kawaiisu tribe of tejon v department of interior second amended complaint 4-18-2011

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PLAINTIFFS’ SECOND AMENDED COMPLAINT

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Evan W. Granowitz (Cal. Bar No. 234031) WOLF GROUP L.A. 11400 W Olympic Blvd Ste 200 Los Angeles, CA 90064 Telephone: (310) 460-3528 Facsimile: (310) 457-9087 Email: [email protected] Christopher K. King (Ariz. Bar No. 026966) THE KING LAW FIRM 620 F. St NE, #3 Washington, DC 20002 Telephone: 843-343-6013 David R. Mugridge (Cal Bar No. 123389) LAW OFFICES OF DAVID R. MUGRIDGE 2100 Tulare St., Suite 505 Fresno, California 93721-2111 559-264-2688 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

KAWAIISU TRIBE OF TEJON, and DAVID LAUGHING HORSE ROBINSON, Chairman, Kawaiisu Tribe of Tejon, Plaintiffs,

vs.

KEN SALAZAR, in his official capacity as Secretary of the United States Department of Interior; TEJON RANCH CORPORATION, a Delaware corporation; TEJON MOUNTAIN VILLAGE, LLC, a Delaware company; COUNTY OF KERN, CALIFORNIA; and DOES 1 through 100, inclusive,

Defendants, TEJON RANCH CORPORATION, a Delaware corporation; TEJON MOUNTAIN VILLAGE, LLC, a Delaware company, Real Parties in Interest. .

Case No.: 1:09-cv-01977 OWW SMS PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR:

(1) UNLAWFUL POSSESSION;

(2) NAGPRA;

(3) CIVIL RIGHTS;

(4) CEQA, and;

(5) DECLARATORY JUDGMENT DEMAND FOR JURY TRIAL

Case 1:09-cv-01977-OWW-SMS Document 133 Filed 04/18/11 of 25

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Plaintiffs, KAWAIISU TRIBE OF TEJON (“Tribe”) and DAVID LAUGHING HORSE

ROBINSON (“Robinson”) allege as follows:

INTRODUCTION

1. This action concerns the development of certain real property in Kern County,

California, that was obtained in contravention to treaties, Executive Orders, and other Acts of

Congress. The original Complaint in this action was filed on November 10, 2009, by Plaintiff

David Laughing Horse Robinson pro se, on behalf of himself, as chairman of his Tribe, and on

behalf of his tribal members (Docket #1). Plaintiffs subsequently retained counsel and filed their

first amended complaint (FAC) on August 15, 2010. (Doc # 70).

2. On April 1, 2011, the Court entered an order granting the various Defendants’

motions to dismiss Plaintiffs FAC. In its memorandum decision, the Court granted Plaintiffs

leave to amend in order to assert any land claims based upon aboriginal title or under common

law and to re-allege certain claims, but not others.

PARTIES

3. Plaintiff THE KAWAIISU TRIBE OF TEJON (hereinafter “Tribe”) is an Indian

tribe which has resided in the State of California since time immemorial. The Tribe is recognized

by the State of California and its members are located in Kern County, California. The Tribe

descends from signatories to of the 1849 Treaty with the Utah and the “Utah tribe of Indians”

that was recognized by the government of the United States in that treaty. In addition, the Tribe

descends from those Indians for whom the 1853 Tejon/Sebastian Reservation was created. The

members of the Tribe are not now, nor have they ever been “Mission Indians.”

4. Plaintiff DAVID LAUGHING HORSE ROBINSON (“Robinson”), is the

Chairman of THE KAWAIISU TRIBE OF TEJON.

5. The Tribe is not currently on the list of federally recognized tribes maintained by

the Bureau of Indian Affairs pursuant to 25 C.F.R. §83 et seq. However, the Tribe is a Federally

recognized tribe by virtue of descending from signatories to -the 1849 Treaty with the Utah and

the “Utah tribe of Indians,” although the Federal Government has failed to treat it as such.


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6. The United States has been asked to intervene and file suit against Defendants

Tejon Mountain Village, Tejon Ranch Corporation and the County of Kern asserting claims

identical to that described here in this complaint, but has not done so.

7. Defendant COUNTY OF KERN, CALIFORNIA (“County”), is the Lead Agency

for the Tejon Mountain Village Project (State Clearing House Project #2005101018).

8. Defendant TEJON MOUNTAIN VILLAGE, LLC (“TMV”), is a Delaware

limited liability company, with its principal place of business in the County of Kern, California.

TMV is a privately held corporation seeking to develop real property in Kern County, California.

Plaintiffs are informed and believe and thereon allege that TMV is in possession of, asserts an

interest in, or claims record title to certain lands in Kern County, California, which are a portion

of the reservation and aboriginal lands of the Tribe, as appears more fully elsewhere in this

complaint. TMV’s position is adverse to the Tribe.

9. Defendant TEJON RANCH CORPORATION (“TRC”), is a Delaware

corporation with its principal place of business in Kern County, California. Plaintiffs are

informed and believe and thereon allege that TRC is the parent corporation of TMV. Plaintiffs

are informed and believe and thereon allege that TMV is in possession of, asserts an interest in,

or claims record title to certain lands in Kern County, California, which are a portion of the

reservation, and aboriginal lands of the Tribe, as appears more fully elsewhere in this complaint.

TRC’s position is adverse to the Tribe.

10. The true names and capacities, whether individual, partner, associate, corporate or

otherwise, of the Defendants identified as DOES 1 through 100, inclusive, are unknown to

Plaintiffs who therefore sue them by such fictitious names. Plaintiffs are informed and believe,

and on that basis allege that each of the Defendants sued herein as a DOE Defendant was, and is,

in some manner legally responsible for the events herein described. Plaintiffs will seek leave of

Court to amend this Complaint if, and at such time as their true names and capacities are

ascertained.

11. Plaintiffs are informed and believe, and on that basis allege that at all times herein

mentioned, Defendants, and each of them, were the agents, employees, servants, and


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representatives of each of the remaining Defendants, and in doing or failing to do the acts herein

alleged, were acting in the course and scope of their authority as agents, employees, servants and

representatives, and acted or failed to act, with the permission, consent and ratification of each of

the remaining Defendants.

JURISDICTION AND VENUE

12. Venue properly lies in the Eastern District of California because a substantial part

of the events which give rise to Plaintiffs’ claims occurred within the district. The real property

at issue is located in Kern County, California, and thus similarly lies within the district. 28

U.S.C. §1391 (b)(2).

13. Jurisdiction over this action is conferred by 28 U.S.C. §§ 1331, 1337, 5 U.S.C. §

702, 25 U.S.C. § 3013, and the All Writs Act, 28 U.S.C. § 1651. The amount in controversy

exceeds $100,000 exclusive of interest and costs.

14. Plaintiffs’ claims for relief arise under, inter alia, the federal restriction against

the extinguishment of title to the land of Indian tribes or of the right of occupancy of said Indian

tribes, except by action of the United States, under Article 1, Section 8 of the Constitution of the

United States, the Indian Non-Intercourse Act, 25 U.S.C. § 177, and under common law.

15. Because there is a sufficient nexus between Plaintiffs’ state law claims and the

federal questions at issue, this Court may exercise its supplemental jurisdiction. 25 U.S.C.

§1367.

BACKGROUND

A. THE KAWAIISU PEOPLE AND THEIR LANDS

16. The KAWAIISU TRIBE OF TEJON is one of the ancient Great Basin Shoshone

Paiute tribes whose pre-European territory extended from Utah to the Pacific Ocean. They have

inhabited this area from time immemorial. At various times throughout history, the Kawaiisu

People have been called any one or more the following names: Nochi, Cobaji, Cobajais, Covaji,

Kahwissah, Kawiasuh, Kawishm, Kowasah, Kubakhye, Newooah, Noches Colteches,

Tahichapahanna, Tahichp.


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17. Documentation of the Tribe’s presence in this area dates back to the Spanish

colonial period and is recorded in Father Garces Diseno Maps of 1777 (Ex.1). The maps note the

presence of the Tribe using several of its designations including: Cobaji, Cobajaef, Quabajai,

Nochi, and Nochis.

18. Before California was admitted to the Union, the Tribe’s ancestors were

signatories to the Treaty Between the United States of America and the Utah Indians, which is

known as the Treaty with the Utahs (“Treaty”), signed on December 30, 1849, and ratified by the

Senate on September 9, 1850. 9 Stat. 984.

19. The initial paragraph of the Treaty states that it is made between United States of

America through its agent and, among others, Acaguate nochi, Cobaxanor, Nochichigue and

Panachi, the “principal and subordinate chiefs, representing the Utah tribe of Indians.”

20. The Tribe and its members are descendents of, among others, Acaguate nochi,

Cobaxanor, Nochichigue and Panachi, signatories to the Treaty with the Utahs. “Nochi” in

Kawaiisu means “badger.” “Tejon” in Spanish means “badger.” “Cobaji” in Kawaiisu means

“people with body hair.” As translated into English, Acaguate nochi is the signor from Twin

Oaks/Sand Canyon Badgers, Cobaxanor is the signor from the people with body hair near Cantil,

Nochichigue means the badger with white birds tail and Panachi means water badger.

21. Article 1 of the Treaty also recognized the “Utah tribe of Indians,” which

Plaintiffs are informed and believe was actually a federation of Indian tribes.

22. Article 2 of the Treaty states, inter alia, that “all cases of aggression against said

Utah shall be referred to the aforesaid government for adjustment and settlement.”

23. Article 4 of the Treaty states in relevant part: “The contracting parties agree that

the laws now in force, and such other laws as may be passed, regulating the trade and

intercourse, and for the preservation of peace with the various tribes of Indians under the

protection and guardianship of the government of the United States, shall be as binding and

obligatory upon said Utahs as if said laws had been enacted for their sole benefit and protection.”

24. In force at the time was the Indian Non-Intercourse Act (“NIA”), which provided

that “no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto,


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from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the

same be made by treaty or convention entered into pursuant to the Constitution.” 25 U.S.C. 177.

25. On June 10, 1851, the headmen of the Tribe signed another treaty at Camp

Persifer F. Smith at the Texan (Tejon) Pass with U.S. Commissioner George W. Barbour. In this

treaty, known as Treaty D, the Tribe agreed to cede large portions of its land in return for a

defined reservation along with other goods and supplies for subsistence. Schedule of Indian Land

Cessions, Eighteenth Annual Report of the Bureau of American Ethnology to the Secretary of the

Smithsonian Institution 1896-1897, 56th CONG, 1ST SESS. HOUSE DOCUMENT 736 at 782-783

(1899); (Ex. 2). While at all times the Tribe relied upon this treaty as if it were in force, the

Senate secretly neglected to ratify this treaty so that these lands could be open for exploitation,

un-encumbered by claims of Indian title, for the hordes of settlers moving west for the gold-rush.

See Claims of California Indians, HEARINGS BEFORE THE COMMITTEE ON INDIAN AFFAIRS,

HOUSE OF REPRESENTATIVES, 70TH CONG., 1ST SESS. ON H.R. 491 at 5-6, 18 (March 8 & 15, 1928).

There was no notice of Treaty D’s non-ratification until January 18, 1905.

26. On March 3, 1853, Congress passed an Act authorizing the President to create

“five military reservations for the protection of Indians” in the State of California. 10 Stat 226,

238.

27. On September 30, 1853, California Indian Superintendent Edward F. Beale

communicated to Commissioner of Indian Affairs, George W. Manypenny, that he had

established a reservation at Tejon Pass for the Tejon Indians pursuant to the Act of March 3,

1853. Beale to Manypenny, September 30, 1853, in Senate Executive Documents, 33 Cong., 1st

Sess., 1, part 1, 469-474; see also REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, 1853, 469-

72; 56th CONG, 1ST SESS. HOUSE DOC NO. 736: EIGHTEENTH ANNUAL REPORT OF THE BUREAU OF

AMERICAN ETHNOLOGY TO THE SECRETARY OF THE SMITHSONIAN INSTITUTION, 1896-1897:

Indian Land Cessions in the United States at 788-789. This 75,000 acre area was surveyed and

its metes and bounds were recorded. (Ex. 3). Congress would later reduce the size of and make

specific appropriations for the newly established reservations in California with the Act of March

3, 1855. However, these ordered reductions were never surveyed. 10 Stat. 686, 699, see also 56th


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CONG, 1ST SESS. HOUSE DOCUMENT 736 at 788-789. The establishment of the Tejon Reservation

was noted in the Congressional Globe on October 19, 1857. (Ex. 4). The Tejon/Sebastian

Reservation would be re-surveyed at 49,928 acres in 1858. (Ex. 5). The presence of the

reservation was known and acknowledged in 1877. (Ex.6).

28. Plaintiffs are informed and believe and thereon allege that in or about 1856, ex-

superintendent Beale and others drew up patents under old Spanish land grants for the

approximately 270,000 acres that now comprises Tejon Ranch, all of which was within the

Tribe’s aboriginal land, including most or all of the land covered by the original Tejon/Sebastian

Reservation. Some of the Indians located on the Tejon/Sebastian Reservation were then forcibly

removed to the Tule Reservation. 56th CONG. 1ST SESS. HOUSE DOC. No. 736 at 788, 789.

Plaintiffs are informed and believe and thereon allege that title to the herein described lands

eventually passed to Defendants TRC and/or TMV. To the extent that any title descending from

Beale’s self appointed patents has deprived the Tribe of lands, which the Tribe historically

occupied or lands reserved pursuant to the 1853 executive order, such deprivation was not

approved by any action of either the United States or Congress and was therefore unlawful under

the NIA. Only Congress can terminate a reservation or diminish its boundaries for “once a block

of land is set aside for an Indian reservation . . . no matter what happens to the title of the

individual plots, the entire block retains its reservation status until Congress explicitly indicates

otherwise.” Solem v. Bartlett 465 U.S. 463, 470 (1984).

29. Plaintiffs are informed and believe and thereon allege that no acts of termination

with respect to the 1853 reservation as established by Beale have ever been affirmed, nor has

there been an act of termination identifying the Tribe by any of its names.1

30. On June 15, 1880, Congress authorized the issuance of allotments for lands in an

agreement with the Utes of Colorado. 21 Stat. 199. Under this Act’s authority, in 1893, 70

allotments were issued to predecessors of the Tribe. Plaintiffs are informed and believe and

thereon allege that many of these allotments may have been sold off over the years without

1 Cobajais, Cobaji, Covaji, Kah-wisf-sah, Kawaiisu, Ka-wit-a-suh, Kawishm, Kow-a’-sah, Kubakhye, Newoor-ah, Noches Colteches, Ta-hi-cha-pa-han-na, and Ta-hichpt. (See Ex. 8)


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proper authorization from the United States. Absent specific language indicating intent to

abolish a reservation, the issuance of allotments pursuant to various allotment acts is consistent

with continued reservation status. Mattz v. Arnett 412 U.S. 481, 497 (1973), See also Bueginig v.

Hoopa Valley Tribe 266 F.3d 1201, 1220-1222 (9th. Cir. 2001) (finding that the federal

government retained jurisdiction to protect the cultural and natural resources of the reservation

despite the fact that land owned by non-Indians as a result of the allotment policy would be

affected by such regulation).

31. Between 1915 and 1945, multiple communications between California Indian

agents and Washington, D.C., detail the presence of the Tribe on the Tejon Reservation and the

importance of provisioning for their continued needs and sustenance.

32. In June of 1949, The California Indian Agency at Sacramento reported to the

Commissioner on Indian Affairs on the Indian population demographics and land status

throughout the state. The Agency reported that there were 3,384 acres of Indian trust land in

Kern County as of April 1, 1949. Population data for Kern County indicated that there were 454

Indians in Kern County on the Special Roll approved in May of 1933. By the time of the

Agency’s Census Roll of January 1, 1945, this number had dropped to 62. PROGRAM FOR THE

TERMINATION OF INDIAN BUREAU ACTIVITIES IN THE STATE OF CALIFORNIA, prepared by

California Indian Agency, Sacramento California at 11 (June 1949) (Ex. 7). While Plaintiffs

dispute that this data represents an accurate reflection of the Indian trust acreage or population in

Kern County at the time, it is evidence that Interior recognized that Indian lands and peoples

existed.

33. The allegations contained above present a colorable question of whether that the

land at issue is indeed Indian country. To the extent that title was obtained from the Tribe and

eventually passed to Defendants TRC and/or TMV, any such conveyance was not with the

express approval of the United States or by explicit approval of Congress. Such facts present a

substantial question of federal law that this Court is competent to resolve. See Cayuga Indian

Nation v. Village of Union Springs, 293 F.Supp. 2d 183, 190 (N.D.N.Y 2003) (denying


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defendant’s motion to dismiss for lack of subject matter jurisdiction because whether or not

property at issue was Indian country presented a federal question).

B. DESCRIPTION OF PLAINTIFFS’ ABORIGINAL TITLE

34. Defendants TMV and TRC are in possession of lands or claim title to or have an

interest in lands commonly known as Tejon Ranch, approximately 270,000 acres of land of

which Plaintiffs have aboriginal title, in violation of the Non-Intercourse Act and common law.

35. In the alternative, Plaintiffs are informed and believe and thereon allege that TMV

and TRC are in possession of lands or claim title to or have an interest in lands within what is

commonly known as Tejon Ranch, approximately 49,000 acres as shown on the 1858 Survey of

the Tejon/Sebastian Reservation, of which Plaintiffs have aboriginal title, in violation of the

Non-Intercourse Act and common law. This land is at or about,2 all that portion of the following

described land lying, within the County of Kern, State of California, described as follows: Beginning at the South 1/4 Corner of Projected Section 36 Township 32 South, Range 29 East, Mount Diablo Base and Meridian, thence South 68 degrees East a distance of 29,568.00 feet, thence North 80 degrees East a distance of 10,032.00 feet, thence South 45 degrees East a distance of 16,368.00 feet, thence West 0 degrees a distance of 15,180.00 feet, thence South 45 degrees West a distance of 56,750.00 feet, thence West 0 degrees a distance of 31,020.00 feet, thence North 60 degrees West a distance of 13,200.00 feet, thence North 57 degrees East a distance of 61,182.00 feet to the Point of Beginning. (Ex. 9).3

C. THE TEJON MOUNTAIN VILLAGE PROJECT

36. Between 2001-2005, Defendants TMR and/or TMV submitted development

proposals to the County to construct Tejon Mountain Village, an approximate 28,253 . . . with a

mix of residential, commercial, and recreational uses,” which “include up to 3,450 residences . . .

up to 160,000 square feet of commercial development . . . various hotel, spa, and resort facilities,

2 This legal description is Plaintiffs’ best estimate based on the 1858 Survey Map of the reservation. The true point of beginning for this parcel of land has never been established or described of record and will likely not be able to be determined without obtaining the surveyor’s field notes, which Plaintiffs are informed and believe are in the possession of the United States. Plaintiffs reserve the right to amend or otherwise alter this legal description. 3 Exhibit 9 is more current map showing the estimated boundaries of the 1858 Tejon/Sebastian Reservation. Ex. 9 was prepared with the estimates from the approximate legal description. Plaintiffs reserve the right to amend or otherwise alter this map.


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with up to 750 lodging units at up to 7 locations” as well as “a number of recreational and

educational facilities, including a nature center, farmers market, day camps, equestrian facilities,

sporting clays course, parks, play lawns, trails, swimming, boating, docks on the lake, up to four

18-hole golf courses, and riding and hiking trails.” (the “Project”).

37. The entire Project falls within the land to which Plaintiffs claim aboriginal title

identified in paragraph 34. Plaintiff is informed and believes and thereon alleges that portions of

the Project fall within the lands to which Plaintiffs alternatively claim aboriginal title as

identified in paragraph 35.

38. The NAHC is the state trustee agency designated to protect California’s Native

American Cultural Resources. Plaintiffs are informed and believe and thereon allege, when the

NAHC contacted the County with respect to the TMV project on July 13, 2009, they indicated

that a search of their Sacred Land Files indicated that no Native American Cultural Resources

were indentified. They then recommended that the County contact interested Native American

consulting parties in the area in order to be in compliance with numerous state and federal

requirements (California Environmental Quality Act § 15064.5(d); NEPA, 42 U.S.C. §4321-

43351; §106 and 4(f) of federal NHPA, 16 U.S.C. §470(f) et. seq; and NAGPRA, 25 U.S.C.

§3001-3013).

39. Within the proposed project development area, there are over 50 pre-historic

village sites, numerous graves, and other sacred sites directly related to the Tribe.

40. In both written and oral testimony and statements made to the County, tribal

members have stated that both refusal of access and outright destruction have taken place with

respect to these sites.

41. Plaintiffs are informed and believe and thereon allege, based upon a letter from

the NAHC, that at all times between, in or about, 2000 and the present date, Plaintiffs were on

the NAHC’s list of Native American Contacts. Nonetheless, the County did not contact

Plaintiffs to consult with them on the project’s potential impacts on sacred, archeological, and

historical sites.


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42. County had Plaintiff Robinson listed on their in-house roster of Native American

Contacts for California Senate Bill 18, and provided him with notice for other projects in 2005

when the Archaeology Surveys were being conducted on the project footprint. The County knew

of the Tribe’s presence in Kern County and of Plaintiff Robinson’s long-standing involvement

with the protection of cultural resources in the area.4

43. The County received 81 comments requesting an extension of the 45-day public

comment period for the Draft EIR. Denying these requests, the public comment period ended on

July 13, 2009 and a hearing was scheduled before the Planning Commission on August 13, 2009.

44. Before the final public hearing, Plaintiff Robinson timely submitted written and

oral comments to the County, objecting to and commenting on the Project on numerous grounds.

45. On August 13, 2009, Plaintiff Robinson appeared before the County Planning

Commission to detail the facts evidencing the federal status of the land before either the

Commission or Board of Supervisors could vote on the project.

46. Plaintiff Robinson wrote to the Commission again on September 28, 2009, and

appeared before the Commission on October 5, 2009 to give evidence of the status of the land

and to express concerns over gravesites.

47. While not mentioned in the EIR, it was brought to the Planning Commission’s

attention both at this meeting and in writing that TMV was planning to build a casino within the

historic Tejon/Sebastian Reservation. The Commission denied any such allegations and stated

there was no need to include it in the EIR.

48. There is evidence showing that TRC has invested significant sums with large

national lobbying firms to represent the interests of a ‘Tejon Indian Tribe’ in forming a

corporation and waiving any Indian claims to the project. Members of this ‘Tejon Indian Tribe’

are named as Consultants and Monitors for the project in the EIR.

49. The Environmental Impact Report (“EIR”) shows a wanton disregard for the

existence of cultural resources and sites that are sacred to the Tribe. Not only does the approved

4 The Koso Native Graves Protection Committee, National Park Service & Smithsonian NAGPRA Committees, etc.


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EIR allow for their destruction, but it also regards TMV as being the owner of the remains and

any associated archeological materials.

50. At the October 5th hearing, the County expressly admitted that only a portion of

the cultural sites had been evaluated.

51. Nevertheless, the County filed its Notice of Determination for the Tejon Mountain

Village project on October 13, 2009.

FIRST CLAIM FOR RELIEF

CLAIM FOR UNLAWFUL POSSESION UNDER COMMON LAW, VIOLATION OF

NON-INTERCOURSE ACT, TRESSPASS, ACCOUNTING

By Plaintiffs Against Defendants Tejon Ranch Corporation,

Tejon Mountain Village and Does 1 through 50

52. Plaintiffs hereby incorporate by reference each and every allegation contained in

paragraphs 1 through 51 above as though fully set forth at length.

53. The lands described in paragraphs 34 through 35 of this Complaint are in the

possession of Defendants TRC, TMV and DOES 1 through 50 (collectively referred to in this

claim for relief as “Defendants”), claiming title to or other interests in such land as described

herein.

54. At all relevant times, Defendants have and are trespassing on Plaintiffs’ land.

55. Defendants have injured Plaintiffs by precluding them from possessing said land,

in violation of federal restrictions against the extinguishment of Indian title except by action of

the United States, Article 1, §8 of the Constitution of the United States and 25 U.S.C. §177, and

in violation of common law and the Non-Intercourse Act.

56. As a result of Defendants’ unlawful possession, Plaintiffs have been denied the

use and enjoyment of any rental income and profits rightfully due to them from said land for the

entire period of its dispossession.

57. As a further result of Defendants’ unlawful possession, Plaintiffs have been

denied the use and enjoyment of the fair market value of the land for the entire period of their

dispossession.


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58. As a further result of Defendants’ unlawful possession, Plaintiffs have been

denied the use and enjoyment of the fair market value of the natural resources from the land for

the entire period of their dispossession.

59. Plaintiffs are informed and believe and thereon allege for the entire period of their

dispossession, that Defendants have utilized the land for agricultural production, the recovery of

natural resources, including oil, the sale of various easements, licenses and other uses of the land

and have been unjustly enriched thereby.

60. Accordingly, Plaintiffs are entitled to the relief specified below.

SECOND CLAIM FOR RELIEF

VIOLATIONS OF NAGPRA, 25 U.S.C. § 3001, et seq.

By Plaintiffs Against Defendants Tejon Ranch Corporation,

Tejon Mountain Village And Does 45 Through 60


paragraphs 1 through 60 above as though fully set forth herein.

62. Plaintiffs are informed and believe and thereon allege that between 2001 and the

October 5, 2009 County Supervisor’s hearing, Defendants TRC, TMV and DOES 45 through 60

(collectively referred to in this claim for relief as “Defendants”), damaged or destroyed seven or

more Native American cemeteries, graves, sacred sites and/or artifacts in connection with the

development of the TMV Project. In each of these instances, Defendants knew or had reason to

know that they had discovered Native American cultural items within the meaning of NAGPRA.

63. Plaintiffs are informed and believe and thereon allege that this damage or

destruction occurred both on the Tejon/Sebastian Reservation property and within the Tejon

Mountain Village Development footprint that is within land to which Plaintiffs hold aboriginal

title.

64. Plaintiffs are informed and believe and thereon allege that this damage and

desecration was caused by both heavy equipment used by Defendants as well agriculture activity,

such as Defendants’ horse and cattle grazing.


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65. At no time was Tribe or Robinson notified by Defendants that they had

discovered Native American cultural items.

66. Plaintiffs are informed and believe and thereon allege that in or about 2001

Defendants excavated or otherwise discovered a Native American cultural item in the form of a

stone containing mortar hole and gave it as a retirement gift to an employee of the fire

department to place at his home on Panorama drive.

67. Plaintiffs are informed and believe and thereon allege that in or about 2001

multiple Native American remains were unearthed as a result of Defendants conducting seismic

trenching near Castaic Lake.

68. Plaintiffs are informed and believe and thereon allege that in or about 2002, a

cemetery near Tejon Creek was torn up by cows and horses.

69. Plaintiffs are informed and believe and thereon allege that the entire cemetery and

the cultural items therein were damaged or destroyed as bones and bone fragments were

scattered about.

70. Plaintiffs are informed and believe and thereon allege that in or about 2004,

Defendants flooded and dug up cemeteries in connection with road construction in the vicinity of

Castaic lake.


Defendants bulldozed multiple cemeteries and grave sites near Bear Trap Canyon and thereby

damaged or destroyed cultural items.


Defendants unearthed cultural patrimony in the form of grinding rocks near the TRC

headquarters in or about Lebec, California.

73. Plaintiffs are informed and believe and thereon allege that at some time between

2001 and the October 5, 2009, a Native American cemetery within the Tejon/Sebastian

Reservation was “torn to bits” by Defendants.


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74. Plaintiffs are informed and believe and thereon allege that Defendants knew, or

had reason to know, that in each of the above described instances Defendants discovered Native

American cultural items on Federal or tribal lands.

75. Plaintiffs are informed and believe and thereon allege that TRC and TMV failed

to notify in any manner, Plaintiffs, who are the appropriate Indian tribe with respect to the lands

where the discoveries were made.

76. Plaintiffs are informed and believe and thereon allege that Tribe and Robinson

were known by Defendants or readily ascertainable by Defendants at the time that the

discoveries were made.

77. Plaintiffs are informed and believe and thereon allege that at all times since 2000,

Plaintiffs have been on the list of tribal contacts maintained by the Native American Heritage

Commission for all projects in the Kern County area. Plaintiffs are further informed and believe

and thereon allege that at all times since 2002, Plaintiffs have been on the Most Likely

Descendents list maintained by the Native American Heritage Commission for all discoveries

made in the Kern County area.

78. Plaintiffs are informed and believe and thereon allege that Defendants made the

discovery in connection with an activity relating to the development of the Tejon Mountain

Village and other areas within the land allegedly owned by TRC, including (but not limited to)

evaluation of the site for future construction and in preparation for construction.

79. Plaintiffs are informed and believe and thereon allege that Defendants did not

cease activities in the area of the discovery, make a reasonable effort to protect the items

discovered before resuming such activity, or provide notice to Plaintiffs.

80. Plaintiffs are informed and believe and thereon allege that Defendants illegally

resumed the activity that resulted in the discovery before receiving the required certification

from Plaintiffs that notification had been received, and thus without waiting the mandatory 30

days after receiving Plaintiffs’ certification.

81. Plaintiffs are thus entitled to the relief requested below.


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THIRD CLAIM FOR RELIEF

VIOLATIONS OF CIVIL RIGHTS -- 18 U.S.C. § 1983

By Plaintiffs Against County and Does 61 through 80


paragraphs 1 through 60 above as though fully set forth herein.

83. County and Does 61 through 80 (collectively referred to in this claim for relief as

“County”), by approval of the TMV Project, subjected Plaintiffs and/or caused Plaintiffs to be

subjected to the deprivation of their rights secured by the Constitution and the law.

84. County’s approval of the TMV Project deprived Plaintiffs of their rights to due

process of law prior to the deprivation of property, guaranteed by the 5th Amendment of the

Constitution, as applied to the States by the 14th Amendment to the Constitution, in that the

County authorized Defendants TRC and TMV to build upon land to which Plaintiffs have

aboriginal title and to exclude Plaintiffs from said lands. In addition, County deprived Plaintiffs

of due process by finding that TMV “own the remains” of the Kawaiisu tribal people or the

artifacts found in and around the graves and not requiring that said items will be repatriated to

the Tribe when discovered as contemplated by NAGPRA.

85. County’s approval of the TMV Project deprived Plaintiffs of their rights to be free

from the deprivation of property without just compensation as guaranteed by the 5th Amendment

of the Constitution, as applied to the States by the 14th Amendment to the Constitution, in that

the County authorized Defendants TRC and TMV to build upon land to which Plaintiffs have

aboriginal title and to exclude Plaintiffs from said lands.

86. County’s approval of the TMV Project deprived Plaintiffs of their common law

rights to be free of trespassers, and to possess, use and enjoy land to which they hold aboriginal

title, in that the County authorized Defendants TRC and TMV to enter and build upon said land.

87. County’s approval of the TMV Project deprived Plaintiffs of their rights under the

Non-Intercourse Act in that the County authorized Defendants TRC and TMV to build upon land

that belongs to Plaintiffs, and which was acquired by Defendant TRC, if at all, in violation of the

Non-Intercourse Act.


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88. Plaintiffs are thus entitled to the relief requested below.

FOURTH CLAIM FOR RELIEF

VIOLATION OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)

AND GOVERNMENT CODE § 65352.3

By Plaintiffs Against the County of Kern, Real Parties in Interests TRC,

TMV and DOES 81 through 90



90. Plaintiffs seek a writ of mandate from this Court to prohibit the County, TRC,

TMV and DOES 81 through 90 (collectively referred to as, “Defendants”) from implementing or

in any way proceeding with the development of the Project.

91. The County approved the Project without adequate and necessary steps to comply

with the California Environmental Quality Act, codified at Public Resources Code sections

21000, et seq., (“CEQA”).

92. Plaintiffs possess significant interests in the environmental effects of the Project,

and in preserving the environmental state of their properties because Plaintiffs are a tribe of

Native Americans who have aboriginal title to the lands on which the Project is designated.

Plaintiffs will be directly harmed by Defendants’ implementation of the Project in violation of

CEQA because there are more than 50 sacred sites located within the Project area, including

numerous burial grounds in which the Tribe’s ancestors are buried, that will be disturbed if

Defendants are permitted to proceed with the Project in violation of CEQA. As “persons” under

CEQA, Plaintiffs are entitled to petition this Court for a writ of mandate ordering Respondents to

comply with CEQA. Pub. Res. Code § 21066.

93. The actions and inactions complained of all occurred within the 90 days of the

filing of the initial complaint in this action that asserted violations of, inter alia, CEQA.

94. A court shall issue a writ of mandate ordering a public agency to perform a

mandatory duty under CEQA if the court finds the agency committed a prejudicial abuse of

discretion. Pub. Res. Code §§ 21168, 21168.5; Code Civ. Proc. §§ 1094.5, 1085(a). In the


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context of CEQA, an abuse of discretion “means the agency failed to proceed as required by law

or there was no substantial evidence to support its decision.” Pub. Res. Code § 21168.5.

95. Defendants’ actions and failures to act, which gave rise to this Petition, occurred

in Kern County, California. The Project is located wholly within Kern County, California. The

environmental effects resulting from the Project will impact Kern County, California.

96. On September 30, 2005, the County determined that the proposed project may

have a significant effect on the environment, and that an Environmental Impact Report (“EIR”)

was required.

97. CEQA requires that any project that causes a substantial adverse change in the

significance of a historical or archeological resource is a “significant effect” requiring the

preparation of an EIR. 14 Cal. Code Regs. §15064.5(b)(c)(f). In the EIR, the lead agency is

required to assess whether the project will have an adverse impact on these resources within the

area of potential effect and, if so, to mitigate that effect. §15382. Lead agencies should consider

avoidance when significant cultural resources could be affected by a project. §§ 15064.5, 15370.

In the event of an accidental discovery of any human remains, construction or excavation must

stopped until the county coroner or medical examiner can determine whether the remains are

those of Native Americans. Health and Safety Code §7050.5, Pub. Res. Code §5097.98, 14 Cal.

Code Regs. §15064.5(d).

98. Plaintiffs are informed and believe and thereon allege that Defendants were

required to contact the NAHC and obtain a list of tribal contacts no later than the filing of the

Notice of Intention in 2005.

99. Plaintiffs are informed and believe and thereon allege that Defendants failed to

contact NAHC in 2005 and request such a list. In the alternative, Defendants obtained such a

list, which identified Plaintiffs as a contact, and failed to notify Plaintiffs of their rights to

consultation regarding the proposed Project.

100. Plaintiffs are informed and believe and thereon allege that the initial study

identified the existence of, or the probable likelihood of, Native American human remains within


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the Project. County was therefore required to notify and work with Plaintiffs as provided in Cal.

Public Resources Code section 5097.98, but failed to comply with either of these obligations.

101. The factors considered and procedures used in completing the EIR were deficient

under CEQA for numerous reasons, including but not limited to, the following:

a. Failure to adequately analyze the impacts of the Project on cultural

resources and failure to adequately analyze the mitigation measures that would

substantially lessen the Project’s significant, irreversible, environmental impacts;

b. Omission of proper notice to, adequate consultation with, and establishing

Most Likely Descendant status with the Tribe and the Tribe’s Chair, David Laughing

Horse Robinson;

c. Native American Monitors and Most Likely Descendants on this Project

were not properly documented as California Native Americans;

d. Inadequacy of disclosure and lack of transparency on the part of the

County and EIR tribal consultants.

e. Complete lack of evidence to support the determination regarding Native

American cultural sites and the adequacy of the identified mitigation measures.

Native American Grave Sites

102. An EIR must propose mitigation measures that will minimize the Project's

significant impacts by reducing or avoiding them. Cal. Pub. Res. Code §§ 21002, 21100.

103. The EIR acknowledges that the Project with have a potentially significant effect

on the disturbance of human remains, including those interred outside of formal cemeteries, but

the EIR makes the erroneous and unsubstantiated conclusion that the environmental impact after

implementing certain mitigation measures is reduced to “less than significant.”

104. The EIR specifies a single mitigation measure for grave sites, which is “[i]n the

event of an accidental discovery of any human remains, the steps and procedures specified in

California Health and Safety Code Section 7050.5, State CEQA Guidelines Section 15064.5(e)

(OPR 2004), and California Public Resources Code Section 5097.98 shall be implemented.”

However, the efficacy of the mitigation measure is not apparent and there is no evidence in the


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record that shows, much less establishes, the adequacy of this mitigation measure. Moreover, no

substantial evidence supports that determination, which is thus arbitrary and capricious given

that the proposed mitigation measure is facially defective and impotent in protecting the burial

sites.

105. The EIR does not identify, adequately describe, or protect the Indian sacred sites

or burial grounds within the Project. County, TRC and TMV have not made reasonable or good

faith efforts to identify these Native American sacred sites and burial grounds. No attempt has

been made to avoid or minimize disturbance of these sites. Rather, the EIR simply states that

TRC will “follow the law” with respect to discovered remains, which is tantamount to no

mitigation measure at all.

Native American Archeological and Historical Sites

106. The EIR acknowledges that the Project may cause a substantial adverse change in

the significance of a archaeological or historical resource including Native American cultural

sites. The EIR concludes that the level of significance after the mitigation measures is “less than

significant.” However, the efficacy of the mitigation measures is not apparent and there is no

evidence in the record to support their efficacy. Moreover, no substantial evidence supports that

determination, which is thus arbitrary and capricious given that the proposed mitigation

measures are facially defective and impotent in protecting the cultural sites.

107. A lengthy 2004 archaeological survey of the Tejon Mountain Village area was not

considered in the DEIS or the DEIR and that the TMV DEIR, released after the DEIS, features

an Archaeological Study prepared by Tejon Ranch that purports to identify 58 sites within the

Tejon Mountain Village “study area.” Even a cursory review of Tejon Ranch history would have

lead to the identification of other Native American villages, sacred sites, burial ground, trails,

and other footprints within the proposed DHCP boundaries.

108. The mitigation measures are fatally defective because they are based on a broken

foundation, that TRC and TMV have identified all of the archaeological and cultural sites within

the Project, but this is not the case. The EIR proposes as a foundational mitigation measure that

TRC and TMV will provide County’s Planning Department with a map indicating the location


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of each of the identified archaeological sites and that This map will be kept in confidence by the

County’s Planning Department.. This measure is ineffective because TRC and TMV have not

identified all of the cultural sites within the project and have not taken reasonable steps to do so.

Moreover, people with information and who are familiar with sites and who can identify other

sites are denied the right to review the map and identify additional sites that should be added.

109. The EIR ties other mitigation measures to this broken foundation. Specifically,

the next mitigation measure provides that prior to the submittal of any building, grading, or

construction application to Kern County, the project proponent shall request that the Tejon

Mountain Village Design Review Committee provide a letter indicating whether the proposed

activity is located within 2,500 feet of a archaeological site. This letter will be submitted to with

the building, grading, or construction application. If the proposed activity is located within 2,500

feet of an archaeological site, County Staff shall make sure the appropriate mitigation measures

listed below are observed. This measure is facially defective for the reasons stated above.

110. Other mitigation measures are facially defective because they are only required if

the cultural site is one of the 58 that will be identified on TMR and TMV’s map and the

proposed activity is within 2,500 feet.

111. For certain sites known, the EIR proposes that they will be preserved under

existing geotextile matting and capping fill, which there is no evidence is effective.

112. The EIR proposes that there be Archaeological and/or Native American monitors

shall be present during any grubbing or topsoils grading within 100 meters of various areas, but

there is not any procedures for how these monitors will be selected to ensure that they are

qualified and to ensure that they can protect the cultural site.

113. The County’s actions with respect to approving this Project violated its mandatory

duties and obligations under CEQA and other applicable laws, and were arbitrary and capricious.

If Defendants are not ordered to comply with CEQA, both Plaintiffs and the archeological and

historic sites described above will suffer irreparable injury. Avoiding a true and legal analysis of

the cultural status of this property now will lead to future expense, delays and wanton destruction


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of ancient burial sites and other sacred grounds. For these reasons, the Plaintiffs are entitled to

the relief prayed for below.

FIFTH CLAIM FOR RELIEF

DECLARATORY JUDGMENT -- 28 U.S.C. § 2201

By Plaintiffs Against Salazar and Does 91 through 100



115. Plaintiffs are excused from exhausting administrative remedies, if such is

otherwise required, because they are inadequate and futile in that there is no administrative

procedure whereby Plaintiffs can obtain a declaration of their rights under the Treaty or to obtain

and enforce the rights afforded to Plaintiffs under the Treaty. Moreover, Plaintiffs are informed

and believe and thereon allege that any attempt to obtain said rights will be futile as the

Department of the Interior has unequivocally made clear that it will not provide Plaintiffs with

the rights afforded under the Treaty because Plaintiffs are not listed on the list of federally

acknowledged Indian Tribes maintained by the BIA.

116. Plaintiffs will suffer irreparable injury if the Court does not afford the relief

requested because Plaintiffs have been and continued to be deprived of their treaty rights and

Defendants are poised to begin development on Plaintiffs lands and thereby disturb and

potentially destroy sacred sites, and damage and potentially destroy cultural objects.

117. Accordingly, Plaintiffs request the following judicial declarations:

a. Plaintiffs are the descendents of the signatories from the Treaty of the

Utahs and are a tribe entitled to the benefits of the Treaty. See Greene v. Babbitt, 64 F.3d

1266, 1270 (9th Cir. Wash. 1995) (“a tribe's recognition or lack of recognition by the

Secretary of the Interior does not determine whether the tribe has vested treaty rights. . . .

Whether a group of citizens of Indian ancestry is descended from a treaty signatory and

has maintained an organized tribal structure is a factual question which a district court is

competent to determine.”).


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b. The respective rights and obligations of the Kawaiisu and the United

States under the Treaty of the Utahs.

c. That the Kawaiisu have a trust relationship with the United States by

virtue of the Treaty of the Utahs, the act of Congress and the Executive Order creating

the Tejon/Sebastian Reservation and the Non-Intercourse Act.

d. That by virtue of the trust relationship, the United States has a duty to

bring an action on behalf of the tribe against Defendants TRC and TMV to protect

Plaintiffs’ aboriginal title.

e. That by virtue of the trust relationship, the United States has a duty to

ensure Plaintiffs access and possession to the Tejon/Sebastian Reservation and to prevent

others from trespassing thereon.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

On the First Claim for Relief:

1. That the Court decree, declare, and adjudge that the Tribe is the owner of and

have the legal and equitable title and right of possession of lands surveyed for the 1853

Tejon/Sebastian Reservation, and restore the Tribe to immediate possession;

2. For an accounting of all rents, issues and profits;

3. For damages in an amount to be determined at trial;

4. For preliminary and permanent injunctive relief barring Defendants from the land

without Plaintiffs permission and barring Defendants from interfering with Plaintiffs possession

and enjoyment of the land.

On the Second Claim for Relief:

1. For a preliminary and permanent injunction stopping the TMV project until

adequate procedures are in place to ensure compliance with NAGPRA;

2. For such other orders as may be necessary to enforce the provisions of NAGPRA

and to remedy the past violations.


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On the Third Claim for Relief:

1. For declaratory and injunctive relief.

On the Fourth Claim for Relief:

1. For a peremptory writ of mandate or declaratory and injunctive relief directing

Defendants to:

a. Void, vacate, and set aside their approval of the TMV Project;

b. To suspend all activities pursuant to or relating to implementation of the

TMV Project;

c. To consult with Plaintiffs as required by the law regarding the proposed

TMV Project; prepare, circulate, and consider a legally adequate subsequent EIR;

d. To prepare, circulate, and consider a legally adequate subsequent EIR;

e. For preliminary and permanent injunctive relief prohibiting Respondents

from taking any further action in connection with the TMV Project pending trial in this

matter;

On the Fifth Claim for Relief:

1. For declaratory judgment as previously identified.

On All Claims for Relief:

1. Costs of suit;

2. Attorney’s fees as allowed by law, and;

3. Such other relief as the court may deem just and proper.

Dated: April 18, 2011

WOLF GROUP L.A. By: /s/ Evan W. Granowitz

Evan W. Granowitz Attorneys for Plaintiffs KAWAIISU TRIBE OF TEJON and DAVID LAUGHING HORSE ROBINSON


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DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury for all claims on which they have such a right.

Dated: April 18, 2011

WOLF GROUP L.A. By: /s/ Evan W. Granowitz

Evan W. Granowitz Attorneys for Plaintiffs KAWAIISU TRIBE OF TEJON and DAVID LAUGHING HORSE ROBINSON


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Kawaiisu Tribe of Tejon v. Salazar

Case No: 1:09-cv-01977 OWW SMS

EXHIBITS TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

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Eawaibatnnya (-?k-v^ci- as the Watermelon da (Cloud) phratrv [of the in 8th Rep. B. A. E., 39, '

Kawaiisu. The most v sion of the Ute-Chemehu vision of the Shoshonea~ occupy an isolated area i the ~Ghachapi rnta., Cal., the w. side around Paiul valleys of Walker basin a Kelso crs. as far s. as Teh Cobajais.-Garc6s (1776), Diary Ibid., 304, 445. Covaai.-Ke Compenc?. , 510, 1878. &ah-w i Science, SIX. 916, June 15,1904. M=A~u.--L- -

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Y kuts name). Kawishm.-Kroeber. inf'n. - ; batulabal name). Kow-6'-sah.-S Kubakhye.-Kroeber, inf'n, 1905 ( I Xewoof-a$.-Merriam, op.cit. (=* p Colteches.-Garcte, op. cit., 295, 3"- vw a

Mariposa people). Ta-hi-cha-pa-han-na.- in Cent. N. A. Ethnol., 111, 393. 1877 (c around m t ns. of same name). Ta-hichp'. (so called by Kern r. people).

Kawaika. A ruined pueblo, att bv the Hopi to t h e Kawaika p( name also applied bv k them to the T-Z? - - - -4; T,.-.,-- n7 n<- - Â¥ 1 . t

EX. 4


Evan

Typewritten Text

8

Exhibit # 9 -- Approximate Boundaries of Tejon/Sebastian Reservation on Modern Map
