Opinion
Case No. A99-414 CV (JWS)
December, 1999
I. MOTION PRESENTED
At docket 5, defendants United States Forest Service, et al. (collectively "Forest Service"), move to dismiss count I of the first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and move to dismiss count II pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies. Plaintiff Chugach Alaska Corporation ("Chugach") opposes the motion. Oral argument was heard on December 13, 1999.
II. BACKGROUND
This is a federal question action alleging violations of the National Historic Preservation Act, 16 U.S.C. § 470, et seq. ("NHPA"), its implementing regulations at 36 C.F.R. Part 800, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. ("APA").
Unless otherwise noted, the facts stated here are based on Chugach's First Amended Complaint, filed June 25, 1999, at docket 3.
Chugach is an Alaska Native Regional Corporation established pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601, et seq. ("ANCSA"). Under ANCSA, Chugach may apply to receive "fee title to existing cemetery sites and historical places" within the Chugach region. In 1975, pursuant to ANCSA, Chugach submitted an application to the Department of Interior, Bureau of Land Management ("BLM"), to have the abandoned native village site of Kiniklik conveyed to it as an historical place and cemetery site. Kiniklik was historically one of four major Native villages in Prince William Sound which is in the Chugach region. Although most of Kiniklik was public land which could be conveyed to Chugach pursuant to ANCSA, a part of Kiniklik was privately-owned by the Russian Greek Church, now known as the Orthodox Church in America ("Church"). On July 6, 1995, BLM rejected at least part of Chugach's application. BLM determined that the Church-owned lands could not be conveyed because these lands were not owned by the United States. However, BLM approved conveyance of the remainder of Kiniklik. The conveyance was effected on August 28, 1995. While BLM was still processing Chugach's application, Forest Service was in the process of negotiating a purchase of the Church-owned lands in Kiniklik. Forest Service finally bought the Church-owned land in 1997.
43 U.S.C. § 1613(h)(1); 43 C.F.R. Subpart 2653.
Chugach filed suit on May 19, 1999, and filed a First Amended Complaint on June 25, 1999. Chugach's first claim alleges that Forest Service violated NHPA because it failed to consult with a number of different officials prior to approving the use of federal funds to buy the Church-owned land in Kiniklik. Chugach's second claim alleges that Forest Service continues to violate NHPA by issuing special use permits which authorize tours of areas allegedly covered by NHPA Chugach's second claim discusses a special use permit that Forest Service issued to Alaska Wilderness Sailing Safaris ("AWSS") in 1993 that authorized tours of areas in Prince William Sound, including the Kiniklik village site. However, Chugach is not challenging Forest Service's action in issuing AWSS a special use permit. Instead, Chugach's second claim attacks what it perceives to be a general practice by Forest Service not to comply with NHPA when it issues special use permits. Chugach seeks to have the purchase of Church-owned land declared void as a violation of NHPA. Chugach also seeks to have the Church-owned land that Forest Service bought conveyed to it. Chugach also seeks an order compelling Forest Service to comply with NHPA when it issues special use permits. Other facts are noted below.
First Amended Complaint, filed June 25, 1999, docket 3, ¶¶ 11-39, at 3-10.
Id., ¶¶ 40-55, at 10-13.
Chugach's First Amended Complaint alleges that the special use permit was issued in 1995. See First Amended Complaint, filed June 25, 1999, docket 3, ¶ 42 at 10. Forest Service submits exhibits establishing that the special use permit was first issued in 1993 and thereafter renewed. See Forest Service's Motion, docket 5, exhibits D, E, and F. For purposes of this order, the specific date is not material. The court notes this clarification solely for accuracy's sake.
III. STANDARD OF REVIEW A. Standard of Review for Rule 12(b)(1) Motion
A Rule 12(b)(1) motion may raise a facial or factual challenge to the court's subject matter jurisdiction. A facial challenge is directed at the legal sufficiency of a claim. The burden of proof is on the party asserting jurisdiction. When assessing a Rule 12(b)(1) facial challenge to the court's subject matter jurisdiction, the nonmoving party receives the same protections as those under a Rule 12(b)(6) motion, and the court applies a standard comparable to that used for Rule 12(b)(6) motions. The court "will accept the [nonmoving party's] allegations as true, construing them most favorably to the [nonmoving party], and will not look beyond the face of the complaint to determine jurisdiction." The court will not dismiss a claim under 12(b)(1) unless it appears without any merit.
2 James W. Moore, Moore's Federal Practice, § 12.30[4] at 12-38 (3d. ed. 1997) ("Moore").
Id.
5A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 1350, at 226 (2d ed. 1990) ("Wright").
Moore, supra, § 12.30[4] at 12-38 n. 12.
Moore, § 12.30[4] at 12-38-12-39.
Moore, § 12.30[4] at 12-38 n. 12.
B. Standard of Review for Rule 12(b)(6) Motion
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim should only be dismissed if "it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief." A dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." In reviewing a Rule 12(b)(6) motion to dismiss, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party." The court is not required to accept every conclusion asserted in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff."IV. DISCUSSION A. Whether Chugach's First Claim Must be Dismissed
NHPA's core requirements are set forth in Section 106, codified at 16 U.S.C. § 470f. Section 470f provides:The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.
In enacting NHPA, Congress established the Advisory Council on Historic Preservation, ("Council") and authorized it to promulgate regulations to implement Section 470f. The Council promulgated regulations pursuant to this grant of authority. Chugach alleges that the Forest Service's purchase of Church-owned lands in Kiniklik is a federal undertaking for purposes of NHPA. Forest Service argues that the acquisition of land is not a "federal undertaking" that triggers NHPA's notice and comment requirements. Congress amended NHPA in 1992. The 1992 amendment defines "undertaking" as: [A] project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including —
16 U.S.C. § 470i.
Public Law 102-575, Title XL, 106 Stat. 4600, 4753-4765.
(A) those carried out by or on behalf of the agency;
(B) those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and
(D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.
Public Law 102-575, Title XL, 106 Stat. 4600, 4763-64, § 4019(a)(7) (codified at 16 U.S.C. § 470w(7)). The Council did not amend its regulations to track this same definition until 1999. See 36 C.F.R. § 800.2(y) (1999). Between 1992 and 1999, the Council actually proposed three different sets of amended regulations. See 64 Fed. Reg. 27044, 27044-27046 (May 18, 1999) (discussing background history of the amendment process). Each proposed set elicited a number of concerns from competing interests. Id. The delay between NHPA's amendment in 1992 and promulgation of a corresponding final set of new regulations in 1999 appears to have been primarily the result of the competing and conflicting views which the Council received in response to each set of new proposed regulations. Id. (for discussion).
In Yerger v. Robertson, the Ninth Circuit held that Forest Service's refusal to renew a special use permit for operation of a resort in a national forest did not implicate NHPA because the "assumption of title or control over an eligible site is not a `federal undertaking' for purposes of [the Act]." The court observed that "the mere exercise of ownership rights does not affect the historic character of the site, even when the assumption of control is clearly preparatory to action that will affect the site's historical aspects." Forest Service correctly notes that other courts have reached the same result.
981 F.2d 460 (9th Cir. 1992).
Id. at 465.
Id. (citations omitted).
See United States v. 162.20 Acres of Land, 639 F.2d 299, 304 (5th Cir.) (filing takings declaration by which title vests in government does not implicate NHPA), cert. denied, 454 U.S. 828, (1981); Paulina Lake Historic Cabin Owners Assn. v. United States Dep't of Agric., 577 F. Supp. 1188, 1193 (D. Ore. 1983) (asserting ownership over structures is not a "federal undertaking" for purposes of NHPA); United States v. Three Tracts of Land, 415 F. Supp. 586, 588 (E.D.Tenn. 1976) (federal agency may acquire property through condemnation without implicating NHPA).
Chugach argues all of the cases cited by Forest Service antedate 1992 amendments to NHPA which mandate a different analysis. The definition of "undertaking" which was added in 1992 was simply one small part of a broader enactment to update and overhaul NHPA. Before the 1992 amendment, "undertaking" was defined in Section 470w(7) as "any action as described in section 470f of this title." Neither Section 470f nor Section 470w(7) provided any other insight into the meaning of "undertaking." Although Congress "clarified" what an "undertaking" meant by adding a definition, there is no indication that Congress intended to "broaden" the scope of federal activities that constituted an undertaking, or that Congress intended to overrule existing case law that interpreted and applied the term "undertaking."
Pub. Law 102-575, 106 Stat 4600, 4753-4765 (1992).
16 U.S.C. § 470w(7) (superseded) (quoted in North Oakland Voters Alliance v. City of Oakland, 1992 WL 367096 (N.D.Cal. 1992)).
Congress simply declared that the 1992 amendments to NHPA were intended to "clarify, strengthen and streamline numerous provisions [of NHPA] to help facilitate the preservation of historic resources." See H.R. Rep. 102-1016 at 192 (1992) reprinted in 1992 U.S.C.C.A.N. 4041, 4051.
Chugach contends that there is a difference between the old regulation and the 1992 NHPA amendments which supports its argument. The old regulation defined an activity as an undertaking if it had the potential to change the use or character of historic properties. The definition of "undertaking" added by the 1992 amendments does not require that an activity have the potential of changing the use or character of historic properties in order for the activity to be an "undertaking." Based solely on this difference, Chugach argues that the 1992 amendments broadened the scope of NHPA. However, this argument is not persuasive. The agency's interpretation of the governing statute and the agency's regulatory scheme are entitled to deference. The old regulatory definition of "undertaking" as previously discussed is not manifestly contrary to the 1992 amendments, and does not frustrate Congressional intent or NHPA's goals. Furthermore, the new regulations adopt the 1992 amendment's definition of "undertaking," but specify that even if an activity is an "undertaking" for purposes of NHPA, no action is required if the undertaking" does not have the potential to cause effects on historic properties." The difference between the old regulatory definition of "undertaking" and the 1992 amendment's definition of "undertaking" is not significant enough to infer a Congressional intent to overrule existing case law.
36 C.F.R. § 800.2(o) (1997) (superseded 1999).
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782 (1984) (agency's interpretation of statutory scheme it administers is entitled to deference).
See, e.g., McMillan Park Committee v. National Capital Planning Commission, 968 F.2d 1283, 1287-88 (D.C. Cir. 1992) (applying Chevron analysis and holding that the Council's regulations implementing NHPA are entitled to substantial deference).
Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir. 1999) (under step two of Chevron analysis, administrative regulation valid unless it is arbitrary or capricious or manifestly contrary to the statute); ONRC Action v. Bureau of Land Management, 150 F.3d 1132, 1139 (9th Cir. 1998) (agency interpretation of statute is entitled to considerable weight and will be upheld if it is reasonable and does not conflict with the statute's clear language).
Chugach contends that there are cases holding that in certain circumstances federal acquisition of land may constitute an "undertaking" for purposes of NHPA. In Muckleshoot Indian Tribe v. United States Forest Service, the Ninth Circuit recently held that Forest Service's transfer of federal land to a private owner in exchange for other land violated certain aspects of NHPA. The land that was transferred was part of the Muckleshoot Tribe's ancestral land and eligible for inclusion in the National Register. The court held that the transfer of land for purposes of logging, which would render the land ineligible for listing as historic property, constituted an "undertaking" for purposes of NHPA. The court also held that Forest Service had not adequately sought to mitigate the adverse effect caused by transferring the land to a private owner. Forest Service distinguishes Muckleshoot on the grounds that it involves a land transfer, and not a land acquisition. However, another reading of Muckleshoot which this court is more inclined to accept is that the Ninth Circuit held that the transfer was an "undertaking" because the transfer was for the purposes of logging which would alter the character and use of the property and render it ineligible for listing as historic property.
177 F.3d 800 (9th Cir. 1999).
Id. at 808.
Id. at 808-09.
This court need not decide whether Forest Service's acquisition/transfer distinction is a controlling distinction. However, it merits observation that the regulations list certain activities that may have an adverse effect on historic properties. See 36 C.F.R. § 800.5(a)(2). One example specifies that transfer of land out of federal control may constitute an adverse effect. See 36 C.F.R. § 800.5(a)(2) vii). No example lists federal acquisition of land as constituting an adverse effect. However, the regulations specify that examples of adverse effect are not limited to those set forth in the regulation. See 36 C.F.R. § 800.5 (a)(2). Furthermore, although no example specifies that acquisition of land may constitute an adverse effect, several examples touch upon considerations at issue or potentially at issue when property is acquired. For example, destruction or damage to a part of property may constitute an adverse effect. See 36 C.F.R. § 800.5(a)(2)(I). Changing the character of a property's use may have an adverse effect. See 36 C.F.R. § 800.5(a)(2)(iv). Introducing "visual, atmospheric or audible elements that diminish the integrity of the property's significant historic features" may have an adverse effect. See 36 C.F.R. § 800.5(a)(2)(v). Acquiring property could conceivably implicate some of the concerns embraced by these examples depending upon the specific facts and allegations of a particular case.
Chugach also argues that North Oakland Voters Alliance v. City of Oakland establishes that acquisition of property may constitute an "undertaking" which implicates NHPA. In North Oakland, the District Court for the Northern District of California held that the City's purchase of historic property constituted an "undertaking" for purposes of NHPA because it involved the use of federal funds and the City's "plans for the property involve renovation and/or demolition." However, North Oakland-an unpublished District Court opinion-seems questionable in light of Yerger, where the Ninth Circuit held, "the mere exercise of ownership rights does not affect the historic character of the site, even when the assumption of control is clearly preparatory to action that will affect the site's historical aspects." Furthermore, North Oakland is distinguishable because the acquisition was an integral part of an existing program or plan which would have directly affected the character or use of historic property. Here, there is no existing plan or program to demolish or renovate property which is being acquired.
1992 WL 367096 (N.D.Cal. 1992).
1992 WL 367096 at *6.
Yerger, supra, 981 F.2d at 465 (citations omitted).
Turning to the facts of this case, Chugach's First Amended Complaint alleges that "[t]he purchase of the Church-owned portions of the Kiniklik village site, bringing them into the public domain, was a federal undertaking under Section 106 of the NHPA [ 16 U.S.C. § 470f]." The "undertaking" is defined as the purchase of the Church-owned land. The First Amended Complaint alleges that Forest Service violated NHPA by failing to assess the undertaking's effect on historic properties "prior to approving the expenditure of federal funds on the undertaking." The emphasis is on an act or omission occurring prior to any federal funds being expended. The First Amended Complaint further elaborates that Forest Service violated NHPA by not consulting with various officials "prior to approving the expenditure of federal funds on the undertaking." Finally, the First Amended Complaint alleges that Forest Service violated NHPA by failing to confer with Chugach during the acquisition process. Nowhere does the First Amended Complaint allege that the purchase of the Church-owned land actually affected or might affect the character or use of the property. Nowhere does the First Amended Complaint allege that the undertaking (the purchase of Church-owned land) was part of some attendant program that would change the character or use of the property or adversely affect the property in any respect. All allegations define "undertaking" solely in the context of the acquisition by purchase. All allegations are premised on NHPA violations occurring prior to the expenditure of federal funds. Unlike the complaint in North Oakland, upon which Chugach relies, Chugach's First Amended Complaint does not allege that the acquisition of property is part of some development program which will necessarily affect the character or use of the land.
First Amended Complaint, filed June 25, 1999, docket 3, ¶ 31 at 8.
Id., ¶¶ 32 and 34 at 8.
Id., ¶ 33 at 8; ¶ 35 at 9.
Id., ¶¶ 36-37 at 9.
Chugach argues that read fairly and drawing all inferences in its favor as the nonmoving party, its First Amended Complaint alleges that the purchase will affect the character and use of Kiniklik. Chugach emphasizes that before Forest Service purchased the Church-owned land, it was privately owned by the Church and managed by Chugach. Public access was denied. After the purchase, the land was opened to members of the public for tours through Forest Service's permit process. From these circumstances, Chugach contends the court may infer that its claims allege that the purchase will affect the character or use of the property in question. However, as discussed below in the next section, Chugach is not challenging any actual decision to issue a special use permit. Instead, Chugach challenges what it perceives to be a general practice on Forest Service's part not to comply with NHPA when it issues permits. The inference that Chugach asks this court to draw is not based on any actual Forest Service decision, but on decisions which Forest Service may make at some point in the future. This inference is too speculative.
This court is mindful of its responsibility to assume "[a]ll allegations of material fact in the complaint . . . as true and . . . [construe them] in the light most favorable to the nonmoving party." However, the court cannot read into Chugach's First Amended Complaint allegations that conflict with allegations specifically alleged, and the court cannot rewrite Chugach's First Amended Complaint to excise the allegations specifically alleged. Chugach has not sought leave to file a Second Amended Complaint. Consistent with Yerger and other authorities noted above, this court holds that the sole act of acquiring property is not an "undertaking" for purposes of NHPA. It follows that Chugach's first claim must be dismissed.
Vignolo, 120 F.3d at 1077.
B. Whether Chugach's Second Claim Should be Dismissed
Chugach acknowledges that its second claim "seeks declaratory and prospective relief . . . requiring the agency to comply with NHPA in issuing future permits in the Chugach region." Citing Lujan v. National Wildlife Federation, Forest Service argues that Chugach's second claim must be dismissed because there has been no "final agency action" under APA.
Chugach's Opposition, docket 7 at 19.
497 U.S. 871, 110 S.Ct. 3177 (1990).
Forest Service's Reply, docket 9 at 10-11.
Chugach's NHPA claims are conditioned on a violation of APA. To establish statutory standing under APA, Chugach must establish that some identifiable "agency action" has occurred, and that the agency action has caused Chugach to suffer a legal wrong or otherwise adversely affected it "within the meaning of a relevant statute." Failure to act constitutes an identifiable agency action. When, as here, "review is sought under the general review provisions of APA the agency action must be `final agency action.'" An agency's characterization of its decision is not determinative. Rather, courts must pragmatically assess the agency's decision in light of several circumstances. Relevant factors in determining whether an agency action is final include: (1) whether the agency's decision is a definitive statement of the agency's position; (2) whether the agency's decision has a direct and immediate effect on the complaining party's day-to-day affairs; (3) whether the decision has the status of law; (4) whether immediate compliance with the decision is expected; and (5) whether decision implicates legal questions susceptible to review.
First Amended Complaint, filed June 25, 1999, ¶ 12 at 3; ¶ 39 at 9-10; ¶ 41 at 10; ¶ 55 at 13; Prayer for Relief ¶¶ 6 at 14.
Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 668 (9th Cir. 1998) (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 3185-86 (1990)).
See 5 U.S.C. § 551 (13) (agency action defined as including failure to act); 5 U.S.C. § 706(1) (court empowered to compel agency to act where it has unlawfully withheld or unreasonably delayed action).
Northcoast Envtl. Ctr., 136 F.3d at 668 (citing National Wildlife Federation and 5 U.S.C. § 704).
See Carter/Mondale Presidential Comm., Inc. v. Federal Election Comm'n, 711 F.2d 279, 288 (D.C. Cir. 1983).
See FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 493 (1980).
Mt. Adams Veneer Co. v. United States, 896 F.2d 339, 343 (9th Cir. 1989) (citing FTC v. Standard Oil Co., 449 U.S. 232, 239-40, 101 S.Ct. 488, 493 (1980)).
In National Wildlife Federation, environmental groups alleged that the Department of Interior was failing to comply with the federal law concerning a number of different actions that related to the review and modification of public land withdrawals. The Court held such a diffuse challenge failed because it did not target a final agency action. The Court noted:
National Wildlife Federation, 497 U.S. at 890-93, 110 S.Ct. at 3189-91.
Respondent alleges that violation of the law is rampant within this program-failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm.
National Wildlife Federation, 497 U.S. at 891, 110 S.Ct. at 3190.
The Court emphasized that "the flaws in the entire `program-consisting principally of the many individual actions referenced in the complaint, and presumably actions yet to be taken as well-cannot be laid before the courts for wholesale correction under the APA. . . ."
National Wildlife Federation, 497 U.S. at 893, 110 S.Ct. at 3191.
Here, as Chugach concedes, its second claim is not challenging issuance of the special use permit to AWSS. Instead, its second claim "seeks declaratory and prospective relief . . . requiring the agency to comply with NHPA in issuing future permits in the Chugach region." This is precisely the type of generalized complaint not susceptible to judicial review which the Court discusses in National Wildlife Federation. Forest Service is correct that no final agency action has occurred. Accordingly, Chugach's second claim must be dismissed because it lacks statutory standing under APA to prosecute its second claim as a violation of NHPA.
Chugach's Opposition, docket 7 at 19.
V. CONCLUSION
For the foregoing reasons, Forest Service's motion at docket 5 is GRANTED.