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

Decision Date05 November 1997
Docket NumberNo. F94-0011 CV (JKS).,F94-0011 CV (JKS).
Citation991 F.Supp. 1150
PartiesWalter LORD, Plaintiff, v. Bruce BABBITT, Secretary of the United States Department of the Interior, and The United States of America, Defendants.
CourtU.S. District Court — District of Alaska

Robert A. Sparks, Fairbanks, AK, Robert S. John, Fairbanks, AK, for plaintiff.

Dean Dunsmore, Environment & Natural Resources, Dept. of Justice, Anchorage, AK, for defendantBruce Babbit.

ORDER

SINGLETON, Chief Judge.

Walter Lord("Lord") brings this action seeking to establish his right to a Native Allotment in the vicinity of Fairbanks, Alaska.Lord filed his initial complaint on May 24, 1994.Previously, this Court denied the defendants' motion to dismiss, holding that (1)the Court has jurisdiction over this action pursuant to 25 U.S.C. § 345and28 U.S.C. § 1353;(2) the six year statute of limitations pursuant to 28 U.S.C. § 2401(a) applies; (3) the State of Alaska is not an indispensable party; and (4) although the six year statute of limitations applies, the parties failed to squarely address the issue of equitable tolling.SeeLord v. Babbitt,943 F.Supp. 1203(D.Alaska1996);DocketNo. 77(order).

There are several dispositive motions presently before the Court and the parties have now adequately addressed the issue of equitable tolling.The defendants(collectively "the government") argue that the running of the statute of limitations deprives this Court of jurisdiction over the majority of Lord's causes of action.The government also argues that Lord's action to quiet title must be dismissed for want of jurisdiction.Finally, the government moves for partial summary judgment dismissing Lord's claims for judicial review pursuant to the Administrative Procedure Act of decisions of the Bureau of Land Management set forth in letters dated January 14, 1994, and May 17, 1994.

The Court has reviewed the record and the parties' briefing and concludes that the parties have sufficiently the issues to the extent that oral argument will not be helpful.D.AK. LR7.1(i);see alsoUnited States v. Cheely,814 F.Supp. 1430, 1436 n. 4(D.Alaska1992)(discussing oral argument in criminal context but principles remain applicable), aff'd,36 F.3d 1439(9th Cir.1994).

FACTUAL BACKGROUND

On May 24, 1957, Lord 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).DocketNo. 101 at ¶ 4(third amended complaint).In his application, Lord stated that he had as of May 24, 1957, commenced his occupation of the lands sought in that application.Admin. Rec. Vol. Iat 2.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 BLM proof of his use and occupancy of the land by May 24, 1963, to prevent his allotment application from expiring.Id. at 12.Lord did not respond.Lord claims that he did not personally receive the notice because it was sent to General Delivery, Fairbanks, Alaska, instead of to the mailbox in Fairbanksat 2 mile Peger Road where Lord was receiving mail at the time.DocketNo. 153.Third Aff. of Walter Lordat ¶ 1.The government, however, points out that "General Delivery, Fairbanks, Alaska" was the address used by BLM because Lord put that address on his allotment application.Admin. Rec. Vol. Iat 2.

On May 31, 1963, BLM again 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.Admin. Rec. Vol. Iat 14.The notice was sent by certified mail, and BLM received a return receipt indicating its delivery.Id. at 13.The signature on the return receipt was "Etta Mae Lord."Id.

In his first affidavit, dated September 23, 1994, Lord stated that he did not personally receive the notice but that his wife, Etta Mae Lord, had "apparently" received it.DocketNo. 123, Ex. 2 at ¶ 6(First Aff. of Walter Lord).Lord further claimed that he was not aware that his wife had received the notice "until as long as many years after it was signed for."Id.In an affidavit given on June 3, 1997, Etta Mae Lord stated that she does not recall ever having seen BLM's decision dated May 31, 1963.DocketNo. 123 Ex. 7 at ¶ 3(Aff. of Etta Mae Lord).Lord never appealed the 1963 BLM decision.

In 1971, the Department of the Interior proposed a withdrawal of the land at issue in this case for use as a gravel source by the Alaska Railroad, Department of Transportation.36 Fed.Reg. 8965-66(May 15, 1971);Admin. Rec. Vol. IIIat 52-53.The Alaska Railroad subsequently canceled its application for withdrawal of the lands at issue.38 Fed.Reg. 18049-50;Admin. Rec. Vol. IIIat 128-29.As noted in the Federal Register, the segregative effect of this cancellation was deemed to have ceased as of 10 a.m. on July 20, 1973.

By letter dated April 20, 1973, the State of Alaska("State") amended its pending selection to include the lands at issue in this case.Admin. Rec. Vol. Vat 14.The State thereafter published notice of this application in the Fairbanks Daily News-Miner on five separate occasions in April and May, 1973.Id. at 18.

A letter in Lord's handwriting dated August 28, 1973, was sent to the Bureau of Indian Affairs' Land Claims Department.Docket No. 138, Ex. 4at 6.The letter was date stamped received on August 31, 1973.Id.In this letter, Lord stated "I would like to see you very soon in regards to my claim filed in 1957 ... Since I filed my claim the State of Alaska and the Alaska Railroad have both tryed [sic] to get my land."Id.

A decision tentatively approving conveyance of the lands at issue in this case to the State was issued on February 19, 1976.Admin. Rec. Vol. Vat 33-34.Subsequently, the Alaska National Interest Lands Conservation Act ("ANILCA"), Pub.L. No. 96-487(1980)(codified at16 U.S.C. §§ 3101-3233,43U.S.C. §§ 1606,1631-41), was enacted.Pursuant to ANILCA, "all right, title and interest of the United States" in such lands was deemed to have vested in the State"as of the date of the tentative approval."43 U.S.C. § 1635(c).On November 12, 1985, the parcel of land sought in Lord's allotment application was patented to the State under patent No. 50-86-0043.

On approximately May 1, 1984, George Tobuk of Tanana Chiefs Conference had a telephone conversation with Kayla Copeland of BLM regarding the status of Lord's allotment application.Admin. Rec. Vol. Iat 36, 39.No further communication from or on behalf of Lord was received by BLM until Lord's counsel phoned BLM in December, 1993, and followed up this telephone conversation with a letter dated December 21, 1993.Id. at 55.In this letter, Lord's counsel inquired as to "what the status of Mr. Lord's allotment is and whether your office is able to issue the allotment at this time."Id.

BLM responded to this inquiry by letter dated January 24, 1994.Id. at 56-57.In its response BLM described the history of Lord's allotment application, stated that it had been terminated in 1963 for failure to submit proof of use and occupancy, and stated that the lands sought in Lord's application had subsequently been conveyed to the State.Id. at 57.BLM's letter explicitly concluded that "application of F-014623 will remain closed and will not be reinstated."Id. at 56.

BLM thereafter received additional correspondence on behalf of Lord from his counsel, id. at 62, 65-66, 76, and one telephone call.Id. at 68.In this correspondence, Lord's counsel expressed dissatisfaction with BLM's January 24, 1994, letter, argued that Lord was denied due process when his allotment application was terminated, and further stated that Lord's allotment application was in fact legislatively approved.Id. at 65-66.BLM responded by letter dated May 17, 1994.Id. at 96-98.BLM's letter stated that "the `legislative approval' provision of § 905 of ANILCA" was not applicable to Lord's allotment application.Id. at 97.

Lord claims that it was only after his attorney received letters from BLM in 1994 that he realized that his application would not be reinstated.DocketNo. 123, Ex. 2 at ¶ 7(First Aff. of Walter Lord).Furthermore, Lord claims that it was not until he received the answer to his initial complaint in the instant case that he realized the United States had conveyed the land to the State.Id.

STATUTORY BACKGROUND

In 1887, Congress passed the General Allotment Act, 25 U.S.C. § 334, which provided Indians not living on a reservation or whose tribe did not have a reservation with an opportunity to apply for a 160-acre allotment of unsurveyed and not otherwise appropriated land of the United States.Shields v. United States,504 F.Supp. 1216, 1217(D.Alaska1981), aff'd,698 F.2d 987(9th Cir.), cert. denied,464 U.S. 816, 104 S.Ct. 73, 78 L.Ed.2d 86(1983).Because the General Allotment Act was not clear as to whether it applied to Alaska Natives, Congress enacted the Alaska Native Allotment Act which allowed Alaska Natives to make applications for allotments of up to 160 acres.Alaska Native Allotment Act of 1906, 34 Stat. 197, as amended byAct of August 2, 1956, 70 Stat. 954;43 U.S.C. §§ 270-1 through 270-3(1970)(repealed 1971).It was under the Alaska Native Allotment Act that Lord applied for the allotment which is in dispute in this case.

When applying for allotments, Alaska Natives were required to provide proof that they had used and occupied certain pieces of land for a period of five years.This five year requirement was first promulgated in the regulations in 1938(43 C.F.R. § 67.13(1938)...

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