State v. Babbitt
| Decision Date | 19 March 1996 |
| Docket Number | No. 94-35677,94-35677 |
| Citation | 75 F.3d 449 |
| Parties | 96 Cal. Daily Op. Serv. 274, 96 Daily Journal D.A.R. 3190, 96 Daily Journal D.A.R. 419 STATE of Alaska, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the Interior; United States of America; Evelyn Foster, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. John Athens, Jr., Assistant Attorney General and Paul R. Lyle, Assistant Attorney General, Fairbanks, Alaska, for appellant.
Jeffrey P. Kehne, U.S. Department of Justice, Washington, DC, and Marilyn J. Twitchell, Alaska Legal Services Corporation, Anchorage, Alaska, for appellees.
Appeal from the United States District Court for the District of Alaska.
Before: HALL, WIGGINS and KLEINFELD, Circuit Judges.
The panel as constituted in the above case has voted to deny appellant's petition for rehearing and to reject the suggestion for a rehearing en banc filed on November 17, 1995.
The full court has been advised of the suggestion for en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35.
The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.
The parties are allowed to file a petition for rehearing addressing the modified section III of the amended opinion filed January 11, 1996.
BACKGROUND
In 1962, the Bureau of Land Management ("BLM") granted the State of Alaska ("Alaska") a right-of-way, pursuant to 23 U.S.C. § 317, for the construction of the George Parks Highway. The right-of-way grant was amended in 1969 to include a slightly different section of land.
In June 1971, Evelyn Foster applied for a Native allotment of land pursuant to the Allotment Act, 43 U.S.C. §§ 270-1 to 270-3 (1970) (repealed 1971). 1 The Allotment Act allowed Alaska natives to apply for land that they had used for certain specified purposes for at least five years. 43 U.S.C. §§ 270-1, 270-3 (1970). A section of Alaska's 1969 amended right-of-way grant runs through the parcel of land for which Foster applied. Foster's application was granted by the BLM in 1979, based on the finding that she had used the designated parcel for statutorily specified purposes since 1964.
The BLM issued another opinion in 1989 confirming its prior approval of Foster's allotment, but expressly subjecting the allotment to Alaska's original 1962 right-of-way for the George Parks Highway. The BLM reasoned that Foster's preference right to the land, which vested when she filed a valid allotment application, "related back" to 1964, the date on which she began to use and occupy the land. Thus, because Alaska had received its original right-of-way grant before Foster had begun her use of the land in 1964, Alaska's right-of-way took precedence over Foster's claim to the land under the Allotment Act. By the same reasoning, the BLM determined that Foster's preference right to the land took precedence over Alaska's other claims to the land that arose after 1964, including Alaska's 1969 amended right-of-way.
Alaska appealed the BLM's decision regarding the amended right-of-way to the Interior Board of Land Appeals ("IBLA"), which affirmed the BLM. The IBLA decision in effect voided Alaska's 1969 amended right-of-way. Alaska then filed a complaint in federal district court, seeking judicial review of the IBLA's decision. The district court dismissed the complaint, concluding that it lacked subject-matter jurisdiction over the action due to the United States' immunity from suit under the Quiet Title Act, 28 U.S.C. § 2409a ("QTA").
Alaska appeals the district court's dismissal. We have jurisdiction under 28 U.S.C. § 1291. As explained below, and primarily on the authority of Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068, 1072 (9th Cir.1994) ("Albert "), we affirm the district court's dismissal for lack of subject-matter jurisdiction.
The district court's determination regarding subject-matter jurisdiction is reviewed de novo, but the court's underlying factual findings "must be accepted unless clearly erroneous." Albert, 38 F.3d at 1072.
Alaska asserts that the United States is not immune from its suit because the United States has waived its sovereign immunity under 5 U.S.C. § 702 (Administrative Procedure Act ("APA")); 28 U.S.C. § 2409a (QTA); and 43 U.S.C. § 1632(a) (Alaska National Interest Lands Conservation Act ("ANILCA")). In this type of case, however, "the waiver of sovereign immunity must be found, if at all, within the QTA." Albert, 38 F.3d at 1073. 2
Albert further compels our conclusion that the QTA's waiver of sovereign immunity does not permit Alaska's suit. The QTA's waiver expressly does not apply to "trust or restricted Indian lands." 28 U.S.C. § 2409a(a). As long as the United States has a "colorable claim" to a property interest based on that property's status as trust or restricted Indian lands, the QTA renders the government immune from suit. Albert, 38 F.3d at 1076. Alaska asserted for the first time at oral argument that the United States does not have a "colorable claim" on behalf of Foster in the land over which the 1969 amended right-of-way runs because Alaska had been issued a material site grant that included that land in 1961. Despite the apparent existence of this material site grant prior to Foster's use of the land, Alaska never raised this ground for invalidating Foster's allotment, either when it was first informed of the allotment in 1979, or during the later BLM and IBLA proceedings.
Id. (quoting Wildman v. United States, 827 F.2d 1306, 1309 (9th Cir.1987)). Here, as in Albert, because the allotment remains unpatented, the government has a trust interest in the disputed property; "the scope of this trust status is the same, whether or not the State controls rights-of-way over the lands." Id. Furthermore, having notified Alaska in 1979 about Foster's allotment and having proceeded through the administrative process without Alaska's challenging the allotment because of the 1961 material site grant, the United States' claim that it held the land in trust for Foster is not arbitrary or frivolous. See id. Accordingly, the Quiet Title Act does not waive the government's immunity. United States v. Mottaz, 476 U.S. 834, 843, 106 S.Ct. 2224, 2230, 90 L.Ed.2d 841 (1986); Albert, 38 F.3d at 1073.
Even though the QTA does not waive the government's sovereign immunity in this case, Alaska also argues that if the BLM acted ultra vires in approving Foster's allotment (which resulted in cancellation of Alaska's right-of-way), then sovereign immunity will not bar Alaska's action for judicial review of the agency's decision. According to Alaska, it may properly bring suit under the Administrative Procedure Act (APA), 5 U.S.C. § 702, which provides a general waiver of sovereign immunity for suits against federal officers in which the plaintiff seeks relief other than money damages.
However, the Supreme Court has expressly held that "Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States' title to real property." Block v. North Dakota, 461 U.S. 273, 286, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983) (). The Court noted that if plaintiffs are allowed to avoid the provisions of the QTA by instituting an officer's suit, then
all of the carefully crafted provisions of the QTA deemed necessary for the protection of the national public interest could be averted.... If we were to allow claimants to try the Federal Government's title to land under an officer's-suit theory, the Indian lands exception to the QTA would be rendered nugatory.
Id. at 284-85, 103 S.Ct. at 1818-19.
Alaska attempts to distinguish its case by claiming that it is not bringing what the Supreme Court calls an "officer's suit," but instead is bringing an "ultra vires" action. This distinction is without merit. The Supreme Court has made it clear that suits alleging "ultra vires" acts, actions that are outside the scope of a government officer's authority or are unconstitutional, are a subgroup of officer's suits as a whole. See Block, 461 U.S. at 281-82, 103 S.Ct. at 1816-17; Larson v. Domestic & Foreign Corp., 337 U.S. 682, 687-90, 69 S.Ct. 1457, 1460-1461, 93 L.Ed. 1628 (1949). Though such "ultra vires" suits regarding federal claims to land may have been permissible prior to the QTA under Larson and Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), the Block court "applied the rule that a precisely drawn, detailed statute pre-empts more general remedies," Block, 461 U.S. at 285, 103 S.Ct. at 1818, in finding that the QTA dictated the exclusive means by which a challenge to the United State's title to land could be brought. Thus, the Court has specifically proscribed officer's suits, including "ultra vires" suits, as a means of divesting the government's sovereign immunity in quiet title actions relating to trust or restricted Indian land.
Furthermore, the Court expressly rejected the claim that Section 702 of the APA authorizes such suits against federal officers:
[Section 702] waived federal sovereign immunity for suits against federal officers in which the plaintiff seeks relief...
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