1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BUENA VISTA RANCHERIA OF ME-WUK No. 2:23-cv-00168 WBS CKD INDIANS, a federally recognized 13 Indian tribe, 14 Plaintiff, CORRECTED MEMORANDUM AND

ORDER RE: DEFENDANTS’ MOTION

15 v. TO DISMISS1 16 PACIFIC COAST BUILDING PRODUCTS, INC., a California corporation, 17 PCBP PROPERTIES, INC., a Nevada corporation, and H.C. MUDDOX, a 18 corporate subsidiary of Pacific Coast Building Products, 19 Defendants. 20

21 ----oo0oo---- 22 The Buena Vista Rancheria of Me-Wuk Indians 23 (“plaintiff”) brought this action against Pacific Coast Building 24 Products, Inc., PCBP Properties, Inc., and H.C. Muddox 25 (collectively “defendants”), asserting claims for nuisance and 26 27 1 The court heard oral argument on this motion on June 28 12, 2023. 1 trespass under federal common law. (See generally Compl. (Docket 2 No. 1).) Before the court is defendants’ motion to dismiss.2 3 (Docket No. 8.) 4 I. Factual Allegations 5 Plaintiff occupies the Buena Vista Rancheria -- a 67.5- 6 acre Rancheria3 property in Amador County.4 (Compl. ¶ 13.) 7 Plaintiff describes the Rancheria as “the Tribe’s cultural 8 epicenter, source for economic development, and natural resource 9 management.” (Id. ¶ 23.) Within the boundaries of the Rancheria

10 2 Defendants also request that the court take judicial 11 notice of: (1) various forms filed in connection with their proposed mining project application (Exhibits 1 and 2); (2) a 12 copy of a map of defendants’ mine (Exhibit 3); (3) Google Earth satellite images of the properties involved in the dispute 13 (Exhibit 4); and (4) sections of the Amador County Code (Exhibits 5 and 6). (See Req. for Judicial Notice (Docket No. 8-3).) 14 Defendants’ request for judicial notice of the Amador County Code 15 (Exhibits 5 and 6) is granted because such documents are a matter of public record not reasonably subject to dispute. The request 16 for judicial notice of the map of the mine (Exhibit 3) is granted as plaintiff relies on the same map in its complaint. However, 17 the remaining requests are denied because consideration of the documents for which defendants seek notice is unnecessary to the 18 court’s resolution of the instant motion.

19 3 The United States created “Rancherias” -- a network of 20 small land parcels -- for landless Indian tribes in California. (See Compl. ¶ 13.) 21 4 In 1927, the United States purchased the land 22 constituting the Buena Vista Rancheria. (Compl. ¶ 13.) In 1958, Congress disestablished many California Indian rancherias, 23 including the Buena Vista Rancheria, and terminated the legal status of the related Indian tribes and their members. (Id. ¶ 24 14.) The land comprising the Buena Vista Rancheria was distributed to individual tribal members. (Id.) The United 25 States then withdrew the trust status of the Buena Vista Rancheria and dissolved the Rancheria boundaries. (Id.) In 26 1983, the United States restored the Tribe’s status as a recognized Indians under federal law and the Tribe was added to 27 the Federal Register list of recognized Indian tribes. (Id. ¶ 16.) In 2021, the Bureau of Indian Affairs (“BIA”) placed the 28 Rancheria lands back into trust. (Id. ¶ 21.) 1 is: the Harrah’s Northern California casino (the “Casino”), 2 drinking and wastewater treatment plants, a cultural center, two 3 homes, a Tribal office, the Tribal cemetery, traditional 4 gathering places, and a federally recognized wetland preserve. 5 (Id.) The Casino has been in operation since April 2019 and is 6 the primary source of revenue for the Tribe. (Id. ¶¶ 33, 34.) 7 Defendant PCBP Properties, Inc. owns 114.27-acres of 8 surface mining property known as the “Berry Mine” on the PCBP 9 Property. (Mot. at 8.) The Berry Mine is directly adjacent to 10 the east of the Tribe’s Rancheria. (Compl. ¶ 35.) Portions of 11 the PCBP Property have been used for mining intermittently since 12 at least 1976. (Id. ¶ 38.) 13 On or about September 13, 2022, defendants informed 14 plaintiff that they intended to expand its surface clay mining 15 operation on the PCBP Property to a 40.1-acre section of the 16 property. (Id. ¶¶ 41, 42.) On December 16, 2022, defendants 17 told plaintiff that their new mining operation would commence as 18 soon as they receive approval from the County. (Id. ¶ 42.) 19 Defendants also informed plaintiff of their belief that they 20 could begin new mining operations on an area of the PCBP Property 21 located less than 250 feet from the Rancheria boundary at any 22 time and without County approval.5 (Id. ¶ 43.) Amador County 23 and defendants maintain the right to conduct new mining operation 24 under Section 7.36 of the County Code because mining occurred on 25

26 5 Plaintiff does not allege that defendants have a plan to mine the area of the PCBP Property that is 250 feet from the 27 Rancheria boundary. Rather, plaintiff alleges that defendants have expressed their belief that they can legally mine the area 28 at any time without County approval. 1 the land prior to January 1, 1976.6 (Id. ¶ 39.) 2 Plaintiff alleges numerous harms will flow from 3 defendants’ new mining operation, including that the operation 4 will: (1) create significant noise and vibration; (2) reduce the 5 number of guests coming to the Casino; (3) cause health risks to 6 the Tribe as well as the Casino’s employees and guests; (4) 7 impact air quality; (5) impact groundwater and federally 8 protected wetlands; and (6) disturb or destroy grave-like 9 structures and other objects of cultural patrimony.7 (Id. ¶¶ 51- 10 55.) 11 II. Discussion 12 Among other grounds, defendants seek to dismiss the 13 complaint on the ground that plaintiff’s claims are not 14 prudentially ripe under Rule 12(b)(1). The ripeness doctrine 15 prevents premature adjudication where a case has had no concrete 16 impact on the parties. Exxon Corp. v. Heinze, 32 F.3d 1399, 1404 17 (9th Cir. 1994). “[R]ipeness doctrine is drawn both from Article 18 III limitations on judicial power and from prudential reasons for 19 refusing to exercise jurisdiction.” Reno v. Catholic Soc. 20 Servs., Inc., 509 U.S. 43, 57 n.18 (1993). Because ripeness 21 pertains to a federal court’s subject matter jurisdiction under 22 6 Amador County Code 7.36.070 provides: “Nothing in this 23 chapter shall be construed as requiring the filing of a reclamation plan for or the reclamation of mined lands which were 24 disturbed by surface mining operations conducted prior to January 1, 1976.” 25

26 7 “Cultural patrimony” is defined as “an object having ongoing historical, traditional, or cultural importance central 27 to the Native American group or culture itself . . . .” Native American Graves Protection and Repatriation Act, 25 U.S.C. § 28 3001(3)(D). 1 Article III of the United States Constitution, it is properly 2 raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(1). 3 See St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) 4 (ripeness goes to a federal court’s subject matter jurisdiction). 5 In assessing a prudential ripeness claim, as defendants 6 argue here, courts generally consider two factors: (1) “the 7 fitness of the issues for judicial review” and (2) “the hardship 8 to the parties of withholding court consideration.” Alaska Right 9 to Life Pol. Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 10 2007) (citation and quotations omitted). Defendants argue that 11 the Tribe’s claims are not ripe because they are based on the 12 contingent event of the County approving its application and the 13 application has not yet been reviewed.8 (Mot. at 24.) The court 14 agrees. See Mt. Adams Veneer Co. v. United States, 896 F.2d 339, 15 343 (9th Cir. 1989) (“Where, as here, injunctive relief and a 16 declaratory judgment are sought with regard to an administrative 17 determination, the courts traditionally have been reluctant to 18 grant such relief unless there is a controversy ripe for judicial 19 resolution.”). 20 A challenged government action must be final before the 21 action is ripe. See United States v. Braren, 338 F.3d 971, 975 22 (9th Cir. 2003) (citation omitted). Generally, courts in the 23 Ninth Circuit “will not entertain a petition where pending 24 administrative proceedings or further agency action might render 25 the case moot and judicial review completely unnecessary.” 26 Sierra Club v. U.S. Nuclear Regul. Comm’n, 825 F.2d 1356, 1362 27 8 Defendants filed their application with Amador County 28 on March 8, 2023. (Mot. at 17.) 1 (9th Cir. 1987) (citations omitted). Compare Del Monte Dunes at 2 Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 3 1990) (“[A] claim is not ripe until the local government issues a 4 final decision on the application of land use regulations to the 5 affected property.”) (citation omitted); Wash. Trout v. FERC, 60 6 F. App’x 693, 694 (9th Cir. 2003) (finding case was not ripe 7 where the FERC was still evaluating a facility’s license and had 8 not made a final decision), with Assiniboine & Sioux Tribes of 9 Fort Peck Indian Rsrv. v. Bd. of Oil & Gas Conservation of State 10 of Mont., 792 F.2d 782, 789 (9th Cir. 1986) (finding claims ripe 11 where the Bureau of Land Management had approved orders affecting 12 tribal lands); Pacificans for Scenic Coast v. Cal. Dep’t of 13 Transp., 204 F. Supp. 3d 1075, 1091 (N.D. Cal. 2016) (finding 14 claims ripe where “Caltrans has engaged in final agency action on 15 behalf of the Federal Highway Administration by giving 16 environmental approval to the project”). 17 Here, defendants’ ability to commence their new mining 18 operation is contingent on approval of the mining project 19 application by the County as well as review by the U.S. Army 20 Corps of Engineers.9 Because approval of the new mining project 21 is not yet final, plaintiff’s claims seeking to enjoin the 22 project are not ripe. See Ass’n of Am. Med. Colls. v. United 23 States, 217 F.3d 770, 780 (9th Cir. 2000) (“The core question is 24 9 PCBP Entities must submit an aquatic resources 25 delineation (identifying the amount and boundaries of aquatic resources) to the U.S. Army Corps of Engineers to determine 26 whether any waters of the United States will be impacted by the new mining project. (Mot. at 24.) If any water may be impacted, 27 defendants will have additional administrative steps, including the creation of reports, in order for the Corps of Engineers to 28 process the requested permit. (See id.) eee OS IEE RIOD IEEE ESI OSE IO

1 whether the agency has completed its decisionmaking process ... 2 .”) (citation omitted). Plaintiff is free to refile their 3 complaint if and when defendants’ project is approved by the 4 County and the Corps of Engineers or if defendants should take 5 any actions for mining the PCBP Property inconsistent with the 6 | court’s understanding of the administrative prerequisites for 7 such actions as expressed in this Order. 8 IT IS THEREFORE ORDERED that defendants’ motion to 9 dismiss (Docket No. 8) be, and the same hereby is, GRANTED. 10 Plaintiff has twenty days from the date of this Order to file an 11 amended complaint, if it can do so consistent with this Order. 12 | Dated: June 14, 2023 he ble 7H. Ad, kt 13 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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