U.S. v. Southern Pac. Transp. Co.

• Decision Date: 10 September 1976
• Docket Number: Nos. 74-3333,75-1080,s. 74-3333
• Citation: 543 F.2d 676
• Parties: UNITED STATES of America, Plaintiff, The Walker River Paiute Tribe of Nevada and Robert Benton et al., Plaintiffs-Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 676

543 F.2d 676

UNITED STATES of America, Plaintiff,

The Walker River Paiute Tribe of Nevada and Robert Benton et

al., Plaintiffs-Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al.,

Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants-Appellees.

Nos. 74-3333, 75-1080.

United States Court of Appeals, Ninth Circuit.

Sept. 10, 1976.

Yvonne T. Knight and Daniel H. Israel (both argued), of Native American Rights Fund, Boulder, Colo., for appellants in 74-3333, for appellees in 75-1080.

John Zimmerman, Atty. (argued), of U. S. Dept. of Justice, Washington, D. C., for appellant in 75-1080.

Donald Oakley Roy (argued), of Kentfield, Cal., for appellees in 74-3333.

Before GOODWIN and WALLACE, Circuit Judges, and WILLIAMS, ^* District Judge.

WALLACE, Circuit Judge:

This case arises out of a confrontation between the "manifest destiny" of the westward movement of American civilization and the rights of the native American Indians to their lands. It raises important issues of Indian law and requires the interpretation of a century of Indian and public land policy.

The Southern Pacific Transportation Company (Southern Pacific) operates a railway through the reservation of the Walker River Paiute Tribe of Nevada (Tribe). The right-of-way has been used continuously by Southern Pacific and its predecessors since 1882. It is now alleged that the railway is and has always been a trespasser. ¹

The Tribe and a class of individual allottees ² of land traversed by the railway brought suit seeking, among other things, a declaration that the 1880 and 1882 agreements granting Southern Pacific's predecessor the right-of-way are void and that the Indians own the right-of-way, a permanent injunction against future trespass, money damages for trespass and punitive damages. The United States instituted a second suit in its own right and on behalf of the Tribe and allottees seeking to quiet title to the right-of-way in the United States for their use and benefit, ejectment, ³ and damages for trespass. The district court ordered the two actions consolidated. The theory of both suits was that Southern Pacific and its predecessors never obtained a valid right-of-way through the reservation.

The district court granted a partial summary judgment for the Indians and the United States. It ruled that Southern Pacific did not have a valid easement for the railway or adjoining telephone and telegraph lines but that it did have a license for a railway from the time the railroad was constructed in 1882 to the filing of the complaint in this suit. ⁴ The trial judge certified the partial summary judgment as appealable pursuant to 28 U.S.C. § 1292(b). The Tribe and allottees and the United States appealed and we exercised our discretion to entertain the appeals. ⁵ We reverse the decision on the claims of the class of allottees and remand with directions to dismiss for lack of jurisdiction unless an alternate ground for jurisdiction can be found. We affirm in part and reverse in part the holding that Southern Pacific never acquired an easement, and reverse the finding that it had a license.

I. Factual and Procedural Background

The Walker River Reservation was formally established by executive order of President Grant on March 19, 1874. ⁶ On April 13, 1880, in consideration of the payment of $750 and a promise of free transportation for the Indians and their products along the railway as long as the railroad is operated through the reservation, a special council of the Tribe orally granted D. O. Mills and Associates, later incorporated as the Carson & Colorado Railroad Company, a right-of-way through the reservation. On January 5, 1881, the Carson & Colorado filed maps of definite location with the Department of the Interior seeking thereby to obtain a right-of-way under the General Railroad Right of Way Act of 1875, ch. 152, 18 Stat. 482 (codified at 43 U.S.C. §§ 934-39) (hereinafter referred to as "1875 Act"). These maps were approved by the Secretary on January 29, 1881. The railroad was actually constructed in 1881 and 1882.

On August 9, 1882, the Carson & Colorado entered into a written agreement with the "chiefs, headmen and heads of a majority of families" of the Tribe. Although reciting that the Carson & Colorado believed that "it had honestly and in good faith complied with all legal requirements" for obtaining a right-of-way across the reservation, the agreement granted a right-of-way for the railroad "as now constructed" in consideration of the payment of $750, a promise of free transportation, and certain additional promises. The agreement was expressly made subject to final ratification by Congress. Although four bills were introduced for that purpose, Congress never ratified the agreement.

In 1902 Congress acted to enable part of the reservation to be opened to settlement. By a series of statutes and an agreement allotments of irrigable lands and cash payments were made to individual Indians, tribal grazing and timber lands were set aside and the Indians "cede(d) . . . and relinquish(ed) to the United States all right, title and interest" to the remaining lands in the reservation. In 1906 the relinquished lands were opened by presidential proclamation to settlement "subject to disposal under the existing laws of the United States. ⁷ In 1925 the Central Pacific Railway Company (successor to the Carson & Colorado and predecessor of Southern Pacific) filed amended maps of definite location with the Department of the Interior for the stated purpose of obtaining the benefits of the 1875 Act. These maps were approved in 1926. Part of the ceded lands were restored to the reservation in 1936.

The trespass claims of the Tribe and allottees and the United States relate to 50.47 miles of Southern Pacific's railroad line. This challenged segment represents the part of the line within the original 1874 executive order reservation boundaries. After the 1906 cession and allotments, 25.72 miles of the line crossed ceded lands, 17.75 miles traversed tribal lands and 7.0 miles intersected allotted lands. Lands containing 13.25 miles of line were restored to the Tribe in 1936.

II. Jurisdiction of the District Court

The district court had jurisdiction over the Tribe's claims pursuant to 28 U.S.C. § 1362 and over the claims of the United States pursuant to 28 U.S.C. § 1345. Neither statute requires any minimum amount in controversy.

The district court found that it had jurisdiction over the claims of the class of allottees pursuant to 28 U.S.C. § 1331, which requires that the amount in controversy exceed $10,000. The complaint alleged that the amount in controversy exceeded $10,000 "per plaintiff," but Southern Pacific challenged this allegation in its opposition to the plaintiffs' motion for summary judgment. This challenge was timely, Fed.R.Civ.P. 12(h)(3), and shifted the burden to the allottees to show that it does not appear to a legal certainty that their claims are for less than the required amount. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

The district court did not find that the claim of each allottee exceeds $10,000, but instead held that the allottees' claims could be aggregated and sustained jurisdiction on the ground that it did not appear to a legal certainty that the total claim of the class did not exceed $10,000. Southern Pacific has not challenged this holding on appeal, but we are bound to consider jurisdictional defects sua sponte. Mansfield, C. & L.M. Ry. v. Swan,111 U.S. 379, 384, 4 S.Ct. 510, 28 L.Ed. 462 (1884). We conclude that the district court erred in aggregating the allottees' claims to determine whether the jurisdictional amount requirement was met. The claims of the class of allottees must therefore be dismissed unless it appears to the district court on remand that there is no legal certainty that the claim of each allottee does not exceed $10,000 or unless some alternative jurisdictional basis can be found.

Class members may aggregate their claims to satisfy the amount in controversy requirement only where their claims are "joint and common" and not "separate and distinct." Zahn v. International Paper Co., 414 U.S. 291, 293-94, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 336-37, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). The district court aggregated the allottees' claims solely on the authority of Skokomish Indian Tribe v. France,269 F.2d 555 (9th Cir. 1959). The Skokomish Tribe claimed certain tidelands under a treaty and executive order. The Tribe brought a trespass and quiet title action against a number of defendants who claimed adverse interests in the lands. Jurisdiction was asserted under 28 U.S.C. § 1331. ⁸ The complaint alleged that the jurisdictional amount requirement was met but there was no allegation that the requirement was met as to each defendant. We concluded that the claims against the various defendants could be aggregated and that the district court had jurisdiction. We said that all the defendants derived their title from a common source and that "while the land in question is divided into parcels, it comprises essentially a single tract . . . ."269 F.2d at 559.

From our opinion, it is not clear what factors led us to our conclusion that the land comprised "essentially a single tract" and inferentially that the claimants to the separate parcels would be jointly liable to the Tribe. ⁹ But whatever factors may have dictated that conclusion are clearly not involved here. Our case is controlled by Potrero Hill Community Action Committee v. Housing Authority, 410 F.2d 974 (9th Cir. 1969). There, a class of tenants in a federally-financed, low-rent housing project sought a judgment directing local authorities to make improvements allegedly...