756 F.2d 1379 (9th Cir. 1985), 82-3605, Ramstad v. Hodel

Docket Nº:82-3605.
Citation:756 F.2d 1379
Party Name:Stuart Grant RAMSTAD, Plaintiff-Appellant, v. Donald HODEL, [*] The Secretary of the Interior of the United States; Board of Land Appeals: Gail M. Frazier, Edward W. Stuebing and James L. Burski, members of the Interior Board of Land Appeals; Robert F. Burford, Director of Bureau of Land Management of the United States Department of the Interior; C
Case Date:April 02, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1379

756 F.2d 1379 (9th Cir. 1985)

Stuart Grant RAMSTAD, Plaintiff-Appellant,

v.

Donald HODEL, [*] The Secretary of the Interior of

the United States; Board of Land Appeals: Gail M. Frazier,

Edward W. Stuebing and James L. Burski, members of the

Interior Board of Land Appeals; Robert F. Burford, Director

of Bureau of Land Management of the United States Department

of the Interior; Curtis V. McVee, State Director for Alaska

Bureau of Land Management United States Department of

Interior, Defendants-Appellees.

No. 82-3605.

United States Court of Appeals, Ninth Circuit

April 2, 1985

Argued and Submitted Aug. 18, 1983.

Page 1380

Eugene F. Wiles, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, Alaska, for plaintiff-appellant.

J. Carol Williams, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before CANBY, BOOCHEVER and NORRIS, Circuit Judges.

CANBY, Circuit Judge:

Plaintiff Ramstad brought this action to review a decision of the Interior Board of Land Appeals denying his application to purchase land in Alaska upon which Ramstad operated a hunting and fishing camp and guide service. The district court granted summary judgment 1 in favor of the government defendants, and Ramstad appeals. We disagree in part with the ruling of the district court, and reverse the judgment.

FACTS

For purposes of their motion for summary judgment, the defendants accepted as true the allegations of the complaint. The facts, therefore, are not in material dispute for purposes of this appeal.

On December 25, 1962, Ramstad staked out eighty (80) acres of public land as a trade and manufacturing site pursuant to the Trade and Manufacturing Site Act, 43 U.S.C. Sec. 687a, repealed effective Oct. 21, 1986, Pub.L. 94-579, Title VII, Sec. 703(a) (1976). That Act permitted the purchase of up to eighty (80) acres of such land "upon submission of proof that said area embraces improvements of the claimant and is needed in the prosecution of such trade, manufacture, or other productive industry." Id. Ramstad subsequently operated a hunting and fishing camp and guide service on the site and over a period of time made improvements exceeding $200,000 in value.

On April 15, 1967, Ramstad attempted to file a notice of location, pursuant to 43 U.S.C. Sec. 687a-1, repealed effective Oct. 21, 1986, Pub.L. 94-579, Title VII, Sec. 703(a) (1976), and 43 C.F.R. Sec. 2562.1 (1983). That statute, which the regulation tracks, provides that claimants of trade and manufacturing sites and homestead or headquarters sites under Sec. 687a:

... shall file a notice describing such claim ... in the United States land office

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for the district in which the land is situated within ninety days from April 29, 1950 or within ninety days from the date of the initiation of the claim, whichever is later. Unless such notice is filed ... within the time prescribed the claimant shall not be given credit for the occupancy maintained in the claim prior to the filing of (1) a notice of the claim ... or (2) an application to purchase, whichever is earlier. Application to purchase claims ... must be filed within five years after the filing of the notice of claim under this section.

43 U.S.C. Sec. 687a-1 (1976). 2 Ramstad's notice of location was not accepted at the office of the Bureau of Land Management ("BLM") because the desired land had been classified for multiple use and consequently had been withdrawn from all forms of public appropriation on March 8, 1967, thirty-eight days before Ramstad attempted to file his notice. 32 Fed.Reg. 3838 (March 8, 1967); Multiple Use Classification AA-818, 32 Fed.Reg. 14971 (Oct. 27, 1967). The withdrawal contained an express exception for "valid existing rights." 32 Fed.Reg. at 3838.

On December 14, 1968, the BLM office notified Ramstad that he must cease use of the land and remove all improvements. After a meeting in which Ramstad explained to BLM personnel that he had occupied the land and made improvements prior to the withdrawal, the BLM vacated its December 4, 1968 request that he remove the improvements and asked Ramstad to submit evidence to document his commercial use prior to March 8, 1967.

In January 1969, Ramstad again visited the BLM office and was once again advised that he would not be permitted to file his trade and manufacturing site location notice because the lands had been withdrawn from entry. On February 24, 1969, however, the BLM sent a letter to Ramstad referring to its previous agreement to vacate its request that Ramstad remove improvements and stating that it still had not received data from Ramstad substantiating his commercial use prior to March 8, 1967. The letter gave Ramstad 30 days to provide such evidence or face legal action to remove the improvements. In several visits to the BLM office thereafter, however, Ramstad was advised that his notice would not be accepted for filing, and he did not provide the substantiating evidence as requested in the February 24, 1969, BLM letter.

On September 23, 1974, the BLM served Ramstad with a notice of trespass. Ramstad made several more visits to the BLM office. In early 1979 he was advised by BLM personnel to submit an application to purchase and to request an equitable adjudication of his claim. He did so.

The BLM denied Ramstad's application, relying on departmental regulation 43 C.F.R. Sec. 2562.3(d)(2) (1983). 3 The BLM reasoned that because the land had been withdrawn first in 1967 and then again in 1971 by the Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1610 (1982), the land was not "unoccupied, unimproved, and unappropriated by any [other] person" as

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the regulation required in order for the land to be subject to location. Although the 1967 and 1971 withdrawals were both subject to "valid existing rights," the BLM ruled that Ramstad's use and improvement of the site did not create a valid existing right because he had not filed a notice of location or application to purchase until March 1, 1979. See 43 U.S.C. Sec. 687a-1. At that time, the land had been withdrawn and Cook Inlet Region, Inc. had filed a selection application for it pursuant to the Alaska Native Claims Settlement Act. The BLM also denied Ramstad's request for equitable adjudication on the ground that he had not shown substantial compliance with the law as required by 43 C.F.R. Sec. 1871.1-1 (1983). 4

Ramstad appealed to the Interior Board of Land Appeals, which affirmed the BLM's decision. The Board reasoned that 43 U.S.C. Sec. 687a-1 requires claimants to file a notice of location within ninety days of initiating their claims or lose credit for occupancy maintained prior to filing. The Board found that Ramstad had filed more than ninety days after initiating occupancy. His entry date therefore became his filing date. Because that date fell after the withdrawal, Ramstad had no valid existing right at the time of withdrawal. Even if Ramstad had filed a notice of location when he first attempted to do so in April 1967, the same result would have followed: he had been in occupancy more than ninety days and his entry date would then have been April 15, 1967, after the land had been withdrawn. The Board also denied equitable adjudication on the ground that there had been no substantial...

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