overruled District Court’s taking 4 judicial notice of facts within a document where the accuracy and interpretation of the facts 5 remained in dispute
How later courts described this case
- overruled District Court’s taking 4 judicial notice of facts within a document where the accuracy and interpretation of the facts 5 remained in dispute
- declining to take judicial notice of map where 7 court could not assume accuracy of information contained within it
- “As to lands acquired by the United States 23 after 1940, it has been held that the United States does not acquire jurisdiction over lands 24 acquired by it unless it gives notice of acceptance.”
- noting judicial notice 16 is unnecessary for courts to “take a case into account as non-binding precedent.”
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11
12 SAINT BROWN, et al., Case No.: 3:23-cv-00567-JES-DDL
13 Plaintiffs,
ORDER DENYING MOTION TO
14 v. REMAND
15 CAMP PENDLETON & QUANTICO
HOUSING, LLC, et al., [ECF No. 62]
16
Defendants.
17
18
19
20
21
Before the Court is Plaintiffs’ Saint Brown (“Brown”), Christine Brown, and Minor
22
Plaintiffs B.B., T.B., L.B., and C.B. (collectively, “Plaintiffs”) motion to remand for lack
23
of jurisdiction. ECF No. 62-2. Defendants filed an opposition and Plaintiffs filed a reply.
24
ECF Nos. 63, 65. On December 18, 2024, the Court heard oral argument on the matter and
25
ordered supplemental briefing. ECF No. 67. On January 3, 2025, Plaintiffs filed
26
supplemental briefing supporting their motion to remand. ECF No. 68. On January 17,
27
28
1 2025, Defendants filed an opposition to the supplemental briefing. ECF No. 69. For the
2 reasons stated below, the Court DENIES Plaintiffs’ motion to remand.
3 I. BACKGROUND
4 On January 30, 2023, in state court, Plaintiffs filed a complaint alleging multiple
5 causes of action related to mold and water damage at their home, a 4 bed/2.5 bath two-
6 story detached home with a fenced backyard at 1424 Orion Drive, San Diego, CA 92126
7 (“Orion Property”) in the Capeharts West neighborhood within the boundaries of Marine
8 Corps Air Station Miramar (“MCAS Miramar”). ECF No. 1 ¶¶ 1, 9. Defendant San Diego
9 Family Housing, LLC (“SDFH”) is the lessor of the housing, and Defendant Lincoln
10 Military Property Management, L.P. (“LMPM,” collectively “Defendants”) is the property
11 manager of the property. ECF No. 1 ¶ 3.
12 On March 30, 2023, Defendants removed the case to this Court. See generally ECF
13 No. 1. In the Notice of Removal, Defendants asserted three independent bases for removal:
14 (1) pursuant to 28 U.S.C. § 1331, because the events outlined in the complaint occurred
15 within a federal enclave; and (2) under 28 U.S.C. § 1442(a)(1), because (a) SDFH is a
16 federal agency; (b) and at all relevant times Defendants were acting under a federal officer.
17 ECF No. 1 ¶¶ 4, 24-30.
18 Plaintiffs filed this motion to remand asserting that this Court lacks subject matter
19 jurisdiction because the Orion Property is not on a federal enclave and Defendants are not
20 a federal agency nor a federal officer. ECF No. 62-2.
21 II. LEGAL STANDARD
22 Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256
23 (2013). In a case originally brought in state court, a defendant may remove the action to
24 federal court if there is federal subject matter jurisdiction. 28 U.S.C. § 1441(a) (“Except as
25 otherwise expressly provided by Act of Congress, any civil action brought in a State court
26 of which the district courts of the United States have original jurisdiction, may be removed
27 by the defendant or the defendants, to the district court of the United States for the district
28 and division embracing the place where such action is pending.”).
1 “Consistent with the limited jurisdiction of federal courts, the removal statute is
2 strictly construed against removal jurisdiction.” Audo v. Ford Motor Co., No.: 3:18-cv-
3 00320-L-KSC, 2018 WL 3323244, at *1 (S.D. Cal. July 6, 2018) (citing Gaus v. Miles,
4 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Therefore, the “burden of establishing that
5 removal is proper” always lies with the defendant. Gaus, 980 F.2d at 566. If there is any
6 doubt as to the propriety of removal, the court shall reject federal subject matter
7 jurisdiction. Id.; see also Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)
8 (“If a district court determines at any time that less than a preponderance of the evidence
9 supports the right of removal, it must remand the action to the state court.”).
10 A federal court must have subject matter jurisdiction to properly adjudicate a
11 dispute. The lack of subject matter jurisdiction may be raised at any time by either the
12 parties or the court. Fed. R. Civ. P. 12(h)(3). If a court determines it lacks subject matter
13 jurisdiction over a removed action at any stage of the proceedings, it must remand the
14 action. See Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for
15 lack of subject matter jurisdiction “is mandatory, not discretionary.”); see 28 U.S.C. §
16 1447(c) (“If at any time before final judgment it appears that the district court lacks subject
17 matter jurisdiction, the case shall be remanded.”).
18 III. REQUEST FOR JUDICIAL NOTICE
19 Before addressing the merits of the motion to remand, the Court first considers
20 requests for judicial notice by both parties. Defendants raise various evidentiary objections
21 against many of Plaintiffs’ exhibits.
22 A. Plaintiffs’ Request for Judicial Notice
23 Plaintiffs request the Court take judicial notice of several facts: (1) that the Orion
24 Property, falls on a portion of MCAS Miramar which is considered federal proprietary
25 jurisdiction, not federal exclusive jurisdiction; (2) that the Jurisdiction Map of MCAS
26 Miramar produced by the Department of the Navy’s Naval Facilities Engineering
27 Command pursuant to Defendants’ U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)
28 (“Touhy request”), attached as Exhibit A is not subject to any reasonable dispute; and (3)
1 that the Touhy request submitted by Defendants to the Department of the Navy (“DoN”),
2 attached as Exhibit B is not subject to any reasonable dispute. ECF No. 62-1 (“RJN”).
3 Further, Plaintiffs request the Court take judicial notice of fifteen additional
4 documents in their motion to remand, including the following:
5 (1) Exhibit C to RJN and Exhibit 1 to the Declaration of Lenden Webb (“Webb
6 Decl.”), The Honorable Jeffery T. Miller’s February 1, 2024, Order RE: Subject
7 Matter Jurisdiction in Childs v. San Diego Family Housing, LLC, 714 F. Supp.
8 3d 1262 (S.D. Cal. Feb. 1, 2024);
9 (2) Exhibit D to RJN and Exhibit 2 to the Webb Decl., The Supplemental Brief to
10 the United States’ Statement of Interest filed on December 18, 2023, in Childs;
11 (3) Exhibit E to RJN and Exhibit 3 to the Webb Decl., Defendants’ Notice of
12 Removal filed in the instant case on March 30, 2023 (ECF No. 1);
13 (4) Exhibit F to RJN and Exhibit 4 to the Webb Decl., Declaration of Daniel Turkin
14 in Support of Defendants’ Motion for Summary or Alternatively, Partial
15 Summary Judgment (ECF No. 42-2);
16 (5) Exhibit G to RJN, Declaration of Kristin Reyna Dehart in Support of
17 Defendants’ Motion for Summary Judgment or Alternatively, Partial Summary
18 Judgment (ECF No. 42-4);
19 (6) Exhibit H to RJN, Appellants’ SDFH and LMPM’s Opening Brief concerning
20 the appeal of Judge Miller’s February 1, 2024, Order RE: Subject Matter
21 Jurisdiction in Childs v. San Diego Family Housing, LLC, filed in the Ninth
22 Circuit Court of Appeals (Appellate Case No. 24-1256);
23 (7) Exhibit I to RJN, Appellees’ Answering Brief concerning Judge Miller’s
24 February 1, 2024, Order RE: Subject Matter Jurisdiction in Childs v. San Diego
25 Family Housing, LLC, filed in the Ninth Circuit Court of Appeals (Appellate
26 Case No. 24-1256);
27 (8) Exhibit J to RJN, Order of Immediate Possession of Parcels (Civil No. 1333-
28 SD) filed on March 3, 1952, in the United States District Court for the Southern
1 District of California, produced by the DoN in response to Defendants’ Touhy
2 request;
3 (9) Exhibit K to RJN, an internal memo from James Frey, Staff Counsel for the
4 State Lands Commission sent on September 9, 2009, concerning the
5 jurisdictional status of various portions of MCAS Miramar;
6 (10) Exhibit L to the Supplemental Request for Judicial Notice (“Supp. RJN”),
7 Plaintiffs’ December 20, 2024, Touhy request to the DoN’s Naval Litigation
8 Office;
9 (11) Exhibit M to Supp. RJN, Declaration of Scott Van Slyke (“Van Slyke Decl.”),
10 Senior Land Surveyor for the Department of the Navy’s Naval Facilities
11 Engineering Systems Command, Southwest (“NAVFAC Southwest”);
12 (12) Exhibit N to Supp. RJN, Plaintiff Saint Brown’s June 21, 2024, Freedom of
13 Information Act (“FOIA”) request;
14 (13) Exhibit O to Supp. RJN, a signed letter from Samuel L. Provost confirming
15 transmission of the relevant documentation pursuant to Brown’s FOIA request;
16 (14) Exhibit P to Supp. RJN, a Jurisdiction Map of MCAS Miramar, prepared by
17 MCAS Miramar’s Public Works Department, produced in response to Brown’s
18 June 21, 2024, FOIA request; and
19 (15) Exhibit Q to Supp. RJN, Excerpts from the “2011 Jurisdiction Survey” for
20 MCAS Miramar, including a table of contents, the Jurisdiction Summary, and
21 three (3) maps of MCAS Miramar that correspond to the Jurisdiction Survey,
22 produced in response to Brown’s June 21, 2024, FOIA request.
23 Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact
24 that is not subject to reasonable dispute because it: (1) is generally known within the trial
25 court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
26 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2).
27 Defendants object to the Court taking judicial notice of the findings of fact regarding
28 the Orion Property and the Jurisdiction Map, including a zoomed-in version of the map
1 attached as Exhibit 8 to the Webb Decl., which the Court will discuss in more detail below.
2 Defendants have not opposed Plaintiffs’ request for judicial notice of the Touhy requests,
3 attached as Exhibits B and L. The Touhy requests appear to be appropriate items for the
4 Court to accept judicial notice. It appears that the accuracy of the source cannot be
5 questioned, and the item can be accurately and readily determined from the source. For that
6 reason, the request for judicial notice of Exhibits B and L is GRANTED.
7 Defendants also object to the Court taking judicial notice of Exhibits J, K, and M-Q.
8 The Court will discuss the objections to the listed exhibits below.
9 Exhibit C is a recent decision relating to issues germane to this case, containing an
10 opinion from within this district on federal enclave jurisdiction, although not for MCAS
11 Miramar. “It is unnecessary to request the court judicially notice … cases from California
12 and federal courts …. [T]he Court routinely considers such legal authorities in doing its
13 legal analysis without a party requesting they be judicially noticed.” Lucero v. Wong, No.
14 C 10-1339 SI (pr), 2011 WL 5834963, at *5 (N.D. Cal. Nov. 11, 2001); see also BP West
15 Coast Prods., LLC v. May, 347 F. Supp. 2d 898, 901 (D. Nev. 2004) (noting judicial notice
16 is unnecessary for courts to “take a case into account as non-binding precedent.”) Thus, the
17 request for judicial notice is DENIED as moot.
18 Exhibits D, E, F, G, H and I are all filings by parties in the instant action (Exhibits
19 E-G) or the Childs matter (Exhibits D, H and I). The Court takes judicial notice of the filing
20 of each of these documents, but not the truth of the facts cited therein. A court may take
21 judicial notice of the existence of matters of public record, such as a prior order or decision,
22 but not the truth of the facts cited therein that are subject to reasonable dispute. See Lee v.
23 City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); see also Interstate Natural Gas
24 Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953) (holding a court may
25 take judicial notice of records and reports of administrative bodies). The requests for
26 judicial notice of Exhibits D, E, F, G, H and I are GRANTED, subject to the limitations
27 noted.
28 / / /
1 B. Defendants’ Request for Judicial Notice
2 Defendants request the court take judicial notice of two documents: (1) Exhibit B to
3 the Declaration of Kristin Reyna DeHart (“DeHart Decl.”), which contains documents
4 produced by the DoN in response to Defendants’ Touhy request, relating to the history of
5 Camp Kearny and how it became MCAS Miramar; and (2) Exhibit C to the Dehart Decl.,
6 which contains documents produced by the DoN in response to Defendants’ Touhy request,
7 relating to various parcel descriptions and acceptances of jurisdiction over multiple parcels
8 of property comprising MCAS Miramar. ECF No. 63-2.
9 Further, in support of their Motion for Summary Judgment or Alternatively, for
10 Partial Summary Judgment (“MSJ”), Defendants also requested the court take judicial
11 notice of five documents relating to jurisdiction:
12 (1) Exhibit A-1, Excerpts from the Final Environmental Impact Statement for
13 Military Family Housing in the San Diego Region, by NAVFAC, June 2004;
14 (2) Exhibit B-1, Excerpts from the Department of Defense (“DoD”) Manual, DoD
15 Housing Management, Number 4165.63-M, October 2010;
16 (3) Exhibit C-1, County Assessor/Recorder stamped maps and ownership
17 information relating to MCAS Miramar;
18 (4) Exhibit D-1, United States Marine Corps map of the “Main Station” of Marine
19 Corps Air Station Miramar obtained from the Marine Corps Community
20 Services Miramar website, www.mcasmiramar.com, which includes the
21 location of Plaintiffs’ home on Orion Drive within the military installation just
22 southwest of the North Gate;
23 (5) Exhibit E-1, Excerpts from the United States Marine Corps F-35B West Coast
24 Basing Final Environmental Impact Statement, v.1, by NAVFAC, 2010;
25 Plaintiffs have not opposed Defendants’ request for judicial notice of the documents
26 received as a result of the Touhy request, attached as Exhibits B and C or Exhibits A-1 to
27 E-1, filed in support of Defendants’ MSJ. The documents from the Touhy request and
28 Exhibits A-1 to E-1 appear to be appropriate items for the Court to accept judicial notice.
1 It appears that the accuracy of the source cannot be questioned, and the items can be
2 accurately and readily determined from the source. For that reason, the request for judicial
3 notice of Exhibits B and C and Exhibits A-1 to E-1 is GRANTED.
4 C. Evidentiary Objections
5 The Court now addresses the various objections Defendants lodged to evidence and
6 declarations submitted by Plaintiffs.
7 1. Declaration of Lenden Webb
8 Defendants generally object that the declaration lacks foundation and gives improper
9 lay opinion testimony and fails to present adequate foundation for or substantiate his
10 conclusions regarding jurisdiction of MCAS Miramar that Mr. Webb contends to be fact,
11 solely based upon his review and assessment of certain documents. ECF No. 63-1.
12 Defendants specifically object to paragraphs 8-10, and 12-20. Id. The Court will address
13 Defendants’ specific arguments below.
14 a. Paragraph 8
15 In paragraph 8, it states:
16 Plaintiffs reject each of these claims and contend that remanding the case to
be litigated in state court is proper because: (1) the events alleged in the
17
Complaint did not take place on a federal enclave and instead took place on a
18 portion of Marine Corps. Air Station Miramar that falls under federal
proprietary jurisdiction; (2) Defendants are not a federal agency; and (3)
19
Defendants did not act under a federal officer. In essence, remanding the
20 instant case is proper here for the same reasons the Childs case was remanded.
21
Webb Decl. ¶ 8.
22
Defendants object to this testimony as pure argument of counsel, a legal conclusion
23
and lay opinion of counsel. ECF No. 63-1 at 4. The Court agrees. This paragraph offers no
24
facts and is improper argument presented in an improper format. These substantive
25
arguments would be properly included in a memorandum of points and authorities in
26
support of or opposition to a motion, not a declaration. See Oliver v. Hot Topic, Inc., No.
27
10cv1111 BEN (AJB), 2010 WL 4261473, at *1 (S.D. Cal. July 27, 2010); see also
28
1 Roosevelt Irrigation District v. United States, No. CV-15-00448-PHX-JJT, 2019 WL
2 1087939, at *4 (D. Ariz. Mar. 7, 2019) (precluding a witness from testifying as to the legal
3 conclusion of whether the United States possessed a legal interest in certain property). The
4 objection is SUSTAINED.
5 b. Paragraph 9
6 In paragraph 9, it states:
7 The Childs case and the instant case involve the exact same Defendants, and
an extremely similar fact pattern. Both cases involve military families that
8
brought suit for injuries and damages alleged to have been caused, generally,
9 by Defendants San Diego Family Housing, LLC and Lincoln Military
Property Management, LP’s negligence in the ownership, maintenance, and
10
management of on-base housing. The only real distinction between the two
11 (2) cases is that the Childs matter deals with Defendants’ conduct at
Coronado, while the instant case deals with Defendants’ conduct at Marine
12
Corps. Air Station Miramar (“MCAS Miramar”).
13
Webb Decl. ¶ 9.
14
Defendants object to this testimony as pure argument of counsel, and as irrelevant
15
to this case as to the federal enclave argument. ECF No. 63-1 at 5. The Court agrees. This
16
is improper argument and inappropriate for this declaration. The objection is
17
SUSTAINED.
18
c. Paragraph 10
19
In paragraph 10, it states:
20
The issue of whether Defendants can properly assert jurisdiction based upon
21
the federal agency or federal officer statutes was analyzed by the Hon. Judge
22 Miller in detail in the Childs matter, and nothing about the instant case would
impact that analysis in any way. Both cases involve the same entities, doing
23
the same kind of work under the same operative agreements with the
24 government. In short, Defendants were not held to be a federal agency, nor
were they held to have acted under a federal officer, though this issue is now
25
on appeal, it is notable that even the United States itself disagrees with
26 Defendants’ position concerning federal officer/agency jurisdiction. Plaintiffs
agree with the Hon. Judge Miller’s analysis of this issue and contend that the
27
same should be upheld in the instant case.
28
1 Webb Decl. ¶ 10.
2 Defendants object to this testimony as pure argument of counsel, and as irrelevant
3 to this case on the issues of exclusive federal jurisdiction at MCAS Miramar. ECF No. 63-
4 1 at 6. The Court agrees. Once again, this is improper argument and inappropriate for this
5 declaration. The objection is SUSTAINED.1
6 d. Paragraph 12
7 In paragraph 12, it states:
8 The question of what kind of jurisdiction applies the Brown family’s former
home at MCAS Miramar (1424 Orion Drive) was addressed to some extent in
9
conjunction with Defendants’ recently-filed Motion for Summary Judgment
10 (Docket # 42). In support of their claim that 1424 Orion Drive rests on a
federal enclave, Defendants submitted an Environmental Impact Statement
11
for Military Family Housing, a copy of an excerpt from the Department of
12 Defense Manual, a County Assessor/Recorder Map of MCAS Miramar, and a
map of the “Main Station” of Marine Corps Air Station Miramar from the
13
military base’s website (Docket #42-4). Attached hereto as Exhibit “5”, and
14 as Exhibit “G” to the Request for Judicial Notice submitted concurrently
herewith, is a true and correct copy of the Declaration of Kristin Reyna Dehart
15
in Support of Defendants’ Motion for Summary Judgment which contains the
16 aforementioned documents as exhibits. These are the same documents
submitted in support of Defendants’ Notice of Removal (Docket # 1-2).
17
However, conspicuously absent from any of the documentation Defendants
18 submitted is any specific analysis of the jurisdictional make-up of MCAS
Miramar, or any explanation of the boundaries between different types of
19
jurisdiction on base. This defect is particularly notable when compared to the
20 specificity and detail, as it relates to the question of jurisdiction, outlined in
the documentation produced in support of the instant Motion.
21
22 Webb Decl. ¶ 12.
23 Defendants object to this testimony as pure argument of counsel, not appropriate for
24 a declaration, and a pure legal conclusion. ECF No. 63-1 at 7. The Court agrees. This
25
26
27 1 Defendants further object to this testimony because it contradicts the evidence based on a recent amicus
brief filed by the United States. ECF No. 63-1 at 6. Considering that the Court is SUSTAINING the
28
1 paragraph contains improper argument and is inappropriate for a declaration. The objection
2 is SUSTAINED.
3 e. Paragraph 13
4 Defendants object to lines 17-20 in paragraph 13. That section states:
5 The remaining basis for Defendants’ removal of the instant action is
Defendants’ contention that the events alleged in the Complaint took place on
6
a federal enclave. However, this claim appears to be inaccurate based on
7 additional documents our office has received pursuant to Defendants’ own
Touhy request.
8
9 Webb Decl. ¶ 13:17-20.
10 Defendants object to this testimony as pure argument of counsel. ECF No. 63-1 at
11 8. The Court agrees. These lines in paragraph 13 are improper argument and is
12 inappropriate for a declaration. The objection is SUSTAINED.
13 f. Paragraph 14
14 In paragraph 14, it states:
15 In response to the Touhy request, the Department of the Navy’s Naval
Facilities Engineering Command produced a document entitled “Jurisdiction
16
Map” which clearly indicates that the northeast portion of the MCAS Miramar
17 – and specifically the Subject Property at 1424 Orion Drive, falls on a portion
of MCAS Miramar held under Proprietary Jurisdiction. A true and correct
18
copy of this Jurisdiction Map is attached hereto as Exhibit “7” and is
19 incorporated herein by reference, and as Exhibit “A” to the Request for
Judicial Notice submitted concurrently herewith. This Jurisdiction Map was
20
thereafter produced to my office via download link from Defendants’ counsel.
21
Webb Decl. ¶ 14.
22
Defendants object to this testimony on the grounds of hearsay, speculation and lack
23
of foundation and personal knowledge as to the conclusions Mr. Webb draws from the
24
documents and that it states a legal conclusion. ECF No. 63-1 at 9-11. The portion of this
25
paragraph that states the map “clearly indicates that the northeast portion of the MCAS
26
Miramar – and specifically the Subject Property at 1424 Orion Drive, falls on a portion of
27
MCAS Miramar held under Proprietary Jurisdiction,” is improper argument and
28
1 inappropriate for a declaration. The objection to this portion of paragraph 14 is
2 SUSTAINED. The objection to the remainder of the paragraph is OVERRULED. The
3 Court will address the objection to Exhibit A to RJN below.
4 g. Paragraph 15
5 In paragraph 15, it states:
6 Attached hereto as Exhibit “8” is a true and correct “zoomed-in” copy of the
Jurisdiction Map (Exhibit “7”) which provides a more clear view of the
7
location of 1424 Orion Drive compared to the jurisdictional boundaries
8 outlined on the map. Said differently office simply zoomed in on 1424 Orion
Drive on the Jurisdiction Map, and took a screenshot for the Court’s
9
convenience – the screenshot is attached hereto as Exhibit “8”.
10
Webb Decl. ¶ 15.
11
Defendant objects to this testimony and Exhibit 8 on the grounds that such
12
statements alone are not sufficient to authenticate the map. The Court will address
13
authentication of Exhibit 8 below.
14
h. Paragraph 16
15
Defendants object to lines 15-18 in paragraph 16. That section states:
16
As previously stated, while the Childs case relates to a property at Naval
17
Amphibious Base Coronado (NAB Coronado), the issues on appeal in Childs
18 are near identical to those at issue in the instant case. More specifically, the
analysis of Defendants’ assertion of federal officer jurisdiction and federal
19
agency jurisdiction is the same between the two cases.
20
Webb Decl. ¶ 16:15-18.
21
Defendants object to this testimony as pure argument of counsel. The Court agrees.
22
These two sentences contain improper argument and are not appropriate for a declaration.
23
The objection is SUSTAINED.
24
i. Paragraph 17
25
Defendants object to lines 23-26 in paragraph 17. That section states:
26
As previously stated, while the Child case relates to a property at Naval
27
Amphibious Base Coronado (NAB Coronado), the issues on appeal in Childs
28 are near identical to those at issue in the instant case. More specifically, the
1 analysis of Defendants’ assertion of federal officer jurisdiction and federal
agency jurisdiction is the same between the two cases.
2
3 Webb Decl. ¶ 17:23-26.
4 Defendants object to this testimony as pure argument of counsel. The Court agrees.
5 These two sentences contain improper argument and are not appropriate for a declaration.
6 The objection is SUSTAINED.
7 j. Paragraph 18
8 In paragraph 18, it states:
9 On Friday October 25, 2024 my office received a copy of numerous additional
documents produced by the Department of the Navy to Defendants pursuant
10
to Defendants’ Touhy request. Included in this production was (1) the Order
11 of Immediate Possession of Parcels (Civil No. 1333-SD) filed on March 3,
1952 in the United States District Court for the Southern District of California;
12
and (2) an internal memo from James Frey, Staff Counsel for the State Lands
13 Commission sent on September 9, 2009 concerning the jurisdictional status
of various portions of MCAS Miramar, and the attached “Navy supplied
14
jurisdiction map: related to acquisitions by the United Staes for MCAS
15 Miramar from 1939 onward. A true and correct copy of both these documents
are attached hereto as Exhibit “11” and Exhibit “12” respectively, and are also
16
attached to the Request for Judicial Notice submitted concurrently herewith
17 as Exhibits “J” and “K”.
18
Webb Decl. ¶ 18.
19
Defendants object to this testimony on the grounds of hearsay, speculation and lack
20
of foundation and personal knowledge as to the conclusions Mr. Webb draws from the
21
documents. ECF No. 63-1 at 13-15. The objection is OVERRULED, as Mr. Webb appears
22
to lay the foundation as to how the documents were received, but the Court will separately
23
address each of the mentioned documents below.
24
k. Paragraph 19
25
In paragraph 19, it states:
26
These documents further demonstrate that the 1424 Orion Drive falls on a
27 portion of MCAS Miramar held under proprietorial jurisdiction. The
Complaint in Condemnation (Civil No. 1333) was filed on March 3, 1952,
28
1 and is referenced in all relevant jurisdictional maps as the method by which
the United States acquired the land on which 1424 Orion Drive is located (see
2
the jurisdictional maps attached hereto as Exhibit “7” and Exhibit “12”).
3 This is important because in 1951, California enacted a statute stating that “the
Legislature of California consents to the acquisition by the United States of
4
land within this State and upon and subject to” a series of “express conditions
5 and reservations,” including that “[t]he United States must in writing have
assented to acceptance of jurisdiction over the land upon and subject to” those
6
“condition and reservations,” and that “the State Lands Commission” must
7 have found the conditions to be satisfied “and declared that [the] acquisition
is in the interest of the State.” (1951 Cal. Stat. ch. 875, § 1).
8
9 Webb Decl. ¶ 19.
10 Defendants object to this testimony on the grounds of hearsay, speculation, lack of
11 foundation and personal knowledge as to the conclusions Mr. Webb draws from the
12 documents. ECF No. 63-1 at 16-18. Defendants further object that this testimony states a
13 legal conclusion and is pure argument of counsel. Id. The Court agrees. This testimony
14 contains improper argument regarding the jurisdictional status of the Orion Property and
15 is not appropriate for a declaration. The objection is SUSTAINED.
16 l. Paragraph 20
17 In paragraph 20, it states:
18 The 2009 memo from the State Lands Commission further demonstrates that
the land falls under proprietorial jurisdiction, both as directly stated in the first
19
paragraph of Mr. Frey’s memorandum, and as demonstrated in the attached
20 maps and tables. While certain plots of land are listed in the “Federal
Jurisdiction” table as being under “partial” jurisdiction, the land acquired by
21
Civil No. 1333 is not listed, and is instead lumped into the ”Remainder” row
22 of the table, for which the degree of jurisdiction listed is “Proprietorial Interest
Only”.
23
24 Webb Decl. ¶ 20.
25 Defendants object to this testimony on the grounds of hearsay, speculation and lack
26 of foundation and personal knowledge as to the conclusions Mr. Webb draws from the
27 documents. ECF No. 63-1 at 19. Defendants further object that this testimony is
28 speculative, conclusory, makes a legal conclusion and is pure argument of counsel. Id. at
1 20-21. The Court agrees. This testimony is improper argument which is inappropriate for
2 a declaration. The objection is SUSTAINED.
3 2. Findings of Fact
4 Defendants object to the Plaintiffs’ request for judicial notice of the following fact:
5 the Orion Property, falls on a portion of MCAS Miramar which is considered federal
6 proprietary jurisdiction, not federal exclusive jurisdiction. Defendants’ objection is
7 SUSTAINED and the request for judicial notice of this alleged fact is DENIED since the
8 proposed fact is subject to “reasonable dispute” between the parties. See Lee, 250 F.3d at
9 688.
10 3. Exhibit A – Jurisdiction Map
11 Defendants object to the Jurisdiction Map, and a zoomed-in version, attached as
12 Exhibit 8 to the Webb Decl. on the grounds that Plaintiffs have not properly authenticated
13 the map. ECF No. 63-1 at 3. Further, Defendants argue that the Van Slyke Decl. is
14 insufficient to authenticate the map. ECF No. 69 at 3. The Van Slyke Decl. is “silent on
15 when exactly the map was prepared … what was relied upon to prepare it, whether it was
16 accurate as of th[e] time it was prepared, [and] whether it is still accurate as of today.” Id.
17 Defendants correctly argue that the Van Slyke Decl. does not address the map’s origins or
18 accuracy. Id. The declaration is eight paragraphs in length, but only three paragraphs
19 address the map and state as follows:
20 I am generally familiar with the types of records and documents that the
NAVFAC Southwest Cadastral Department maintains with regard to its
21
official responsibilities, including maps.
22
The document attached hereto as Exhibit A is a true and correct copy of a
23
document entitled “JURISDICTION MAP” of “Naval Air Station, Miramar,
24 California” (such installation today is identified as Marine Corps Air Station
Miramar (MCAS Miramar)), prepared by the Department of the Navy, Naval
25
Facilities Engineering Command.
26
The document attached hereto as Exhibit A is a DON official record kept in
27
the regular course of the DON’s business.
28
1 Van Slyke Decl. ¶ 5-7.
2 Plaintiffs argue that their December 20, 2024, Touhy request, along with the Van
3 Slyke Decl., the signed letter from Samuel Provost, the MCAS Miramar Jurisdiction Map,
4 prepared by the Public Works Department for MCAS Miramar, and various excerpts from
5 the 2011 Jurisdiction Survey are sufficient supporting documentation providing sufficient
6 grounds for this Court to take judicial notice of the Jurisdiction Map. ECF No. 68 at 2.
7 Further, Plaintiffs have repeatedly argued the similarities of this case and the Childs case.
8 In Childs, the United States Government intervened and argued that the disputed
9 property was not within a federal enclave. Childs, 714 F. Supp. 3d at 1268. In support of
10 their argument, the United States submitted a parcel map and a lengthy declaration of Lonie
11 Cyr, a Senior Land Surveyor at NAVFAC Southwest in support of its parcel map. Id. at
12 1269. In his declaration, Mr. Cyr provided a detailed historical analysis of the jurisdictional
13 status of NAB Coronado and averred that he had the “authority and responsibility for
14 managing United States Navy and Marine Corps land interests,” and reviewed “United
15 States Navy and California State Lands Commission documents.” Id. Nonetheless, the
16 Court sustained an objection to the parcel map submitted because the Government did not
17 provide any indication of the map’s origin and as a result the Court could not “readily
18 determine the accuracy of the information contained in th[e] map—and cannot simply
19 assume th[e] information to be true.” Id. at 1270.
20 First, of the documents Plaintiffs cite to support the Court taking judicial notice of
21 the Jurisdiction Map, only the Van Slyke Decl. discusses the Jurisdiction Map. The other
22 documents do not mention the Jurisdiction Map and have no effect on the Court’s decision
23 to take judicial notice of the document. In addition, there are questions of reliability with
24 several of the cited documents, which the Court will address below. The Court will
25 therefore focus its attention to the Van Slyke Decl.
26 The Van Slyke Decl. includes far less information than the declaration in Childs.
27 The Van Slyke Decl. does not describe Mr. Van Slyke’s personal knowledge of the
28 Jurisdiction Map, nor its origin. At most, Mr. Van Slyke’s declaration provides that the
1 map is currently present in NAVFAC’s files. However, the declaration is lacking any
2 sufficient basis for the Court to take judicial notice of the map or its contents. See Khoja v.
3 Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (overruled District Court’s taking
4 judicial notice of facts within a document where the accuracy and interpretation of the facts
5 remained in dispute); see also Malheur Forest Fairness Coal. v. Iron Triangle, LLC, 699
6 F. Supp. 3d 1086, 1102-03 (D. Or. 2023) (declining to take judicial notice of map where
7 court could not assume accuracy of information contained within it) Therefore,
8 Defendants’ objection is SUSTAINED and Plaintiffs’ request for judicial notice is
9 DENIED.
10 4. Exhibit J – Order of Immediate Possession of Parcels
11 Defendants object to the Order of Immediate Possession of Parcels, on the grounds
12 that Plaintiffs have not authenticated the items, nor provide lay opinion testimony on the
13 meaning of the items, hearsay and lack of personal knowledge regarding the creation of the
14 items. ECF No. 63-1 at 2-3, 13-15.
15 The Order of Immediate Possession of Parcels was received from the DoN in
16 response to Defendants’ Touhy request. A court may take judicial notice of the existence
17 of matters of public record, but not the truth of the facts cited therein that are subject to
18 reasonable dispute. See Lee, 250 F.3d at 689-90; see also Interstate Natural Gas Co., 209
19 F.2d at 385 (holding a court may take judicial notice of records and reports of
20 administrative bodies). When a court takes judicial notice of a public record, “it may do so
21 not for the truth of the facts recited therein, but for the existence of the [record], which is
22 not subject to reasonable dispute over its authenticity.” Malheur Forest Fairness Coalition,
23 699 F. Supp. 3d at 1102 (internal citations and quotations omitted). The objection is
24 OVERRULED and the request for judicial notice of Exhibit J is GRANTED, subject to
25 the limitations noted.
26 5. Exhibit K – Internal Memo from James Frey
27 Defendants object to the Internal Memo from James Frey, on the grounds that
28 Plaintiffs have not authenticated the items, nor provide lay opinion testimony on the
1 meaning of the items and has no personal knowledge regarding the creation of the items.
2 ECF No. 63-1 at 2-3, 13-15. Further, Defendants note that the internal memo from Mr.
3 Frey contains speculation and hearsay as Mr. Frey calls out discrepancies in the documents
4 and maps from the Navy with acquisition documents relating to Camp Kearny. ECF No.
5 63-1 at 14-15.
6 In the internal memo, James Frey, staff counsel at the California State Lands
7 Commission, sent an email to a Captain Crosswell. The email was dated September 9,
8 2009, and had several jurisdiction maps attached to it. The memo and attached documents
9 were received from the DoN in response to Defendants’ Touhy request. As mentioned
10 above, a court may take judicial notice of the existence of matters of public record, but not
11 the truth of the facts cited therein that are subject to reasonable dispute. See Lee, 250 F.3d
12 at 689-90. The objection is OVERRULED and the request for judicial notice of Exhibit K
13 is GRANTED, subject to the limitations noted.
14 6. Exhibit M – Declaration of Scott Van Slyke
15 Defendants object to the declaration of Mr. Van Slyke as hearsay, arguing that
16 Plaintiffs failed to submit any evidence showing that the declaration of Mr. Van Slyke was
17 received specifically in response to their Touhy request. ECF No. 69-2 at 6. Further,
18 Defendants argue that the declaration lacks foundation and sufficient support for Mr. Van
19 Slyke’s credentials, does not include any curriculum vitae with his declaration, nor does he
20 stamp it with his land surveyor’s stamp, nor does he include his license number or any
21 description of his duties and responsibilities for NAVFAC. Id. at 6-7.
22 The Court notes the issues that Defendants have cited and as discussed above, the
23 declaration is lacking sufficient foundation for the Jurisdiction Map. However, the
24 declaration appears to be from the personal knowledge of Mr. Van Slyke and is sufficient
25 to establish generally that he is employed by the DoN as a Senior Land Surveyor at
26 NAVFAC Southwest for the stated length of time and for Plaintiffs’ filing of a Touhy
27 request. Defendants’ objections to that information are, therefore, OVERRULED and the
28 request for judicial notice is GRANTED.
1 However, to the extent that Mr. Van Slyke is familiar with the “types of records and
2 documents that NAVFAC Southwest maintains with regard to its official responsibilities,
3 including maps,” as well as references to the Jurisdiction Map lack the proper foundation.
4 “Personal knowledge may be inferred from declarations that concern areas within the
5 declarant’s job responsibilities.” Silva v. AvalonBay Cmtys., Inc., No. LA CV15-04157
6 JAK (PLAx), 2015 WL 11422302, at *4 n.1 (C.D. Cal. Oct. 8, 2015). Here, Mr. Van Slyke
7 does not aver how in his current position he would have access to documents that NAVFAC
8 Southwest maintains, nor how he would have knowledge of and access to the Jurisdiction
9 Map. As to the remainder of his declaration related to those issues and the type of
10 jurisdiction over the parcel of land on which the Orion Property sits, Defendants’
11 objections are SUSTAINED.
12 7. Exhibit N – Plaintiff Saint Brown’s Freedom of Information Act Request
13 Defendants object to this exhibit as lacking personal knowledge, since there was no
14 declaration from Plaintiff Saint Brown that he submitted this request. ECF No. 69-2 at 9.
15 Defendants also argue that Brown did not make an official FOIA request, based on the
16 requirements for such a request. Id. The Court agrees, Mr. Webb lacks personal knowledge
17 as to the FOIA request. However, in Brown’s declaration submitted in support of Plaintiffs’
18 Opposition to Defendant’s Motion for Summary Judgment, Brown stated that he submitted
19 a FOIA request and would provide the documents from the request to his attorney as soon
20 as he received them. Declaration of Saint Brown in Opposition to Defendant’s Motion for
21 Summary Judgment; ECF No. 48-2 ¶ 10 (“Brown Decl.”). Based on the testimony of
22 Brown, that is sufficient for the Court to infer Brown possesses relevant personal
23 knowledge as to the FOIA request and any documents received as a result of the FOIA
24 request. Defendants’ objection is OVERRULED and the request for judicial notice is
25 GRANTED.
26 8. Exhibit O – Letter from Samuel Provost
27 Defendants object to this exhibit as lacking personal knowledge and that the
28 document was not properly authenticated. ECF No. 69-2 at 9. The documents were
1 addressed to Brown and were received pursuant to Brown’s FOIA request. Since there is
2 sufficient personal knowledge regarding Brown’s FOIA request, as stated above, and the
3 letter is from a government agency, the objection is OVERRULED and the request for
4 judicial notice is GRANTED.
5 9. Exhibit P – Jurisdiction Map from 2014
6 Defendants object to this exhibit on the grounds of hearsay, lack of foundation and
7 personal knowledge of Mr. Webb as to the FOIA request and what was received or not
8 received in response to it. ECF No. 69-2 at 10. Defendants also object that the documents
9 are not properly authenticated. Id. As stated above, the documents were received as a result
10 of Brown’s FOIA request, and the documents appear to be a public record. A court may
11 take judicial notice of the existence of matters of public record, but not the truth of the facts
12 cited therein that are subject to reasonable dispute. See Lee, 250 F.3d at 689-90. The
13 objection is OVERRULED and the request for judicial notice is GRANTED.
14 10. Exhibit Q – 2011 Jurisdiction Survey
15 Defendants object to the 2011 Jurisdiction Survey on the grounds of hearsay, and
16 lack of foundation and personal knowledge. ECF No. 69-2 at 11. For the same reasons as
17 stated regarding Exhibit P, the objection is OVERRULED and the request for judicial
18 notice is GRANTED.
19 IV. LEGAL ANALYSIS
20 Defendants argue this Court has federal subject matter jurisdiction on three bases.
21 First, Defendants contend this Court has federal subject matter jurisdiction pursuant to 28
22 U.S.C. § 1331, because the events alleged in Plaintiffs’ complaint occurred on a federal
23 enclave. ECF No. 1 ¶ 4. Second, Defendants contend this Court has federal subject matter
24 jurisdiction pursuant to 28 U.S.C. § 1442, because SDFH and LMPM were, at all relevant
25 times, (a) acting under a federal officer, and (b) because SDFH is a federal agency. Id. ¶¶
26 24-30.
27 / / /
28 / / /
1 A. Federal Enclave Doctrine
2 A federal enclave is land over which the federal government exercises exclusive
3 legislative jurisdiction. See Paul v. United States, 371 U.S. 245, 263-64 (1963); United
4 States v. Jenkins, 734 F.2d 1322, 1326 (9th Cir. 1983). Article I, section 8, clause 17 of the
5 United States Constitution grants the federal government power “[t]o exercise exclusive
6 Legislation … over all Places purchased by the Consent of the Legislature of the State in
7 which the Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and
8 other needful Buildings.” U.S. Const., Art. I, § 8, cl. 17. A federal enclave is created where
9 the federal government acquires land by purchase or condemnation with the consent of the
10 state or commonwealth in which the land is located. See Humble Pipe Line Co. v.
11 Waggonner, 376 U.S. 369, 371-72 (1964). Federal enclaves include “numerous military
12 bases, federal facilities, and even some national forests and parks.” Azhocar v. Coastal
13 Marine Servs., Inc., No. 13-CV-155 BEN (DHB), 2013 WL 2177784, at *1 (S.D. Cal. May
14 20, 2013) (quoting Allison v. Boeing Laser Technical Servs., 689 F.3d 1234, 1235 (10th
15 Cir. 2012); see also U.S. Const. art. I, § 8, cl. 1).
16 For land acquired by the United States after 1940, the Act of October 9, 1940, 40
17 U.S.C. § 255 (re-codified as 40 U.S.C. § 3112) applies. See Childs, 714 F. Supp. 3d at
18 1271. Under the Act, “United States agencies and authorities may accept exclusive or
19 partial jurisdiction over lands acquired by the United States by filing a notice with the
20 Governor of the state on which the land is located or by taking other similar appropriate
21 action.” Adams v. United States, 319 U.S. 312, 313 (1943); see also United States v.
22 Cassidy, 571 F.2d 534, 536 (10th Cir. 1978) (“As to lands acquired by the United States
23 after 1940, it has been held that the United States does not acquire jurisdiction over lands
24 acquired by it unless it gives notice of acceptance.”).
25 1. MCAS Miramar
26 Defendants contend that MCAS Miramar and the Orion Property are on a federal
27 enclave. Plaintiffs contend that the Orion Property is on a parcel of MCAS Miramar that is
28 considered proprietary jurisdiction. Plaintiffs primarily rely on the Jurisdiction Map
1 (Exhibit A to RJN) to support their position, but for the reasons discussed above, the Court
2 declines to take judicial notice of the map and does not consider it. The Court will now
3 analyze the remaining evidence available to determine the jurisdictional status of the Orion
4 Property.
5 Defendants argue that Plaintiffs attached several maps to their motion and did
6 nothing to research or attempt to cross-check the attached maps against the numerous
7 acquisition documents’ property descriptions to confirm that the maps were correctly
8 drawn or evaluate whether more reference documents would be needed to do so. ECF No.
9 63 at 6. Defendants further argue that the origins and purposes of the maps Plaintiffs present
10 are unclear as the maps were among several hundred pages of reports and documents
11 produced by the DoN. Id. Additionally, Defendants argue that NAVFAC has authored two
12 reports, in 2004 and 2010, and via the established history of Camp Kearny on which the
13 Court has relied several times to conclude that MCAS Miramar is under exclusive
14 legislative jurisdiction. Id. at 7.
15 Plaintiffs contend that the Orion Property is on a parcel of MCAS Miramar that is
16 considered proprietary jurisdiction based on documents obtained after a Touhy request by
17 both parties. ECF No. 62-2 at 11. Additionally, Plaintiffs argue that the Order of Immediate
18 Possession of Parcels (Exhibit J to RJN) proves that the Orion Property is on a parcel of
19 MCAS Miramar that was purchased in 1952 and no notice of acceptance per 40 U.S.C. §
20 3112 has ever been produced in the instant case. ECF No. 62-2 at 12; Exhibits A, J, K to
21 RJN.
22 Further, Plaintiffs argue that the documentation Defendants have submitted in this
23 case regarding the issue of jurisdiction at MCAS Miramar is silent as to the specific parcel
24 at issue in this case. ECF No. 62-2 at 13. Plaintiffs also argue that NAVFAC Environmental
25 Impact Studies and prior cases cited by Defendants do not address the parcel of land that
26 the Orion Property sits on MCAS Miramar. ECF No. 65 at 2. Further, Plaintiffs argue that
27 the letter and attachments from James Frey support the conclusion that the portion of
28 MCAS Miramar on which the Orion Property lies was acquired in 1952. Id. at 4. Lastly,
1 Plaintiffs argue that the additional documentation produced pursuant to Plaintiffs’ FOIA
2 request, a jurisdiction map of MCAS Miramar prepared by MCAS Miramar’s Public
3 Works Department on September 26, 2014 (Exhibit P to Supp RJN); and a Jurisdiction
4 Summary and the table of contents of a 2011 Jurisdiction Survey performed at MCAS
5 Miramar with corresponding maps of MCAS Miramar (Exhibit Q to Supp RJN) support
6 Plaintiffs’ assertion that the Orion Property lies on a portion of MCAS Miramar that is
7 proprietary jurisdiction. ECF No. 68 at 6.
8 In response to the 2009 email from James Frey, Defendants argue that the email
9 indicates that there is a discrepancy between the Camp Kearny records and the maps on
10 which Plaintiffs try to rely. Id. at 7-8. Defendants also argue that Mr. Frey speculates as to
11 land acquisitions in his email, but there is no evidence to support his statement that the
12 property was sold at some point and then re-purchased later. Id. at 8. The Court agrees.
13 Additionally, Defendants argue that the Court should take NAVFAC’s written
14 pronouncement in 2010, a year after Mr. Frey’s letter, as the best evidence from the Navy
15 on the jurisdictional status of MCAS Miramar. Id.
16 The Order of Immediate Possession of Parcels, Civil No. 1333, indicates that large
17 swaths of land were purchased in 1952. Exh. J To RJN; ECF No. 62-1 at 610-624.
18 However, throughout the document, there are paragraphs that appear to be crossed out,
19 with an “x” through them. See generally ECF No. 62-1 at 614, 617, 623-624. It is unclear
20 who crossed out these paragraphs, why they were crossed out and the effect of crossing
21 them out. Without any information, it is difficult for the Court to draw any conclusions
22 from this document. Further, the information provided in the 2011 Jurisdiction Survey
23 states Civil No. 1333 was acquired in 1953. Exh. Q to Supp. RJN Additionally, several of
24 the maps submitted with the memo from James Frey notes that a declaration of taking,
25 dated November 19, 1952, April 13, 1953, and June 15, 1953, was submitted for Civil No.
26 1333, which conflicts with other maps among the maps attached to James Frey’s memo, as
27 several maps indicate that only a small portion of MCAS Miramar is under exclusive
28 federal jurisdiction. Exh. K to RJN at 629, 633, 637.
1 Additionally, the third map in the 2011 Jurisdiction Survey contradicts the first two
2 maps, and the maps attached to James Frey’s letter. The third map depicts that land shown
3 as proprietary jurisdiction in the first two maps, and the maps attached to James Frey’s
4 letter are actually federal exclusive jurisdiction. Exh. Q to Supp. RJN at 3. There is no
5 discussion as to when any of these maps were created, who created them or the accuracy
6 of the maps, including the map in Exhibit P to Supp. RJN. The third map also disputes
7 maps from the Order of Immediate Possession of Parcels, Civil No. 1333 (Exh. J to RJN).
8 The documents themselves create a reasonable dispute regarding their accuracy. Although
9 the Court took judicial notice of the documents generally, the Court does not take judicial
10 notice of the contents of the maps for the stated reasons. See Malheur Forest Fairness
11 Coal., 699 F. Supp. 3d at 1102. Since the maps contradict themselves, the Court cannot
12 draw any conclusions from any of the maps regarding the jurisdictional status of the Orion
13 Property and does not consider any of the maps in its evaluation of the jurisdictional status
14 of the Orion Property.
15 Next, the Court considers the email from James Frey. In the email from James Frey,
16 Mr. Frey discussed five acquisitions of land by the United States between 1939 and 1943
17 and letters of acceptance for each acquisition. Exh. K to RJN. Mr. Frey then stated that a
18 Navy supplied jurisdiction map concurs on those acquisitions and showed the degree of
19 jurisdiction to be proprietorial. Id. Mr. Frey was unable to give dates of the acquisitions as
20 he said they were not provided. Id. Mr. Frey then acknowledged a discrepancy between the
21 jurisdiction maps he attached, the acquisition history and the establishment of Camp
22 Kearny in the World War I era. Id. Mr. Frey then speculated that the United States sold the
23 World War I lands at some point and then reacquired them during World War II, but does
24 not provide any records or documentation to support that statement that the land was sold
25 and later re-purchased. Id. However, Mr. Frey does confirm that he’s “researched the [State
26 Land] Commission’s files for jurisdiction at Miramar [and] [o]ur file shows that
27 historically Camp Kearny was located at or near the present facility during WWI and recites
28 that the United States has owned the property since that era.” Id. Mr. Frey’s email and the
1 attached documents fail to show that the Orion Property is on a portion of land that is
2 subject to proprietary jurisdiction.
3 The Court now considers the remaining documents submitted by the parties and prior
4 court decisions regarding the jurisdictional history of MCAS Miramar. The Court agrees
5 with Defendant that the NAVFAC authored reports, in 2004 and 2010, and prior court
6 decisions regarding the jurisdictional history of MCAS Miramar support Defendants’
7 position that MCAS Miramar and the Orion Property are part of a federal enclave. See ECF
8 No. 42-4 at 57 (“MCAS Miramar is considered to be under exclusive legislative
9 jurisdiction.”).
10 The Court addressed the ownership history of MCAS Miramar in Doe v. Camp
11 Pendleton & Quantico Housing, LLC, No. 20-cv-224-GPC-AHG, 2020 WL 1890576 (S.D.
12 Cal. Apr. 16, 2020). That case involved facts similar to those at issue here, and the same
13 defendants and counsel as appear in this case. The Court now repeats the ownership history
14 of MCAS Miramar from Doe and the attached exhibits in this action.
15 Camp Kearny was established July 18, 1917, named in honor of General Stephen
16 Watts Kearny who led the Army of the West to San Diego in 1846. ECF No. 63-5 at 4. The
17 historical record shows that the DoN purchased Camp Kearny, “the land that ultimately
18 became MCAS Miramar,” in February 1931. Doe, 2020 WL 1890576, at *5. In 1917, the
19 War Department leased Camp Kearny, and while most of the Camp’s buildings were
20 destroyed or salvaged in the 1920s, the property continued to be used by the Marines
21 through the 1930s. Id.; DeHart Decl., Exh. B at 9, 13. Defendants have sufficiently
22 established that the federal government purchased MCAS Miramar in 1931 and therefore
23 exercises ownership over the property, including the Orion Property.
24 There are a host of cases throughout the circuit, where the court has found that
25 MCAS Miramar is a federal enclave. See Naigan v. Nana Services, LLC, No. 12cv2648-
26 LAB (NLS), 2013 WL 5278641, at *1 (S.D. Cal. Sept. 18, 2013) (“MCAS Miramar was
27 established as a federal enclave no later than July 17, 1943.”); see also Jimenez v. Haxton
28 Masonry, Inc., No. 18-cv-07109-SVK, 2020 WL 3035797, at *4 (N.D. Cal. June 5, 2020)
1 (MCAS Miramar was established as a federal enclave in 1943). In each of these cases, the
2 parties stipulated to the date of establishment of MCAS Miramar as a federal enclave.
3 Based on the exhibits filed in this case, the Court finds that MCAS Miramar and the Orion
4 Property are on a federal enclave and have been a federal enclave since 1931.
5 “Federal courts have federal question jurisdiction over tort claims that arise on
6 ‘federal enclaves.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir.
7 2006). “In determining whether a claim arises on a federal enclave, courts have simply
8 looked to see where all the ‘pertinent events’ took place.” Rosseter v. Industrial Light &
9 Magic, No. C 08-04545 WHA, 2009 WL 210452, at *2 (N.D. Cal. Jan. 27, 2009) (citing
10 Stiefel v. Bechtel Corp., 497 F. Supp. 2d 1138, 1148 (S.D. Cal. 2007)). Here, all of the
11 pertinent alleged events took place on the Orion Property and therefore, the Court finds
12 that it properly exercises federal question jurisdiction over Plaintiffs’ claims.
13 V. FEDERAL OFFICER
14 Defendants also argue that this Court has subject matter jurisdiction over this matter
15 pursuant to 28 U.S.C. § 1442, because SDFH and LMPM were, at all relevant times, acting
16 under a federal officer, and because SDFH is a federal agency. Since the Court has
17 determined that it may properly exercise jurisdiction, as discussed above, the Court
18 declines to conduct an analysis under these additional theories of subject matter
19 jurisdiction.
20 VI. CONCLUSION
21 For the reasons stated above, the Court finds that the Orion Property located on
22 MCAS Miramar is under a federal enclave and the Court has federal subject matter
23 jurisdiction over this matter. Plaintiffs’ motion to remand this matter to state court is
24 DENIED.
25 / / /
26 / / /
27 / / /
28 / / /
I IT IS SO ORDERED.
2 || Dated: March 21, 2025
3 Str J.
4 Honorable James E. Simmons Jr.
5 United States District Judge
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