Kingman Reef Atoll Investments, L.L.C. v. U.S.

• Decision Date: 04 September 2008
• Docket Number: No. 07-16817.,07-16817.
• Citation: 541 F.3d 1189
• Parties: KINGMAN REEF ATOLL INVESTMENTS, L.L.C., Plaintiff-Appellant, v. UNITED STATES of America; United States Department of the Interior; Gale A. Norton, Secretary of the Interior; United States Fish and Wildlife Service; Steven A. Williams, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

541 F.3d 1189

KINGMAN REEF ATOLL INVESTMENTS, L.L.C., Plaintiff-Appellant, v. UNITED STATES of America; United States Department of the Interior; Gale A. Norton, Secretary of the Interior; United States Fish and Wildlife Service; Steven A. Williams, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants-Appellees.

No. 07-16817.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2008.

Filed September 4, 2008.

Therese Y. Cannata (argued), Michael M. Ching, and Carolyn A. Johnston of Cannata, Ching & O'Toole LLP, San Francisco, CA, Christian P. Porter and Donna H. Yamamoto of Brooks Tom Porter & Quitquit LLP, Honolulu, HI, and Jon M. Van Dyke, Honolulu, HI, for the plaintiff-appellant.

Allen M. Brabender (argued), David C. Shilton, and Donna Fitzgerald, Attorneys, Environmental and Natural Resources Division, United States Department of Justice, and Ronald J. Tenpas, Assistant Attorney General, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; J. Michael Seabright, District Judge, Presiding. D.C. No. CV-05-00151-JMS.

Before: ALFRED T. GOODWIN, PAMELA ANN RYMER, and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

Kingman Reef Atoll Investments, LLC (KRAI), filed this action against various United States departments and officers in their official capacities (collectively, the "United States"), pursuant to the Quiet Title Act (QTA), 28 U.S.C. § 2409a. KRAI seeks to quiet title to Kingman Reef, a small, low-lying coral reef atoll located approximately 930 miles south of Honolulu, Hawaii. The district court dismissed KRAI's claim for lack of subject matter jurisdiction. We affirm, because KRAI's predecessor knew or should have known of the claim of the United States more than twelve years prior to KRAI's filing of the complaint in this case, and KRAI has failed to demonstrate that the United States has clearly and unequivocally abandoned its claim of interest in Kingman Reef.

I

"Kingman Reef is a low-lying, coral reef atoll comprised of small emergent land spits and partially exposed coral reefs that surround a deep central lagoon, located approximately 930 miles south of Honolulu, Hawaii." Kingman Reef Atoll Invs., L.L.C. v. United States, 545 F.Supp.2d 1103, 1105 (D.Haw.2007). Kingman Reef's only dry land consists of coral rubble and marine shells sitting less than two meters above sea level at its highest point, making it unfit for human habitation. See id.

The first reported Western contact at Kingman Reef was by an American whaler in 1798; eponymous Captain W.E. Kingman later visited the reef in 1853. Id. The U.S. Guano Company claimed the reef in 1860, although there is no evidence that guano existed or was ever mined there.

KRAI's interest in Kingman Reef dates to 1922, when an employee of the Island of Palmyra Copra Company claimed Kingman Reef in the name of the United States for his employer to use as a fishing base. Id. The Palmyra Copra Company purported to cede Kingman Reef to the Fullard-Leo family that same year.¹ On October 5, 1932, a member of the Fullard-Leo family approached United States officials in Oahu to inquire whether he could sell various islands including Kingman Reef to foreign buyers and whether the United States wished to purchase the islands instead. Thereafter, the United States, by the Navy and State Department, began to investigate whether Kingman Reef was a sovereign territory of the United States and, if so, whether it was owned by the United States or by the Fullard-Leo family. By a memorandum of November 7, 1934, a legal advisor of the State Department advised that "it might be well for this Government to take some affirmative action to show definitely that [Kingman Reef] is a part of the territory of the United States. The mere mention of it in an Act of Congress as American territory would be sufficient."

President Roosevelt issued Executive Order 6935 on December 29, 1934. Kingman Reef, 545 F.Supp.2d at 1105. The order states:

By virtue of and pursuant to the authority vested in me by the act of June 25, 1910 [the Pickett Act], and as President of the United States, it is ordered that ... Kingman Reef ... [is] hereby, reserved, set aside, and placed under the control and jurisdiction of the Secretary of the Navy for administrative purposes. ... This order shall continue in full force and effect unless and until revoked by the President or by act of Congress.

Exec. Order No. 6935. The Pickett Act, referenced in the order, permitted the President, "at any time in his discretion, [to] temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States ... and reserve the same for ... public purposes to be specified in the orders of withdrawals." Pickett Act of June 25, 1910, Ch. 421, 36 Stat. 847.²

Following President Roosevelt's issuance of Executive Order No. 6935 in 1934, Leslie and Ellen Fullard-Leo wrote to Samuel Wilder King, who was then serving in the United States House of Representatives as a delegate from the territory of Hawaii. In their April 20, 1937 letter, the Fullard-Leos acknowledged that Kingman Reef's "ownership presumably rests with the State or Navy Department," and requested compensation only for the cost of sending their boat to Kingman Reef "together with taxes and accrued interest over a period of fifteen years." Samuel Wilder King forwarded this request to Claude A. Swanson, Secretary of the Navy, who replied in a letter dated May 29, 1937 that "[t]he records of the Navy Department do not indicate that there were any vested rights on Kingman Reef in favor of private interests on the date of the issuance of th[e] Executive Order [6935]." On March 29, 1938, attorneys representing the Fullard-Leos sent a letter to Secretary Swanson, acknowledging the Navy's position that the family did not own Kingman Reef, and threatening legal action to establish such ownership. See Kingman Reef, 545 F.Supp.2d at 1107. By letter of April 26, 1938, G.J. Rowcliff, the Judge Advocate General of the Navy, rebuffed the family's claim of ownership over Kingman Reef. Rowcliff stated:

It will be noted that the island, including its reefs and tide and submerged lands, was under the control and jurisdiction of the United States long before the claim of Mrs. Fullard-Leo arose, and by Executive Order No. 6935, dated December 29, 1934, it was placed under the control and jurisdiction of the Navy Department. Under the circumstances, the showing made is not sufficient to uphold the claim of Mrs. Fullard-Leo.

Id.

On February 14, 1941, President Roosevelt issued another executive order establishing a "Kingman Reef Naval Defensive Sea Area." Exec. Order No. 8682, amended by Exec. Order 8729. This Executive Order established that "[a]t no time shall any person, other than persons on public vessels of the United States, enter [the Kingman Reef area]," and delegated enforcement of the order to the Secretary of the Navy. Id. The Navy subsequently promulgated regulations restricting access to Kingman Reef. See 32 C.F.R. § 761.3(a)(2)(v), (b)(2).

In the fifty years after World War II, both the United States Navy and representatives of the Fullard-Leo family purported to grant third party requests to visit or fish at Kingman Reef. See Kingman Reef, 545 F.Supp.2d at 1107-08. For example, KRAI submitted a declaration from a private citizen stating his impression that "the community of sailors and fishermen in Honolulu .... knew that ... Kingman Reef belonged to the Fullard-Leo family because of the way they took care of [it] and protected [it] at their expense," and that only the Fullard-Leo family could grant permission to travel to and fish at Kingman Reef. The record contains several other declarations of similar import.

At the same time, the Navy also asserted its authority to grant access to Kingman Reef. A July 27, 1973 letter from Senator Hiram Fong, and a Navy memorandum of August 2, 1973, both in response to the request of a private citizen seeking "permission to fish on and about Kingman Reef," indicate that permission to travel to and fish at Kingman Reef could be granted only by the Navy.

The issue of rightful ownership of Kingman Reef came into greater focus in the 1990s, when the United States Fish and Wildlife Service (an agency within the Department of the Interior) began to consider acquiring Kingman Reef and nearby Palmyra Atoll (owned by the Fullard-Leo family) for the purpose of establishing a National Wildlife Refuge. See id. at 1108-09. The Fish and Wildlife Service's preliminary investigations into acquiring the reef indicated its initial understanding that the Fullard-Leos owned the reef. For example, an internal Fish and Wildlife Service document from August 1997 states:

Kingman Reef was annexed on behalf of the United States in 1922, by the Palmyra Copra Company (Fullard-Leo Family), and the family claims ownership. It is an unincorporated U.S. possession administered by the U.S. Department of the Navy. The Service is proposing to study fee title acquisition of Kingman Reef from the center of the atoll to the 3-nautical mile limit.

Consistent with this understanding, Fish and Wildlife Service employees obtained the Fullard-Leos' permission to access the reef, and signed indemnity and waiver agreements requested by the Fullard-Leo family. However, an August 6, 1998 confidential internal memorandum from a high-ranking Department of the Interior staff member to the Secretary indicated uncertainty as to who owned Kingman Reef. The memorandum noted that "[t]he owners of Palmyra also claim ownership of Kingman Reef, but the United States disputes this claim," and raised the possibility that the Department of the Interior could obtain ownership over Kingman Reef through "an agreement [to transfer the island from] the Department of Defense."³ On August 25, 2000, the Fish and Wildlife Service...