# Opposition — Park County v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0787%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1112

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0787%3A2. Public record. Not legal advice.