Brandt-Erichsen v. U.S. Dept. of Interior, Bureau of Land Management

• Citation: 999 F.2d 1376
• Decision Date: 15 July 1993
• Docket Number: P,No. 91-35835,BRANDT-ERICHSE,91-35835
• Parties: Viggo Thorlaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT; United States Department of Interior, National Parks Service; Manuel Lujan, in his official capacity as Secretary of Interior; Charles Budge, in his official capacity as Superintendent of the Wrangell-St. Elias National Park; Richard H. Martin, in his official capacity as Superintendent of the Wrangell-St. Elias National Park; William P. Horn, Deputy Secretary of the Department of Interior in his official capacity; John Tiffany, Inspector for the Bureau of Land Management, Glenallen Detachment in his official capacity; Stuart Hirsch, Inspector for the Bureau of Land Management in his official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1376

999 F.2d 1376

Viggo Thor BRANDT-ERICHSEN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND

MANAGEMENT; United States Department of Interior, National

Parks Service; Manuel Lujan, in his official capacity as

Secretary of Interior; Charles Budge, in his official

capacity as Superintendent of the Wrangell-St. Elias

National Park; Richard H. Martin, in his official capacity

as Superintendent of the Wrangell-St. Elias National Park;

William P. Horn, Deputy Secretary of the Department of

Interior in his official capacity; John Tiffany, Inspector

for the Bureau of Land Management, Glenallen Detachment in

his official capacity; Stuart Hirsch, Inspector for the

Bureau of Land Management in his official capacity,

Defendants-Appellees.

No. 91-35835.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1992.

Decided July 15, 1993.

Scott A. Brandt-Erichsen, Anchorage, AK, for plaintiff-appellant.

Apphia T. Schley and Andrea N. Ward, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

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

Before: HUG, POOLE and FERGUSON, Circuit Judges.

POOLE, Circuit Judge:

Appellant Viggo Thor Brandt-Erichsen appeals the district court's summary judgment in favor of the appellees, the United States Department of the Interior's Bureau of Land Management and its employees, on the ground that Brandt-Erichsen failed to obtain a "receipt upon final entry" triggering 43 U.S.C. § 1165 and therefore, did not obtain title to an 80-acre tract of land in Alaska. We affirm the district court's summary judgment.

I. BACKGROUND

Sometime in 1968, Brandt-Erichsen entered an 80-acre tract of land in the Wrangell-St. Elias National Park and Preserve in Alaska. In August of that same year, Brandt-Erichsen filed a Notice of Location of Settlement or Occupancy Claim with the Bureau of Land Management. With the notice, Brandt-Erichsen paid the required recording fees and obtained a receipt.

In August 1973, Brandt-Erichsen filed an application to purchase the 80 acres as a trade and manufacturing site and petitioned for a survey of the land with the Bureau of Land Management. He paid the required application fee for the patent and survey and obtained a receipt.

In January 1979, the Bureau of Land Management filed an administrative complaint contesting Brandt-Erichsen's request for a patent on the property. On December 12, 1979, an administrative law judge cancelled Brandt-Erichsen's entry on the ground that at the time he applied to purchase the tract, Brandt-Erichsen was not engaged in business operations from which he would derive a profit. The administrative law judge's determination was affirmed by the Interior Board of Land Appeals.

In May 1989, Brandt-Erichsen filed a complaint in district court. In his second cause of action, Brandt-Erichsen claimed equitable title to the 80 acres under 43 U.S.C. §§ 1165 and 687a.

In November 1990, both Brandt-Erichsen and the appellees filed summary judgment motions. On May 8, 1991, the district court granted summary judgment in favor of the appellees on Brandt-Erichsen's second cause of action. The court decided that: (1) 43 U.S.C. § 1165 entitled a person who satisfied its criteria to equitable title, and (2) Brandt-Erichsen failed to satisfy its criteria as he did not pay the entire purchase price and obtain the receiver or manager's receipt. The court entered final judgment as to the section 1165 issue under Fed.R.Civ.P. 54(b).

Brandt-Erichsen filed a timely notice of appeal with this court. We have jurisdiction over the appeal under 28 U.S.C. §§ 1291, 1294.

II. DISCUSSION

A. Summary Judgment.

A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir.1987). Viewing the evidence in the light most favorable to the nonmoving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. FDIC v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992); Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

Brandt-Erichsen contends that the district court erred by granting summary judgment in favor of the appellees on the ground that he failed to obtain a "receipt upon final entry" for purposes of 43 U.S.C. § 1165. He argues that the receipts he obtained for payment of fees in connection with his application to purchase land under 43 U.S.C. § 687a constituted a "receipt upon final entry" triggering the two-year statutory period. Because the Bureau of Land Management failed to object within the two-year period, Brandt-Erichsen asserts that he has equitable title to the land. The appellees disagree and argue that Brandt-Erichsen was required to pay the purchase price for the land before obtaining a "receipt upon final entry" and triggering the statute. The problem before us is to determine what constitutes "final entry" within the meaning of the statute.

1. The Statutes.

Congress passed what is now known as the Confirmation Statute, 43 U.S.C. § 1165, as part of a 1891 "Act to repeal timber-culture laws, and for other purposes." 26 Stat. 1095. Section 7 of the 1891 Act read:

[A]fter the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him....

26 Stat. 1099 (Emphasis Added). This section, now 43 U.S.C. § 1165, placed an affirmative restriction on the Commissioner of the General Land Office, now the Secretary of the Interior, to contest the rights of an entryman to a patent in a timely fashion. See Grewell v. Watt, 664 F.2d 1380, 1382 (9th Cir.1982).

Congress enacted what today is section 687a as part of a 1898 "Act extending homestead laws ... in the District of Alaska." 30 Stat. 409. As enacted, this section stated:

[A]ny citizen of the United States ... in the possession of and occupying public lands in the District of Alaska in good faith for the purposes of trade, manufacture, or other productive industry, may ... purchase one claim ... not exceeding eighty acres of such land ..., at two dollars and fifty cents per acre, 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. With the exception of the deletion of the words "District of," this section has remained unchanged since the time of its enactment. See 43 U.S.C. § 687a.

Although section 1165 was enacted as part of the 1891 Act and section 687a as part of the 1898 Act, we have held that Congress intended section 1165 to apply to claims under section 687a. Grewell, 664 F.2d at 1384.

2. Statutory Construction.

Judicial review of an agency's construction of a statute that it administers is a two-part process. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). First, we examine "whether Congress has directly spoken to the precise question at issue." Id. If the intent of Congress is clear, then we must give effect to that intent. Id. at 842-43, 104 S.Ct. at 2781-82. Second, if we determine that Congress has not directly addressed the precise question at issue, then we must decide whether the agency's interpretation is a permissible construction of the statute. Id. at 843, 104 S.Ct. at 2782.

a. Congress' Intent.

Congress did not expressly define the phrase "receipt upon final entry" as found in 43 U.S.C. § 1165. In a series of decisions, the Interior Board of Land Appeals ("IBLA") ¹ has interpreted the phrase to require an entryman to comply with the requirements for a patent application and to pay the entire purchase price of the land. For the reasons that follow, I do not believe that Congress' intent in using this phrase is clear.

At the time Congress passed the Confirmation Statute, an entryman simultaneously received a receiver's receipt, indicating submission of final proof and payment of required monies, and a register's certificate, indicating approval of the proof and declaring the entryman entitled to a patent. 30 Stat. 414 (1898); see also Stockley v. United States, 260 U.S. 532, 538-39, 43 S.Ct. 186, 187-88, 67 L.Ed. 390 (1923). By 1908, the procedures of the Land Department changed, and the Department no longer issued receiver's receipts and register's certificates simultaneously. Stockley, 260 U.S. at 538, 43 S.Ct. at 187.

In reviewing the effects of this change on the meaning of "receipt on final entry," the Supreme Court, in Stockley, 260 U.S. at 543, 43 S.Ct. at 189, held that the receiver's receipt alone constituted a "receipt upon final entry." The Court explained that Congress created section 1165 to avoid delays of unreasonable lengths of time between the time an entryman completed all the requirements of law and the time the agency adjudicated on the final proof. Id. at 540, 43 S.Ct. at 188. The Court noted that "[h]aving submitted to the proper officials proof showing full compliance with the law, and having paid all the fees and commissions lawfully due, [the entryman] had done everything which the law required on his part and became entitled to immediate issuance of the receiver's receipt, and this receipt was issued and delivered to him. No subsequent receipt was contemplated or required." Id.

In 1946, however, 43 U.S.C. § 1165 was amended as a result of the creation of the Department of the Interior's Bureau of Land Management. 1946 Reorganization Plan No. 3, § 403, 60 Stat. 1100....