Opposition Brief — Donnelly v. Eklutna, Inc.

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

THERESE U. DONNELLY, PETITIONER

V.

EKLUTNA, INC., ET AL.

JAMES W. LEE, PETITIONER

Vv.

EKLUTNA, INC., ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

EDWARD J. SHAWAKER

ViCKI L. PLAUT

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether petitioner Donnelly’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) (Supp. IV).

2. Whether the United States is an indispensable party

to petitioner Donnelly’s quiet title suit against the respond-

ent Alaska Native corporations that hold the disputed land

under patents issued by the United States pursuant to the

Alaska Native Claims Settlement Act (ANCSA), 43

U.S.C. 1601 ef seq.

3. Whether a person who is a trespasser on federal

land that previously was withdrawn for a special! federal

purpose and then was patented to a Native corporation

under ANCSA can obtain title to the surface estate under

Section 14(c) of ANCSA.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Amoco Production Co. v. Village of Gambell, No.

I ie od ow aan ane baa eae aee 8 5

Buetiner v. Kavilco, Inc., No. 87-4435 (Oct. 26, 1988)... 20

Davis v. Nelson, 329 F.2d 840 (9th Cir. 1964) ........... 14

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947) .. 14

Guam v. United States, 744 F.2d 699 (9th Cir. 1984) ..... 14

Hakala v. Axtam Corp., 753 P.2d 1144 (Alaska 1988) ... 20, 23

Kuehner v. Heckler, 778 F.2d 152 (3d Cir. 1985) ........ 14

Lee v. Eklutna, Inc., No. 87-642 (Jan. 27, 1988) ........ 9,11

Lee v. United States, 629 F.Supp. 721 (D. Alaska 1985),

aff'd, 809 F.2d 1406 (9th Cir. 1987), cert. denied, No.

I kn wb Gas sae accanawws eee i; a

8, 9, 10, 16

Milwaukee v. Illinois, 451 U.S. 304 (1981) ....00........ 18

Statutes, regulations and rules:

Alaska Native Claims Settlement Act, 43 U.S.C. 1601

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S 14teu1), 43 U.S.C. 161ScM)).............. 8, 9, 11, 18,

19, 20, 21, 22, 23

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Statutes — Continued: Page

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Poderal Power Act, 06 U.S.A... GUS .. <2 2c cc ee ccceess 2

Quiet Title Act, 28 U.S.C. 2409 ef seq.:

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28 U.S.C. 20bGala) Gun. TV)... 22 cc ccc cece 7, 11

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Fed. R. Civ. P.:

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PE eos ay cedadenadnahs Fears Whee ewe aD 16, 17

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Miscellaneous:

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2b Fed. Reg. DORR CISGN) . . .5 cee ccc ect enseres

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-533

THERESE U. DONNELLY, PETITIONER

Vv.

EKLUTNA, INC., ET AL.

No. 88-549

JAMES W. LEE, PETITIONER

v.

EKLUTNA, INC., ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet. App.

la-17a) is reported at 850 F.2d 1313. The opinions and

findings of the district court (Pet. App. 18a-86a) are

unreported.

JURISDICTION

The decision of the court of appeals was rendered on

March 10, 1988, and a timely petition for rehearing was

denied on June 27, 1988 (Pet. App. 4a, 94a-97a). The peti-

(1)

2

tion for a writ of certiorari was filed on September 24,

1988. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

These cases concern the ownership of several parcels of

land in the Eagle River Valley near Anchorage, Alaska.

The parcels in question are part of a tract that was

patented by the United States in 1979 to respondent Eklut-

na, a Native corporation that was established under the

Alaska Native Claims Settlement Act (ANCSA), 43

U.S.C. 1601 et seq. Prior to 1979, however, the land was

included in Power Site Classifications 107 and 399, which

were issued in 1925 and 1950, respectively, pursuant to 43

U.S.C. 31 and Section 24 of the Federal Power Act, 16

U.S.C. 818. Pet. App. 18a-19a. The background of these

two cases is essentially identical to that of Lee v. United

States, 629 F. Supp. 721 (D. Alaska 1985), aff'd, 809 F.2d

1406 (9th Cir. 1987), cert. denied, No. 87-642 (Jan. 27,

1988) [hereinafter Lee J], and No. 88-549 involves the

same petitioner and the same parcel of land as Lee /.

1. Section 24 of the Federal Power Act provides that

land included in a proposed power project site shall be

“reserved from entry, location, and other disposal under

the laws of the United States * * *.” The issuance of

A Classifications 107 and 399 therefore had the effect of )

withdrawing the parcels at issue in this case from entry |

under the public land laws. Section 24 of the Federal

Power Act further provides that if the Federal Power

Commission (FPC)! determines that any of the land set

' The FPC has been abolished and its duties transferred to the

Secretary of Energy and the Federal Energy Regulatory Commission

See 42 U.S.C. 7151(b), 7171(a), 7172(a), 7291 and 7293.

a

aside for a power site will not be injured or destroyed for

purposes of power development if it is made available for

location, entry, or selection under the public land laws, the

Secretary of the Interior, after giving 90 days’ notice to the

Governor of the State, shall declare the land open to entry

under those laws. In 1952, the FPC determined that cer-

tain of the land covered by Power Site Classifications 107

and 399 would not be injured for purposes of power

development by location or entry under the public land

laws. However, the Secretary of the Interior did not

thereafter revoke the withdrawal and declare the land

open for entry or settlement. Pet. App. 5a.?

In 1957, petitioner Donnelly and petitioner Lee moved

onto separate tracts of land in the Eagle River Valley, with

the expectation of homesteading those tracts. Some of the

land on which each petitioner settled was open for

homesteading. However, in 1957 and 1958, the Bureau of

Land Management (BLM) informed petitioners that other

portions of the proposed homestead sites — the portions at

issue here— were within the power site classifications and

for that reason would not be available until BLM formally

opened them for entry. Although petitioners were invited

to appeal, they did not do so. Pet. App. 34a, 63a-65a; Lee

/, 809 F.2d at 1407.

Petitioners Donnelly and Lee did, however, file renewed

homestead applications for the same parcels. At the same

lime, petitioners resorted to political channels, joining

with other would-be homesteaders in the area in writing to

members of the Alaska congressional delegation and to

> “Pet. App.” refers to the appendix to the petition for a writ of cer-

uorari in No. 88-533.

* Upon his death, Joseph F. Donnelly, the original party in interest,

was succeeded by his wife, Therese U. Donnelly. For ease of

reference, however, we refer to Joseph Donnelly as “petitioner.”

4

the Secretary of the Interior. Responding to these in-

quiries, both the Director of BLM and the Assistant Secre-

tary of the Interior reiterated that petitioners had no rights

in land within the power-site withdrawal. The Director of

BLM explained to Delegate (later Senator) Bartlett that

“ijn the absence of special legislation, we know of no way

of assuring the Lees and the Donnellys of continued oc-

cupancy of the lands for homestead purposes. Any settle-

ment on power-site lands which have not been opened to

entry is a trespass against the United States and no rights

can be gained thereby” (Pet. App. 67a-68a). The Assistant

Secretary also informed a representative of homestead ap-

plicants in the area that portions of their proposed

homestead sites were not open to entry; that further action

by the Department of the Interior with respect to the land

would have to await completion of an engineering survey;

and that even if the power-site withdrawal were revoked,

the State of Alaska and veterans would have preference

rights (id. at 36a, 69a-70a, 113a-114a; Lee J, 809 F.2d at

1407). In 1959, BLM informed petitioner Donneliy that

his second homestead application was invalid and that

“any use or occupancy of these lands will constitute a

trespass against the United States” (Pet. App. 70a-71a; see

also id. at 35a). Donnelly once again did not take an ap-

peal pursuant to administrative procedures (id. at

7la-72a). Petitioner Lee’s application was similarly re-

jected in 1961 (id. at 36a).

In 1961, after publishing notice in the Federal Register,

BLM filed a platted survey of the area that delineated, in-

ter alia, the boundaries of Classifications 107 and 399 in

relation to the potential homestead sites selected by peti-

tioners. 26 Fed. Reg. 2486. Soon thereafter, BLM notified

petitioner Donnelly that upon finalization of the survey, it

would permit him to file a renewed homestead application

for the land outside the power-site withdrawal (Pet. App.

———————————

72a-74a). BLM made clear, however, that “[t}his notice is

not to be construed as granting any rights or concessions

to the withdrawn lands” (id. at 73a). In 1964, both peti-

tioners entered into compromise arrangements with BLM

that enabled them to submit proof of occupancy for those

portions of the proposed homestead entries that were

located outside the withdrawal area and to receive patents

from the United States for those portions (id. at 13a-14a,

37a). Under this arrangement, petitioner Donnelly re-

ceived a patent to 67.5 acres of the land in his original

160-acre homestead claim and petitioner Lee received a

patent to 95 acres of his original 160-acre claim (id. at 6a,

38a). The instant petitions concern only the portions of the

160-acre sites selected by Donnelly and Lee that were

within the power-site withdrawal area.

2. On December 18, 1971, Congress enacted ANCSA,

which was intended to settle the aboriginal land claims of

Native Alaskans. Under Section 4 of the ANCSA, 43

U.S.C. 1603, all claims of aboriginal title in Alaska were

extinguished. See Amoco Production Co. v. Village of

Gambell, No 85-1239 (Mar. 24, 1987), slip op. 3-4. At the

same time, Congress provided for regional and village

Native corporations organized under ANCSA to select

and receive title to public land in Alaska, including land

within certain power-site withdrawals. See 43 U.S.C.

1602(e), 1610-1614.4 In addition, Section 22(b) of ANCSA

* ANCSA permits each Native village corporation to select a

minimum of 69,120 acres of public land from lands withdrawn under

the Act. 43 U.S.C. 1611(a)(1), 1613(a). ANCSA defines “public land”

as “all Federal lands and interests therein located in Alaska,” except

the smallest practicable tract surrounding any federal facility and land

selected by the State of Alaska under its Statehood Act. 43 U.S.C.

1602(e). Power-site withdrawals are “public land” under this defini-

tion, and they therefore may be selected by a Native corporation

under ANCSA.

6

directed the Secretary of the Interior to issue patents to all

persons who had made lawful entry in compliance with the

public land laws for the purpose of gaining title to

homesteads, headquarter sites, trade and manufacturing

sites, or small tract sites (43 U.S.C. 1621(b)). These

patents were to issue promptly after ANCSA was passed,

so that the Native corporations could select lands with the

assurance that they would not be patented to others.

Pursuant to Section 14 of ANCSA, 43 U.S.C. 1613, the

Native village corporation of Eklutna filed a land selection

that included the parcels at issue here. In 1979, the United

States issued Eklutna a patent to the surface estate in the

land and issued respondent Cook Inlet Region, Inc., the

regional Native corporation for the area, a corresponding

patent to the subsurface estate. Lee J, 809 F.2d at 1408.

3. a. In 1975, the United States filed a trespass action

against petitioner Donnelly with respect to the 92.5 acres

he claimed within the power-site withdrawal. Later that

year, Donnelly filed a counterclaim against the United

States under the Quiet Title Act (QTA), 28 U.S.C. 2409a,

seeking to quiet title to the disputed land in himself. In

1979, after the United States patented the land to Eklutna

under ANCSA, petitioner also filed a counterclaim against

Eklutna (which had intervened to protect its interest in the

disputed land), as well as a second amended counterclaim

against the United States. In its final form, petitioner

Donnelly’s counterclaim against the United States sought

to (i) quiet title in petitioner to the portion of the Native

corporation’s land for which petitioner had sought to

make a homestead entry some years earlier; (ii) force the

Department of the Interior to invalidate Eklutna’s patent

for the same land, accept petitioner’s homestead applica-

tion, and patent the land to Donnelly instead; and (iii) en-

join the government from disturbing his use and occupan-

cy of the land. Petitioner Lee also filed a direct action

7

against the United States and Eklutna raising similar

claims.

b. On January 25, 1980, after the United States

patented the disputed land to Eklutna, the district court

granted the government’s motion to dismiss its trespass

claim against Donnelly. Pet. App. 6a. Following a bench

trial, the court also dismissed Donnelly’s counterclaims

against the United States and Eklutna (id. at 6a-7a). The

district court held that it lacked jurisdiction over

Donnelly’s claim against the United States because it was

barred by the 12-year statute of limitations under the

QTA, now codified at 28 U.S.C. 2409a(g) (Supp. IV) (Pet.

App. 23a). The district court reaffirmed that ruling in its

December 5, 1986 opinion (id. at 50a-57a), finding that

petitioner “knew or should have known of the claim of the

United States” at least by 1958, when BLM rejected his

original homestead entry, or, at the latest, by 1961, when

BLM completed its survey covering the contested land and

published notice of the survey in the Federal Register (/d.

at 52a).

The district court also rejected petitioner Donnelly’s

claims against respondent Eklutna (Pet. App. 3la,

32a-49a, 5O0a-57a). The court first dismissed petitioner’s

challenge to Eklutna’s patent because petitioner was

jurisdictionally barred by the QTA’s statute of limitations

from establishing that his title was valid as against the

United States (id. at 3la, Sla n.1). The court later reaf-

firmed that dismissal, and further held that the federal

common-law basis for petitioner’s claim against respond-

ent Eklutna had been preempted by ANCSA, and that

petitioner could not assert a claim against Eklutna under

Section 22(b) of ANCSA because that provision imposes

duties only on the Secretary of the Interior, not on Native

corporations (Pet. App. 52a-53a).° In a decision rendered

> The court noted in passing that even if petitioner Donnelly had

filed a Section 22(b) claim against the Secretary, his claim would have

——————o~

8

on January 23, 1985, the district court rejected similar

claims by petitioner Lee against the United States and

Eklutna. Lee J, 629 F. Supp. 721.

c. Finally, in a decision rendered on November 13,

1986, the district court rejected the remaining contention

advanced by both Lee and Donnelly —namely, that they

were entitled to receive title to the surface estate in the

disputed parcels under Section 14(c)(1) of ANCSA. That

Section provides that upon receipt of the patent, a village

corporation shall first convey to any Native or non-Native

occupant, without consideration, title to the surface estate

in a tract that was occupied as of December 18, 1971, “as a

primary place of residence, or as a primary place of

business, or as a subsistence campsite, or as headquarters

for reindeer husbandry” (43 U.S.C. 1613(c)(1)). The

district court held that “mere physical presence” is not suf-

ficient to constitute “occupancy” for purposes of Section

14(c)(1) and that Congress did not intend Section 14(c)(1)

to apply to “mere[] trespassers, failed homesteaders, or

land users without any vested rights prior to 1971’ (Pet.

App. 43a, 49a).

4. Petitioner Lee’s claims against the United States

and Eklutna—except for his claim against Eklutna seeking

title tothe surface estate under Section 14(c)(1) of ANC-

SA—were the subject of a separate — which was

decided by the court of appeals on April 17>-+°82. Lee /,

809 F.2d 1406. In that decision, the court of app |

agreed with the district court that petitioner Lee’s suit

against the United States was barred by the 12-year statute .

of limitations in the QTA, because he knew or should have

known of the United States’ claim by 1961, when the notice

been barred by the QTA’s 12-year statute of limitations (Pet. App. 53a

n. 2).

9

of survey was published in the Federal Register (809 F.2d

at 1410). The court of appeals also affirmed the district

court’s dismissal of Lee’s action against Eklutna to quiet

title to the 65 acres Lee claimed within the power-site

withdrawal, on the ground that the United States was an

indispensable party that could not be joined because of the

bar created by the QTA’s 12-year statute of limitations (id.

at 1410-1411). This Court denied Lee’s petition for a writ

of certiorari seeking review of these rulings by the court of

appeals in Lee J (Lee v. Eklutna, Inc., No. 87-642 (Jan.

27, 1988)), and Lee (unlike Donnelly) no longer challenges

those rulings.

5. The decision of the court of appeals at issue here

was rendered almost a year later, on March 10, 1988 (Pet.

App. la-17a). In that decision, the court first affirmed the

district court’s dismissal of petitioner Donnelly’s quiet title

claims against the United States and Eklutna, which were

essentially identical to those rejected in Lee J. Adopting its

reasoning in Lee J, the court held that Donnelly’s action

against the United States is barred by the 12-year statute of

limitations under the QTA, since he knew or should have

known of the United States’ adverse claim when the notice

of survey was published in the Federal Register in 1961 (id.

at 1la-14a), and that Donnelly’s title action againt Eklutna

cannot proceed because the United States is an indispen-

sable party that cannot be joined because of the QTA’s

12-year statute of limitations (id. at 14a-1 Sa).

The court of appeals also affirmed the district court’s

is f the claims against Eklutna by both petitioner

Donnelly and petitiOner-tee-seeking title to the surface

estate of their respective parcels under Section 14(cjtijy of

ANCSA (Pet. App. 15a-17a). The court held that Section

14(c)(1), which requires Native corporations to convey

surface rights to certain “occupants” of land patented to

10

the corporations, does not operate as an “amnesty provi-

sion” for individuals who are trespassers or failed

homesteaders (Pet. App. 15a). The court explained that it

found “no indication of congressional intent to override

the established principle that individuals could obtain no

rights to withdrawn lands,” and that “the congressional in-

tent to provide a ‘just and fair settlement’ of native land

claims is inconsistent with an interpretation of § 14(c)(1)

that would reduce the land patented to native corporations

in favor of trespassers” (id. at 15a-16a (citation and foot-

notes omitted)). The court of appeals acknowledged peti-

tioners’ contention that they were not trespassers because

the Secretary was required to revoke the power-site

withdrawal in the 1950s and issue homestead patents to

them, and that they therefore had equitable title to the

disputed parcels. But the court held that, under its dec!-

sion in Lee J, the United States is an indispensable party to

an action seeking to establish petitioners’ equitable title

and that the United States cannot be joined because of the

12-year statute of limitations under the QTA (id. at 16a).°

ARGUMENT

The court of appeals correctly held that petitioner Don-

nelly’s quiet-title action against the United States is barred

by the 12-year statute of limitations under the Quiet Title

Act and that his quiet title action against resp sndent

Eklutna is barred because the United States is an indispen-

sable party to such a suit and cannot be joined. The court

of appeals’ rulings on these issues do not conflict with any

* The court of appeals also rejected petitioner Donnelly’s “construc-

tive trust” claim against respondent Eklutna. Relying on the district

court’s decision in Lee / (629 F. Supp. at 728-729), the court held that

ANCSA “occupies the field” in this area and preempts federal

common-law claims (Pet. App. 16a)

11

decision of this Court or of another court of appeals, and

they present no question of general importance warranting

review by this Court. In fact, the Court last Term denied

petitioner Lee’s petition for a writ of certiorari challenging

the court of appeals’ identical rulings in Lee J (Lee v.

Eklutna, Inc., No. 87-642 (Jan. 27, 1988)), and there is no

reason for a different disposition here. The attempi dy

both petitioners to avoid the result in Lee J by seeking title

to the surface estate of the disputed parcels under Section

14(c)(1) of ANCSA likewise does not warrant review. The

court of appeals’ decision denying relief under Section

14(c)(1) in the circumstances of this case does not conflict

with any decision of this Court or of another court of ap-

peals and does not involve considerations of general im-

portance under ANCSA. The petitions for a writ of cer-

tiorari therefore should be denied.

1. Petitioner Donnelly contends (88-533 Pet. 9-18,

23-25) that he has equitable title to the 97.5-acre portion of

his original homestead claim that was within the power-

site withdrawal, because the Secretary of the Interior

should have revoked the withdrawal in the 1950s and

issued him a homestead patent to the disputed parcel. The

court Of appeals properly denied Donnelly relief on that

claim, both against the United States and against respond-.-

ent Eklutna.

a. The court of appeals correctly held that Donnelly’s

claim against the United States is barred by the 12-year

statute of limitations in the Quiet Title Act (Pet. App.

| la-l4a). Under 28 U.S.C. 2409a(g) (Supp. IV), any QTA

action is barred “unless it is commenced within twelve

years of the date upon which it accrued,” and an action

“shall be deemed to have accrued on the date the plaintiff

or his predecessor in interest knew or should have known

of the claim of the United States.” Both courts below

12

found that Donnelly knew or should have known of the

United States’ adverse claim to the land in 1958, when

BLM denied his first homestead application (Pet. App.

65a-68a); in 1959, when BLM rejected his second

homestead application and notified him that continued oc-

cupancy would be a trespass against the United States (id.

at 70a-71a); or, at the latest, in 1961, when BLM published

and recerded its survey describing the disputed area as

withdrawn (id. at 72a). See id. at 13a, 23a, 52a. Each of

those dates was more than 12 years prior to 1975, when

Donnelly first sought to have the court quiet title in him,

as against the United States. Donnelly’s QTA claim

against the United States therefore is time-barred.

Furthermore, petitioner Donnelly’s attempt to obtain

relief against the United States under the QTA is essential-

ly identical to that made by petitioner Lee but rejected by

both courts below in Lee J. In the late 1950s, both Lee and

Donnelly sought to obtain homestead patents to 160-acre

parcels that included some land that was not subject to en-

try under the homestead laws because it had been

withdrawn as a potential power site. BLM therefore

denied the homestead applications of both petitioners for

the full 160 acres, although both petitioners ultimately

were issued homestead patents to the portions of their

respective parcels that fell outside the power-site with-

drawal. Despite BLM’s unequivocal rejection of their ap-

plications for a patent to the land within the power-site

withdrawal and the publication in the Federal Register of a

survey specifically marking the scope of the United States’

claim, both petitioners failed to take timely action to

preserve any claims they may have had to the portions

within the power-site withdrawal. This Court declined to

review the holding by both courts below that Lee’s quiet

title claim against the United States therefore was time-

13

barred, and the identical fact-bound claim is no more

worthy of review here.

Contrary to Donnelly’s submission (88-533 Pet. 23-24),

the communications with government officials after 1959

concerning his homestead entry did not constitutesan ad-

ministrative appeal of the Department’s rejectiom of his

application for land within the power-site withdrawal.

Petitioner in fact took no appeal of BLM’s rejection of his

1959 application. Indeed, in the district court, petitioner

acknowledged that he knew of the government’s adverse

claim based on the power-site withdrawal and that he

deliberately decided not to appeal: he stated that he took

no appeal because he “could not be expected to repeatedly

appeal a matter on which the Secretary of the Interior had

spoken so conclusively in 1959” (Clerk’s R. 251, at 7).

During and after 1959, Donnelly sought to obtain a dif-

ferent result through political, not legal channels, by

writing letters to his congressional representatives and the

Secretary. In every communication to or about petitioner

Donnelly in response to these inquiries, the Department of

the Interior reiterated that the land within the power-site

withdrawal was not available for homestead entry and that

continued occupancy of that land constituted a trespass

against the United States. See pages 3-4, supra. The

Department did undertake to ascertain how much of the

160-acre area sought by Donnelly fell outside the

withdrawn area, so that this land—which was open to

homestead entry —could be patented to him. But it was

clear at all times that this undertaking by the Department

did not constitute an appeal by Donnelly of the Depart-

ment’s rejection of his application for lands inside the

withdrawn area. See 43 C.F.R. 221.! ef seg. (1958);

Department of the Interior Circular 1950, 21 Fed. Reg.

14

1860 (Mar. 27, 1956); Davis v. Nelson, 329 F.2d 840, 847

(9th Cir. 1964).’

Petitioner Donnelly’s related argument (88-533 Pet.

23-24) that he was entitled to individualized notice and

that he therefore was not sufficiently put on notice by the

March 15, 1961, publication in the Federal Register of the

government’s claim to the withdrawn area is also without

merit. The primary purpose of the Federal Register is to

furnish notice to the world of its contents, and the world is

therefore charged with such notice. See 44 U.S.C. 1507;

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-385

(1947); Kuehner v. Heckler, 778 F.2d 152, 161 (3d Cir.

1985). See also Government of Guam v. United States, 744

F.2d 699, 701 (9th Cir. 1984) (publication of United States’

claim in Federal Register triggered running of QTA’s

limitations period). Petitioner had no pending appeal at

the time of the publication in the Federal Register; but

even if he did, one who is involved in ongoing dealings

with an agency surely should not be held to a lesser stand-

ard of notice than the world at large. Any other rule would

completely undermine the Federal Register’s function of

furnishing official notice to citizens at large of the

’ Donnelly erroneously relies (88-533 Pet. 23-24) on a departmental

notice to him dated May 12, 1961. That notice stated that Donnelly

was not then required to reduce his application to cover only land out-

side the power-site withdrawal, because a survey was contemplated;

but the notice expressly stated that it was “not to be construed as

granting any rights or concessions to the withdrawn area” and that at

the completion of the investigation, a new decision with an ap-

propriate appeal period would be issued “calling for an application to

enter on the lands not withdrawn” (Pet. App. 87a-88a). This notice,

which was sent to Donnelly more than 12 years before he filed his

QTA claim, thus made clear that the Department continued to reject

any claim to lands that were withdraw ..

15

government’s actions and decisions. Moreover even if

Donnelly’s argument regarding the Federal Register notice

were sound, the judgment of the court of appeals would

still be correct: as that court further held (Pet. App.

13a-14a), Donnelly already had personal notice sufficient

to trigger the QTA’s limitations period as of 1959, when

BLM notified him for the second time that his homestead

entry had been rejected.®

b. Petitioner Donnelly further contends (88-533 Pet.

9-11, 14-18) that even if his QTA claim against the United

States was properly dismissed, his suit against respondent

Eklutna should have been permitted to continue. In par-

ticular, Donnelly argues (id. at 9-11) that the court of ap-

peals erroneously held that his quiet title suit against

Eklutna is subject to and barred by the 12-year statute of

limitations in the QTA. Donnelly mischaracterizes the

basis of the decision below. The court of appeals did not

hold that the 12-year statute of limitations that governs

QTA suits against the United States is directly applicable

to Donnelly’s quiet title suit against Eklutna. Rather, rely-

ing on its prior decision in Lee J, the court simply held that

the United States is an indispensable party to Donnelly’s

§ Donnelly also contends (88-533 Pet. 12-13) that his claim seeking a

patent from the United States should be governed by the statute of

limitations in ANCSA (43 U.S.C. 1632(a)), which provides that a deci-

sion of the Secretary under ANCSA shall not be subject to judicial

review unless such review is initiated within two years. In Donnelly’s

view, his claim is timely under Section 1632(a) because it was filed

before the expiration of two years after the Secretary issued the patent

to respondent Eklutna in 1979. However, as we explained in response

to petitioner Lee’s identical argument in Lee / (87-642 Br. in Opp. 9

n.5), Section 1632(a) was intended to /imit claims; it was not intended

to revive claims against the United States that were already barred by

another statute (e.g., the QTA) at the time the Secretary rendered the

relevant decision under ANCSA.

16

quiet title suit against Eklutna but that the United States

cannot be joined as a defendant because the QTA’s statute

of limitations bars Donnelly’s claim against the United

States (Pet. App. 14a-15a, quoting 809 F.2d at 1410-1411).

Donnelly does not even mention, much less rebut, the

indispensable-party basis for the court of appeals’ decision

dismissing his quiet title claim against Eklutna. There ac-

cordingly is no reason for the Court to grant review of the

court of appeals’ judgment in that respect, especially since

the Court has already denied review of that issue in Lee /.

Moreover, as we explained in our brief in opposition in

Lee I (87-642 Br. in Opp. 12-16), the indispensable-party

holding in Lee J (and therefore in this case) is correct

under Fed. R. Civ. P. 19. The United States plainly has an

“interest” (within the meaning of Rule 19(a)) in Donnelly’s

suit against Eklutna, because if he were to succeed in this

case and thereby deprive Eklutna of its title to the 97.5

acres, Eklutna would be entitled to receive other land from

the United States to compensate for that diminution of its

statutory entitlement. See 87-642 Br. in Opp. 13-14 & n.1.

Because the United States therefore is a necessary party,

but cannot be joined as a defendant in Donnelly’s suit to

establish his title because of the QTA’s statute of limita-

lions, it is necessary to determine whether “in equity and

good conscience the action should proceed among the par-

ties before it, or should be dismissed, the absent person

being thus regarded as indispensable” (Fed. R. Civ. P.

19(b)).

A weighing of the four factors that are among those to

be considered in making a determination under Rule 19(b)

establishes that the dismissal in this case was proper. The

potential prejudice to the United States is clear, because if

Donnelly were to prevail in his suit against Eklutna, the

United States would stand to lose its title to an equivalent

amount of land. Nor can relief be shaped in a way that

17

would lessen the harm to the United States. The remaining

two factors identified in Rule 19(b) might be thought to

weigh in favor of allowing the suit to proceed, since the

court presumably could enter an adequate judgment in the

absence of the United States and Donnelly does not have

an adequate remedy at the present time if his suit against

Eklutna is dismissed. However, the latter factor is scarcely

compelling, because Donnelly plainly did have an ade-

quate remedy in the form of a suit against the United

States under the QTA, but he voluntarily allowed the time

for filing such a suit to expire. Moreover, Rule 19(b) in the

end requires a court to rely on “equity and good con-

science” in determining whether a suit should be dismissed

because of the absence of a necessary party. Here, because

petitioner’s problems are of his own making, and because

any judgment entered in favor of Donnelly against Eklut-

na would ultimately redound to the detriment of the

United States, the court of appeals’ conclusion that the

United States is an indispensable party in the circum-

stances of this case is amply supported by “equity and

good conscience.” In any event, the question whether the

United States is an indispensable party under the par-

ticular statutory and regulatory framework implementing

the selection rights of Alaska Native corporations is not

one of general importance that warrants review by this

Court.’

* Donnelly relies (88-533 Pet. 14-18) on a common-law theory of

constructive trust in seeking to wrest title to the 97.5 acres trom re-

spondent Eklutna. However, as we explained in Lee / in response to

petitioner Lee’s reliance on the same constructive-trust theory and

cases (see 87-642 Br. in Opp. 12), this argument ignores the particular

factual circumstances and statutory framework of this case. Even if a

federal common-law constructive-trust action against the patentee

survived the enactment of ANCSA and the QTA, the United States

would be an indispensable party to such an action because the United

18

2. Petitioner Donnelly and petitioner Lee both con-

tend (88-533 Pet. 18-23; 88-549 Pet. 11-27) that even if

they cannot succeed on their claim that they already have

equitable title to the disputed parcels (on the theory that

the Secretary was required to rescind the power-site with-

drawal in the 1950s and immediatety issue them homestead

patents that included those parcels), respondent Eklutna is

required to convey the title to the surface estate in those

parcels to them under Section 14(c)(1) of ANCSA.!° This

effort by petitioners to avoid the consequences of their

failure to press their homestead claims against the United

States in a timely manner does not warrant this Court’s at-

tention.

a. Petitioners first appear to suggest (88-533 Pet. 20,

21-22; 88-549 Pet. 7, 20-21, 25) that the court of appeals

held (i) that a plaintiff may not bring an action under Sec-

tion 14(c)(1) of ANCSA to compel a Native village cor-

poration to convey title to the surface estate unless the

plaintiff also brings a quiet title action against the United

States to establish that he already has title to the land; and

(ii) that an action against the village corporation therefore

States would be required to convey an additional amount of land to

the Native corporation to compensate for any land that the corpora-

tion was found to hold in constructive trust for Donnelly. Moreover,

both courts below held that under the rationale of Milwaukee v. II-

linois, 451 U.S. 304, 313-319 (1981), a federal common-law

constructive-trust action does not survive the enactment of ANCSA,

because ANCSA occupies the field of disputed title to lands selected

by Native corporations (Pet. App. I6a; Lee /, 629 F. Supp. at

728-729).

'© Section 14(c)1) provides that a Native village corporation to

which a patent has been issued shall first convey to a Native or non-

Native occupant the title to the surface estate that wis occupied as of

December 18, 1971, “as a primary place of residence, or as a primary

place of business, or as a subsistence campsite, or as headquarters for

reindeer husbandry” (43 U.S.C. 1613(c)(1)).

19

will always be barred if an action against the United States

with respect to the same land does not lie under the QTA.

Petitioners are mistaken if they actually read the court of

appeals’ opinion in this manner, which would effectively

render the United States an indispensable party to every

suit under Section 14(c)(1).

We agree with petitioners that suits under Section

14(c)(1) are disputes that arise principally between the

Native village corporation and the plaintiff asserting oc-

cupancy rights, since the village corporation’s duty to con-

vey title to the surface estate arises only after the United

States has issued a patent to the corporation. We further

agree that the United States is not an indispensable party

to an ordinary suit under Section 14(c)(1), since if the

plaintiff obtains title to the surface estate he actually oc-

cupies, the United States is not obligated to issue a patent

to the Native corporation for an additional amount of

land. In this respect, suits by third parties to obtain title to

the surface estate in the first instance under Section

14(c)(1), based on past occupancy, differ from quiet-title

and similar suits by third parties claiming that they a/ready

have title to the land and that the United States therefore

could not convey title to the Native corporation in the first

place.

Contrary to petitioners’ apparent contention, however,

the court of appeals did not hold otherwise in this case.

The court did not dismiss petitioners’ Section 14(c)(1)

claims because of the absence of an indispensable party

(the United States) that could not be sued. It instead re-

jected petitioners’ Section 14(c)(1) claims on the merits,

concluding that that Section does not afford amnesty

relief to persons whose homestead claims were barred be-

cause the land for which they applied had been withdrawn

for a special federal purpose and who therefore were tres-

20

passers on the unavailable land. Pet. App. 15a-1l6a. Peti-

tioners sought to answer this reasoning by contending that

they were not in fact trespassers because they had

equitable title to the land, on the theory (which the court

of appeals had already found to be barred) that the Secre-

tary was required to revoke the power-site withdrawal in

the 1950s and patent the parcels to petitioners under the

homestead laws (id. at 16a). It was only in response to that

claim by petitioners of preexisting ¢it/e, rather than merely

past occupancy, that the court of appeals then discussed

petitioners’ inability to establish title to the parcels because

the QTA’s 12-year statute of limitations bars a quiet title

action against the United States (/bid.). The court did not

suggest that the ability to bring a timely quiet-title suit

against the United States is a prerequisite to Section

14(c)(1) suits generally. This reading of the opinion below

is confirmed by the Ninth Circuit’s subsequent decision in

Buettner v. Kavilco, Inc., No. 87-4435 (Oct. 26, 1988), in

which it decided the merits of a claim under Section

14(c)(1) without any suggestion that the absence of the

United States as a party presented a jurisdictional or pro-

cedural defect. The Supreme Court of Alaska likewise has

decided a Section 14(c)(1) claim on the merits without any

suggestion that the absence of the United States presented

an obstacle to its doing so. Hakala v. Axtam Corp., 753

P.2d 1144 (1988). Accordingly, the decision below does

not warrant review On any question involving the status of

the United States as an indispensable party under Section

14(c)(1).

b. Nor does the court of appeals’ rejection of peti-

tioners’ Section 1I4(c)(1) claims on the merits warrant

review by this Court. Because suits under Section 14(c)(1)

are principally between the plaintiff and the Native village

corporation and do not directly involve the United States,

21

the United States did not take a position in the court of ap-

peals on the merits of petitioners’ claims under Section

14(c)(1), and we do not take a definitive position on the

scope of that Section here. However, whatever may be the

application of Section 14(c)(1) to other persons who might

be termed “trespassers” on federal lands, the circum-

stances of this case do lend particularlized support to the

court of appeals’ rejection of petitioners’ claims and serve

to distinguish those claims from others that have arisen or

may arise under Section 14(c)(1).

This case involves land that had long been withdrawn

from entry under the public land laws at the time it was

patented to respondent Eklutna in 1979, and petitioners

had been repeatedly informed, beginning more than 20

years earlier, that they had no rights in the land and were

trespassers on it. In fact, the United States brought a

trespass action against petitioner Donnelly in 1975, four

years before the land was patented to Eklutna. As a result,

petitioners did not have the sort of expectation of con-

tinued possession that Section 14(c)(1) was intended to

protect. Indeed, petitioners were specifically informed

when their homestead applications were denied in the late

1950s that if the power-site withdrawal were subsequently

revoked, as petitioners urged, they would not necessarily

receive a homestead patent to the land they sought within

the withdrawal area, because other persons —the State of

Alaska and veterans—would have preference rights to

select the same land. See page 4, supra. The effect of the

court of appeals’ interpretation of Section 14(c)(1) in this

case is simply to recognize an additional person (respond-

ent Eklutna) who also was given a preference right to

select the land. Accordingly, the Section 14(c)(1) claims in

this case are quite different from those that might be ad-

vanced in other cases by persons who built a home or

engaged in business on land in the public domain that had

not been withdrawn for a special federal purpose.

Moreover, even if the court of appeals erred in con-

cluding that Section 14(c)(1) is wholly inapplicable to land

within a power-site withdrawal, it does not follow that

Section 14(c)(1) would support a claim to more than the

land on which a residence or place of business was ac-

tually built, as well as the immediately adjacent area (the

curtilage). Compare Buettner v. Kavilco, supra (involving

“lots” on which homes had been built); Halaka v. Axtam

Corp., supra (holding that only the business site and the

surrounding curtilage were covered by Section 14(c)(1)).

In particular, there is substantial reason to doubt that Sec-

tion 14(c)(1) was intended to afford a basis for obtaining

title to the surface estate in an entire 160-acre homestead

claim (or the 97.S5-acre and 65-acre portions of such a

claim that petitioners seek in this case), which would en-

compass far more than the residence or business and the

curtilage.'' In fact, petitioner Lee, in response to a notice

of trespass served by the government, removed his im-

provements from the parcel within the withdrawal area in

November 1971 (Pet. App. 39a-40a). He therefore did not

even have a residence or business on the land he claims to

‘' These factors may distinguish the claims of most if not all of the

$9 individuals who have filed a brief as amici curiae in this case. That

briet does not disclose how many (if any) such claims involve land that

was withdrawn for a special federal purpose. Moreover, the motion

accompanying the bref states (mot. at 3) that most of the individuals

are Operators of commercial fishing sites, which presumably would in-

volve clanms that are far more modest than those advanced by peti-

tioners here. Indeed, amici concede (mot. at 4) that “[t}he interests of

the fitty-nine 14¢c) Claimants differ from that of Petitioners, in that

Donnelly Lee were principally interested in obtaining broader relief in

the courts below under the Homestead Act in order to receive ttle to

More acreage than would be the case under ANCSA 14(c).”

£3

have “occupied” on December 18, 1971, the relevant date

under Section 14(c)(1) of ANCSA.'?

In any event, the decision of the Ninth Circuit regarding

the application of Section 14(c)(1) in the circumstances of

this case does not conflict with the decision of any other

court of appeals, since such claims to land in Alaska under

ANCSA cannot arise in other federal circuits. Significant-

ly, moreover, the only other case decided by the Ninth Cir-

cuit under Section 14(c)(1) involved persons who lawfully

occupied the land in question under permits issued by the

Forest Service (Kavilco, slip op. 13399), and the Ninth Cir-

cuit sustained their claims. Nor, contrary to petitioners’

contention (88-533 Pet. 9; 88-549 Pet. 21), does the court

of appeals’ application of Section 14(c)(1) conflict with the

decision of the Alaska Supreme Court in Halaka. The

Alaska Supreme Court there construed the phrase

“primary place of business” in Section 14(c)(1); it did not

consider whether trespassers generally, or trespassers on

withdrawn lands in particular, are eligible to receive title

to the land under Section 14(c)(1). To the contrary, the

court in Halaka described Section 14(c)(1) as affording

protection to persons “who had previously utilized the

lands in an established, /ega/ and routine fashion” (753

P.2d at 1147 (emphasis added)). Finally, as noted above,

neither Kavilco nor Halaka supports petitioners’ invoca-

tion of Section 14(c)(1) to obtain title to their entire home-

stead claims, rather than to only the land under and

immediately surrounding a residence or business establish-

ment.

For the foregoing reasons, and because petitioners’

homestead claims are not typical of those arising under

Section 14(c)(1), review by this Court is not warranted.

‘2 Petitioner Donnelly, on the other hand, defied the notice of

trespass and retained a residence within the withdrawn area on

December 18, 1971 (Pet. App. 40a).

24

CONCLUSON

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

EDWARD J. SHAWAKER

Vick! L. PLAUT

Altorneys

JANUARY 1989

US GOVERNMENT PRINTING OFFICE 1969—241 699 00049