Jicarilla Apache Tribe v. Board of County Com'rs, County of Rio Arriba

• Citation: 862 P.2d 428,116 N.M. 320,1993 NMCA 94
• Decision Date: 30 July 1993
• Docket Number: No. 12098,12098
• Parties: JICARILLA APACHE TRIBE, Petitioner-Appellant, v. BOARD OF COUNTY COMMISSIONERS, COUNTY OF RIO ARRIBA, State of New Mexico, Respondent-Appellee. Natividad Q. CHAVEZ, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF RIO ARRIBA COUNTY, Cecilia R. Valdez, Guadalupe B. Garcia, Harold I. Romero, Ed Duda, Emilio Naranjo and John Doe I, John Doe II, and John Doe III, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 428

862 P.2d 428

116 N.M. 320

JICARILLA APACHE TRIBE, Petitioner-Appellant, v. BOARD OF COUNTY COMMISSIONERS, COUNTY OF RIO ARRIBA, State

of New Mexico, Respondent-Appellee.

Natividad Q. CHAVEZ, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF RIO ARRIBA COUNTY, Cecilia

R. Valdez, Guadalupe B. Garcia, Harold I. Romero, Ed Duda,

Emilio Naranjo and John Doe I, John Doe II, and John Doe

III, Defendants-Appellees.

No. 12098.

Court of Appeals of New Mexico.

July 30, 1993.

Certiorari Granted in 21,476 Sept. 28, 1993.

Certiorari Denied in 21,542 Oct. 26, 1993.

Wayne H. Bladh, Teresa Isabel Leger, Nordhaus, Haltom, Taylor, Taradash & Frye, Santa Fe, H. Vern Payne, Payne & Hall, P.C., Albuquerque, for appellant Jicarilla Apache Tribe.

Patrick A. Casey, Patrick A. Casey, P.A., Santa Fe, for appellant Natividad Q. Chavez.

Dennis Luchetti, Espanola, for appellees Board of County Com'rs of Rio Arriba County, et al.

OPINION

BIVINS, Judge.

We withdraw the opinion filed on April 27, 1993, and substitute the following.¹

Petitioner-Appellant Jicarilla Apache Tribe (the Tribe) and Plaintiff-Appellant Natividad Q. Chavez (Chavez), whose suits against Defendants-Appellees, the Board of County Commissioners of Rio Arriba County, et al. (the County), were consolidated below for trial, appeal from the district court's dismissal, after trial, of all Appellants' claims, and the court's determination that a public road by prescription had been established across Appellants' ranches. Four issues are raised on appeal: (1) whether the district court had subject matter jurisdiction to adjudicate the County's claim of a public road by prescription across the Tribe's ranch (raised only by the Tribe); (2) whether the district court properly found that a public road by prescription had been established across Appellants' ranches; (3) whether the district court properly considered evidence of a public road by prescription dating back to the period 1832-81; and (4) whether there was sufficient evidence of County recognition and maintenance of the claimed public road. We reverse as to the Tribe based on the first issue, partially affirm and partially reverse and remand as to Chavez on the second issue, and summarily affirm on the last two issues as they relate to Chavez.

I. FACTS

Appellants' causes of action arose when the County sent two road crews to "blade" a road across a ranch contiguous with the Jicarilla Apache Reservation and recently purchased by the Tribe, commonly called the "Theis Ranch," and across a ranch owned by Chavez (the Chavez property). The path followed by the road crews runs from New Mexico Highway 95 (N.M. 95) north to United States Highway 84 (U.S. 84), crossing the east end of the Theis Ranch and running through the center of the Chavez property, which lies to the north of the Theis Ranch.

On the same day in October 1987, the two county blading crews started at opposite ends (north and south) of what the County claims is a public road by prescription. The south crew started near N.M. 95, at the southern boundary of the Theis Ranch, and travelled about 6.5 miles north to the southern boundary of the Willow Creek Ranch, which borders the Theis Ranch to the north, alternately blading, filling arroyos with dirt, installing culverts, digging up trees, and simply driving along a relatively short stretch of already-existing road. The crew was stopped at the northern boundary of the Theis Ranch by the owners of the Willow Creek Ranch, who were not parties to the action below, and are not parties to this appeal. The north crew started at U.S. 84, at the northern boundary of the Chavez Ranch, and alternately drove and bladed their way for about 3.5 miles south to the northern boundary of the Willow Creek Ranch, which borders the Chavez Ranch to the south, where they also were stopped by the owners of the Willow Creek Ranch.

Chavez and the Tribe separately filed suit in the district court of Rio Arriba County very soon after these events. Both petitioned the court to enjoin the County from further activity on their respective ranches, while Chavez additionally requested that damages be awarded, alleging trespass and, in a later amended complaint, uncompensated taking of property, violations of 42 U.S.C. Section 1983 (1988), and negligence. The County, as one of its affirmative defenses, claimed that the disputed road across Appellants' ranches had been used by the public "since time immemorial" and that this use had created a public prescriptive easement.

The Tribe's and Chavez's suits eventually were consolidated, and after a trial, during which a large quantity of evidence was introduced, the district court dismissed all of Appellants' claims. The court ruled that a public road across Appellants' ranches had been established by prescription.

II. STATE COURT JURISDICTION OVER THE TRIBE'S DISPUTE WITH THE COUNTY

First, we consider the Tribe's jurisdictional claim. On appeal, the Tribe claims that the district court lacked subject matter jurisdiction to adjudicate the dispute between the Tribe and the County. Initially, we note that the district court was never alerted to the jurisdictional issue; in fact, the Tribe stipulated to the court's jurisdiction. Nevertheless, because we conclude that the district court had no jurisdiction to determine whether a public road by prescription had been established across land owned by the Tribe, we reverse on this issue as to the Tribe. See Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987) (argument not presented to court below will not be considered on appeal unless jurisdictional in nature).

We begin by explaining the timing of the events surrounding the Tribe's purchase of the Theis Ranch. The Tribe purchased the Ranch in June 1985, about two and a half years before the County's blading activities. The Tribe initially filed suit against the County in October 1987, the same month during which the County bladed, but did not deed the Ranch to the United States in trust until the following month, November 1987. The Theis Ranch was accepted in trust by the United States in March 1988, and was formally added to the Tribe's reservation in September 1988.

Generally, a state may not exercise authority over Indian affairs if such an exercise would infringe on an Indian tribe's right of self-government or has been preempted by federal law. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43, 100 S.Ct. 2578, 2582-83, 65 L.Ed.2d 665 (1980). See generally William C. Canby, Jr., American Indian Law in a Nutshell 73-77 (2d ed. 1988) [hereinafter Canby, American Indian Law ]. Either the "preemption" doctrine or the "infringement" doctrine, standing alone, is sufficient to bar the exercise of state authority. White Mountain Apache Tribe, 448 U.S. at 142-43, 100 S.Ct. at 2582-83; see New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 n. 16, 103 S.Ct. 2378, 2386 n. 16, 76 L.Ed.2d 611 (1983). New Mexico courts have applied both the preemption and the infringement doctrines to decide the propriety of state court adjudication of disputes involving Indian land. See, e.g., Chino v. Chino, 90 N.M. 203, 206, 561 P.2d 476, 479 (1977) (both infringement and preemption barred state court adjudication of interest in land on Mescalero Apache reservation); Sangre de Cristo Dev. Corp. v. City of Santa Fe, 84 N.M. 343, 348-51, 503 P.2d 323, 328-31 (1972) (county and municipal control over Tesuque Pueblo land did not infringe on the tribe's self-government, but was preempted, so state court had no jurisdiction), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 400 (1973); Alexander v. Cook, 90 N.M. 598, 600-02, 566 P.2d 846, 848-50 (Ct.App.1977) (state court had jurisdiction to adjudicate dispute between non-Indians arising on San Ildefonso Pueblo lands because neither infringement nor preemption applied). Because we find preemption in this case, we need not consider infringement.

Where Indian tribes are concerned, state action is preempted when it impairs the general thrust of a detailed federal regulatory scheme, Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng'g, P.C., 476 U.S. 877, 885, 106 S.Ct. 2305, 2310, 90 L.Ed.2d 881 (1986), and "[f]ederal limitations on alienation of Indian property have been so continuous and comprehensive that application of state laws would often impact directly upon the federal government itself." Cohen's Handbook of Federal Indian Law, supra, at 274. We specifically point out 28 U.S.C. Section 1360(b) (1988), a partial codification of what is commonly known as "Public Law 280," as a clear indication that such adjudicatory authority "is incompatible with federal ... interests reflected in federal law." Mescalero Apache Tribe, 462 U.S. at 334, 103 S.Ct. at 2386.

A. Public Law 280

Enacted in 1953 and amended in 1968, this act is a "mandatory grant" to six states (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska (added in 1958)) of extensive civil and criminal jurisdiction over actions and crimes arising in Indian country. These "mandatory" states are listed in the civil and criminal portions of the act and had no choice but to assume the jurisdiction granted by Public Law 280. See Canby, American Indian Law, supra, at 176-77; Felix S. Cohen's Handbook of Federal Indian Law 362 & n. 122 (Rennard Strickland & Charles F. Wilkinson eds., 1982) [hereinafter Cohen's Handbook of Federal Indian Law ]. Public Law 280 also gives all other states the option of acquiring such jurisdiction. See Canby, American Indian Law, supra, at 176-96; Cohen's Handbook of Federal Indian Law, supra, at 362; 18 U.S.C. § 1162 (1988); 28 U.S.C. § 1360. New Mexico has not accepted Public Law 280's offer of jurisdiction. See State v. Warner, 71 N.M. 418, 422, 379 P.2d 66, 69 (1963). See generally Canby, American Indian Law, supra, at 192; Cohen's Handbook of Federal Indian Law, supra, at 362.

Public Law 280's...