Shade v. United States Dep't of Interior
| Decision Date | 16 September 2021 |
| Docket Number | 3:20-cv-0198-HRH |
| Parties | KENNETH H. SHADE, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. |
| Court | U.S. District Court — District of Alaska |
MOTION TO DISMISS
The United States moves to dismiss plaintiff's first amended complaint.[1] Defendant Ellamae Chaney joins in the motion to dismiss.[2] The motion to dismiss is opposed.[3] Oral argument was not requested and is not deemed necessary.
Plaintiff is Kenneth H. Shade. Defendants are the United States Department of the Interior; Deb Haaland, Secretary of the Interior; Eugene R. Peltola, Jr., Director of the Alaska Region of the Bureau of Indian Affairs; and Ellamae A Chaney. Haaland and Peltola are sued in their official capacities.[4]
Plaintiff alleges that he is “an Alaska Native” and that he is “the devisee of a portion of a restricted Native allotment (‘Shade allotment') from his father, Henry Shade, who died testate on March 28, 2009.”[5] Plaintiff alleges that “[t]he Shade allotment is located within the boundaries of the City of Dillingham, Alaska[.]”[6] Plaintiff alleges that “[t]he Shade allotment was conveyed by BLM to Henry Shade on September 23, 1976.”[7] Plaintiff alleges that “[t]o gain access to what would be his allotment, in the 1960s Henry Shade built and maintained a dirt road approximately one mile in length from Aleknagik Lake Road to his allotment (‘Shade access road'), which access road is now informally called Shannon Lake Road.”[8]
Plaintiff alleges that per the terms of Henry Shade's will, he was “to receive a house on the Shade allotment and ten acres of land surrounding it.”[9] Plaintiff alleges that his brother was “to receive the remainder of the allotment, which is largely undeveloped.”[10]Plaintiff alleges that “[i]n the course of subdividing the Shade allotment for conveyance to each brother, . . . [the] surveyor learned that BLM had mistakenly forgotten to include an express reservation of a right-of-way for the Shade access road where it crossed the land” that was conveyed to defendant Chaney in 1992.[11] Plaintiff alleges that “[t]his omission was inadvertent because BLM knew from its field work that the Shade access road was built before Chaney began the use and occupancy of her allotment site and that the road was necessary to access . . . the Shade allotment.”[12] Plaintiff alleges that “[t]he road [is] the only practicable access to the Shade allotment.”[13]
Plaintiff alleges that “[b]ecause of the lack of recognized legal access over the Chaney allotment to the Shade allotment, the subdivision of the Shade allotment and the Henry Shade probate have been put on hold, and [p]laintiff has not been able to receive title to his portion of the Shade allotment.”[14] Plaintiff alleges that he “asked Chaney to acknowledge that the Shade access road, as it crosses her allotment, was and is a ‘valid existing right' under ANILCA, to which her allotment is subject.”[15] Plaintiff alleges that “Chaney has refused to do so.”[16]
Plaintiff alleges that in May 2017, he sought to have the Bureau of Indian Affairs (BIA) Regional Director “recognize that the Shade access road, as it crosses the Chaney[] allotment, was and is an implied right-of-way and easement by necessity appurtenant to the Shade allotment, and thus was and is a ‘valid existing right' under ANILCA, to which the Chaney allotment is subject.”[17] Plaintiff alleges that he “asked the Regional Director, in the exercise [of his] trust duty to [p]laintiff, to take appropriate action to prevent future trespass on that right-of-way.”[18] Plaintiff alleges that “[a]lthough the Regional Director did not dispute [p]laintiff's right to use the Shade access road as it crosses the Chaney allotment, the Regional Director refused to affirmatively acknowledge that right, stating that []he lacked the authority to do so.”[19]
Plaintiff alleges that he appealed the Regional Director's decision to the Interior Board of Indian Appeals (IBIA).[20] Plaintiff alleges that in December 2019, the IBIA dismissed his appeal, “agree[ing] with the Regional Director that []he lacked the authority to recognize the Chaney access road as [a] ‘valid existing right' under ANILCA.”[21]
On August 12, 2020, plaintiff commenced this action for declaratory judgment, injunctive relief, and damages. On January 29, 2021, plaintiff filed his first amended complaint. Plaintiff's first amended complaint contains five counts. Count I contains declaratory judgment claims asserted against the Secretary and Chaney. Count II contains declaratory judgment claims asserted against the Secretary only. Count III contains claims for mandamus or injunctive relief against the Secretary. Count IV contains claims for injunctive relief against Chaney. Count V is a claim for damages against Chaney. Plaintiff alleges that this court has jurisdiction of his claims pursuant to “28 U.S.C. § 1331 (federal question); 5 U.S.C. §§ 701-706 (review of agency action); 28 U.S.C. § 2201 (declaratory relief), 28 U.S.C. § 1361 (); 28 U.S.C. § 2202 (injunctive relief); and 28 U.S.C. § 1367 (supplemental jurisdiction).”[22]
Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, the United States moves to dismiss Counts I, II, and III of plaintiff's first amended complaint for lack of subject matter jurisdiction. Alternatively, pursuant to Rule 12(b)(6), the United States moves to dismiss plaintiff's claims because they are barred by the statute of limitations. Defendant Chaney joins in the United States' motion to dismiss and also raises a Rule 12(b)(6) argument that plaintiff has failed to state a claim for relief under 43 U.S.C. § 1746.
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The United States is making a facial attack here. “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. In considering a facial challenge, the court is generally confined to the allegations in the complaint and “assumes the truth of [the] plaintiff's factual allegations and draws all reasonable inferences in its favor.” Ecological Rights Foundation v. Pacific Gas and Elec. Co., 803 F.Supp.2d 1056, 1059 (N.D. Cal. 2011). But, the court may also consider “‘additional facts . . . contained in materials of which the court may take judicial notice'” without converting a facial attack into a factual attack. Id. (quoting Barron v. Reich, 13 F.3d 1370 1377 (9th Cir. 1994)). “When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).
“The federal government cannot be sued unless it first waives sovereign immunity.” State v. United States Dep't of State, 996 F.3d 552, 564 (9th Cir. 2021). “The doctrine of sovereign immunity applies to federal agencies and to federal employees acting within their official capacities.” Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). “Whether the government waives its sovereign immunity is a question of subject matter jurisdiction.” Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998). “As the contours of any such waiver define a court's authority to entertain a suit against the government, each claim against the government must rest upon an applicable waiver of immunity.” Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1167-68 (9th Cir. 2017) (internal citation omitted).
The United States argues that it has not waived its sovereign immunity as to plaintiff's claims against it because all of plaintiff's claims put at issue the adjudication of the validity of plaintiff's contention that he has an easement across Chaney's Native allotment. The United States contends that “the only means to have a right of way recognized across lands in which the United States holds an interest is the Quiet Title Act (QTA).”[23] “The QTA waives the United States' immunity with respect to claims covered by that statute, but the statute excludes from its coverage claims involving ‘trust or restricted Indian lands.'” Alaska Dep't of Natural Resources v. United States, 816 F.3d 580, 585 (9th Cir. 2016) (Purdy) (quoting 28 U.S.C. § 2409a(a)). “This exclusion, known as the Indian lands exception, preserves the United States' immunity from suit ‘when the United States claims an interest in real property based on that property's status as trust or restricted Indian lands.'” Id. (quoting United States v. Mottaz, 476 U.S. 834, 843 (1986)).
There can be no dispute that the Chaney Native allotment is restricted Indian land. Chaney received her allotment under the Alaska Native Allotment Act[24] and such an allotment is “considered ‘restricted' by virtue of the restraint on alienation contained in the allotment certificate[].” Id. The dispute here focuses on whether plaintiff's claims against the United States fall within the purview of the QTA. If they do, then there has been no waiver of sovereign immunity and the claims are subject to dismissal.
The QTA, “[f]rom its title to its jurisdictional grant to its venue provision, . . . speaks specifically and repeatedly of ‘quiet title' actions.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v Patchak, 567 U.S. 209, 217 (2012). “That term is universally understood to refer to suits in which a plaintiff not only challenges someone else's claim, but also asserts his own right to disputed property.” Id. The Ninth Circuit “has repeatedly held that both disputes over the right...
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