Alaska Dep't of Natural Res. v. United States

• Decision Date: 14 March 2016
• Docket Number: No. 14–35051.,14–35051.
• Citation: 816 F.3d 580
• Parties: State of ALASKA DEPARTMENT OF NATURAL RESOURCES; Department of Transportation and Public Facilities, Plaintiffs–Appellants, v. UNITED STATES of America; Agnes M. Purdy, Owner of Native Allotment No. 50–2008–0437 certificate no.; that portion of Native Allotment No. 50–2008–0437 currently occupied by Chicken Ridge Alternate, Myers Fork Spur, Chicken to Franklin and Chicken Ridge Trails, containing 17.5 acres; Barbara A. Redmon, on behalf of Anne L. Purdy, Owner of Native Allotment No. 50–2013–0004, certificate no.; that portion of Native Allotment No. 50–2013–0004 currently occupied by Chicken to Franklin and Chicken Ridge Trails, containing approximately 6.4 acres of land; Dena' Nena' Henash, Tanana Chiefs Conference, an Alaska non-profit corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

816 F.3d 580

State of ALASKA DEPARTMENT OF NATURAL RESOURCES; Department of Transportation and Public Facilities, Plaintiffs–Appellants,

v.UNITED STATES of America; Agnes M. Purdy, Owner of Native Allotment No. 50–2008–0437 certificate no.; that portion of Native Allotment No. 50–2008–0437 currently occupied by Chicken Ridge Alternate, Myers Fork Spur, Chicken to Franklin and Chicken Ridge Trails, containing 17.5 acres; Barbara A. Redmon, on behalf of Anne L. Purdy, Owner of Native Allotment No. 50–2013–0004, certificate no.; that portion of Native Allotment No. 50–2013–0004 currently occupied by Chicken to Franklin and Chicken Ridge Trails, containing approximately 6.4 acres of land; Dena' Nena' Henash, Tanana Chiefs Conference, an Alaska non-profit corporation, Defendants–Appellees.

No. 14–35051.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2015.

Filed March 14, 2016.

Michael C. Geraghty, Attorney General, David A. Wilkinson (argued), Assistant Attorney General, Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, AK, for Plaintiffs–Appellants State of Alaska Department of Natural Resources and Department of Transportation and Public Facilities.

Sam Hirsch, Acting Assistant Attorney General, David C. Shilton and John Emad Arbab (argued), Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendant–Appellee United States of America.

Michael C. Kramer (argued) and Justin J. Andrews, Kramer and Associates, Fairbanks, AK, for Defendants–Appellees Agnes Purdy and Anne Purdy.

Richard D. Monkman, Harry R. Sachse, and Maile S. Tavepholjalern, Sonosky, Chambers, Sachse, Miller & Munson, LLP, for Defendant–Appellee Dena' Nena' Henash (Tanana Chiefs Conference).

Before: WILLIAM C. CANBY, JR., JAY S. BYBEE, and PAUL J. WATFORD, Circuit Judges.

OPINION

WATFORD

, Circuit Judge:

This case involves a land dispute between the State of Alaska and two Alaska Natives, Agnes and Anne Purdy. Agnes Purdy owns a 160–acre parcel of land in eastern Alaska near the town of Chicken; her sister Anne owns a neighboring 40–acre parcel. The State contends that it owns rights-of-way for four public trails that cross the Purdys' land, trails which the State wants to keep open for public use. The Purdys dispute the State's claim of ownership and want to stop members of the public from trespassing on their property by using the trails.

The State sued the Purdys and the United States (as well as other defendants not relevant here) in federal court. Three of the State's claims are at issue: (1) a claim seeking to quiet title to the four rights-of-way; (2) a declaratory judgment claim seeking essentially the same relief; and (3) a claim seeking to condemn for public use whatever portions of the rights-of-way the State does not already own. The district court dismissed these claims for lack of subject matter jurisdiction and entered partial final judgment under Federal Rule of Civil Procedure 54(b)

. The remainder of the action has been stayed pending resolution of this appeal.

We conclude that the district court properly dismissed the quiet title and declaratory judgment claims for lack of subject matter jurisdiction. We vacate dismissal of the condemnation claim because that claim may proceed if the State chooses to amend it on remand.

I

The Purdys acquired ownership of the parcels in question under the Alaska Native Allotment Act, 43 U.S.C. § 270–1 et seq. (1970)

. Congress repealed the Act in 1971 but included a savings provision for applications pending on the repeal date. 43 U.S.C. § 1617(a). As relevant here, the Act authorized the Secretary of the Interior to allot up to 160 acres of land to Alaska Natives, subject to a restraint on alienation. The relevant portion of the statute provides:

The Secretary of the Interior is authorized and empowered, in his discretion and under such rules as he may prescribe, to allot not to exceed one hundred and sixty acres of vacant, unappropriated, and unreserved nonmineral land in Alaska ... to any Indian, Aleut, or Eskimo of full or mixed blood who resides in and is a native of Alaska, and who is the head of a family, or is twenty-one years of age; and the land so allotted shall be deemed the homestead of the allottee and his heirs in perpetuity, and shall be inalienable and nontaxable until otherwise provided by Congress....

§ 270–1

. To qualify for an allotment, an applicant needed to show "substantially continuous use and occupancy of the land for a period of five years." § 270–3.

The Purdys applied for their respective allotments in 1971 before the Act was repealed. After a decades-long administrative process, the Bureau of Land Management (BLM) approved the Purdys' allotment applications, concluding that Agnes had shown continuous use and occupancy of her 160–acre parcel since 1931, and that Anne had shown continuous use and occupancy of her 40–acre parcel since 1955. In 2008 and 2012, the BLM issued allotment certificates to the Purdys that transferred title to the land. As mandated by the Act, the allotment certificates contain a restraint on alienation stating that the land "shall be inalienable and nontaxable until otherwise provided by Congress or until the Secretary of the Interior ... approves a deed of conveyance vesting in the purchaser a complete title to the land."

The State contends that the Purdys' allotments are subject to rights-of-way for the following trails: the Chicken to Franklin Trail, the Chicken Ridge Trail, the Chicken Ridge Alternative Trail, and the Myers Fork Spur Trail. The State's complaint alleges that the public began using these trails in the late 1800s, long before the Purdys' use and occupancy of their allotments began. The State further alleges that, by virtue of this public use, it acquired ownership of the rights-of-way under an unusual federal statute known as R.S. 2477. That statute, first enacted in 1866, provides: "The right of way for the construction of highways over public lands, not reserved for public uses, is granted." 43 U.S.C. § 932 (1970)

. Congress repealed the statute in 1976, but rights-of-way in existence on the date of repeal were preserved. Lyon v. Gila River Indian Community, 626 F.3d 1059, 1076 (9th Cir.2010).

R.S. 2477 is unusual, as land-grant statutes go, because of its self-executing nature. No formal document memorializing the grant of a right-of-way needed to be executed by a federal official. Southern Utah Wilderness Alliance v. BLM, 425 F.3d 735, 741 (10th Cir.2005)

. Nor did a State, as the recipient of the grant, need to take any formal steps to accept the federal government's grant of a right-of-way. Acceptance of a grant is determined by state law, and under Alaska law an R.S. 2477 grant could be accepted through public use. Fitzgerald v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996) ; Hamerly v. Denton, 359 P.2d 121, 123 (Alaska 1961). "The extent of public use necessary to establish acceptance of the RS 2477 grant depends upon the character of the land and the nature of the use." Fitzgerald, 918 P.2d at 1020. While "infrequent and sporadic" use is insufficient, Hamerly, 359 P.2d at 125, "continuous use is not required," Fitzgerald, 918 P.2d at 1020. Beyond that, the Alaska cases provide little guidance as to the quantum of public use that must be shown, other than to note that the ultimate question is whether there has been public use "for such a period of time and under such conditions as to prove that the grant has been accepted." Hamerly, 359 P.2d at 123.

The State's complaint alleges facts that, in its view, establish sufficient public use of the four trails to prove acceptance of the grant. For example, the State alleges that in 1926, some 517 people, 215 pack horses, 29 sleds, and 75 tons of freight traversed the Chicken to Franklin Trail, while 261 people, 86 pack horses, and 5 tons of freight traversed the Chicken Ridge Trail. Whether the public's use of the four trails was sufficient to prove acceptance under Alaska law is an issue that has not previously been resolved through litigation. The State seeks to litigate that issue now. And it seeks more particularly to show that, because the rights-of-way were accepted before the Purdys' use and occupancy of their allotments began, the Purdys took title subject to the State's pre-existing ownership interests.

II

The first question raised by this appeal is whether the district court had jurisdiction to hear the State's quiet title claim, by which it seeks to establish ownership of the four contested rights-of-way. The second question is whether the State may condemn for public use whatever portions of the rights-of-way it does not already own.

A

The district court correctly held that the State's quiet title claim is barred. The United States is a necessary party to that claim but has not waived its immunity from suit.

To establish ownership of the rights-of-way, the State sued the United States under the Quiet Title Act (QTA), 28 U.S.C. § 2409a

. The QTA states in relevant part:

The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands....

§ 2409a(a)

. The State had to name the United States as a defendant because it holds an interest in the Purdys' allotments (by virtue of the restraint on alienation), and recognition of the R.S. 2477 rights-of-way would impair the United States' interest. See Minnesota v. United States, 305 U.S. 382, 386 n. 1, 59 S.Ct. 292, 83 L.Ed. 235 (1939) ; United States v. City of McAlester, 604 F.2d 42, 46 (10th Cir.1979). The State had to sue under the QTA because that statute provides "the exclusive means by which adverse claimants [may] challenge the United States' title to real property." Block v. North Dakota, 461 U.S. 273, 286, 103...