Michel v. U.S.

• Decision Date: 29 August 1995
• Docket Number: No. 93-35655,93-35655
• Citation: 65 F.3d 130
• Parties: 95 Cal. Daily Op. Serv. 6819, 95 Daily Journal D.A.R. 11,712 Dwayne MICHEL and Donna Michel, husband and wife; Viola Michel, a single person, Plaintiffs-Appellants, v. UNITED STATES of America, Department of the Interior, Fish and Wildlife; John F. Turner, Director; Sanford R. Wilbur, Supervisor; David E. Goeke, Refuge Manager, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 130

65 F.3d 130

95 Cal. Daily Op. Serv. 6819, 95 Daily Journal

D.A.R. 11,712

Dwayne MICHEL and Donna Michel, husband and wife; Viola Michel, a single person, Plaintiffs-Appellants, v. UNITED STATES of America, Department of the Interior, Fish and Wildlife; John F. Turner, Director; Sanford R. Wilbur, Supervisor; David E. Goeke Refuge Manager, Defendants-Appellees.

No. 93-35655.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 1994.

Decided Aug. 29, 1995.

James M. Danielson, Jeffers, Danielson, Sonn & Aylward, and Robert R. Siderius, Jr., Wenatchee, WA, for plaintiffs-appellants.

Jonathan F. Klein, United States Department of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before BROWNING and CANBY, Circuit Judges, and MARILYN L. HUFF, ^* District Judge.

PER CURIAM:

I.

Dwayne, Donna, and Viola Michel own property in the state of Washington. Their land shares common borders with, and in some locations is completely circumscribed by, a national wildlife refuge owned by the United States. Historically, the Michels have used roads and trails across the refuge to conduct their cattle and farming business. Since 1960, the Michels and the government have engaged in a series of disputes and negotiations over the scope of the Michels' right of access to roads and trails across refuge land. Although the parties appeared to resolve the problem on several occasions, the dispute was always renewed. In 1992, the Michels filed suit against the United States under the Quiet Title Act seeking to quiet title to access routes across the refuge. The district court dismissed on the ground that the Michels' claim was barred by the Act's twelve-year statute of limitations. The Michels appeal.

II.

The Quiet Title Act waives sovereign immunity to suits against the United States "to adjudicate title disputes involving real property in which the United States claims an interest." Block v. North Dakota, 461 U.S. 273, 275-76, 103 S.Ct. 1811, 1814, 75 L.Ed.2d 840 (1983). Claims under this Act must be brought within twelve years of "the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States." 28 U.S.C. Sec. 2409a(g).

The government argues the Michels' action is barred because they have known since the early 1940's that the government claimed title to the land. However, the Michels' knowledge of the government's claim of title was not itself sufficient to trigger the running of the limitations period on their claim of a right to use roads and trails across the refuge. To start the limitations period the government's claim must be adverse to the claim asserted by the Michels. See Fadem v. United States, 52 F.3d 202, 207 (9th Cir.1995) (citing Knapp v. United States, 636 F.2d 279, 283 (10th Cir.1980)). If a claimant asserts fee title to disputed property, notice of a government claim that creates even a cloud on that title may be sufficient to trigger the limitations period. See California v. Yuba Goldfields, 752 F.2d 393, 394-97 (9th Cir.1985). But when the plaintiff claims a non-possessory interest such as an easement, knowledge of a government claim of ownership may be entirely consistent with a plaintiff's claim. A plaintiff's cause of action for an easement across government land only accrues when the government, "adversely to the interests of plaintiffs, denie[s] or limit[s] the use of the roadway for access to plaintiffs' property." Werner v. United States, 9 F.3d 1514, 1516 (11th Cir.1993) (finding that limitations period on plaintiffs' claim of an easement over government land had not run even though plaintiffs knew of the government's title for more than twelve years). ¹

A contrary holding would lead to premature, and often unnecessary, suits. If a government claim to title were sufficient to trigger the running of the limitations period on any claim affecting use of the property, a claimant of a right of access would be forced to bring suit within twelve years even though the government gave no indication that it contested the claimant's right. The claimant would be compelled to sue to protect against the possibility, however remote, that the government might someday restrict the claimant's access. The statute should not be read to create such an undesirable result.

We conclude the Michels' claim of access to roads and trails across the refuge did not accrue until the Michels knew or should have known the government claimed the exclusive right to deny their historic access to the trails and roads across the refuge.

III.

The district court concluded that the history of disputes between the parties since 1960 indicated the Michels had notice of the government's claim of an exclusive right to control access to the refuge land more than twelve years before filing suit. However, the allegations of the complaint would permit proof that the government abandoned and then reasserted the claim of exclusive control over access within the 12 year limitations period. As we held in Shultz v. Department of Army, 886 F.2d 1157, 1161 (9th Cir.1989) ("Shultz I "), "[i]f the government has apparently abandoned any claim it once asserted, and then it reasserts a claim, the later assertion is a new claim and the statute of limitations for an action based on that claim accrues when it is asserted." ² Dismissal of the complaint under Federal Rule of Civil Procedure 12(b) was therefore improper. ³ See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) ("When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.").

According to the complaint, the government wrote a letter to the Michels in 1970 recognizing the Michels' easement:

Mr. Michel and his guests, agents, and permittees have a historic right of access, including vehicular access, for any lawful purpose, over existing roads and trails across refuge lands that have been traditionally used to reach his lands. The local refuge manager is being instructed not to interfere with these rights.

Amended Complaint p 3.9 (emphasis added). The 1970 letter acknowledges the Michels' right to access, rather than merely implying a permissive "grant" consistent with the government's exclusive right to control access. The government's acknowledgment of the Michels' "historic right of access" appears to abandon any previously asserted claim of exclusive control of that right.

Although renewed disputes over access shortly after the 1970 letter may have again triggered the running of the limitations period, the complaint alleges the parties came to another agreement in 1984 allowing access by the Michels as agreed to in the 1960's and in the 1970 letter. Id. p 3.12. By expressly incorporating the 1970 letter recognizing the Michels' "historic right of access," the 1984 agreement could be construed as an abandonment of the government's claim that it had the exclusive right to control access. If the government did affirm the Michels' right of access in 1984, the present action, filed in 1992, is not barred by the twelve-year statute of limitations, and dismissal on the allegations of the complaint was inappropriate.

REVERSED AND REMANDED.

HUFF, District Judge, dissenting:

I do not believe it necessary to remand this matter in light of the admissions in the amended complaint.

First, the district court previously considered the issue of whether the government had abandoned its claim within the meaning of Shultz v. Dep't of Army, 886 F.2d 1157 (9th Cir.1989), aff'd, 10 F.3d 649 (9th Cir.1993). In granting the government's motion to dismiss, the trial court observed that "plaintiffs claim that throughout the 1960's, 1970's and 1980's, defendants agreed to grant rights of access to plaintiffs. The mere fact that the right of access was being negotiated should have reasonably put the plaintiffs on notice of the United States' claim in the property." ER 89-90. The court reiterated its holding in an order denying the Michels' motion for reconsideration. In that order, the court observed that, "[g]ranting permission to access is an expression of the claim of a right to control access not an abandonment of the claim." ER 92 (emphasis in original).

Second, the pleadings and attached exhibits support a finding that since as early as 1969, the Michels were on notice of the government's exclusive right to control access and that this notice triggered the statute of limitations. For example, in paragraph 3.8 of the Amended Complaint, plaintiffs stated "[d]espite the agreements (reached in 1961), local Refuge managers continually attempted to deny the plaintiffs and other landowners access to and use of the traditional and historic trails and roads on the Refuge." ER 29. In paragraph 3.9, plaintiffs acknowledged that in 1970 the...