United States v. Ruby Company, a Utah Corporation

ELY, Circuit Judge,

dissenting:

I respectfully dissent. As I see it, the result reached by my Brothers is not only unjust, but also, that result is not legally required.

In Bart II of its opinion, the majority concludes that estoppel is not here applicable against the Government because the Government committed no affirmative misconduct. I have no quarrel with my Brothers’ statement as to the basic legal principle that should be applied. It is now clear beyond question that the law of our circuit *706 requires a showing of affirmative misconduct before the Government may be es-topped. California Pac. Bank v. Small Business Admin., 557 F.2d 218, 224 (9th Cir. 1977); Santiago v. I&NS, 526 F.2d 488, 491-93 (9th Cir. 1975) (en banc), cert. denied, 425 U.S. 971 , 96 S.Ct. 2167 , 48 L.Ed.2d 794 (1976). It is the majority’s application of the principle that I deeply feel to be thoroughly wrong.

As written by our Brother Choy, with whose perceptive comments I recently joined in Santiago , “ ‘(a)ffirmative’ and ‘negative,’ like ‘misfeasance’ and ‘nonfeasance,’ are indeed slippery terms. Each one of the claims paraphrased negatively can readily be restated affirmatively . But it is not how we cast the facts, but the facts themselves that should dictate the nature of relief warranted.” Santiago v. I&NS, supra, at 495 (emphasis in original). Our decisions in this area have indicated that reasonable flexibility is not only desirable, but also is required. This is so that estoppel against the Government may lie “where justice and fair play require it.” United States v. Lazy FC Ranch, 481 F.2d 985, 988 (9th Cir. 1973). Estoppel, as all know, is an equitable doctrine, designed to protect the legitimate expectations of those who have relied to their detriment upon the conduct of another. Russel v. Texas Co., 238 F.2d 636, 640 (9th Cir. 1956), cert. denied, 354 U.S. 938 , 77 S.Ct. 1400 , 1 L.Ed.2d 1537 (1957). Consequently, we should be reluctant to circumscribe the technical requirements for invoking it so narrowly and harshly as to eviscerate its beneficent protections and purposes. As my Brothers appropriately say, courts remain free to reject the application of estoppel to the Government, even though the required elements are present, when, in the exercise of their equitable discretion, they find that countervailing reasons of public policy so require. It seems anomalous, however, to define the elements of estoppel so strictly that the doctrine is stripped of its equitable underpinnings and made less accessible to those whom it is designed to protect. Accordingly, I cannot agree that the Government’s conduct here was anything short of “affirmative.”

The 1922 BLM investigation of the meander lines of the Snake River as represented by the David survey, 31 years after the issuance of the land patent, resulted in a conclusion that the meander line was fraudulent. Based on that investigation, the Surveyor General of Idaho recommended that another survey be made. Nevertheless, in 1923, fully apprised of all the facts, the General Land Office of the Department of the Interior consciously and deliberately disapproved the recommendation, allowing the David survey to stand unchallenged. As I see it, the Government, by this conduct, effectively represented to all interested parties that the David survey could be taken as authoritative and would facilitate the proper and secure passage of title. To characterize this conduct as no more than a “decision ... to take no affirmative action” seems to me to be an elevation of semantic distinction over reality. To reach its result, the majority plays with words and writes a tragedy. The Government, with full knowledge of the BLM investigation and the Surveyor General’s recommendation, affirmatively acted by refusing to resurvey the disputed area. In making such a significant policy decision, the Government’s conduct was no less affirmative simply because the outcome of its decision was a refusal to survey. 1 Restated, the Government did not unassertively refuse to act; rather, in fact, it acted positively and decisively even though its act was not to proceed further. Moreover, not until 1957, some 34 years later, did the Government evidence any intent to dispute the validity of the David survey. Again, the United States delayed, not bringing its suit to quiet title until eight more years had gone by. The position taken by the Government in 1965, when its suit was instituted, directly contradicted its representation in 1923 that *707 the accuracy of the David survey would not be challenged. If the Government’s current position, first urged in 1965 and upheld by the District Court and now by this Court, is correct in that the original, ancient survey was grossly erroneous, then the 1923 action of the Government in representing the David survey as reliable clearly constituted a misrepresentation, and, in fact, a misrepresentation by affirmative conduct. Thus, speaking frankly, I simply cannot understand how the majority can hold that, in reality, the Government was not guilty of “affirmative misconduct.” And the majority’s bare conclusion that the conduct in this case is “clearly less egregious than the alleged misconduct in Santiago” adds nothing of substance to its rationale. Furthermore, the conclusion is mistaken. In Santiago , the conduct in question was merely the careless actions of immigration officials in validating the entry visas of otherwise ex-cludable aliens. Here, we deal, not with carelessness, but with the most conscious and deliberate conduct on the part of the Government. While the facts of Santiago may be more “egregious” than those at hand here in that they implicated a human right and not a property right, I cannot at all see that the conduct in Santiago was any more affirmative than the conduct of the Government in this case. In truth and fact, it was much less affirmative.

While I am not unmindful of the majority’s admonition that the public land belongs to the people of our country, I am unwilling to subvert the legitimate expectations and equities of the innocent landowners in our case by uttering generalized platitudes about the public welfare. These landowners and their predecessors in interest relied upon the accuracy of the David survey for over 60 years before the Government undertook to divest their title. To me, this concatenation of circumstances, taken as a whole, seems virtually intolerable from the standpoint of equity. Moreover, I do not see that the national interest will “be unduly damaged by the imposition of estoppel.” United States v. Lazy FC Ranch, supra, at 989. The concurrence of the Government’s affirmative misconduct and the overwhelming equitable considerations favoring the landowners drives me to believe that the Government’s misrepresentation that it had abandoned all claims, allowed to go uncorrected for so many years, should prevent the abuse that it has, in this case, visited upon some of its people.

Regardless of so-called public interest, our Country was founded upon the ideal that every citizen was a sovereign in his own right, and that one of them, even though only a poor householder on the bank of a stream, should never again live under the threat of authoritarian abuse and mistreatment. • Now, while we profess outrage at what we see as inhumanitarian treatment of powerless peoples in some parts of the world, our court permits our own Government, supposedly benevolent, to void a patent it issued 86 years ago and, as to its validity, reaffirmed 32 years later. And to what end? That it regain title to lands, insignificant to the Government in area and long thought to be vested in a few private individuals. The tragic price of conferring this relatively inconsequential benefit on the Government is the enforced eviction of the innocent appellees and their families from their homelands. This injustice my Brothers do under what they perceive to be “the countervailing interest of the public”. I decry that approach, believing that the truest, most immutable interest of the American public is the protection of individual citizens in their property rights, as in their personal rights, and the unswerving resistance to the type of governmental deception, abuse, and intrusion that we ordinarily associate with totalitarian regimes.

I would reverse.

. My Brothers do not really challenge my proposition that the Government’s conduct was affirmative. Their lack of conviction as to this is demonstrated by their writing, equivocally, “though the decision may be affirmative conduct . . .