 2 Compl. ¶¶ 77-92.) Plaintiff also claims that the FAA violated 3 the terms of the 1951 federal land patent by failing to prevent 4 the sale of the property to the Modoc Nation. (See id.) 5 A. Violation of the NHPA 6 Plaintiff’s claim under the NHPA seeks judicial review 7 of the FAA’s alleged approval of the sale of the airport property 8 under APA section 702. APA section 702 allows persons “suffering 9 legal wrong because of agency action, or adversely affected or 10 aggrieved by agency action within the meaning of a relevant 11 statute” to seek judicial review. 5 U.S.C. § 702. 12 Because section 702 grants judicial review for legal 13 wrongs caused by “agency action,” in order for the court to have 14 subject matter jurisdiction over this claim plaintiff’s complaint 15 must allege facts sufficient to support the conclusion that the 16 FAA’s approval of the airport transfer was an “agency action”. 17 Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800–01 (9th Cir. 18 2013) (quoting Norton v. S. Utah Wilderness All., 542 U.S. 55, 19 61-62 (2004)); see also Fairbanks N. Star Borough v. U.S. Army 20 Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008) (noting that 21 the presence of a final agency action is “a jurisdictional 22 requirement to obtaining judicial review under the APA”). The 23 APA defines “agency action” as “the whole or part of an agency 24 rule, order, license, sanction, relief, or the equivalent or 25 denial thereof, or failure to act.” 5 U.S.C. § 551(13). 26 The complaint must also allege facts sufficient to show 27 that the FAA’s action was “final” under the APA. Id. (“To 28 maintain a cause of action under the APA, a plaintiff must 1 challenge ‘agency action’ that is ‘final.’” (quoting Norton, 542 2 U.S. at 61-62)); see also 5 U.S.C. § 704 (further limiting review 3 under the APA to “final agency action for which there is no other 4 adequate remedy in court”) (emphasis added). The Supreme Court 5 has articulated a two-part test to determine if an agency action 6 is “final” under the APA: 7 First, the action must mark the consummation of the agency’s decisionmaking process--it must not 8 be of a merely tentative or interlocutory nature. And second, the action must be one by which 9 rights or obligations have been determined, or from which legal consequences will flow. 10 11 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation 12 marks and citations removed). 13 Here, plaintiff’s complaint identifies two potential 14 agency actions taken as part of the FAA’s approval: first, that 15 the Armstrong Letter acted as a “permit, license, or approv[al]” 16 for the City defendants to sell the airport property to the Modoc 17 Nation (See Compl. ¶ 85); and second, that the FAA’s failure to 18 carry out the NHPA’s procedural requirements prior to approving 19 the sale of the airport property constituted a reviewable agency 20 action (See Compl. ¶ 86). For the following reasons, neither 21 action qualifies as “agency action,” much less “final agency 22 action,” under the APA. See Wild Fish Conservancy, 730 F.3d at 23 800–01. 24 1. The Armstrong Letter 25 The Armstrong Letter is not “agency action” because it 26 is not the type of “circumscribed, discrete agency action[]” that 27 is ordinarily the subject of judicial review. See Norton, 542 28 U.S. at 62. “The definition of [agency action] begins with a 1 list of five categories of decisions made or outcomes implemented 2 by an agency--‘agency rule, order, license, sanction [or] 3 relief.’” Id. (quoting 5 U.S.C. § 551(13)). 4 The Armstrong Letter--which plaintiff attaches to the 5 complaint as an exhibit--does not fall under any of those five 6 categories. (See Compl. Ex. F.) The Letter outlines the terms 7 of the parties’ Purchase Agreement and acknowledges that the 8 operator of the airport is subject to existing obligations under 9 the law to receive federal grant funding from the FAA. (See id.) 10 It then states that “based on [the] information and the 11 conditions provided [by the parties], the FAA has no objection to 12 the proposed Purchase Agreement of the Airport property from the 13 City to the Tribe.” (Id.) 14 The Armstrong Letter is essentially an advisory opinion 15 informing the parties to the Purchase Agreement of the airport 16 operator’s obligations under law and under the terms of the 1951 17 land patent. It is not “an agency statement of . . . future 18 effect designed to implement, interpret, or prescribe law or 19 policy,” 5 U.S.C. § 551(4) (definition of rule), or “a final 20 disposition ... in a matter other than rule making,” see id. at § 21 551(6) (order). Nor is it a “permit ... or other form of 22 permission.” See Id. at § 551(8) (license). 23 While Congress intended the APA’s definition of an 24 “agency action” to be “‘expansive,’ federal courts ‘have long 25 recognized that the term [agency action] is not so all- 26 encompassing as to authorize [federal courts] to exercise 27 judicial review over everything done by an administrative 28 agency.’” Wild Fish Conservancy, 730 F.3d at 800–01 (quoting 1 Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 2 19 (D.C. Cir. 2006)). By its own terms, the Armstrong Letter 3 does not purport to approve, license, or give permission for 4 anything. (See Compl. Ex. F.) It is therefore not an “agency 5 action” subject to judicial review within the meaning of 5 U.S.C. 6 § 551(13). See Wild Fish Conservancy, 730 F.3d at 800–01; see 7 also Bituminous Cas. Corp. v. Walden Res., LLC, 672 F. Supp. 2d 8 835, 845-46 (E.D. Tenn. 2009) (holding that an agency letter 9 describing the consequences of a party’s failure to follow 10 federal law was not a final agency action, and that it was 11 “doubtful that [the] letter constitute[d] ‘action’ at all”). 12 Even if the Armstrong Letter were an “agency action” 13 subject to review, the court would still lack subject matter 14 jurisdiction because the Letter’s issuance does not meet either 15 of the finality requirements set out in Bennett. See Bennett, 16 520 U.S. at 177-78. First, the Letter does not “mark the 17 consummation of the agency’s decisionmaking process.” See id. 18 It does not appear to have been issued as the result of any sort 19 of formal decisionmaking process by the FAA; in fact, a Manager 20 from the agency’s Regional Airport Division Office issued the 21 Letter just eight days after receiving the City’s request. (See 22 Compl. Exs. D, F.) The FAA did not hold hearings, solicit 23 additional input, or rely on any other evidence beyond the 24 Purchase Agreement before it issued the Letter. (See id.) In 25 fact, the Letter specifically notes that it only “represents the 26 present views of the FAA’s Regional Airport Division Office,” not 27 the views of the FAA as a whole. See Soundboard Ass’n v. Fed. 28 Trade Comm’n, 888 F.3d 1261, 1268 (D.C. Cir. 2018), cert. denied 1 sub nom. Soundboard Ass’n v. F.T.C., 139 S. Ct. 1544 (2019) 2 (holding that an informal agency letter did not represent the 3 consummation of the agency’s decisionmaking process because it 4 only expressed the views of agency staff, not the agency as a 5 whole). 6 Second, the issuance of the Armstrong Letter is not an 7 action “by which rights or obligations have been determined, or 8 from which legal consequences will flow.” Bennett, 520 U.S. at 9 177-78. Plaintiff’s complaint does not identify--and the court 10 is not aware of--any authority that requires the FAA to approve a 11 sale or transfer of the airport property to the Modoc Nation. 12 Instead, the complaint alleges that the FAA had to decide whether 13 to approve the sale of the airport property because the parties 14 agreed to condition the sale of the property on FAA approval. 15 (See Compl. ¶ 64.) 16 An agency action cannot become final merely because 17 private parties agree to treat it as determinative. The APA 18 requires that rights, obligations, or legal consequences flow 19 from agency action, not the parties’ own, self-imposed contracts. 20 See Bennett, 520 U.S. at 177-78 (“[T]he action challenged must be 21 one by which rights or obligations have been determined, or from 22 which legal consequences will flow.” (emphasis added) (internal 23 quotation marks omitted)). Because the Purchase Agreement is the 24 only alleged source of legal rights, obligations, or consequences 25 that could flow from the FAA’s issuance of the Armstrong Letter, 26 the Letter cannot constitute a “final” agency action. See id. 27 In short, an informal agency letter that (1) merely 28 advises the City defendants and the tribal defendants of 1 independent legal obligations that arise under federal law and 2 the 1951 land patent, (2) does not represent the view of the 3 agency as a whole, (3) does not purport to approve or license the 4 sale of the airport property in any way, and (4) does not give 5 rise to any legal rights, obligations, or consequences outside of 6 a private agreement between the City defendants and the tribal 7 defendants is not reviewable under the APA. The court therefore 8 lacks subject matter jurisdiction to review the FAA’s issuance of 9 the Armstrong Letter under the statute. Wild Fish Conservancy, 10 730 F.3d at 802. 11 2. Failure to Act Pursuant to the NHPA 12 The FAA’s failure to consider the impact of the sale of 13 the airport property under the NHPA was also not a final agency 14 action. While a failure to act can constitute an agency action 15 under the APA, see 5 U.S.C. § 551(13), the plaintiff must “assert 16 that an agency failed to take a discrete agency action that it is 17 required to take.” Norton, 542 U.S. at 64 (2004). 18 Here, the complaint alleges that NHPA section 106 19 requires the FAA to consider the impact of its actions on 20 historic property. (See Compl. ¶ 82.) Specifically, section 106 21 states that “prior to the approval of the expenditure of any 22 Federal funds on [a Federal] undertaking or prior to the issuance 23 of any license, [the agency] shall take into account the effect 24 of the undertaking on any historic property.” 54 U.S.C. § 306108 25 (emphasis added). 26 The FAA’s failure to act under NHPA section 106 cannot 27 constitute a final agency action because section 106 only imposes 28 an obligation on the FAA prior to the agency’s approval of the 1 expenditure of federal funds or issuance of a license. See id. 2 As noted above, the FAA did not issue any license or approval of 3 the sale of the airport property in this case, and plaintiff has 4 not identified any source of law authorizing or requiring the FAA 5 to issue such an approval or license. The complaint therefore 6 does not allege that the FAA failed to take any discrete agency 7 action that it was required to take. See Norton, 542 U.S. at 64 8 (2004). 9 Accordingly, neither the FAA’s issuance of the 10 Armstrong Letter nor its failure to act under the NHPA constitute 11 a “final agency action” by the FAA. Bennett, 520 U.S. at 177-78. 12 The court therefore does not have subject matter jurisdiction 13 over plaintiff’s claim that the FAA violated the NHPA by 14 approving the transfer of the airport property to the Modoc 15 Nation, and the court will dismiss plaintiff’s first claim 16 against the FAA. See Wild Fish Conservancy, 730 F.3d at 802. 17 B. Violation of the 1951 Federal Land Patent 18 Plaintiff next claims that the FAA violated the terms 19 of the 1951 federal land patent by failing to enforce its 20 provisions. Plaintiff’s complaint claims that the land patent 21 contains a covenant that prohibits the airport property from 22 being conveyed to the Tribal defendants. (See Compl. ¶¶ 94-105.) 23 As with its first claim, plaintiff seeks judicial review of the 24 FAA’s failure to enforce the terms of the 1951 land patent under 25 APA section 702. (See Compl. ¶108.) 26 For the same reason that the court lacks subject matter 27 jurisdiction over plaintiff’s claim that the FAA failed to comply 28 with procedural requirements imposed by the NHPA, the court also 1 lacks subject matter jurisdiction over plaintiff’s claim that the 2 FAA failed to enforce the terms of the 1951 land patent. Though 3 failures to act are reviewable the APA, see 5 U.S.C. § 551(13), 4 the plaintiff must “assert that [the] agency failed to take a 5 discrete agency action that it is required to take.” Norton, 542 6 U.S. at 64 (2004). Here, plaintiff’s complaint does not 7 identify--and the court is not aware of--any authority that 8 requires the FAA to enforce the terms of the 1951 land patent. 9 The FAA’s failure to enforce the land patent is therefore not an 10 “agency action” within the meaning of the APA. See id. 11 Accordingly, the court will dismiss plaintiff’s second claim for 12 lack of subject matter jurisdiction. See Wild Fish Conservancy, 13 730 F.3d at 802. 14 C. Supplemental Jurisdiction 15 Because the court will dismiss plaintiff’s only federal 16 claims, the court no longer has federal question jurisdiction. 17 See id. Federal courts have “supplemental jurisdiction over all 18 other claims that are so related to claims in the action within 19 such original jurisdiction that they form part of the same case 20 or controversy under Article III of the United States 21 Constitution.” 28 U.S.C. § 1367(a). But a district court “may 22 decline to exercise supplemental jurisdiction . . . [if] the 23 district court has dismissed all claims over which it has 24 original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v. 25 Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en 26 banc) (explaining that a district court may decide sua sponte to 27 decline to exercise supplemental jurisdiction). The Supreme 28 Court has stated that “in the usual case in which all federal-law 1 claims are eliminated before trial, the balance of factors to be 2 considered under the pendent jurisdiction doctrine--judicial 3 economy, convenience, fairness, and comity--will point toward 4 declining to exercise jurisdiction over the remaining state-law 5 claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 6 (1988). 7 Comity weighs in favor of declining to exercise 8 supplemental jurisdiction over plaintiff’s state law claims 9 because the state court is competent to hear those claims and may 10 have a better understanding of the relevant state law. As for 11 judicial economy, this action is still at the motion to dismiss 12 stage, and plaintiff’s state law claims have not been the subject 13 of any litigation. Judicial economy does not weigh in favor of 14 exercising supplemental jurisdiction. Lastly, convenience and 15 fairness do not weigh in favor of exercising supplemental 16 jurisdiction. The federal and state fora are equally convenient 17 for the parties. There is no reason to doubt that the state 18 court will provide an equally fair adjudication of the issues. 19 Accordingly, the court declines to exercise supplemental 20 jurisdiction and will dismiss plaintiff’s remaining state law 21 claims. 22 IT IS THEREFORE ORDERED that defendants’ motions to 23 dismiss (Docket Nos. 7, 12, 13) be, and the same hereby are, 24 GRANTED. 25 Plaintiff’s claims against defendant Federal Aviation 26 Administration are DISMISSED WITH PREJUDICE. Plaintiff’s claim 27 against defendants City of Tulelake and the City Council of 28 Tulelake under 42 U.S.C. §§ 1981, 1983 is also DISMISSED WITH QAOe 2. CU UV OOTY MIVINY MYVUUTIOTIL Oe PIR Vee AY OT I Ot

1 PREJUDICE. Plaintiff’s claims under California law against 2 defendants City of Tulelake, City Council of the City of 3 Tulelake, Bill G. Follis, Judy Cobb, Phil Follis, Jack Shadwick, 4 Ramona Rosiere, and the Modoc Nation are DISMISSED WITHOUT 5 PREJUDICE to refiling in state court. The Clerk of Court shall 6 enter final judgment in favor of all defendants. 7 Dated: September 24, 2020 Md / . ak. a / 8 WILLIAM B. SHUBB 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14