Pence v. Kleppe

Citation529 F.2d 135
Decision Date16 January 1976
Docket NumberNo. 75--2144,75--2144
PartiesSarah PENCE et al., Plaintiffs-Appellants, v. Thomas S. KLEPPE, Individually and as Secretary of the Interior of the United States and his agents, and the United States of America, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
OPINION

Before DUNIWAY, TRASK and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

Plaintiffs-appellants are Native Alaskans claiming to be eligible for allotments of public lands under the Alaska Native Allotment Act (May 17, 1906, 34 Stat. 197, as amended Aug. 2, 1956, Ch. 891, 70 Stat. 954; 43 U.S.C. §§ 270--1--270--3 (1970), repealed but with a saving clause for applications pending on December 18, 1971, by P.L. 92--203, Dec. 18, 1971, 85 Stat. 710, 43 U.S.C. § 1617). They claim to represent a class of 8,500 Native Alaskans as defined in the Act, that is, Indians, Aleuts, or Eskimos of full or mixed blood, residing in and native of Alaska who are heads of families or twenty-one years of age, and who have applied for allotments under the Act. Defendants are the Secretary of the Interior and the United States. The complaint alleges that the procedures of the Secretary in deciding whether to grant allotments deny the applicants due process, and demands an injunction requiring the Secretary to adopt and use procedures that will afford the applicants due process. On motion for summary judgment, the court entered a judgment dismissing the action on the ground that the granting or denial of allotments is so far committed to the Secretary's discretion as to put the matter beyond judicial review. Pence v. Morton, D.Alaska, 1975, 391 F.Supp. 1021. Plaintiffs appeal and we reverse and remand for further proceedings. 1

1. The statute and the procedures adopted by the Secretary.

The Act authorized the Secretary 'in his discretion and under such rules as he may prescribe' (§ 270--1) to allot up to 160 acres of vacant, unappropriated, and unreserved land in Alaska to any qualified Alaska Native. To qualify, the Native applicant must make 'proof satisfactory to the Secretary . . . of substantially continuous use and occupancy of the land for a period of five years.' (§ 270--3) The Secretary's regulations construe the Act to allow for customary and seasonal patterns of use and occupancy, but require that there must be actual possession and use, potentially exclusive of others, and not merely intermittent use. 43 C.F.R. § 2561.0--5(a). Thus, an applicant can meet the required qualifications by showing seasonal use of the claimed land, potentially exclusive of others, for five consecutive years for such customary purposes as hunting, fishing, or berry picking.

After the Bureau of Land Management, which acts for the Secretary, receives an application, a field examiner is sent out to the claimed land to seek and report on evidence of occupancy and the claimed use. The applicant, the appropriate village council, and the appropriate regional corporation are notified 30 days before the planned examination, and the applicant is invited to accompany the examiner. 2 If the applicant is not available, the village council or corporation is asked to appoint someone to accompany the examiner. If language barriers exist, interpreters are provided. Field examiners are to be instructed in native customs and land use patterns. 3 The examination is primarily accomplished by looking at the land from a low flying (10 to 30 feet) helicopter, although if evidence of use is detected from the air the examiner may land and inspect more carefully.

After the examination, the examiner prepares a report describing any observed signs of use and occupancy and accompanies his findings with maps and photographs. A preliminary finding based on the report is then made and sent to the applicant. If the finding is negative, the applicant is given an additional period in which he may submit further evidence in writing. The Bureau of Land Management then issues a decision. If it is to reject, the applicant has 30 days in which to file a Notice of Appeal with the Department of the Interior's Board of Land Appeals. Within an additional 30 days, the applicant must file a written Statement of Reasons supporting the appeal. After the appeal is filed and the Statement of Reasons is submitted, the applicant may then request an oral factual hearing before an Administrative Law Judge. The decision to grant such a hearing is entirely within the discretion of the Board of Land Appeals.

Appellant-plaintiffs seek an order directing the Secretary to grant to applicants the right to a fair oral hearing before the rejection of an allotment application by the Bureau of Land Management. They allege jurisdiction under 25 U.S.C. § 345, 28 U.S.C. §§ 1353 (Indian allotments), 1331 (federal question), 1346(a)(2) (Tucker Act), 1361 (mandamus), and 2201--02 (declaratory judgment), and under 5 U.S.C. §§ 701--706 (Administrative Procedure Act). The district court dismissed the action for lack of jurisdiction.

2. Jurisdiction.

Because we hold that the court had jurisdiction under 25 U.S.C. § 345 and 28 U.S.C. § 1353, we do not consider whether the court also had jurisdiction under any of the other statutes upon which plaintiffs rely. Title25 U.S.C. § 345 provides, in pertinent part:

All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act . . . or who claim to have been unlawfully denied . . . any allotment . . . of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; and said district courts are given jurisdiction to try and determine any action . . . involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant); and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him . . .. 4

On its face, this statute is a grant of general jurisdiction to United States District Courts in actions such as this one, and a waiver of sovereign immunity by the United States. 5 See also § 346, which provides for service of process on the United States and the duty of the United States Attorney to represent it in the action, and see Heckman v. United States, 1912, 224 U.S. 413, 441--442, 32 S.Ct. 424, 56 L.Ed. 820; McKay v. Kalyton, 1907, 204 U.S. 458, 468--69, 27 S.Ct. 346, 51 L.Ed. 566. We need not here decide whether § 345 is limited to 'suits to compel the making of allotments in the first instance' (United States v. Eastman, 9 Cir., 1941, 118 F.2d 421, 423; United States v. Preston, 9 Cir., 1965, 352 F.2d 352, 358). This is just such an action, and it is clear that § 345 does permit it. In United States v. Pierce, 9 Cir., 1956, 235 F.2d 885, Arenas v. Preston, 9 Cir., 1950, 181 F.2d 62, and Gerard v. United States, 9 Cir., 1948, 167 F.2d 951, we gave to § 345 a more liberal construction. Certain it is, under all of the cited cases, that § 345 both confers jurisdiction on the district courts in cases such as this and waives the sovereign immunity of the United States in such cases.

The district court was mistaken in tying the jurisdictional grant of 25 U.S.C. § 345 and 28 U.S.C. § 1353 to the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). The district court relied entirely on the case of Pallin v. United States, 9 Cir., 1974, 496 F.2d 27, apparently believing that Pallin held that jurisdiction existed only if in fact the plaintiff had a right to an allotment, and that because the Allotment Act commits the decision to agency discretion, there is no jurisdiction. This is an incorrect interpretation of both Pallin and § 345.

Pallin was an action between a brother and a sister over the allotment of a 160-acre tract of land. The sister, however, also challenged the Secretary's classification of the land as half 'nonirrigable agricultural' and half 'nonirrigable grazing.' The trial court found in her favor on both issues. On appeal, we held that the trial court had jurisdiction under § 345 to determine the dispute between the brother and sister, because that dispute arose out of the General Allotment Act of 1887. However, we also held the trial court did not have jurisdiction to decide the classification issue because that question involved the Secretary's right to classify federal lands under the Taylor Grazing Act, 43 U.S.C. § 315f, and thus it did not fall under the § 345 jurisdictional grant in cases involving allotment statutes. Therefore, because the classification question did not fall under § 345, jurisdiction must arise under the Administrative Procedure Act, which excludes matters entrusted by law to agency discretion from review.

The district court in the present case confused these two distinct holdings. We held in Pallin 'that in an action brought by an Indian under 25 U.S.C. § 345 and 28 U.S.C. § 1353, Congress has given to the District Court original jurisdiction to determine whether, in actions involving the right to an allotment . . . the Secretary acted within the limits Congress has placed on him.' 496 F.2d at 32. See also Hopkins v. United States, 9 Cir., 1969, 414 F.2d 464, 466. The fact that in Pallin we also held that...

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