Opposition — Park County v. United States

tre.

No. 39-785 LEO

Ses } 066 20 190

<N TAE SUPREME COURT

WICMAEL RODAK

OF ‘THE Renato RSM ¢

UNITED STATES

October Term, 1980

PARK COUNTY, MONTANA and SWEET GRASS

COUNTY, MONTANA, political subdivisioas

of the STATE OF MONTANA,

Petit:.ones,

-_VS-

UNTTZD STATES OF AMERICA, acting by aad

“hough the SECRETARY OF AGRICULTUPS:

sna the FOREST SUPSRVISOR of che Gailatin

Nat:ional Forest, and CROSS CREEK PROTEC

MOVE RESOCIATICN,

Fespondents.

——— . ——<_—=-—<—--

On WRIT OF CEXTIOKA2I TC TH*

COURT OF AV?LALS

YOR THE NINTH Clecurirt

—— —-— ee ee ed re — oo ooo

FetThe ce CROSS CREEK PROTECTIVE

ASSTCLATSON TN OPEOSIVION TO

PETITION YOR CERT LORABS.

ee

eavasel for Resneadent, CROSS CRUEX

PROTECTIVE ASSOCIATION:

JAMéS H. COETZ

Goetz &« Maiaen

Pp, O. BOX 1322

Povemaa, Montana 597i5

vhone: (ACO) 5§7-06018

No. 80-783

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1980

PARK COUNTY, MONTANA and SWEET GRASS

COUNTY, MONTANA, political subdivisions

of the STATE OF MONTANA,

Petitioners,

UNITED STATES OF AMERICA, acting by and

through the SECRETARY OF AGRICULTURE

and the FOREST SUPERVISOR of the Gallatin

National Forest, and CROSS CREEK PROTEC-

TIVE ASSOCIATION,

Respondents.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF CROSS CREEK PROTECTIVE

ASSOCIATION IN OPPOSITION TO

PETITION FOR CERTIORARI

wh ws

INDEX OF CONTENTS

CASE CITATIONS

STATUTES OF UNITED STATES

RULES OF SUPREME COURT

STATUTES INVOLVED

QUESTIONS PRESENTED

STATEMENT

ARGUMENT AND LEGAL AUTHORITY

CONCLUSION

CERTIFICATE OF SERVICE

ll

ll

we

CASE CITATIONS

Gendron v. United States

402 F. Supp. 46 (E.D.

Cal., 1974), aff'd 524

F. 2d 1154 (9th Cir.,

1975)

Grosz v. Andrus

556 F. 2d 972 (9th

Gaines 2977)

H-10 Water Taxi Co. Ltd.

v. United States

379 F. 2d 963 (9th Cir.,

1967)

Mann v. United States

399 F. 2d 672 (1968)

Munro v. United States

303 U.S. 38

Power v. United States

390 F. 2d 602 (9th Cir.,

1968)

Sentilles v. Inter-Caribbean

Shipping Corp.

iauees ge. 0.8. 107,

nue aes ee 21S, 4 LR.

142

Simmons v. Vinson

eee es 24 732 (5th Cir.,

1968)

Soriano v. United States

352 U.S. 270

United States v. Sherwood

312 U.S. 584 (1941)

Page

10

10

10

10

10

-iii-

STATUTES OF UNITED STATES

28 U.S.C. 2409

28 U.S.C. 2409a

28 U.S.C. 2409a(f)

43 U.S.C. 932

RULES OF SUPREME COURT

Rule 17

Rule 28

= Men

STATUTES INVOLVED

The statute involved is 28 U.S.C.

§2409a, Federal quiet title statute,

which is reproduced at pp. 3-5 of the

Petition for Certiorari.

QUESTIONS PRESENTED

l. Whether the 12-year statute of

limitations under 28 U.S.C. §2409a(f)

applies to every action brought under

that act, notwithstanding that the

plaintiff is a state, a political subdi-

vision of a state, or some other govern-

mental entity; and,

2. Whether the district court pro-

perly concluded that as a matter of law

there was adequate notice that the

plaintiff counties knew or should have

known of the claim of the United States

to the purported right-of-way more than

12 years before this action was brought.

STATEMENT

Petitioners are counties, which are

political subdivisions of the State of

Montana. On October 4, 1976, Petition-

ers filed a complaint, pursuant to 28

U.S.C. §2409, to quiet title to a claimed |

_ PREVIOUS PAGE WAS BLANK |

-3-

easement across certain lands located

within the boundaries of the Gallatin

National Forest. Subsequently, Cross

Creek Protective Association (herein-

after referred to as "Cross Creek"), a.

local citizen organization, was allowed

to intervene as a defendant. |

The Petitioners claim that they es-

tablished the alleged road in 1893 across

the unreserved public domain pursuant

to 43 U.s.c. §932.+

The United States and Cross Creek both

raised the 12-year statute of limitations,

28 U.S.C. §2409a(f), as a bar to the

counties' actions. The Petitioners con-

tend that, notwithstanding its literal

wording, * the statute of limitations is

1

43 U.S.C. §932 reads as follows:

"The right of way for the construc-

tion of highways over public lands,

not reserved for public uses, is here-

by granted. R.S.§2477."

The Gallatin National Forest was not cre-

ated until 1902 (then called the "Absaroka"

National Forest). Therefore, the right-

of-way in question was not "reserved for

public uses" in 1893 when the road alleg-

edly was established.

228 U.S.C. §2409a(£) provides:

"Any Civil action under this section

shall be barred unless it is commenced

within 12 years of the date upon which

it accrued...."

a"

inapplicable to them because they are

"political subdivisions” of the state

government.

The District Court rejected the Pe-

titioners' argument holding that it had

no power to engraft exceptions for any

reasons to the language of 28 U.S.C.

§2409a(f) and that the 12-year statute

of limitations must be strictly construed.

The Court of Appeals affirmed.

Dismissal and Summary Judgment were

granted on the statute of limitations

question. The District Court and the

Court of Appeals held that the purported

right-of-way travels a route following

two Forest Service trails. The District

Court concluded that "[U]nquestionably

the trails are United States Forest Ser-

vice trails. The Forest Service has

maintained the trails since the early

part of the Twentieth Century. Neither

of the counties has maintained the pur-

ported road or authorized expenditures

of any county money to maintain the

routes in the Absaroka National Forest."

(See p. 20, Appendix to Petition for

Certiorari).

The lower courts also found that a

ofa

portion of the claimed right-of-way

follows a trail which passes through

Absaroka Primitive Area, which was es-

tablished in April of 1932. In 1962,

over 12 years before commencement of

this action, the Forest Service placed

a sign on the trail at the north end of

the Absaroka Primitive Area at a point

at which the purported road follows the

trail. The sign stated "Entering

Absaroka Primitive Area--Motor Vehicles

Prohibited--Gallatin National Forest."

The Circuit Court observed: "The

sign gave notice that motor vehicle

traffic was being prohibited by the

Forest Service. A rock barrier was

also placed across the trail in front of

the sign. The district court, therefore,

properly concluded that in 1962 the For-

est Service claimed ownership and juris-

diction of the land traversed by the pur-

ported right-of-way by posting notice

of its interest... The county should

have known of the United States' claim

to the lands in question on or before

October 4, 1964." (P. 16, Appendix to

Petition for Writ of Certiorari).

=6~=

ARGUMENT AND LEGAL AUTHORITY

The two questions presented are unim-

portant. The Petition for Certiorari

puts forward no persuasive reason why the

limited and valuable time of the United

States Supreme Court should be spent on

this case.

The second question listed above

under "Questions Presented" is simply

whether summary judgment is proper. It

appears that the Petitioners want an op-

portunity to re-argue the particular

facts of the case to persuade this Court

that there are material factual issues

in dispute which warrant a remand. See

concurring opinion of Justice Stewart

in Sentilles v. Inter-Caribbean Shipping

Corp., (1959) 361 U.S. 107, 111 S. Ct.

173, 4 L. Ed. 24 142: "To review indi-

vidualized personal injury cases, in

which the sole issue is sufficiency of

the evidence, seems to me not only to

disregard the Court's proper functions,

but also to deflect the Court's energies

from the mass of important and difficult

business properly here...."

The other question at issue, whether

the statute of limitations, 28 U.S.C.

~ =

§2409a(f) applies to subdivision of state

governments, is likewise unimportant.

There is no conflict among the Federal

Circuits or among the states on this

question. There is no showing that the

decisions below are in conflict with de-

cisions of this Court. No showing is

made that this case fits any of the cate-

gories listed under Rule 17, Rules of the

Supreme Court of the United States.

Apart from the unimportance of the

issues (beyond the interests of the

immediate parties), it is the case that

the questions presented were correctly

decided by the courts below.

The reasons underlying the require-

ment of strict compliance with Federal

statutes of limitations are concisely

articulated in numerous Federal cases.

In United States v. Sherwood, 312 U.S.

584 (1941), this Court said:

"The United States, as sovereign,

is immune from suit save as it

consents to be sued (citing cases)

...and the terms of its consent to

be sued in any court define that

court's jurisdiction to entertain

the suit. (Emphasis added).

Thus, the United States is immune from

suit unless it consents to be sued. This

is a jurisdictional question. Unless

=§-

Congress confers jurisdiction, there is

none. And jurisdiction is conferred on

such terms, restrictions, and limitations,

as Congress sees fit. This is confirmed

in Munro v. United States, 303 U.S. 38,

where the Court held:

"Suits against the United States

can be maintained only by per-

mission, in the manner prescribed

and subject to the restrictions

imposed. Reid v. United States,

2ii U.S. 529, 535." 363 U.S. at

41.

Prior to the enactment of the quiet

title statute here in question (28 U.S.C.

§2409a), there was no right to sue the

Federal Government to quiet title. See’

Simmons v. Vinson, 394 F. 2a 732 (5th

Cir., 1968). The enactment of 28 U.S.C.

§2409a constituted a limited waiver of

sovereign immunity by the Congress--but

such waiver was upon the conditions that

the Congress established. Among such

conditions was the statute of limita-

tions, 28 U.S.C. §2409a(f), which is as

follows:

"Any civil action under this sec-

tion shall be barred unless it is

commenced within twelve years of

the date upon which it accrued...."

(Emphasis added).

=Qu

Petitioner asks this Court, on policy

grounds, to carve an exception to the rule

of strict compliance with the statute of

limitations for entities of local govern-

ment. This cannot be done if the integ-

rity of the principle of Federal sovereign

immunity is to be preserved.

The Ninth Circuit has squarely re-

jected a similar plea for relaxed compli-

ance with a federal statute of limitations

in Mann v. United States, 399 F. 2d 672

(1968). In Mann, an Indian brought un-

timely suit under the Federal Tort Claims

Act. He argued on appeal (after dismis-

sal) that the limitation period should be

enlarged for him, for policy reasons.

The Ninth Circuit rejected his plea,

finding itselt without power to change

the strictures established by Congress:

"...{WJe are...convinced that

Congress has left no room for an

exception to be made in the pre-

sent case. Although exceptions

to the applicability of the limi-

tations period might occasionally

be desirable, we are not free to

enlarge that consent to be sued

which the Government, through

Congress, has undertaken so care-

fully to limit. See United States

v. Sherwood, 312 U.S. 584...(1971).

The limitations period established

=-10-

by Congress 'must be strictly ob-

served and exceptions thereto are

not to be implied.*" 352 U.S. 220,

226 (1957). {Emphasis added).

In the present case, there is no ex-

ception for states or counties contained

in the statute of limitations, 28 U.S.C.

§2409a(f). Indeed, the language is

clear and to the contrary. As stated

by this Court in Soriano v. United States,

352 U.S. 270, there must be strict ob-

servance of the limitations period es-

tablished by Congress, and exceptions

"are not to be implied."

There being no exceptions to the re-

quirements of 28 U.S.C. §2409a(f),

Petitioners are forced to ask this Court

to find one by implication. These policy

arguments would be better directed to

Congress. As the Supreme Court indicated

in Soriano, the judiciary is not free to

develop exceptions. See also Gendron v.

United States, 402 F. Supp. 46 (E.D.Cal.,

1974), aff'd. 524 F. 2d 1154 (9th Cir.,

1975); Grosz v.-Andrus, 556 F. 2a 972

(9th Cir., 1977); Power v. United States,

390 F. 2d 602 (9th Cir., 1968); H-10 Water

Taxi Co. Ltd. v. United States, 379 F. 2a

ooh Yu

963 (9th Cir., 1967).

CONCLUSION

For the foregoing reasons, the

Petition for Writ of Certiorari should

be denied.

| Respectfully submitted,

JAMES H. GOETZ

i ; /

ee ea

Counsel of Record for

, Respondent Cross Creek

Protective Association

Address: P.O. Box 1322

Bozeman, Montana

59715

CERTIFICATE OF SERVICE

The undersigned, a member of the

Bar of the Supreme Court of the United

States, and counsel of record for

Respondent, Cross Creek Protective

Association, does hereby certify, pur-

suant to Rule 28 of the Rules of the

United States Supreme Court, that on

the 5 day of December, 1980, copies

of the foregoing Brief were served upon

all parties required to be served as

follows:

=

ot} en

Solicitor General

Department of Justice

Washington, D. C. 20530

Conrad B. Fredricks

Sweet Grass County Attorney

115 West 2nd Avenue

P. O. Box 1047

Big Timber, Montana 59011

Bruce Becker

Park County Attorney

Park County Courthouse

Livingston, Montana 59047

Kenneth Olson !

Special Deputy Sweet Grass

County Attorney

Suite 316, 600 Central Plaza

Great Falls, Montana 59401

vhs

Dated this / aay of December, 1980.

LYUME-

SRES: i. “bits

a