McFarland v. Norton

• Decision Date: 11 October 2005
• Docket Number: No. 03-35831.,03-35831.
• Citation: 425 F.3d 724
• Parties: John James McFARLAND, Plaintiff-Appellant, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior; John F. Shireman, in his capacity as Acting Superintendent of Glacier National Park; United States of America; National Park Service, Defendants-Appellees, National Parks Conservation Association, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 724

John James McFARLAND, Plaintiff-Appellant, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior; John F. Shireman, in his capacity as Acting Superintendent of Glacier National Park; United States of America; National Park Service, Defendants-Appellees National Parks Conservation Association, Defendant-Intervenor-Appellee.

No. 03-35831.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2005.

Filed October 11, 2005.

Alison Roberts, Lakewood, CO, argued the cause for the appellant; Kelly S. Hall and William Perry Pendley, Mountain States Legal Foundation, Lakewood, CO, were on the briefs.

Todd S. Kim, Washington, DC, argued the cause for the appellees; Kelly A. Johnson Acting Assistant Attorney General, William W. Mercer, United States Attorney, Kris A. McLean, James C. Kilbourne, and Todd S. Kim, United States Department of Justice, Washington, DC, and Gary Moore, United States Department of the Interior, Washington, DC, were on the brief for the federal appellees. Alan J. Pemberton, Vijay Shanker, and Emily S. Williams, Washington, DC, were on the brief for appellee National Parks Conservation Association.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-00-00020-DWM.

Before: McKAY,^* O'SCANNLAIN, and BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide whether a landowner can prove that he has an easement over a federally-owned road to his property within Glacier National Park in Montana and whether the National Park Service arbitrarily and capriciously denied his request for a special use permit to use the road during the winter time.

I

In 1916, Charles F.W. Schoenberger received title under the Homestead Act to an 89-acre parcel in Montana. The parcel was within the boundaries of the Glacier National Park and was used as a year-round subsistence homestead. In 1984, John James McFarland purchased a 2.75-acre portion of Schoenberger's land. McFarland's portion, and, indeed, the entirety of the original Schoenberger homestead, is accessible via a road, in existence since 1901, known within Glacier National Park as the North Fork Road, the Inner North Fork Road, or Glacier Route 7. The National Park Service owns and maintains Glacier Route 7, a portion of which, beginning at the Polebridge Ranger Station and running north 3 miles, provides the only vehicular access to the original Schoenberger homestead, including McFarland's portion of it. Another possible means of access is across the North Fork of the Flathead River, which borders one side of McFarland's property and is the Park boundary. A county road runs along the other bank of the North Fork, outside the park boundaries.

McFarland's grandparents and others lived year-round on Schoenberger homestead parcels into the 1960s. The Park Service snow-plowed Glacier Route 7 past the Polebridge Ranger Station until the 1950s.¹ For a time thereafter, year-round residents on the Schoenberger homestead cooperated to plow the road themselves.

In 1975, the Park Service banned snowmobiling within Glacier National Park, including along Glacier Route 7. For some time the Park Service has closed Glacier Route 7 to winter public vehicular access, having published such policy in official documents since 1987 and announced it to local media since 1988. At some point in the 1970s, the Park Service began to put up wooden barriers at the Polebridge Ranger Station, though land owners were allowed to move them aside for access. In 1976, the Park Service replaced the wooden barriers with a locked cable strung across the road but would unlock the cable at the request of property owners so that they could access their property in the winter. Later a double lock system was installed, in which landowners had access to the road when it was passable after it was closed to the public.

In the fall of 1999, McFarland informed the Park Service that he and his wife and three daughters intended to live at their home on the Schoenberger homestead year-round. On December 8, 1999, the Park Service informed McFarland that "a policy decision has been made that no one will drive park roads once they are closed to the public." The Park Service went on to say that "[o]nce we close the gate at Polebridge for the winter, it will remain closed until the road is safely passable to the public again." The Park Service concurrently changed the lock system, denying access.

On January 6, 2000, McFarland filed a special use permit application with the Park Service for motorized access to his home on Glacier Route 7. In that application, McFarland explicitly claimed that he owned an easement and requested permission to "unlock the gate [at the Polebridge Ranger Station] and gain access to [his] property at any time without further assistance from Park Service personnel." As a fallback position, or in "the event the road conditions make it unsafe or unpractical to drive," McFarland sought the right to use a snowmobile between his home and the Polebridge Ranger Station. McFarland sought the same rights of access for guests.

On January 24, 2000, the Park Service denied McFarland's application. McFarland and his family then moved from their Glacier National Park residence because, he testified, they were left with no reasonable means of access. On March 14, 2000, McFarland appealed within the agency. On April 21, 2000, the Park Service denied his administrative appeal.

In due course, McFarland filed suit (1) to quiet title to an easement over Glacier Route 7 under the Quiet Title Act and, (2) to seek judicial review, pursuant to the Administrative Procedure Act ("APA"), of the decision by the Park Service denying him a special use permit.

McFarland and the government each moved for summary judgment and the government also moved to dismiss, which latter motion the district court granted. The district court found that the landowners generally had access to their property until 1999 and that McFarland had personally never been denied access until that year. The district court nonetheless held that McFarland's action to quiet title ran afoul of the statute of limitations, since his action accrued in 1976 when property holders had to start requesting the Park Service to open the gate during the winter. The district court rejected the APA claim on the ground that it was just an attempt to quiet title by another means. The district court denied McFarland's and the Park Service's summary judgment motions as moot. McFarland timely appeals.

II

McFarland filed suit on February 2, 2000, under the Quiet Title Act, 28 U.S.C. § 2409a, which contains a 12-year statute of limitations. 28 U.S.C. § 2409a(g). Therefore, McFarland's attempts to quiet title, either through the Quiet Title Act or through the APA, would be rightly dismissed if he knew or should have known of the United States' adverse claim by February 2, 1988.

If McFarland were asserting fee title to Glacier Route 7, "notice of a government claim that create[d] even a cloud on that title may be sufficient to trigger the limitations period." Michel v. United States, 65 F.3d 130, 132 (9th Cir.1995) (citing California v. Yuba Goldfields, 752 F.2d 393, 394-97 (9th Cir.1985)). An easement, of course, is different. The government's claim to ownership and control of the servient tenement can be entirely consistent with private ownership of an easement. Id. Because McFarland claims title to an easement, his action accrued only when he or his predecessors-in-interest "knew or should have known the government claimed the exclusive right to deny their historic access" to Glacier Route 7. Id.

The government, in its capacity as the owner of the servient tenement, has the right to reasonable use of its land, and its rights and the rights of easement owners are "mutually limiting," though of course "easements are burdensome by their very nature, and the fact that a given use imposes a hardship upon the servient owner does not, in itself, render that use unreasonable or unnecessary." Tooker v. Feinstein, 131 Or.App. 684, 886 P.2d 1051, 1053 (1994); see also Restatement (Third) of Property (Servitudes) § 4.9 (2000). It follows that mild interference with the use of an easement pursuant to the government's own property interests will not start the statute of limitations running.

The situation is more complicated where, as here, the landowner could reasonably presume that the federal entity concerned has the power to regulate. See, e.g., 16 U.S.C. § 3 ("The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks...."); Lesoeur v. United States, 21 F.3d 965, 968 (9th Cir.1994) (acknowledging that Congress has given the Secretary "a great deal of discretion in...