Dry Creek Lodge, Inc. v. U.S., No. 74-1546

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, McWILLIAMS and DOYLE; WILLIAM E. DOYLE
• Citation: 515 F.2d 926
• Parties: DRY CREEK LODGE, INC., a Wyoming Corporation, et al., Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees.
• Docket Number: No. 74-1546
• Decision Date: 09 May 1975

Page 926

515 F.2d 926 DRY CREEK LODGE, INC., a Wyoming Corporation, et al.,
Plaintiffs-Appellants,
v.
The UNITED STATES of America et al., Defendants-Appellees. No. 74-1546. United States Court of Appeals,
Tenth Circuit. Argued March 28, 1975.
Decided May 9, 1975.

Page 928

G. L. Spence, Casper, Wyo. (John R. Hursh, Hamilton & Hursh, P. C., Riverton, Wyo., on the brief), for plaintiffs-appellants.

Marvin J. Sonosky, Washington, D. C. (Glen A. Wilkinson, Washington, D. C. and William J. Thomson, II, Cheyenne, Wyo., on the brief), for non-federal defendants-appellees.

Larry A. Boggs, Atty., Dept. of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Richard V. Thomas, U. S. Atty., Cheyenne, Wyo., and George R. Hyde, Atty., Dept. of Justice, Washington, D. C., on the brief), for federal defendants-appellees.

Before SETH, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The primary question in this case is whether the trial court had subject matter jurisdiction. Following a hearing in which a preliminary injunction was sought and at which motions for dismissal and for summary judgment were filed on behalf of the federal defendants and the non-federal defendants, respectively, the court not only ruled that there was no jurisdiction but also ruled that there was no case on the merits. Some evidence was adduced and thus there was somewhat of a summary trial held at a preliminary stage of the proceedings.

This is an unusual case. The plaintiff claims a right of access to his property, on which he had built an inn or hotel (a

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stopping off place for persons entering wilderness areas), from the main road on a three and one-half mile dirt road which crosses Indian properties held in trust by the United States for the benefit of individual Indians and the Shoshone and Arapahoe tribes. Appellants had never owned a right-of-way, but had been until the present allowed free use of the dirt road in question by permission of the six members of the Bonatsie family, who are members of the Shoshone tribe, and the other landowners.

The events which brought about the crisis leading to the lawsuit started in early 1974 when appellants built a small lodge having dining and drinking facilities on their property. This lodge was financed in part at least by the United States Small Business Administration. Its representatives had expressed some interest in the fact that there was not as a matter of right an access to the lodge. Counsel for appellants assured the SBA that this was no problem. The superintendent of the Wind River Indian Reservation testified that he advised the appellants that it would be necessary for them to obtain a formal right-of-way from the Bonatsies in order to have a right of egress and ingress. Notwithstanding the right-of-way problem, the lodge was completed, but on the day of the formal opening the members of the Bonatsie family together with the Joint Business Council of the tribes plus the superintendent of the Reservation erected a barricade across the road and stopped traffic in both directions. It is undisputed that employees of the Bureau of Indian Affairs aided in manning the barricade.

All of the foregoing led to the filing of the instant lawsuit in the United States District Court for the District of Wyoming. Named as defendants were the Secretary of the Interior, the area director of the Bureau of Indian Affairs, the superintendent of the Reservation, a special agent of the Reservation, the Indian tribes together with the Joint Business Council of the tribes and its individual members, plus the Bonatsie family. Originally the court issued an ex parte restraining order as a result of which the barricade was removed. This order was entered May 21, 1974. On June 3 the non-federal defendants moved for summary judgment and the federal defendants moved to dismiss. Both movants raised the alleged lack of jurisdiction. On June 4, 1974, the plaintiffs moved for a preliminary injunction, and on June 7, 1974, a hearing was held on this motion, but prior to this an amended complaint had been filed which set forth the plaintiffs' contentions as to jurisdiction in some detail. At the June 7, 1974 hearing the plaintiffs maintained that the only issue before the court was the plaintiffs' request for a preliminary injunction together with the question as to the jurisdiction of the court to entertain the cause and motion. Counsel for appellants objected to any hearing on the merits. At the conclusion of the proceedings the parties agreed that they would maintain the status quo until the court ruled. The judgment of the court which was entered on July 11, 1974 denied the application for permanent injunction and denied also the claim seeking a declaratory judgment. The court retained jurisdiction so as to allow the plaintiffs to exhaust their remedies with the tribe and the Department of the Interior. However, without further notice the court proceeded to dismiss the cause of action on July 29, 1974. It is the propriety of these actions which we must review.

Plaintiffs contend:

1. The court erred in considering the merits and also its jurisdiction over the case without giving notice of intent to hear the merits in accordance with the Rules of Civil Procedure.

2. They maintain that it was error to issue what amounted to a summary judgment without giving the requisite notice provided in Rule 56(c) of the Federal Rules of Civil Procedure.

3. They also contend that the court was in error in holding that it lacked jurisdiction and in denying the motion for preliminary injunction.

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I.

Inasmuch as it appears from the record that the concern of the district court was with the question of jurisdiction to accept the cause and that this consideration affected, indeed governed, the rulings on the merits, it would seem to be proper first to inquire as to whether jurisdiction existed.

The complaint insofar as the United States and its agents are concerned alleges that the court had jurisdiction pursuant to 28 U.S.C. § 1331 to adjudicate their claims for a way of necessity and to issue a quiet title decree against the United States and the Indians as well, including the administrator of the estate of Ed Bonatsie.

A. Could the United States be a party?

At the outset we conclude that the trial court was correct in dismissing the claims as to the United States, because it had neither expressly nor impliedly consented to the suit. ¹ The plaintiffs, however, allege that a consent was given (a waiver of immunity) as a result of enactment of 25 U.S.C. § 357, which in general provides that lands allotted to Indians may be condemned for any public purpose under the laws of the State or Territory where the land is located. Plaintiffs also point to a companion Wyoming statute which allows one who has no outlet to a public road to obtain a private road through the Board of County Commissioners of his county. But we fail to see that either the federal statute or the Wyoming statute (Wyoming Stat.Ann. § 24-92) creates the necessary waiver of sovereign immunity. If it could be said that there was a waiver contained in § 357, supra, it would extend only to condemnations for public purpose. The Wyoming statute applies only to condemnations for private purpose. The law is well settled that waiver of sovereign immunity is to be strictly construed, and it is plain that Congress did not give its consent to suits against it by private individuals seeking private roads.

B. Immunity of the individual government officers.

It is contended that the defendants Rogers Morton, James Cannon, Clyde Hobbs and Archie W. Keep are also immune from suit because they were performing their functions as officers of the United States. ² If the action against the officers was based only on their failure to provide or extend a way of necessity, the immunity would have to be upheld as to them as well as the government.

The question is, however, whether the sovereign immunity which belongs to the government extends to the officers on these facts. Federal jurisdiction does extend to federal officials even in the absence of a consent when they have acted beyond their statutory authority or where they have acted in an unconstitutional manner. The complaint herein alleges that the officers acted without authority or justification in maintaining the barricade. From the allegations of the complaint and the surrounding facts, it appears that the federal officers manned the barricades with the tribal councils and encouraged the latter to block access to plaintiffs' property. It is also alleged that the federal agents along with the other defendants conspired to deprive the plaintiffs of their civil rights in violation of 42 U.S.C.

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§§ 1983 and 1985 and that their rights are subject to vindication under 28 U.S.C. § 1343.

The trial court correctly ruled that the claim under § 1983 lacks merit because there is no showing that the defendants acted under color of state law, an essential requirement of the § 1983 suit. The court's dismissal of the § 1983 action was then correct. ³

But this does not end the matter. There is a further contention that the court erred in dismissing plaintiffs' claim that the individual defendants other than the Secretary of the Interior conspired to deprive them of equal protection or equal privileges and immunities contrary to 42 U.S.C. § 1985. Here the presence or absence of state action is not a factor, for this provision embraces private conspiracies. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). The plaintiffs' theory revealed in the complaint and at the hearing was that the blockade's purpose was deprivation of equal protection of the laws and of due process, and the plaintiffs maintain that they belong to a class which was the object of discrimination. The complaint also alleged that the blockade sought to block ingress and...