# Opposition Brief — Donnelly v. Eklutna, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1046

## Text

Supreme Court, U.S.

an FILED
2) DEC 5 1988
No. 88-533 _ FOSEPH F. SPA2HOL, aR.
. _ CLERK
In The

Supreme Court of the United States

October Term, 1988

THERESE U. DONNELLY, Personal Representative
of the Estate of Joseph I*. Donnelly,

Petitioner,
Vv.

EKLUTNA, INC., UNITED STATES OF AMERICA,
SECRETARY OF THE INTERIOR and
DIRECTOR, BUREAU OF LAND MANAGEMENT,
and JAMES W. LEH,

Respondents.

ra’
Vv

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ray
Vv

RESPONDENT EKLUTNA, INC.’S
BRIEF IN OPPOSITION

oy
Vv

Davip P. WoLF

JAMES S. CRANE

Counsel for Respondent,
Eklutna, Inc.

420 L Street, Suite 302
Anchorage, Alaska 99501
(907) 276-5152

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call culiect (402) 342-2831

QUESTIONS PRESENTED

1. Whether petitioner’s suit against the United
States claiming title to land under the homestead laws is
barred by the 12-year statute of limitations in the Quiet
Title Act, 28 U.S.C. 2409a(g), because petitioner knew or
should have known of the United States’ claim to the land
when his homestead claim was denied by the Secretary of
Interior in the late 1950’s and when the Bureau of Land
Management published its Notice of Filing Plat of Survey
describing withdrawn areas in 1961?

2. Whether the United States is an indispensable
party to petitioner’s suit against the respondent Alaska
Native Village Corporation that holds the disputed land
under patent to the surface estate issued by the United
States pursuant to the Alaska Native Claims Settlement
Act (ANCSA), 48 U.S.C. 1601 et seq., because, under
ANCSA, a judgment in petitioner’s favor would enable
the Village Corporation to obtain additional land from the
United States?

~ 3. Whether ANCSA § 14(c) (1), 48 U.S.C. 1613(e) (1),
should be construed against a trespasser on Federal land
to deny him amnesty and the right to take land from an
Alaska Native Village Corporation, the intended bene-
ficiary of ANCSA and holder of the patent to the land?

4. Whether the United States is an indispensable
party to a suit by a failed homesteader under ANCSA
& 14(e)(1) against an Alaska Native Village Corporation?

il

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED <a
TABLE OF CONTENT es cccseser ean il
TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE 1
REASONS WHY THE PETITION SHOULD BE
DENIED —......eeeeeee 10
I. PETITIONER’S CLAIMS AGAINST THE

Il.

IIT.

IV.

UNITED STATES WERE PROPERLY DIS-
MISSED, ccc

PETITIONER’S §§ 14(g) AND 22(b) CLAIMS
AGAINST EKLUTNA WERE PROPERLY
DISMISSED ON THE BASIS OF THE LEE
PRECEDENT. coco ee

CONSTRUCTIVE TRUST IS NOT AN AVAIL-
ABLE REMEDY IN THIS CASE. 0...

PETITIONER’S §14(e)(1) CLAIM WAS
PROPERLY DES eee

A. ANCSA WAS INTENDED TO BENEFIT
NATIVES, NOT TRESPASSERS. ..................

B. THE DISPUTED LAND WAS AT ALL
TIMES WITHDRAWN FROM ENTRY
AND OCCUBARG Bs] ose.

C. THE ALASKA SUPREME COURT HAS
NOT HELD THAT ot OFFERS
AMNESTY TO TRESPASSERS. . eon

D. THE COURT OF APPEALS CORRECTLY
DETERMINED THAT THE UNITED
STATES IS AN INDISPENSABLE PAR-
TY TO DONNELLY’S § 14(¢)(1) CLAIM
TO A HOMESBTRASE oc5c eee

11

13

17

19

19

21

ill

TABLE OF CONTENTS—Continued
Page

V. THE DECISION BELOW WAS JUSTLY DE-
CIDED AND IS OF LIMITED IMPACT. ......... 23

5 RE Ieee enerenT 24

lv

TABLE OF AUTHORITITES

Page
CASES
Buettner v. Kavileo, Inc., — F.2d —, 1988 West
Law 111344 (October 26, 1988) (9th Cir. 1988) 0... 23
California Fed. Sav. and Loan Ass’n. v. Guerra,
STD TE Be, BOT CL Be CED at 20

Cape Fox Corp. v. United States, 4 Cl.Ct. 223 (1983)... 20

Church of the Holy Trinity v. United States, 148
8 AF 7 66. | Aaah ROMA ce burl neec OAs DnOR OMe nncnuurrsiatorie eno 20

City of Milwaukee v. Illinois, 451 U.S. 304 (1981)... 19
Donnelly v. United States, 841 F.2d 968 (9th Cir.

IR ee csttescnt Sotelo tdcpkeantcansichapmoecuecomsitamebbacnael 10, 11, 12,17
Hakala v. Atxam Corporation, 753 P.2d 1144
DRE IID Sets on see eee es 10, 22, 23

Lee v. United States, 629 F.Supp. 721 (D.Alaska
1985), aff’d 809 F.2d 1406 (9th Cir. 1987), cert.
denied sub nom Lee v. Eklutna, Inc., — U.S. —,

16S BEX. Tie Ce oe 9,10, 11, 18, 14, 16, 17
Lee v. United States, 629 F.Supp. 721 (D.Alaska

| RR eld IN Aire ae At uo aura t Rea 9,10, 13, 17, 18, 19
Lee v. United States, 809 F.2d 1406 (9th Cir.

|} Eeiened tren noaices keer EE bes 9, 10, 11, 12, 14, 16, 17
Mine Safety Appliances Co. v. Forrestal, 326 U.S.

Be CRD Seer Nee av Pea Merle a 15
Nichols v. Rysavy, 809 F.2d 1317 (8th Cir.), cert.

Seiad 206 Be TE CS et oe 15
Norfolk Redev. and Housing Auth. v. Chesapeake

and Potomac Tel. Co. of Va., 464 U.S. 30 (19838) 0... 20
United States v. Kubrick, 444 U.S. 111 (1979) 2 S12
Watt v. Western Nuclear, 462 U.S. 36 (1983) eee

V

TABLE OF AUTHORITIES—Continued

Page
Statutes, Rutes, anp REGULATIONS
16 U.S.C. 818 (Federal Power Act § 24) 2, 21, 22
28 U.S.C. 2409a (Quiet Title Act) 16
28 U.S.C. 2409a(¢) ........ 11,12
Alaska Native Claims Settlement Act (ANCSA),
43 U.S.C. 1601 et seq. passim
43 U.S.C. 1601(a) (ANCSA § 2(a)) 20
43 U.S.C. 1603(b) (ANCSA § 4(b)) 1
43 U.S.C. 1607(a) (ANCSA § 8(a)) 1
43 U.S.C. 1610(a) (ANCSA § 11(a)) 6
43 U.S.C. 1610(b) (ANCSA § 11(b)) 1
43 U.S.C. 1611(a)(1) (ANCSA §12(a)(1)) www. 1,6
43 U.S.C. 1613(a) (ANCSA § 14fa)) 1
43 U.S.C. 1613(¢)(1) (ANCSA § 14(e) (1)) ou. passim
43 U.S.C. 16138(g¢) (ANCSA §14(g)) oo. passim
43 U.S.C. 1621(b) (ANCSA § 22(b)) nce passim
43 U.S.C. 1621(¢) (ANCSA § 22(2)) 18
43 U.S.C. 1621(j) (2) (ANCSA § 22(j)(2)) uw. 14
Fed. R. Civ. P. 19(a) 14, 15, 23
Fed. R. Civ. P. 19(b) ................... 15, 23
MISCELLANEOUS
26 Fed. Reg. 2486 (1961) 4

117 Cong. Record 4678, 46785-86, 46788 (Dee. 14,1971) 20

vi

TABLE OF AUTHORITIES—Continued

1971 Cong. & Admin. News 2192

1971 Cong. & Admin. News 2229

H.Conf.Rep. No. 746, 92nd Cong. Ist Sess. 1 (1971)

Respondent Eklutna, Ine.’s Opposition to Petition
for Writ of Certiorari, Lee v. Eklutna, Inc., no.
88-549 (pending)

STATEMENT OF THE CASE

This case concerns the ownership of 92.5 acres of
land in the Eagle River Valley near Anchorage, Alaska.
Long before any white settlement, the Eagle River Valley
was encumbered by aboriginal! title and by traditional sub-
sistence use and occupation of the valley by Alaska Na-
tives.'. These traditional claims of aboriginal title by the
Natives were formally presented for adjudication before
the Indian Claims Commission in 1953.2 Pet. App. E® a.
84a. These claims were extinguished by the Alaska Native
Claims Settlement Act (‘‘ANCSA’’), 43 U.S.C. 1601 et seq.
43 U.S.C. 1603(b). Pursuant to ANCSA, Eklutna, Inc.‘
(‘‘Eklutna’’) was formed as the Village Corporation which
includes as shareholders the Natives of the disputed area.
43 U.S.C. 1607(a), 1610(b). Eklutna selected and received
patent to the surface estate to lands, including those cur-
rently in dispute, as settlement of their aboriginal claims.
43 U.S.C. 1611(a) (1), 1613(a).

'The term “Natives” in Alaska includes Indians, Aleuts, and
Eskimos.

2Even earlier, all the lands in the Eagle River Valley which
are relevant to this case had been part of the Eklutna Reserve
established under the Indian Reorganization Act. Pet. App. E
at 84a.

“Pet. App.” refers to- petitioner's Appendix to the Petition
for a Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit. “Pet. App. E” refers to the Findings of
Fact, United States v. Donnelly, A75-27 Civil, United States Dis-
trict Court for the District of Alaska, February 5, 1981, pp. 58a-
86a of petitioner's Appendix.

‘Pursuant to Supreme Court Rule 28.1, Eklutna, Inc. has no
parent company or subsidiary, except wholly owned subsidiaries.

In 1925, Power Site Classification (‘*‘PSC’’) 107 with-
drew the disputed land from appropriation under the pub-
lic land laws for power site purposes under § 24- of the
Federal Power Act, 16 U.S.C. 818. In 1950, PSC 399 also
withdrew the land. Pet. App. E at 60a. Although in 1952
the Federal Power Commission (‘‘/PC’’) determined that
the value of the disputed land would not be injured or de-
stroyed for the purposes of power development by location
or entry, Pet. App. M at 107a, the Secretary of Interior
never acted pursuant to § 24 of the Federal Power Act
to revoke the withdrawal, and the land therefore remained
closed to entry. Pet. App. C at 35a.

In 1957, petitioner Joseph Donnelly (‘‘petitioner’’ or
‘‘Donnelly’’) filed a Notice of Location of Settlement of
Occupancy Claim in Alaska, embracing, inter alia, the land
now in dispute. Pet. App. E at 59a; Gov. Summary Judg-
ment Ex.S 1A (4/22/57 Notice). On November 14, 1957,
the Bureau of Land Management (‘‘BLM’’) issued its first
decision denying the Donnelly Claim. Pet. App. E at 65a;
Tr. Ex. EK®-D. The denial of Donnelly’s entry was based
upon the power site conflict, and it informed Donnelly that
even if the land were restored to entry, the filing of the lo-
cation notice would confer no preferential rights upon him.
Tr. Ex. EK-D. Although the adverse decision advised Don-
nelly of his right to appeal, id., he failed to. Instead, he
filed a second Notice of Location on the same land on
May 2, 1958. Pet. App. E at 65a; Tr. Ex. EK-D.

5“Gov. Summary Judgment Ex.” refers to the federal gov-
ernment’s exhibits on summary judgment.

&°Tr. Ex. FK” refers to Eklutna’s Trial Exhibits

3

Donnelly then asked the FPC to restore the lands to
entry under the homestead laws. Pet. App. E at 66a. In
a November 1958 response, the FPC informed him of the
1952 no injury determination but stated that actual restora-
tion was a function of the BLM. Id. Donnelly then un-
successfully sought the help of Alaska’s Senator Bartlett
to obtain his 160 acres. Pet. App. E at 66a-67a. The BLM
informed the senator that Donnelly was in trespass on a
federal power reserve. Moreover, the FPC told the sena-
tor that revocation of the power site reserve would not
necessarily result in Donnelly securing rights to the land
because the State of Alaska and veterans would have
preference under the homestead laws. Pet. App. E at 66a-
69a.

On February 8, 1959, petitioner and several other
homestead claimants in Eagle River sent a letter to the
Secretary of Interior, asking for ‘‘clarification’’ of the
status of their entries. Pet. App. E at 69a; HR-D7 212-15.
The letter was not identified as an appeal of adverse
ageney decisions. The Assistant Secretary responded on
March 12, 1959, expressly stating that ‘‘any settlement of
the reserved lands cannot be recognized under existing
law’’ and that there was no intent to revoke the powersite
reserve. ER-D 214-15; Pet. App. E at 69a-70a.

Shortly before the Assistant Secretary’s March 12
letter, Donnelly submitted his final proof on March 2, 1959.
Pet. App. E at 70a; Gov. Summary Judgment Ex. 1B. He
was notified on March 5, 1959 that his claim was denied
and that he was in trespass. Pet. App. E at 70a-71la, Tr.
ix. EK-O:

™ER-D” refers to Donnelly’s Excerpt of Record in the ap-
peal to the Ninth Circuit.

The records show that the lands in qnestion are
not subject to settlement or occupancy because they
have not been restored from |PSC]| 399... . While it
is true that the [FPC] made a favorable determina-
tion November 4, 1952, ... none of the unsurveyed
lands have been restored to entry by the [BLM], and
in all probability no action will be taken to restore
them until they have been surveyed. ...

You previously filed a homestead location notice
... for the same lands and were advised that they
were not subject to settlement or occupancy.

In view of the foregoing, any use or occupancy
of these lands will constitute a trespass against the
United States.

In March 1961, a Notice of Filing Plat of Survey was
officially promulgated and published in the Federal Regis-
ter delineating the boundaries of PSCs 107 and 399. 26
Fed. Reg. 2486 (1961). All but forty acres of Donnelly’s
claimed 160 acres remained within PSCs 107 and 399 and
therefore remained closed to entry. Pet. App. E at 72a.
Accordingly, petitioner was served with a final decision
rejecting his entry to the extent it conflicted with the sur-
veyed withdrawals and reinstating his claim as to avail-
able lands. Tr. Ex. EK-W (5/12/61 Decisien). Indica-
ting that it wished to reach an equitable settlement, how-
ever, the BLM vacated its decision as to lands outside the
withdrawal area on May 15, 1961, ‘‘pending further in-
vestigations which may result in a more equitable con-
formance of the withdrawals or delineation of the actual
withdrawal line as originally deseribed’’. The decision
warned that it ‘‘is not to be construed as granting any
rights or concessions to the withdrawn lands... .’’ Pet.
App. E at 72a-73a. In 1962, BLM refined its survey and
determined that 67.5 acres of Donnelly’s claim was out-

side of the reserves and that 92.5 acres were within the
withdrawn area. Pet. App. E at 74a. Thus, at no time did
the United States claim less than 92.5 acres of Donnelly’s
entry.

On Iebruary 21, 1963, the report of field examination
of Donnelly’s claim was filed. In addition to noting par-
tial conflict with the power withdrawals, the report noted
that Donnelly had not complied with the improvement or
cultivation requirements. Final certificate and patent
were not recommended. Pet. App. E at 75a; Tr. Ex. EK-
BC. The report also concluded that little, if any, of the
area within the withdrawals was truly suitable for agri-
culture. Id.

The BLM was willing to consider granting patent for
the portion of Donnelly’s entry located outside the with-
drawal area but was faced with the problem that Don-
nelly’s original dwelling and cultivation were located with-
in the withdrawn portion. Donnelly notified the BLM in
June, 1963 that he had retained legal counsel, who met
with the BLM to diseuss a ‘‘workable solution.’’ Pet.
App. E at 76a; Tr. Ex. EK-BF. In September 1963, the
lawyer wrote to BLM that ‘‘the possibilities of compromise
appear likely,’’ and requested that the BLM ‘‘not issue de-
cisions with regard’’ to Donnelly’s entry. Tr. Ex. EK-BK.

The BLM agreed to a solution whereby Donnelly’s im-
provements on the 92.5 acres in the withdrawn area would
be considered ‘‘constructive’’ residence and cultivation,
with additional time allowed to comply upon available land,
even though the five year life of Donnelly’s claim had ex-
pired. Pet. App. E at 79a-80a; Tr. Ex. EK-BR (6/11/64
letter). Donnelly chose to settle his claim for the 67.5

available acres and represented to BLM that he would
not pursue the entire 160 acres of his original claim. Tr.
Ex. BQ (10/18/63 memo). In accordance with the BLM’s
requirements, he agreed to place his house and cultivation
on the 67.5 acre portion outside the reserve, filed a new
homestead application, and submitted affidavits asserting
compliance. Id.; Tr. Ex. SSS, TTT, and UUU.

On June 25, 1965, patent was issued to Donnelly for
67.5 acres outside the withdrawn area. Tr. Ex. EK-BT;
Pet. App. E at 80a-8la. Although represented by counsel,
Donnelly failed to appeal the BLM’s decision not to grant
him the withdrawn 92.5 acres. Instead, he filed a Petition
for Revocation of Power Sites affecting the 92.5 acres.
Tr. Ex. EK-CF. His Petition was denied on May 13, 1968.
Pet. App. E at 8la; Tr. Ex. EK-CF. Donnelly appealed
this decision but the decision was affirmed. Pet. App. E
at 8la-83a; Tr. Ex. EK-CH. Donnelly took no further
administrative action. Pet. App. 83a.

On December 22, 1970, Donnelly was served with a
Notice of Trespass, alleging that he had unlawfully entered
upon withdrawn Federal land. Jd.; Tr. Ex. EK-CJ. Don-
nelly not only failed to move, he actually proceeded with
construction on the disputed land. Pet. App. C at 39a.

Upon the adoption of ANCSA on December 18, 1971,
the disputed lands were again withdrawn to allow for
selection and conveyance to Native Corporations. 43 U.S.C.
1610(a). The disputed lands were among those listed on

Eklutna’s selection application filed on July 17, 1974 pur-
suant to 43 U.S.C. 1611(a)(1). In 1979, "United States
issued patents to Eklutna for the surtace estate of these

lands.

~

On February 10, 1975, the United States filed a tres-
pass action against Donnelly in the United States District
Court for the District of Alaska. CR-D® 1 (Complaint).
On May 23, 1975, at least fourteen years after being in-
formed of the claim of the United States, ER-D 128, Don-
nelly filed a counterclaim in district court. CR-5. After
the United States issued its patent to Eklutna in 1979, the
district court dismissed the government’s trespass action,
and Eklutna came into the action in order to protect its
ownership interest in the disputed lands. Pet. App. D
at 4la.

Donnelly subsequently filed a series of claims against
Eklutna, attacking the validity of the federal patent to the
disputed land and claiming that his homestead rights to
title were preserved as against Eklutna through ANCSA
§14(g) (48 U.S.C. 1613(g)) as a “valid existing right,’?
and through 22(b) (48 U.S.C. 1621(b)) as a homestead

®’CR-D” refers to the Donnelly Court Record.
®ANCSA § 14(g) provides in pertinent part:

All conveyances made pursuant to this chapter shall
be subject to valid existing rights. Where, prior to patent
of any land or minerals under this chapter, a lease, con-
tract, permit, right-of-way, or easement (including a lease
issued under section 6(g) of the Alaska Statehood Act) has
been issued for the surface or minerals covered under such
patent, the patent shall contain provisions making it subject
to contractee, permittee, or grantee to the complete en-
=" of all rights, privileges, and benefits thereby granted
to him.

elaim,'® as well as through the application of several com-
mon-law theories. In addition, Donnelly claimed title to
the disputed land as a primary place of residence under
ANCSA § 14(e) (1) (48 U.S.C, 1618(¢) (1))," a claim which
did not attack the validity of the federal patent but which
demanded that Eklutna reconvey the disputed land. Pet.
App. C at 41a. In 1982, the district court dismissed Don-
nelly’s counter-claims against the United States and his
claims against Eklutna based on the validity of the United
States patent for lack of jurisdiction.’? Pet. App. B.

In 1979, another claimant to a homestead in the Eagle
River Valley, James Lee, filed suit against the United
States and Eklutna, alleging essentially the same claims
as petitioner and represented by the same counsel. Pet.
App. C. at 42a. The district court dismissed all of Lee’s

1OANCSA § 22(b) provides in pertinent part:

The Secretary is directed to promptly issue patents to
all persons who have made a lawful entry on the public
lands in compliance with the public land laws for the pur-
pose of gaining title to homesteads, headquarters sites,
trade and manufacturing sites, or small tract sites ..., and
who have fulfilled all requirements of the law prerequisite
to obtaining a patent.

INANCSA § 14(c) provides in pertinent part that, upon re-
ceipt of a patent or patents,

(1) the Village Corporation shall first convey to any
Native or non-Native occupant, without consideration, title
to the surface estate in the tract occupied as of December
18, 1971... . as a primary place of residence, or as a pri-
mary place of business, or as a subsistence campsite, or as
headquarters for reindeer husbandry; . . .

Donnelly’s § 14(c)(1) claim was not addressed, nor was
his third cause of action against Eklutna, which alleged viola-
tions of equal protection and due process. Pet. App. D at 51a,
m. T,

claims, except for his § 14(c)(1) claim, for lack of subject
matter jurisdiction or for failure to state a claim upon
which relief can be granted. Lee v. United States, 629
F.Supp. 721 (D.Alaska 1985). lLee’s claims against the
federal government and against Eklutna under §$14(g)
and 22(b) and common law theories were consolidated
with two similar cases for appeal to the Ninth Circuit,
which affirmed the judgment of the district court. Lee v.
United States, 809 F.2d 1406 (9th Cir. 1987). Recently,
this Court denied certiorari, sub nom Lee v. Eklutna, Inc.,

— U.S. —, 108 S.Ct. 772 (1988).

During this period, Lee’s 4 14(¢)(1) claim was con-
solidated with Donnelly’s ease by the district court for the
purpose of oral argument on the §14(c)(1) issue. CR-D
284. On November 14, 1986, the district court filed an
order dismissing Donnelly’s and Lee’s § 14(¢)(1) claims,
granting summary judgment to Eklutna, on the grounds,
iter alia, that the disputed lands were at all times validly
withdrawn, that Donnelly and Lee therefore never made
valid entry, and that an illegal occupant cannot gain
rights under ¢ 14(¢)(1). Pet. App. C.

On December 5, 1986, the district court amended its
1982 decision dismissing Donnelly’s homestead claim
against the United States and against Eklutna based on
the validity of the patent, adopting its analysis in Lee v.
United States, 629 F.Supp. 721 (D.Alaska 1985), on those
issues. Pet. App. D. Judgment was issued, which in-
cluded Rule 54(b) certifications on those issues.3 ER-D

The district court also dismissed Donnelly’s constitutional
claims. Pet. App. D at 54a-56a. Eklutna’s ejectment action
against Donnelly is still pending.

10

46-49. The Ninth Circuit affirmed. Donnelly v. United
States, 841 F.2d 968 (9th Cir. 1988).'* Donnelly then filed
this petition. Lee has also filed a petition for certiorari,
No. 88-549, as to his § 14(¢)(1) claim.

co)

REASONS WHY THE PETITION
SHOULD BE DENIED
Donnelly’s non-§ 14(¢)(1) claims were the same as
those litigated and lost by the claimant in Lee v. United
States, supra. This Court recently denied certiorari, 108
S.Ct. 772 (1988), and no reason exists why certiorari
should now be granted on the same claims.

As to Donnelly’s §14(e)(1) claim, the court of ap-
peals was correct in holding that the language and intent
of that law do not require that trespassers be awarded
land at the expense of Native Corporations, the intended
beneficiaries of ANCSA, and that the United States is an
indispensable party to a § 14(c)(1) claim based on a home-
steading claim. This holding does not conflict with the
recent decision of the Alaska Supreme Court in //akala v.
Atzxam Corp., 753 P.2d 1144 (Alaska 1988).

4The reported decision, which was issued on March 10,
1988, is not the Amended Opinion of the Court of Appeals,
issued on June 27, 1988. The Amended Opinion is set forth
at Pet. App. A. The Amended Opinion differs from the re-
ported decision in that having a reference to a case decided
by the Alaska Supreme Court issued just after the reported de-
cision (and apparently without the knowledge of the reported
decision), Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988).
See Pet. App. A at 16a, n.9. See, this Opposition, infra, at pp.
22 to 23.

1]

The court of appeals’ decision does not conflict with
any decision of this Court or of any court of appeals. The
decision does not present a question of general importance
that should be reviewed by this Court.

fay
Vv

I. PETITIONER’S CLAIMS AGAINST THE UNITED
STATES WERE PROPERLY DISMISSED.
Donnelly’s homestead claims against the United States

are the same as Lee’s and involve almost identical facts.

The Ninth Circuit, having held in Lee, 809 F.2d 1406 (9th

Cir. 1987), that virtually identical claims were barred by

the statute of limitations in the Quiet Title Act, 28 U.S.C.

2409a(g), did the same in this case. Donnelly v. United

States, 841 F.2d 968 (9th Cir. 1988). This court denied

certiorari in Lee earlier this year, — U.S. —, 108 S.Ct.

772 (1988), and should do the same in this ease.

Donnelly argues that his counterclaims against the
United States, filed on May 23, 1975, were within the
twelve year statute of limitations under 28 U.S.C.
2409a(g). Petition at 23-24. However, the district court
found that his claim to the disputed lands accrued at
least by 1958, when the BLM rejected his homestead entry,
or by 1961 at the latest, when the BLM issued its survey
covering the contested land and published notice of the
survey in the Federal Register. Pet. App. D at 52a. The
court of appeals agreed with the district court, holding
that Donnelly had sufficient notice of the government’s
adverse claim by the time of the publication in the Fed-
eral Register to start the statute of limitations. 841 F.2d
at 974. The court of appeals further found that Donnelly

12
by 1961 was not engaged in pursuit of administrative
remedies that would toll the statute of limitations and that
he ‘‘sat on his rights’? and brought no quiet title claim
from October 1972, when the Quiet Title Act was enacted,
until May 1975. The statute of limitations expired dur-
ing this period. 841 F.2d at 974 and n8.

The twelve-year statute of limitations began to run
when Donnelly ‘‘knew or should have known of the claim
of the United States’? to the disputed lands. 28 U.S.C.
2409a(g¢); Lee v. United States, 809 F.2d 1406, 1410 (9th
Cir. 1987). Throughout the entire period that Donnelly
dealt with the government, he was constantly being ad-
vised that the lands were withdrawn and that he was in
trespass. Supra at pp. 12-17. As the Lee court of appeals
court stated, SO9 F.2d at 1410:

A claim accrues as soon as a potential claimant either
is aware or should be aware of the existence of and
source of his injury, not when he knows or should
know that the injury constitutes a legal wrong. A
different rule would require insufficient diligence on
the part of potential claimants. See United States
v. Kubrick, 444 U.S. 111, 123-24 (1979).
The factual background that leads to Donnelly’s request
for ‘‘a different rule’’ aptly illustrates dangers of ‘‘insuf-
ficient diligence’’ on the part of claimants and the poten-
tial prejudice to the United States and to innocent third-
parties, such as Eklutna.

In addition, the issue Donnelly raises can only be
resolved through factual determinations that were pre-
viously decided adversely to Donnelly by two lower courts.
In this case, such questions of fact do not constitute an
appropriate subject for a grant of certiorari.

13

II. PETITIONER’S (§14(g) AND 22(b) CLAIMS
AGAINST EKLUTNA WERE PROPERLY DIS-
MISSED ON THE BASIS OF THE LEE PRECE-
DENT.

As Lee before him, Donnelly tries to assert his barred
federal homestead claims against Eklutna by contending
that they constitute a ‘‘valid existing right’? under § 14(¢)
or were renewed by § 22(b) and ean therefore be litigated
against Eklutna. In essence, Donnelly is seeking a way
into the courthouse through the backdoor. He is incon-
gruously arguing that ANCSA, which was enacted to set-
tle the aboriginal claims of Alaska Natives, should be con-
strued to settle beneficially the stale claims of failed
homesteaders, effectively giving those failed homestead-
ers rights against the Natives that they would not have
had against the government.

However, the claim that a failed homesteader can
litigate homestead claims under the guise of §§ l4(g) or
22(b) was rejected when advanced by Lee, who was sim-
ilarly-situated and even represented by the same lawyer.
Lee v. United States, 629 I’.Supp. 721, 725 (D-.Alaska
1985), aff'd 809 F.2d 1406 (9th Cir. 1987), cert. denied
— US. —, 108 S.Ct. 772 (1988). In Lee, the Ninth Cir-
cuit did not reach the merits of the claimant’s arguments
on $9 14(g) and 22(b). Instead, it held that the United
States was an indispensible party to the action whose

The Lee district court held that Lee failed to state a claim
under § 14(g) because that statute protected rights that did not
lead to title (e.g., leases, rights-of-way, easements, etc.). 629
F.Supp. at 729-730. The district court further held that a § 22(b)
claim was a homestead claim that had to be made against the
government, not a Native Corporation which was not under the
duty to convey lands to homesteaders. 629 F.Supp. at 732.

14

absence required dismissal of the claims against the
Native Corporation. 809 F.2d at 1411.

In this case, the court of appeals correctly relied upon
Lee in dismissing petitioner’s claims against Eklutna
under ANCSA §§14(g) and 22(b) on the grounds that
the United States is an indispensable party to a claim
based on a homestead contesting the validity of a federal
patent to a Native Corporation. The question whether
a suit should be dismissed because of the absence of an
indispensable party is governed by Fed. R. Civ. P. 19. The
United States is a party that should be joined under Fed.
R. Civ. P. 19(a) because if Donnelly prevails on his § 22(b)
claim and Eklutna is required to convey the disputed land
to Donnelly, the United States will have to make up the
acreage to Eklutna. 43 U.S.C. 1621(j)(2). Similarly, if
Donnelly prevails on his § 14(g) claim, which is nothing
more than a § 22(b) homestead claim under another guise,
and Eklutna is required to convey the disputed land to
Donnelly, then Eklutna will claim additional lend from the
United States under 43 U.S.C. 1621(j)(2)."© Thus, whether

Under § 22(b), homestead claims are to be decided by
the Secretary before land is patented to a Village Corporation.
Thus, a Village Corporation receives its full land entitlement
notwithstanding any homesteads in the area. On the other
hand, a Village Corporation takes its patent subject to the non-
title § 14(g) rights, which arguably implies that a Village Cor-
poration whose lands are subject to such rights actually re-
ceives less than a Village Corporation whose lands are free
from such rights. However, if Eklutna is required to convey
the disputed homestead land to Donnelly under § 14(g) because
his was a homestead claim that the government did not decide
prior to patent to Eklutna, then Eklutna will claim additional
land from the United States on the same basis as it would if
Donnelly prevails under § 22(b).

15

the United States will be deprived of additional land de-
pends on whether Donnelly prevails in his suit against
Eklutna. See Nichols v. Rysavy, 809 F.2d 1317 at 1333
(8th Cir.), cert. denied 108 S.Ct. 147 (1987):

[T}he result of this suit, on the merits, would depend
entirely on whether the United States acted legally or
iliegally in granting fee patents under the blood quan-
tum policy. If the United States issued the patenis
legally, then the appellants’ action is groundless. ‘‘In
short, the government’s liability cannot be tried ‘be-
hind its back.’ ’’ Mine Safety Appliances Co. v. For-
restal, 326 U.S. 371, 375 (1945)

Federal Rule of Civil Procedure 19(b) requires that,
in the event an interested person under Rule 19(a) can-
not be made a party, the court must determine whether
‘‘equity and good conscience’’ allows the action to pro-
ceed. In this case, an analysis of the four-part test de-
scribed in Rule 19(b) shows that the court of appeals
correctly dismissed Donnelly’s claims because of the ab-
sence of the United States. The first part of the test is
whether a judgment will prejudice the absent party. Here,
the prejudice in the nature of the United States’ obliga-
tion to convey additional lands to Eklutna is clear. The
second part of the test is whether relief may be shaped
to lessen the harm to the absent party. Again, the United
States’ obligation to convey additional land is al solute
and cannot be modified.

The third and fourth parts of the test are whether
a judgment rendered in the absence of the United States
would be adequate and whether the plaintiff would have
an adequate remedy if the action is dismissed for non-
joinder. These factors may indicate to some extent that

16

Donnelly’s suit against Eklutna should proceed. But the
analysis of the fourth factor shows that equitable factors
weigh against allowing such a suit to proceed. In failing
to timely file an action under the Quiet Title Action
(““QTA’’), 28 U.S.C. 2409a, Donnelly simply ‘‘sat on his
hands’’ to the prejudice of Eklutna. By 1961 at the very
latest, Donnelly knew of the goverrment’s position that the
disputed land was not available for homestead. If he had
sued in a timely manner and prevailed, the United States
could properly have been named as defendant, and the
disputed land would have been excluded from selection
and conveyance to Kklutna. Moreover, Eklutna would
have been spared the obligation to defend a claim that is
essentially against the United States. In light of Don-
nelly’s failure to diligently enforce his rights, the court
of appeals correctly concluded in the opinion below, as it
did in Lee, that ‘‘equity and good conscience’’ cannot per-
mit Donnelly to bring his claims contesting the validity
of the patent to Eklutna in the absence of the United
States.

Donnelly misconstrues § 22(b) when he argues that
it provides ‘‘cumulative protection of prior homestead
rights . . .’? as a ‘‘non-QTA remedy since the United
States claims no interest in the lands patented to Native
Corporations.’’ Petition at 12. The provision does in
fact protect valid homestead claims, but no term in it
purports to revive ‘‘prior homestead rights’’ that were
harred by another statute (e.g., the QTA).

In essence, Donnelly’s argument is that Congress in-
tended $22(b) to give new life to every homestead and
similar claim that ever was. If he is correct, then all

17

applications for homestead, trade and manufacturing sites
or any other purposes, whicli were ever denied on all 40
million acres to be conveyed to Native Corporations un-
der ANCSA, can be reopened and given a new two-year
statute of limitations dating from the time of the deci-
sion to convey to a Native Corporation. However, Con-
gress intended ANCSA to be a settlement of aboriginal
claims, not to resurrect stale claims and extend or renew
the period in which to contest old decisions.

To sum, the court of appeals correctly applied the
Lee precedent to the facts in this case and dismissed Don-
nelly’s §§ 14(g) and 22(b) claims against Eklutna attack-
ing the validity of the patent from the United States. This
Court denied certiorari in the Lee case earlier this year.
The Lee case involved virtually identical facts and even
the same lawyer for claimant. There appears to be no
reason why certiorari should be granted in this case on the
§$§ 14(g) and 22(b) issues.

III. CONSTRUCTIVE TRUST IS NOT AN AVAILABLE
REMEDY IN THIS CASE.

The court of appeals correctly dismissed Donnelly’s
common law claim for imposition on Eklutna of a construe-
tive trust in regard to the disputed land. 841 F.2d at 975.
The court of appeals in the first Lee appeals decision dis-
posed of the constructive trust theory on the basis that
the United States was an indispensable party. 809 F.2d
at 1410-11. In this ease the court of appeals in addition
adopted the holding of the district court in Lee, 629 F.
Supp. 721, 728-29 (D.Alaska 1985}, that common law rights
were pre-empted by the comprehensive scheme of ANCSA.
The district court held that, in ANCSA, Congress ‘‘spoke

18

directly’’ to claims such as Donnelly’s, thereby pre-empt-
ing common law causes of action and remedies. Jd. Eklutna
cannot add to well-reasoned decision of the district court
and will only summarize it here.

ANCSA’s language, structure, and legislative history
indicate that Congress intended it to provide a compre-
hensive and final resolution of all issues relating to Native
land claims in Alaska. Congress viewed ANCSA as con-
stituting a complete and detailed ‘‘settlement package,’’
in which Alaska Natives agreed to the extinguishment of
all their claims based upon aboriginal title in exchange for
fee title to more than 40 million acres and a cash settle-
ment of about one billion dollars. H.Conf.Rep. No. 746,
92nd Cong. 1st Sess. 1, 34 (1971), U.S.Code Cong. & Admin.
News 1971, p. 2192 (emphasis original). Allowing private
parties to claim ownership to ANCSA-conveyances under
a host of common-law theories would enable them to under-
mine the ANCSA settlement and to prevent Native Corpo-
rations from fully enjoying the fruits of the settlement for
many years. 629 F.Supp. at 728.

Moreover, Congress ‘‘spoke directly’? in ANCSA con-
cerning individuals’ rights to assert claims to ANCS \-con-
veyance lands based on prior use and occupancy. At least
four separate, detailed ANCSA provisions address and
define these rights. See, §¢14(¢c)(1) (primary place of
residence or occupancy); 14() (leases, contracts, rights-
of-way, and easements); 22(b) (homesteads, headquarter
sites, trade and manufacturing sites, and small tract sites) ;
92(c) (mining claims and locations). Congress believed
that ‘‘fa]ll valid existing rights to [ANCSA-conveyance
lands], ineluding inchoate rights of entrymen and mineral

19

locators, are protected’’ under ANCSA. H.Conf.Rep. No.
746, at 37, U.S.Code Cong. & Admin.News 1971 at 2229.
629 F.Supp. at 728-729.

Since Congress ‘‘spoke directly’? in ANCSA about in-
dividuals’ rights to assert claims to ANCSA lands and
established a comprehensive program for determining such
rights, the district court correctly determined that Con-
gress intended ANCSA to ‘‘occupy the field’’ in this area
and to pre-empt common-law theories. Any attempt to
supplement ANCSA with common-law remedies, such as
the constructive trust theory, would alter the comprehen-
sive legislative scheme adopted by Congress in ANCSA,
rather than to ‘‘fill a gap’’ that Congress has not oceupied.
629 F.Supp. at 729, citing City of Milwaukee v. Illinois, 451
U.S. 304, 313-319 (1981).

IV. PETITIONER’S (§14(c)(1) CLAIM WAS PROP-

ERLY DISMISSED.

Eklutna’s Opposition to Petition for Writ of Certio-
rari in the related case of Lee v. Eklutna, Inc., No. 88-549,
discusses in detail why ANCSA § 14(c)(1) should not be
construed to benefit trespassers such as Donnelly at the
expense of the intended beneficiaries of ANCSA, the
Alaska Natives, and why the court of appeals correctly
held that the United States is an indispensable party to
such a claim when, as here, it arises from a homestead
claim. That discussion is incorporated by reference into
this Opposition and will not be repeated in toto.

A. ANCSA WAS INTENDED TO BENEFIT NA-
TIVES, NOT TRESPASSERS

ANCSA was enacted as a comprehensive settlement
of the claims of Alaska Natives based upon aboriginal

20

title. 43 U.S.C. 1601(a); 117 Cong. Record 4678, 46785-86,
46788 (Dec. 14, 1971). Its overall purpose is to provide
‘‘a fair and just settlement of all claims by Natives and
Native groups of Alaska, based on aboriginal claims . . .’’
43 U.S.C. 1601(a). Congress further intended that ANCSA
be liberally interpreted in favor of the Natives. Cape Fox
Corp. v. United States, 4 Cl.Ct. 223, 231 n. 11 (1983). Not-
withstanding the fact that it is absurd to contend that a
comprehensive statute enacted to settle Native claims
somehow grants rights to a trespasser like Donnelly, he
argues that ‘‘legal or illegal, occupancy . . . alone is the
sole condition’’ to a reconveyance under § 14(¢)(1). Peti-
tion at 21.

Although the language of § 14(c)(1) contains only a
reference to occupancy, it is ‘‘a familiar rule, that a thing
may be within the letter of the statute and yet not within
the statute, because not within its spirit, nor within the
intention of its makers.’’ California Fed. Sav. and Loan
Ass’n. v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 691 (1987),
quoting Church of the Holy Trinity v. United States, 148
U.S. 457, 459 (1892). As in all cases of statutory con-
struction, this Court’s task is to interpret the words of
the statute in light of the purposes Congress sought to
serve. Norfolk Redev. and Housing Auth. v. Chesapeake
and Potomac Tel. Co. of Va., 464 U.S. 30, 36 (1983).

ANCSA was never designed to be remedial legisla-
tion for failed homesteaders. Since ANCSA was enacted
for the purpose of remedying prior wrongs and neglect
suffered by the Native peoples of Alaska, it must be con-
strued in light of this purpose. But if Donnelly is correct
in asserting that § 14(c)(1) applies in this situation, then

21

every rejected homestead entryman, every unsuccessful
applicant for a trade and manufacturing site or headquar-
ters site, and every person who has failed to lawfully ac-
quire a small tract entry, will have vested rights under

§ 14(e) (1).

Even worse, under the Donnelly’s interpretation, will-
ful trespass and knowing violation of the public land laws
would be rewarded under §14(¢)(1). Those, like Don-
nelly, who stay in spite of the rejection of their unlawful
entries, trespass notice, and full knowledge that they have
no right to entry or occupancy, would be entitled to bene-
fits under § 14(¢) (1).

Thus, Donnelly’s interpretation of §14(c)(1) is not
just inconsistent with the spirit of ANCSA, it would ac-
tually defeat the basic intent of the Act.

B. THE DISPUTED LAND WAS AT ALL TIMES
WITHDRAWN FROM ENTRY AND OCCU-
PANCY.

Donnelly contends that his occupancy was legal be-
cause it was not forbidden by § 24 of the FPA. However,
the disputed land was at all material times closed to public
entry and thus not open to homesteading, and Donnelly
was aware of the closed status of the disputed land. Swu-
pra at 2-7. Donnelly attempts to argue that his trespass-
ing was valid occupancy and cites Watt v. Western Nu-
clear, 462 U.S. 36, 48-50 (1983), for the proposition that
§ 24 of the FPA should not be construed to direct one land
use to the exclusion of other uses. However, the Act at
issue in Watt expressly reserved mineral rights to the
United States and simultaneously provided for homestead-
ing on the surface of the lands. ‘‘Congress’ purpose in

severing the surface estate was to encourage the concur-
rent development of both the surface and subsurface of
[the] lands.’’ Jd. at 50. This is hardly analogous to the
withdrawal of public lands from publie entry as provided

in the FPA.

C. THE ALASKA SUPREME COURT HAS NOT
HELD THAT §14(c)(1) OFFERS AMNESTY
TO TRESPASSERS.

Donnelly maintains that court of appeals wrongfully
added a condition of legal occupaney (in Donnelly’s ease,
under the homestead laws, because that is how his claim
arose) to § 14(c)(1). - Petition at 18-23. He argues that
in Hakala v. Atxam Corporation, 753 P.2d 1144 (Alaska
1988), the Supreme Court of Alaska has adopted a read-
ing of §14(¢)(1) that did not impose such a condition.
Donnelly implies that the decision in Hakala is in eonflict
with the court of appeals’ decision in this case.

Donnelly’s characterization of the Hakala case is er-
roneous, because the Alaska Supreme Court found that
legal occupancy was a condition to a § 14(¢)(1) claim. In
ITakala, the Alaska Supreme Court held that a hunting
euide was entitled to a § 14(c)(1) reconveyance for a cabin
used as a primary place of business. The Alaska Supreme
Court saw ‘‘the primary issue’’ as being ‘‘how the court
should interpret the phrase ‘a primary place of business’
as contained in § 14(¢c)(1) of ANCSA.’’ 753 P.2d at 1147.
The court perceived the phrase ‘‘a primary place of busi-
ness’’ as effectuating Congress’ intent to protect a ‘‘wide
array of existing legitimate businesses,’’ those who were
using the lands in ‘‘an established, legal and routine fash-
ion.’? (Emphasis added.) Jd. The court in Hakala was

see

23

apparently not confronted with a trespasser or a claim-
ant who was otherwise on the land illegally. Even so, the
Alaska court clearly required that a claimant under § 14(c)
(1) must be legally on the land, a status which Donnelly
did not have.

In a very recent decision, the Ninth Circuit has noted
that Hakala is consistent with an interpretation of § 14(c)
(1) that denies a right of reconveyance to illegal occupants
but grants a right to legal oceupants. Buettner v. Kavilco,
Inc., — F.2d —, 1988 West Law 111344 (October 26, 1988)
(9th Cir. 1988). Both Hakala and Buettner are discussed
in detail in Eklutna’s Opposition to Petition for Certio-
rari in Lee v. Eklutna, Inc., No. 88-549.

D. THE COURT OF APPEALS CORRECTLY DE-
TERMINED THAT THE UNITED STATES IS
AN INDISPENSABLE PARTY TO DONNEL-
LY’S §14(c)(1) CLAIM TO A HOMESTEAD.
Eklutna relies on its discussion of this point in its
Opposition to Writ of Certiorari in Lee v. Ehlitna, lie.,
no. 88-549. That discussion includes an analysis of Fed.
R. Civ. P. 19(a) and 19(b) which parallels the discussion
in this brief at pp. 13-16.

V. THE DECISION BELOW WAS JUSTLY DECIDED

AND IS OF LIMITED IMPACT.

Although of great importance to Eklutna, this case
will have no practical impact outside the State of Alaska.
Even within the state, its impact will be limited to failed
homesteaders and illegal oecupants of lands conveyed to
Native Corporations. Eklutna does not know how mien.
such persons there are, but there are almost certainly not

24

the “thousands” Petitioner alleges (Petition at 25) with-
out the slightest shred of evidence in the record.

This case involves nothing more than the argument
of a failed homesteader that ANCSA, which was enacted
for the benefit of Alaska’s Natives, provides him with
amnesty from his failure to comply with the provisions
of federal law concerning homesteads and, thereby, entitles
him to 92.5 acres in addition to the 67.5 he has already
received. The district court’s and the court of appeal’s
decisions barring his stale claims, refusing to grant a
trespasser rights under ANCSA at the expense of Alas-
ka’s Natives, and disallowing an attempt to litigate against
a Native Village Corporation claims that rightfully should
have been timely brought against the United States, are—
just and fair.

i)

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Davin P. Woir

James S. CRANE

Counsel for Respondent,
Eklutna, Ine.

CopELAND, LanpYE, BENNETT
anp WoLr

420 L Street, Suite 302
Anchorage, Alaska 99501
(907) 276-5152

A-1
APPENDIX

43 U.S.C. 1603. Declaration of Settlement

(b) Aboriginal title and claim extinguishment where based
on use and occupancy; submerged lands underneath
inland and offshore water areas and hunting or fish-
ing rights included

All aboriginal titles, if any, and claims of aboriginal
title in Alaska based on use and occupancy, including sub-
merged land underneath all water areas, both inland and
offshore, and including any aboriginal hunting or fishing
rights that may exist, are hereby extinguished.

43 U.S.C, 1607. Village Corporations

(a) Organization of Corporation prerequisite to receipt
of patent to lands or benefits under chapter

The Native residents of each Native village entitled
to receive lands and benefits under this chapter shall or-
ganize as a business for profit or nonprofit corporation
under the laws of the State before the Native village may
receive patent to lands or benefits under this chapter,
except as otherwise provided.

43 U.S.C. 1610. Withdrawal of public lands

(b) List of Native villages subject to chapter; review;
eligihility for benefits; expiration of withdrawals for
villages; alternative eligibility; eligibility of unlisted
villages

(1) The Native villages subject to this chapter are

as follows:

NAME OF PLACK AND REGION

Eklutna, Cook Inlet

43 U.S.C. 1611. Native Land Selection

(a) Acreage limitation; proximity of selections and size
of sections and units; waiver

A-2

(1) During a period of three years from December
18, 1971, the Village Corporation for each Native village
identified pursuant to section 1610 of this title shall select,
in aecordance with rules established by the Secretary, all
of the township or townships in which any part of the
village is located, plus an area that will make the total
selection equal to the acreage to which the village is en-
titled under section 1613 of this title. The selection shall
be made from lands withdrawn by section 1610(a) of this
title: Provided, that no Village Corporation may select
more than 69,120 acres from lands withdrawn by section
1610(a)(2) of this title, and not more than 69,120 acres
from the National Wildlife Refuge System, and not more
than 69,120 aeres in a National Forest: Provided further,
That when a Village Corporation selects the surface es-
tate to lands within the National Wildlife Refuge System
or Naval Petroleum Reserve Numbered 4, the Regional
Corporation for that region may select the subsurface
estate in an equal acreage from other lands withdrawn
by section 1610(a) of this title within the region, if pos-
sible.

Federal Rule of Civil Procedure 19.

Joinder of Persons Needed
for Just Adjudication.

(a) Persons To Be Joined If Feasible. A person
who is subject to service to process and whose joinder
will not deprive the court of jurisdiction over the subject
matter of the action shall be joined as a party in the action
if (1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the person
claims an interest relating to the subject matter of the
action and is so situated that the disposition of action
in the person’s absence may (i) practical matter impair
or impede the person’s ability to protect that interest or
(11) leave any of the persons already parties subject to a
substantial risk of ineurring double, multiple, or other-
wise inconsistent obligations by reason of the claimed
interest. If the person has not been so joined, the eourt
shall order that the person be made a party. If the person

A-3

should join as a plaintiff but refuses to do so, the person
may he made a defendant, or, in a proper case, an invol-
untary plaintiff. If the joined party objects to venue
and joinder of that party would render the venue of the
action improper, that party shall be dismissed from the
action.

(b) Determination by Court Whenever Joinder Not
Feasible. If a person as_ described in_ subdivision
(a)(1)-(2) hereof cannot be made a party, the court shall
determine whether in equity and good conscience the ac-
tion should proceed among the parties before it, or should
be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court
include: first, to what extent a judgment rendered in the
person’s absence might be prejudicial to the person or
those already parties; second, the extent to which, by pro-
tective provisions in the judgment, by the shaping of
relief, or other measures, the prejudice can be lessened
or avoided; third, whether a judgment rendered in the
person’s absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0196%3A3. Public record. Not legal advice.