Skranak v. Castenada

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY SKRANAK, 

Plaintiff,

and

ALAN SKRANAK; JAMES SKRANAK,

Plaintiffs-Appellants, No. 04-35053

v.  D.C. No.

CV-00-00233-DWM

ROBERT CASTENADA, Supervisor,

Kootenai National Forest; UNITED

STATES FOREST SERVICE, of the

United States Department of

Agriculture,

Defendants-Appellees.



CHARLES W. HARPOLE, 

Plaintiff-Appellant,

v. No. 04-35056

ROBERT CASTENADA, Supervisor,

Kootenai National Forest; UNITED  D.C. No.

CV-00-00232-DWM

STATES FOREST SERVICE, of the

OPINION

United States Department of

Agriculture,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

February 10, 2005—Seattle, Washington

13989

13990 SKRANAK v. CASTENADA

Filed October 12, 2005

Before: Monroe G. McKay,* Diarmuid F. O’Scannlain, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Monroe G. McKay, Senior United States Circuit Judge

for the Tenth Circuit, sitting by designation.

SKRANAK v. CASTENADA 13993

COUNSEL

Ward A. Shanahan, Gough, Shanahan, Johnson and Water-

man, Helena, Montana, argued the cause for the appellants

and was on the briefs.

Katherine W. Hazard, Washington, D.C., argued the cause for

the appellees. Thomas L. Sansonetti, Assistant Attorney Gen-

eral, Ruth Ann Storey, and John Smeltzer, United States

Department of Justice, Washington, D.C., and Alan Campbell

and James Snow, United States Department of Agriculture,

Washington, D.C., were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the United States Forest Service

properly denied owners access to their patented mining claims

within the Kootenai National Forest in Montana.

I

A

Alan Skranak and James Skranak (“the Skranaks”) cur-

rently own the 50-acre “Fourth-of-July” tract,1 consisting of

1

Control passed to them when their father, Henry Skranak, died during

this litigation.

13994 SKRANAK v. CASTENADA

four mining claims in the Kootenai National Forest in Mon-

tana. The United States granted a patent on one in 1907 and

on the other three in 1912. A six-foot wide wagon road was

built to the tract in 1902. The road has long since been closed

to motorized traffic and now functions as the Fourth-of-July

trail.

Henry Skranak, the Skranaks’ father, bought the Fourth-of-

July tract in 1961 and has had numerous run-ins with the For-

est Service over issues of access in his efforts to work the

mining claims. In 1995 Henry Skranak requested a special use

permit under the Alaska National Interest Land Conservation

Act (“ANILCA”) to construct a 2.1-mile access road on and

near the Fourth-of-July trail. The Forest Service considered

the request and its potential effects on endangered species,

water quality, and recreation, among other concerns. The For-

est Service decided to allow the road to be built, but along a

different, 2.52-mile route, in order to minimize its impact.

Road construction would only be permitted from June 16 to

October 15 in each year. The Forest Service promised to issue

an “easement” good for a ten-year period and renewable

thereafter upon completion of construction, estimated to be

within two to three years. In order to protect grizzlies, the

Forest Service would permit only 46 vehicle round trips from

June 16 to September 15, and 38 round trips from September

16 to November 15, with unlimited access in the winter. Use

would be forbidden from April 1 to June 15.

B

Charles Harpole owns the 40-acre “Wayup Mine” tract,

consisting of two mining claims which the United States pat-

ented in 1903. Currently, a non-system primitive road off of

Forest Road 6746 (“FR 6746”) provides access. FR 6746 is

open year round to motorized traffic, but is in need of mainte-

nance and reconstruction. The Forest Service states that FR

6746 was built sometime between 1900 and 1930, and has not

been maintained for 30 years. The non-system road is 1.3

SKRANAK v. CASTENADA 13995

miles long and in need of significant work before it can be

used by motorized traffic.

Beginning in 1983, Harpole worked the mining claims epi-

sodically. During such times, the Forest Service allowed him

to have access but required that he obtain a permit. The Forest

Service has blocked access entirely during those periods in

which Harpole was not using it.

In 1995, after nearly a decade of inactivity, Harpole applied

for a special use permit under ANILCA to reconstruct and to

use FR 6746 and the non-system road. The Forest Service

considered the request and its potential effects on endangered

species, water quality, and recreation, among other concerns

and granted Harpole’s permit, but with conditions. Road con-

struction would only be permitted from June 16 to October 15

in each year. The Forest Service promised to issue an “ease-

ment” good for a ten-year period and renewable thereafter

upon completion of construction, estimated to be within two

to three years. In order to protect grizzlies, the Forest Service

would permit only 38 vehicle round trips from April 1 to June

15, 46 vehicle round trips from June 16 to September 15, and

38 vehicle round trips from September 16 to November 15,

with unlimited access in the winter.

C

Henry Skranak and Harpole appealed from the denial of

unconditional permits, complaining that the special use per-

mits either took or ignored their easements. They also com-

plained that they ought not to bear the cost of improving

Forest Service roads that would become accessible to the pub-

lic. The Forest Service denied their joint administrative

appeal.

At that point, the Skranaks (their father having died and

ownership of the Fourth-of-July tract having passed to them)

filed suit in district court to quiet title to an easement to the

13996 SKRANAK v. CASTENADA

Fourth-of-July tract under the Quiet Title Act and to challenge

the Forest Service’s permit as arbitrary and capricious under

the Administrative Procedure Act (“APA”). In a separate

action, Harpole raised similar Quiet Title Act and APA claims

with respect to the Wayup Mine.

On cross motions in the two respective actions, the district

court granted summary judgments in favor of the Forest Ser-

vice. The district court held that neither the Skranaks or Har-

pole had owned an easement under any theory; that if they

did, ANILCA had extinguished it; and, with respect to the

APA claims, that the conditions on the permits were reason-

able.

Harpole and the Skranaks have timely appealed.

II

[1] As the district court should have, we forbear any con-

sideration of the Skranaks’ and Harpole’s easement claims

under the Quiet Title Act until we determine whether we have

jurisdiction. The Skranaks and Harpole filed suit on those

claims on December 28, 2000. The Quiet Title Act contains

a 12-year statute of limitations. 28 U.S.C. § 2409a(g). There-

fore, the Skranaks’ and Harpole’s claims are barred if they

knew or should have known of the United States’ adverse

claim by December 28, 1988.

[2] Such bar is jurisdictional. The Quiet Title Act is a

waiver of sovereign immunity. If the statute of limitations has

run on a waiver of sovereign immunity, federal courts lack

jurisdiction. Block v. North Dakota, 461 U.S. 273, 292

(1983); see also Adams v. United States, 255 F.3d 787, 796

(9th Cir. 2001) (“Adams I”) (holding that a district court grant

of summary judgment to the government on a Quiet Title Act

claim was improper because the statute of limitations had run,

removing jurisdiction). Although the United States did not

move to dismiss the Quiet Title Act claim on statute of limita-

SKRANAK v. CASTENADA 13997

tions grounds below, jurisdictional bars cannot be waived by

the parties and may be addressed sua sponte. Humboldt

County v. United States, 684 F.2d 1276, 1280 (9th Cir. 1982).

Before reaching the merits, then, we must decide whether the

Skranaks and Harpole have actions to quiet title that accrued

before December 28, 1988.

A

[3] We have given significant guidance as to when a Quiet

Title Act statute of limitations begins running in McFarland

v. Norton, No. 03-35831, ___ F.3d at ___ (9th Cir. 2005). We

pointed out that the government, in its capacity as the owner

of the alleged servient tenement, has “the right to reasonable

use of its land,” and we concluded that “mild interference

with the use of an easement pursuant to the government’s own

property interests will not start the statute of limitations run-

ning.” Id. at ___. More importantly, we explained that federal

agencies like the Forest Service often have regulatory powers

over easements and other property interests, including, pre-

sumably, the ability to require permits and put conditions on

use. See, e.g., Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.

1994) (holding that 16 U.S.C. § 551 confers broad powers on

the Forest Service to regulate roads for the good of the for-

ests). Therefore, to avoid forcing landowners and the govern-

ment into “premature and often unnecessary suits” over title,

Michel, 65 F.3d at 132, we concluded that government “regu-

latory or supervisory actions, as opposed to those that deny

the easement’s existence, will not trigger the statute of limita-

tions.” McFarland, No. 03-35831, ___ F.3d at ___.

1

[4] Since the statute of limitations issue was not addressed

in the district court, the record is not well developed. Even on

the current scanty record, however, we are able to determine

that the Skranaks’ action to quiet title accrued before 1988.

By the 1940s, at the latest, the Forest Service had converted

13998 SKRANAK v. CASTENADA

the road into a trail usable only for hiking and riding.

Although merely barring the public’s vehicular access would

not have necessarily been inconsistent with the Skranaks’

predecessors-in-interest’s easement,2 affirmatively converting

the road to a trail barred not only the public’s vehicular access

but the owner’s use of the alleged easement as well. Because

converting the road to a trail barred access in a way that was

neither temporary nor obviously overcome by the securing of

a permit or special permission, the Skranaks’ predecessors-in-

interest should then have been put on notice. In addition,

Henry Skranak appears to have been well aware that the For-

est Service was adverse to his claimed right of access. In 2000

he stated that he “ha[d] been denied access to his property for

more than 39 years.” In a 1991 letter, he complained that

“[d]ue to the policy of the Department of Agriculture and the

Forest Service over the years, we have been barred out by

berms, Kelly ditches, arrests and fines.” Such was sufficient

to start the statute of limitations running and thus to defeat the

Skranaks’ ability to bring a quiet title action. Therefore, the

grant of summary judgment against the Skranaks on their

Quiet Title Act claim must be vacated and the district court

is instructed to dismiss for lack of jurisdiction.

2

[5] In Harpole’s case, what evidence there is tends to sug-

gest that previous restrictions on his access were consensually

negotiated, or at least were consistent with the Forest Service

acting in a regulatory capacity (i.e., requiring a permit for fur-

ther use), instead of in the capacity of a landowner claiming

exclusive rights.3 In 1983, when Harpole started making

2

In Park County, Mont. v. United States, 626 F.2d 718, 720-21 (9th Cir.

1980), we held that the County was on notice of the United States’ adverse

claim to the County’s easement when the United States closed a road to

the public. Though a County’s access cannot be meaningfully distin-

guished from the public’s access, an individual’s can.

3

Though less likely, it may also be that the Forest Service has aban-

doned and then reasserted claims of exclusive right. See Michel v. United

States, 65 F.3d 130, 132 (9th Cir. 1995).

SKRANAK v. CASTENADA 13999

repairs on the non-system road (it had not been used since at

least 1971), a forest ranger called him and agreed that he had

a “right of access” but told him he needed to request a special

use permit or file a plan of operations. Harpole and the ranger

“mutually agreed that the access [ ] created would be closed

by the Forest Service until [Harpole] had acquired a special

use permit.” In 1984, Harpole’s plan of operations was

approved, which allowed Harpole and a partner unlimited

access provided no one else was allowed access. In 1986, the

Forest Service wrote to Harpole indicating that, according to

“national policy,” the way for him to “assert[ ] rights of

access is through the special use permit process . . . .” Only

after a representative of Harpole’s Wayup Corporation

informed the Forest Service that same year that Harpole

would not need access for the “foreseeable future” did the

Forest Service install an earthen barrier. The record is silent

with respect to other prior and subsequent jurisdictional

events. In the district court, further development of the record

would be appropriate. See Berardinelli v. Castle & Cooke,

Inc., 587 F.2d 37, 39 (9th Cir. 1978) (directing district courts

to “make factual findings” necessary to inquiries into jurisdic-

tion and explaining that the factual determinations necessary

to resolve a statute of limitations claim are different from

those necessary to resolve the substantive claim); see also

Lombard v. United States, 194 F.3d 303, 309-13 (1st Cir.

1999) (remanding to the district court for a determination of

statute of limitation facts in a Quiet Title Act claim). There-

fore, the grant of summary judgment must be vacated. On

remand, the district court should develop the record to deter-

mine whether Harpole had notice that the Forest Service

asserted exclusive ownership before December of 1988.

III

The Skranaks and Harpole also challenge the Forest Ser-

vice’s ANILCA access permit on APA grounds. See 5 U.S.C.

§ 706. They claim that the Forest Service failed to comply

with its own regulation, 36 C.F.R. § 251.114(f), by refusing

14000 SKRANAK v. CASTENADA

to determine whether the Skranaks or Harpole already owned

easements.

A

[6] As with the Quiet Title Act claims, we must first con-

sider whether this court has jurisdiction. “[T]he APA waives

sovereign immunity for suits against federal officers in which

the plaintiff seeks nonmonetary relief. The APA, however,

does not waive immunity as to any claims which are expressly

or impliedly forbidden by ‘any other statute that grants con-

sent to suit.’ The Quiet Title Act . . . is such an act.” Metro.

Water Dist. of S. California v. United States, 830 F.2d 139,

143 (9th Cir. 1987) (citing Block v. North Dakota, 461 U.S.

273, 286 (1983)). For any easement claims that were resolved

in an administrative proceeding commenced 12 years or more

after the Skranaks or Harpole were on notice of the need to

quiet title, the district court has no jurisdiction. However,

though “[t]he statute limits the time in which a quiet title suit

against the United States can be filed, . . . . [it] does not pur-

port to effectuate a transfer of title. If a claimant has title to

a disputed tract of land, he retains title even if his suit to quiet

his title is deemed time-barred under § 2409a(f).” Block v.

North Dakota, 461 U.S. 273, 291 (1983). While Block would

bar judicial review of an agency’s resolution of state or com-

mon law property claims raised in an administrative proceed-

ing, Block does not bar the agency from resolving such claims

in the administrative proceeding itself. Neither does Block

prevent us from reviewing an agency’s failure to resolve such

claims. Because the Skranaks and Harpole only challenge the

Forest Service’s failure to resolve whether they had ease-

ments, the district court has jurisdiction to entertain a claim

under the APA.

B

[7] The Skranaks and Harpole claim that 36 C.F.R.

§ 251.114(f) requires the Forest Service to consider easement

SKRANAK v. CASTENADA 14001

claims in an application for an ANILCA access permit. That

regulation reads in relevant part: “the authorizing officer,

prior to issuing any access authorization, must also ensure that

(1) [t]he landowner has demonstrated a lack of any existing

rights or routes of access available by deed or under State or

common law . . . .” They further claim that the Forest Service

refused to address whether they owned a common law ease-

ment, in apparent contravention of this regulation.

The Skranaks and Harpole are correct that the Forest Ser-

vice refused to address whether they had common law ease-

ments. The Forest Service did determine, although cursorily,

that they did not have an easement under 43 U.S.C. § 932

(1938) (repealed) (known as “R.S. 2477”) (providing that “the

right-of-way for the construction of highways over public

lands, not reserved for public uses, is hereby granted”). The

Forest Service did not, however, address the Skranaks’ and

Harpole’s common law easement claims. The Forest Service

only responded that “it is not necessary to address whether

there may have been some common law right of access to the

private property prior to the passage of the ANILCA.”

The Skranaks’ and Harpole’s claim that such response vio-

lated 36 C.F.R. § 251.114(f) seems persuasive. See United

States v. Srnsky, 271 F.3d 595, 604 (4th Cir. 2001) (stating

that 36 C.F.R. § 251.114(f) appears to “contemplate exemp-

tions for individuals with preexisting access rights.”); United

States v. Jenks, 22 F.3d 1513, 1518 (10th Cir. 1994)

(“Although we leave it to the Forest Service to interpret [36

C.F.R. § 251.114(f)(1)], it appears that the Forest Service

itself recognizes that any deed or common law access rights

a landowner possesses may affect the terms of the permit or

play a role in the decision to issue a permit.”). Nevertheless,

we would normally give broad deference to the Forest Service

on the grounds that it best understands its own regulations.

See, e.g., Dep’t of Health & Human Serv. v. Chater, 163 F.3d

1129, 1134 (9th Cir. 1998).

14002 SKRANAK v. CASTENADA

We are persuaded that our normal deference to the Forest

Service does not require rejecting the Skranaks’ and Har-

pole’s reading of 36 C.F.R. § 251.114(f). When the Skranaks

and Harpole raised their reading of the regulation in their

administrative appeal, the Forest Service did not offer an

alternate interpretation of the regulation—or even mention it

at all—nor is their interpretation discernible from the reason-

ing found in the record. See Davis v. United States, 348 F.3d

772, 781 (9th Cir. 2003) (stating that agency decisions are

upheld under the APA “unless [a] thorough inspection of the

record reveals no rational basis for the agency’s action”). Per-

haps the Forest Service did not “entirely fail[ ] to consider an

important aspect of the problem,” Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43

(1983), but there is scant evidence in the record to suggest

otherwise. In any event, the Forest Service has put the matter

beyond question by conceding at oral argument that 36 C.F.R.

§ 251.114(f) does indeed require it to make an easement-

ownership determination.4

[8] Such interpretation of 36 C.F.R. § 251.114(f) poten-

tially puts the Forest Service position into conflict with

Adams I. In that case, interpreting ANILCA de novo, we held

that Congress meant (1) to make ANILCA permits the exclu-

sive means of access over Forest Service land and (2) to have

such access determined without respect to any existing ease-

ments. Id. at 1259 (“Although the Adamses may have [an

easement by necessity] under common law, we need not ana-

lyze this issue. . . . Common law rules are applicable only

when not preempted by statute. Congress has affirmatively

spoken in this area through [ANILCA].”); see also Adams v.

United States, 255 F.3d 787, 794 (9th Cir. 2001) (“Adams II”)

(explaining that “Adams I clearly stated that . . . common law

claims are preempted by ANILCA”). However, as the agency

tasked with administering ANILCA, the Forest Service is not

4

The Forest Service argued that it had in fact done so. As we explain

above, such is not the case.

SKRANAK v. CASTENADA 14003

bound to interpret the statute the same way we have when

considering it de novo. See Nat’l Cable & Telecommunica-

tions Ass’n v. Brand X Internet Services, 125 S.Ct. 2688,

2700-01 (2005) (holding that agency interpretations are owed

Chevron or other appropriate deference unless a prior court

decision has unambiguously held that the statute’s meaning is

incompatible with the agency’s interpretation). The Supreme

Court has explained that a “prior judicial construction of a

statute trumps an agency construction otherwise entitled to

Chevron deference only if the prior court decision holds that

its construction follows from the unambiguous terms of the

statute and thus leaves no room for agency discretion.” Id. at

2700. Since Adams I and Adams II did not hold that ANILCA

was unambiguous nor that their interpretation of it left no

room for agency discretion, we must give the Forest Service’s

regulation the same Chevron deference as we would had

Adams I and Adams II never addressed the topic. Id.

[9] We defer to 36 C.F.R. § 251.114(f) as an interpretation

of ANILCA as long as its interpretation is based on a permis-

sible construction of the statutory language. See Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 (1984). The relevant provision of ANILCA

reads as follows:

Notwithstanding any other provision of law, and

subject to such terms and conditions as the Secretary

of Agriculture may prescribe, the Secretary shall

provide such access to nonfederally owned land

within the boundaries of the National Forest System

as the Secretary deems adequate to secure to the

owner the reasonable use and enjoyment thereof:

Provided, That such owner comply with rules and

regulations applicable to ingress and egress to or

from the National Forest System.

16 U.S.C. § 3210(a). Because ANILCA does not expressly

refer to pre-existing easements, the Forest Service is free to

14004 SKRANAK v. CASTENADA

interpret it as creating a means of access for those who do not

own pre-existing easements at all or as requiring that pre-

existing easements be taken into consideration in determining

the scope of access granted. This is especially so in light of

the Senate Report indicating that ANILCA was meant to

increase rather than decrease access. See S. Rep. No. 413,

96th Cong., 2d Sess. 1,310, reprinted in 1980 U.S.C.C.A.N.

5070, 5254 (indicating concern that the Secretary of Interior

had made access less certain). In any event, we are reluctant

to hold unreasonable agency interpretations of statutes that

show restraint with respect to pre-existing common-law prop-

erty interests. See United States v. Texas, 507 U.S. 529, 534

(1993) (stating as a rule of construction that “[s]tatutes which

invade the common law . . . are to be read with a presumption

favoring the retention of long-established and familiar princi-

ples” (internal quotation marks and citation omitted)); cf. Cal-

ifornia State Legislative Bd., United Transp. Union v. Dep’t

of Transp., 400 F.3d 760, 764 (9th Cir. 2005) (deferring to an

agency’s interpretation of a statute that showed respect for

federalism principles). We conclude that the Forest Service

must be held to 36 C.F.R. § 251.114(f)’s requirement that an

easement determination be made.

[10] It follows that in refusing to determine whether the

Skranaks and Harpole had easements permitting them access,

the Forest Service violated its own regulations. The district

court’s summary judgment on the APA claim in favor of the

Forest Service was inappropriate and must be reversed.

IV

The district court’s grant of summary judgment with

respect to the Quiet Title Act claims is vacated; the Skranaks’

claim is remanded with instructions to dismiss for lack of

jurisdiction and Harpole’s claim is remanded for further pro-

ceedings consistent with this opinion. The district court’s

SKRANAK v. CASTENADA 14005

grant of summary judgment with respect to the APA claims

is reversed.

VACATED IN PART, REVERSED IN PART, AND

REMANDED.