Jachetta v. U.S.

• Citation: 11 Cal. Daily Op. Serv. 9718,2011 Daily Journal D.A.R. 11574,11 Cal. Daily Op. Serv. 9639,653 F.3d 898
• Decision Date: 01 August 2011
• Docket Number: No. 10–35175.,10–35175.
• Parties: William Carlo JACHETTA, Plaintiff–Appellant,v.UNITED STATES of America; Bureau of Land Management; Department of Public Facilities, State of Alaska, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

653 F.3d 898

11 Cal. Daily Op. Serv. 9639

11 Cal. Daily Op. Serv. 9718

2011 Daily Journal D.A.R. 11,574

William Carlo JACHETTA, Plaintiff–Appellant,

v.UNITED STATES of America; Bureau of Land Management; Department of Public Facilities, State of Alaska, Defendants–Appellees.

No. 10–35175.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2011.Filed Aug. 1, 2011.

Samuel J. Fortier and Rachel B. Lauesen, Fortier & Mikko, P.C., Anchorage, AK, for the plaintiff-appellant.Justin R. Pidot, Assistant United States Attorney, Washington, DC, for defendant-appellee United States of America.Sean P. Lynch, Assistant Attorney General, Juneau, AK, for defendant-appellee State of Alaska.Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. No. 3:08–cv–00262–RRB.

Before: ARTHUR L. ALARCÓN, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

In 1971, William Carlo Jachetta applied for a 160–acre Native allotment comprised of two parcels (Parcel A and Parcel B) but, because of an error of the United States government, his application was initially processed only as a request for Parcel A, which the Bureau of Land Management (“BLM”) issued to Jachetta in 1986. In 2004, after long and complicated administrative proceedings, the BLM finally issued Jachetta his allotment for Parcel B. By this time, however, Parcel B had been used as a “material site” by the State of Alaska Department of Transportation (“Alaska” or the “State”) and by the Alyeska Pipeline Service Company (“Alyeska”) who, among other things, had extracted over 700,000 cubic yards of gravel from the allotment. Dissatisfied with the physical condition of Parcel B, Jachetta sued the BLM, Alaska, and Alyeska in federal court, alleging causes of action for inverse condemnation, injunctive relief, nuisance, breach of fiduciary duties, and civil rights violations. The district court dismissed Jachetta's action against the BLM and Alaska on the basis of sovereign immunity, and Jachetta appeals the dismissal to this court. We hold that sovereign immunity bars Jachetta's entire action against Alaska but, at this point, only part of his action against the BLM.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1971, Jachetta, an Alaska Native, applied to the Bureau of Indian Affairs (“BIA”) for a Native allotment under the Alaska Native Allotment Act of 1906. Although Jachetta sought a 160–acre allotment—comprised of a 50–acre parcel (Parcel A) and a 110–acre parcel (Parcel B)—the BIA erroneously omitted any reference to the 110–acre parcel when it accepted his application. Consequently, when the BLM approved Jachetta's application in 1986, the BLM issued Jachetta an allotment only for Parcel A. Though by this time Jachetta had realized the BIA's error and had filed a request with the BLM to amend his application to reflect that he was also seeking an allotment for Parcel B, the BLM denied his request. Jachetta appealed the BLM's decision and, after protracted administrative proceedings, finally received an allotment for Parcel B in July 2004.

During this time, Parcel B did not remain untrammelled. Before the BLM issued Jachetta his allotment for Parcel B, the BLM granted permits to third parties, including Alaska and Alyeska, for the use of Parcel B as a “material site.” Since 1973, Alaska and Alyeska have removed over 700,000 cubic yards of gravel from Parcel B which, according to Jachetta, created a giant crater on the parcel and transformed the parcel into a moonscape. Once Jachetta received his allotment for Parcel B, he sued the BLM, Alaska, and Alyeska, seeking monetary and injunctive relief for the gravel extracted by Alaska and Alyeska and for Alyeska's alleged destruction of vegetation, removal of trees and other resources, placement of barriers, and prevention of Jachetta's “rightful use of occupancy” of Parcel B. Specifically, Jachetta brought five causes of action: (1) inverse condemnation against the State and Alyeska for “extracting and carrying off rock, sand and gravel [from Parcel B] without compensati[on]”; (2) injunctive relief against all defendants to prevent any future inverse condemnation; (3) nuisance against all defendants for “contaminating or otherwise polluting [Parcel B]”; (4) breach of fiduciary duties against the BLM for, among other things, failing to preserve the original character of Parcel B; and (5) civil rights violations under 42 U.S.C. §§ 1983 and 1985 against all defendants for conspiring among themselves to destroy Parcel B. In his prayer for relief, Jachetta requested an injunction and monetary damages equivalent to the fair market value of the resources extracted from his land.

The BLM filed a motion to dismiss, arguing that sovereign immunity barred Jachetta's action against the United States, that the action was barred by the statute of limitations, and that Jachetta's complaint failed to state claims upon which relief can be granted. Alaska also filed a motion to dismiss, which argued only that the Eleventh Amendment barred Jachetta's action against the State. The district court held that federal sovereign immunity barred Jachetta's action against the BLM and dismissed Jachetta's action against the BLM for lack of subject matter jurisdiction. The district court also held that Alaska was immune from suit under the Eleventh Amendment and granted Alaska's motion to dismiss. Jachetta has timely appealed the district court's rulings to this court.

JURISDICTION AND STANDARD OF REVIEW

Although Jachetta's action against Alyeska is still pending before the district court, the district court entered two judgments—one dismissing Jachetta's action against the BLM, and one dismissing Jachetta's action against Alaska—in which it expressly certified that there was no just reason to delay the entry of judgment in favor of these two parties. Because the district court complied with Federal Rule of Civil Procedure 54(b), we have jurisdiction under 28 U.S.C. § 1291. Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 840 (9th Cir.2003). We review de novo the district court's dismissals on the grounds of state and federal sovereign immunity. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.2004); Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004).

DISCUSSION

This appeal raises two issues: (1) whether federal sovereign immunity bars Jachetta's action against the BLM; and (2) whether the Eleventh Amendment bars Jachetta's action against Alaska. We discuss each issue in turn.

A. Federal Sovereign Immunity

“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Before we may exercise jurisdiction over any suit against the government, we must have “a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (citations omitted); see also United States v. Park Place Assocs., Ltd., 563 F.3d 907, 923–24 (9th Cir.2009) (discussing the relationship between sovereign immunity and subject matter jurisdiction). The government's waiver of sovereign immunity cannot be implied, but “must be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

Here, Jachetta points to several statutes that he claims waive the sovereign immunity of the United States: (1) the Federal Tort Claims Act (“FTCA”); (2) 25 U.S.C. § 345, which authorizes actions for Native allotments; (3) 25 U.S.C. § 357, which allows states to condemn Native allotments for a public purpose; (4) the general jurisdiction provision 28 U.S.C. § 1343(a)(3); and (5) two civil rights provisions, 42 U.S.C. §§ 1983 and 1985. Of these, we conclude that only the FTCA may waive the BLM's sovereign immunity for some, but not all, of Jachetta's claims.

1. The Federal Tort Claims Act

The FTCA authorizes private tort actions against the United States “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005). Accordingly, if Alaska law imposes tort liability upon a private person for any of the claims alleged in Jachetta's complaint, the FTCA may waive the BLM's sovereign immunity. See Bolt v. United States, 509 F.3d 1028, 1031 (9th Cir.2007) (“[T]he party seeking federal jurisdiction ... must therefore demonstrate that Alaska law would recognize a [tort] cause of action ... against a private individual for like conduct.”); Love v. United States, 60 F.3d 642, 644 (9th Cir.1995) ( “To recover under the FTCA, the [plaintiff] must show the government's actions, if committed by a private party, would constitute a tort in Montana.”); Schwarder v. United States, 974 F.2d 1118, 1122 (9th Cir.1992) (“[T]he FTCA directs us to look to the law of the state in which the government official committed the tort to determine the scope of sovereign immunity. If the law of that state makes private parties liable ... then the United States is liable for the same.”).

Here, the district court held that the FTCA did not waive sovereign immunity because Jachetta's complaint did not include any claims that are torts under Alaska law. The district court was only partly correct. Counts 1, 2, and 5 of Jachetta's complaint—styled as causes of action for inverse condemnation, injunctive relief to prevent future unconstitutional takings, and violations of federal civil rights statutes—clearly are not torts under Alaska law; nor could they be, as they do not allege...