Loring v. U.S., 77-2985
Decision Date | 17 December 1979 |
Docket Number | No. 77-2985,77-2985 |
Citation | 610 F.2d 649 |
Parties | Ramona LORING and Lester Loring, wife and husband, for and on behalf of themselves and approximately 200 other members of the Salt River Pima-Maricopa Indian Community similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America and the City of Scottsdale, Arizona, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Wayne C. Arnett, Patten, Montague & Arnett, Tempe, Ariz., for plaintiffs-appellants.
Clifford Sherr, Asst. City Atty., Scottsdale, Ariz., argued for defendants-appellees; James W. Moorman, Asst. Atty. Gen., Washington, D. C., Richard Filler, City Atty., Scottsdale, Ariz., on brief.
On Appeal from the United States District Court for the District of Arizona.
Before MERRILL and KENNEDY, Circuit Judges, and WILLIAMS, * District Judge.
Plaintiffs are members of the Salt River Pima-Maricopa Indian Community. They have brought this action alleging in their complaint that they own land along the western boundary of the Salt River Indian Reservation, located in Maricopa County, Arizona; that the United States and the City of Scottsdale, Arizona, acting in concert, have taken from them, without compensation, a right-of-way over their lands for the building of a public roadway known as "Pima Road"; that while written consents to the taking were obtained they were fraudulently obtained and did not have the consent or approval of the Secretary of the Interior. Plaintiffs seek judgment for the "fair, just and reasonable value of the land taken," together with severance damage to the remaining lands, plus interest and attorney fees.
The district court on motion of defendants dismissed the action against both defendants for want of subject-matter jurisdiction.
The motion of the United States for dismissal was based in part on the contention that the action was barred by the statute of limitations. It appears that consents to the taking were signed April 20, 1967; that the road was completed October 30, 1968 and was dedicated to public use November 22, 1968; that this action was brought July 28, 1976. Title 28 U.S.C. § 2401(a) provides in part:
"Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."
The statute is jurisdictional. Kraemer Mills, Inc. v. United States, 319 F.2d 535, 162 Ct.Cl. 367 (1963). Dismissal of the claim against the United States was proper.
The motion of Scottsdale was based on the assertion that plaintiffs "had wholly failed to indicate why this action can belong in federal rather than state court."
It is true that the complaint did not refer to any statutory basis for federal jurisdiction. However, the allegations of fact read in a light favorable to plaintiffs do give rise to federal jurisdiction under 25 U.S.C. § 345 1 and 28 U.S.C. § 1353. 2
Appellees contend that the jurisdiction thus conferred relates only to the issuance of an allotment in the first instance. We have held otherwise. In Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970), the United States sought to impose the costs of construction of an irrigation ditch as charges against lands that had been allotted to individual Indians and the Indians sought injunctive relief. We stated:
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CHAPTER 12 NATIVE AMERICAN JURISDICTION AND PERMITTING
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