Opinion
No. CV 03-1330-PCT-NVW.
September 7, 2005
ORDER
Before the court are the Tribal Defendants' Motion to Dismiss for Failure to State a Claim Pursuant to Fed.R.Civ.P. 12(b)(6) (doc. #65), the Navajo County Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) (doc. #66), and the Federal Defendants' Motion to Dismiss (doc. #67).
I. Factual and Procedural Background
The factual summary that follows is taken from the court's Order of March 31, 2005. (Doc. #62.)
This case arises against the historical backdrop of a long-standing dispute between members of the Navajo Nation and the Hopi Tribe over a 2.5 million acre area of land in northeastern Arizona. See generally Clinton v. Babbitt, 180 F.3d 1081 (9th Cir. 1999). The Navajo-Hopi dispute over this land has been characterized as "`the greatest title problem in the West.'" Id. at 1084 (quoting Healing v. Jones, 210 F. Supp. 125, 129 (D. Ariz. 1962)). The majority of the land became a Joint Use Area of the Navajo Nation and Hopi Tribe as a result of the court's decision in Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962). See Attakai v. United States, 746 F. Supp. 1395, 1399 (D. Ariz. 1990). In 1979, the federal district court partitioned the Joint Use Area pursuant to the Navajo and Hopi Land Settlement Act of 1974, Pub.L. No. 93-531, 25 U.S.C. §§ 640(d) et seq. (the "Settlement Act"). See Clinton, 180 F.3d at 1084. The Settlement Act required members of each tribe residing on land partitioned to the other tribe to relocate. A group of Navajos refused to relocate from the Hopi Partitioned Lands (the "HPL") and filed a lawsuit challenging the constitutionality of the Settlement Act's partition and relocation provisions. Manybeads v. United States, 730 F. Supp. 1515 (D. Ariz. 1989). The Manybeads litigation eventually resulted in a Settlement Agreement between the Hopi Tribe and the United States whereby the Hopi Tribe agreed to enter into leases with certain Navajo families residing on the HPL (the "HPL Navajos"). See Clinton, 180 F.3d at 1084-85. The standard lease terms were set forth in an Accommodation Agreement negotiated by the Hopi Tribe, the Navajo Nation, and representatives of the HPL Navajos. Id. at 1085. Under the Accommodation Agreement, eligible HPL Navajos are entitled to obtain 75-year leases at no cost on a three-acre homesite and ten acres of farmland, and to enjoy grazing privileges and other traditional uses of certain areas of the HPL. Id.
Plaintiffs are Navajo Indians who are either residents or former residents of the HPL. (Second Am. Compl. ¶¶ 6-13.) This action arises out of their efforts to hold a three-day Sundance Ceremony in July of 2001 on an area of the HPL known as "Camp Ana Mae," which is located within Hopi Range Unit 262. (Second Am. Compl. ¶¶ 46-47.) Plaintiffs allege that Defendants, including leaders of the Hopi Tribe and law enforcement officers from the Hopi Tribe, the Navajo County Sheriff's Office, and the Bureau of Indian Affairs ("BIA"), took various actions to interfere with the Sundance. The alleged interference included issuing warnings that they would not allow the Sundance to take place, setting up roadblocks to restrict access to the site, threatening potential participants with fines, arresting participants, and destroying and fencing off the Sundance site after the ceremony.
Plaintiffs' Second Amended Complaint (doc. # 34) asserts the following claims:
a. U.S. Const. amend. I, violation of free exercise of religion directly against the Federal Defendants and against the Tribal Defendants because they are deemed to have been federal actors due to their collaboration and conspiracy with the Federal Defendants.
b. U.S. Const. amend. V, violation of due process (equal protection) for discrimination on the basis of race, national origin, and religion by interfering with and prohibiting the religious and cultural practice of Plaintiffs, directly against the Federal Defendants and against the Tribal Defendants because they are deemed to have been federal actors due to their collaboration and conspiracy with the Federal Defendants.
c. U.S. Const. amend. IV, unreasonable seizure (arrest) directly against some Federal Defendants and against the Tribal Defendants because they are deemed to have been federal actors due to their collaboration and conspiracy with the Federal Defendants.
d. Supervisory liability against a "Jeff Doe" defendant for the First, Fifth, and Fourth Amendment violations by others.
e. 42 U.S.C. § 1983 free exercise of religion and equal protection claims directly against the County Officer Defendants and against the Tribal Defendants because they are deemed to have been state actors due to their collaboration and conspiracy with the County Defendants.
f. Supervisory liability against a "James Doe" defendant for the 42 U.S.C. § 1983 free exercise of religion and equal protection claims against the County Defendants.
g. 42 U.S.C. § 1983 free exercise of religion and equal protection claims directly against Navajo County and Navajo County Sheriff Gary H. Butler in his individual and official capacities for the actions of the County Officer Defendants for setting up road blocks and harassing people with the purpose of discouraging participation in a religious ceremony.
h. 42 U.S.C. § 1985(3) claim against all Defendants for conspiracy to interfere with federal right to free exercise of religion.
i. Title VI claim, 42 U.S.C. § 2000(d) and implementing regulations, against tribal, county, and federal law enforcement officer Defendants for discrimination on the basis of race, color, or national origin in administration of programs receiving federal financial assistance (the Tribe and the Navajo County Sheriff's Office).
j. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, ("RFRA") claim against Tribal and Federal Defendants for intimidating religious participation and for destroying and fencing the Sundance grounds.
All tribal defendants are sued only in their individual capacity. All individual county and federal defendants are sued in both their individual and official capacities.
Earlier filed motions to dismiss challenged Plaintiffs' Second Amended Complaint on threshold grounds that did not address the substantive sufficiency of any of the claims pleaded. The court heard oral argument on those motions on July 26, 2004. On March 31, 2005, the court dismissed several individual defendants for insufficient service of process, dismissed Plaintiffs' claims for declaratory and injunctive relief for failure to join an indispensable party, the Hopi Tribe, and dismissed (on its own motion, which the plaintiffs have not challenged) the action as against the United States of America for failure to make any allegations against the United States. (Doc. #62.) On May 13, 2005, the remaining defendants filed motions to dismiss for failure to state a claim upon which relief can be granted. (Docs. #65, 66, 67.)
II. Legal Standard
The court may not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When analyzing a complaint for failure to state a claim, all factual allegations are taken as true and construed in the light most favorable to the nonmoving party. See Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1504 (9th Cir. 1994). The court must assume that all general allegations "embrace whatever specific facts might be necessary to support them." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). The court does not need to assume, however, that the plaintiff can prove facts different from those alleged in the complaint. See Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
III. Discussion
In order to survive the earlier motions to dismiss, Plaintiffs made the tactical decision to acknowledge that they do not claim a statutory or contractual property right to access Camp Ana Mae arising under any of the federal statutes concerning partition of the Joint Use Area or under the Accommodation Agreement. The court previously noted that that decision acts as a two-edged sword — at once cutting off some of the bases of the motions to dismiss and paring Plaintiffs' claimed right of access to Camp Ana Mae down to a bare claim of a right to exercise one's religion on another's property. (Doc. #62 at 8.) Having employed the first edge of this sword to their benefit, Plaintiffs now seek to cast it aside and have the court "recognize that the Accommodation Agreement . . . and federal law give Plaintiffs entitlement to be lawfully present on the HPL, and to participate in traditional cultural practices." (Doc. #76 at 5.) Courts do not, however, permit litigants to disavow their tactical decisions when the consequences of those decisions are no longer to their advantage. Accordingly, the court will continue to hold Plaintiffs to their categorical statements at the July 26, 2004 oral argument and will evaluate the sufficiency of their claims solely on the constitutional and statutory theories they advance, unaided by any pretense of property entitlement to engage in the relevant conduct at Camp Ana Mae.
The court's earlier ruling also rested on several additional foundations which continue to apply:
Plaintiffs assert no claim arising under Hopi local law, and plainly there would be no federal subject matter jurisdiction over any such claim. Gila River Indian Cmty. v. Henningson, Durham Richardson, 626 F.2d 708 (9th Cir. 1980). Nor do Plaintiffs assert against the Tribal Defendants any federal constitutional claim, as the Constitution itself does not limit the powers of tribal governments. Talton v. Mayes, 163 U.S. 376 (1896); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). While Congress has statutorily imposed most of the federal Bill of Rights on tribal governments through the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302, that statute creates no private right of action in federal court, and its provisions can be enforced only in tribal court. Santa Clara Pueblo, 436 U.S. at 72.
(Doc. #62 at 5.)
Thus, the first eight of Plaintiffs' claims continue to hang on the following substantive propositions:
1. The County and Federal Defendants have 42 U.S.C. § 1983 or § 1985(3) or Bivens liability respectively for helping the Tribal Defendants in conduct that is not unlawful by actors for tribal government but which would be unlawful by actors for state or federal government.
2. The Tribal Defendants, though free to do the acts they did for tribal government, became liable under 42 U.S.C. § 1983 or § 1985(3) or Bivens because they did those acts for tribal government with the participation of state or federal actors.
3. The United States and the State would have been constrained by the First, Fourth, Fifth, and Fourteenth Amendments from the challenged actions, though admittedly the Tribe is not so constrained, even though Plaintiffs had no property right cognizable in this court to a Sundance at or access to Camp Ana Mae or to the religious structures thereon.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Plaintiffs' final two claims are subsidiary to their free exercise claims, as they allege violations of Title VI and RFRA with respect to Plaintiffs' claimed rights to access, activities, and artifacts at Camp Ana Mae.
A. Bivens Claims Against Federal Defendants
"The basis of a Bivens action is some illegal or inappropriate conduct on the part of a federal official or agent that violates a clearly established constitutional right." Balser v. Department of Justice, Office of the United States Trustee, 327 F.3d 903, 909 (9th Cir. 2003); see also Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) ("Actions under § 1983 and those under Bivens are the same save for the replacement of a state actor under § 1983 by a federal actor under Bivens.").
1. First Amendment
As Plaintiffs' free exercise claim depends on an entitlement to practice one's religion on the property of another, it is clear that this claim must fail. See, e.g., Attakai, 746 F. Supp. 1395 (dismissing free exercise claim for injunction against construction on the Hopi Reservation alleged to interfere with Navajo plaintiffs' exercise of their religion). Plaintiffs' effort to distinguish Attakai and Lyng on the grounds that they "are not seeking to stop the Hopi Tribe or the United States from doing what it wants with its land" (doc. #76 at 10), does not succeed. A religious servitude is attempted whether the non-landowner seeks to limit the owner's use of the land to protect the non-landowner's religious practices or to make affirmative use of the land for the same religious purposes.
2. Fourth Amendment
Plaintiffs allege that Federal Defendants Sakeva and Sakiestewa violated their rights under the Fourth Amendment by participating in an unreasonable seizure. As to Defendant Sakeva, this claim must be dismissed because the Second Amended Complaint fails to allege that Sakeva played any role in the challenged arrests. See Kwai Fun Wong v. United States, 373 F.3d 952, 966-67 (9th Cir. 2004). With respect to Defendant Sakiestewa, the Complaint alleges that he physically placed Plaintiffs under arrest for trespass and transported them to the Tribal jail in Keams Canyon. (Second Am. Compl. ¶ 61.) Plaintiffs allege that they were arrested without probable cause "for merely being present at the Sundance ceremonial grounds, and for demonstrating their intent to participate in the ceremony." Id.
Although arrests without probable cause violate the Fourth Amendment, see Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) ("The Fourth Amendment right to be free from arrests without probable cause is clearly established."), the facts alleged in support of this claim merely describe the arrests and subsequent dismissal of the resulting charges. While Plaintiffs need not plead evidence, there are no facts alleged to show a lack of probable cause, only a bare conclusion. Accordingly, this claim fails to state a claim for a Fourth Amendment violation. 3. Fifth Amendment/Equal Protection
Plaintiffs argue, though they do not allege, that "the absence of a permit was irrelevant to Defendants." (Doc. # 80 at 7.) The fact that police lack probable cause for their actual grounds for arrest does not create § 1983 liability if they have probable cause for arrest on another ground on the facts known to them, even if the are not motivated by that other ground. Devenpeck v. Alford, 125 S.Ct. 588, 593 (2004).
Plaintiffs' Fifth Amendment/Equal Protection claim alleges intentional discrimination in violation of their religious freedoms. As such, it is merely an attempt to cast an equal protection overlay on their unmeritorious free exercise claim. Plaintiffs describe this claim as follows: "Plaintiffs specifically allege Defendants interfered with their Constitutional and statutory rights to freedom of religion. . . . because they [Plaintiffs] are Navajo." (Doc. # 76, p. 10.) This claim must therefore be dismissed along with the free exercise foundation upon which it rests.
B. Bivens and § 1983 Claims Against Tribal Defendants
Plaintiffs' Bivens and § 1983 claims against the Tribal Defendants allege the same underlying constitutional violations as alleged against the Federal Defendants. As discussed above, Plaintiffs have failed to allege a cognizable constitutional violation. Moreover, tribal officers enforcing tribal law cannot be held liable under Bivens. Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000). Accordingly, these claims will be dismissed.
C. Section 1983 Claims
To maintain a § 1983 action against individual defendants, a plaintiff must show: "(1) that the conduct complained of was committed by a person acting under the color of state law; and (2) that this conduct deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States." Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir. 1989). Plaintiffs' § 1983 claims allege violations of their free exercise and equal protection rights based primarily on the same conduct said to violate those constitutional rights in connection with their Bivens claims. Thus, although the County Defendants are state actors, the § 1983 claims must be dismissed because Plaintiffs have not alleged a deprivation of any federal constitutional or statutory right.
D. Supervisory Liability Claims
As Plaintiffs have not stated a claim for the underlying violations discussed above, their supervisory liability claims must also be dismissed.
E. Qualified Immunity
The foregoing discussion addresses first the substantive merit of Plaintiffs' claims as required by Saucier v. Katz, 533 U.S. 194, 200 (2001). The individual Defendants have also raised qualified immunity objections to the sufficiency of the Second Amended Complaint, as is their procedural right. Behrens v. Pelletier, 516 U.S. 299, 308 (1996). Even if Plaintiffs have alleged sufficient federal constitutional claims, the individual Defendants are entitled to qualified immunity unless the right was clearly established at the time of the events. Saucier, 533 U.S. at 201. Plaintiffs' have declined to meet the force of the Defendants' arguments for qualified immunity. That failure to cite any authority that Plaintiffs' claims were clearly established confirms the conclusion otherwise compelled by review of the Second Amended Complaint that Plaintiffs have "not allege violations of clearly established law." Kwai Fun Wong v. United States, 373 F.3d 952, 976 (9th Cir. 2004). All of Plaintiffs' constitutional claims against the individual defendants must be dismissed for this reason as well.
Plaintiffs mistakenly assert that "it is premature to determine qualified immunity at the pleadings stage, prior to an evidentiary record." (Doc. 76 at 16.) The judicial language that Plaintiffs quote urges government officials not to appeal denials of such motions; it does not absolve a district court from deciding such motions. Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004).
F. Section 1985(3) Claim
Section 1985(3) prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the laws. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000). Because Plaintiffs have failed to allege a violation of their rights to equal protection, their § 1985(3) claim fails to state a claim. See Giannini v. Real, 911 F.2d 354, 359 (9th Cir. 1990); see also Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979) ("Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violations of the rights it designates.").
G. Title VI Claim
Title VI provides that "[n]o person . . . shall, on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000(d). The protections of Title VI do not extend further than the Fourteenth Amendment. United States v. Fordice, 505 U.S. 717, 732 n. 7 (1992). In other words, Title VI "provides no greater protection than the Equal Protection Clause." Meyers v. Bd. of Educ. of the San Juan Sch. Dist, 905 F. Supp. 1544, 1573 (D. Utah 1995). Plaintiffs therefore cannot state a claim under Title VI based on allegations that do not state a claim for an equal protection violation.
H. RFRA Claim
Plaintiffs allege that Defendants conduct in interfering with the Sundance at Camp Ana Mae "substantially burdened Plaintiffs' free exercise of religion," in violation of RFRA. (Second Am. Compl. ¶ 138-40.) RFRA on its own does not provide a freestanding right to free exercise of religion on another's property. As Plaintiffs have not stated a claim for a violation of their free exercise rights, they have also failed to state a claim for a violation of RFRA. See Kwai Fun Wong, 373 F.3d at 977.
IT IS THEREFORE ORDERED that the Tribal Defendants' Motion to Dismiss for Failure to State a Claim Pursuant to Fed.R.Civ.P. 12(b)(6) (doc. #65) is granted.
IT IS FURTHER ORDERED that the Navajo County Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) (doc. #66) is granted.
IT IS FURTHER ORDERED that the Federal Defendants' Motion to Dismiss (doc. #67) is granted.
IT IS FURTHER ORDERED that, pursuant to this order and the court's order of March 31, 2005 (doc. #62), the clerk shall enter judgment dismissing this action and shall terminate this case.