Kingman Reef Atoll v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KINGMAN REEF ATOLL INVESTMENTS, 

L.L.C.,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; No. 07-16817

UNITED STATES DEPARTMENT OF THE

INTERIOR; GALE A. NORTON,  D.C. No.

CV-05-00151-JMS

Secretary of the Interior; UNITED

OPINION

STATES FISH AND WILDLIFE SERVICE;

STEVEN A. WILLIAMS, in his official

capacity as Director of the US

Fish & Wildlife Service,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, District Judge, Presiding

Argued and Submitted

June 20, 2008—Honolulu, Hawaii

Filed September 4, 2008

Before: Alfred T. Goodwin, Pamela Ann Rymer, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

12201

KINGMAN REEF v. UNITED STATES 12205

COUNSEL

Therese Y. Cannata (argued), Michael M. Ching, and Carolyn

A. Johnston of Cannata, Ching & O’Toole LLP, San Fran-

cisco, California, Christian P. Porter and Donna H. Yama-

moto of Brooks Tom Porter & Quitquit LLP, Honolulu,

Hawaii, and Jon M. Van Dyke, Honolulu, Hawaii, for the

plaintiff-appellant.

Allen M. Brabender (argued), David C. Shilton, and Donna

Fitzgerald, Attorneys, Environmental and Natural Resources

Division, United States Department of Justice, and Ronald J.

Tenpas, Assistant Attorney General, for the defendants-

appellees.

OPINION

IKUTA, Circuit Judge:

Kingman Reef Atoll Investments, LLC (KRAI), filed this

action against various United States departments and officers

12206 KINGMAN REEF v. UNITED STATES

in their official capacities (collectively, the “United States”),

pursuant to the Quiet Title Act (QTA), 28 U.S.C. § 2409a.

KRAI seeks to quiet title to Kingman Reef, a small, low-lying

coral reef atoll located approximately 930 miles south of

Honolulu, Hawaii. The district court dismissed KRAI’s claim

for lack of subject matter jurisdiction. We affirm, because

KRAI’s predecessor knew or should have known of the claim

of the United States more than twelve years prior to KRAI’s

filing of the complaint in this case, and KRAI has failed to

demonstrate that the United States has clearly and unequivo-

cally abandoned its claim of interest in Kingman Reef.

I

“Kingman Reef is a low-lying, coral reef atoll comprised of

small emergent land spits and partially exposed coral reefs

that surround a deep central lagoon, located approximately

930 miles south of Honolulu, Hawaii.” Kingman Reef Atoll

Invs., L.L.C. v. United States, 545 F. Supp. 2d 1103, 1105 (D.

Haw. 2007). Kingman Reef’s only dry land consists of coral

rubble and marine shells sitting less than two meters above

sea level at its highest point, making it unfit for human habita-

tion. See id.

The first reported Western contact at Kingman Reef was by

an American whaler in 1798; eponymous Captain W.E. King-

man later visited the reef in 1853. Id. The U.S. Guano Com-

pany claimed the reef in 1860, although there is no evidence

that guano existed or was ever mined there.

KRAI’s interest in Kingman Reef dates to 1922, when an

employee of the Island of Palmyra Copra Company claimed

Kingman Reef in the name of the United States for his

employer to use as a fishing base. Id. The Palmyra Copra

Company purported to cede Kingman Reef to the Fullard-Leo

family that same year.1 On October 5, 1932, a member of the

1

The Fullard-Leo family transferred its interest in Kingman Reef to

KRAI on November 17, 2000.

KINGMAN REEF v. UNITED STATES 12207

Fullard-Leo family approached United States officials in

Oahu to inquire whether he could sell various islands includ-

ing Kingman Reef to foreign buyers and whether the United

States wished to purchase the islands instead. Thereafter, the

United States, by the Navy and State Department, began to

investigate whether Kingman Reef was a sovereign territory

of the United States and, if so, whether it was owned by the

United States or by the Fullard-Leo family. By a memoran-

dum of November 7, 1934, a legal advisor of the State

Department advised that “it might be well for this Govern-

ment to take some affirmative action to show definitely that

[Kingman Reef] is a part of the territory of the United States.

The mere mention of it in an Act of Congress as American

territory would be sufficient.”

President Roosevelt issued Executive Order 6935 on

December 29, 1934. Kingman Reef, 545 F. Supp. 2d at 1105.

The order states:

By virtue of and pursuant to the authority vested in

me by the act of June 25, 1910 [the Pickett Act], and

as President of the United States, it is ordered that

. . . Kingman Reef . . . [is] hereby, reserved, set

aside, and placed under the control and jurisdiction

of the Secretary of the Navy for administrative pur-

poses . . . . This order shall continue in full force and

effect unless and until revoked by the President or by

act of Congress.

Exec. Order No. 6935. The Pickett Act, referenced in the

order, permitted the President, “at any time in his discretion,

[to] temporarily withdraw from settlement, location, sale, or

entry any of the public lands of the United States . . . and

reserve the same for . . . public purposes to be specified in the

orders of withdrawals.” Pickett Act of June 25, 1910, Ch. 421,

36 Stat. 847.2

2

Although the Pickett Act has been repealed, all withdrawals effected

under the act “remain in full force and effect until modified” under the

12208 KINGMAN REEF v. UNITED STATES

Following President Roosevelt’s issuance of Executive

Order No. 6935 in 1934, Leslie and Ellen Fullard-Leo wrote

to Samuel Wilder King, who was then serving in the United

States House of Representatives as a delegate from the terri-

tory of Hawaii. In their April 20, 1937 letter, the Fullard-Leos

acknowledged that Kingman Reef’s “ownership presumably

rests with the State or Navy Department,” and requested com-

pensation only for the cost of sending their boat to Kingman

Reef “together with taxes and accrued interest over a period

of fifteen years.” Samuel Wilder King forwarded this request

to Claude A. Swanson, Secretary of the Navy, who replied in

a letter dated May 29, 1937 that “[t]he records of the Navy

Department do not indicate that there were any vested rights

on Kingman Reef in favor of private interests on the date of

the issuance of th[e] Executive Order [6935].” On March 29,

1938, attorneys representing the Fullard-Leos sent a letter to

Secretary Swanson, acknowledging the Navy’s position that

the family did not own Kingman Reef, and threatening legal

action to establish such ownership. See Kingman Reef, 545 F.

Supp. 2d at 1107. By letter of April 26, 1938, G. J. Rowcliff,

the Judge Advocate General of the Navy, rebuffed the fami-

ly’s claim of ownership over Kingman Reef. Rowcliff stated:

It will be noted that the island, including its reefs and

tide and submerged lands, was under the control and

jurisdiction of the United States long before the

claim of Mrs. Fullard-Leo arose, and by Executive

Order No. 6935, dated December 29, 1934, it was

placed under the control and jurisdiction of the Navy

Department. Under the circumstances, the showing

made is not sufficient to uphold the claim of Mrs.

Fullard-Leo.

Id.

Federal Land Policy and Management Act of 1976 or some other law. See

Pub. L. No. 94-579 §§ 701(c), 704(a), 90 Stat. 2743, 2786, 2792; Kingman

Reef, 545 F. Supp. 2d at 1106.

KINGMAN REEF v. UNITED STATES 12209

On February 14, 1941, President Roosevelt issued another

executive order establishing a “Kingman Reef Naval Defen-

sive Sea Area.” Exec. Order No. 8682, amended by Exec.

Order 8729. This Executive Order established that “[a]t no

time shall any person, other than persons on public vessels of

the United States, enter [the Kingman Reef area],” and dele-

gated enforcement of the order to the Secretary of the Navy.

Id. The Navy subsequently promulgated regulations restrict-

ing access to Kingman Reef. See 32 C.F.R. § 761.3(a)(2)(v),

(b)(2).

In the fifty years after World War II, both the United States

Navy and representatives of the Fullard-Leo family purported

to grant third party requests to visit or fish at Kingman Reef.

See Kingman Reef, 545 F. Supp. 2d at 1107-08. For example,

KRAI submitted a declaration from a private citizen stating

his impression that “the community of sailors and fishermen

in Honolulu . . . . knew that . . . Kingman Reef belonged to

the Fullard-Leo family because of the way they took care of

[it] and protected [it] at their expense,” and that only the

Fullard-Leo family could grant permission to travel to and

fish at Kingman Reef. The record contains several other dec-

larations of similar import.

At the same time, the Navy also asserted its authority to

grant access to Kingman Reef. A July 27, 1973 letter from

Senator Hiram Fong, and a Navy memorandum of August 2,

1973, both in response to the request of a private citizen seek-

ing “permission to fish on and about Kingman Reef,” indicate

that permission to travel to and fish at Kingman Reef could

be granted only by the Navy.

The issue of rightful ownership of Kingman Reef came into

greater focus in the 1990s, when the United States Fish and

Wildlife Service (an agency within the Department of the

Interior) began to consider acquiring Kingman Reef and

nearby Palmyra Atoll (owned by the Fullard-Leo family) for

the purpose of establishing a National Wildlife Refuge. See

12210 KINGMAN REEF v. UNITED STATES

id. at 1108-09. The Fish and Wildlife Service’s preliminary

investigations into acquiring the reef indicated its initial

understanding that the Fullard-Leos owned the reef. For

example, an internal Fish and Wildlife Service document

from August 1997 states:

Kingman Reef was annexed on behalf of the United

States in 1922, by the Palmyra Copra Company

(Fullard-Leo Family), and the family claims owner-

ship. It is an unincorporated U.S. possession admin-

istered by the U.S. Department of the Navy. The

Service is proposing to study fee title acquisition of

Kingman Reef from the center of the atoll to the 3-

nautical mile limit.

Consistent with this understanding, Fish and Wildlife Service

employees obtained the Fullard-Leos’ permission to access

the reef, and signed indemnity and waiver agreements

requested by the Fullard-Leo family. However, an August 6,

1998 confidential internal memorandum from a high-ranking

Department of the Interior staff member to the Secretary indi-

cated uncertainty as to who owned Kingman Reef. The mem-

orandum noted that “[t]he owners of Palmyra also claim

ownership of Kingman Reef, but the United States disputes

this claim,” and raised the possibility that the Department of

the Interior could obtain ownership over Kingman Reef

through “an agreement [to transfer the island from] the

Department of Defense.”3 On August 25, 2000, the Fish and

3

In addition to these communications from the Department of Interior,

KRAI notes several other documents indicating various government

employees’ understanding that the Fullard-Leos claimed ownership to

Kingman Reef. For example, a letter dated August 12, 1997, from a Con-

gressional staffer to the House Resources Committee to an agent of the

Fullard-Leos, thanked the agent for “sending the information clarifying the

rightful title of the Fullard-Leo’s [sic] to Palmyra and Kingman Reef” and

stated that “[t]he brief is well documented regarding the basis for clear

title to the entire area of Palmyra and Kingman, including surrounding

reefs.” In addition, the General Counsel of National Oceanic and Atmo-

KINGMAN REEF v. UNITED STATES 12211

Wildlife Service obtained control and jurisdiction over King-

man Reef through a no-cost transfer from the Department of

the Navy. The Secretary of the Interior established the King-

man Reef National Wildlife Refuge on January 18, 2001. See

Kingman Reef, 545 F. Supp. 2d at 1109.

On March 4, 2005, KRAI brought this action to quiet title

to Kingman Reef under 28 U.S.C. § 2409a. On June 4, 2007,

the United States filed a motion for dismissal for lack of sub-

ject matter jurisdiction and for failure to state a claim, Fed. R.

Civ. P. 12(b)(1), (6), and for summary judgment. Fed. R. Civ.

P. 56. Holding that the action was untimely under the twelve-

year limitations period established by 28 U.S.C. § 2409a(g),

the district court dismissed the complaint for lack of subject

matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). This

appeal followed.

II

The question whether subject matter jurisdiction exists is

one of law that we review de novo. United States v. Peninsula

Commc’ns, Inc., 287 F.3d 832, 836 (9th Cir. 2002). Unless

the jurisdictional issue is inextricable from the merits of a

case, the court may determine jurisdiction on a motion to dis-

miss for lack of jurisdiction under Rule 12(b)(1) of the Fed-

eral Rules of Civil Procedure. Roberts v. Corrothers, 812 F.2d

1173, 1177 (9th Cir. 1987). Under Rule 12(b)(1):

the district court is free to hear evidence regarding

jurisdiction and to rule on that issue prior to trial,

resolving factual disputes where necessary. In such

spheric Administration indicated in a letter dated October 17, 1997 to the

Executive Director of the Western Pacific Regional Fishery Management

Council (in the context of discussing the jurisdiction of the Department of

the Interior over commercial bottom fishing activities) that the Fullard-

Leo family owned Kingman Reef.

12212 KINGMAN REEF v. UNITED STATES

circumstances, no presumptive truthfulness attaches

to plaintiff’s allegations, and the existence of dis-

puted material facts will not preclude the trial court

from evaluating for itself the merits of jurisdictional

claims.

Id. (internal quotation marks and alterations omitted). A dis-

trict court’s findings of fact relevant to its determination of

subject matter jurisdiction are reviewed for clear error. Penin-

sula Commc’ns, 287 F.3d at 836. When “the accrual of the

statute of limitations in part turns on what a reasonable person

should have known, we review this mixed question of law and

fact for clear error.” Rose v. United States, 905 F.2d 1257,

1259 (9th Cir. 1990); see also Shultz v. Dep’t of Army, 886

F.2d 1157, 1159 (9th Cir. 1989). Because estoppel is an equi-

table concept requiring the exercise of the district court’s dis-

cretion, we review “the district court’s rejection of appellants’

equitable estoppel argument under the abuse of discretion

standard.” Hoefler v. Babbitt, 139 F.3d 726, 727 (9th Cir.

1998).

III

[1] The Quiet Title Act of 1972, 28 U.S.C. § 2409a, waives

the federal government’s sovereign immunity to certain civil

actions by plaintiffs seeking to quiet title to property in which

the United States claims an interest. Section 2409a(a) pro-

vides, in pertinent part:

The United States may be named as a party defen-

dant in a civil action under this section to adjudicate

a disputed title to real property in which the United

States claims an interest, other than a security inter-

est or water rights.

[2] The QTA’s waiver of sovereign immunity is subject to

numerous exceptions and restrictions, including a statute of

limitations. Section 2409a(g) provides:

KINGMAN REEF v. UNITED STATES 12213

Any civil action under this section, except for an

action brought by a State, shall be barred unless it is

commenced within twelve years of the date upon

which it accrued. Such action shall be deemed to

have accrued on the date the plaintiff or his pre-

decessor in interest knew or should have known of

the claim of the United States.

In this case, KRAI argues that the district court erred in dis-

missing KRAI’s civil action on the ground that the action was

time barred, and in holding that such time bar deprived the

court of subject matter jurisdiction to hear KRAI’s action.

A

[3] KRAI argues first that the QTA’s limitations period is

not a jurisdictional limitation on a court’s authority. We dis-

agree. The running of the twelve-year limitations period

deprives the federal courts of “jurisdiction to inquire into the

merits” of an action brought under the QTA. Block v. North

Dakota, 461 U.S. 273, 292 (1983); Fidelity Exploration and

Prod. Co. v. United States, 506 F.3d 1182, 1186 (9th Cir.

2007). KRAI contends that Block’s jurisdictional ruling has

been superceded by subsequent decisions of the Supreme

Court holding that statutes of limitation and other require-

ments for bringing a claim under certain federal statutes (not

including the QTA) are not jurisdictional and therefore waiv-

able. See generally Arbaugh v. Y&H Corp., 546 U.S. 500,

511-14 (2006) (holding that a statutory requirement in 42

U.S.C. §§ 2000e, 2000e-5(f) was an element of a cause of

action rather than a jurisdictional requirement); Scarborough

v. Principi, 541 U.S. 401, 413-14, 420-21 (2004) (holding that

a pleading requirement in the Equal Access to Justice Act was

not jurisdictional and was therefore curable through subse-

quent amendment); Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 95-96 (1990) (holding that the time limits established

by 42 U.S.C. § 2000e-16(c) for suits by federal employees

against their government employers are not jurisdictional

12214 KINGMAN REEF v. UNITED STATES

because “the same rebuttable presumption of equitable tolling

applicable to suits against private defendants should also

apply to suits against the United States.”). KRAI’s reliance on

these cases is to no avail, because we are bound by our more

recent decision in Fidelity Exploration and Prod. Co. v.

United States, 506 F.3d 1182, 1186 (9th Cir. 2007), which

reaffirmed Block’s jurisdictional holding in the QTA context.

As we noted in Fidelity, in the absence of any Supreme Court

decision overruling Block, “we must follow the Supreme

Court precedent that directly controls, leaving to the Court the

prerogative of overruling its own prior decisions.” 506 F.3d

at 1186 (citing Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989)).

Moreover, the Supreme Court’s recent decisions have also

upheld “[j]urisdictional treatment of statutory time limits.”

Bowles v. Russell, 127 S. Ct. 2360, 2364-66 (2007). Bowles

held that the provisions of 28 U.S.C. § 2107 governing the

deadline for filing notices of appeal are “jurisdictional” and

cannot be tolled. Id. More recently, John R. Sand & Gravel

Co. v. United States rejected the argument that Irwin permits

equitable tolling of all statutes of limitation on suits against

the government, and held that the Federal Court of Claims’

timeliness requirements were jurisdictional. 128 S. Ct. 750,

753-56 (2008). Thus, Gravel Co. forecloses KRAI’s argument

that Irwin created a general rule superceding Block’s holding

as to the jurisdictional nature of the QTA’s twelve-year limi-

tations period. Nor can we accept KRAI’s argument that Irwin

and its progeny require us to reexamine Congress’s intent in

creating the twelve-year limitations period. The Supreme

Court has already held that Congress intended the QTA’s lim-

itations period to serve interests of finality, and therefore it

may not be tolled. See Block, 461 U.S. at 283-85; United

States v. Beggerly, 524 U.S. 38, 49 (1998).

[4] KRAI next argues that the district court erred in dis-

missing the action on statute of limitations grounds under

Rule 12(b)(1) because the statute of limitations issue was

KINGMAN REEF v. UNITED STATES 12215

intermeshed with the ownership issue. We disagree. In gen-

eral, a district court is permitted to resolve disputed factual

issues bearing upon subject matter jurisdiction in the context

of a Rule 12(b)(1) motion unless “the jurisdictional issue and

the substantive issues are so intermeshed that the question of

jurisdiction is dependent on decision of the merits.” Thornhill

Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 735

(9th Cir. 1979); accord Augustine v. United States, 704 F.2d

1074, 1077 (9th Cir. 1983).

[5] Here, the question whether this action was timely was

not inextricably intertwined with the ultimate merits issue of

ownership. As the district court correctly noted, “[t]he crucial

issue in the statute of limitations inquiry is whether the plain-

tiff had notice of the federal claim, not whether the claim

itself is valid.” Kingman Reef, 545 F. Supp. 2d at 1111 (inter-

nal quotation marks omitted). Thus, the district court properly

addressed the jurisdictional issue of timeliness in the context

of Rule 12(b)(1).

Finally, KRAI argues that the district court erred by requir-

ing KRAI to carry the burden of establishing that its claim

was timely. To support its argument that the United States

bore the burden to establish an absence of jurisdiction in this

case, KRAI cites to legislative history, in particular, a House

of Representatives committee report recounting the Justice

Department’s statement that “if the United States wished to

assert that the statute of limitation had run, it would then have

the burden of establishing this fact.” H.R. Rep. No. 92-1559

(1978), reprinted in 1972 U.S.C.C.A.N. 4547, 4551. Although

ordinarily the defendant bears the burden of proving an affir-

mative statute of limitations defense, here the statute of limi-

tations is jurisdictional, and, “[w]hen subject matter

jurisdiction is challenged under Federal Rule of Procedure

12(b)(1), the plaintiff has the burden of proving jurisdiction

in order to survive the motion.” Tosco Corp. v. Comtys. for

a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001). However,

we need not determine who bears the burden of proving time-

12216 KINGMAN REEF v. UNITED STATES

liness for purposes of the QTA, because, as discussed below,

the evidence overwhelmingly establishes that more than

twelve years elapsed since the Fullard-Leos’ claim accrued.

See Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

1551, 1558 (9th Cir. 1991).

B

[6] An action brought under the QTA “accrues when the

landowner or his predecessors-in-interest knew or should

have known of the United States’ claim.” Shultz, 886 F.2d at

1158; see 28 U.S.C. § 2409a(g). The QTA’s “statute of limita-

tions applies retroactively,” so it is irrelevant whether KRAI’s

predecessors in interest, the Fullard-Leo family, was put on

notice of the United States’s interest before or after the enact-

ment of the QTA. Donnelly v. United States, 850 F.2d 1313,

1318 (9th Cir. 1988) (citing Block, 461 U.S. at 284).

[7] The record makes clear that the Fullard-Leos had actual

notice that the United States claimed an interest in Kingman

Reef more than twelve years prior to the filing of the com-

plaint in this case. As noted above, in their April 20, 1937 let-

ter, the Fullard-Leos acknowledged that Kingman Reef’s

“ownership presumably rests with the State or Navy depart-

ment.” Kingman Reef, 545 F. Supp. 2d at 1106. When the

Fullard-Leos subsequently threatened the Navy with legal

action to establish their ownership interest, the Navy

expressly rejected their claim by letter of April 26, 1938, con-

cluding that the evidence was “not sufficient to uphold the

claim of Mrs. Fullard-Leo” to Kingman Reef. Id. at 1107.

These communications between the Fullard-Leos and the

Navy Department demonstrate conclusively that KRAI’s

“predecessor in interest knew or should have known of the

claim of the United States” by April 26, 1938, at the latest.

§ 2409a(g); see Michel v. United States, 65 F.3d 130, 132 (9th

Cir. 1995).

KINGMAN REEF v. UNITED STATES 12217

[8] KRAI argues that the Fullard-Leos’ correspondence

with the United States Navy did not cause its claim to accrue

for purposes of § 2409a(g) because “[a]ny claim that the gov-

ernment derived ownership of Kingman from either the

Guano Act4 or the 1934 [Executive] Order would have made

no sense to any person.” KRAI’s attack upon the ultimate

validity of the United States’s claim does not overcome the

fact that its QTA claim “accrued on the date the plaintiff or

his predecessor in interest knew or should have known of the

claim of the United States.” § 2409a(g). It is irrelevant

whether the United States’s justifications for rebuffing the

Fullard-Leos’ claims of ownership and rejecting requests for

compensation were meritorious; the QTA limitations period

accrues as soon as the United States makes a “claim that

creates even a cloud on” a plaintiff’s ownership interest. See

Michel, 65 F.3d at 132; California ex rel. State Land Comm’n

v. Yuba Goldfields, Inc., 752 F.2d 393, 396 (9th Cir. 1985);

see also Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 738

(8th Cir. 2001) (“The government’s claim need not be clear

and unambiguous. . . . All that is necessary is a reasonable

awareness that the Government claims some interest adverse

to the plaintiff’s.”) (internal quotation marks omitted).

Regardless of the merits of the United States’s claim to King-

man Reef, the Fullard-Leos’ acknowledgment that the United

States claimed ownership of the reef is sufficient for their

claim to accrue under the QTA.

[9] Because KRAI’s claim accrued as of April 26, 1938, the

federal court would lack subject matter jurisdiction as of April

27, 1950, absent some exception to the statute of limitations

in § 2409a(g). See Block, 461 U.S. at 284; Donnelly, 850 F.2d

at 1318.

4

The Guano Islands Act authorizes the President to “consider[ ] as

appertaining to the United States” any unclaimed island “[w]henever any

citizen of the United States discovers a deposit of guano” thereon. 48

U.S.C. § 1411.

12218 KINGMAN REEF v. UNITED STATES

C

KRAI argues that even if its predecessors in interest should

have known that the United States had claimed an interest in

Kingman Reef at one time, the United States subsequently

abandoned that interest and the statute of limitations under the

QTA has not run on any new claim to Kingman Reef asserted

by the United States. In support of its argument that the

United States abandoned its interest in Kingman Reef during

the period between 1938 and December 11, 2000 (the date the

United States established the Kingman Reef National Wildlife

Refuge), KRAI relies on two types of evidence: evidence that

the United States did not restrict access to Kingman Reef, see

Shultz, 886 F.2d at 1159, and evidence that government

employees agreed that the Fullard-Leos owned the reef, see

Michel, 65 F.3d at 132-33.

First, KRAI notes that Navy employees did not restrict the

public’s access to Kingman Reef. For example, Navy employ-

ees obtained the Fullard-Leos’ permission to access the reef,

instructed members of the public to contact the Fullard-Leos

for permission to enter, and indicated a belief that the regula-

tions restricting access to the reef area had been suspended.

KRAI relies on Shultz for the proposition that these actions

constituted abandonment of the United States’s claim of inter-

est in Kingman Reef. In Shultz, we held that the plaintiffs’

claim under the QTA to quiet title to plaintiffs’ easement over

a road adjacent to a federal military base originally accrued

when Shultz had reasonable notice that the government

denied Shultz’s right of access to the road. If this denial had

occurred more than twelve years before Shultz brought his

claim, Shultz’s action would have been time barred unless,

after the claim accrued, “the government’s failure to restrict

access to the base . . . led Shultz or his predecessors-in-

interest reasonably to believe that the government did not

continue to claim an interest in the roadway.” 886 F.2d at

1161. In other words, if the United States stopped denying

KINGMAN REEF v. UNITED STATES 12219

Shultz access to the use of the road, Shultz could have reason-

ably believed that the United States had abandoned its claim

to exclusive use of the road. In such a case of abandonment,

Shultz’s claim would accrue “when the government reasserted

a claim,” not when the government originally denied Shultz’s

access. Id.

[10] As the district court noted, however, Shultz does not

apply directly to this case, because KRAI is asserting an own-

ership interest over government property, which is different

from a plaintiff’s claim of an easement. See, e.g., McFarland

v. Norton, 425 F.3d 724, 726-27 (9th Cir. 2005); Warren v.

United States, 234 F.3d 1331, 1337 (D.C. Cir. 2000) (citing

Michel, 65 F.3d at 132). Even if a reasonable plaintiff could

believe that the United States had abandoned its claim that the

plaintiff did not have an easement over government property

by allowing the plaintiff access to the property, see Shultz,

886 F.2d at 1161, a reasonable plaintiff could not believe that

the United States had abandoned its claim of a possessory

interest in public lands merely because it failed to enforce

restrictions upon public access. See Warren, 234 F.3d at

1337-38. It is well established that the United States does not

abandon its claims to property by inaction. See United States

v. California, 332 U.S. 19, 40 (1947). As the Supreme Court

explained:

The Government, which holds its interests here as

elsewhere in trust for all the people, is not to be

deprived of those interests by the ordinary court

rules designed particularly for private disputes over

individually owned pieces of property; and officers

who have no authority at all to dispose of Govern-

ment property cannot by their conduct cause the

Government to lose its valuable rights by their acqui-

escence, laches, or failure to act.

Id. Nor can the United States lose property rights through

adverse possession. See United States v. Pappas, 814 F.2d

12220 KINGMAN REEF v. UNITED STATES

1342, 1343 n.3 (9th Cir. 1987) (“One cannot gain title to land

of the United States through adverse possession.”); see also

§ 2409a(n) (precluding QTA “suits against the United States

based upon adverse possession”). In light of these settled prin-

ciples, the Fullard-Leos could not have reasonably construed

the United States’s failure to exclude the public from King-

man Reef as an abandonment of its claim of interest. See

Kingman Reef, 545 F. Supp. 2d at 1114 n.10. We must there-

fore reject KRAI’s first argument that the failure of Navy

employees to restrict the public’s access to Kingman Reef

evidences an abandonment of the government’s claim.

Second, KRAI notes actions by various government

employees that are consistent with KRAI’s claim of owner-

ship. For example, a number of Navy and Fish and Wildlife

Service employees either acknowledged the Fullard-Leos’

ownership explicitly or implied such ownership through

offers to purchase the reef. KRAI relies on Michel for the

argument that government employees’ acknowledgment that

the Fullard-Leos owned Kingman Reef constituted an aban-

donment of the United States’s claim. See 65 F.3d at 133. In

Michel, we considered the Michels’ claimed access easement

through a national wildlife refuge and held that the Michels’

claim accrued when “the Michels knew or should have known

the government claimed the exclusive right to deny their his-

toric access to the trails and roads across the refuge.” Id. at

132. Although the district court concluded that the Michels

knew of the governments’ denial of access more than twelve

years before the Michels brought their claim, we concluded

there was evidence that the government had abandoned and

then reasserted its claim. Specifically, we held a letter from

the government to the Michels acknowledging their “ ‘historic

right of access’ appears to abandon any previously asserted

claim of exclusive control of that right.” Id. at 133. We also

held that an agreement between the Michels and the govern-

ment that allowed access by the Michels as agreed to in the

earlier letter “could be construed as an abandonment of the

KINGMAN REEF v. UNITED STATES 12221

government’s claim that it had the exclusive right to control

access.” Id.

KRAI argues that the actions and communications by gov-

ernment employees evidencing their belief that the Fullard-

Leo family owned Kingman Reef are analogous to the letter

and agreement in Michel, and “could be construed as aban-

donment of the government’s claim” of a property interest in

Kingman Reef. We disagree. As we explained in Shultz, the

key inquiry is whether these actions and communications

would give KRAI or its predecessors in interest “reason to

believe the government did not continue to claim an interest”

in the property. 886 F.2d at 1161. In Michel, the property

interest at stake was not the government’s ownership interest

in the property, but merely the right to deny the Michels’

claimed access easement. Moreover, the government had

issued the Michels both a letter and a signed agreement

expressly recognizing their “historic right of access.” Michel,

65 F.3d at 133. Under these circumstances, a reasonable per-

son could believe that the United States had abandoned its

denial of the plaintiffs’ easement right.

[11] By contrast, where the United States’s claim of interest

in property stems from formal actions of the legislative or

executive branch, a person could not reasonably conclude that

informal remarks of agency personnel or internal agency

memoranda could eliminate the cloud upon the property’s

title. See Spirit Lake Tribe, 262 F.3d at 741-42 (holding that

an informal opinion memorandum by an Associate Solicitor

in the Department of Interior did not establish abandonment

because “intra-office memoranda do not bind the govern-

ment”). In a real estate transaction, a reasonable prospective

purchaser intending to buy property free of any clouds on the

title would require clear evidence that all adverse claims of

ownership had been relinquished, as documented by a person

with appropriate authority, and would not rely on informal let-

ters and memos from low-level employees.

12222 KINGMAN REEF v. UNITED STATES

[12] Our conclusion that some more formal step by the

United States was necessary to give KRAI “reason to believe

the government did not continue to claim an interest” in the

property, Shultz, 886 F.2d at 1161, is consistent with the QTA

itself, which established a formal method for the United States

to disclaim any interest in property, specifically by filing such

a disclaimer with the court. See 28 U.S.C. § 2409a(e).5 As

§ 2409a(e) makes clear, Congress did not deem unofficial

statements by government officials to be sufficient to elimi-

nate the United States’s claim of interest in property and to

thus deprive the district court of jurisdiction under the QTA.

Therefore, we agree with the Eighth Circuit that the United

States cannot be deemed to have abandoned a claim of owner-

ship for purposes of § 2409a(g) unless it “clearly and

unequivocally abandons its interest,” Spirit Lake Tribe, 262

F.3d at 739, as evidenced by documentation from a govern-

ment official with authority to make such decisions on behalf

of the United States.

[13] Here, there is no evidence in the record that an appro-

priate government official clearly and unequivocally aban-

doned the United States’s interest in Kingman Reef. The

district court found that KRAI presented evidence only “of

confusion and mistake on the part of some government

employees,” as to whether the United States ultimately pos-

sessed an ownership interest in Kingman Reef, Kingman Reef,

545 F. Supp. 2d at 1114 n.11, and this conclusion is not

clearly erroneous. The government has not rescinded the

5

Section 2409a(e) of the QTA provides:

If the United States disclaims all interest in the real property or

interest therein adverse to the plaintiff at any time prior to the

actual commencement of the trial, which disclaimer is confirmed

by order of the court, the jurisdiction of the district court shall

cease unless it has jurisdiction of the civil action or suit on

ground other than and independent of the authority conferred by

section 1346(f) of this title.

28 U.S.C. § 2409a(e).

KINGMAN REEF v. UNITED STATES 12223

Executive Orders designating Kingman Reef as public land

under Navy protection, nor has the regulation establishing the

Kingman Reef Naval Defensive Sea Area been repealed. See

32 C.F.R. § 761.3(a)(2)(v), (b)(2); Exec. Order Nos. 6935,

8682.6 Neither has any United States official with authority to

bind the Executive Branch clearly and unequivocally dis-

claimed the United States’s claim of interest in Kingman

Reef. Although at various times correspondence and internal

memoranda from employees and officials of various Execu-

tive Branch agencies reflect an understanding that the Fullard-

Leo family owned, or claimed ownership of, Kingman Reef,

none of the documents in the record indicate an official deter-

mination that the United States no longer claimed a property

interest in the reef or intended to disclaim such an interest.

Therefore, KRAI and its predecessors in interest could not

reasonably conclude that the recent informal governmental

communications had eliminated the cloud upon the title to

Kingman Reef created by official government actions in the

1930s. Accordingly, we reject KRAI’s theory that the United

States abandoned its claim.

D

[14] Finally, KRAI contends that the United States was

equitably estopped from raising the twelve-year limitations

period of § 2409a(g) as a defense to KRAI’s claim. KRAI

asserts that the United States concealed its intention to annex

Kingman Reef while negotiating with the Fullard-Leo family

to purchase Palmyra Atoll, so that it could ensure successful

purchase of Palmyra (over which it had no plausible claim of

title) without expending funds to obtain Kingman Reef. We

reject this argument. As we have noted, § 2409a(g) is jurisdic-

6

KRAI notes that the Naval Airspace Reservation over Kingman Reef

has been suspended. See 32 C.F.R. § 761.4(d)(1). However, the suspen-

sion of airspace restrictions did not repeal the Naval Defensive Sea Area

reservations in their entirety. See id. § 761.3(a)(2)(v), (b)(2); Kingman

Reef, 545 F. Supp. 2d at 1106.

12224 KINGMAN REEF v. UNITED STATES

tional under our precedents, e.g., Fidelity, 506 F.3d at 1186,

and “subject-matter jurisdiction . . . can never be forfeited or

waived.” Arbaugh, 546 U.S. at 514 (internal quotation marks

omitted). KRAI notes Justice Stevens’s concurring opinion in

Beggerly, which states that the Court was “not confronted

with” and “need not . . . address” the question whether “equi-

table estoppel might apply if the Government were guilty of

outrageous misconduct that prevented the plaintiff, though

fully aware of the Government’s claim of title, from knowing

of her own claim.” 524 U.S. at 49-50 (Stevens, J., concur-

ring). We need not address the effect, if any, of Justice Ste-

vens’s concurrence. As noted above, the district court found

no evidence of outrageous conduct, and thus did not abuse its

discretion in holding that KRAI failed to establish the ele-

ments of a claim of equitable estoppel. See Morgan v. Gon-

zales, 495 F.3d 1084, 1092 (9th Cir. 2007).

AFFIRMED.