George v. United States

• Citation: 672 F.3d 942
• Decision Date: 05 March 2012
• Docket Number: No. 11–2045.,11–2045.
• Parties: Anne GEORGE, Plaintiff–Appellant, v. UNITED STATES of America; United States Forest Service; Thomas Vilsack, Secretary of Agriculture; Thomas Tidwell, Chief of the U.S. Forest Service; Corbin Newman,* Regional Forester, Intermountain Region; Kelly M. Russell, Forest Supervisor, Gila National Forest; Russell Ward, District Ranger, Silver City Ranger District, Gila National Forest, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

672 F.3d 942

Anne GEORGE, Plaintiff–Appellant,

v.UNITED STATES of America; United States Forest Service; Thomas Vilsack, Secretary of Agriculture; Thomas Tidwell, Chief of the U.S. Forest Service; Corbin Newman,* Regional Forester, Intermountain Region; Kelly M. Russell, Forest Supervisor, Gila National Forest; Russell Ward, District Ranger, Silver City Ranger District, Gila National Forest, Defendants–Appellees.

No. 11–2045.

United States Court of Appeals, Tenth Circuit.

March 5, 2012.

James M. Manley (Steven J. Lechner with him on the briefs), Mountain States Legal Foundation, Lakewood, CO, for Plaintiff–Appellant.

Robert P. Stockman (Ignacia S. Moreno, Manuel Lucero and Aaron P. Avila, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., and Cassandra Casaus Currie, Steve Hattenbach and Andrew R. Varcoe, Office of the General Counsel, United States Department of Agriculture, Washington, D.C., with him on the brief), for Defendants–Appellees.

Before MURPHY, HOLLOWAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Anne George wants to fence her property and, with it, corral her horse. Trouble is, the Forest Service has a road running through her land that Ms. George's fence threatens to block. Ms. George offered to leave a gate across the road unlocked, but the Service rejected this option, arguing that the public needs unfettered access to the adjacent Gila National Forest. Instead, the Forest Service encouraged Ms. George to pen her horse with a fence running alongside its road, but she found this alternative just as unsatisfactory. The parties' wrangling dragged on for years but led nowhere until Ms. George filed this lawsuit. In the end, however, we must rule against her. Whatever legal entitlement she might have had to build a fence across the Forest Service's road she lost years ago thanks to an even less permeable barrier to entry: the statute of limitations.

Where did this dispute get its start and how did it wend its way to federal court? The answer begins with the Gila National Forest, just outside Silver City, New Mexico. First set aside by presidential decree in 1899, the Forest is a place of soaring peaks and rugged canyons, covering over 3 million acres and embracing what may be the first formally designated wilderness area in the country. Our dispute takes place just outside the Forest's boundaries and traces its own roots back to 1979. It was then when the Forest Service decided to consolidate its holdings and settle (another) land dispute with a certain John S. Hamilton. As part of the deal, Mr. Hamilton agreed to give the government various other lands he owned in return for 1,000 acres next to the Forest. But with Mr. Hamilton's new property came a hitch. The government reserved an easement across the land for its existing Forest Development Road (“FDR”) 6819, also known as Shrine Mine Road. The road was and had long been used by the public and Forest Service to enter and exit Gila. Preexisting Forest Service regulations prohibited fencing or otherwise obstructing Forest Service lands, roads, or trails, and at the time of the conveyance FDR 6819 was indeed fence-free.

The real trouble began over a quarter century later, in 2005, when Mr. Hamilton's lot passed (through various owners) to Ms. George. Soon Ms. George set about the business of building a fence around her property, one that crossed the Forest Service's road. The Service objected, removed the fence, and issued a citation. Undeterred, Ms. George rebuilt her fence only to have the process repeat itself—three times in all. As these things go, the dispute became increasingly testy with time. The parties exchanged letters. Ms. George erected “no trespassing” signs. The Service sent investigators. Photos were taken, evidence was amassed, neighbors were involved. Eventually, Ms. George filed suit in 2009 under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a et seq., a provision that waives the United States's sovereign immunity and permits claims, like this one, seeking “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. § 2409a(a). At summary judgment the district court dismissed Ms. George's suit as time-barred—and it was right to do so.

The problem is that what the QTA gives it often proceeds to take away. While the QTA waives the government's immunity and affords plaintiffs a relatively generous twelve years to bring suit, the trigger for starting that twelve-year clock running is an exceedingly light one. The QTA's limitations period begins running as soon as “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g). So the clock in our case started not just when Ms. George first knew about the government's claim to an unobstructed easement. Or even when anyone who owned the land before her knew. The clock started running when she or her predecessors objectively should have known about the government's claim to a fence-free road. Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1176 (10th Cir.2010); Rosette Inc. v. United States, 141 F.3d 1394, 1397 (10th Cir.1998); Knapp v. United States, 636 F.2d 279, 283 (10th Cir.1980).

It is this last feature of the QTA clock that poses the real problem for Ms. George. A problem because, just as the district court held, Ms. George's predecessor in interest, Mr. Hamilton, objectively should have known of the government's claim of right to a fence-free road as early as 1979, about thirty years before she brought suit in 2009. And this means Ms. George has come to court some 18 years too late to do anything about her problem.

Why this is so has much to do with the Federal Register. Congress has instructed that (subject to exceptions not relevant here) publishing a regulation in the Federal Register must be considered “sufficient to give notice of [its] contents” to “a person subject to or affected by it.” 44 U.S.C. § 1507; see also Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397, 1405 (10th Cir.1976); Bank of Commerce v. Bd. of Governors of Fed. Reserve Sys., 513 F.2d 164, 167 (10th Cir.1975). So laying 44 U.S.C. § 1507's publication rule beside the QTA's limitations provision in 28 U.S.C. § 2409a(g) tells us this much: the QTA's limitations clock starts running as soon as the federal government publishes a property claim in the Federal Register and a QTA plaintiff or her predecessor in interest is “subject to or affected by” it. A tough rule to be sure, but unavoidable under the two statutes' plain terms. Neither is it an altogether surprising rule given that in our constitutional order Congress has (for better or worse) much discretion to decide when and under what conditions to waive sovereign immunity and allow individuals to tap the public fisc. As the well worn saying goes, the fact that people “ ‘must turn square corners when they deal with the Government,’ does not reflect a callous outlook. It merely expresses the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10 (1947) (quoting Rock Island, Arkansas & Louisiana R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920)). And whether callous or not, no one before us seeks to suggest that Congress exceeded its considerable constitutional powers when it circumscribed the waiver of sovereign immunity at issue in this case.

The interaction between the Federal Register and QTA matters in this case because of regulations the Secretary of Agriculture published in 1977. Those regulations prohibited anyone from “placing ... [a] fence ... without a permit” anywhere in the “National Forest System” or on its “[f]orest development road[s] or trail[s].” 36 C.F.R. §§ 261.10(a); 261.1(a) (1977); see also 261.12(e) (1977). Under 44 U.S.C. § 1507 and 28 U.S.C. § 2409a(g), anyone “subject to or affected by” this claim of right was legally charged with notice of it sufficient to start the QTA clock running. To be “subject to or affected by” a regulation, of course, one must be prone, disposed, exposed, liable, or influenced by it. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (surveying definitions of “subject to”); 17 Oxford English Dictionary 30 (2d ed. 1989) (defining “subject” as “exposed or open to; prone to or liable to suffer from something damaging, deleterious, or disadvantageous”); 1 Oxford English Dictionary 212 (defining “affected” as “moved on, influenced, acted upon either physically or materially”). But there can be no question that, at least by the time Mr. Hamilton engaged in the land swap in 1979, he was all of those things when it came to the Forest Service's 1977 regulations. It is undisputed that Mr. Hamilton knew in 1979 he was receiving land from the Forest Service. It is undisputed that he knew the Forest Service retained an existing and unobstructed road across his newly acquired property. And it is undisputed that the government's road was and is a Forest Development Road owned by the Forest Service. It follows from all this that Mr. Hamilton became “subject to or affected by” the 1977 regulations claiming entitlement to fence-free property and roads—and thus legally charged with notice of the property claims made in those regulations—from the moment he swapped land with the government. The QTA clock thus began ticking by 1979 because Mr. Hamilton objectively should have known at least by then of the Forest Service's property claim that Ms. George seeks to contest in this case.

Ms. George responds that the Forest Service should not be permitted to use federal regulations to dictate the scope of an easement granted by private contract. Reply Br. at 2–9. She stresses that the Forest Service's 1977 regulations make no appearance either in the 197...