Grewell v. Watt, 78-2880

• Citation: 664 F.2d 1380
• Decision Date: 07 January 1982
• Docket Number: No. 78-2880,78-2880
• Parties: LaVonne V. GREWELL, Appellant, v. James G. WATT, Secretary of the Interior, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1380

664 F.2d 1380

LaVonne V. GREWELL, Appellant, v. James G. WATT, Secretary of the Interior, Appellee.

No. 78-2880.

United States Court of Appeals, Ninth Circuit.

Argued Aug. 20, 1979.

Taken under Submission Sept. 8, 1981, after intermediate

withdrawals from submission.

Decided Jan. 7, 1982.

Lee R. McNair, McNair & Henderson, Seattle, Wash., for appellant.

Maryann Walsh, Washington, D. C., argued, for appellee; Rene Gonzales, Anchorage, Alaska, Robert L. Klarquist and James W. Moorman, Gail Osherenko, Washington, D. C., on brief.

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

Before CHAMBERS and TANG, Circuit Judges, and THOMPSON, ^* District Judge.

CHAMBERS, Circuit Judge:

Mrs. Grewell took possession and occupied a five acre homesite near Nenana, Alaska, in July 1965 under the provisions of 43 U.S.C. § 687a. In July 1970, she applied to purchase the site, sending the $12.50 purchase price, and asserting that she had complied with statutory requirements for habitation and improvement. Her address during this period was in care of General Delivery, Nenana, Alaska-a town of some 362 inhabitants, according to the 1970 census. In April 1972, she sent the usual pink change-of-address card to the Nenana Post Office, instructing that her mail be forwarded to her at Box 23, Arlington, Washington. She received mail from Nenana, so forwarded, into 1974-although the precise dates of receipt are not clear. On August 9, 1974, more than four years after her application to purchase the site, the Fairbanks office of the Bureau of Land Management (BLM) sent her a notice addressed to General Delivery, Nenana, informing her that proceedings were being taken by the Secretary to contest her claim to the site and advising her that she had thirty days in which to respond to the complaint. The Nenana Post Office returned the letter to the BLM on September 12, 1974, indicating that her address was unknown.

Acting now with uncharacteristic speed, the BLM thirty-three days later obtained a default judgment against Mrs. Grewell. The notice of the default judgment was sent to her, again at General Delivery, Nenana. Eventually, this notice also was returned as undeliverable after someone in the Post Office had forwarded it to the address of an attorney in Washington who had once represented Mrs. Grewell in a completely unrelated matter. It is not totally clear just who did the forwarding but, as we have said, Nenana is a small town.

It was not until January 1975 that Mrs. Grewell first became aware of the government contest of her claim, of the default judgment, and of the expiration of the thirty-day appeal period. She promptly attempted an appeal, through the Fairbanks office of the BLM, but it was dismissed as untimely. An appeal to the Office of Hearings and Appeals of the Interior Board of Land Appeals was similarly dismissed, with the notation that the thirty-day period was "jurisdictional." She then filed this action with the district court, contending that she had been denied due process of law and, moreover, that the Secretary's contest of her claim was barred by the terms of 43 U.S.C. § 1165.

Cross-motions for summary judgment were filed and the district judge, after taking evidence, granted summary judgment in favor of the Secretary. He held that there had been no denial of due process and that departmental regulations on service of legal documents were reasonably calculated to give notice to persons such as appellant. He also held that the Secretary's contest was not barred by the terms of Section 1165 of Title 43, also known as "the Confirmation Statute."

We conclude that the district court erred in concluding that the Secretary's action was not barred by the Confirmation Statute. Thus, we do not reach the potentially troublesome due process question and have no need to dwell on the conflicting evidence as to the forwarding of mail to Mrs. Grewell during the period in question, or the conflicting evidence as to the interest expressed by a Nenana postal employee in buying the Grewell site. And we are thus relieved from discussing the double standard presented by departmental regulations dealing with service of complaints and other legal documents-one standard for those who are "of record" and another standard for those who are not.

We have given thought to both the statute under which Mrs. Grewell claims her homesite (43 U.S.C. § 687a) and the statute which she argues barred the Secretary's contest after two years (43 U.S.C. § 1165). Both statutes had their genesis, either direct or indirect, in the Act of 1891 entitled "An Act to repeal timber-culture laws, and for other purposes" (26 Stat. 1095). Section 1 of the 1891 Act provided for claims of homesteads in any State or Territory, for claims of desert-lands, timber-lands, and claims under preemption laws. It also contained provisions dealing with Indian lands, Alaska townsites, and also with claims based on the occupation of Alaska lands "for the purpose of trade or manufactures."

Section 7 of the 1891 Act provided an affirmative restriction on the power of the Secretary. The language of the 1891 Act (with minor irrelevant changes) appears now as 43 U.S.C. § 1165:

"That after the lapse of two years from the date of the issuance of the receipt of such officer as the Secretary of the Interior may designate upon the final entry of any tract of land under the homestead, timber-culture, desertland, or preemption laws, or under the Act of March 3, 1891, 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 ...."

The district judge referred to this statute as a "statute of limitations," but we do not see it as such. ¹ It is a statutory provision assuring the entryman of rights to a patent unless the Secretary contests the entry in timely fashion. Any contest coming after two years is "unauthorized and void." Stockley v. United States, 260 U.S. 532, 544, 43 S.Ct. 186, 189, 67 L.Ed. 390 (1923).

In 1898 another statute was enacted, entitled "An Act extending the homestead laws and providing for right of way of railroads in the District of Alaska, and for other purposes" (30 Stat. 409). The Act begins:

"That the homestead land laws of the United States and the rights incident thereto, including the right to enter surveyed or unsurveyed lands under provisions of law relating to the acquisition of title through soldiers' additional homestead rights, are hereby extended to the District of Alaska ...."

Other provisions of the 1898 Act restricted the size of individual claims in Alaska to 80 (rather than 160) acres and placed certain other restrictions on them that distinguish them from homesteads under the 1891 Act. The 1898 Act also provided for eighty-acre claims "for the purpose of trade, manufacture, or other productive industry" in Alaska. The language is so similar to the language in the 1891 Act that we can only conclude that the genesis of the 1898 language was the 1891 Act itself. The 1898 Act contained no reference to any time limitation on the Secretary's contest. And, while it does specifically recognize the validity of claims theretofore made under the 1891 Act, it does not purport to repeal the 1891 Act.

In 1927, the 1898 Act was amended to provide for five-acre homesites by those "engaged in trade, manufacture, or other productive industry" in Alaska (44 Stat. 1364), ² and the provision was codified as 43 U.S.C. § 687a. In 1934, the language of the 1898 Act (and Section 687a) was again amended to broaden the language to permit claims of five-acre homesites by any citizen "after occupying land of the character described as a homestead or headquarters...." (48 Stat. 809). ³ Mrs. Grewell's claim, as we have said, is a five-acre homesite claimed under the authority of 43 U.S.C. § 687a.

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