Update on Tule Lake Committee Litigation

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From left: Yoshinori “Toso” Himel, Barbara Takei, Mark Merin and Paul Masuhara in front of the Robert T. Matsui Federal Courthouse in Sacramento, August 2018. (Photo by Josh Kaizuka)

By BARBARA TAKEI

In early 2020, as the coronavirus pandemic unfolded in the U.S. and throughout the world, the Tule Lake Committee’s pro bono lawyers, Mark Merin, Yoshinori Himel and Paul Masuhara, spent many weeks responding to new developments in the committee’s state and federal litigation to preserve the Tule Lake concentration camp site.

A late-February appearance in Modoc County Superior Court by the committee’s lawyers culminated six years of work seeking Modoc County’s compliance with state environmental review laws that apply to the Tulelake airstrip property. The 359-acre airstrip occupies two-thirds of the WWII-era concentration camp residential area where more than 24,000 Japanese Americans lived and where 331 men, women and children died.

The Superior Court judge’s decision awarded attorney’s fees to the committee for the legal effort required to respond to the Modoc Tribe’s lawsuit, Modoc Nation v. Tule Lake Committee, claiming the committee owed attorney fees to the Modoc Tribe.

The tribe’s lawsuit argued they performed a “public service” by attacking the committee’s work that seeks to preserve the Tule Lake site, a painful attack given the committee’s desire to work with indigenous people and preserve land sacred to both communities. Such actions by the Oklahoma Tribe have been bewildering, particularly their aligning with farmers and ranchers in the Tulelake region, working against local tribes working to protect sacred ancestral habitat.

In federal court, more than a year and a half has gone by since August 2018, when the committee filed for injunctive relief in Tule Lake Committee v. City of Tulelake, et. al., to seek judicial review of the City of Tulelake’s sale of the Tulelake airfield for $17,500, to the Modoc Nation of Oklahoma.

In March 2020, Federal District Judge Kimberly Mueller dismissed our case without prejudice. Judge Mueller’s dismissal and the lifting of a stay order allowed the committee file a new lawsuit, Tule Lake Committee v. FAA, et. al., which names the FAA, the Modoc Nation, and the City of Tulelake as parties to the lawsuit. The case seeks review of the conditions of the airport sale. Later this year, counsel are scheduled to appear in court to schedule a jury trial.

“We are pleased the committee prevailed in Modoc County Superior Court, and look forward to payment from the Modoc Nation toward the Tule Lake Committee’s legal expenses,” said Himel, one of the Tule Lake Committee’s lawyers, who donated hundreds of hours of pro bono work in the fight to preserve the historic civil rights site.

“This was a perverse and failed effort by the Modoc Tribe of Oklahoma to deter the Tule Lake Committee from exercising what the Superior Court called their ‘right of petition or free speech in connection with a public issue.’ This was another example of the Modoc tribe’s efforts to obstruct protection of a site sacred to Japanese Americans,” Himel said.

“We await scheduling in our newly filed federal civil rights case to challenge the many irregularities in the sale of the Tulelake airstrip property, and look forward to presenting our case to a federal judge and jury,” he reported.

Summary of State Litigation, 2014-2020

In early 2014, the committee wrote to the Modoc County Board of Supervisors, requesting they complete mandatory cultural and historic review of the 359-acre Tulelake airstrip located on the former barracks area of the concentration camp site. The request was triggered by the expiration of a 40-year lease between the city of Tulelake, the Tulelake airstrip owner, and Modoc County, the operator.

We contended the proposed lease extension mandated review of the site’s cultural and historical resources under the California Environmental Quality Act (CEQA), which protects historically significant properties like the Tule Lake concentration camp.

Tule Lake Segregation Center was designated as a State Historic Landmark in 1975. The FAA acknowledges the airstrip’s historic status, noting its eligibility for listing on the National Register of Historic Places. Portions of the site under federal authority were granted National Historic Landmark status in 2006, the highest level of recognition our government gives to a historic property.

Modoc County’s Board of Supervisors read our letter, but voted to go ahead with the lease extension, and to move forward on a $3.5 million dollar that would expand the runway and build a massive fence around the Tulelake airstrip.

The committee hired a lawyer specializing in environmental law, and in 2014, after the county’s lawyer responded by denying our request, the committee filed a petition against Modoc County urging compliance with CEQA.

Modoc County removed language in the lease agreement, however; that action failed to respond to the committee’s 2014 petition requesting they initiate mandatory CEQA review of the historically significant Tulelake airport property. The lack of responsiveness to the CEQA matter led to a new petition filed in 2017, reasserting the need for a comprehensive review of the site’s cultural and historic resources.

Tulelake Airport in Modoc County. (Photo by Martha Nakagawa)

The 2014 and the 2017 petitions were withdrawn in 2019 after Modoc County initiated the environmental review process the committee originally sought. But the Environmental Impact Report (EIR) will examine only the three-mile-long, ten-foot-wide strip of land underlying the fence construction, not the entire 359-acre Tulelake airport site, because the FAA will only grant funds to study the property directly affected by the fence. The committee decided there was little to be gained in continuing to press the county to study the entire site, primarily because Modoc County could not afford the cost due to its fiscal difficulties, and the FAA would not fund study beyond the fence perimeter.

The EIR is being now being prepared and Modoc County says it will seek public comment later this year, pending developments related to the coronavirus pandemic. The comment period will provide supporters of preserving this important place in Japanese American history an important opportunity to express their views over the proposed fence project and to advocate for the site’s preservation.

Your voice will matter in this process. The voices of 45,000 Japanese Americans who unanimously said “no” to a fence that would destroy the concentration camp site stopped construction of the fence scheduled to be built in 2015. The committee is regularly reminded that it takes vigilance and persistence to preserve history and to create a national park.

In what is expected to be the final chapter regarding the two CEQA petitions, in late February the committee’s legal team traveled to Modoc County to appear in Modoc County Superior Court to defend the Tule Lake Committee against a lawsuit filed by the Modoc Nation of Oklahoma, **Modoc Nation v. Tule Lake Committee.**

The tribe’s harassing lawsuit falsely claimed attorney fees from the committee, arguably, to pay the Modoc Nation for an alleged “public service” of the tribe’s representation of the City of Tulelake and the Modoc Nation in the CEQA cases.

In April, Superior Court Judge Francis W. Barclay dismissed the Modoc Nation’s lawsuit for attorney fees, and instead awarded attorney fees to the committee for the time and expense of fighting the claims made by the Oklahoma Tribe. Attorneys representing the Tule Lake Committee estimate the time and expense in defending the committee in state court against the claims of the Oklahoma Modoc will exceed $50,000.

Federal Litigation Over Sale of Tulelake Airstrip

In July 2018, the City of Tulelake gave the Tulelake airstrip property to the Modoc Nation of Oklahoma for the token sum of $17,500. The City Council did not discuss in public an offer of $17,500 from Modoc County, which had for 40 years leased and operated the Tulelake airstrip property. Nor did the City Council consider the Tule Lake Committee’s offer of $40,000, more than double what the Modoc Tribe paid.

Given the improprieties in the sale of the airstrip land, which allegedly is a “gift of public funds,” the Tule Lake Committee filed a lawsuit seeking an injunction, Tule Lake Committee v. City of Tulelake, et. al., to stop the sale. The injunction was denied, but the case was sent to the federal magistrate judge for settlement discussion.

The magistrate judge sealed the case in response to requests by the City of Tulelake and the Modoc Tribe of Oklahoma seeking to prevent the Tule Lake Committee from speaking publicly about Tule Lake Committee v. City of Tulelake, et. al., or issuing press releases concerning the litigation.

In March 2020, U.S. Eastern District of California Judge Kimberly Mueller issued an order, dismissing Tule Lake Committee v. City of Tulelake, et. al., without prejudice. The dismissal without prejudice enabled the committee to file a new complaint in federal court to address the legal issues.

Tule Lake Committee v. FAA, et. al., has a court scheduling date in August, when the case lawyers will convene to agree on a court date and begin preparation for a jury trial.

Stay tuned for new developments this fall regarding Tule Lake Committee v. FAA, et. al. Also, watch for news of Modoc County’s comment period on the EIR for the Tulelake airstrip fence. At that time, it will be necessary for the Japanese American community and others who care about social justice to let the FAA and Modoc County know the Tule Lake concentration camp site is a significant American civil rights site.

The Tule Lake concentration camp is a place that cannot be moved, a place that must not be destroyed by a monstrous fence. Moving the airstrip is doable, and the only reasonable alternative for preserving an American treasure.

Tule Lake Committee’s Legal Team

The pro bono legal team for the Tule Lake Committee is headed by two veteran Sacramento-area attorneys, Mark Merin and Yoshinori Himel, and Paul Masuhara, a Yonsei whose great-grandparents and grandparents were incarcerated at Tule Lake and Minidoka during WWII.

Masuhara is an associate attorney in Merin’s law firm, a firm that has prevailed in major civil rights cases involving police misconduct, prisoner rights and patient abuse. Merin was a seminal advocate for Native American sovereignty and the right to operate casinos, and a champion of the homeless population.

Himel, a Sansei whose grandfather was defined as an “enemy alien” during WWII and imprisoned at the Department of Justice internment camp in Bismarck, N.D., is the founding president of the Asian Pacific Bar Association of Sacramento, president of the ABAS Law Foundation, and a former trial attorney for the U.S. Department of Justice Civil Rights Division and the U.S. Attorney’s Office.

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