Kimball-Griffith, L.P v. Brenda Burman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: UNITED STATES OF No. 21-56358

AMERICA V. 6.03 ACRES OF

LAND IN THE COUNTY OF D.C. No.

SANTA BARBARA, STATE OF 2:20-cv-10647-

CALIFORNIA, ET AL, AB-AFM

______________________________

KIMBALL-GRIFFITH, L.P., OPINION

Plaintiff-Appellant,

v.

BRENDA BURMAN, in her official

capacity as the Commissioner of the

United States Bureau of Reclamation;

SCOTT MCGOLPIN, in his official

capacity as the Head of the County of

Santa Barbara Public Works

Department and Director of the

County Water Agency; DAS

WILLIAMS, Santa Barbara County

Board of Supervisor, individually in

his official capacity as policy maker

for the Santa Barbara County Water

Agency and as Purchaser of

Emergency Road Access Easement;

2 KIMBALL-GRIFFITH, L.P. V. BURMAN

GREGG HART, Santa Barbara

County Board of Supervisor,

individually in his official capacity as

policy maker for the Santa Barbara

County Water Agency and as

Purchaser of Emergency Road Access

Easement; BOB NELSON, Santa

Barbara County Board of Supervisor,

individually in his official capacity as

policy maker for the Santa Barbara

County Water Agency and as

Purchaser of Emergency Road Access

Easement; JOAN HARTMANN,

Santa Barbara County Board of

Supervisor, individually in her official

capacity as policy maker for the Santa

Barbara County Water Agency and as

Purchaser of Emergency Road Access

Easement; STEVE LAVAGNINO,

Santa Barbara County Board of

Supervisor, individually in his official

capacity as policy maker for the Santa

Barbara County Water Agency and as

Purchaser of Emergency Road Access

Easement; CACHUMA OPERATION

AND MAINTENANCE BOARD;

ERNEST CONANT, in his official

capacity as the Regional Supervisor

for the BOR Region 10,

Defendants-Appellees.

KIMBALL-GRIFFITH, L.P. V. BURMAN 3

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 7, 2022

Submission Withdrawn January 18, 2023

Resubmitted May 4, 2023

Pasadena, California

Filed May 10, 2023

Before: MILAN D. SMITH, JR., DANIEL P. COLLINS,

and KENNETH K. LEE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY *

Easements

The panel affirmed the district court’s dismissal of

Kimball-Griffith, L.P.’s action against federal and local

government defendants asserting easement rights over a

maintenance road on federal land in Montecito, California.

In 1952, the United States initiated an eminent domain

action to acquire land in Montecito, California, to build the

Ortega Reservoir. Kimball-Griffith’s property is located

directly north of the Ortega Reservoir, and the maintenance

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 KIMBALL-GRIFFITH, L.P. V. BURMAN

road at issue (the Access Road) runs along the southern edge

of Kimball-Griffith’s property, just within the boundaries of

the federal reservoir land. In 1989, the federal Bureau of

Reclamation (BOR) granted an easement over the Access

Road to the County of Santa Barbara, and the County

installed locked gates across the road, blocking public

entry. In 2020, Kimball-Griffith filed this lawsuit, asserting

the right to use the Access Road based on its purported

ownership of “an equitable servitude and covenant running

with the land.”

The district court held that Kimball-Griffith’s claim

against the BOR and its officials must be construed pursuant

to the Quiet Title Act (QTA). Because the QTA’s statute of

limitations had elapsed, the court dismissed the claims

against the BOR. The district court dismissed the remaining

claims as time-barred and because Kimball-Griffith failed to

allege a property interest in the Access Road.

The parties disputed whether Kimball-Griffith’s claim

against the BOR and its officials must proceed pursuant to

the QTA and, as a result, comply with its statute of

limitations. In a case decided after argument in this case, the

Supreme Court held in Wilkins v. United States, 143 S. Ct.

870 (2023), that the QTA’s limitations period was a mere

claims-processing rule, not a jurisdictional

requirement. The panel held that in light of Wilkins, it need

not decide whether the statute of limitations applied in this

case. With jurisdiction no longer in question, the panel held

that it could affirm on any ground supported by the record.

The panel affirmed the dismissal of Kimball-Griffith’s

claims because Kimball-Griffith failed to plead a property

interest in the Access Road. To succeed on any of its

claims, Kimball-Griffith must establish a property interest in

KIMBALL-GRIFFITH, L.P. V. BURMAN 5

an easement over the Access Road. Kimball-Griffith argued

that the 1952 Decree of Taking and 1955 Judgment

preserved an easement for Kimball-Griffith’s predecessors,

the Cunniffs, and that this easement passed to Kimball-

Griffith. First, Kimball-Griffith asserted that the Cunniffs

had an easement over the Access Road as owners of property

abutting the road. The panel held, however, that Kimball-

Griffith did not allege that, at the time of condemnation, the

Access Road existed as a “public street.” As a result,

Kimball-Griffith cannot rely on the theory that the Cunniffs,

as adjacent landowners, acquired a private

easement. Second, the panel held that Kimball-Griffith had

not alleged facts suggesting that the Cunniffs acquired an

easement over the Access Road as a third party by any other

means or operation of law. Indeed, prior to the eminent

domain action, the Cunniffs owned all the land underlying

the relevant portion of the current Access Road, as well as

the land on both sides of the current road. Accordingly, they

could not have acquired a private easement over the road

against themselves. The panel concluded that without

allegations supporting a property interest in an easement

over the Access Road, all of Kimball-Griffith’s claims

failed.

COUNSEL

Michael M. Berger (argued), Manatt Phelps & Phillips LLP,

Los Angeles, California; John K. Dorwin, Buellton,

California; for Plaintiff-Appellant.

Matthew J. Barragan (argued) and Kevin B. Finn, Assistant

United States Attorneys; David M. Harris, Assistant United

States Attorney, Civil Division Chief; E. Martin Estrada,

6 KIMBALL-GRIFFITH, L.P. V. BURMAN

United States Attorney; Office of the United States Attorney;

Los Angeles, California; for Defendant-Appellee Brenda

Burman.

Callie Patton Kim (argued), Deputy Assistant General

Counsel; Rachel Van Mullem, County Counsel; Office of

the Santa Barbara County Counsel; Santa Barbara,

California; for Defendants-Appellees Scott McGolpin, Das

Williams, Gregg Hart, Bob Nelson, Joan Hartmann, and

Steve Lavagnino.

William W. Carter (argued), Musick Peeler & Garrett LLP,

Los Angeles, California, for Defendant-Appellee Cachuma

Operation and Maintenance Board.

OPINION

M. SMITH, Circuit Judge:

This case arises from a dispute concerning access to a

maintenance road on federal land. In the 1950s, the United

States condemned a tract of land adjacent to what is now

Appellant Kimball-Griffith’s property, including land

underlying a maintenance road, which was later closed to the

public. In 2020, Kimball-Griffith sued various federal and

local government defendants, asserting easement rights over

the road. The district court dismissed Kimball-Griffith’s

claims against all defendants. Because Kimball-Griffith has

not plausibly alleged a property interest in an easement over

the maintenance road, we affirm.

KIMBALL-GRIFFITH, L.P. V. BURMAN 7

BACKGROUND

In 1952, the United States initiated an eminent domain

action to acquire land in Montecito, California to build the

Ortega Reservoir. At the time the action was filed, part of

the condemned land was owned by Kimball-Griffith’s

predecessors-in-interest, Phillip and Ethyl Cunniff. In 1955,

the district court entered a final judgment documenting the

taking of the Cunniffs’ land (the 1955 Judgment) and

specified that the government took the property “subject . . .

to existing rights of way in favor of the public or third parties

for highways [and] roads . . . on, over, and across said land.”

The 1952 Decree of Taking related to the condemnation

contained the same “subject to” language.

In 1958, the Cunniffs sold forty-five acres of their

remaining land to Loma Griffith, née Kimball, who later

transferred the property to Kimball-Griffith, L.P. Kimball-

Griffith’s property is located directly north of the Ortega

Reservoir, and the maintenance road at issue in this case (the

Access Road) runs along the southern edge of Kimball-

Griffith’s property, just within the boundaries of the federal

reservoir land. In 1989, the federal Bureau of Reclamation

(BOR) granted an easement over the Access Road to the

County of Santa Barbara, and the County installed locked

gates across the road, blocking public entry.

Over thirty years later, in November 2020, Kimball-

Griffith filed this lawsuit, asserting the right to use the

Access Road based on its purported ownership of “an

equitable servitude and covenant running with the land.” In

its amended complaint—styled as a “Petition to Reopen” the

1955 Judgment—Kimball-Griffith asserted ejectment and

injunctive relief claims against the BOR and its officials,

demanding removal of the gates blocking the Access Road;

8 KIMBALL-GRIFFITH, L.P. V. BURMAN

taking and conspiracy-to-commit-a-taking claims against the

County, reservoir authority, and other local government

entities and contractors pursuant to 42 U.S.C. § 1983; and a

judicial taking claim against the district court.

The district court dismissed the case in its entirety. The

court held that Kimball-Griffith’s claim against the BOR and

its officials must be construed pursuant to the Quiet Title Act

(QTA), 28 U.S.C. § 2409a(a), the federal statute that waives

the United States’s sovereign immunity with respect to

claims challenging federal title to land. Because the QTA’s

statute of limitations had elapsed, the court dismissed

Kimball-Griffith’s claim against the BOR. The court

dismissed the remaining claims as time-barred and because

Kimball-Griffith failed to allege a property interest in the

Access Road. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a district court’s dismissal for failure to state a claim

de novo, accepting the allegations in the complaint as true

and viewing them in the light most favorable to the plaintiff.

Gonzalez v. Google LLC, 2 F.4th 871, 885 (9th Cir. 2021).

ANALYSIS

I

At the outset, the parties dispute whether Kimball-

Griffith’s claim against the BOR and its officials (BOR

defendants) must proceed pursuant to the QTA and, as a

result, comply with its statute of limitations. The QTA

waives federal sovereign immunity with respect to claims

challenging federal title to land. 28 U.S.C. § 2409a(a). It

generally provides “the exclusive means by which adverse

claimants c[an] challenge the United States’ title to real

KIMBALL-GRIFFITH, L.P. V. BURMAN 9

property,” Block v. North Dakota ex rel. Bd. of Univ. & Sch.

Lands, 461 U.S. 273, 286 (1983), including challenges

related to easements, Robinson v. United States, 586 F.3d

683, 686 (9th Cir. 2009). QTA claims are subject to a

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

The BOR defendants argue that, because Kimball-

Griffith’s claim asserts an easement over federal land, it can

be brought only pursuant to the QTA and is thus long barred

by its statute of limitations. Kimball-Griffith contends that

this case does not implicate the QTA at all. Rather, it argues

that its claim against the BOR is a “Petition to Reopen” the

1955 Judgment, which, according to Kimball-Griffith,

provides an alternative ground for jurisdiction. The 1955

Judgment purported to reserve jurisdiction for the court “to

make further orders and decrees” related to the

condemnation. So, Kimball-Griffith argues, the federal

government waived immunity by stipulating to the

Judgment, and Kimball-Griffith is not required to invoke the

QTA in this case.

At the time this case was argued, our court’s case law

had interpreted the QTA’s statute of limitations to be a

jurisdictional requirement. See Adams v. United States, 255

F.3d 787, 796 (9th Cir. 2001). Under that precedent, we may

have been obligated to resolve the parties’ dispute regarding

the applicability of the QTA’s statute of limitations before

considering the merits. See Sinochem Int’l Co. v. Malay.

Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007) (“[A]

federal court generally may not rule on the merits of a case

without first determining that it has jurisdiction . . . .”).

However, in light of a Supreme Court decision decided

after argument in this case, we now need not do so. In

Wilkins v. United States, 143 S. Ct. 870 (2023), the Court

10 KIMBALL-GRIFFITH, L.P. V. BURMAN

held that the QTA’s limitations period is a mere claims-

processing rule—not a jurisdictional requirement. Id. at 877,

881. The Court explained that it “will treat a procedural

requirement as jurisdictional only if Congress clearly states

that it is.” Id. at 876 (cleaned up). Reversing our court’s

decision below in that case, the Supreme Court held that the

QTA lacks such a clear statement creating a jurisdictional

requirement. Id. at 877, 881.

Now that the Supreme Court has overruled our precedent

and held that the QTA’s statute of limitations is merely a

claims-processing rule, we need not decide whether the

statute of limitations applies in this case. With our

jurisdiction no longer in question, we may “affirm on any

ground supported by the record.” Sec. Life Ins. Co. of Am.

v. Meyling, 146 F.3d 1184, 1190 (9th Cir. 1998). As

explained below, we affirm the dismissal of Kimball-

Griffith’s claims because Kimball-Griffith failed to plead a

property interest in the Access Road.

II

To succeed on any of its claims, Kimball-Griffith must

establish a property interest in an easement over the Access

Road. Its ejectment claim against the BOR for removal of

the gates is premised on Kimball-Griffith’s purported right

to use the Access Road. Likewise, establishing an easement

interest in the road is a prerequisite to Kimball-Griffith’s

taking, conspiracy-to-commit-a-taking, and judicial taking

claims. See Turnacliff v. Westly, 546 F.3d 1113, 1118 (9th

Cir. 2008) (“[T]o state a claim under the Takings Clause, a

plaintiff must first demonstrate that he possesses a property

interest that is constitutionally protected.” (cleaned up));

Stop the Beach Renourishment, Inc. v. Fla. Dept. of Env’t

Prot., 560 U.S. 702, 728 (2010) (plurality) (“What counts

KIMBALL-GRIFFITH, L.P. V. BURMAN 11

[for judicial taking claims] is . . . whether the property right

allegedly taken was established.”).

Kimball-Griffith argues that the 1952 Decree of Taking

and 1955 Judgment preserved an easement for Kimball-

Griffith’s predecessors, the Cunniffs, and that this easement

passed to Kimball-Griffith. The relevant documents specify

that the United States took title to the reservoir land subject

to “existing rights of way in favor of the public or third

parties for . . . roads . . . over and across [the] land.” So, if

the Cunniffs had an easement over the road at the time of the

eminent domain action, it would have been preserved and

potentially passed to Kimball-Griffith.

Kimball-Griffith asserts that the Cunniffs had an

easement over the Access Road as owners of property

abutting the road. In support, it cites two California Supreme

Court cases—Bacich v. Bd. of Control of California, 144

P.2d 818 (Cal. 1943), and Breidert v. Southern Pacific Co.,

394 P.2d 719 (Cal. 1964). Under Bacich, “an owner of

property abutting upon a public street has a property right in

the nature of an easement in the street . . . which is his private

right, as distinguished from his right as a member of the

public.” 144 P.2d at 823. Breidert clarifies that an

“interference with the property owner’s access to the street

upon which his property abuts” will “constitute[] a taking”

if it causes “a substantial impairment of his right of access to

the general system of public streets.” 394 P.2d at 722.

However, Kimball-Griffith has not alleged that, at the

time of condemnation, the Access Road existed as a “public

street.” Kimball-Griffith alleges that the Access Road

existed before the condemnation and makes general

references to “historic access” to the road until it was gated

off but does not allege that the public had a right-of-way over

12 KIMBALL-GRIFFITH, L.P. V. BURMAN

the road. And the 1890 subdivision map cited by Kimball-

Griffith shows—at most—only that some form of the Access

Road (or plans to build the road) existed in 1890. It does

not show that it was a public street. See Gardner v. County

of Sonoma, 62 P.3d 103, 110 nn.7, 9 (Cal. 2003) (“[P]rior to

California’s adoption of statutory methods of dedication [in

1893], the mere filing and recordation of a subdivision map

did not create a dedication to public use of property so

depicted on the map, e.g., streets, highways, and parks, until

there was action upon the dedication.”). Likewise, the 1944

topographical map shows, at most, only the existence of the

Access Road at that time. As a result, Kimball-Griffith

cannot rely on the theory that the Cunniffs, as adjacent

landowners, acquired a private easement in a “public street”

under Bacich and Breidert.

Nor has Kimball-Griffith alleged facts suggesting

that the Cunniffs acquired an easement over the Access Road

as a third party by any other means or operation of law. 1

Indeed, it appears that, prior to the eminent domain action,

the Cunniffs owned all the land underlying the relevant

portion of the current Access Road, as well as the land on

both sides of the current road. Accordingly, they could not

have acquired a private easement over the road against

themselves. See Canyon Vineyard Ests. I, LLC v. DeJoria,

294 Cal. Rptr. 3d 198, 210 (Ct. App. 2022) (“Because an

1

Despite Kimball-Griffith’s argument, Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021), did not reject traditional requirements for

easement creation. Cedar Point Nursery held only that the government

could effect a taking of private property even if it did not assert a formal

easement over that property. See id. at 2076. The case did not address

the manner in which a private party could create an easement and

otherwise has no bearing on this case.

KIMBALL-GRIFFITH, L.P. V. BURMAN 13

easement is the right to use or prevent the use of the land of

another, a person cannot have an easement on his or her own

land.”); Jon W. Bruce & James W. Ely, Jr., The Law of

Easements & Licenses in Land § 3:11 (2023) (“[I]t is

axiomatic that a landowner cannot obtain an easement in the

landowner’s own property.”).

Since Kimball-Griffith has not plausibly alleged that

the Cunniffs had an easement over the Access Road, no

easement could have been preserved as an “existing right[]

of way” in the eminent domain action. Without allegations

supporting a property interest in an easement over the

Access Road, all of Kimball-Griffith’s claims fail.

CONCLUSION

For the reasons described, we AFFIRM the district

court.