Calif. Judge Correctly Nixed Tribal Remains Suit, 9thCirc. Told
Calif. Judge Correctly Nixed Tribal Remains Suit, 9th Circ. Told
By Caleb Symons
Law360 (December 16, 2022, 6:32 PM EST) -- The U.S. government says a California federal judge acted properly in dismissing with prejudice a lawsuit over the alleged disinterment of Jamul Indian Village ancestors, telling the Ninth Circuit that tribal descendants presented a number of confusing and legally flawed allegations.
Chief U.S. District Judge Kimberly J. Mueller pointed to those issues in tossing the disinterment case, for a third time, this past June — a decision that prompted the Jamul descendants to petition the Ninth Circuit for help reviving their claims.
In a response brief filed Wednesday, the U.S. Department of the Interior urged the appeals court to uphold Judge Mueller's ruling, blasting the lawsuit as "confusingly cobbled together" and lacking any factual allegations against the government.
The department, which the plaintiffs say owned a San Diego-area site where their ancestors were buried prior to the construction of a tribal casino, argue that allegations under the Federal Tort Claims Act and the Administrative Procedure Act were wrongly combined. Those statutes offer different forms of relief, the Interior Department noted, adding that the suit provides "no explanation of the duties, if any, that these laws impose on any defendant or how any defendant's specific conduct allegedly violated them."
The Jamul descendants, who say their relatives' remains were dug up, along with Indigenous funerary objects, to make way for the casino, have sought to cast their allegations as "short and plain" on appeal, urging the Ninth Circuit to reverse Judge Mueller's dismissal.
In their Oct. 10 opening brief, the plaintiffs said the U.S. Supreme Court's decision in the 1971 case Bivens v. Six Unknown Named Agents authorizes them to sue the Interior Department and its top officials for exceeding their statutory power. Those violations, the group says, entitle them to $8 million in damages.
Federal authorities shot back on Wednesday, however, that the appellate brief "does nothing to clear up [their] confusion," since the Jamul descendants didn't even mention Bivens in their lawsuit.
Three other claims for relief are similarly flawed, the Interior Department said, including one it accuses of "shoehorning two very different theories into a single" allegation. Indeed, the plaintiffs' latest version of the suit did nothing to resolve issues that Judge Mueller identified previously, according to the DOI, which quoted her earlier opinion in saying the complaint is "anything but 'simple, concise, and direct.'"
"Rather, as the district court found, the second amended complaint is 'impenetrable,' even after multiple opportunities to amend," it said.
Judge Mueller, in dismissing the case for good, said the Jamul descendants hadn't clearly stated their claims for relief despite shortening their complaint to 17 pages. Nor did the suit indicate whether the plaintiffs — led by Walter Rosales — meant to sue the defendants in their official or personal capacities, according to the judge.
"A less drastic remedy than dismissal with prejudice would not suffice," she said, calling it "an
injustice if this action were to continue."
Rosales and the late Karen Toggery filed their initial lawsuit in May 2015 against the Bureau of Indian Affairs, Jamul Indian Village council members and companies involved in planning the San Diego-area casino — then a $360 million development proposal.
Judge Mueller tossed the case two years later, however, after slamming the descendants' lawsuit, which asserted just two claims despite exceeding 400 pages, with exhibits, as "caustic and argumentative" and saying it breached procedural rules.
Rosales and Toggery brought their case again in March 2020, limiting the named defendants to the Interior Department and three federal officials in a bid to get the suit considered on the merits, their lawyer told Law360 at the time. But Judge Mueller dismissed the complaint anyway, saying it presented the same confusing claims as the first version.
"Many of its paragraphs contain legal arguments and lengthy quotations rather than allegations," she said at the time. "It is difficult to understand which arguments support what legal claims against whom and why."
A lawyer for the Jamul descendants did not respond immediately Friday to a request for comment. The plaintiffs are represented by Patrick D. Webb of Webb & Carey APC.
The case is Walter Rosales et al. v. the U.S. Department of the Interior et al., case number 22-16196, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Jay Jackson Jr.
Original article located on the website: https://www.law360.com/articles/1559159/calif-judge-correctly-nixed-tribal-remains-suit-9th-circ-told
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