Donnelly v. U.S.

• Decision Date: 27 June 1988
• Docket Number: 87-3834,Nos. 86-4428,s. 86-4428
• Parties: Therese U. DONNELLY, Personal Representative of the Estate of Joseph F. Donnelly, deceased, Plaintiff-Appellant, v. UNITED STATES of America; Secretary of the Interior; Director, Bureau of Land Management and Eklutna, Inc., Defendants-Appellees. James W. LEE, Plaintiff-Appellant, v. UNITED STATES of America; Secretary of the Interior; Director, Bureau of Land Management; Eklutna, Inc.; Cook Inlet Region, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1313

850 F.2d 1313

Therese U. DONNELLY, Personal Representative of the Estate

of Joseph F. Donnelly, deceased, Plaintiff-Appellant, v. UNITED STATES of America; Secretary of the Interior;

Director, Bureau of Land Management and Eklutna,

Inc., Defendants-Appellees.

James W. LEE, Plaintiff-Appellant, v. UNITED STATES of America; Secretary of the Interior;

Director, Bureau of Land Management; Eklutna,

Inc.; Cook Inlet Region, Inc.,

Defendants-Appellees.

Nos. 86-4428, 87-3834.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 4, 1988.

Decided March 10, 1988.

As Amended on Denial of Rehearing

and Rehearing En Banc

June 27, 1988.

Steven P. Oliver, Anchorage, Alaska, for plaintiffs-appellants.

Vicki L. Plaut, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., David P. Wolf, Copeland, Landye, Bennett and Wolf, Anchorage, Alaska, for defendants-appellees.

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

Before GOODWIN ^* and FLETCHER, Circuit Judges, and CARROLL, ^** District Judge.

FLETCHER, Circuit Judge:

This action arises from a land dispute between the United States and several homesteaders in the Eagle River Valley area in Alaska. Some of these claims have already been decided adversely to the claimants, on jurisdictional grounds. See McIntyre v. United States, 789 F.2d 1408 (9th Cir.1986); Lee v. United States, 629 F.Supp. 721 (D.Alaska 1985), aff'd, 809 F.2d 1406 (9th Cir.1987), cert. denied, sub nom. Lee v. Eklutna, Inc., --- U.S. ----, 108 S.Ct. 772, 98 L.Ed.2d 859 (1988).

Donnelly appeals the district court's dismissal of this action. ¹ We affirm.

BACKGROUND

In 1950, the Federal Power Commission (FPC) set aside certain lands in the Eagle River Valley for possible power development projects, thereby withdrawing the lands from the public lands open to entry by homesteaders. Two years later, the FPC issued a "no injury" determination that power development in the area would not be injured if the lands were restored to homestead entry. Although Sec. 24 of the Federal Power Act (FPA), 16 U.S.C. Sec. 818, provides that the Secretary of the Interior shall restore lands to entry after a "no injury" determination, the Secretary did not do so (for unknown reasons). Accordingly, the Donnellys' homestead applications to settle on some of this land were rejected in 1957 and again in 1959. From 1957 through 1968, the Donnellys tried to gain title by various means, including petitions to their congressional representatives and to the Secretary of the Interior, repeated renewals of the homestead application with the Bureau of Land Management (BLM), and, later, specific challenges to the power classification withdrawal. However they departed from the formal appeal procedure of the BLM as early as 1959, and only availed themselves of the procedure in 1967-68, when they began a renewed challenge to the power site classification. The Donnellys retained legal counsel in 1963, and in 1964 they applied for homestead patent to 67.5 acres, which surveys showed were outside the boundaries of the withdrawn lands. They received a patent to this portion in 1965, leaving 92.5 acres in dispute. The parties disagree as to whether the patent to 67.5 acres represented a "compromise and settlement."

In 1970, the Donnellys received a notice of trespass from the government and were ordered to leave the power reserve land and remove improvements they had placed on it. The following year Congress passed the Alaska Native Claims Settlement Act (ANCSA), Pub.L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C. Secs. 1601-1629a), which extinguished aboriginal land claims of Alaskan natives in exchange for the right of native corporations to select acreages of public lands. In 1974, Eklutna, Inc., selected the lands claimed by the Donnellys. In 1975 the government filed a trespass action against the Donnellys, who counterclaimed against the United States under the Quiet Title Act (QTA), Pub.L. No. 92-562, 86 Stat. 1176 (codified at 28 U.S.C. Sec. 2409a). In 1979, the government patented the land to the native corporations, and its trespass action was dismissed, leaving only the Donnellys' counterclaims and third party claims against Eklutna.

On November 5, 1982, after a bench trial, the district court dismissed the Donnellys' counterclaims against the United States and their third party claim of title against Eklutna. On November 13, 1986, the district court granted summary judgment dismissing the Donnellys' second cause of action against Eklutna, based on Sec. 14(c)(1) of ANCSA, 43 U.S.C. Sec. 1613(c)(1). Finally, on December 5, 1986, the district court amended the 1982 memorandum decision, and entered summary judgment against the Donnellys on their remaining claims based on ANCSA, Secs. 14(g) and 22(b) and on violations of equal protection and due process.

DISCUSSION

I. Lack of Jurisdiction

The QTA provides the exclusive remedy for resolving title disputes against the United States. Block v. North Dakota, 461 U.S. 273, 286, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). Defendants urge, and the district court found, two grounds for dismissal under the QTA of the counterclaims against the United States: that the United States disclaimed interest in the land and that the statute of limitations had run. Significantly, if the United States is dismissed from the case the title claims against Eklutna must be dismissed also because the United States is an indispensable party to the Donnellys' action against Eklutna. Lee v. United States, 809 F.2d at 1410-11. ²

A. United States' Disclaimer of Interest

Section 2409a(e) ³ provides that:

If the United States disclaims all interest in the real property or interest therein adverse to the plaintiff at any time prior to the actual commencement of the trial, which disclaimer is confirmed by order of the court, the jurisdiction of the district court shall cease unless it has jurisdiction of the civil action or suit on ground other than and independent of, the authority conferred by section 1346(f) of this title.

(Section 1346(f) is the jurisdiction-vesting counterpart to Sec. 2409a's waiver of sovereign immunity.) The United States conveyed the disputed homestead property as required under ANCSA, and the disclaimer was confirmed by the district court as valid and in good faith. See Lee v. United States, 629 F.Supp. at 726. Therefore, the district court is without jurisdiction over the Donnellys' counterclaims, unless there is an alternate jurisdictional ground independent of Sec. 1346(f)'s "quiet title" jurisdiction.

The Donnellys urge that federal question jurisdiction be found under 28 U.S.C. Sec. 1331, because their claims implicate 16 U.S.C. Sec. 818 (Sec. 24 of the FPA, authorizing withdrawal of lands from entry), 43 U.S.C. Sec. 161 (the Homestead Act, repealed 1976) and 43 U.S.C. Sec. 1601 (ANCSA). To the extent that these statutes go to the Donnellys' claim to title, they do not function independently of the QTA in the Donnellys' action, do not by themselves waive sovereign immunity, and therefore do not confer jurisdiction.

A more complicated question is presented by the suggestion that the Donnellys have a separate jurisdictional ground under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 702, which waives sovereign immunity for claims of wrongs suffered by agency action. The Donnellys claim they suffered such wrongs because the BLM misapplied FPA Sec. 24 and the homestead laws. It is ambiguous whether, and to what extent, the APA confers jurisdiction in this case on this basis.

On one hand, the QTA provides the exclusive remedy for title disputes against the government, and assertion of the APA as an independent means for pressing such suits has been expressly rejected. Block, 461 U.S. at 286 n. 22, 103 S.Ct. at 1819 n. 22; McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir.1986); Lee v. United States, 809 F.2d at 1409 & n. 2. In Block, the Court rejected North Dakota's claim that the APA's 1976 amendments established "a new supplemental remedy " (emphasis added) to assert property title against the United States. 461 U.S. at 286 n. 22, 103 S.Ct. at 1819 n. 22. The Court noted that the APA could not be interpreted to overcome the QTA's exclusive remedy because the APA "specifically confers 'no authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.' " Id. The QTA expressly forbade relief where the 12-year limitations period had run, under Sec. 2409a(g). ⁴

However, it is not necessarily the case that the APA is unavailable as a jurisdictional ground, as opposed to a remedy, under the reasoning of Block. We must consider whether Sec. 2409a(e) "forbids relief" under the QTA when the United States has disclaimed an interest in the property, when an alternate jurisdictional basis would otherwise exist under the APA. In other words, does the existence of an alternate jurisdictional basis preserve jurisdiction for resolving title disputes under the QTA, or does the qualifying language of Sec. 2409a(e) simply mean that the disclaimer of interest will not divest the court of jurisdiction over independent claims not disputing title?

In Lee v. United States, we suggested that allegations of "administrative wrongdoing" will trigger the exception to Sec. 2409a(e) and provide a jurisdictional basis for the QTA claim.

We do not hold, and do not read McIntyre to hold, that the Quiet Title Act constitutes the exclusive source of jurisdiction for all claims against the United States involving the United States' disposition of public lands. Section 2409a(e) of the Act provides that upon the United States' disclaimer of interest, jurisdiction in the district court will continue if the court "has jurisdiction ... on ground[s] other than and independent of the authority conferred by [the jurisdictional provision of the Act]." 28 U.S.C. Sec. 2409a(e)...