State of Alaska v. Babbitt, 93-35684

• Citation: 38 F.3d 1068
• Decision Date: 09 June 1994
• Docket Number: No. 93-35684,93-35684
• Parties: STATE OF ALASKA, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of the Interior; Thomas Albert; and Virginia Albert on behalf of Sammy Albert, a minor, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1068

38 F.3d 1068

STATE OF ALASKA, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the United States Department of the Interior; Thomas Albert; and Virginia Albert on behalf of Sammy Albert, a minor Defendants-Appellees.

No. 93-35684.

United States Court of Appeals Ninth Circuit.

Submitted June 9, 1994. ^*

Decided Oct. 11, 1994.

John T. Baker, Asst. Atty. Gen., Anchorage, AK, for plaintiff-appellant.

Jacques B. Gelin, Jeffrey P. Kehne, U.S. Dept. of Justice, Washington, DC, for defendant-appellee Secretary of the Interior.

Judith K. Bush, William E. Caldwell, Alaska Legal Services Corp., Fairbanks, AK, Carol H. Daniel, Alaska Legal Services Corp., Anchorage, AK, for defendant-appellee Thomas Albert, Virginia Albert for Sammy Albert, a minor.

Appeal from the United States District Court for the District of Alaska.

Before WIGGINS and THOMPSON, Circuit Judges, EZRA, ^** District Judge.

DAVID ALLEN EZRA, District Judge:

The State of Alaska ("State" or "Alaska") appeals the district court's order dismissing its complaint for lack of subject matter jurisdiction. The issue presented is whether the Indian lands exception to the Quiet Title Act, 28 U.S.C. Sec. 2409a, precludes the State from invoking the jurisdiction of the district court to review a final administrative agency decision pursuant to Section 702 of the Administrative Procedures Act, 5 U.S.C. Sec. 702. For the reasons discussed below, we affirm.

Factual and Procedural Background

This case involves a Native allotment claim of Dinah Albert ("Albert"), now deceased, that is now being pursued by her heirs. On January 11, 1966, Albert filed an application pursuant to the Alaska Native Allotment Act of 1906 ("1906 Allotment Act") ¹, which authorized the Secretary of the Interior (the "Secretary") to allot up to 160 acres of land to any Alaska Native as a homestead. Albert's application described property consisting of an island located in the middle of the Tanana River near Nenana, Alaska, which she claimed to have used since 1938. On April 19, 1966, Albert signed a document relinquishing her claim to the island. On September 12, 1967, Albert filed another allotment application which described and claimed "T. 4 S., R. 8 W., F.M. Sec. 14: Lot 3." On February 6, 1968, Albert filed a third application, claiming "[a]n island in the Tanana River near Nenana once described as lot 4, section 14, T. 4 S., R. 8 W., F.M. containing 20.36 acres." The "Lot 4" claimed in the 1968 application was asserted to be "an island in the Tanana River adjacent to the island described in Lot 3." At some time after 1968, the two islands became joined as one island.

The State applied for a highway right-of-way on November 2, 1965, which was granted by the Bureau of Land Management ("BLM") on December 9, 1965, pursuant to the Federal Highway Act, 23 U.S.C. Sec. 317. On August 15, 1966, the State applied for another right-of-way, which the BLM granted on November 16, 1966. Each of the rights-of-way described lands contained in Albert's 1968 allotment application. The rights-of-way were granted subject to "valid existing rights."

The BLM conducted field examinations of the Albert allotment claim in 1969 and 1974, and, by letter dated February 7, 1975, informed the claimants that the allotment had been approved and that, following further survey approval, further action would be taken to issue the allotment certificate.

On December 2, 1980, Congress passed the Alaska National Interest Lands Conservation Act ("ANILCA") ². Section 905(a)(1) of ANILCA provides that, "subject to valid existing rights," all Alaska Native allotment applications pending before the Department of the Interior on or before December 18, 1971, would be approved unless private parties or the State filed specific protests within 180 days of the effective date of the Act (June 1, 1981). See 43 U.S.C. Sec. 1634(a)(1). In December of 1982, the State filed a private contest complaint with the BLM challenging Albert's entitlement to land described in her allotment and seeking to establish its continuing entitlement to a right-of-way. ³ The administrative law judge ("ALJ") concluded that the State's protest was not untimely and that, although Albert had satisfied the allotment requirements, her allotment was subject to the State's rights-of-way.

Both parties appealed the ALJ's decision. On December 4, 1985, in Alaska v. Heirs of Dinah Albert, 90 IBLA 14 (1985) ("Alaska I "), the Interior Board of Land Appeals ("IBLA") affirmed in part and reversed in part the ALJ's decision, holding that the State's appeal was untimely. The IBLA also ruled that the ALJ should have dismissed the contest as untimely as well: since the State did not file its private contest until 1982, after the expiration of ANILCA's statutory 180-day time period, the State was time-barred from challenging the validity of Albert's allotment. Id. at 21. However, the IBLA also preserved the State's rights-of-way, reasoning that Albert's "inchoate preference right did not become a vested right until the filing of her application," and that "[t]he vesting of the allotment and the subsequent approval of the allotment [could not] defeat the previously granted State rights-of-way." Id. at 21-22.

Two years after Alaska I, the IBLA, in an unrelated case, abandoned its position that a vested federal highway right-of-way would take precedence over an inchoate, later-filed Native allotment claim. Golden Valley Electric Ass'n (On Reconsideration), 98 IBLA 203 (1987) ("Golden Valley "). After stating its holding concerning rights-of-way in general terms, the IBLA in Golden Valley expressly referred to its previous ruling in Alaska I, although neither the State nor Albert was a party to Golden Valley, and neither had sought to re-open Alaska I within the Golden Valley proceeding. The IBLA stated that the conclusion reached in Alaska I needed to be qualified in light of the "shift in BLM's policy regarding the issuance of allotment certificates subject to rights-of-way." 98 IBLA at 207 n. 1. The IBLA went on to state as follows:

Albert's inchoate preference right could defeat the previously issued rights-of-way if her use and occupancy was open and notorious at the time the right-of-way grants issued such that it would have disclosed to an observer on the ground that the land was under active development or use.... For that reason, our statement in Albert is modified to the extent it is inconsistent with our present analysis.

Id. at 207.

As a result of the IBLA's decision in Golden Valley, the BLM, on October 2, 1987, declared that the State's rights-of-way were null and void, finding that Albert's use and occupancy of the island had been open and notorious since 1938, creating an inchoate preference right that defeated the State's rights-of-way. The State appealed, but the IBLA, in Alaska, Golden Valley Elec. Ass'n, 110 IBLA 224 (1989) ("Alaska II "), affirmed the BLM's invalidation of the State's rights-of-way on August 24, 1989. Alaska then commenced an action in the United States District Court for the District of Alaska under the Administrative Procedures Act, 5 U.S.C. Sec. 702 ("APA"), seeking judicial review of the IBLA's decision.

On May 19, 1993, the district court entered judgment for the government and dismissed the action on jurisdictional grounds. The court found that Alaska's claim represented a challenge to an interest claimed by the United States in real property and thus fell within the scope of the Quiet Title Act, 28 U.S.C. Sec. 2409a (the "QTA"). The district court found that, because the QTA precludes suits against the United States concerning title to "trust or restricted Indian lands," the State's action was barred by the absence of an effective waiver of sovereign immunity. This appeal followed.

Standard of Review

Subject matter jurisdiction determinations are subject to de novo review. North Star Alaska v. United States, 9 F.3d 1430, 1432 (9th Cir.1993) (en banc). The district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous. Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990).

Discussion

Federal sovereign immunity insulates the United States from suit "in the absence of an express waiver of this immunity from Congress." Block v. North Dakota, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983). Such waivers, to be effective, must be "unequivocally expressed," and the government's consent to be sued must be construed "strictly in favor of the sovereign." United States v. Nordic Village, Inc., --- U.S. ----, ---- - ----, 112 S.Ct. 1011, 1014-15, 117 L.Ed.2d 181 (1992) (citations omitted). In this case, Alaska seeks review of the IBLA's August 24, 1989 ruling by invoking the congressional waiver of sovereign immunity contained in the APA. The APA provides for judicial review of agency decisions as follows:

A person suffering legal wrong because of agency action ... is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency ... acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.... Nothing herein ... confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. Sec. 702 (1977) (emphasis added). Thus, under the APA, the United States waives its sovereign immunity when a person has suffered some legal wrong as a result of an agency decision, except where some other statute controls. In this case, the district court found that the QTA was such an "other statute," and that judicial review under the APA was precluded under the QTA's express terms.

By enacting the QTA, Congress waived, with certain...