Lord v. Babbitt, F94-0011 CV (JKS).

• Citation: 943 F.Supp. 1203
• Decision Date: 01 October 1996
• Docket Number: No. F94-0011 CV (JKS).,F94-0011 CV (JKS).
• Parties: Walter LORD, Plaintiff, v. Bruce BABBITT, Secretary of the United States Department of the Interior, and the United States of America, Defendants.
• Court: U.S. District Court — District of Alaska

943 F.Supp. 1203

Walter LORD, Plaintiff, v. Bruce BABBITT, Secretary of the United States Department of the Interior, and the United States of America, Defendants.

No. F94-0011 CV (JKS).

United States District Court, D. Alaska.

October 1, 1996.

COPYRIGHT MATERIAL OMITTED

Robert A. Sparks, Law Office of Robert A. Sparks and Robert John, Law Offices of Robert John, Fairbanks, Alaska, for plaintiff.

Dean K. Dunsmore, Department of Justice, Environment & Natural Resources Division, Anchorage, Alaska, for defendants.

ORDER

DENYING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

SINGLETON, Chief Judge.

Walter Lord ("Lord") brings this action seeking to establish his right to a Native Allotment in the vicinity of Fairbanks, Alaska. The defendants (collectively called "the government") argue that the land in question has been patented to the State of Alaska, a necessary party, over whom this Court lacks jurisdiction and, alternatively, that the running of the applicable statute of limitations deprives this Court of jurisdiction. The government moves to dismiss, and Lord moves for summary judgment. The Court concludes that it has jurisdiction over this case but that unresolved questions about the notice Lord received (or did not receive) of the adverse agency action regarding rejection of his allotment application prevents this Court from resolving the statute of limitations issue. Therefore, the motion to dismiss and the motion for summary judgment are denied.¹ The Court's reasons for this decision follow:

BACKGROUND

On May 24, 1957, Lord, an Alaska Native, filed an Alaska Native Allotment application for a parcel of land on the Tanana River in Fairbanks, Alaska, pursuant to the Alaska Native Allotment Act of 1906, 43 U.S.C. §§ 270-1 through 270-3 (1970) (repealed 1971). Docket No. 48 (Lord's second amended complaint). Lord began using the land immediately after filing his application in 1957. Docket No. 66, Appendix 1 (Walter Lord affidavit). The Department of the Interior, Bureau of Land Management ("BLM") sent Lord a notice to his last known address, General Delivery, Fairbanks, Alaska, on January 4, 1963 informing Lord that he needed to send to the BLM proof of his use and occupancy of the land by May 24, 1963 to prevent his allotment application from expiring. Docket No. 56, Exh. 1, Attachment B. Lord did not respond. He claims that he did not personally receive notice because the notice was sent to General Delivery, Fairbanks, Alaska instead of to the mailbox in Fairbanks at 2 mile Peger Road. Docket No. 66, Appendix 1 (Walter Lord affidavit). Defendants, however, point out that "General Delivery, Fairbanks, Alaska" was the address used by the BLM because Lord put that address on his application. See Docket No. 56, Exh. 1, Attachment A (allotment application).

On May 31, 1963, the BLM sent a notice to Lord's last known address, General Delivery, Fairbanks, Alaska, stating that his allotment application had been terminated due to his failure to submit proof of use and occupancy by May 24, 1963 which would have been within six years of the filing of his application. Docket No. 56, Exh. 1, Attachment C. The notice was sent certified mail, and the BLM received a return receipt indicating its delivery. Id., Attachment D. The signature on the return receipt was "Etta Mae Lord." Id. Lord claims that he did not personally receive the notice but that his wife, Etta Mae Lord, had received it. Docket No. 66, Appendix 1 (Walter Lord affidavit). He further claims that he was not aware that his wife had received the notice "until as long as many years after it was signed for." Id. Lord never appealed the 1963 BLM decision.

In June of 1972, the State of Alaska amended its selection of land to specifically select the land at issue in this case. Docket No. 56, Exh. 1, Attachment F. Tentative approval was given regarding the State's selection on February 19, 1976. Id., Attachment G. Subsequently, the Alaska National Interest Lands Conservation Act (ANILCA), 43 U.S.C. § 1634 (1980) was enacted. Pursuant to this statute, "all right, title and interest of the United States in and to such lands is deemed to have vested in the State of Alaska as of the date of the tentative approval...." 43 U.S.C. § 1635(c). On November 12, 1985, the parcel of land at issue was patented to the State of Alaska under patent No. 50-86-0043. Docket No. 56, Exhibit 4 at ¶ 12 and Attachment H.

Lord claims that it was only after his attorney received letters from the BLM in 1994 that he realized that his application would not be reinstated. Docket No. 66, Appendix 1 (Walter Lord affidavit). Furthermore, Lord claims that it was not until he received the answer to his complaint in the instant case that he realized the United States had conveyed the land to the State of Alaska. Id.

Lord filed his initial complaint on May 24, 1994. He asserts that the Court has jurisdiction pursuant to 25 U.S.C. § 345, 28 U.S.C. § 1331, 43 U.S.C. § 1353 and 43 U.S.C. § 1634(a)(1).

The government has filed a motion to dismiss. Docket No. 56. Lord opposes this motion and also moves for summary judgment. Docket No. 66. The government replies at Docket No. 70. In response to this Court's tentative order (Docket No. 73), the parties have filed additional briefings (Docket Nos. 74 & 75).

DISCUSSION

Jurisdiction:

A party bringing an action in federal court bears the burden of establishing the court's jurisdiction. The United States and its agencies may not be sued, absent a waiver of sovereign immunity. Federal Deposit Ins., Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Therefore, when a party seeks to sue the United States, he must establish that Congress has waived sovereign immunity and permitted the suit. In this case, Lord relies upon 25 U.S.C. § 345 both for this Court's jurisdiction and to establish a waiver of sovereign immunity. See Pence v. Kleppe, 529 F.2d 135, 138-39 (9th Cir.1976). The government argues that this Court lacks jurisdiction because § 345, which grants jurisdiction and waives immunity, is subject to a statute of limitations which has expired and because the land at issue is no longer subject to the government's jurisdiction because it has been patented to the State of Alaska. See West v. Standard Oil Co., 278 U.S. 200, 211-12, 49 S.Ct. 138, 140-41, 73 L.Ed. 265 (1929) and Germania Iron Co. v. United States, 165 U.S. 379, 383, 17 S.Ct. 337, 339, 41 L.Ed. 754 (1897); see also Nichols v. Rysavy, 610 F.Supp. 1245, 1252 (D.S.D.1985), aff'd on other grounds, 809 F.2d 1317 (8th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 103 (1987).

The government concedes that in Donald Hotch v. United States, No. J94-002 CV (JWS), this Court held that it had jurisdiction even though title to the land had been conveyed to the State of Alaska. The government distinguishes Hotch by pointing out that in Hotch there was a controlling stipulation in which the Department of the Interior had agreed to continue to process the allotment application. In Aguilar v. United States, 474 F.Supp. 840, 843 & 846 (D.Alaska 1979), the court held that if the government conveyed to the State land that should have been conveyed to an Indian allottee, the conveyance would be void and the government would be obligated to take whatever steps were necessary to recover the land. In Aguilar, the government had rejected the application for an allotment on the ground that the land had already been patented to the State. There was no stipulation to continue to process the allotment application in that case.

The government, however, seeks to distinguish Aguilar by pointing to 43 U.S.C. § 1635(c)(1) which was enacted subsequent to Aguilar and which purports to confirm tentative approvals of state land selections "subject only to valid existing rights and Native selection rights under the Alaska Native Claims Settlement Act." 43 U.S.C. § 1635(c)(1). The government's reliance on 43 U.S.C. § 1635(c)(1) is misplaced. In Aguilar, the court held that use and occupancy by a potential allottee constituted prior existing rights entitled to protection. Aguilar, 474 F.Supp. at 843. Presumably, § 1635(c)(1) was enacted with that assumption in mind. This view of the statute is reinforced by § 1634(a)(1) which was enacted with the intention of protecting, among the class of "pending" allotment applications, those that had been erroneously rejected. Consequently, if Lord's application was erroneously rejected by the government, the subsequent patent to the State, even though legislatively confirmed, was subject to Lord's allotment rights, and the government may be required to help Lord vindicate those rights.

Aguilar disposes of the government's argument that conveyance to the State, even though pursuant to express statutory provision, insulates its treatment of Lord's application from judicial review. Aguilar, 474 F.Supp. 840. Therefore, the most reasonable interpretation of congressional intent is that any conveyance to the State was subject to prior existing rights, including the rights of Indian allottees.

Application of Six-year Statute of Limitations pursuant to 28 U.S.C. § 2401(a):

The government contends that this Court lacks jurisdiction to review the 1963 BLM decision to terminate Lord's allotment application because the applicable statute of limitations had already run prior to commencement of this suit.² Docket Nos. 56 & 70. It claims that the statute of limitations is a jurisdictional bar rather than a waivable defense. It contends that because there is not a more specific statute of limitations applicable, this action is governed by the general statute of limitations found in 28 U.S.C. § 2401(a) which states "[e]xcept as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."...