ORDER DENYING MOTION TO REMAND AND GRANTING MOTION TO DISMISS
THIS MATTER is before me on Defendant Seminole Tribe of Florida's Motion to Dismiss (ECF No. 6), and Plaintiff Everglades Ecolodge at Big Cypress, LLC's Motion to Remand (ECF No. 16). I have reviewed the record, the arguments and the relevant legal authorities, and find that this Court has original jurisdiction over the dispute, but that the Complaint fails to state a cause of action. Therefore, for the reasons explained below, the Motion to Remand is denied, and the Motion to Dismiss is granted.
The Seminole Tribe of Florida (the "Tribe") is a federally recognized Indian tribe occupying a reservation in South Florida. In or about 2006, Plaintiff Everglades Ecolodge at Big Cypress, LLC ("Everglades") began working on the concept of developing a full service resort style ecolodge. The facility was to be developed on a fifteen-acre parcel of leased land on the Big Cypress Seminole Indian Reservation. Beginning in June 2006, Everglades made several presentations to the Tribe council and tribal committees to promote the development of the facility and to discuss marketing programs. Everglades negotiated the terms of the restricted land lease with the Tribe from February 2007 to November 2008. On November 28, 2008, the parties executed a 25-year business lease to facilitate the development of the ecolodge (the "Lease"). Through the Lease, Everglades intended to bring eco-tourism, i.e., hotels, retail concessions, educational programs, and ecologically related entertainment, to the Big Cypress Seminole Indian Reservation. The proposed land development and construction detailed a 62,435 square foot full service ecolodge resort, which was to include villas, a conference center, meeting facilities, and a wellness center. In January 2009, Everglades began the National Environmental Policy Act ("NEPA") approval process to ensure compliance with the NEPA Policy Manual of the United States Department of Interior, Bureau of Indian Affairs. In July 2009, Everglades retained experts to conduct traffic, environmental, water and wastewater studies, among others. The NEPA environmental assessment took approximately one year to complete, and in July 2010, Everglades submitted the environmental reports to the Seminole Tribe Environmental Department.
Everglades claims that the Tribe council passed a resolution on October 21, 2010, which effectively rescinded the Lease without notice to Everglades. On March 30, 2011, Everglades initiated this action against the Tribe in the Seventeenth Judicial Circuit Court in and for Broward County, Florida for breach of contract/lease (Count I), or in the alternative, specific performance (Count II). On April 19, 2011, the Tribe removed the action to this Court pursuant to 28 U.S.C. § 1441, asserting that federal jurisdiction is proper because Everglades' claims necessarily involve substantial questions of federal law arising under 28 U.S.C. § 1331. Everglades and the Tribe now make procedural and substantive challenges to this Court's jurisdiction. Everglades contends that removal was procedurally improper while the Tribe argues that the Court lacks subject matter jurisdiction and that the complaint fails to state a valid cause of action.
A. Federal Question Jurisdiction
A defendant may remove an action to a United States district court if that court has original jurisdiction over the action. 28 U.S.C. § 1441(a). A federal district court has original jurisdiction over diversity cases and over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §§ 1331, 1332. The burden of establishing federal jurisdiction falls on the party who is attempting to invoke the jurisdiction of the federal court. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936).*fn1 The parties do not dispute the lack of diversity between them. Therefore, the sole issue is whether this case arises under federal law pursuant to 28 U.S.C. § 1331.
Not every claim "arising under" federal law will invoke federal question jurisdiction. A case arises under federal law when a federal question is presented on the face of the complaint. Kemp v. Int'l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 11 (1983)). This "well-pleaded complaint" rule "directs our focus to the terms of the complaint as the plaintiff chooses to frame it." Id. "If the plaintiff elects to bring only state law causes of action in state court, no federal question will appear in the complaint that could satisfy the well-pleaded complaint rule, and the case may not be removed to federal court." Id. (citing 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3566 (1984)).
There are two exceptions to the well-pleaded complaint rule. First, a federal court has jurisdiction when "some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." Franchise Tax Bd., 463 U.S. at 13. "The fact that a court must apply federal law to a plaintiff's claims or construe federal law to determine whether the plaintiff is entitled to relief will not confer federal subject matter jurisdiction -- the implicated federal issue must be substantial." Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1291-92 (11th Cir. 2004). The second exception grants federal jurisdiction when a plaintiff's state law claims are completely preempted by federal law. See, e.g., Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011). "When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003). "Such 'complete preemption' will convert state law claims into federal claims for the purposes of the well-pleaded complaint rule, allowing a defendant to remove the case to federal court." Kemp, 109 F.3d at 712.
1. Substantial and Disputed Issue of Federal Law
The Tribe asserts that this Court has original jurisdiction because the Court must interpret, apply and adhere to the federal procedural regulations that govern the Lease. The Indian Long-Term Leasing Act ("ILTLA"), 25 U.S.C. § 415, governs the terms, conditions and validity of all leases involving Indian lands.
Any restricted Indian lands, whether tribally, or individually owned, may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, residential, or business purposes . Prior to approval of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject.
25 U.S.C. § 415(a). "No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 years or more shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary." 25 U.S.C. § 81(b).*fn2 The Secretary's approval must be in the form of a "written approval." 25 C.F.R. § 162.604(a).
The Tribe reasons this action arises under federal law because the
requirements of 25 U.S.C. § 415(a) and 25 C.F.R. § 162.604(a) govern
the validity of Everglades' claims.*fn3 To state a
valid cause of action for breach of contract, a plaintiff must
establish three elements: "(1) a valid contract; (2) a material
breach; and (3) damages." Beck v. Lazard Freres & Co., 175 F.3d 913,
914 (11th Cir. 1999) (per curiam). The validity of the Lease is
predicated on the Secretary's written approval. Sangre de Cristo Dev.
Co., Inc. v. United States, 932 F.2d 891, 894 (10th Cir. 1991)
(Section 415 requires a valid Secretarial approval in order for the
lease contract to have legal effect); see also Penobscot Indian Nation
v. Key Bank of Maine, 112 F.3d 538, 545 (1st Cir. 1997) ("Section 81
dictates that any agreement within its purview that is not approved by
the Secretary of the Interior . is void ab initio.").*fn4
The Tribe argues that a court's determination of ...