N. New Mexicans Protecting Land Water & Rights v. United States

• Decision Date: 30 January 2016
• Docket Number: No. CIV 15–0559 JB/LF,CIV 15–0559 JB/LF
• Citation: 161 F.Supp.3d 1020
• Parties: Northern New Mexicans Protecting Land Water and Rights, Plaintiff, v. United States of America, and Sally Jewell, Secretary, U.S. Department of Interior, Kevin Washburn, Assistant Secretary, Bureau of Indian Affairs, William Walker, Regional Director, Bureau of Indian Affairs, Southwest Office, Raymond Fry, Superintendent, Northern Pueblo Agency, Defendants.
• Court: U.S. District Court — District of New Mexico

161 F.Supp.3d 1020

Northern New Mexicans Protecting Land Water and Rights, Plaintiff,

v.United States of America, and Sally Jewell, Secretary, U.S. Department of Interior, Kevin Washburn, Assistant Secretary, Bureau of Indian Affairs, William Walker, Regional Director, Bureau of Indian Affairs, Southwest Office, Raymond Fry, Superintendent, Northern Pueblo Agency, Defendants.

No. CIV 15–0559 JB/LF

United States District Court, D. New Mexico.

Filed January 30, 2016

A. Blair Dunn, Dori E. Richards, Western Agriculture Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Damon P. Martinez, United States Attorney, Ruth Fuess Keegan, Karen Grohman, Assistant United States Attorneys, John C. Cruden, Assistant Attorney General, Andrew A. Smith, United States Department of Justice, Environment and Natural Resources Division, Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

James O. Browning

, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Federal Defendants' Motion to Dismiss and/or For Judgment on the Pleadings; Memorandum in Support, filed November 10, 2015 (Doc. 22)(“MTD”). The Court held a hearing on January 28, 2016. The primary issues are: (i) whether Plaintiff Northern New Mexicans Protecting Land Water and Rights has associational standing to sue on behalf of members who have not sought just compensation for their loss; (ii) whether Defendant United States of America has consented to be sued, thereby giving the Court jurisdiction to hear the case; and (iii) whether Northern New Mexicans' remaining claims are barred, because the Quiet Title Act, 28 U.S.C. §§ 1346(f)

, 2409a, is the exclusive means for resolving title disputes. Regarding the first issue, the Court determines that the Court lacks jurisdiction to hear Northern New Mexicans' claims under the Takings Clause of the Fifth Amendment to the Constitution of the United States of America and the Quiet Title Act. Second, because the United States does not consent to be sued under the Quiet Title Act, the Court lacks jurisdiction over Northern New Mexicans' quiet title claim. Third, because the Quiet Title Act provides the exclusive means for adverse claimants to challenge the United States' title to real property, Northern New Mexicans' remaining claims are barred.

FACTUAL BACKGROUND

Northern New Mexicans is a “nonprofit corporation whose members are property owners in New Mexico that are served by the rights of way know[n] as County Roads 84, 84A, 84B, 84C, 84D, and Sandy Way.” Complaint for Judicial Review Under the Administrative Procedures Act, 5 U.S.C. § 706

; for Declaratory and Injunctive Relief Pursuant to 28 U.S.C. § 2201 ; and for a Violation of Equal Protection Under the Law ¶ 1, at 2, filed June 30, 2015 (Doc. 1) (“Complaint”). The properties that Northern New Mexicans' members own “are served and accessed by long-standing and vested rights-of-way easements.” Complaint ¶ 13, at 4. These easements—County Roads 84, 84A, 84B, 84C, 84D, and Sandy Way—have “been regarded as public rights-of-way owned by the State of [New] Mexico and administered as either a State highway or as a County Road.” Complaint ¶ 17, at 4. Northern New Mexicans asserts that its members or the County have long-standing easements, or at least rights to use these roads, that were established decades ago. See Response at 11.

1. The History of Revised Statute 2477.

In 1866, Congress provided for public access across unreserved public lands by granting rights-of-way for highway construction. See Act of July 26, 1866, § 8, ch. 262, 14 Stat. 251, 253, codified at 43 U.S.C. § 932

(“[T]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”), repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94–579 § 706(a), 90 Stat. 2743, 2793 (“FLPMA”). The 1866 Act came to be known as “R.S. 2477.” Letter from Anthony H. Gamboa, General Counsel, Gov't Accountability Office, to Jeff Bingaman, United States Senator, Regarding Recognition of R.S. 2477 Rights–of–Way under the Department of the Interior's FLPMA Disclaimer Rules and Its Memorandum of Understanding with the State of Utah (Feb. 6, 2004), filed December 22, 2015 (Doc. 30–5)(“GAO Letter”). R.S. 2477 was self-executing, meaning that an R.S. 2477 right-of-way could come into existence, without any formal public action, whenever the public sufficiently indicated its intent to accept the grant by establishing a public highway across public lands. See

S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 770 (10th Cir.2005) ; GAO Letter at 1–2.

On October 21, 1976, Congress enacted the FLPMA, which repealed R.S. 2477, but it preserved “any valid” right-of-way “existing on the date of approval of this Act.” Pub.L. No. 94–579, §§ 701(a), 706(a), 90 Stat. 2743, 2786, 2793 (1976). See S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d at 741

(“In 1976 ... Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation.”). Consequently, R.S. 2477 rights-of-way perfected before Congress repealed the statute in 1976 remain valid today, assuming they have not lapsed. See GAO Letter at 1–2. After Congress repealed the statute, the public often did not know with certainty whether the rights-of-way were valid, because R.S. 2477 “did not require government approval or public recording of title.” GAO Letter at 2. To handle this uncertainty, the United States Department of the Interior issued a series of policy and other documents discussing how it would administratively recognize or validate specific rights-of-way. See GAO Letter at 2. By 1993, the Interior Department and the court together “had recognized about 1,453 R.S. 2477 rights-of-way across Bureau of Land Management (BLM) lands, with about 5,600 claims remaining.” GAO Letter at 2–3.

In 1994, the Interior Department issued a proposed rule to establish a formal process to evaluate R.S. 2477 claims. See GAO Letter at 3. Congress responded by enacting temporary moratoria and, in 1996, imposed a permanent prohibition on certain R.S. 2477–related activity. See GAO Letter at 3. The permanent prohibition states: “No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to [R.S. 2477] shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.” GAO Letter at 3. Congress' enactment meant that numerous R.S. 2477 claims remained unresolved. See GAO Letter at 3–4. To help resolve some of the lingering uncertainty, the Interior Department amended its existing regulations to implement FLPMA § 315, 43 U.S.C. § 1745(a)

. See GAO Letter at 3. FLPMA § 315 authorizes the Interior Department to issue recordable disclaimers of United States interests in lands. See FLPMA § 315(a), 43 U.S.C. § 1745(a). The Interior Department used this process to validate R.S. 2477 rights-of-way. See GAO Letter at 3–4.

State or local governments may file suits to quiet title against the United States if they can demonstrate that they accepted the right-of-way grant before Congress repealed the statute in 1976. Because the Quiet Title Act represents the exclusive means by which claimants may challenge the United States' title to real property, however, R.S. 2477 claims are barred if the claimant cannot satisfy the Quiet Title Act's conditions for waiving sovereign immunity. See Sw. Four Wheel Drive, 363 F.3d at 1071

(holding that the plaintiff “cannot establish a claim under the Quiet Title Act [to a public right-of-way under R.S. 2477 across federal public lands] and thus it cannot bring suit against the United States”).

2. The History of the Disputed Roads.

Northern New Mexicans asserts that its members or the County gained title to these roads decades ago. See Response at 11. Historians provide insight into the roads' ownership:

So far as known, no deed or other documentary evidence of title has been obtained from the Indians, but it appears from evidence submitted that this road or highway has been used by the public for more than fifty years, and the Board has determined and hereby (p. 538)/ determines that the Territory and State acquired by such use, an easement in and over said land, subject only to a reversion to the Pueblo whenever said land shall no longer by [sic] used by the public or the state as a highway, or shall be abandoned by the State for a new location across said Grant.

Stanley M. Hordes, History of the Santa Fe County Roads Passing Through Boundaries of Tesuque, Pojoaque, Nambe, San Ildefonso and Santa Clara Pueblos (“Hordes Report), available at http://nnmprotect.org/docs/CR84/HordesReportSantaFeCountyFull.pdf.

Federal officials have similarly recognized the historic existence of Spanish land grant access roads. Ralph Emerson Twitchell, Special Assistant to the United States Attorney General, noted

I have deemed it advisable to call your attention to the fact that the lands of every Indian Pueblo in New Mexico are crossed by highways which have existed since the earliest days of the Spaniards and which are not in the most part State highways and part of the highway system in this section. There is not doubt in my mind that these roads, having been established by the Spaniards, the public has acquired a right by prescription to the use of the same and that no interference will meet with the approval of the Court....

Letter from R.E. Twitchell, Special Assistant to the Attorney General, to Charles H. Burke, Commissioner of Indian Affairs, Santa Fe (March 22, 1923), filed December 22, 2015 (Doc. 301). Similarly, the Solicitor for the Interior found in 1959 that

it has traditionally been customary for mining locators, homestead, and other public land entrymen to build

...