EDWARD M. CHEN, District Judge.
Plaintiffs are Resighini Rancheria, a federally recognized Indian tribe, and two of its members, Gary Dowd and Frank Dowd. They have filed suit against Defendant Charlton H. Bonham, both in his individual capacity and in his official capacity as the director of the California Department of Fish and Game ("DF & G"). Essentially, Plaintiffs seek a declaration that they are entitled to fish on the Klamath River within the old Klamath River Reservation/Extension and an injunction barring the DF & G from citing members of the tribe for fishing in that area. Mr. Bonham has moved to dismiss, arguing that Plaintiffs have no standing to sue.
As indicated above, Plaintiffs basically want to be able to fish on the Klamath River within the old Klamath River Reservation/Extension without being cited. The area where Plaintiffs want to fish is not within the Resighini Reservation but rather within the reservation of another Indian tribe, i.e., the Yurok Tribe.
The evidence of record indicates that action was taken against both Gary Dowd and Frank Dowd for fishing in that area. That action, however, was not taken by DF & G but rather by Yurok police officers — Josh Davis and Thorin McCovey — who are also cross-deputized as Del Norte County sheriffs. See Docket No. 11 (McQuillen Decl. ¶¶ 3-4) (testifying that individuals are Yurok police officers); Docket No. 11 (Banko Decl. ¶¶ 4-6) (testifying that individuals are also cross-deputized as Del Norte County sheriffs but are not employed by DF & G).
More specifically, on August 29, 2010, the Yurok Police Department seized fishing equipment owned by Gary Dowd. The Yurok Police Department offense/incident report, prepared by Officer Davis, indicated that Gary Dowd had violated both tribal ordinances (the Yurok Harvest Management Plan) and the California Fish & Game Code.
Approximately a year later, on September 16, 2011, the Yurok Department of Public Safety issued a notice to appear to Frank Dowd. The notice, which was filled out by Officer McCovey, stated that Frank Dowd was an "ineligible fisher," had "no tribal I.D.," and had violated the California Fish & Game Code.
A few weeks before the incident involving Frank Dowd, Lester Marston, general counsel for the Resighini Tribe (and also litigation counsel of record) sent a letter to John McCamman, then-Director of DF & G, asserting that, "[r]ecently, California Fish and Game wardens cited members of
A few weeks after the Frank Dowd incident was resolved, general counsel for the DF & G responded to Mr. Marston's letter. General counsel stated that, back in 2008 DF & G had been contacted by the Yurok Tribe about
Docket No. 12 (Marston Decl., Ex. C).
A few months later, Plaintiffs initiated the case at bar.
"Article III of the Constitution limits the `judicial power' of the United States to the resolution of `cases' and `controversies.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Moreover, as explained by the Ninth Circuit, the
Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-22 (9th Cir.2010).
Article III standing must be established whether the relief sought is injunctive or declaratory. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152-56 (9th Cir. 2000) (analyzing standing to seek injunctive and declaratory relief in same way regarding injury in fact); Virginia Sur. Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1246 (9th Cir.1998) (stating that, "`[w]here only injunctive or declaratory relief is sought, a plaintiff must show a very significant possibility of future harm in order to have standing to bring suit'").
"A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). Where a factual motion to dismiss is made and only written materials are submitted for the court's consideration (i.e., no hearing is held), a plaintiff need only establish a prima facie case of jurisdiction. See Societe de Conditionnement en Aluminium v. Hunter Eng'g Co., 655 F.2d 938, 942 (9th Cir.1985).
As a preliminary matter, the Court notes that Mr. Bonham has formally offered an argument based on standing only. However, as indicated above, standing and ripeness are related doctrines, see also Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (noting that "[t]he constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides with standing's injury in fact prong"), and so it is not prejudicial for the Court to entertain both issues, particularly because Plaintiffs themselves acknowledge in their opposition the argument of ripeness. See Opp'n at 2 (stating that "Bonham frames his subject matter jurisdiction inquiry as a standing issue when it is actually a ripeness issue").
There should be no real dispute that DF & G has the authority to enforce the provisions of the California Fish & Game Code.
Cal. Fish & Game Code § 851; cf. National Audubon Soc'y v. Davis, 307 F.3d 835, 847 (9th Cir.2002) (stating that the Eleventh Amendment does not bar a suit against the director of DF & G, who has direct authority over and principal responsibility for enforcing Proposition 4, i.e., California Fish & Game §§ 3003.1 and 3003.2)
The problem for Plaintiffs is that there is no evidence that any injury to Plaintiffs was caused by or fairly traceable to DF & G. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (noting that one element of standing is that "there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court"). There is no evidence in the record that any DF & G deputy, or any other DF & G employee, took any action against the Resighini Tribe or its members for fishing in the area at issue. As indicated above, Officer Davis, who was involved in the Gary Dowd incident, is an employee of the Yurok Police Department. So too is Officer McCovey. While both officers appear to be cross-deputized as Del Norte County sheriffs, and thus they may qualify as state actors for purposes of, e.g., 42 U.S.C. § 1983, that does not mean that they are agents of DF & G (a state agency), that DF & G has control over them, and/or that they were acting at the behest of DF & G.
In their opposition, Plaintiffs suggest that the Yurok police officers had to have been given the "go ahead" by DF & G to act. They argue:
Opp'n at 4. But even if the DF & G determined back in 2008 that the Resighini Tribe members were not entitled to fish in the area at issue, that does not necessarily mean that DF & G instructed, approved, or otherwise directed the Yurok police officers who were cross-deputized as county sheriffs (and not as officers of DF & G) to take action against Resighini Tribe members.
Plaintiffs contend that, even if DF & G did not give the "go ahead" to act, it can still be accountable under Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). See Opp'n at 5. However, Bennett is distinguishable. In Bennett, a federal agency, the Bureau of
On appeal, F & W argued that "any injury suffered by petitioners is neither `fairly traceable' to the [F & W's] Biological Opinion ... because the `action agency' (the Bureau) retains ultimate responsibility for determining whether and how a proposed action shall go forward." Id. at 168, 117 S.Ct. 1154. The Supreme Court disagreed, stating:
Id. at 168-69, 117 S.Ct. 1154. The court went on to explain that, even though F & W's Biological Opinion was technically advisory in nature, in reality it had a "powerful coercive effect" on agency action. Id. at 169, 117 S.Ct. 1154. First, an "agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of articulating in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.'" Id. (internal quotation marks omitted). Second,
Id. at 169-70, 117 S.Ct. 1154.
In contrast to Bennett, there is nothing in the record before the Court to suggest that the DF & G's determination that the Resighini Tribe members cannot fish in the area at issue had a "determined or coercive effect upon" (id. at 169, 117 S.Ct. 1154)
Finally, to the extent the Resighini Tribe's counsel, Mr. Marston, in his letter to DF & G claimed that members of the tribe had been cited by DF & G wardens, there are no allegations or evidence in the record to support that claim.
While DF & G cannot be held accountable for the actions taken by the cross-deputized Yurok police officers, as noted above, DF & G's own general counsel stated in a letter to counsel for the Resighini Tribe (Mr. Marston) that, "[w]hile the [DF & G] generally does not have authority to enforce state fishing regulations against Indians on their own reservations, the [DF & G] may criminally enforce the Fish and Game Code against Resighini members on the Yurok Reservation in the same manner as it regulates non-Indian fishing on the reservation." Docket No. 12 (Marston Decl., Ex. C) (letter). While Plaintiffs contend this letter provides standing to sue the DF & G, there is again, a causation problem.
DF & G argues that this action is not enough of a threat to establish a case or controversy because the letter simply advised Mr. Marston as to what DF & G's understanding of the law was. DF & G suggests that a statement that it has the authority to enforce fishing regulations against the Resighini Tribe members for fishing in the area at issue does not establish that DF & G will — or is even likely to — enforce the fishing regulations against Plaintiffs. This argument may be viewed under the lens of either standing or ripeness. See Thomas, 220 F.3d at 1139 (noting that, "in `measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing'").
In Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), the Supreme Court set forth the following standard for Article III standing based on a threat of prosecution:
Id. at 298, 99 S.Ct. 2301 (emphasis added). The Ninth Circuit has held:
Thomas, 220 F.3d at 1139.
In the instant case, Plaintiffs have failed to make the requisite showing of a "credible
As examples of sufficiently specific threats, the Ninth Circuit has pointed to
San Diego County Gun Rights, 98 F.3d at 1127 (emphasis added); and
Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir.2010).
In contrast, in Rincon Band of Mission Indians v. County of San Diego, 495 F.2d 1 (9th Cir.1974), the Ninth Circuit found that a threat was not sufficiently specific. In Rincon, the plaintiff Indian tribe sought declaratory and injunctive relief to bar the enforcement of a San Diego gambling ordinance on its reservation. Prior to filing suit, the tribe's attorneys sent a letter to counsel for San Diego County in which they "alleged that several members of the [tribe] were informed by representatives of the San Diego County Sheriff's Department that under the county gambling ordinance all gambling in unincorporated areas of the county was illegal and that the ordinance would be enforced against persons on the [tribe's] Reservation." Id. at 4. In the same letter — as well as in a subsequent correspondence — the tribe's attorneys asked for a written statement of the county policy as to the county's jurisdiction to enforce its gambling ordinance on the tribe's reservation. See id. In response, the county sheriff replied that "`State law, as well as the County ordinance, is quite specific relative to gambling, and all of the laws of San Diego, State, Federal and County will be enforced within our jurisdiction.'" Id. The sheriff added: "`[W]e felt that the laws of the State and the County are not made for a few, but meant to include everyone, and they shall be administered in that manner.'" Id. The Ninth Circuit characterized the sheriff's response as a general threat, which lacked the specificity and immediacy necessary to give rise to a justiciable case or controversy. See also San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir.1996) (emphasizing that "a general threat of prosecution is not enough").
In the case at bar, the statement by DF & G's counsel is admittedly more specific than that made by the sheriff in Rincon, but on the spectrum, is closer to Rincon than those cases finding sufficiently specific threats of prosecution to satisfy Article
Montana Shooting Sports Association v. Holder, No. CV-09-147-DWM-JCL, 2010 WL 3926029, 2010 U.S. Dist. LEXIS 104301 (D.Mt. Aug. 31, 2010), adopted by 2010 WL 3909431, 2010 U.S. Dist. LEXIS 104286 (D.Mt. Sept. 29, 2010), is an analogous case. There, the plaintiffs brought a declaratory judgment action asking for a determination that they could manufacture and sell firearms under the Montana Firearms Freedom Act (then-recently enacted) without complying with federal firearms laws. Prior to filing suit, one of the plaintiffs wrote to the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") asking for guidance on the issue.
Id. at *1, 2010 U.S. Dist. LEXIS 104301 at *5; see also id. at *11, 2010 U.S. Dist. LEXIS 104301 at *37 (quoting another part of ATF letter, which stated "`that any unlicensed manufacturing of weapons or ammunition for sale or resale, or the manufacture of any [National Firearms Act] weapons, ... without proper registration and payment of tax, is a violation of Federal law and could lead to the forfeiture of such items and potential prosecution under [federal law]'"). Before the district court, the plaintiff argued that there was a specific threat of prosecution based on the ATF letter discussed above. The court disagreed, explaining that the statement that certain conduct could lead to the forfeiture of weapons or ammunition and potential prosecution "amounts to nothing more than a general assertion that anyone who violates the nation's federal firearms statutes may be subject to criminal prosecution. Such a general statement is not a specific threat of an imminent intent to prosecute [the plaintiff] ...." Id. at *11, 2010 U.S. Dist. LEXIS 104301 at *38.
For the foregoing reasons, the Court grants Mr. Bonham's motion to dismiss for lack of subject matter jurisdiction. Mr. Bonham has made a factual challenge, and Plaintiffs have failed to make a prima facie showing that there is a case or controversy under Article III. For example, they have not shown that prior enforcement actions by cross-deputized Yurok police officers against Resighini Tribe members is fairly traceable to the DF & G. Furthermore, the letter from DF & G's general counsel does not constitute a credible threat of prosecution. Because the Court grants DF & G's motion, Plaintiffs' motion for summary judgment against DF & G is moot.
The dismissal of DF & G shall be without prejudice. At the hearing, Plaintiffs asked for leave to amend to sue additional defendants — e.g., the Del Norte County
This order disposes of Docket No. 11.
IT IS SO ORDERED.
