Walter Rosales and Karen Toggery's most recent complaint accuse BIA of allowing building over their ancestor's graves!
BIA Regional Director Amy Dutschke and Division of Environmental, Cultural Resources Management and Safety Chief John Rydzik argued that the claims asserted by Rosales and Toggery fail and should be tossed without leave to amend.
|BIA DIRECTOR AMY DUTSCHKE|
The plaintiffs "fail to state a claim, and both Dutschke and Rydzik are entitled to qualified immunity in any event," the BIA officials said in their reply brief.
The former tribal leaders first launched their suit in May 2015, naming casino developer Penn National Gaming Inc., its subsidiary San Diego Gaming Ventures LLC, construction company C.W. Driver Inc. and a handful of Jamul Indian Village officials as defendants as well.
They alleged their families' remains and funerary objects were illegally dug up from the cemetery and dumped — without their consent and without compensation — despite their preference as descendants to leave the remains in place.
In May, U.S. District Judge Kimberly J. Mueller dismissed a previous 97-page iteration of the complaint, calling it "caustic and argumentative," and saying it ran afoul of federal rules.
The judge ordered the plaintiffs to file a shorter complaint, prompting Rosales and Toggery to file a third amended complaint at the beginning of July.
The former tribal leaders recently argued that they had sufficiently pled claims against Dutschke and Rydzik, and that a jury trial should take place with respect to their alleged violations of Rosales and Toggery's First and Fifth Amendment rights and of the Native American Graves Protection Act, Religious Land Use and Institutionalized Persons Act, Administrative Procedure Act, Federal Tort Claims Act and California common law.
But Dutschke and Rydzik shot back Tuesday that the plaintiffs had failed to state either a First or Fifth Amendment claim against them, that their tort claim fails for lack of jurisdiction and for failure to state a claim, that NAGPRA does not waive the U.S.'s sovereign immunity, that they had failed to state an APA claim and that state law does not apply to either federal agencies or their employees.
"Plaintiffs' 'cause of action' for declaratory and injunctive relief fails because there is no such cause of action under federal law; declaratory relief is merely a remedy available if plaintiff has an independent claim," the BIA officials added.
Earlier this week, Rosales and Toggery responded to a separate attempt by three companies and the tribal officials to dismiss the suit.
They rejected those defendants' contention that their complaint failed to join a required party, the tribe, to the suit, meet pleading standards or state a claim, in addition to the tribal officials' contention that they are protected by sovereign immunity