Pence v. Morton, Civ. No. A74-138.

CourtUnited States District Courts. 9th Circuit. District of Alaska
Citation391 F. Supp. 1021
Decision Date08 April 1975
PartiesSarah PENCE et al., Plaintiffs, v. Rogers C. B. MORTON, Individually and as Secretary of the Interior of the United States and his agents, the United States of America, Defendants.
Docket NumberCiv. No. A74-138.

391 F. Supp. 1021

Sarah PENCE et al., Plaintiffs,
v.
Rogers C. B. MORTON, Individually and as Secretary of the Interior of the United States and his agents, the United States of America, Defendants.

Civ. No. A74-138.

United States District Court, D. Alaska.

April 8, 1975.


391 F. Supp. 1022
COPYRIGHT MATERIAL OMITTED
391 F. Supp. 1023
James D. Grandjean, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiffs

G. Kent Edwards, U. S. Atty. for Alaska, Anchorage, Alaska, Steven Carroll, Atty., Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

This cause comes before the court upon plaintiffs' motion for a preliminary injunction restraining the defendants and their attorneys, officers, agents, servants, and employees from adversely adjudicating Native Land Allotment applications in whole or in part under the Native Allotment Act of 1906, 43 U.S.C. §§ 270-1—270-3, repealed by the Alaska Native Claims Settlement Act of 1971, 43 U.S.C.A. §§ 1601-1624, or from deciding any post Bureau of Land Management adjudication appeals filed with the Interior Board of Land Appeals until such time as this action is resolved on the merits. Defendants have responded with a motion for summary judgment.

Plaintiffs have brought this action for declaratory and injunctive relief on behalf of a class consisting of those Alaska Natives, as defined in 43 U.S.C. § 270-1, who were eligible to apply for land allotments pursuant to the Alaska Native Land Allotment Act prior to its repeal in December of 1971. They seek a declaration that the procedure used by the Bureau of Land Management (hereinafter B. L. M.) in conjunction with that of the Interior Board of Land Appeals (hereinafter I. B. L. A.), for determining the adjudicative facts upon which their claims to allotments rest denies then procedural due process. Further, the plaintiffs seek final injunctive relief requiring the defendants to conduct their hearing procedure in a manner consistent with the requirements of the Due Process Clause of the Fifth Amendment. For reasons to appear subsequently the court finds that plaintiffs' action must be dismissed as a matter of law.

Pursuant to Fed.R.Civ.P. 23(c) (1) the court certifies as a class the approximately 8,500 Alaska Natives, as defined in 43 U.S.C. § 270-1, who were eligible to apply for land allotments pursuant to the Alaska Native Land Allotment Act prior to its repeal in December of 1971. The action may be maintained as a 23(b)(2) action since the prerequisites of 23(a) have been met and, in addition, B. L. M. has refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

Plaintiffs contend that this court has jurisdiction pursuant to 28 U. S.C. §§ 1331, 1346(a)(2), 2201-2202, 1361, 1353 and 5 U.S.C. §§ 701-706. The Court finds federal question jurisdiction to be lacking since no jurisdictional

391 F. Supp. 1024
amount has been alleged or proven. 28 U.S.C. § 1346(a)(2) is inapplicable since this is not an action for money damages. The Declaratory Judgment Act is inapplicable since such is not jurisdictional in nature. Whether the court has jurisdiction pursuant to 28 U. S.C. §§ 1361, 1353, and 5 U.S.C. §§ 701-706 necessarily mandates a consideration of the merits of plaintiff's claim

On the facts of the instant case, all three of the above mentioned jurisdictional grants are interrelated. 28 U. S.C. § 1361 gives the court jurisdiction of any action in the nature of mandamus. Such an action may be maintained only if a ministerial duty is involved or if the writ is used to compel an agency to perform a duty required by the Constitution. Martinez v. Richardson, 472 F.2d 1121, 1125-26 & n. 12 (10th Cir. 1973); State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969); Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969). It is noted that the mandamus statute is not a waiver of sovereign immunity. State of Washington v. Udall, supra, 417 F.2d 1310, 1320 n. 15.

28 U.S.C. § 1353 (See 25 U.S. C. § 345) gives the district courts jurisdiction of any civil action involving the right of a person of Indian descent to an allotment of land under any Act of Congress or treaty. Kale v. United States, 489 F.2d 449 (9th Cir. 1973); Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970); United States v. Pierce, 235 F. 2d 885 (9th Cir. 1956). Pallin v. United States, 496 F.2d 27 (9th Cir. 1974), is the latest authoritative pronouncement available to this court concerning jurisdiction under 28 U.S.C. § 1353. In Pallin the Court reasoned that no jurisdiction existed under 28 U.S.C. § 1353 unless there was a right to an allotment and that no right to an allotment existed if the matter was committed to agency discretion by law under the Administrative Procedure Act.1 5 U.S.C. § 701(a) (2). The effect of the decision is to foreclose jurisdiction under 28 U.S.C. § 1353 where the matter would be nonreviewable under 5 U.S.C. §§ 701-706.

The Administrative Procedure Act, 5 U.S.C. §§ 701-706, establishes standards for review of agency action except to the extent that review is foreclosed by statute, or agency action is committed to agency discretion by law. King v. United States, 492 F.2d 1337 (7th Cir. 1974); Bronken v. Morton, 473 F.2d 790 (9th Cir. 1973); United States v. Consolidated Mines & Smelting Co., LTD., 455 F.2d 432 (9th Cir. 1971); Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971); State of Washington v. Udall, supra, 417 F.2d 1310; Mollohan v. Gray, supra, 413 F.2d 349; United States v. Walker, 409 F.2d 477 (9th Cir. 1969); Ferry v. Udall, 336 F. 2d 706 (9th Cir. 1964); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1958). It is apparent that the act is not a blanket waiver of sovereign immunity. State of Washington v. Udall, supra, 417 F.2d 1310.

From an examination of 28 U.S.C. §§ 1361, 1353, and 5 U.S.C. §§ 701-706 it becomes apparent that to vest this court with jurisdiction of the instant case one of two situations must exist. Either the

391 F. Supp. 1025
procedure for adjudicating land allotments under the Alaska Native Land Allotment Act must not be committed to...

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5 practice notes
  • Hicklin v. Orbeck, No. 3025
    • United States
    • Supreme Court of Alaska (US)
    • 3 Junio 1977
    ...would be useless. See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522, 538-39 (1975); Pence v. Morton, 391 F.Supp. 1021, 1025 n. 3 (D.Alaska 1975), rev'd on other grounds (and this holding approved), 529 F.2d 135, 143 (9th Cir. 1976). Therefore, they have standin......
  • Alberio v. Hampton, Civ. No. 76-426.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 23 Mayo 1977
    ...10, 1973); State of Washington v. Udall, 417 F.2d 1310 (C.A. 9, 1969); Mollohan v. Gray, 413 F.2d 349 (C.A. 9, 1969); Pence v. Morton, 391 F.Supp. 1021 (D.Alaska, 1975); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I., 1969); Knoll Associates, Inc. v. Dixon, 232 F.Supp. 283 (S.D.N.Y., 1964); Harm......
  • Pence v. Andrus, No. 77-2387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 Noviembre 1978
    ...Natives, . . . , who were eligible to apply for land allotments pursuant to (ANLAA) prior to its repeal in . . . 1971." Pence v. Morton, 391 F.Supp. 1021, 1023 (D.Alaska 1975). To be a class member, therefore, plaintiffs need not have even applied for an allotment. The question of the const......
  • Pence v. Kleppe, No. 75--2144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 16 Enero 1976
    ...is so far committed to the Secretary's discretion as to put the matter beyond judicial review. Pence v. Morton, D.Alaska, 1975, 391 F.Supp. 1021. Plaintiffs appeal and we reverse and remand for further proceedings. 1. The statute and the procedures adopted by the Secretary. The Act authoriz......
  • Request a trial to view additional results
5 cases
  • Hicklin v. Orbeck, No. 3025
    • United States
    • Supreme Court of Alaska (US)
    • 3 Junio 1977
    ...would be useless. See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522, 538-39 (1975); Pence v. Morton, 391 F.Supp. 1021, 1025 n. 3 (D.Alaska 1975), rev'd on other grounds (and this holding approved), 529 F.2d 135, 143 (9th Cir. 1976). Therefore, they have standin......
  • Alberio v. Hampton, Civ. No. 76-426.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 23 Mayo 1977
    ...10, 1973); State of Washington v. Udall, 417 F.2d 1310 (C.A. 9, 1969); Mollohan v. Gray, 413 F.2d 349 (C.A. 9, 1969); Pence v. Morton, 391 F.Supp. 1021 (D.Alaska, 1975); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I., 1969); Knoll Associates, Inc. v. Dixon, 232 F.Supp. 283 (S.D.N.Y., 1964); Harm......
  • Pence v. Andrus, No. 77-2387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 Noviembre 1978
    ...Natives, . . . , who were eligible to apply for land allotments pursuant to (ANLAA) prior to its repeal in . . . 1971." Pence v. Morton, 391 F.Supp. 1021, 1023 (D.Alaska 1975). To be a class member, therefore, plaintiffs need not have even applied for an allotment. The question of the const......
  • Pence v. Kleppe, No. 75--2144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 16 Enero 1976
    ...is so far committed to the Secretary's discretion as to put the matter beyond judicial review. Pence v. Morton, D.Alaska, 1975, 391 F.Supp. 1021. Plaintiffs appeal and we reverse and remand for further proceedings. 1. The statute and the procedures adopted by the Secretary. The Act authoriz......
  • Request a trial to view additional results

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