Loring v. U.S., 77-2985

Decision Date17 December 1979
Docket NumberNo. 77-2985,77-2985
Citation610 F.2d 649
PartiesRamona 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.
CourtU.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.

MERRILL, Circuit 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:

"The district court held that it had no jurisdiction to hear these claims as asserted by appellant Scholder and the individual Indian allotment holders whom he represents. We think otherwise. As we said earlier in discussing 25 U.S.C. § 345, that section is not limited to actions seeking to compel the issuance of an allotment in the first instance. It serves also to protect 'the interests and rights of the Indian in his allotment or patent after he has acquired it.' * * * The deferred charges amount to a lien on the Indian's allotment, reducing its sale value. (See 25 C.F.R. § 211.2). The imposition of construction charges affects an Indian's 'interests and rights' to his allotment, and he can challenge the validity of charges under section 345....

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21 cases
  • Swift Transp., Inc. v. John
    • United States
    • U.S. District Court — District of Arizona
    • September 3, 1982
    ... ... § 161.12 prohibit the grant of rights-of-way without the payment of just compensation. Loring v. United States, 610 F.2d 649, 650 (9th Cir. 1979). These compensation and consent provisions ... ...
  • Morongo Band of Mission Indians v. California State Bd. of Equalization
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 20, 1988
    ... ... that none of the parties contests the district court's jurisdiction does not, of course, relieve us of our responsibility to determine whether the court's exercise of jurisdiction was proper. The ... ; plaintiffs sought recovery of possession and an order quieting their beneficial title); Loring v. United States, 610 F.2d 649, 650 (9th Cir.1979) (suit by individual Indians seeking compensation ... ...
  • Nichols v. Rysavy, 593
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 25, 1987
    ...regarding the applicability of section 2401(a) to section 345 claims. The rationale in Werner was upheld in Loring v. United States, 610 F.2d 649, 650 (9th Cir.1979), in which section 2401(a) was invoked to dismiss an allotment claim against the United States. Most recently, in Christensen ......
  • Calhoon v. Sell
    • United States
    • U.S. District Court — District of South Dakota
    • September 30, 1998
    ... ... Loring v. United States, 610 F.2d 649 (9th Cir.1979). The facts here show more than "improvident grants" ... * * * to any allotment of land * * *." It would seem that a fair reading of this would tell us that the claim to the allotment may arise by way of starting the lawsuit or defending the lawsuit ... ...
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1 books & journal articles
  • CHAPTER 12 NATIVE AMERICAN JURISDICTION AND PERMITTING
    • United States
    • FNREL - Special Institute Oil and Natural Gas Pipelines- Wellhead to End User (FNREL)
    • Invalid date
    ...apparently may be brought in federal courts by the trust owner to determine the adequacy of compensation. See, Loring v. United States, 610 F.2d 649 (9th Cir. 1979). [105] 25 C.F.R. § 169.12 (1994). [106] 25 C.F.R. § 169.13 (1994). [107] 25 C.F.R. § 169.14 (1994). [108] 25 C.F.R. § 169.15 (......

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