Lyon v. Gila River Indian Community

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

G. GRANT LYON, 

Plaintiff-counter-defendant-

Appellee, No. 08-15570

v.  D.C. No.

GILA RIVER INDIAN COMMUNITY, 05-CV-02045-JAT

Defendant-counter-plaintiff-

Appellant.



In re: MICHAEL KEITH SCHUGG, 

DBA Shuburg Holsteins; DEBRA

SCHUGG,

Debtor,

No. 08-15712

G. GRANT LYON,

Plaintiff-counter-defendant-  D.C. No.

2:05-CV-02045-JAT

Appellee Cross Appellant, OPINION

v.

GILA RIVER INDIAN COMMUNITY,

Defendant-counter-plaintiff-

Appellant Cross Appellee.



Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

January 14, 2010—San Francisco, California

Filed November 24, 2010

18775

18776 LYON v. GILA RIVER INDIAN COMMUNITY

Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Wallace

LYON v. GILA RIVER INDIAN COMMUNITY 18779

COUNSEL

Patricia A. Millett (argued), Mark J. MacDougall and Troy D.

Cahill, of Akin Gump Strauss Hauer & Feld LLP, Washing-

18780 LYON v. GILA RIVER INDIAN COMMUNITY

ton, D.C., and Jennifer Kay Giff, Pima Maricopa Tribe Law

Office, Sacaton, Arizona, for appellant/cross-appellee Gila

River Indian Community.

Paul F. Eckstein (argued), Richard M. Lorenzen and Joel W.

Nomkin, Perkins Coie Brown & Bain P.A., Phoenix, Arizona,

for appellee/cross-appellant G. Grant Lyon.

OPINION

WALLACE, Senior Circuit Judge:

This appeal involves a dispute between an Indian tribe and

the trustee of a bankruptcy estate over the rights of access to

and occupation of a parcel of land completely surrounded by

Indian reservation land. The district court had jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1334. We have jurisdiction

to hear this appeal pursuant to 28 U.S.C. § 1291, and we

affirm in part and vacate in part.

I.

The center of the parties’ dispute is “Section 16,” a parcel

of about 657 acres in Pinal County, Arizona. The land sur-

rounding Section 16 is part of an Indian reservation (Reserva-

tion) belonging to the Gila River Indian Community

(Community), a federally recognized Indian tribe. We start

with the history of Section 16 and the Reservation.

The Community historically occupied the land that is now

south-central Arizona. See Gila River Pima-Maricopa Indian

Cmty. v. United States, 24 Ind. Cl. Comm’n 301, 303, 335

(1970). Through the 1853 Gadsden Purchase, the United

States acquired title to land from Mexico, including what is

now Section 16. The following year, Congress adopted a law

providing that when a survey was completed of the lands

LYON v. GILA RIVER INDIAN COMMUNITY 18781

within the purchased territory, “sections numbered sixteen

and thirty-six in each township, in said Territory, shall be, and

the same are hereby, reserved for the purpose of being applied

to schools in said Territory, and in the States and Territories

hereafter to be created out of the same.” Act of July 22, 1854,

ch. 103, § 5, 10 Stat. 308, 309. The lands were not literally

meant to be sites for school buildings. Instead, the state was

able to sell and lease them to produce funds supporting its

schools. Lassen v. Arizona ex rel. Ariz. Highway Dep’t, 385

U.S. 458, 463 (1967). In 1863, Congress partitioned the Terri-

tory of New Mexico to create the Territory of Arizona. Act of

Feb. 24, 1863, ch. 56, § 1-2, 12 Stat. 664, 664-65. Section 16

became property of Arizona when a survey of the land was

filed in 1877. See United States v. S. Pac. Transp. Co., 601

F.2d 1059, 1067 (9th Cir. 1979).

In 1859, Congress created a reservation for the Community.

Act of Feb. 28, 1859, ch. 66, § 3-4, 11 Stat. 388, 401; see also

Gila River Pima-Maricopa Indian Cmty., 24 Ind. Cl. Comm’n

at 303. The Reservation did not originally abut Section 16; the

borders of the Reservation were later enlarged through a

series of executive orders. Of relevance here, an executive

order dated November 15, 1883 added to the Reservation a

parcel of land immediately to the north of Section 16, and an

executive order dated June 2, 1913 added to the Reservation

the land immediately to the south, east and west of Section

16. The result is that since 1913, Section 16 has been com-

pletely surrounded by Reservation land. Section 16 can be

accessed using Smith-Enke Road, an east-west road that runs

adjacent to the southern boundary of Section 16 and crosses

Reservation land before continuing west to the City of Mari-

copa and east to the City of Sacaton. Section 16 can also be

accessed by Murphy Road, a north-south road that runs adja-

cent to the eastern boundary of Section 16 and crosses Reser-

vation land before continuing south to the City of Maricopa,

and north for two miles until intersecting with another road at

a point within the Reservation.

18782 LYON v. GILA RIVER INDIAN COMMUNITY

The State of Arizona held Section 16 until 1929, when it

sold the parcel to an individual named J.L. Hodges, pursuant

to a patent conveying the land “together with all the rights,

privileges, immunities and appurtenances of whatsoever

nature” and “subject to any and all easements or rights of way

heretofore legally obtained.” Section 16 has since been sold

several times, each time conveyed by a deed containing simi-

lar language. In 2001, a company called S&T Dairy, L.L.C.,

owned by the children of Michael and Debra Schugg (the

Schuggs), purchased Section 16 and constructed a dairy on

the property. In 2003, S&T Dairy conveyed Section 16 to the

Schuggs. In 2004, the Schuggs sought to have Section 16

rezoned, from “rural” to “transitional,” a change that would

allow construction of a higher-density housing development.

Pinal County rejected the Schuggs’ application to rezone Sec-

tion 16.

Also in 2004, the Schuggs declared bankruptcy and listed

Section 16 as their largest asset. G. Grant Lyon was appointed

the Chapter 11 Trustee (Trustee) of the Schuggs’ bankruptcy

estates. During the bankruptcy proceedings, the Community

filed a proof of claim asserting, of relevance here, that it had

(1) “an exclusive right to use and occupy” Section 16, (2) “au-

thority to impose zoning and water use restrictions” on Sec-

tion 16, and (3) “a right to injunctive and other relief for

trespass on reservation lands and lands to which it holds

aboriginal title.” In response, the Trustee initiated an adver-

sary proceeding seeking a declaratory judgment that the

Schuggs’ estate had legal title and access to Section 16. The

district court granted the Community’s unopposed motion to

withdraw the reference, thereby transferring the adversary

proceeding to the district court.

In the district court, the Community moved to dismiss the

case on the basis that the litigation should not proceed without

the United States as a party. See Fed. R. Civ. P. 19. The dis-

trict court denied the motion without prejudice to its renewal.

The Community then filed an answer and counterclaims

LYON v. GILA RIVER INDIAN COMMUNITY 18783

against the Trustee. The Community alleged, as it had in its

proof of claim, that it held aboriginal title to Section 16; that

nonmembers had no right to cross Reservation land to access

Section 16 and had therefore committed trespass to reach the

parcel; and that it had authority to establish zoning and water

use restrictions for Section 16. The Community sought declar-

atory and injunctive relief prohibiting the Schuggs from fur-

ther trespass and compensatory damages for past trespasses.

On cross-motions for summary judgment, the district court

granted the Trustee’s motion in part, ruling that the Commu-

nity did not hold aboriginal title to Section 16. It denied sum-

mary judgment on all other issues.

Following a bench trial, the district court issued findings of

fact and conclusions of law. The district court held that the

United States was not an indispensable party under Rule 19.

The district court also determined that the Trustee had an

implied easement over Smith-Enke Road to access Section

16. It further concluded that the Trustee had a right of access

over Murphy Road, either because of an implied easement or

because the relevant portion of the road was an Indian Reser-

vation Road that must remain open for public use. The district

court held, therefore, that the Schuggs had not trespassed on

Reservation land. The district court rejected the Trustee’s

argument that it had a right to access Section 16 on the addi-

tional ground that Smith-Enke and Murphy Roads were public

roads under Revised Statute 2477 (R.S. 2477), 43 U.S.C.

§ 932 (repealed 1976). Finally, addressing the Community’s

assertion of authority to control the zoning of Section 16, the

district court held that the issue was not ripe for decision. The

Community appeals from the district court’s judgment regard-

ing necessary and indispensable parties, the Trustee’s rights

of access to Section 16, and the rejection of the Community’s

assertions of aboriginal title and zoning authority over Section

16. The Trustee cross-appeals from the district court’s judg-

ment that Smith-Enke Road and Murphy Road are not public

roads under R.S. 2477.

18784 LYON v. GILA RIVER INDIAN COMMUNITY

II.

We first review the district court’s determinations, under

Rule 19, that this case could proceed without the United

States or the individual Indian allottees of land abutting Sec-

tion 16. We review a district court’s decision regarding join-

der for abuse of discretion, but we review legal conclusions

underlying that decision de novo. E.E.O.C. v. Peabody West-

ern Coal Co., 400 F.3d 774, 778 (9th Cir. 2005).

A court first determines which parties must be joined under

the criteria of Rule 19(a). See Fed. R. Civ. P. 19(a). Then, if

a party that meets the criteria cannot be joined, the court must

decide “whether, in equity and good conscience, the action

should proceed among the existing parties or should be dis-

missed.” Fed. R. Civ. P. 19(b).

The Community argues that the United States was a neces-

sary party to the dispute over the Community’s aboriginal title

claim and the Trustee’s alleged rights of access to Section 16.

The Community further argues that, because the United States

could not be joined due to sovereign immunity, the case

should have been dismissed. Of course, the United States may

be necessary as to some claims and not others. See Makah

Indian Tribe v. Verity, 910 F.2d 555, 559 (9th Cir. 1990)

(Indian tribes were necessary to some, but not all, claims

asserted in the action). We first determine whether the United

States was a necessary and indispensable party to the Com-

munity’s aboriginal title claim. We then analyze whether the

United States was a necessary and indispensable party to

claims regarding the Trustee’s rights of access.

A.

[1] Aboriginal title is a “permissive right of occupancy

granted by the federal government to the aboriginal posses-

sors of the land.” United States v. Gemmill, 535 F.2d 1145,

1147 (9th Cir. 1976). “It is mere possession not specifically

LYON v. GILA RIVER INDIAN COMMUNITY 18785

recognized as ownership . . . and may be extinguished by the

federal government at any time,” although such “extinguish-

ment cannot be lightly implied in view of the avowed solici-

tude of the Federal Government for the welfare of its Indian

wards.” Id. (internal quotation marks and citations omitted).

Whether a tribe has aboriginal title to occupy land is an

inquiry entirely separate from the question of who holds fee

title to land. Indeed, it is possible for a party to take title to

land subject to an aboriginal right of occupancy. See, e.g.,

Beecher v. Wetherby, 95 U.S. 517, 525-26 (1877) (federal

government transferred fee “subject to” an aboriginal right of

occupancy).

[2] With regard to the Community’s claim of aboriginal

title, we hold that the United States is not a necessary party

under the criteria of Rule 19(a). The United States does not

“claim[ ] an interest” in Section 16. The United States granted

Section 16 to Arizona and has not since held it either in fee

or as a trustee. Fee title to the Reservation land is held by the

United States in trust for the Community, but Section 16 is

not, and has never been, part of the Reservation. Thus, the

United States has no interest in Section 16.

In addition, complete relief can be accorded among the

existing parties without joining the United States. See Fed. R.

Civ. P. 19(a). The Community’s claim of aboriginal title is

based on a theory that the federal government’s transfer of

Section 16 to Arizona (and hence to all subsequent owners)

was subject to the Community’s aboriginal title. The Commu-

nity argues that its aboriginal title to Section 16 cannot be

extinguished without the consent of the United States, and

that the United States must be joined to obtain that consent.

This premise is wrong. The district court did not purport to

extinguish aboriginal title. Rather, the district court deter-

mined whether Congress had already extinguished the Com-

munity’s aboriginal title. Joinder of the United States is not

necessary to answer that question.

18786 LYON v. GILA RIVER INDIAN COMMUNITY

Because the United States is not required to be joined in

order to adjudicate the Community’s aboriginal title claims,

we need not decide whether such claims can proceed without

the United States under Rule 19(b). We also need not decide

whether the United States has waived its sovereign immunity

as to actions regarding aboriginal title.

B.

[3] We next determine whether the United States is neces-

sary and indispensable to adjudication of claims regarding the

Trustee’s rights of access to Section 16. In this regard, the

Trustee does not dispute the district court’s conclusion that

the United States should be joined as a necessary party under

Rule 19(a). The United States holds legal title to the Reserva-

tion lands as a trustee for the Community, and any right of

access to Section 16 must run over Reservation land. The

United States therefore has an interest in the parties’ right of

way disputes because judicial recognition of an easement

would impair the government’s right. Cf. United States v.

Vascarajs, 908 F.2d 443, 445-47 (9th Cir. 1990). If the claims

regarding rights of access to Section 16 are resolved without

the federal government’s participation in this action, the result

may “as a practical matter impair or impede the [govern-

ment’s] ability to protect the interest.” Fed. R. Civ. P.

19(a)(1)(B)(i). Thus, the United States should be joined under

Rule 19(a).

[4] The district court concluded, and the Trustee does not

dispute, that the United States’ joinder was impossible

because it had not waived sovereign immunity. We therefore

review “whether, in equity and good conscience, the action

should proceed among the existing parties or should be dis-

missed.” Fed. R. Civ. P. 19(b).

The Community argues that the United States is an indis-

pensable party under Minnesota v. United States, 305 U.S.

382 (1939). There, the State of Minnesota sought to take by

LYON v. GILA RIVER INDIAN COMMUNITY 18787

condemnation a right-of-way for a highway over parcels of

land that were part of a reservation and allotted to individual

members of an Indian tribe. Id. at 383-84. The state named the

United States, as holder of the fee in trust, as a defendant

along with the individual allottees. Id. at 384. The United

States moved to dismiss on the ground that, although it was

a necessary party without which the case could not proceed,

it could not be sued due to sovereign immunity. Id. The Court

held:

The United States is an indispensable party defen-

dant to the condemnation proceedings. A proceeding

against property in which the United States has an

interest is a suit against the United States. It is con-

fessedly the owner of the fee of the Indian allotted

lands and holds the same in trust for the allottees. As

the United States owns the fee of these parcels, the

right of way cannot be condemned without making

it a party. . . . The fee of the United States is not a

dry legal title divorced from substantial powers and

responsibilities with relation to the land. . . . In the

stronger case of a trust allotment, it would seem

clear that no effective relief can be given in a pro-

ceeding to which the United States is not a party and

that the United States is therefore an indispensable

party to any suit to establish or acquire an interest in

the lands.

Id. at 386-87 & n.1 (internal citations omitted). Minnesota did

not distinguish between attempts to create new interests in

land and attempts to have pre-existing interests recognized.

See also Carlson v. Tulalip Tribes of Wash., 510 F.2d 1337,

1338-39 (9th Cir. 1975) (United States indispensable party to

individuals’ action to quite title to land claimed by Indian

tribe as part of reservation).

[5] Although an action to establish an interest in Indian

lands held by the United States in trust generally may not pro-

18788 LYON v. GILA RIVER INDIAN COMMUNITY

ceed without it, that rule does not apply where the tribe has

filed the claim to protect its own interest. We recognized this

exception in Puyallup Indian Tribe v. Port of Tacoma, 717

F.2d 1251 (9th Cir. 1983). In that case, a tribe claimed benefi-

cial title to twelve acres of exposed riverbed, and sued the

Port of Tacoma, which possessed and controlled the land at

issue. The Port argued that the United States was a necessary

and indispensable party, but we disagreed: “[T]he rule is clear

in this Circuit and elsewhere that, in a suit by an Indian tribe

to protect its interest in tribal lands, regardless of whether the

United States is a necessary party under Rule 19(a), it is not

an indispensable party in whose absence litigation cannot pro-

ceed under Rule 19(b).” Id. at 1254. We distinguished Minne-

sota and Tulalip Tribes on the basis that those cases were

“instituted by non-Indians for the purpose of effecting the

alienation of tribal or restricted lands, not by individual Indi-

ans or a tribe seeking to protect Indian land from alienation.”

Id. at 1255 n.1. We recognized that our holding was some-

what incongruous, but it was nevertheless our circuit’s law:

“Whether the Tribe is the plaintiff or the defendant in any

given suit would not seem particularly relevant in a joinder

decision under Rule 19(b), according to the factors set forth

in the rule. We do not question, however, the distinction

established in our circuit . . . for determining indispensability

under Rule 19(b).” Id.; see also Skokomish Indian Tribe v.

France, 269 F.2d 555, 556-57, 560 (9th Cir. 1959) (United

States not indispensable party to trespass and quiet title action

brought by Indian tribe).

[6] The Community argues that the Trustee was the

aggressor in this litigation because he asserted title to Section

16 by listing it as a bankruptcy asset, and because he initiated

the adversarial proceeding in bankruptcy court. For purposes

of the Puyallup exception, however, we conclude that the

Community effectively initiated this litigation by filing a

proof of claim in the bankruptcy court contesting the Trust-

ee’s title and access rights to Section 16. It is true that the fil-

ing of a proof of claim does not make the claim “disputed” or

LYON v. GILA RIVER INDIAN COMMUNITY 18789

initiate an adversary proceeding. See Lundell v. Anchor Con-

str. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000)

(“The filing of an objection to a proof of claim ‘creates a dis-

pute which is a contested matter’ within the meaning of Bank-

ruptcy Rule 9014 . . .”). But we agree with the district court:

the Community “really stands in the shoes of a plaintiff” in

this case. By filing a proof of claim asserting that the estate

had no right to occupy or access its most significant asset, the

Community “had to know that there would be an objection

which could be litigated only as an adversary proceeding with

[the Community] named as the defendant.”

The Community argues that it was “forced” to “react[ ]

defensively to protect its rights” by filing its proof of claim.

The Trustee did not seek to alienate Section 16 from the Com-

munity, however: it simply listed what it believed was an

asset of the Schuggs’ bankruptcy estate. Cf. In re G.I. Indus.,

Inc., 204 F.3d 1276, 1280 (9th Cir. 2000) (“By filing the

proof of claim, Benedor voluntarily subjected the agreement

[underlying the claim] to the bankruptcy court’s jurisdiction

. . . .”); Bass v. Olson, 378 F.2d 818, 820 & n.4 (9th Cir.

1967) (“[W]hen an adverse claimant comes into a bankruptcy

court of his own motion for a determination of title to prop-

erty, he . . . consents to the entry of an affirmative judgment

in favor of the trustee.”). Moreover, the Community’s proof

of claim challenged not only the Schuggs’ rights in Section

16, but also asserted the Community’s “exclusive right[s] to

use and occupy Reservation lands surrounding” Section 16,

asserted that the Community possessed authority to impose

“zoning and water use restrictions” on Section 16, and sought

relief for previous trespasses. Filing a proof of claim contest-

ing the Schuggs’ right to occupy Section 16 did not inherently

raise issues regarding access to and zoning of Section 16.

Such disputes were solely raised by the Community.

[7] In light of these several considerations, we hold that the

Puyallup exception to the Minnesota rule applies here. This

case is more similar to “a tribe seeking to protect Indian land

18790 LYON v. GILA RIVER INDIAN COMMUNITY

from alienation,” such that the United States is not an indis-

pensable party, than to a case of “litigation . . . instituted by

non-Indians for the purpose of effecting the alienation of

tribal or restricted lands.” Puyallup, 717 F.2d at 1255 n.1.

None of the specific Rule 19(b) factors suggests that we

should carve out an exception to the Puyallup exception in

this particular case. For example, the government’s interests

are shared and adequately represented by the Community.

And this case presents significantly different circumstances

than those in Republic of Philippines v. Pimentel, 553 U.S.

851 (2008), which narrowly held that a particular suit could

not go forward when it threatened to prejudice the interests of

a foreign sovereign that had invoked sovereign immunity. Id.

at 855. The United States is therefore not an indispensable

party to this litigation under Rule 19(b).

C.

The district court also concluded that individual Indian

allottees of the land surrounding Section 16 were not required

parties under Rule 19. The district court observed that the

Community “offered only conclusory statements concerning

the individual allottees’ interest in this action.” The district

court also observed that, like the United States, the individual

allottees were not bound by any judgment in this case. The

Community disagrees, arguing that these individuals claim an

interest relating to the subject of the action, and that this case

will impair their ability to protect that interest.

[8] Assuming, without deciding, that the individual allot-

tees were required parties under Rule 19(a), the litigation

could proceed without them under Rule 19(b). The allottees’

interests were adequately represented by the Community.

There is no reason to believe that the Community did not

make all of the arguments that would have been made by the

individual allottees, or that the individuals “would offer any

necessary element to the proceedings that the present parties

LYON v. GILA RIVER INDIAN COMMUNITY 18791

would neglect.” Washington v. Daley, 173 F.3d 1158, 1167

(9th Cir. 1999) (internal quotation marks omitted).

III.

We next turn to the district court’s rulings on the merits.

We review the district court’s findings of fact for clear error,

and review its conclusions of law de novo. Adams v. United

States, 255 F.3d 787, 792-93 (9th Cir. 2001).

We first consider whether the district court erred in holding

that the Trustee had an implied easement over reservation

lands, across Smith-Enke Road and Murphy Road, in order to

access Section 16. The district court concluded that when Sec-

tion 16 was conveyed to Arizona as school land in 1877, an

implied easement to access Section 16 was also conveyed.

This implied easement, the district court determined, then

passed to all subsequent owners of Section 16.

A.

The Community first argues that the Trustee’s claim to a

common law easement is preempted by federal procedures for

obtaining rights of way over Indian lands. Although these pro-

cedures were not created until after conveyance of the alleged

easement in 1877, the Community urges that preemption

applies to the claim of the easement now asserted. But noth-

ing in the scheme indicates that Congress, in creating proce-

dures for obtaining new rights of way, intended to preempt all

claims to previously acquired rights of way, such that holders

of pre-existing easements would have to go through the new

procedures.

To support its preemption argument, the Community relies

on Adams v. United States, 3 F.3d 1254 (9th Cir. 1993);

Adams, 255 F.3d at 787; and Fitzgerald Living Trust v. United

States, 460 F.3d 1259 (9th Cir. 2006). These three cases con-

cerned landowners who claimed easements through national

18792 LYON v. GILA RIVER INDIAN COMMUNITY

forests. They are of little help here because they dealt with an

entirely different statutory scheme under which landowners

whose property was surrounded by national forests were

guaranteed reasonable access over federal land and therefore

did not need a common-law easement to cross it. Even there,

the presence of a preexisting common-law easement is rele-

vant to whether regulations governing access are reasonable.

See Fitzgerald, 460 F.3d at 1263-64.

[9] We hold that the Trustee’s claim of a pre-existing ease-

ment to access Section 16 is not preempted by the existence

of a regulatory scheme for obtaining new easements over

Indian lands.

B.

We turn now to the merits of the Trustee’s right-of-access

claims. The Trustee argued that an implied easement gave the

Schuggs a right to cross Reservation land in order to enter

Section 16. The district court agreed, holding that, “when Sec-

tion 16 was conveyed as school land to the then Territory of

Arizona, an implied easement to the land also was conveyed,”

and the implied easement was conveyed to all subsequent pur-

chasers, including the Schuggs.

[10] We first examine whether the federal government’s

conveyance of Section 16 to Arizona, as part of a school land

grant, included an implied easement. Courts normally con-

strue federal land grants narrowly, under a longstanding “rule

that unless the language in a land grant is clear and explicit,

the grant will be construed to favor the [granting] government

so that nothing passes by implication.” Fitzgerald, 460 F.3d

at 1265; see also McFarland v. Kempthorne, 545 F.3d 1106,

1112 (9th Cir. 2008). However, there is an exception to this

general rule where the land grant at issue was made pursuant

to “legislation of Congress designed to aid the common

schools of the states;” in such cases, the grants are “to be con-

strued liberally rather than restrictively.” Wyoming v. United

LYON v. GILA RIVER INDIAN COMMUNITY 18793

States, 255 U.S. 489, 508 (1921); see also Oregon v. Bureau

of Land Mgmt., 876 F.2d 1419, 1432 (9th Cir. 1989).

It is true that the statute conveying Section 16 to Arizona

mentions no easement or right of access. But the question is

whether the district court properly held there was an implied

one. Utah v. Andrus dealt with a land grant to Utah by the

United States on the condition that Utah “use the proceeds of

the granted lands for a permanent state school trust fund.” 486

F. Supp. 995, 1000 (D. Utah 1979). The land so granted was

surrounded by federal land. Many years later, Utah leased the

land to a company that wished to mine it but could not do so

without crossing federal land. The district court held:

Given the rule of liberal construction [of school land

grants] and the Congressional intent of enabling the

state to use the school lands as a means of generating

revenue, the court must conclude that Congress

intended that Utah (or its lessees) have access to the

school lands. Unless a right of access is inferred, the

very purpose of the school trust lands would fail.

Without access the state could not develop the trust

lands in any fashion and they would become eco-

nomically worthless. This Congress did not intend.

. . . Therefore, the court holds that the state of Utah

and . . . Utah’s lessee do have the right to cross fed-

eral land to reach section 36, which is a portion of

the school trust lands.

Id. at 1002.

[11] This reasoning is persuasive: In granting lands to a

state for the purpose of funding schools, the federal govern-

ment must have intended some right of access to the land or

the purpose of the land grants would fail. Thus, in Koniag,

Inc. v. Koncor Forest Resource, we similarly implied a right

of reasonable access. 39 F.3d 991, 996 (9th Cir. 1994). In

Koniag, a partnership made up of Indian villages owned sur-

18794 LYON v. GILA RIVER INDIAN COMMUNITY

face rights to harvest timber pursuant to a grant from the

United States, while the subsurface rights were owned by a

regional corporation. We held that the Indian partnership had

a reasonable right to use the subsurface rock to accomplish its

timber-harvesting operations. In reaching this conclusion, we

examined “several factors, including congressional intent, the

degree of necessity for the easement, whether consideration

was given for the land, whether the claim is against the United

States or against a simultaneous conveyee, and the terms of

the patent itself.” Id. Here, Congress’s intent in granting Sec-

tion 16 to Arizona was to allow Arizona to use or to sell the

parcel to raise money for the support of public schools. The

property would have had little monetary value if there was no

right of access to it.

The Community argues that we should not follow the rea-

soning of Andrus because there the right of access was

implied over federal wilderness land, not across Indian land.

The Community argues that no right of access should be

implied over Indian land pursuant to the “principle deeply

rooted in [the Supreme] Court’s Indian jurisprudence: statutes

are to be construed liberally in favor of the Indians, with

ambiguous provisions interpreted to their benefit.” County of

Yakima v. Confederated Tribes & Bands of Yakima Indian

Nation, 502 U.S. 251, 269 (1992) (internal quotation marks

and alteration omitted). The Community urges that any dimin-

ishment of rights in their land must be accomplished by lan-

guage showing an “express congressional purpose” to do so.

Solem v. Bartlett, 465 U.S. 463, 475 (1984).

[12] The Community’s argument ignores the fact that in

1877, when the federal government granted Section 16 to Ari-

zona, the lands surrounding Section 16 were not Indian lands.

The Community’s Reservation, as created in 1859, did not

abut Section 16. Land north of Section 16 was added to the

Reservation in 1883, and land to the south, east, and west of

Section 16 was added to the Reservation in 1913. Thus, when

the federal government granted Section 16 to Arizona in

LYON v. GILA RIVER INDIAN COMMUNITY 18795

1877, an implied easement accompanying the grant would not

have interfered with Indian land at all. Section 16 was not sur-

rounded by Indian lands until 1913, pursuant to an executive

order specifically providing that the expansion “shall be sub-

ject to any existing valid rights of any persons to the lands

described.” By this language, any pre-existing easements

were effectively preserved, including the pre-existing implied

easement to access Section 16. We hold, therefore, that the

district court properly implied an easement in the federal gov-

ernment’s grant of Section 16 to Arizona, and that easement

was not disturbed by the subsequent expansion of the Reser-

vation.

[13] The Community alternatively argues that even if an

implied easement was created in 1877 for the benefit of Ari-

zona, it would not have “silently” passed to subsequent pur-

chasers of Section 16. But the deed transferring Section 16

from Arizona to J.L. Hodges in 1929—more than a decade

after the land became surrounded by the Reservation—clearly

specified that the purchaser received “all the rights, privileges,

immunities and appurtenances of whatsoever nature.” We

have held that “the word ‘appurtenance’ will carry with it an

existing easement.” Fitzgerald, 460 F.3d at 1267. Subsequent

deeds transferring Section 16 contained similar language. We

therefore hold that the implied easement Arizona obtained

from the federal government in 1877 was effectively con-

veyed to each subsequent purchaser of Section 16.

C.

The Trustee asked the district court to opine on the scope

of any easement. The district court held that there was no

actual controversy regarding the scope of the Trustees’ ease-

ment, and properly declined to issue an advisory opinion on

that subject. See generally Lujan v. Defenders of Wildlife, 504

U.S. 555, 559-61 (1992).

The Trustee has not shown that there is a live controversy

with regard to the scope of any easement. There is no indica-

18796 LYON v. GILA RIVER INDIAN COMMUNITY

tion that the roads or utilities as they currently exist are inade-

quate to support the current use of Section 16, or that the

Trustee has any intent to improve the roads or utilities. The

parties may disagree in principle over what activities the

Trustee may undertake on those roads, but there is as yet no

particularized or imminent injury arising out of that disagree-

ment.

IV.

The district court held that, in addition to or as an alterna-

tive to the implied easement, the Trustee has a right to access

Section 16 across Murphy Road because that road was an

Indian Reservation Road (IRR) open to the public. The dis-

trict court observed that the Community had maintained the

road and allowed public travel on it for many years, such that

the owners of Section 16 came to rely on it. The district court

concluded that the doctrine of laches barred the Community

from arguing that the relevant section of Murphy Road was

not an IRR open to the public.

A.

[14] An IRR is defined as “a public road that is located

within or provides access to an Indian reservation” or other

Indian land. 23 U.S.C. § 101(a)(12). A “public road,” in turn,

is “any road or street under the jurisdiction of and maintained

by a public authority and open to public travel.” Id.

§ 101(a)(27). A “public authority” may include a federal, state

or municipal government or instrumentality, or an Indian

tribe. Id. § 101(a)(23). IRRs generally must be open and

available for public use. 25 C.F.R. § 170.120. “Certain IRR

transportation facilities [a term that includes public roads, 25

C.F.R. § 170.5] owned by the tribes or BIA [Bureau of Indian

Affairs] may be permanently closed when the tribal govern-

ment and the Secretary agree. Once this agreement is reached,

BIA must remove the facility from the IRR System.” Id. at

LYON v. GILA RIVER INDIAN COMMUNITY 18797

§ 170.813(c). The “IRR System means all the roads and brid-

ges that comprise the IRR.” Id. at § 170.5.

Here, the Community argues that the part of Murphy Road

running across Reservation land is neither publicly main-

tained nor open to the public. It submits that it once main-

tained the section of Murphy Road at issue, but stopped doing

so when the BIA removed that section of road from the “IRR

Inventory” in early 2007. “The IRR Inventory is a compre-

hensive database of all transportation facilities eligible for

IRR Program funding . . . .” 25 C.F.R. § 170.442(a). The

Community also asserts that the BIA approved its posting of

“No Trespassing” signs on the road. It unsuccessfully

attempted to introduce evidence in the district court about the

BIA’s removal of the relevant section of Murphy Road from

the IRR Inventory. The district court excluded the evidence

on multiple grounds. The Community also moved for judicial

notice of the BIA’s action, but that motion was denied.

[15] We hold that the district court erred in refusing to take

judicial notice of this official action by the BIA, which repre-

sents the BIA’s opinion that Murphy Road is not an IRR.

Courts may take judicial notice of facts whose “existence is

‘capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.’ ”

W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4

(9th Cir. 2008). It must be taken when a party requests it and

supplies all necessary information. Fed. R. Evid. 201(d); cf.

Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295

F.3d 918, 924 n.3 (9th Cir. 2002) (“Although that decision is

still subject to further administrative and judicial review, and

therefore not finally dispositive of any issue in the case, the

existence of the ongoing litigation within FERC is an adjudi-

cative fact relevant to this case. Further, the existence of the

opinion is not in dispute, nor are its contents. Therefore, we

take judicial notice of the entirety of [the decision]”) (internal

citations omitted). The Trustee does not allege that it would

be prejudiced by the court’s taking of judicial notice of the

18798 LYON v. GILA RIVER INDIAN COMMUNITY

BIA’s action. Indeed, the Trustee was informed of the BIA’s

decision “in a matter of days” after it was made, and has

apparently appealed the BIA decision.

The district court’s decision also conflicts with the primary

jurisdiction doctrine, which applies when “an otherwise cog-

nizable claim implicates technical and policy questions that

should be addressed in the first instance by the agency with

regulatory authority over the relevant industry rather than by

the judicial branch.” Clark v. Time Warner Cable, 523 F.3d

1110, 1114 (9th Cir. 2008). This doctrine “is not designed to

secure expert advice from agencies every time a court is pre-

sented with an issue conceivably within the agency’s ambit,”

but should be used “if a claim requires resolution of an issue

of first impression, or of a particularly complicated issue that

Congress has committed to a regulatory agency, and if protec-

tion of the integrity of a regulatory scheme dictates prelimi-

nary resort to the agency which administers the scheme.” Id.

(internal quotation marks and citations omitted).

[16] We conclude that the district court should not have

ignored the BIA’s removal of the relevant portion of Murphy

Road from the IRR Inventory. Instead, the district court

should have at least stayed its decision pending ongoing BIA

proceedings on the issue. See Clark, 523 F.3d at 1114-15.

BIA proceedings on the issue are apparently ongoing. The

BIA’s initial decision that the relevant portion of Murphy

Road should not be included in the IRR Inventory is on

appeal to the Interior Board of Indian Appeals. The IRR sys-

tem is administered by the BIA under a detailed regulatory

scheme, and uniformity is important. We therefore vacate and

remand this issue to the district court for further consider-

ation.

[17] There is a related issue that we should review in order

to guide the district court on remand: the application of

laches. The district court held that, because the Community

had allowed public access to Murphy Road and maintained

LYON v. GILA RIVER INDIAN COMMUNITY 18799

the road for many years, the doctrine of laches precluded the

Community from now disclaiming that Murphy Road is an

IRR. “Laches requires proof of (1) lack of diligence by the

party against whom the defense is asserted, and (2) prejudice

to the party asserting the defense.” United States v. Dang, 488

F.3d 1135, 1144 (9th Cir. 2007) (internal quotation marks

omitted). Prejudice typically means that evidence is no longer

available or that the party asserting laches has “altered its

[behavior] in reliance on a plaintiff’s inaction.” Wauchope v.

U.S. Dep’t of State, 985 F.2d 1407, 1412 (9th Cir. 1993).

Here, the Trustee asserts that Section 16 owners, and particu-

larly the Schuggs, have relied on the Community’s treatment

of Murphy Road as an IRR. That reliance was not reasonable,

however, given that the regulations governing IRRs explicitly

contemplate that a road may be closed to the public upon the

agreement of the tribe and the BIA. 25 C.F.R. § 170.813.

There is also no evidence that the Schuggs were relying on

the road’s status as an IRR rather than on the implied ease-

ment the district court found to exist. We therefore hold that

the district court erred in applying laches to conclude that a

section of Murphy Road is an IRR.

V.

[18] The Trustee cross-appeals from the district court’s

holding that Smith-Enke Road and Murphy Road, which pro-

vide access to Section 16, are not public roads under R.S.

2477. Prior to its repeal in 1976, R.S. 2477 authorized rights-

of-way for the construction of highways over public lands not

reserved for public uses. 43 U.S.C. § 932 (repealed 1976).

The law repealing R.S. 2477 expressly preserved any valid,

existing right-of-way. See Adams, 3 F.3d at 1258. The ques-

tion is therefore whether Smith-Enke Road and Murphy Road

were valid R.S. 2477 roads in 1976.

A.

We must first address the Community’s arguments that the

district court lacked jurisdiction to decide this issue. The

18800 LYON v. GILA RIVER INDIAN COMMUNITY

Community argues that the Trustee’s R.S. 2477 claim is

essentially an action to quiet title to lands held by the United

States. The Community points out that such an action may

only be brought under the Quiet Title Act, which expressly

preserves the federal government’s sovereign immunity with

respect to claims regarding Indian lands held in trust by the

United States. 28 U.S.C. § 2409a(a).

The Trustee’s R.S. 2477 argument is not effectively an

action to quiet title. The Trustee is not seeking a declaration

against the United States. He does not contest the federal gov-

ernment’s “title” to the roads or claim a property interest in

them. Rather, the Trustee seeks only a declaration against the

Community that he has legal access to Section 16, which will

not bind the United States.

The Community next argues that the Trustee does not have

Article III “standing to assert the public’s collective right to

use a road under R.S. 2477” because he has no more particu-

larized interest than any other member of the public. To have

standing, the Trustee must have a “concrete and particular-

ized” injury that is more than a “mere generalized grievance.”

Alaska Right to Life PAC v. Feldman, 504 F.3d 840, 848-49

(9th Cir. 2007). But here, the Trustee has not attempted to

obtain a general declaration against the United States regard-

ing whether Murphy Road and Smith-Enke Road are R.S.

2477 roads. Rather, he simply seeks a declaration that will

bind the Community, to defeat its assertion that the Schuggs

have been trespassing on Reservation land. The “threat of lia-

bility for civil or criminal trespass constitutes the type of

injury that . . . is both ‘concrete and particularized,’ and

‘actual or imminent’ ” for purposes of standing. Dixon v.

Edwards, 290 F.3d 699, 712 (4th Cir. 2002).

B.

[19] Moving to the merits of the issue, it is the Trustee’s

burden to establish the existence of an R.S. 2477 route. Shultz

LYON v. GILA RIVER INDIAN COMMUNITY 18801

v. Dep’t of Army, 96 F.3d 1222, 1223 (9th Cir. 1996). Federal

Revised Statute 2477 did not itself create R.S. 2477 roads;

rather, it authorized the states to construct highways over pub-

lic lands. Thus, for Murphy Road and Smith-Enke Road to be

R.S. 2477 roads, Arizona had to establish them as highways

over public land in accordance with Arizona state law. See

Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 250 (9th

Cir. 1974) (explaining that right of way under R.S. 2477

comes into existence “automatically when a public highway

[is] established across public lands in accordance with the

law of the state”) (emphasis added). R.S. 2477 acts “as a pres-

ent grant which takes effect as soon as it is accepted by the

State,” and acceptance requires merely “some positive act on

the part of the appropriate public authorities of the state,

clearly manifesting an intention to accept.” Wilderness Soc’y

v. Morton, 479 F.2d 842, 882 (D.C. Cir. 1973) (internal quo-

tation marks omitted). Thus, the first question is whether Ari-

zona at some point established these roads as public highways

under Arizona law and if so, whether these roads crossed

lands that were “public lands” at that time.

1.

As to the first question, the Trustee urges that there is evi-

dence that a road existed in the general location of present-

day Smith-Enke Road since at least 1913, and a road in the

general location of present-day Murphy Road since at least

1875. The mere existence of these roads is not enough to

make them “public highways,” however. Rather, Arizona

must have taken some affirmative act to accept the grant rep-

resented by R.S. 2477. See id.

[20] The Trustee points to a declaration by Pinal County in

1922 that public roads ran along all section lines in the region.

Because Smith-Enke Road and Murphy Road were aligned

with section lines, the Trustee argues that the 1922 declaration

made these roads into public highways under Arizona law.

We will assume without deciding that Pinal County’s 1922

18802 LYON v. GILA RIVER INDIAN COMMUNITY

declaration was a sufficient governmental action to create

state “highways,” which eventually became present-day Mur-

phy Road and Smith-Enke Road. We will also assume without

deciding that Arizona thereby took sufficient action to accept

the grant of an R.S. 2477 right of way.

2.

[21] The question then becomes whether, in 1922, those

“highways” ran across “public land.” This is where the Trust-

ee’s argument fails. It is undisputed that a 1913 executive

order expanded the Community’s Reservation to completely

surround Section 16. The district court therefore concluded

that, at the time of Pinal County’s 1922 declaration, Murphy

Road and Smith-Enke Road ran across land that had become

part of the Reservation and therefore lost its public character.

[22] The Trustee’s reply is a counterintuitive proposition:

that the Reservation land added by executive order was some-

how still “public land.” The Trustee’s argument invokes a dis-

tinction between the creation or expansion of a reservation by

executive order and by an act of Congress. The Trustee

asserts that Indian reservation boundaries set by executive

order may be modified by Congress at any time, and that Con-

gress need not compensate Indian tribes for reducing a reser-

vation expanded by executive order. The Trustee relies on

Sioux Tribe of Indians v. United States, which held that an

Indian tribe was not entitled to compensation upon the aboli-

tion of a reservation established by executive order, although

a tribe would be entitled to compensation upon the abolition

of a reservation established by Congress. 316 U.S. 317

(1942). But the Supreme Court recognized in Sioux Tribe of

Indians v. United States that it still “lay within the power of

the President to withdraw lands from the public domain.” 316

U.S. 317, 325 (1942). Executive and congressional reserva-

tion grants may differ as to whether a tribe is entitled to com-

pensation in the event of revocation, but that does not change

the fact that “the executive orders . . . involved here were

LYON v. GILA RIVER INDIAN COMMUNITY 18803

effective to withdraw the lands in question from the public

domain.” Id.; see also Id. at 326, 331. Accordingly, the rele-

vant lands in this case were removed from the public domain

by the executive order expanding the Community’s Reserva-

tion.

[23] We hold that the Trustee failed to show that Arizona

established Smith-Enke Road and Murphy Road as public

highways crossing public land. They are not R.S. 2477 roads.

VI.

We now turn to the Community’s claim of aboriginal title

to Section 16. The district court held that any aboriginal title

held by the Community to Section 16 was extinguished in

1877 when the federal government conveyed Section 16 to

Arizona. The court concluded that because Section 16 was

granted to Arizona “for the ‘support of common schools,’ ” it

followed “that Congress would not intend the land, to be used

as a revenue generator, to be burdened with a superior right

of use and occupancy such as aboriginal title.”

The Community argues that aboriginal title can only be

extinguished through an unambiguous action and should not

have been implied here, because the school land grant was

silent on the issue. The Community cites cases in which the

Supreme Court has held that school land conveyances vest the

fee in the state subject to any aboriginal title. These cases are

distinguishable because they involved situations where a pre-

existing treaty had preserved the aboriginal title. See United

States v. Thomas, 151 U.S. 577, 584 (1894) (holding that “by

virtue of the treaty . . . the title and right which the state may

claim ultimately to the sixteenth section of every township for

the use of schools is subordinate to this right of occupancy of

the Indians.” (emphasis added)); Wisconsin v. Hitchcock, 201

U.S. 202, 213-15 (1906); Beecher, 95 U.S. at 525.

[24] The Community protests that there is no rationale for

a distinction between an Indian tribe’s right of possession pur-

18804 LYON v. GILA RIVER INDIAN COMMUNITY

suant to a treaty (as in Beecher, Thomas and Hitchcock) and

an Indian tribe’s right of possession pursuant only to aborigi-

nal title. But the rationale in those cases is that the Indian

tribe’s right of possession gained by treaty is akin to a con-

tract right negotiated in exchange for some valuable consider-

ation and not subject to unilateral revocation by the federal

government. Here there was no such right of possession when

Section 16 was conveyed to Arizona in exchange for some

valuable consideration. In this case, at the time that Section 16

was conveyed to Arizona, the Community had no such recog-

nized right of possession.

[25] The district court thus correctly held that the convey-

ance extinguished the Community’s aboriginal title to Section

16. Accord Gemmill, 535 F.2d at 1147-49 (series of federal

actions “clearly demonstrate[d]” title extinguished).

Because we hold that the Community’s aboriginal title was

extinguished in 1877, we need not reach the Trustee’s alterna-

tive argument that the Community is collaterally estopped

from asserting aboriginal title because the Indian Claims

Commission already determined that the Community’s

aboriginal title had been extinguished and awarded compensa-

tion to the Community for the loss of that title.

VII.

We have now determined that the Trustee had a valid right

of access to Section 16, and that the Community’s aboriginal

title to Section 16 has been extinguished. The parties raise one

final question: does the Community have zoning authority to

prevent future residential development of Section 16? The

district court correctly found that the issue was not ripe for

decision. See Cal. ex rel. Lockyer v. United States Dept. of

Agriculture, 575 F.3d 999, 1011 (9th Cir. 2009).

The record before us shows that the possibility that Section

16 might be developed as a housing subdivision is speculative

LYON v. GILA RIVER INDIAN COMMUNITY 18805

at this time. Pinal County has refused to alter the zoning of

Section 16 to allow such a development, and there are no cur-

rent plans to sell Section 16 to a developer or to construct a

housing development on Section 16. “A claim is not ripe for

adjudication if it rests upon contingent future events that may

not occur as anticipated, or indeed may not occur at all.”

Texas v. United States, 523 U.S. 296, 300 (1998) (internal

quotation marks and citation omitted); see also Bova v. City

of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). We have no

opportunity to address the claim on its merits, or to review the

district court’s alternative holdings.

AFFIRMED in Part; Vacated and Remanded in Part.

Each party shall bear its own costs.