Jachetta v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM CARLO JACHETTA, 

Plaintiff-Appellant,

v. No. 10-35175

UNITED STATES OF AMERICA;  D.C. No.

3:08-cv-00262-RRB

BUREAU OF LAND MANAGEMENT;

DEPARTMENT OF PUBLIC FACILITIES, OPINION

STATE OF ALASKA,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

May 5, 2011—Anchorage, Alaska

Filed August 1, 2011

Before: Arthur L. Alarcón, Susan P. Graber, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

9823

9826 JACHETTA v. UNITED STATES

COUNSEL

Samuel J. Fortier, Fortier & Mikko, P.C., Anchorage, Alaska,

for the plaintiff-appellant.

JACHETTA v. UNITED STATES 9827

Justin R. Pidot, Assistant United States Attorney, Washing-

ton, DC, for defendant-appellee United States of America.

Sean P. Lynch, Assistant Attorney General, Juneau, Alaska,

for defendant-appellee State of Alaska.

OPINION

BYBEE, Circuit Judge:

In 1971, William Carlo Jachetta applied for a 160-acre

Native allotment comprised of two parcels (Parcel A and Par-

cel B) but, because of an error of the United States govern-

ment, his application was initially processed only as a request

for Parcel A, which the Bureau of Land Management

(“BLM”) issued to Jachetta in 1986. In 2004, after long and

complicated administrative proceedings, the BLM finally

issued Jachetta his allotment for Parcel B. By this time, how-

ever, Parcel B had been used as a “material site” by the State

of Alaska Department of Transportation (“Alaska” or the

“State”) and by the Alyeska Pipeline Service Company

(“Alyeska”) who, among other things, had extracted over

700,000 cubic yards of gravel from the allotment. Dissatisfied

with the physical condition of Parcel B, Jachetta sued the

BLM, Alaska, and Alyeska in federal court, alleging causes

of action for inverse condemnation, injunctive relief, nui-

sance, breach of fiduciary duties, and civil rights violations.

The district court dismissed Jachetta’s action against the BLM

and Alaska on the basis of sovereign immunity, and Jachetta

appeals the dismissal to this court. We hold that sovereign

immunity bars Jachetta’s entire action against Alaska but, at

this point, only part of his action against the BLM.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1971, Jachetta, an Alaska Native, applied to

the Bureau of Indian Affairs (“BIA”) for a Native allotment

9828 JACHETTA v. UNITED STATES

under the Alaska Native Allotment Act of 1906. Although

Jachetta sought a 160-acre allotment—comprised of a 50-acre

parcel (Parcel A) and a 110-acre parcel (Parcel B)—the BIA

erroneously omitted any reference to the 110-acre parcel

when it accepted his application. Consequently, when the

BLM approved Jachetta’s application in 1986, the BLM

issued Jachetta an allotment only for Parcel A. Though by this

time Jachetta had realized the BIA’s error and had filed a

request with the BLM to amend his application to reflect that

he was also seeking an allotment for Parcel B, the BLM

denied his request. Jachetta appealed the BLM’s decision and,

after protracted administrative proceedings, finally received

an allotment for Parcel B in July 2004.

During this time, Parcel B did not remain untrammelled.

Before the BLM issued Jachetta his allotment for Parcel B,

the BLM granted permits to third parties, including Alaska

and Alyeska, for the use of Parcel B as a “material site.” Since

1973, Alaska and Alyeska have removed over 700,000 cubic

yards of gravel from Parcel B which, according to Jachetta,

created a giant crater on the parcel and transformed the parcel

into a moonscape. Once Jachetta received his allotment for

Parcel B, he sued the BLM, Alaska, and Alyeska, seeking

monetary and injunctive relief for the gravel extracted by

Alaska and Alyeska and for Alyeska’s alleged destruction of

vegetation, removal of trees and other resources, placement of

barriers, and prevention of Jachetta’s “rightful use of occu-

pancy” of Parcel B. Specifically, Jachetta brought five causes

of action: (1) inverse condemnation against the State and

Alyeska for “extracting and carrying off rock, sand and gravel

[from Parcel B] without compensati[on]”; (2) injunctive relief

against all defendants to prevent any future inverse condem-

nation; (3) nuisance against all defendants for “contaminating

or otherwise polluting [Parcel B]”; (4) breach of fiduciary

duties against the BLM for, among other things, failing to pre-

serve the original character of Parcel B; and (5) civil rights

violations under 42 U.S.C. §§ 1983 and 1985 against all

defendants for conspiring among themselves to destroy Parcel

JACHETTA v. UNITED STATES 9829

B. In his prayer for relief, Jachetta requested an injunction and

monetary damages equivalent to the fair market value of the

resources extracted from his land.

The BLM filed a motion to dismiss, arguing that sovereign

immunity barred Jachetta’s action against the United States,

that the action was barred by the statute of limitations, and

that Jachetta’s complaint failed to state claims upon which

relief can be granted. Alaska also filed a motion to dismiss,

which argued only that the Eleventh Amendment barred

Jachetta’s action against the State. The district court held that

federal sovereign immunity barred Jachetta’s action against

the BLM and dismissed Jachetta’s action against the BLM for

lack of subject matter jurisdiction. The district court also held

that Alaska was immune from suit under the Eleventh

Amendment and granted Alaska’s motion to dismiss. Jachetta

has timely appealed the district court’s rulings to this court.

JURISDICTION AND STANDARD OF REVIEW

Although Jachetta’s action against Alyeska is still pending

before the district court, the district court entered two

judgments—one dismissing Jachetta’s action against the

BLM, and one dismissing Jachetta’s action against Alaska—

in which it expressly certified that there was no just reason to

delay the entry of judgment in favor of these two parties.

Because the district court complied with Federal Rule of Civil

Procedure 54(b), we have jurisdiction under 28 U.S.C.

§ 1291. Nat’l Ass’n of Home Builders v. Norton, 340 F.3d

835, 840 (9th Cir. 2003). We review de novo the district

court’s dismissals on the grounds of state and federal sover-

eign immunity. Cholla Ready Mix, Inc. v. Civish, 382 F.3d

969, 973 (9th Cir. 2004); Orff v. United States, 358 F.3d

1137, 1142 (9th Cir. 2004).

DISCUSSION

This appeal raises two issues: (1) whether federal sovereign

immunity bars Jachetta’s action against the BLM; and (2)

9830 JACHETTA v. UNITED STATES

whether the Eleventh Amendment bars Jachetta’s action

against Alaska. We discuss each issue in turn.

A. Federal Sovereign Immunity

“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a pre-

requisite for jurisdiction.” United States v. Mitchell, 463 U.S.

206, 212 (1983). Before we may exercise jurisdiction over

any suit against the government, we must have “a clear state-

ment from the United States waiving sovereign immunity,

together with a claim falling within the terms of the waiver.”

United States v. White Mountain Apache Tribe, 537 U.S. 465,

472 (2003) (citations omitted); see also United States v. Park

Place Assocs., Ltd., 563 F.3d 907, 923-24 (9th Cir. 2009)

(discussing the relationship between sovereign immunity and

subject matter jurisdiction). The government’s waiver of sov-

ereign immunity cannot be implied, but “must be unequivo-

cally expressed in statutory text.” Lane v. Pena, 518 U.S. 187,

192 (1996).

Here, Jachetta points to several statutes that he claims

waive the sovereign immunity of the United States: (1) the

Federal Tort Claims Act (“FTCA”); (2) 25 U.S.C. § 345,

which authorizes actions for Native allotments; (3) 25 U.S.C.

§ 357, which allows states to condemn Native allotments for

a public purpose; (4) the general jurisdiction provision 28

U.S.C. § 1343(a)(3); and (5) two civil rights provisions, 42

U.S.C. §§ 1983 and 1985. Of these, we conclude that only the

FTCA may waive the BLM’s sovereign immunity for some,

but not all, of Jachetta’s claims.

1. The Federal Tort Claims Act

[1] The FTCA authorizes private tort actions against the

United States “under circumstances where the United States,

if a private person, would be liable to the claimant in accor-

dance with the law of the place where the act or omission

JACHETTA v. UNITED STATES 9831

occurred.” 28 U.S.C. § 1346(b)(1); see United States v. Olson,

546 U.S. 43, 44 (2005). Accordingly, if Alaska law imposes

tort liability upon a private person for any of the claims

alleged in Jachetta’s complaint, the FTCA may waive the

BLM’s sovereign immunity. See Bolt v. United States, 509

F.3d 1028, 1031 (9th Cir. 2007) (“[T]he party seeking federal

jurisdiction . . . must therefore demonstrate that Alaska law

would recognize a [tort] cause of action . . . against a private

individual for like conduct.”); Love v. United States, 60 F.3d

642, 644 (9th Cir. 1995) (“To recover under the FTCA, the

[plaintiff] must show the government’s actions, if committed

by a private party, would constitute a tort in Montana.”); Sch-

warder v. United States, 974 F.2d 1118, 1122 (9th Cir. 1992)

(“[T]he FTCA directs us to look to the law of the state in

which the government official committed the tort to determine

the scope of sovereign immunity. If the law of that state

makes private parties liable . . . then the United States is liable

for the same.”).

[2] Here, the district court held that the FTCA did not

waive sovereign immunity because Jachetta’s complaint did

not include any claims that are torts under Alaska law. The

district court was only partly correct. Counts 1, 2, and 5 of

Jachetta’s complaint—styled as causes of action for inverse

condemnation, injunctive relief to prevent future unconstitu-

tional takings, and violations of federal civil rights statutes—

clearly are not torts under Alaska law; nor could they be, as

they do not allege violations of Alaska law. Rather, these

counts allege that the BLM violated Jachetta’s federal civil

rights and deprived Jachetta of his federal constitutional

rights. Although these claims may be characterized as consti-

tutional torts, they are not actionable under the FTCA because

any liability would arise under federal rather than state law.

Accordingly, the FTCA does not provide a waiver of sover-

eign immunity for these claims. See FDIC v. Meyer, 510 U.S.

471, 478 (1994) (“[T]he United States simply has not ren-

dered itself liable under [the FTCA] for constitutional tort

claims.”); Delta Sav. Bank v. United States, 265 F.3d 1017,

9832 JACHETTA v. UNITED STATES

1024-25 (9th Cir. 2001) (holding that the FTCA does not

waive the government’s sovereign immunity for claims alleg-

ing violations of 42 U.S.C. § 1986); see also Love, 60 F.3d at

644 (“The breach of a duty created by federal law is not, by

itself, actionable under the FTCA.”); Johnson v. Sawyer, 47

F.3d 716, 727 (5th Cir. 1995) (en banc) (“[T]he FTCA was

not intended to redress breaches of federal statutory duties.”

(citation omitted)).

[3] By contrast, Count 3 alleges a cause of action for nui-

sance, which clearly is a state law tort. Under Alaska law, “[a]

nuisance is a ‘substantial and unreasonable interference with

the use or enjoyment of real property.’ ” Maddox v. Hardy,

187 P.3d 486, 498 (Alaska 2008) (quoting Alaska Stat.

§ 09.45.255). This definition captures a classic tort, see W.

Page Keeton et al., Prosser and Keeton on the Law of Torts

§ 87, at 622 (5th ed. 1984) [hereinafter Prosser and Keeton]

(“Private nuisance is a tort that protects the interest of those

who own or occupy land from conduct committed with the

intention of interfering with a particular interest—the interest

in use and enjoyment.” (emphasis added)), as Alaska courts

have recognized, see, e.g., Lybrand v. Trask, 31 P.3d 801, 803

(Alaska 2001) (stating that the defendants “alleged various

tortious . . . activities, including trespass, nuisance, and mis-

representation” (emphasis added)); Parks Hiway Enters, LLC

v. CEM Leasing, Inc., 995 P.2d 657, 666 & n.45 (Alaska

2000) (discussing the tort of private nuisance under Alaska

law and citing to the Restatement (Second) of Torts). We thus

hold that Count 3 of the complaint brings a state law tort

claim and, accordingly, that the FTCA may provide a waiver

of sovereign immunity for this claim. See Lhotka v. United

States, 114 F.3d 751, 753-54 (8th Cir. 1997) (holding that the

plaintiffs stated a prima facie case of nuisance under Minne-

sota law and reversing the district court’s dismissal of their

FTCA action); Bartleson v. United States, 96 F.3d 1270,

1274-76 (9th Cir. 1996) (holding that California property

owners could proceed against the United States in their FTCA

action under a permanent nuisance theory); Huffman v. United

JACHETTA v. UNITED STATES 9833

States, 82 F.3d 703, 705-06 (6th Cir. 1996) (holding that gen-

uine issues of fact precluded summary judgment in the plain-

tiff’s FTCA action, which alleged a nuisance claim under

Kentucky law).

[4] We now turn to Count 4, which brings a claim for

breach of fiduciary duties. Under Alaska law, breach of fidu-

ciary duty may be either a tort claim or a contract claim. Cit-

ing Clemensen v. Providence Alaska Medical Center, 203

P.3d 1148 (Alaska 2009), the district court concluded that

Count 4 was a contract claim because “[t]he Alaska Supreme

Court has held that where the injury suffered by a breach of

fiduciary duty is economic, the claim sounds in contract, not

in tort.” With respect, the district court has misread Clemen-

sen. Clemensen did not hold that the nature of the injury

determines whether breach of fiduciary duty is a tort claim or

a contract claim; rather, Clemensen held that “[w]hether a

claim of breach of fiduciary duty sounds in tort or contract

depends on the source of the fiduciary duty.” Id. at 1151 n.12

(emphasis added).

[5] Under Alaska law, there are three possible sources of

a fiduciary duty: (1) the fiduciary duty may be imposed by

law independent of any contractual undertaking between the

parties; (2) the fiduciary duty may be imposed by an explicit

contractual promise; or (3) the fiduciary duty may be “implied

by law as a result of a contractual undertaking” between the

parties. Shields v. Cape Fox Corp., 42 P.3d 1083, 1089-90

(Alaska 2002). In the first scenario, Alaska treats breach of

fiduciary duty as a tort claim; in the second, as a contract

claim; and in the third, as a hybrid claim, which Alaska treats

as a contract claim for determining the governing statute of

limitations and as a tort claim for determining the appropriate

measure of damages. See id.; see also Clemensen, 203 P.3d at

1151 n.12. Because Jachetta’s complaint does not reveal the

existence of any contractual undertaking between Jachetta and

the BLM—and the BLM does not claim that there is a

contract—the only possible source of the fiduciary duty alleg-

9834 JACHETTA v. UNITED STATES

edly owed by the BLM to Jachetta must arise out of statutory

or common law. Thus, Jachetta’s breach of fiduciary duties

claim sounds in tort. Accord J.C. Driskill, Inc. v. Abdnor, 901

F.2d 383, 386 (4th Cir. 1990) (“A cause of action for breach

of a duty imposed by statute or case law, and not by contract,

is a tort action.”); FDIC v. Citizens Bank & Trust Co., 592

F.2d 364, 369 (7th Cir. 1979) (“Liability for breach of a duty

imposed by statute or case law and not by contract is in

tort.”); Prosser and Keeton § 92, at 656 (“Obligations

imposed by law are tort obligations.”). And the FTCA may

waive sovereign immunity for this claim. See Marlys Bear

Med. v. United States ex rel. Sec’y of Dep’t of Interior, 241

F.3d 1208, 1218 (9th Cir. 2001) (permitting an FTCA action

in which the plaintiff brought a breach of fiduciary duty claim

where Montana law allowed tort claims for breach of fidu-

ciary duty regardless of the source of that duty).

Although Counts 1 through 5 of Jachetta’s complaint

clearly delineate causes of action for inverse condemnation,

injunctive relief, nuisance, breach of fiduciary duties, and

civil rights violations, Jachetta vigorously argues that his

complaint states an additional cause of action for trespass and

that trespass is a tort for which the FTCA waives sovereign

immunity. Jachetta’s argument fails for two reasons. First, his

complaint never actually asserts a cause of action for trespass.

See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th

Cir. 2007) (“[C]ourts should not undertake to infer in one

cause of action when a complaint clearly states a claim under

a different cause of action.” (internal quotation marks omit-

ted)). And, second, Jachetta never argued before the district

court that his complaint brought a trespass claim against the

BLM nor that the FTCA waived sovereign immunity for that

claim. Because Jachetta failed to present his argument to the

district court, it has been waived. See Smith v. Marsh, 194

F.3d 1045, 1052 (9th Cir. 1999).

2. 25 U.S.C. § 345

[6] Section 345 of Title 25 provides in part that “persons

who are . . . entitled to an allotment of [Indian] land under any

JACHETTA v. UNITED STATES 9835

law of Congress . . . may commence . . . [an] action, suit, or

proceeding . . . in the proper district court.” The district courts

“are given jurisdiction” and “the United States [shall be] party

defendant.” 25 U.S.C. § 345.

[7] As interpreted by the Supreme Court, § 345 performs

two functions. First, it confers jurisdiction to the district

courts over two types of cases: those “seeking the issuance of

an allotment” and those “involving the interests and rights of

the Indian in his allotment . . . after he has acquired it.”

United States v. Mottaz, 476 U.S. 834, 845 (1986) (internal

quotation marks omitted). And, second, it “waives the Gov-

ernment’s immunity [but] only with respect to the former

class of cases: those seeking an original allotment.” Id. at

845-46; see also Pinkham v. Lewiston Orchards Irrigation

Dist., 862 F.2d 184, 187 (9th Cir. 1988) (“In Mottaz, the

Supreme Court made clear that section 345 waives the gov-

ernment’s immunity only with regard to . . . cases seeking an

original allotment, and not those involving the interests and

rights in an allotment after it has been acquired.”). Here, it is

undisputed that the BLM has already granted Jachetta an

allotment for Parcel B. Accordingly, Jachetta’s action cannot

be an “action[ ] for [an] allotment[ ]” and § 345 cannot waive

the BLM’s sovereign immunity. Mottaz, 476 U.S. at 846

(internal quotation marks omitted). To the extent Jachetta

identifies 28 U.S.C. § 1353 as yet another source of an alleged

waiver of the government’s sovereign immunity, we need not

analyze this source separately. We have held that “28 U.S.C.

§ 1353 is a recodification of the jurisdictional portion of

§ 345.” Scholder v. United States, 428 F.2d 1123, 1126 n.2

(9th Cir. 1970).

Nevertheless, Jachetta attempts to bring his action within

the scope of § 345’s limited waiver of sovereign immunity by

arguing that, “under a bundle of sticks theory of property law,

his allotment has not been fully conveyed to him” because

Parcel B is missing “rock, sand, and gravel, the essence of the

surface estate.” Jachetta’s argument, however, does not

9836 JACHETTA v. UNITED STATES

change the fact that he has been issued his allotment for Par-

cel B and that his complaint seeks only injunctive and mone-

tary relief for the condition in which the allotment was

conveyed to him rather than the issuance of an allotment. As

the district court explained, Jachetta “has been issued his full

allotment; his complaint centers around use of the allotment

that he had not authorized.”

3. 25 U.S.C. § 357

[8] Though 25 U.S.C. § 357 provides a limited waiver of

sovereign immunity, this statute does not waive the BLM’s

sovereign immunity in this case. Section 357 allows a state to

condemn “[l]ands allotted in severalty to Indians . . . for any

public purpose under the laws of the State or Territory where

located in the same manner as land owned in fee may be con-

demned” and specifies that “the money awarded as damages

shall be paid to the allottee.” 25 U.S.C. § 357. When a state

brings formal condemnation proceedings to acquire an Indian

allotment, the United States is an indispensable party to that

action because the United States remains “the owner of the

fee of the Indian allotted lands and holds the same in trust for

the allottees.”1 Minnesota v. United States, 305 U.S. 382, 386

(1939). If the United States is not a party to the action, any

judicial decision condemning the land “has no binding

effect,” so “the United States may sue to cancel the judgment

and set aside the conveyance made pursuant thereto.” Id. at

386 n.1.

[9] Because § 357 permits condemnation actions that can-

not effectively proceed absent the United States, § 357 waives

1

Once the Secretary of the Interior approves an Indian allotment appli-

cation, the United States holds the allotted land in trust for 25 years “for

the sole use and benefit of the Indian [allottee].” 25 U.S.C. § 348. At the

end of this period, the United States must convey the allotment “in fee,

discharged of said trust and free of all charge or incumbrance whatsoever”

to the allottee. Id.

JACHETTA v. UNITED STATES 9837

the government’s sovereign immunity. See Minnesota, 305

U.S. at 388 (“It is true that authorization to condemn confers

by implication permission to sue the United States.”). But this

waiver extends only to those actions that § 357 authorizes:

formal condemnation proceedings in which a state seeks to

acquire Indian allotments for a public purpose in exchange for

monetary compensation. Jachetta, however, brings an inverse

condemnation action, which § 357 does not authorize. As the

Supreme Court has explained, “the term ‘condemned’ [in

§ 357] refers not to an action by a landowner to recover com-

pensation for a taking, but to a formal condemnation proceed-

ing instituted by the condemning authority.” United States v.

Clarke, 445 U.S. 253, 258 (1980). Because Jachetta is not

subject to a formal condemnation proceeding, § 357 does not

waive the BLM’s sovereign immunity in this case. Cf. Dry

Creek Lodge, Inc. v. United States, 515 F.2d 926, 930 (10th

Cir. 1975) (“If it could be said that there was a waiver con-

tained in [§ ] 357 . . . it would extend only to condemnations

for public purpose.”).

4. 28 U.S.C. § 1343(a)(3)

[10] Title 28 U.S.C. § 1343(a)(3) grants district courts

original jurisdiction over civil actions brought “[t]o redress

the deprivation, under color of any State law . . . of any right,

privilege or immunity secured by the Constitution of the

United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of

the United States.” Because we fail to see how this text can

be construed as an unequivocally expressed waiver of the

government’s sovereign immunity, we hold that 28 U.S.C.

§ 1343(a)(3) does not waive sovereign immunity. See Hughes

v. United States, 953 F.2d 531, 539 n.5 (9th Cir. 1992)

(“[G]eneral jurisdictional statutes cannot . . . waive the gov-

ernment’s sovereign immunity.”); Salazar v. Heckler, 787

F.2d 527, 528-29 (10th Cir. 1986) (holding that a similar sub-

section, 28 U.S.C. § 1343(a)(4), does not waive the govern-

ment’s sovereign immunity); cf. Blatchford v. Native Vill. of

9838 JACHETTA v. UNITED STATES

Noatak, 501 U.S. 775, 786 (1991) (holding that the jurisdic-

tional statute 28 U.S.C. § 1362 “does not reflect an ‘unmistak-

ably clear’ intent to abrogate [state sovereign] immunity,

made plain ‘in the language of the statute’ ”).

5. 42 U.S.C. §§ 1983 and 1985

[11] Lastly, to the extent Jachetta argues that 42 U.S.C.

§§ 1983 and 1985 waive the BLM’s sovereign immunity, we

disagree. We find no evidence in either statute that Congress

intended to subject federal agencies to § 1983 and § 1985 lia-

bility. To the contrary, §§ 1983 and 1985 impose liability

upon a “person,” and a federal agency is not a “person” within

the meaning of these provisions. See Hindes v. FDIC, 137

F.3d 148, 158 (3d Cir. 1998) (“We find no authority to sup-

port the conclusion that a federal agency is a ‘person’ subject

to section 1983 liability, whether or not in an alleged conspir-

acy with state actors.”); Hoffman v. HUD, 519 F.2d 1160,

1165 (5th Cir. 1975) (“[A] federal agency is . . . excluded

from the scope of section 1983 liability.”); Accardi v. United

States, 435 F.2d 1239, 1241 (3d Cir. 1970) (“The United

States and other governmental entities are not ‘persons’

within the meaning of Section 1983.”).

B. State Sovereign Immunity

[12] The Eleventh Amendment bars an action by a private

citizen against a state “unless Congress has abrogated state

sovereign immunity under its power to enforce the Fourteenth

Amendment or [the] state has waived it.” Holley v. Cal. Dep’t

of Corr., 599 F.3d 1108, 1111 (9th Cir 2010). To abrogate a

state’s sovereign immunity under § 5 of the Fourteenth

Amendment, Congress’s intent must be “unequivocally

expressed.” Tennessee v. Lane, 541 U.S. 509, 517 (2004)

(internal quotation marks omitted). Similarly, a state will be

deemed to have waived its immunity “only where stated by

the most express language or by such overwhelming implica-

tions from the text as will leave no room for any other reason-

JACHETTA v. UNITED STATES 9839

able construction.” Edelman v. Jordan, 415 U.S. 651, 673

(1974) (internal quotation marks and alteration omitted); see

also Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011) (“A

State’s consent to suit must be ‘unequivocally expressed’ in

the text of the relevant statute . . . [and] may not be implied.”

(citations omitted)).

Here, Jachetta argues that the Eleventh Amendment does

not bar his action against Alaska because (1) the Eleventh

Amendment does not bar an inverse condemnation action

when the plaintiff lacks an alternative forum to pursue his

constitutional claim; (2) the Eleventh Amendment does not

apply to suits seeking the return of property; (3) 25 U.S.C.

§ 357 abrogates Alaska’s Eleventh Amendment immunity; (4)

Alaska has voluntarily waived its sovereign immunity by

extracting gravel from Jachetta’s allotment; (5) Alaska has

waived its sovereign immunity by voluntarily choosing to par-

ticipate in a federally funded scheme; and (6) Jachetta is suing

on behalf of the United States. We address each argument in

turn.

1. The Lack of an Alternative Forum for Takings Claims

[13] Jachetta argues that the Eleventh Amendment cannot

bar an inverse condemnation action where, as here, the plain-

tiff lacks an alternative forum to pursue his constitutional

claim. We have held that the Eleventh Amendment bars

inverse condemnation actions brought against a state in fed-

eral court. Seven Up Pete Venture v. Schweitzer, 523 F.3d

948, 955 (9th Cir. 2008). However, we have also held that

although the Eleventh Amendment bars such actions in fed-

eral court, “sovereign immunity may not stand in the way of

recovery in state court“ because of the “self-executing” char-

acter of the Takings Clause. Id. at 954 (emphasis added).

“[S]tate courts must . . . be available to adjudicate claims

brought under the federal Takings Clause . . . . [T]his consti-

tutionally enforced remedy against the States in state courts

can comfortably co-exist with the Eleventh Amendment

9840 JACHETTA v. UNITED STATES

immunity of the States from similar actions in federal court.”

Id. at 954-55; see also DLX, Inc. v. Kentucky, 381 F.3d 511,

528 (6th Cir. 2004) (“[W]here the Constitution requires a par-

ticular remedy, such as . . . through the Takings Clause . . . ,

the state is required to provide that remedy in its own courts,

notwithstanding sovereign immunity.”); Manning v. N.M.

Energy, Minerals & Natural Res. Dep’t, 144 P.3d 87, 95

(N.M. 2006) (“[T]he Takings Clause creates a cause of action

against a state which is actionable in state court and to which

the state may not assert immunity.”); SDDS, Inc. v. State, 650

N.W.2d 1, 9 (S.D. 2002) (“[T]he Eleventh Amendment will

not immunize states from compensation specifically required

by the Fifth Amendment.”). Relying on this latter holding,

Jachetta argues that if the Eleventh Amendment bars his

inverse condemnation action in federal court, he will have no

judicial forum in which to pursue his self-executing takings

claim. That is so, Jachetta asserts, because his inverse con-

demnation action requires the adjudication of competing

rights in Indian allotments, something that only federal courts

may do.

We acknowledge the possibility that if Jachetta brings his

inverse condemnation action in state court, that court may dis-

miss the action for lack of subject matter jurisdiction. Con-

gress granted jurisdiction to certain states, including Alaska,

“over civil causes of action between Indians or to which Indi-

ans are parties which arise in . . . Indian country.” 28 U.S.C.

§ 1360(a). However, Congress reserved for the federal courts

jurisdiction over questions involving “the ownership or right

to possession” of property that “belong[s] to any Indian” and

“that is held in trust by the United States or is subject to a

restriction against alienation imposed by the United States.”

Id. § 1360(b). As interpreted by the Alaska Supreme Court,

§ 1360(b) deprives state courts of jurisdiction over actions in

which they “would have to resolve competing interests to

Native allotment land.” Foster v. State, 34 P.3d 1288, 1291

(Alaska 2001); see also Heffle v. State, 633 P.2d 264, 269

(Alaska 1981).

JACHETTA v. UNITED STATES 9841

Here, Alaska argues that it was authorized to remove gravel

from Parcel B under a federal permit that it was issued in

1968, three years before Jachetta filed his allotment applica-

tion. Jachetta replies that, even though he applied for his

Native allotment in 1971, his interest in Parcel B relates back

to 1960, when he first occupied the land, and trumps any

interest Alaska may have acquired by virtue of a federal per-

mit in 1968. Though we have no occasion to address the mer-

its of these contentions, we acknowledge that Jachetta’s

inverse condemnation action may require the state court “to

resolve competing interests to Native allotment land” and,

accordingly, could be dismissed by Alaska courts for lack of

subject matter jurisdiction. Foster, 34 P.3d at 1291.

[14] Nevertheless, we hold that Jachetta’s remedy lies in

state court. Of the two possible fora in which Jachetta can

bring his inverse condemnation claim, the federal forum is

clearly unavailable to him. See Seven Up Pete, 523 F.3d at

955 (“[E]very court of appeals to have faced this question has

. . . held that the Eleventh Amendment bars Fifth Amendment

reverse condemnation claims brought in federal district

court.”). Accordingly, Jachetta must file his inverse condem-

nation action against Alaska in state court and afford that

court an opportunity to address the interplay between 28

U.S.C. § 1360(b) and the constitutionally mandated remedy

for Takings Clause violations. At that point, the state court

can decide whether § 1360(b) deprives it of jurisdiction over

Jachetta’s inverse condemnation claim and, if it does so,

whether § 1360(b) is constitutional in light of the self-

executing nature of the Takings Clause. If the state court nev-

ertheless dismisses Jachetta’s action for lack of jurisdiction,

Jachetta can then seek review in the United States Supreme

Court.

2. The Eleventh Amendment and Suits Seeking the

Return of Property

Jachetta argues that his case falls within the United States

v. Lee, 106 U.S. 196 (1882), and Malone v. Bowdoin, 369

9842 JACHETTA v. UNITED STATES

U.S. 643 (1962), exception to state sovereign immunity.

Because Jachetta did not present this argument to the district

court, it has been waived. See Smith, 194 F.3d at 1052.

But in any event, Jachetta’s argument lacks merit. Under

Lee and Malone, the Eleventh Amendment does not bar “suits

in which a plaintiff asserts a claim for return of his property

. . . if the claim . . . [is] based on the public official having

acted beyond his statutory authority . . . or [if] the plaintiff’s

theory [is] that the action leading to the government’s posses-

sion of the property was constitutionally infirm.” Taylor v.

Westly, 402 F.3d 924, 933 (9th Cir. 2005). Here, however,

Jachetta does not seek the return of his property—i.e., the

gravel extracted from his allotment. Rather, he seeks mone-

tary compensation from the State equivalent to the fair market

value of the gravel. Accordingly, the Lee-Malone exception to

sovereign immunity does not apply to Jachetta’s case. See id.

at 935 (holding that the Lee-Malone exception does not apply

when “the plaintiffs unquestionably [seek] money that

belong[s] to the government, but to which the plaintiffs

assert[ ] an entitlement”).

3. 25 U.S.C. § 357

[15] Jachetta next argues that § 357 abrogates Alaska’s

Eleventh Amendment immunity. As we pointed out previ-

ously, § 357 provides that lands allotted to Indians “may be

condemned [by the state] for any public purpose” the same as

lands owned in fee on the condition that “the money awarded

as damages shall be paid to the allottee.” 25 U.S.C. § 357.

“Congress, using its authority to enforce by legislation the

provisions of the . . . Fourteenth Amendment, can ‘abrogate’

Eleventh Amendment . . . immunity by expressing its intent

to do so with sufficient clarity.” Taylor, 402 F.3d at 930. “The

requirement of a clear statement in the text of the statute

ensures that Congress has specifically considered state sover-

eign immunity and has intentionally legislated on the matter.”

Sossamon, 131 S. Ct. at 1661. On its face, § 357 contains no

JACHETTA v. UNITED STATES 9843

clear statement indicating Congress’s desire to abrogate a

state’s sovereign immunity. Indeed, the statute addresses only

the ability of a state to bring an action in condemnation and

says nothing about the ability of others to sue that state. Addi-

tionally, as we have previously explained, the Supreme Court

has held that, although § 357 authorizes formal condemnation

proceedings by states, it does not authorize inverse condem-

nation actions by landowners to recover just compensation.

See Clarke, 445 U.S. at 255-58. Under these circumstances,

we cannot conclude that § 357 “explicitly and by clear lan-

guage indicate[s] on its face an intent to sweep away the

immunity of the States.” Quern v. Jordan, 440 U.S. 332, 345

(1979); see also Sossamon, 131 S. Ct. at 1661 (“Without such

a clear statement from Congress and notice to the States, fed-

eral courts may not step in and abrogate state sovereign

immunity.”).

4. Alaska’s Extracting Gravel from Jachetta’s Allotment

Jachetta summarily argues, without any citation to author-

ity, that Alaska has voluntarily waived its sovereign immunity

by accepting the benefits of Jachetta’s allotment—i.e., by

extracting gravel from Parcel B. This argument fails because

extracting gravel from Parcel B is not a clear declaration by

Alaska that it consents to be sued. See Sossamon, 131 S. Ct.

at 1658 (“Only by requiring [a] clear declaration by the State

can we be certain that the State in fact consents to suit.”

(internal quotation marks omitted)).

5. Alaska’s Participation in the Construction of the Trans-

Alaska Pipeline

Jachetta next argues that Alaska has waived its sovereign

immunity by voluntarily choosing to participate in a federal

project—the Trans-Alaska Pipeline. Specifically, Jachetta

claims that Alaska’s consent to suit derives from 43 U.S.C.

§ 1652(e), which, according to Jachetta, conditions Alaska’s

participation in the construction of the pipeline on a waiver of

9844 JACHETTA v. UNITED STATES

its Eleventh Amendment immunity. The statute does not sup-

port Jachetta’s assertion. Section 1652(e) authorizes federal

officers and agencies “to amend or modify any right-of-way,

permit, lease, or other authorization issued under [Title 43,

Chapter 34]” when “necessary to protect the public interest.”

Jachetta fails to explain how this language “unequivocally

expresse[s]” Congress’s desire to condition Alaska’s partici-

pation in the construction of the pipeline on its consent to suit

in federal court. See Coll. Sav. Bank v. Fla. Prepaid Postse-

condary Educ. Expense Bd., 527 U.S. 666, 676 (1999) (cita-

tion omitted).

[16] Nevertheless, Jachetta argues that his case is similar

to Islander East Pipeline Company, LLC v. Connecticut

Department of Environmental Protection, 482 F.3d 79 (2d

Cir. 2006), where the Second Circuit held that Connecticut’s

voluntary participation in a federally regulated scheme

waived the state’s Eleventh Amendment immunity. In

Islander East, however, the Natural Gas Act of 1938 specifi-

cally provided for “original and exclusive jurisdiction [in the

court of appeals] over any civil action for the review of an

order or action of a . . . State administrative agency acting

pursuant to Federal law to issue, condition, or deny any per-

mit, license, concurrence, or approval.” Id. at 85. In light of

this provision, the state “d[id] not dispute that by accepting a

role as deputized regulator [in the federally regulated

scheme], a state agrees to waive its immunity from suit.” Id.

at 90. By contrast, Jachetta fails to identify any similar statu-

tory provision conditioning Alaska’s participation in the con-

struction of the Trans-Alaska Pipeline on Alaska’s waiver of

its sovereign immunity. Accordingly, Alaska’s participation

in this federally regulated scheme does not waive its sover-

eign immunity. See Sossamon, 131 S. Ct. at 1661 (rejecting

the argument that recipients of federal funding are on notice

that they are subject to suits for monetary damages); Edelman,

415 U.S. at 673 (“The mere fact that a State participates in a

program through which the Federal Government provides

assistance for the operation by the State of a system of public

JACHETTA v. UNITED STATES 9845

aid is not sufficient to establish consent on the part of the

State to be sued in the federal courts.”).

6. Suing on Behalf of the United States

Jachetta next argues that the Eleventh Amendment does not

bar his action against Alaska because he is suing on behalf of

the United States. Because the Eleventh Amendment does not

bar suits by the United States government against a state, see

Monaco v. Mississippi, 292 U.S. 313, 329 (1934), Jachetta

contends the Eleventh Amendment cannot bar his action,

which “assert[s] the government’s pecuniary interest.”

Jachetta has waived his argument both because he devel-

oped it for the first time in his reply brief, see Graves v.

Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam), and

because he did not present it to the district court, see Smith,

194 F.3d at 1052.

In any event, his argument is unpersuasive. Not only has

Jachetta failed to cite anything authorizing him to assert the

government’s interests against the State of Alaska, but the

authority we have found actually undermines his case. Indeed,

the Supreme Court has expressed doubt “that sovereign

exemption can be delegated—even if one limits the permissi-

bility of delegation . . . to persons on whose behalf the United

States itself might sue.” Blatchford, 501 U.S. at 785. That is

so, the Court explained, because “[t]he consent, ‘inherent in

the convention,’ to suit by the United States—at the instance

and under the control of responsible federal officers—is not

consent to suit by anyone whom the United States might

select; and even consent to suit by the United States for a par-

ticular person’s benefit is not consent to suit by that person

himself.” Id.

CONCLUSION

We hold that federal sovereign immunity bars Jachetta’s

inverse condemnation, injunctive relief, and civil rights viola-

9846 JACHETTA v. UNITED STATES

tions claims against the United States, but that the FTCA may

provide a waiver of the government’s sovereign immunity for

Jachetta’s nuisance and breach of fiduciary duties claims.

Additionally, we hold that the Eleventh Amendment bars

Jachetta’s action against Alaska in its entirety.

AFFIRMED in part, REVERSED in part, and

REMANDED.

Costs on appeal are awarded to Alaska. The remaining par-

ties shall bear their own costs.