Petition for Writ of Certiorari — Lee v. Eklutna, Inc.

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87-642 PRET

| CT 29 yee7

vOSEPH FL SFANIOL JR

Ct Eben

No. 8/7-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

LEE, RALPH A. EKLUND

CORA CARR,

JAMES W.

‘

ana

Petitioners,

EKLUTNA, INC., COOK INLET

REGION, INC., UNITED STATES

AMERICA, SECRETARY OF THE

INTERIOR, and DIRECTOR,

RUREAU OF LAND MANAGEMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

Steven P. Cliver

720 M Street, Suite 20]

Anchorage, Alaska 99501

(907) 276-6106

Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

Ls Jurisdiction under the Quiet

Title Act of 1972 is limited to suits

against the United States concerning land

in which the United States claims an in-

terest, 28 U.S.C. §2409a(a), (e). In

1979 the United States disclaimed all

interest in certain lands when it patent-

ed lands in fee (and not in trust) to

private entities under 43 U.S.C. §1613.

Petitioners thereafter sued these private

patentees to establish petitioners' supe-

rior title under the homestead laws, 43

U.S.C. §161 et seg, invoking jurisdiction

under 28 U.S.C. §1331.

Was it proper for a Court of Appeals

to create a novel requirement that home-

stead claimants must sue the United

States under the Quiet Title Act as an

indispensable party, in whose’ absence

homesteaders' actions against private

patentees could not proceed, thus extend-

ing to private party patentees the bene-

fit of the Quiet Title Act's statute of

limitations, 28 U.S.C. §2409a(g)?

es The Secretary of the Interior

misrepresented the legal status of dis-

puted lands when asked by petitioners

in 1959. If petitioners must sue under

the Quiet Title Act on any of their caus-

es of action, is that Act's statute of

limitations, 28 U.S.C. §2409a(g), tolled

because of the government's active con-

cealment that the lands were subject to

entry under 16 U.S.C. §818?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

Opinions Below

Jurisdiction

Statutes

STATEMENT

REASONS FOR GRANTING THE WRIT

I PETITIONERS NEED NOT SUE

THE UNITED STATES TO ESTABLISH

THEIR HOMESTEAD TITLES

A. Petitioners' Claims

Against Private Parties

Do Not Require the

United States to be a

Party Defendant.

B. This Court Has Already

Decided That the United

States Is Not a Necessary

Party in Suits Between

Private Parties.

C. The United States Is Not

a Trustee of These Lands.

D. The Quiet Title Act Was

Not Intended to Shield

Patentees From Enforcement

of Superior Title Under

the Public Lands Statutes.

Il PETITIONERS' CLAIMS UNDER ANCSA

§22(b) ARE LIMITED ONLY BY

43 U.S.C. §1632(a). aa

Lid THE QUIET TITLE ACT'S STATUTE

OF LIMITATIONS SHOULD BE

TOLLED BY THE GOVERNMENT'S

MISREPRESENTATIONS OF THE

STATUS OF THE LANDS CLAIMED

BY PETITIONERS. 37

Conclusion 42

APPENDIX la

Order and Second Amended Opinion

of the United States Court of

Appeals for the Ninth Circuit,

April 17, 1987 2a

Amended Opinion of the United States

District Court for the District

of Alaska, February 28, 1986 l6a

Judgement of the United States Court

of Appeals for the Ninth Circuit,

entered 3-10-87 48a

Order denying petition for rehearing

from Second Amended Opinion of

United States Court of Appeals

for the Ninth Circuit,

July 22, 1987 50a

Federal Power Act of 1920, §24;

16 U.S.C. §818 52a

Quiet Title Act of 1972, as amended;

28 U.S.C. §2409a 54a

43 0.8.C. $161 58a

43 U.S.C. $164 e

Alaska Native Claims Settlement Act,

§2(b); 43 U.S.C. §1601(b)

Alaska Native Claims Settlement Act,

§14(g); 43 U.S.C. §1613(g)

Alaska Native Claims Settlement Act,

§22(b); 43 U.S.C. §1621(b)

43 U.S.C. $1632(a)

AS (Alaska Statutes) 9.10.230

58a

6la

TABLE OF AUTHORITIES

Alaska v. Thorson, 91 1I1.D. 331 (1984) 32

Ard v. Brandon, 156 U.S. 537 (1895)

5, 24, 25

Arizona v. California, 298 U.S. 558

(1936) 17

Block v. North Dakota, 461 U.S. 273

(1983) 13, 26, 282 342 38

Bockfinger v. Foster, 190 U.S. 116

(1903) 23, 24

~ Bohall v. Dilla, 114 U.S. 47 (1884) i)

Bourdieu v. Pacific Oil Co.,

299 U.S. 65 (1936) 14, 18

Bowen v. City of New York, 106 S.Ct.

2022 (1986) 38, 39

Cattle Co. v. Becker, 147 U.S. 47 23

Cornelius v. Kessel, 128 U.S.

456 (1888) 24

Daniels v. Wagner, 237 U.S. 547

(1915) 21, 23

Duluth & Iron Range R. Co. v. Roy,

173 U.S. 587 (1899) 8, 9, 24, 25

Economic Development and Industrial

Corp. v. United States, 720

F.2d 1 (lst Cir. 1983) 10, 12, 29

In re Emblen, 161 U.S. 52 (1896) 226 aa

Federal Marine Terminals, Inc. v.

Burnside Shipping Co., Ltd.,

394 U.S. 404 (1969) 9

Garland v. Wynn, 20 How. 6 (1857) 9

Glus v. Brooklyn Eastern District

Terminal, 359 U.S. 232 (1959) 38

Great Northern Ry. v. Reed, 270 U.S.

539 (1926) 9, 24

Holmberg v. Armbrecht, 327 U.S. 392

(1946) 38

Johnson v. Towsley, 80 U.S. (13 Wall.)

72 (1871) 8, 9, 22, 23, 25

Kale v. United States, 489 F.2d

449 (9th Cir. 1973) 25

Kansas v. United States, 204 U.S.

331 (1907) 17

Knapp v. Alexander-Edgar Lumber Co.,

137 U.S. 162 (1915) 23

Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682 (1949) 18

Lee v. Johnson, 116 U.S. 48 (1885) 9

Lytle v. Arkansas, 9 How. 314

(1850) 9, 23

McIntyre v. United States, 568 F.Supp.

1 (D.Alaska 1983), aff'd 789 F.2d

1408 (9th Cir. 1986) 11, 20, 24, 25, 26

Marquez v. Frisbie, 101 U.S. 473 22

Vii

Merrill, Lynch, Pierce, Fenner &

Smith, Inc. v. Curran, 456 U.S.

353 (1982) 9

Minnesota v. Hitchcock, 185 U.S.

373 (1962) 17

Moore v. Robbins, 96 U.S. 530

(1877) 9, £240 42

Nichols v. Ryvasy, 809 F.2d 1317

(8th Cir. 1987) 26

Payne v. Central Pacific, 255 U.S.

228 (1921) 9

Payne v. New Mexico, 255 U.S. 367

(1921) 8

Provident Tradesmen's Bank & Trust

Co. v. Patterson, 390 U.S.

102 (1968) 14, 17, 18, 19

Reeves v. Andrus, 465 F.Supp. 1065

(D.Alaska 1979) 4

Shepley v. Cowan, 91 U.S.

330 (1875) te ae

Silver v. Ladd, 74 U.S. 219 (1869) 23

Smelting Co. v. Kemp, 104 U.S. 636 22

Stark v. Starrs, 6 Wall. 402 (1867) 7

Steel v. Refining Co., 106 U.S. 447 22

Turner Co. v. Sawyer, 150 U.S. 578 23

United States v. Atlantic Richfield,

435 F.Supp. 1009 (D.Alaska 1977),

aff'd 612 F.2d 1132 (9th Cir.

1980), cert. den., 449 U.S. 888

(1980) 27

viii

United States v. Beebe, 127 U.S. 338

(1888) 18

United States v. Gammache, 713 F.2d

588 (10th Cir. 1983) 29

United States v. Kubrick, 444 U.S.

111 (1979) 41

United States v. Mottaz, 106 S.Ct.

2224 (1986) kan £96 EO

United States v. Whited & Wheless,

246 U.S. 552 (1918) 29

Wilcox v. Jackson, 38 U.S. 498

(1839) ; 9

Wyoming v. United States, 255 U.S.

489 (1921) 7, 8

Van Wyck v. Knevals, 16 Otto. 360

(1882) 8

Yosemite Valley Case, 15 Wall. 77

(1872) 8

5 U.8.¢. $702 6

Federal Power Act of 1920, §24;

16 U.S.C. §818 ii, 2-5, 8, 39-41

28 U.S.C. $1254(1) 2

28 U.8.€.-$i1233i is -§

Quiet Title Act of 1972;

28 U.S.C. §2409a A, ii, 2, Se

9-13, 15, ahy 24, 27-3h, 33, 35°38, 42

43 U.8.C. $161

43 U.S.C. §164 2,

Alaska Native Claims Settlement

Act §2(b); 43 U.S.C. §1601(b)

Alaska Native Claims Settlement

Act §14(g); 43 U.S.C. §1613(g)

Be @e Be thy 15. 32,

Alaska Native Claims Settlement

Act $22(6); 43 U.S.C. Si€2itb)

2, 9, ids Léa»

43 U.S.C. §1632(a)

AS (Alaska Statutes) 9.10.230

Sutherland, Stat. Const., §70.03

(4th Ed.)(Supp. 1987)

aa,

335

PETITION FOR WRIT OF CERTIORARI

Petitioners James W. Lee, Ralph A.

Eklund and Cora Carr respectfully pray

that a writ of certiorari issue to review

the judgment and Second Amended Opinion

of the United States Court of Appeals

for the Ninth Circuit entered in this

proceeding.

OPINIONS BELOW

The Second Amended Opinion of the

Court of Appeals is reported at 809 F.2d

1406 and is set forth in the Appendix,

page 2a. The Amended Opinion of the

United States District Court for the

District of Alaska is reported at 629

F.Supp. 721 and appears in the Appendix,

page l6a.

JURISDICTION

The Court of Appeals for the Ninth

Circuit entered a judgment on March 10,

1987. An order denying a petition for

rehearing from its Second Amended Opinion

was entered July 22, 1987. The jurisdic-

tion of this Court is invoked under 28

U.S.C. §1254(1).

STATUTES

This Petition involves the following

statutes: Federal Power Act of 1920 (as

amended), 16 U.S.C. §818; Quiet Title

Act of 1972 (as amended), 28 U.S.C.

§2409a; 43 U.S.C. §161, §164; Alaska Na-

tive Claims Settlement Act §§2, 14(g),

22(b), 43 U.3.C. §§1601, 1613(g),

1621(b), 1632(a); AS (Alaska Statutes)

9.10.230. These statutes are set out

in the Appendix.

STATEMENT

Petitioners!’ in the iate 1950s

staked separate homestead claims to 160--

acre tracts in the Eagle River Valley

1. Mrs. Carr's claim was filed by her late

husband, Warren Carr. The acts of Warren Carr

will be referred to herein as the acts of peti-

tioner Cora Carr.

in Alaska. 43 U.S.C. §§161, 164 provide

that a person shall be entitled to enter

160 acres of land and, upon completion

of residence, cultivation and improvement

requirements, shall be given a patent

for the lands entered. Petitioners per-

formed the statutory requirements’ for

160-acre tracts. CR-87; CR-80; CR-79,

CR-2158.

Parts of each of these tracts were,

prior to 1952, designated as

"pDower-sites" by the Department of the

Interior. 16 U.S.C. §818 (Federal Power

Act of 1920, §24) ("§24 FPA") provides

in part:

Whenever the [Federal Power ]

Commission shall determine that the

value of any lands of the United

States so applied for, or heretofore

or hereafter reserved or classified

aS power Sites, will not be injured

or destroyed for the purposes of

power development by location, entry

or selection under the public-land

laws, the Secretary of the Interior,

upon notice of such determination

shall declare such lands open to lo-

cation, entry, or selection, .. .

The language emphasized by petitioners

was intended to assure that the "not be

injured" determination results in immedi-

ate opening of such lands to homestead

entrymen. Cong. Rec., Vol. 58, pp. 2242-

-2243 (1919). Cf. Reeves v. Andrus, 465

F.Supp. 1065 (D.Alaska 1979).2/

‘In 1952 the Federal Power Commission

determined that the lands here involved

will not be injured or destroyed for

purposes of power development by lo-

cation or entry under the public land

laws, subject to the provision of

Section 24 of the Federal Power Act.

CR-108, Exhibit D to part (D). This was

the "not be injured" determination re-

ferred to in §24 FPA, above. Although

petitioners eventually received patents

to parts of their 160-acre tracts, the

2. There was no legal or practical reason why

petitioners' entry had to await an engineering

survey. Petitioners refrain from elaborating

on this subject because it does not appear mate-

rial to the issues of this petition.

BLM refused petitioners their full grant

contained in 43 U.S.C. §164.

Petitioners in 1959 sent a letter

asking the Secretary of the Interior to

look into the matter, the BLM having

advised petitioners that the land was

withdrawn until the Secretary would

release it to them. CR-i0G, Ex. K to

part (Oo). An assistant secretary

responded on behalf of the Secretary,

There has been some confusion over

the fact that although the Federal

Power Commission had indicated that

it was no longer interested in the

reserve, the reserve had not been

opened to entry. Any misinformation

is sincerely regretted but the fact

remains that any settlement of the

reserved lands cannot be recognized

under existing law .. . You may

rest assured that we are not going

to take any arbitrary action.

CR-108, Exhibit L to part (D). Lee, Ek-

lund and Carr were ignorant of the actual

terms of §24 FPA. CR-114, Affidavit;

CR-EK-12, Affidavit; CR-159, Affidavit.

They relied on the Secretary's represen-_

tations as to the legal status of the

lands. Id. Petitioners did not suspect

that a statutory violation had caused

the denial of their claims.

Upon discovering their true rights

years later, petitioners in 1979-1982

sued Eklutna and Cook Inlet, to which

entities the lands had then been patented

pursuant to the provisions of the Alaska

Native Claims Settlement Act ("ANCSA"),

43 U.S.C. §1601 et. seq. They filed al-

ternative causes of action against the

United States and federal officers. Jur-

isdiction was grounded on federal ques-

tions, 28 U.S.C. §1331. Alternatively,

petitioners invoked 28 U.S.C. §2409a and

5 U.S.C. §702 to the extent these sta-

tutes might apply.

Petitioners invoked rights and reme-

dies which are settled in federal law,

which petitioners briefly review here

because the courts below did not do so.

When a claimant has complied with the

requirements of the granting statute,

he becomes vested with the equitable ti-

tle to public land, Wyoming v. United

States, 255 G8, 489, 497-498, 507

(1921), of which title "he could not sub-

sequently be deprived". Shepley v. Cowa-

n, 91 U.S. 330, 338 (1875).

Beginning at least with Stark v.

Starrs, 6 Wall. 402, 419 (1867), the law

has been that if the government fails

to issue a patent to the rightful owner

but later conveys the land to subsequent

third parties, that conveyance is charged

with the prior claimant's equitable ti-

tle. The patentee will be declared a

constructive trustee and will be required

by a court of equity to convey the legal

title to the prior claimant. Wyoming,

Supra, at 255 U.&. 3503. In 1871, this

was declared to be the "settled doctrine

of this court", Johnson v. Towsley, 80

U.S. (13 Wall.) 72, 85 (1871). In Duluth

& Iron Range R. Co. v. Roy, 173 U.S. 587,

590 (1899) this Court said the principle

was "too well established to need argu-

ment to support or citation of authori-

cy”.

The Secretary's failure to declare

the land open to entry could not prevent

petitioners from receiving the benefits

of §24 FPA. A plaintiff's right to re-

lief is measured by what would have oc-

curred had the BLM timely obeyed the law.

Payne v. New Mexico, 255 U.S. 367, 371

(1921), Wyoming at 255 U.S. 503-504, Van

Wyck v. Knevals, 16 Otto. 360, 367

(1882), The Yosemite Valley Case, 15

Wall. 77, 91 (1872). Remedy is given

accordingly:

If, however, those officers mistake

the law applicable to the facts or

misconstrue the statutes and issue

a patent to one not entitled to it,

the party wronged can resort to a

court of equity to correct the mis-

take and compel the transfer of the

legal title to him as the true owner.

The court in such a case merely di-

rects that to be done which those

officers would have done if no error

of law had been committed.

Lee v. Johnson, 116 U.S. 48, 49 (1885).

Accord, Johnson v. Towsley, 80 U.S. 72,

86 (1871), Bohall v. Dilla, 114 U.S. 47,

51 (1884), Moore v. Robbins, 96 U.S. 530,

535-536 (1877), Duluth, supra, Garland

v. Wynn, 20 How. 6, 8 (1857), Lytle v.

Arkansas, 9 How. 314, 332 (1850), Ard

v. Brandon, 156 U.S. 537, 542-543 (1895),

Great Northern Ry. v. Reed, 270 U.S. 539,

546 (1926).2”

3. These judicially-acknowledged remedies

would exist even had ANCSA contained no savings

provisions such as §§14(g) and 22(b). Wilcox

v. Jackson, 38 U.S. 498, 513 (1839), Payne v.

Central Pacific, 255 U.S. 228, 238 (1921). The

creation of an additional, pre-patent remedy in

the Quiet Title Act did not affect existing reme-

dies against private parties. See Merrill,

Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353, 382 n. 66 (1982). Federal Marine

Terminals, Inc. v. Burnside Shipping Co., Ltd.,

394 U.S. 404, 412 (1969).

In the district court no party con-

tended that the United States was an in-

dispensable party to petitioners' causes

of action against the private defendants,

Eklutna and Cook Inlet. The district

court confirmed that the United States

had disclaimed any interest in the lands.

There was no contention or finding that

.a trust existed. The district court held

correctly that the Quiet Title Act of

1972 ("QTA") did not insulate private

parties against petitioners' causes of

action, citing Economic Development and

Industrial Corp. v. United States, 720

F.2d 1, 4 (lst Cir. 1983), 629 F.Supp.

727. The district court, however, dis-

missed some of petitioners' causes of-

action on the theory that they failed

to state a claim for. relief, and

dismissed others on the theory that the

court lacked jurisdiction. 629 F.Supp.

721. There was no trial.

The Court of Appeals affirmed. 4/

It did so on the theory, rejected by

the district court, that the QTA barred

all petitioners' causes of action against

private entities. The Court of Appeals

held that, though patent had issued to

third parties and the United States nei-

ther held nor claimed an interest in the

land,

Lee, Eklund and Carr can only proper-

ly establish their asserted entitle-

ment to the disputed lands in direct

proceedings against the United

States. See McIntyre Vv. United

States, 568 F.Supp. 1, 2-3 (D.Alaska

1983), aff'd 789 F.2d 1408 (9th Cir.

1986). The United States is there-

fore an indispensable party to this

action.

809 F.2d at 1411. It further held that

4. On appeal Lee, Eklund and Carr disputed

the district court's theories: (1) that ANCSA

pre-empted this Court's prior decisions on con-

structive trust relief; (2) that ANCSA §14(gq)

was not intended to protect homesteaders; and

(3) that 28 U.S.C. §2409a(g) barred petitioners’

alternative claims against federal defendants

under 28 U.S.C. §2409a and ANCSA §22(b). Peti-

tioners further disputed the district court's

statements that petitioners "signed compromise

agreements” and that Eklund and Carr did not ex-

haust their administrative remedies.

such relief must be sought under the QTA.

809 F.2d at 1409. Relying on these con-

clusions, the Court of Appeals reasoned

that the QTA's 12-year statute of limita-

tions had run in favor of the federal

defendants. It further held that claims

under ANCSA §22(b) were governed by 28

U.S.C. §2409a(g). It did not reach the

other theories offered by the district

court. 809 F.2d 1406.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit has extended the

Quiet Title Act's statute of limitations

to title actions in which the United

States claims no interest. Specifically,

the United States claims no interest in

the lands claimed by petitioners. The

First Circuit has recognized that this

fact renders the QTA's statute of limita-

tions, 28 U.S.C. 2409a(g), inapplicable,

Economic Development, supra, but’ the

Ninth Circuit has declined to heed the

OTA's limitation to "real property in

which the United States claims an inter-

est", 28 U.S.C. §2409a(a).

Petitioners seek certiorari review

because proper identification of those

actions which §2409a(g) does not bar is

at least as important as determining

those which are barred by this "condition

on the waiver of sovereign immunity",

as in Block v. North Dakota, 461 U.S.

273, 287 (1983) and in United States v.

Mottaz, 106 S.Ct. 2224 (1986). The Ninth

Circuit's ruling, if left uncorrected,

empowers courts to confer the benefits

of the QTA's statute of limitations on

private transferees, merely by declaring

the United States to be an indispensable

party without a demonstration that the

United States has any interest in the

property, and without examining the pre-

requisites to dismissal expressed in Fed.

g. €iv. Proc. Ruse 29- The result is

extinguishment of rights to enforce valu-

able interests in land unrelated to the

merits of those claims.

Certiorari is appropriate because

decrees can be entered in such cases set-

tling rights, as between private parties,

which would not affect federal interest

in the land which is the subject of the

action. It is the policy of the law that

no action be dismissed for lack of an

"indispensable party" unless a court

Clearly cannot proceed without him. Pro-

vident Tradesmen's Bank & Trust Co. v.

Patterson, 390 U.S. 102-6 119 (1968).

Courts will "strain hard" to avoid dis-

missal, even if an absent party claims

an interest in the subject matter of the

action, Bourdieu v. Pacific Oil Co., 299

U.S. 65, 70 (1936), though in this case

it was undisputed that this threshhold

requirement for indispensable party anal-

ysis was not met. The result is a pure

windfall to third party patentees, unre-

lated to petitioners' right to title.

The Court of Appeals' decision is

contrary to the existing decisions of

this Court, is unsupported by the OQTA,

is opposite to the First Circuit's ruling

on the same issue under the QTA, burdens

the United States with defending its pat-

entees' titles, and nullifies the savings

provision of ANCSA §14(g). This Court

should grant review the because the Ninth

Circuit's error is plainly presented and

because its destructive consequences

plainly appear.

PETITIONERS NEED NOT SUE THE

UNITED STATES TO ESTABLISH THEIR

HOMESTEAD TITLES

A. Petitioners' Claims Against Private

Parties Do Not Require the United States

to be a Party Defendant.

The Ninth Circuit's belief that the

United States is an indispensable party

was gratuitous: (1) the Ninth Circuit

did not question the district court's

finding that the United States had dis-

Claimed all interest, 629 F.Supp. 726;

(2) petitioners' prayers for relief asked

that Eklutna/Cook Inlet be required to

convey title directly to petitioners

(Lee's Third Amended Complaint, CR-158,

page Li? Eklund's Second Amended

Complaint, CR-138, page 11; Carr's Second

Amended Complaint, CR-146, page 11); (3)

the United States did not argue in the

district court that it was an indispens-

able party, though it was already before

the district homes on separate causes

of action; (4) nor, indeed, did

Eklutna/Cook Inlet claim in the district

court that the United States was an in-

dispensable party to petitioners' causes

of action against Eklutna/Cook Inlet.

Since the United States "claims [no]

interest relating to the subject of the

action", a decree would not "impede [its]

ability to protect that interest”, Fed.

Rules Civ. Proc., Rule 19(a), 28 U.S.C.,

the United States' jurisdictional "ab-

sence" fails to meet the threshold re-

quirement for dismissal. Provident at

396. U.G.+ 226s: “ASS This Court has

reguired a showing that the United States

is the real party in interest, before

requiring that the United States be a

party. Arizona v. California, 298 U.S.

558, 571 (1936), Minnesota v. Hitchcock,

185 U.S. 373 (1902), Kansas v. United

States, 204 U.S. 331, 341 (1907), Larson.

v. Domestic & Foreign Commerce Corp.,

337 U.S. 6862, 691 Rh. Li {ERSSFs ct «

United States v. Beebe, 127 U.S. 338

(1888) (sovereign anti-laches doctrine

applies only if United States is reel

party in interest). Those decisions are

applicable here.

Even had a federal interest existed,

however, the Court of Appeals could not

dismiss the action without considering

whether a decree cculd be written which

would protect such interest. Provident

at 390 U.S..115, Bourdieu at 2355 U.8.

70. The Ninth Circuit considered none

of the other criteria required by Rule

19(b): prejudice to interests of “any

party, whether plaintiff will have a rem-

edy if the action is dismissed, whether

a judgment entered in the United States'

absence would be adequate. Had the Ninth

Circuit made such inguiry, it could have

found no reason to dismiss Petitioners'

actions against Eklutna/Cook Inlet.

It is apparent that a judgment en-

tered solely as between Petitioners and

Eklutna/Cook Inlet will be adequate.

That judgment need only order that Eklut-

na convey the legal title to Petitioners.

No act of a federal officer is required.

On the other hand, no remedy has been

shown available to petitioners if the

Ninth Circuit's dismissal is allowed to

stand. The Ninth Circuit's ruling merely

creates a disfavored windfall by prevent-

ing a court from reaching the merits of

petitioners' claims. Provident at 390

0.8. Liz.

The Court of Appeals' novel doctrine

is bad judicial policy. It needlessly

"restrict[s] access to federal courts",

aero ee 200 S.Ct. 2231 n. 9. The no-

tion that the United States can "“lend"

the shield of sovereign immunity to a

private patentee has no place in federal

law and derives no support from any past

decisions of federal courts -- with the

sole exception the spurious decision in

McIntyre (below).

The Ninth Circuit's decision imposes

a needless burden of litigation on the

Department of Justice. It encumbers the

United States with an unprecedented and

costly obligation to defend its paten-

tees' titles. The party with the actual

adverse claim of interest, the patentee,

would not control the litigation, since

that control would be in the United

States. Courts will be deprived of the

concrete adversity of interests which

gives focus to litigation, since the par-

ty obligated to defend title, the United

States, has no interest in the outcome.

The Ninth Circuit's decision is un-

just. It has deprived petitioners of

valuable property by misapplication of

a concept which bears no relation to the

merits of petitioners claims or to the

interest of any person.

B. This Court Has Already Decided That

the United States Is Not A Necessary Par-

ty in Suits Between Private Parties.

The QTA coordinates with existing

law that a person claiming under the pub-

lic land laws need not and may not sue

the United States to establish his super-

ior title, after the United States has

conveyed the land by patent. He should

sue the patentees directly.

The leading case is Daniels v. Wag-

ner, 237 U.S. 547 (1915), which, like

the present case, was a suit’ for

constructive trust relief against a

private patentee because of the

Secretary's disregard of statute.

In addition in the brief for the

appellee in this case various mixed

contentions of law and fact .. .

. Some of them we think t»vo obvious-

ly devoid of merit to require any-

thing but statement. For instance,

the contention that because a patent

of the United States is involved,

therefore the United States is a ne-

cessary party.

247 0:8. @¢ 367. Prior to that, in I

Re Emblen, 161 U.S. 52 (1896) this Court

held that the only remedy available to

a wronged public lands claimant, after

issuance of patent to another party, is

a constructive trust action against the

patentee.

The patent conveys the legal title

to the patentee, and cannot be re-

voked or set aside, except upon judi-

cial proceedings instituted in behalf

of the United States. The only remedy

of Emblen is by bill in equity to

charge Weed [the patentee] with a

trust in his’ favor. All this is

clearly settled by previous decisions

of this court, including some of

those on which the petitioner most

relies. Johnson v. Towsley, 13 Wall.

72; Moore v. Robbins, 96 U.S. 530;

Marquez v. Frisbie, 101 U.S 473;

Smelting Co. v. Kemp, 104 U.S. 636;

Steel v. Refining Co., 106 U.S. 447,

1 Sup. Ct. 389; Cattle Co. v. Becker,

147 U.S. 47 13 Sup. Ct. 217; Turner

v. Sawyer, 150 U.S. 578, 586, 14 Sup.

Ct. 192.

161 U.S. at 56-57; emphasis supplied.

Again, in Bockfinger v. Foster, 190 U.S.

116, 125-126, 23 S.Ct. 836 (1903) this

Court reaffirmed the

principle that after the title to

public lands has passed from the Uni-

ted States, that is, after the Land

Department has performed the last

act in the series necessary to pass

the title of the government, the

courts will, as between parties as-

serting conflicting rights in such

lands, determine, by appropriate ju-

dicial proceedings, which of the par-

ties has the better right.

Emphasis supplied. Daniels, Emblen and

Bockfinger flatly contradict the new rule

announced by the Ninth Circuit. See also

Knapp v. Alexander-Edgar Lumber Co., 137

U.S. ic2 (1915), Shepley v. Cowan, 91

U.S. 330, 338 (1875), Johnson v. Towsley,

80 U.S. 72 (1871), Silver v. Ladd, 74

U.S. 219 (1869), Lytle, supra, Moore v.

Robbins, 96 U.S. 530 (1878), Duluth &

Iron Range Ry. Co. v. Roy, 173 U.S. 587

(1899), Cornelius v. Kessel, 128 U.S.

456 (1888). This Court in Bockfinger

confirmed that this principle includes

claims under the homestead laws. 23

S.ce. at 8666. See also Ard v. Brandon,

156 U.S. 537 (1895), Great Northern Ry.

Co. v. Reed, 270 U.S. 539 (1926).

These remedies are post-patent reme-

dies, while the QTA deals solely with

claims to land which the United States

retains in public ownership.

The Court of Appeals relied on a

Single case, McIntyre v. United States,

568 F.Supp. 1 (D.Alaska 1983), affirmed

on other grounds, 789 F.2d 1408 (9th Cir.

1986). McIntyre was a district court

decision which rested its conclusion on

the pleadings peculiar to that case. 568

F.Supp. at 203. Petitioners' own

pleadings include demands for title di-

rectly from Eklutna/Cook Inlet. See a-

bove, page 16.

The sole authority relied on in Mc-

Intyre was Kale v. United States, 489

F.2d 449, 454 (9th Cir. 1973). Kale did

not purport to decide that relief was

available only by suing the United

States. in fact, Kale relied on Duluth,

supra, one of this Court's decisions af-

firming the right to relief solely as

between private parties.

The Court of Appeals' ruling neces-

sarily implies that all decisions such

as Ard v. Brandon, Johnson v. Towsley,

and others supra, in which the United

States was not a party, had been in er-

ror. According to the Ninth Circuit's

reasoning, these suits were necessarily

suits against the sovereign and, since

prior to the QTA no relief was possible

against the sovereign, Block at 461 U.S.

282, relief was granted erroneously. The

Mcintyre decision cannot support so vast

a conclusion.

This Court should grant certiorari

to assert the authority of its existing

decisions.

a The United States Is Not a Trustee

of These Lands.

_—_

The Court of Appeals' citation of

Nichols v. Ryvasy, 809 F.2d 1317 (8th

Cir. 1987) and other cases at 809 F.2d

1411 indicates a woeful misunderstanding

that the United States holds this land

in trust and is therefore an

indispensable party. Ek lutna/Cook

Inlet's patents were issued under ANCSA.

Unlike other statutes conferring - on

native Americans interests in public

land, ANCSA §2(b) states that no trust

is created. The legislative history

states that ANCSA patents are "in fee

-- not in trust". House Report No.

92-523, 1972 U.S. Code Cong. & Ad. News,

page 2199. See also Conference Report

No. 92-746, at page 2253, and United

States v. Atlantic Richfield, 435 F.Supp.

1009, 1018 (D.Alaska 1977), aff'd 612

P.2@ 1132 (9th Cir. i960}, e@tt. Gen.,

449 U.S. 888 (1980).

This Court should correct the

misconception that ANCSA creates a trust

relationship with the United States.

Rights of United States' citizens under

the homestead law should not be erased

because of this misconception.

D. The Quiet Title Act Was Not Intended

to Shield Patentees From Enforcement of

Superior Title Under the Public Lands

Statutes.

The bar of subsection (g) of 28

U.S.C. §2409a ("Any civil action under

this section .. . ."; emphasis supplied)

extends no farther than the scope of sub-

section (a). The Ninth Circuit effec-

tively strips OTA of the limiting words

"real property in which the United States

claims an interest".

This Court should restore to the

OTA the meaning intended by congress.

The QOTA's statute of limitations has a

specific, limited purpose to protect the

public interest against too excessive

a burden on public property and treasury,

and to protect ongoing projects on fed-

eral land. Block at 461 U.S. 285, 290,

Mottazs at i06 &.Ct. 2232. These policy

considerations are absent when the United

States has conveyed title.

Congress has affirmatively directed,

moreover, that the United States should

not be a party in any case after the land

has been patented, regardless of whether

the 12-year period of §2409a(g) has ex-

pired. The QTA reads:

(e) If the United States disclaims

all interest in the real property

the jurisdiction of the dis-

trict court shall cease unless it

has jurisdiction . . . on ground o-

ther than and independent of the au-

thority conferred by *. 2s ae

§1346(f)]

§2409a(e) weighs heavily against the

United States being an indispensable par-

ty in title actions after patent of the

land. Congress believed that the United

States should not be a defendant if no

federal interest in the land was at

stake. This is confirmed by §2409a(b)

which gives the government the option

to buy the land. §2409a(b) would be

meaningless if the government has no in-

terest in the land to lose. Likewise,

§2409a(d) requires that a complaint state

the interest claimed by the United States

-- confirming that QTA has no application

° where, as here, the United States has

conveyed title to others.

The First Circuit has _ correctly

ruled that

Application of the bar of the Quiet

Title Act of 1972, indeed, does not

give the United States a marketable

title. A transferee under a deed

from the United States would not en-

joy the protection of that statute.

Economic Development & Industrial Corp.

v. United States, 720 F.2d 1, 4 (lst Cir.

1983). See also United States v. Whited

& Wheless, 246 U.S. 552 (1918) and United

States v. Gammache, 713 F.2d 588 (10th

Cir. 1983).

The Ninth Circuit attempted to dis-

tinguish Economic Development but gave

no rationale for requiring a claimant

to sue the United States after the gov-

ernment has parted with title. The Ninth

Circuit's ruling would broadly bar, or

invite courts to bar, any land title ac-

tion against transferees from the govern-

ment, regardless of the strength of

plaintiff's claim under a statutory land

grant such as the homestead law, and

regardless of whether the claim is barred

by 28 U.S.C. §2409a(g).>/

If this ruling stands no private

litigation over federally-created land

rights will be possible. Petitioners'

case happens to involve patents to third

party defendants under a statute which

expressly preserves the post-patent

remedies which the Ninth Circuit has now

effectively abrogated. The patents is-

sued to Eklutna/Cook Inlet are "subject

to valid existing rights". CR-12, Ex-

hibits D, E; CR-EK-9, Exhibits T, U; CR--

CA-6, Exhibits, Oy k. This provision

5. To find that the QTA does not apply need

not imply that no statute of limitations applies.

AS 9.10.230 specifically governs constructive

trust suits. It provides a 10-year period from

issuance of patent. Block recognizes that feder-

al courts should consult state law in such situa-

tions. 461 U.S. at 292 n. 28.

was required by ANCSA §14(g), 43 U.S.C.

§1613(g).

All conveyances made pursuant to

this chapter shall be subject to val-

id existing rights. ...

This evidences a legislative intent that

the right to enforce pre-existing rights

Survive the issuance of patents. It

charges an ANCSA patent with a homestead-

er's title. Alaska v. Thorson, 91 I.D.

Sai, 339 {i9G41. However, enforcement

of §14(g) necessarily becomes impossible

as a result of the Ninth Circuit's deci-

sion.— This is because jurisdiction un-

der the QTA necessarily ceases upon ei-

ther of two events: (1) when the United

6. Entrymen such as Lee, Eklund and Carr were

the intended beneficiaries of this provision.

See 1971 Code Cong. & Ad. News 2250: "All valid

existing rights, including inchoate rights of

entrymen and mineral locators, are protected.”.

Uncontradicted floor statement in the House of

Representatives shows that it was believed that

ANCSA "protects all presently existing rights

for all citizens, and where substantial untitled

rights exist on lands selected by Natives, those

rights will be protected". Congressman Begich,

Dec. 14, 1971, 117 Cong. Rec. 46789.

States conveys title and disclaims inter-

est in the land (§2409a(e)) or (2) lapse

of 12 years from accruai of plaintiff's

Claim (§2409a(g)). (Please see Part III,

however, re tolling of this 12-year peri-

od).

§14(g) rights only arise upon

conveyance of land, but jurisdiction

under the QTA (the only available

jurisdiction, according to the Court of

Appeals) ceases at the selfsame moment

as the conveyance, 28 U.S.C. §2409a(e),

because the United States is now declared

to be an indispensable party. The Ninth

Circuit thus requires persons claiming

title to ANCSA-affected lands to invoke

a non-existent jurisdiction -- implying

that they have no remedy at all after

issuance of patent. Congress could not

have intended ANCSA §14(g) to such a

vacuous result.

This gives the United States an ar-

bitrary power in the United States to

defeat rights in land by the mere act

of patenting the land. This amounts to

~an unconstitutional taking of property.

The Court of Appeals was oblivious to

the resulting ‘destruction of statutory

rights. This Court should settle, that

the United States is not a necessary par-

ty after the United States has conveyed

its interest. Grant of certiorari at

this time would clarify and prevent the

confusion in land title litigation that

is certain to ensue from application of

the Ninth Circuit's new rule throughout

the Ninth Circuit's broad geographical

jurisdiction. It has extinguished Peti-

tioners' claims and threatens to extin-

guish the claims of all others similarly

Situated.

PETITIONERS' CLAIMS UNDER ANCSA §22(b)

ARE LIMITED ONLY BY

43 U.S.C. §1632(a).

ANCSA §22(b) directs the Secretary

of the Interior anew to issue patents

earned under 43 U.S.C. §164 without

further delay.—/

The Court of Appeals

failed to understand that determinations

under ANCSA are subject to 43 U.S.C.

§1632(a) rather than to- 28 U.S.C.

§2409a(g). §1632(a) requires that an

ANCSA §22(b) court claim must be filed

within two years of the later of October

2, 1980 or the Secretary's final ruling

on the §22(b) claim. All Petitioners'

§22(b) claims were timely filed within

the §1632(a) period.

§1632(a) statute rather than 28

U.8.¢. §2409a(gq) is the applicable

7. #This remedy is cumulative to petitioners'

remedies under existing law and under ANCSA

§14(g). Please see note 3 above.

statute of limitations with respect to

Petitioners’ ANCSA §22(b) claims because

(1) the QTA is inapplicable because the

United States claims no interest in the

lands; and (2) a specific statute of

limitations takes precedence over a

broader statute which might otherwise

apply. Sutherland, Stat. Const. §70.03

(4th Ed.)(Supp. 1987).

Since petitioners' claims were valid

prior claimsd under the homestead laws,

the intent of §22(b) is that they receive

patent evidencing their titles. An ac-

tion to enforce §22(b) against the Secre-

tary of the Interior is not, however,

an action relating to the government's

claim of interest, as required in order

for QTA to apply. §22(b) focusses on

the Secretary's duty rather than the

United States' claim to title. This duty

arose for the first time in 1971 when

ANCSA was enacted, and continued until

the Secretary finally made his decision,

which here occurred in 1979. A patent

issued under §22(b) would simply deter-

mine which of the private parties before

the Court deserves the patent. 43 U.S.C.

§1632(a), therefore, is the statute which

Congress intended to apply to such deter-

minations. The misapplication of 28

U.S.C. §2409a(g) to claims under ANCSA

widely affects lands in Alaska. This

Court should grant review to correct the

Ninth Circuit's misconception.

III

THE QUIET TITLE ACT'S STATUTE OF

LIMITATIONS SHOULD BE TOLLED

BY THE GOVERNMENT'S

MISREPRESENTATIONS OF THE

STATUS OF THE LANDS

CLAIMED BY PETITIONERS

The Ninth Circuit has held that 28

U.S.C. §2409a(g) is not subject to

equitable tolling. 809 F.2d 1410. It

further held that misrepresentations of

law cannot toll a statute of limitations.

This Court has held that 28 U.S.C.

§2409a(g) should not be construed “unduly

restrictively". Block at 461 U.S. 287;

see also Bowen v. City of New York, 106

S.Ct. 2022 (1986). The federal tolling

doctrine should be applied to §2409a(g)

because that would be consistent with

Congress's intent in enacting QTA. Cf.

Bowen at 106 S.Ct. 2029. Congress pre-

sumably enacted QTA with awareness that

the federal equitable tolling "doctrine

is read into every federal statute of

limitation". Holmberg v. Armbrecht, 327

U.S. 392, 397 (1946). it

The tolling doctrine extends to mis-

representations of law where the repre-

sentations come from a source on which

petitioners were entitled to rely. Glus

v. Brooklyn Eastern District Terminal,

359 U.S. 232, 235 (1959). The Secretary

of the Interior told petitioners in writ-

ing that they had no right to these

lands. He further said they could “rest

assured that no arbitrary action will

be taken". Such representations to

homesteaders in Alaska ought to have been

deserving of their reliance.

The Secretary's representations

cannot be reconciled with §24 FPA. §24

is written in especially clear and expli-

cit language. The Secretary's assurances

lulled petitioners into taking no further

action and making no further inquiries.

Petitioners had no reason to suspect that

their loss was the result of a violation

of statute.

The language cited by this Court

in Bowen v. City of New York, 106 S.Ct.

2030, quoting 742 F.2d 738 is applicable

here:

All of the class members who per-

mittea their administrative or judi-

cial remedy to expire were entitled

to believe that their Government's

determination of ineligibility was

the considered judgment of an agency

faithfully executing the laws of the

United States. Though they knew of

the denial or loss of benefits, they

did not and could not know that those

adverse decisions had been made on

the basis of a systematic procedural

irregularity that rendered them sub-

ject to court challenge.

This reasoning contradicts the Ninth Cir-

cuit's opinion that petitioners have to

suffer the consquences of the Secretary's

misrepresentations about these lands.

Petitioners could not be expected to know

that there existed a statute, tucked away

in Title 16, that gave them specific le-

gal benefits.

Petitioners' ignorance of §24 was

not mere passive ignorance. They made

diligent inquiry. The misrepresentation

came from a source from which they had

a right to expect better.

The Court of Appeals' reliance on

United States v. Kubrick, 444 U.S. lll

(1979) was misplaced. In Kubrick, the

plaintiff failed to inquire into his

rights.

Here, the cabinet-level officer made

a representation that petitioners’ had

no possible rights when the applicable

statute not only permitted, but

commanded, the very officer to whom

claimants addressed their inquiry to al-

low them to enter these lands -- and to

"declare" this fact to them! See §24

FPA. The "mistaken" advice which peti-

tioners received was illegal and against

public policy, and therefore blameworthy.

The element of self-interest is evident.

There exists, therefore, a “sound rea-

son", see Kubrick at 444 U.S. 124 for

making the United States (if the United

States is in fact a defendant) bear the

consequences of the Cabinet member's

statements.

Conclusion

This Court should accept this case

for review because the Ninth Circuit's

deviation from sound law negatively af-

fects future litigants with valid land

claims under federal programs as well

as petitioners. Specifically, the Court

of Appeals has relegated Rule 19 to mean-

inglessness. Further, it has abused

the OTA so as to cut back the available

federal jurisdiction. These are major

and fundamental errors. This Court

should take this opportunity to stop pre-

sent and future harm by granting review.

So clear are the errors of the Ninth

Circuit that this Court may well dispose

of this case by summary reversal of the

Court of Appeals' decision to designate

the United States as an indispensable

party. Petitioners respectfully recom-

mend, however, that this Court accept

this case for plenary review, since an

opinion from this Court would be useful

to the courts and the public by eliminat-

ing the confusion in public lands law

which will result from the existence of

the Ninth Circuit's published opinion.

Dated at Anchorage, Alaska on the

/ 7 day of October, 1987.

Ba £ len

Steven P. Oliver

720 M Street, Suite 201

Anchorage, Alaska 99501

(907) 276-6106

Counsel for Petitioners

ae ee

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

W. Lee: RALPH A. EKLUND; No. 86-3651

ORA CARR,

: Plaintiffs-Appellants, D.C. Nos.

- CV-A79-336

i CV-A80-301

‘ UNITED STATES OF AMERICA: q CV-A82-41 1

SECRETARY wthineg INTERIOR; ORDER AND

Director, BUREAU OF LAND

MANAGEMENT: EKLUTN&, INC.: SECOND

hes : neg AMENDED

Cook INLET REGION. INC., OPINION

Defendants-Appellees.

Argued and Submitted

° January 6, 1987—Seattle, Washington

Filed February 9, 1987

. Amended April 17, 1987

Before: Eugene A. Wright, Jerome Farris and

Robert R. Beezer, Circuit Judges.

Opinion by Judge Farris

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, District Judge, Presiding

SUMMARY

® Jurisdiction

Appeal of a district court’s dismissal of land claims against

the United States and two Alaska Native corporations.

2 Lee v. UNITED STATES

Affirmed. Petition for rehearing denied and suggestion for

rehearing en banc rejected.

In 1950 the federal Power Commission set aside certain

lands in the Eagle River Valley, near Anchorage, Alaska, as a

possible site for future power projects. In 1952 the Power

Commission determined that the lands would not be injured

by location or entry under the public land laws. Although the

Secretary of Interior could have declared the lands open for

homesteading, it did not. In 1957 appellants James Lee,

Ralph Eklund and Cora Carr located on the lands, expecting

to take title under the homestead laws. In 1959 appellants

sent a letter to the Secretary asking why the Bureau of Land

Management (BLM) had not restored the lands to the public

domain after the Power Commission’s determination. The

Secretary answered that determinations regarding the lands

would have to wait the completion of an engineering survey,

and stressed that the lands were not open to entry. In 1961 the

BLM recorded its survey and rejected the homestead applica-

tions of appellants insofar as the applications conflicted with

the powersite classification. Appellants continued to argue

with the BLM until 1964, when they received patents to all

the lands they had claimed outside the powersite classifica-

tion. The U.S. contends this constituted a compromise in

which disputed issues of proof concerning the unclassified

lands were resolved in their favor in exchange for their agree-

ment to quit asserting claims to the classified lands, but there

is no evidence in the record that the 1964 patents represented

a compromise. In 1971 Congress passed the Alaska Native

Claims Settlement Act. In 1979, pursuant to the Act, the for-

merly classified lands were patented to two Alaska Native

corporations (Native corporations). Appellants filed an

action against the United States and the Native corporations.

The district court dismissed.

[1] The district court correctly ruled that its jurisdiction to

consider the claims against the United States was limited to

whatever jurisdiction was conferred by the Quiet Title Act,

Lee v. UNITED STATES 3

28 U.S.C. Sec. 2409a. Congress intended the Quiet Title Act

to provide the exclusive means by which adverse claimants

could challénge the United States’ title to real property. The

court possessed no jurisdiction under the Quiet Title Act to

hear the claims against the U.S., because the U.S. had dis-

claimed all interest in the disputed lands in 1979 when it pat-

ented the lands to the Native corporations. [3] Even if the

United State’s disclaimer of interest was ineffective, the

claims against the U.S. would still be barred by the Quiet

Title Act’s 12-year statute of limitations, [4] which runs from

the date the plaintiff or his predecessor knew or should have

known of the claim of the U.S. to the disputed land. The dis-

trict court correctly concluded that appellants should have

realized by 1961 that the U.S. intended to reject their home-

stead claims. [5] The statute was not tolled by appellant's reli-

ance on the Secretary’s representations that he was under no

duty to remove the powersite classification.

[6] The district court correctly stated the general rule that

even though it lacked junsdiction to consider the claims

against the U.S. it did not necessarily lack jurisdiction to con-

sider claims against the Native corporations, [7] but this case

presents an exception to the general rule. All of the relief that

appellants seeks required the presence of the United States as

a party because in order to challenge the Native corporations’

claim to the land they must establish the validity of their own

claim. The United States is therefore an indispensable party

to this action, [8] and the court’s lack of jurisdiction over the

U.S. claims requires the dismissal of the claims against the

Native corporations.

COUNSEL

Steven P. Oliver, Anchorage, Alaska, for the plaintiffs-

appellants.

4 Lee v. UNITED STATES

David P. Wolf and Diane Smith, Anchorage, Alaska, and

Edward J. Shawaker, Esq., Washington, D.C., for the

defendants-appellees.

ORDER

The opinion filed February 9, 1987, and amended by order

dated March 10, 1987, is further amended per the attached

Amended Opinion.

With the changes reflected in the Amended Opinion, the

panel has voted unanimously to deny appellants’ petition for

rehearing filed February 20, 1987 and amended March 20,

1987. Judges Farris and Beezer have voted to reject the sug-

gestion for rehearing en banc and Judge Wright recommends

rejection.

The full court has been advised of the suggestion for rehear-

ing en banc, and no judge of the court has requested a vote on

it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

OPINION

FARRIS, Circuit Judge:

Lee, Eklund, and Carr assert a variety of claims against the

United States and two Alaska Native corporations. All of

their claims are based on the contention that in 1979 the Sec-

retary of Interior conveyed lands that rightfully belonged to

them to the Native corporations. On a motion for summary

judgment, the district court dismissed their claims against the

United States, and all but one of their claims against the

Lee v. UNITED STATES 5

Native corporations, for lack of jurisdiction. It dismissed

their remaining claim against the Native corporations for fail-

ure to state a claim. We affirm.

FACTS

In 1950. the Federal Power Commission, acting under the

Federal Power Act. set aside certain lands in the Eagle River

Valley, near Anchorage, Alaska, as a possible site for future

power projects. In 1952, at the request of the Bureau of Land

Management, the Power Commission determined that the

lands would not be injured for purposes of power develop-

ment by location or entry on the lands under the public land

laws. Following that “no injury” determination, the Secretary

of Interior could have declared the lands open for homestead-

ing and other entry, but did not.

In 1957, Lee, Eklund, and Carr located on lands in the

Eagle River Valley that included some of the lands classified

under the Power Act, with the expectation of taking ‘title

under the homestead laws.’ The Bureau of Land Management

had told them that they could stake homestead claims in the

Valley. The Power Commission, however, had advised them

that the classified lands would be unavailable for homestead-

ing until the Bureau of Land Management formally restored

the lands to the public domain. At the time, the region had

not been surveved. and the boundaries of the classified lands

were not precisely defined.

In 1959, Lee, Eklund, and Carr sent a letter to the Secretary

inquiring as to why, even though the Power Commission had

determined that the classified lands could be made available

to homesteaders, the Bureau of Land Management had not

restored the lands to the public domain. In his letter of _

response, the Secretary told them that specific determinations

1The homestead laws were repealed in 1976 by Pub. L. 94-579, 90 Stat.

2789. o

6 Lee v. UNITED STATES

regarding the fate of the classified lands would have to await

the completion of an engineering survey, and stressed that the

classified lands were not open to entry. He also said that he

did not intend to revoke the powersite classification. and that

even if he did do so. selection rights to the classified lands

might be given to other groups.

In 1961. the Bureau of Land Management recorded its sur-

vey of the region and issued final decisions rejecting the

homestead applications of Lee. Eklund. and Carr insofar as

the applications conflicted with the powersite classification.

Lee, Eklund. and Carr continued to argue with the Bureau of

Land Management concerning the extent of their homestead

holdings until 1964, when they received patents to all of the

lands that they had claimed outside of the powersite classifi-

cation.

The United States contends that the patenting of the

unclassified lands to Lee. Eklund, and Carr in 1964 consti-

tuted a compromise in which disputed issues of proof con-

cerning the unclassified lands were resolved in their favor in

exchange for their agreement to quit asserting claims to the

classified lands. Accordingly, the United States urges that

Lee, Eklund. and Carr should now be estopped from claiming

title to the classified lands. Lee, Eklund, and Carr argue that

there is no evidence in the record to indicate that their receipt

of patents to the unclassified lands in 1964 represented a

compromise.

In 1971. Congress passed the Alaska Native Claims Settle-

ment Act. 43 U.S.C. $§ 1601-1641 (1982). In 1979, pursuant

to the Settlement Act. the formerly classified lands were pat-

ented to two Alaska Native corporations, Eklutna, Inc. and

Cook Inlet Region, Inc. Lee, Eklund, and Carr subsequently

filed the present actions against the United States and the

Native corporations.

Lee. Eklund, and Carr argue that the disputed lands were

effectively restored to the public domain as a result of the

Lee v. UNITED STATES

Power Commission's “no injurv” determination in 1952.

Consequently. they contend that they began acquiring equita-

ble title to the lands under the homestead laws when thes

entered on and began cultivating the lands in 1957. Alterna-

tively. they argue that section 24 of the Power Act required

the Secretary to declare the lands open to homestead entn

following the Power Commission's “no injury” determina-

tion. and that therefore we should now recognize their claims

to the lands under the homestead laws in order to put them in

the position that they would have occupied if the Secretary

had complied with the law.

Lee. Eklund. and Carr contend in particular that thes

should have received patents to the lands under section 22(b)

of the Settlement Act. which provides that the Secretary shal!

“promptly issue patents to all persons who have made a law -

ful entry on the public lands in compliance with the public

land laws for the purpose of gaining title to homesteads .

43 U.S.C. § 1621(b). They also argue that under section 14(g)

of the Settlement Act, 43 U.S.C. § 1613(g). the conveyance of

the lands to the two Native corporations in 1979 was subject

to their pre-existing homestead rights. They seek a judicial

declaration that Eklutna. Inc. and Cook Inlet Region. Inc. are

constructive trustees holding the disputed lands in trust for

their benefit.

DISCUSSION

We review de novo the district court’s determinations con-

cerning the extent of its subject matter jurisdiction. 4/Ainson

v. United States, 804 F.2d 561, 562 (9th Cir. 1986). We may

affirm on any ground fairly supported by the record. City of

Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir. 1985).

We need not consider whether the agreements that Lee.

Eklund. and Carr reached with the Bureau of Land Manage-

ment in 1964 represented a compromise. Regardless of

whether their claims should be estopped by the alleged com-

promise. other factors preclude the claims.

8 Lee v. UNITED STATES

All of the claims are based on the theory that by entering

upon and cultivating the disputed lands during the vears fol-

lowing the Power Commission's “no injury” determination,

Lee, Eklund. and Carr took sufficient steps as de facto

homesteaders to vest themselves with equitable title to the

lands under the homestead laws. Despite this common thread ae

connecting all of the claims, however, we must analyze the

claims against the United States separately from the claims

against the Native corporations. This is because the Quiet

Title Act. 28 U.S.C.A. 2409a (West. Supp. 1987). applies only

to the former claims.

»)

1) Claims Against the United States

The district court dismissed the claims against the United

States for lack of jurisdiction. Lee v. United States, 629 F.

Supp. 721 (D. Alaska 1985). The court ruled that the claims

were actions against the United States “to secure patent(s] for

the[] disputed homestead entries and to quiet title,” and that

consequently its jurisdiction to consider the claims derived

solely from the Quiet Title Act. /d. at 726 (citing Block v.

North Dakota, 461 U.S. 273 (1983)). It then held that it lacked

jurisdiction to consider the claims because (1) the United

States disclaimed its interest in the lands when it patented

them to the Native corporations in 1979, thus divesting the

court of jurisdiction under section 2409a(e) of the Act, and

(2) even if the disclaimer was for some reason ineffective, the

claims would still be barred by the Act’s twelve-year statute of

limitations. Jd. at 726-27.

{1] The district court correctly ruled that its jurisdiction to

consider the claims against the United States was limited to 5

whatever jurisdiction, if any, was conferred upon it by the

Quiet Title Act. The Supreme Court has held that “Congress

intended the [Quiet Title Act] to provide the exclusive means

by which adverse claimants could challenge the United

States’ title to real property.” Block, 461 U.S. at 286. All of

the claims against the United States concern, either directly

Lee v. UNiten STATES 9

or indirectly. the United States’ title to the disputed lands.

Accordingly, the district court’s jurisdiction. if any. to hear

the claims against the United States derived exclusively from

the Quiet Title Act. See Veclntyre v. United States, 789 F.2d

1408. 1410-11 (9th Cir. 1986). Lee. Eklund. and Carr argue

. that section 702 of the Administrative Procedure Act. 5

U.S.C. § 702 (1982). creates an independent jurisdictional

basis for their administrative claims against the United

° States. We specifically rejected this argument in A/fc/niyre.

Id.?

[2] The district court possessed no jurisdiction under the

Quiet Title Act to hear the claims against the United States.

The United States disclaimed all interest in the disputed

lands in 1979, when it patented the lands to Eklutna. Inc. and

Cook Inlet Region, Inc. The district court found that the dis-

claimer was “valid and was made in good faith.” Lee, 629 F.

Supp. at 726. The Quiet Title Act expressly provides that “[i]f

the United States disclaims all interest in the real property or

interest therein adverse to the plaintiff at any time prior to the

actual commencement of the trial, which disclaimer is con-

firmed by order of the court, the jurisdiction of the district

court shall cease unless it has jurisdiction of the civil action

or suit on ground[s] other than and independent of the

authority conferred by [the jumsdictional provision of the

Act].” 28 U.S.C.A. § 2409a(e) (West Supp. 1987). The only

“We do not hold, and do not read McIntyre to hold, that the Quiet Title

Act constitutes the exclusive source of jurisdiction for a// claims against the

United States involving the United States’ disposition of public lands. Sec-

uon 2409a(e) of the Act provides that upon the United States’ disclaimer

of interest, jumsdiction in the district court will continue if the court “has

junsdiction ... on ground{s] other than and independent of the authority

conferred by [the jurisdictional provision of the Act].” 28 U.S.C. 2409a(e)

(West Supp. 1987). The Administrative Procedure Act provides junsdic-

tion in cases of administrative wrongdoing. Here, the statute of limitations

had run under both the Acministrative Procedure Act and the Quiet Title

Act before Lee, Eklund. and Carr commenced their actions. See 28 U.S.C.

§ 2401 (1982) and 28 U.S.C.A. § 2409a(g) (West Supp. 1987).

10a

10 Lee v. UNITED STATES

alternative basis for jurisdiction that Lee, Eklund. and Carr

have asserted is section 702 of the Administrative Procedure

Act. but they are precluded under \Mc/ntvre from asserting

that basis of jurisdiction. \/clntvre, 789 F.2d at 1410-11.

[3] Even if the United States’ disclaimer of interest in the T

disputed lands was ineffective. the claims against the United

States would still be barred by the Quiet Title Act's twelve- 4

vear statute of limitations. Section 2409a(g) of the Act states.

that “[a]nv civil action under this section shall be barred

unless it is commenced within twelve vears of the date upon

which it is accrued.” 28 U.S.C.A. § 2409a(g) (West Supp.

1987). Congress intended for section 2409a(g) to apply retro-

actively. See Block, 461 U.S. at 286 n.23. See also Grosz vy.

Andrus, 556 F.2d 972. 975 (9th Cir. 1977).

[4] Section 2409a(g) specifically provides that 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 J

claim of the United States” to the disputed land. 28 U.S.C.A.

§$ 2409a(g) (West Supp. 1987). The claims against the United

States accrued as soon as it became clear to Lee, Eklund, and

Carr, or should have become clear to them, that the United

States intended to reject their homestead claims to the classi-

fied lands. We agree with the district court that Lee, Eklund,

and Carr “should have realized by 1961 that the United

States had a conflicting claim to the portions of their home-

stead entries within the Power Site Classification[,] [because

in} that vear the [Bureau of Land Management] issued its sur-

vey covering the disputed lands, published notice of the sur-

vey in the Federal Register, and issued final decisions

rejecting their homestead entries.” Lee, 629 F. Supp. at 727.

At the very latest, Lee. Eklund, and Carr should have known

of the United States’ conflicting claim to the disputed lands

when they submitted their amended homestead applications

in 1964. See id.

Lee v. UNITED STATES 1}

{5} Lee. Eklund. and Carr argue that the Quiet Title Act's

twelve-vear statute of limitations should be deemed to have

been equitably tolled by their reliance on the Secretary's rep-

resentations. arguably incorrect.’ that he was under no duty

to remove the powersite classification. Statutes of limitation.

however, are “triggered by [claimants’] knowledge of the

transaction that constituted the alleged violation. not by their

knowledge of the law.” Blanton y. Anzalone, 760 F.2d 989.

992 (9th Cir. 1985). 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). Moreover, because the Quiet Title Act's statute of

limitations “is a jurisdictional requirement... . ‘[t]he govern-

ment may not be equitably barred from asserting [it]. ~

McIntyre, 789 F.2d at 1411 (quoting Burns v. United States.

764 F.2d 722. 724 (9th Cir. 1985)).

2) Claims Against Eklutna, Inc. and Cook Inlet Region. Inc.

The district court ruled that even though it lacked jurisdic-

tion to consider the claims against the United States. it did

not necessarily lack jurisdiction to consider the claims against

the Native corporations. Lee, 629 F. Supp. at 727-28. The dis-

trict court noted that “Congress passed the [Quiet Title Act]

as a limited waiver of sovereign immunity for actions to

acquire title from the federal government, . . . not to insulate

private parties who acquire federal lands. such as Eklutna and

Cook Inlet Region. from bona fide actions to challenge their

title.” Jd. at 727.

3See Reeves v. Andrus, 465 F. Supp. 1065, 1070(D. Alaska 1979) (section

24 of the Power Act requires the Secretary “to revoke or modify the power

site classification within a reasonable penod”™ following a “no injury™ deter-

mination by the Power Commission).

i2a

i2 Lee v. UNITED STATES

[6] The district court correctly stated the general rule. Ordi-

narily. the fact that a claimant is barred from proceeding

against the United States by the jurisdictional provisions of

the Quiet Title Act does not prevent the claimant from assert-

ing title to disputed lands against non-federal parties. See

. Block, 461 U.S. at 291. See also Economic Development and

Industrial Corp. v. United States, 720 F.2d 1.4 (1st Cir. 1983):

United States v. Gammache, 713 F.2d 588. 592 (10th Cir.

1983).

[7] This case. however. is an exception to the general rule.

because in this case the district court’s lack of jurisdiction

over the claims against the United States does require that the

claims against the Native corporations also be dismissed. All

of the relief that Lee. Eklund. and Carr seek requires the pres-

ence of the United States as a party. In order to challenge the

validity of the Native corporations’ patents to the disputed

lands. Lee. Eklund, and Carr must be prepared to establish

their own entitlement to the lands. “It is not sufficient for one

challenging a patent to show that the patentee should not

have received the patent: he must also show that he. . . is enti-

tled to it.” Kale v. United States, 489 F.2d 449, 454 (9th Cir.

1973). cert. denied, 417 U.S. 915 (1974). Lee. Eklund. and

Carr can only properly establish their asserted entitlement to

the disputed lands.in direct proceedings against the United

States. See McIntyre v. United States, 568 F. Supp. 1, 2-3 (D.

Alaska 1983). afd, 789 F.2d 1408 (9th Cir. 1986). The

United States is therefore an indispensable party to this

action. See Nichols v. Rysavy, 809 F.2d 1317. 1331-34 (8th

Cir. 1987) (United States held to be an indispensable party in

a suit challenging the validity of fee patents issued to Native

Americans): Nichols y. Rysavy. 610 F. Supp. 1245, 1253 (D.

S.D. 1985) (United States held to be an indispensable party

because “the United States .. . issued the fee patent in ques-

tion, thus setting the entire series of events in motion that

resulted in the action.”). See also Nicodemus v. Washington

Water Power Co., 264 F.2d 614, 615 (9th Cir. 1959) (United

States held to be an indispensable party in a suit concerning

l3a

Lee v. UNITED STATES 13

lands held in trust for Native Americans): Cogo v. Central

Council of Tlingit and Haida Indians, 465 F. Supp. 1286.

1291 (D. Alaska 1979) (same). See generally Fed. R. Civ. P.

1 9¢b). In so holding, we recognize that upon different facts the

United States might not be an indispensable party.

[8] It follows from the fact that the United States 1s an indis-

pensable party to this action that the district court's lack of

jurisdiction as to the claims against the United States requires

the dismissal of the claims against the Native corporations.

See Johnson v. Chilkat Indian Village, 457 F. Supp. 384. 388

(D. Alaska 1978) (action dismissed because the court did not

have jurisdiction over the Chilkat Village Council, and any

judgment arrived at in a proceeding to which the Village

Council was not a party would be inadequate). See also Nich-

ols, 809 F.2d at 1331-34.

CONCLUSION

Lee’s. Eklund’s, and Carr’s claims against the United States

all concern title to real property. The district court's exclusive

source of jurisdiction as to such claims is the Quiet Title Act.

Under section 2409a(e) of the Quiet Title Act, the United

States’ disclaimer of interest in the disputed lands in 1979

had the effect of depriving the district court of jurisdiction

over the claims. Even if the disclaimer was ineffective, the

claims would still be barred by the Quiet Title Act’s twelve-

year Statute of limitations. The United States is an indispens-

able party to the present actions, because Lee, Eklund, and

Carr can only properly establish their entitlement to the lands

in direct proceedings against the United States. It therefore

follows, as a direct consequence of the district court's lack of

jurisdiction over the claims against the United States, that the

claims against the two Native corporations must also be dis-

missed.

We express no opinion regarding the district court's inter-

pretation of sections 14(g) and 22(b) of the Settlement Act. 43

14a

14 Lee v. UNITED STaTES

U.S.C. $$ 1613(g) and 1621(b). We also express no opinion as

to the district court’s ruling that the Settlement Act preempts

the common law in the area of disputes brought by third par-

ties against Native corporations concerning lands conveved

under the Settlement Act.

AFFIRMED.

t-'

James W. LEE, Plaintiff,

¥;

UNITED STATES of America, Secretary

of the Intericr, Director, Bureau of

Land Management, Eklutna, Inc., and

Cook Inlet Region, Inc., Defendants.

Ralph A. EKLUND, Plaintiff,

UNITED STATES of America, Secretary

of the Interior, Director, Bureau of

Land Management, Eklutna, Inc., and

Cook Inlet Region. Inc., Defendants.

Cora CARR, Plaintiff,

UNITED STATES of Aimerica, Secretary

of the Interior, Director, Bureau of

Land Management, Eklutna, Inc., and

Cook Inlet Region, Inc., Defendants.

Nos. A79=336 Civil. A80-301 Civil and

A82-411 Civil.

United States District Court,

D. Alaska.

Jan. 28, 1985.

rehearing Denied and Decision

Amended Feb. 28. 19&6.

AMENDED OPINION

FITZGERALD, Chief Judge.

James Lee, Ralph Eklund, and Warren

Carr staked out homestead claims during

16a

the late 1950s in the Eagle River Valley

within the Municipality of Anchorage.

They and their families have had a running

battle ever since with the Bureau of Land

Management (BLM) and assorted other

parties concerning their rights to those

lands. Lee, Eklund, and Cora Carr (War-

ren’s widow) brought these consolidated ac-

tions in 1979-1982 under a variety of statu-

tory and common-law theories, seeking to

gain title to the disputed lands or to recov-

er money damages for inverse condemna-

tion. I hereby dismiss their actions, with

the exception of a single claim raised by

Lee,' for lack of subject-matter jurisdiction

and for failure to state a claim on which

relief can be granted.

FACTUAL BACKGROUND

Lee, Eklund, and Carr staked out their

disputed homestead claims in 1957, and

filed notices of location with the BLM. In

1958-1959, BLM notified them by letter

that significant portions of their homestead

sites fell within federal Power Site Classifi-

cation Number 399, established on March

29, 1950, and therefore were not available

for private use or occupancy. The letters

1. Unlike Eklund and Carr, Lee has raised a

claim against defendants Eklutna, Inc. and

Cook Inlet Region, Inc. under section 14(c) of

the Alaska Native Claims Settlement Act, 43

U.S.C. § 1613(c) (1982). Eklutna and Cook In-

let Region have moved for summary judgment

on Lee's section 14(c) claim, but their motion

was briefed separately and will be ruled upon

by this court in a separate opinion.

indicated that each individual could petition

the Federal Power Commission (FPC) to

restore the lands he sought to public entry,

but noted that such a restoration would not

confer upon him any preference rights in

the lands.

[1] When Lee, Eklund, and Carr peti-

tioned the FPC for restoration of their

lands, they were notified that the FPC had

already made a determination under sec-

tion 24 of the Federal Power Act, 16 U.S.C.

§ 818 (1982), that the value of those lands

as a power site would suffer “no injury” if

opened to selection, entry, or location under

the public land laws. Once this “no-injury”

determination was made, the Secretary of

the Interior was required to modify the

power classification and restore the lands

to public entry within a reasonable time,

unless he identified some other basis for

withdrawing them. See Reeves v. Andrus,

465 F.Supp. 1065, 1070 (D.Alaska 1979).

No restoration order was ever issued by

the Secretary or BLM. In 1959, BLM re-

jected the homestead entries of Lee, Ek-

lund, and Carr on the ground that they

directly conflicted with the Power Site

withdrawal. All three men were notified

of their rights to appeal the decisions re-

jecting their entries to the Director of

BLM. There is no record that any of them

ever filed a formal appeal.

On March 15, 1961, BLM promulgated a

notice that it was filing a platted survey

18a

covering the lands claimed by Lee, Eklund,

and Carr. This notice was published in the

Federal Register on March 23, 1961. See

26 Fed.Reg. 2486 (1961). The survey delin-

eated the boundaries of Power Site Classifi-

cation Number 399 in relation to the home-

stead sites selected by Lee, Eklund, and

Carr, and was filed in the Anchorage BLM

office on April 1, 1961. Soon after its

publication, on April 27, 1961, the BLM

issued final decisions rejecting the entries

of Lee, Eklund, and Carr insofar as they

conflicted with the Power Site withdrawal.’

Although the record indicates that the

three men continued to object to these

BLM decisions, and that Lee even retained

legal counsel in 1963, they never won con-

cessions from BLM concerning the lands

within the Power Site Classification. All

three men signed compromise agreements

with BLM by 1964, which enabled them to

submit their proof of occupancy and to

receive patent to those portions of their

entries outside the Power Site withdrawal.

Thev all filed amended homestead entry

applications excluding the contested lands,

and Eklund was even permitted to apply

for an additional forty-acre parcel, for

2. The BLM vacated these fina! decisions on May

15, 1961 for the sole purpose of a!lowing a more

precise redrawing of the conformance lines for

each individual's homestead entry. The May 15,

1961 decision specifically provided that it was

“not to be construed as granting cny additicnal

rights or concessions to the withdrawn lands as

described in the original order of withdrawals.”

which he received patent in 1972, ostensibly

in heu of the excluded lands within his

original claim.

The lands that Lee, Eklund, and Carr

originally staked within Power Site Classi-

fication Number 399 remained under feder-

al control until the 1970s. In 1974, the

native village corporation of Eklutna, Inc.

(Eklutna), organized pursuant to the Alas-

ka Native Claims Settlement Act (ANCSA),

43 U.S.C. §§ 1601-1641 (1982), filed a land

selection application under ANCSA section

12, 43 U.S.C. § 1611, that included these

disputed lands. In 1979, the United States

issued a patent for the surface estate of

these lands to Eklutna, and a correspond-

ing patent for the subsurface estate to

Ceok inlet Region, Inc. (Cook Inlet Region)

as the native regional corporation in Eklut-

na’s region. See 43 U.S.C. § 1613(f).

Lee, Eklund, and Carr’s widow each

brought actions (which this court consol-

idated) against the United States, the Sec-

retary, the BLM Director, Eklutna, and

Cook Inlet Region, seeking to acquire pat-

ent to these lands. They claim that the

Secretary and BLM violated federal law by

failing to open the Power Site withdrawal

to humesteading after the FPC issued its

“no-injury”’ determination. They further

claim that the federal defendants intention-

al!y misied them concerning the status of

the lands and the procedures to be followed

when they orginally settled the area and

utterapted 29 secure title. They also claim

20a

that their rights to title have been pre-

served as against Eklutna and Cook Inlet

Region through ANCSA sections 14(g), 43

U.S.C. § 1613(g), and 22(b), 43 U.S.C.

§ 1621(b), as well as through the applica-

tion of several common-law theories.

Lee, Eklund, and Carr contend that this

court should order the defendants to issue

them patents to the disputed lands under

its federal-question, mandamus, quiet-title,

and equity jurisdiction, as well as under

jurisdiction derived from the Administra-

tive Procedure Act (APA). The plaintiffs

and defendants have all moved for summa-

ry judgment.’

ANALYSIS

The threshold question in this action is

whether this court has subject-matter juris-

diction over the plaintiffs’ claims. In order

to analyze this question properly, it is nec-

essary to divide the plaintiffs’ claims into

three separate categories: 1) claims to ac-

quire patent from the federal defendants;

2) claims to acquire patent from Eklutna

and Cook Inlet Region; and 3) claims for

3. As noted in footncte 1, the on! claim of the

plaintiffs not addressed in this decision is Lee's

'gim under ANCSA section 14(c), 43 U.S.C.

§ 1013(<). :

2la

money damages against the United States.*

! conclude that the Quiet Title Act (QTA),

28 U.S.C. § 2409a (1982), bars this court

from exercising jurisdiction over the plain-

. tiffs’ claims to acquire patent from the

federal defendants. Moreover, I conclude

that Congress’ enactment of ANCSA

7 preempts the plaintiffs’ common-law claims

against Eklutna and Cook Inlet Region,

and conclude that ANCSA does not provide

this court with subject-matter jurisdiction

or authority to require Eklutna and Cook

Inlet Region to issue patent to the plain-

tiffs. Finally, I conclude, based upon 28

U.S.C. §$§ 1346(a(2) and 1491 (1982), that

this court lacks subject-matter jurisdiction

over the plaintiffs’ claims for money dam-

ages, although the United States Claims

Court may have jurisdiction over those

claims. Thereiore, I dismiss the plaintiffs’

actions.

1. Claims to Acquire Patent From the

Federal Defendants

[2] Despite the variety of legal theories

they espouse, all but one of the plaintiffs’

claims against the federal defendants are

directed at a single objective: to secure

‘ patent for their disputed homestead entries

and to quiet title for those lands in them-

4. After these motions for summary judgment

were fully br.cfed, the plaintiffs moved to

amend their complaints and add claims for

money damages against the United States on an

inverse condenynation thecry.

22a

selves.° The United States Supreme

Court’s decision in Block v. North Daketa,

461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840

(1983), requires that all parties bringing

actions against the United States seeking

to secure or quiet title to land must satisfy

the requirements of the QTA. Parties can-

not circumvent the QTA’s jurisdictional and

procedural limitations by “artfully plead-

ing’ such actions under other statutory

provisions or legal theories, or as chal-

lenges to federal administrative action un-

der the APA. /d. at 284-86 and n. 22, 103

S.Ct. at 1818-19 and n. 22; see South Delta

Water Agency v. United States Depart-

ment of Interior, 767 F.2d 531, 541-42 (9th

Cir.1985); see also Nevada v. United

States, 731 F.2d 633, 636 (9th Cir.1984);

McIntyre v. United States, 568 F.Supp. 1,

2 (D.Alaska 1983). Therefore, all the plain-

tiffs’ claims against the federal defendants

that are intended to secure patent to their

disputed homestead entries—regardless of

whether the plaintiffs have classified them

as administrative appeals, mandamus ac-

tions, or suits in equity—must pass muster

under the QTA.

When analyzed under the terms of the

QTA, the plaintiffs’ claims to secure patent

from the federal defendants suffer from

two fatal weaknesses. First, the United

5. The sole exception is the plaintiffs’ inverse

condemnation claim against the United States,

which seeks money damages.

23a

*™

States formally disclaimed all interest in

the disputed lands following their convey-

ance to Eklutna and Cook Inlet Region.

Section 2409a(d) of the QTA provides that:

If the United States disclaims all inter-

est in the real property or interest there-

in adverse to the plaintiff at any time

prior to the actual commencement of the

trial, which disclaimer is confirmed by

order of the court, the jurisdiction of the

district court shall cease unless it has

jurisdiction of the civil action or suit on

ground other than and independent of

the authority conferred by section 1346(f)

of this title [the section providing juris-

diction over QTA actions].

28 U.S.C. § 2409a(d).

[3-5] Since the United States’ convey-

ance of the disputed homestead property

was required under the terms of ANCSA,

there is no question that its disclaimer is

valid and was made in good faith. There-

fore, this court must confirm the United

States’ disclaimer of interest in the dis-

puted lands. See W.H. Pugh Coal Co. v.

United States, 418 F.Supp. 538, 539 (E.D.

Wis.1976). Since no trial has yet com-

menced in this action, under the terms of

section 2409a(d), this court’s jurisdiction

must cease over all the plaintiffs’ claims to

acquire patent from the federal defend-

ants.®

6. The piaintiffs may attempt to argue that their

administrative review and mandamus claims

nrovide an alternative basis for this court to

24a

[6] Second, even without a disclaimer

by the United States, the plaintiffs’ actions

to acquire patent would be barred by the

QTA’s twelve-year statute of limitations,

contained in section 2409a(f):

Any civil action under the QTA shall

be barred unless it is commenced within

twelve years of the date upon which it

accrued. Such action shall be deemed to

have accrued on the date the plaintiff or

his predecessor in interest knew or

should heave known of the claim of the

United States.

28 U.S.C. § 2409a(f). Since the QTA ef-

fects a limited waiver of the United States’

sovereign immunity, its statute of limita-

tions must be strictly construed and will

not ordinarily be subject to equitable toll-

ing. California v. Yuba Goldfields, Inc.,

752 F.2d 398, 396-97 (9th Cir.1985); Neva-

da, 731 F.2d at 634; see also Block, 461

U.S. at 287, 103 S.Ct. at 1819-20; MeJn-

‘ure, 368 F.Supp. at 4.

[7,8] Under the terms of section

2409a(f), the QTA’s twelve-year period of

limitations beyran to run when Lee, Eklund,

retain subject-matter jurisdiction, as required

under section 2409a(d), but this argument runs

directly contrary to the Supreme Court's analy-

sis in Block. In Block, the Supreme Court held

that any action against the United States de-

signed to quiet title must satisfy a// the require-

ments of the QTA. 461 U.S. at 284-86, 103 S.Ct.

at 1818-19. This presumably includes the no-

Gisclaimer requirement imposed by section

2409a(d).

25a

and Carr “knew or should have known of

the claim of the United States” to the dis-

puted lands. 28 U.S.C. § 2409a(f); Guam

v. United States, 744 F.2d 699, 700 (9th

Cir.i984). In determining this date, this

court must employ a test of reasonable-

ness. Yuba Goldfields, 752 F.2d at 396;

McIntyre, 568 F.Supp. at 3. The statutory

period began to run when the three men

reasonably should have known that the

United States had a conflicting claim to the

lancs they sought, regardless of how

strong they believed that claim to be. See

Guam, 744 F.2d at 701; Nevada, 731 F.2d

at 625. “The existence of [even] one un-

contreverted instance of notice [to each of

the men], sufficed to trigger the limitations

pericd.” dJd.; see also Yuba Goldfields,

742 F.2d at 396-97; Guam, 744 F.2d at

701.

{9,10} Under this standard, Lee, Ek-

lund, ana Carr clearly should have realized

by 196i that the United States had a con-

flicting claim to the portions of their home-

Stead eniries within the Power Site Classifi-

cation: that year the BLM issued its sur-

vey covering the disputed lands, published

notice of the survey in the’ Federal Reg-

isver. and issued final decisions rejecting

their homestead entries. See Yuba Gold-

fields, T52 F.2d at 396-97; Guam, 744 F.2d

at 7Ol: Mesntyre, 568 F.Supp. at 4. More-

over, by 1964. when the three men all

reached sigred compromise agreements

with BLM and filed amended homestead

entry applications in accordance with

BLM’s dictates, they indisputably knew of

tne United States’ claim that the with-

Grawn land was not subject to entry under

the public land jaws. Even assuming that

the three men first learned of the govern-

ment’s position in 1964, their quiet title

causes of action against the federal defend-

ants all accrued well over twelve years

before 1979, 1980, and 1982, when they and

their successors filed the present actions.

Therefore, the plaintiffs’ claims to acquire

patent from the federal defendants are all

barred under the QTA’s statute of limita-

tions.

Based either upon the government’s dis-

claimer or the QTA’s statute of limitations,

I must dismiss the plaintiffs’ claims to ac-

quire patent from the federal defendants

for lack of subject-matter jurisdiction.

2. Claims to Acquire Patent From Ek-

lutna and Cook Inlet Region

[11,12] The plaintiffs have also

brought claims against Eklutna and Cook

Inlet Region, seeking title to the disputed

lands under various common-law theories,

including a constructive-trust theory, and

under ANCSA sections 14(g), 43 U.S.C.

§ 1613(g), and 22(b), 43 U.S.C. § 1621(b).

The QTA’s twelve-year statute of limita-

tions does not ber these claims, since under

its plain terms, the QTA applies only to

claims brought “to quiet title against ‘he

United States.” 28 U.S.C. § 2409a (em-

27a

phasis added). Congress passed the QTA

as a limited waiver of sovereign immunity

for actions to acquire title from the federal

government, see Block, 461 U.S. at 287, 103

S.Ct. at 1819-20, not to insulate private

parties who acquire federai lands, such as

Eklutna and Cook Inlet Region, from bona

fide actions to challenge their title. See

generally Economic Development and In-

dustrial Corp., 720 F.2d 1, 4 (1st Cir.1983).

Nor does the QTA operate like an ad-

verse possession statute and automatically

provide Eklutna and Cook Inlet Region

with valid title to the disputed lands as

against the plaintiffs. The Supreme Court

expressly indicated in Block that the QTA

is merely jurisdictional and does not trans-

fer title in dispuied lands even to the Unit-

ed States:

Unlike an adverse possession provision,

§ 2409a(f) does not purpose to effectuate

a transfer of title. If a claimant has title

to a disputed tract of land, he retains

title even if his suit to quiet his title is

deemed time-barred under § 2409a(f). A

dismissal pursuant to § 2409a(f) does not

quiet title to the property in the United

States. The title dispute remains unre-

sclvec. Nothing prevents the claimant

from continuing to assert his title....

Block, 461 U.S. at 291-92, 103 S.Ct. at

1822: accord Economic Development and

Industrial Corp., 720 F.2d at 4. Thus, the

QTA did not divest the plaintiffs of whatev-

er color of title they may have once pos-

sessed in the disputed lands. Since the

QTA does not protect Eklutna and Cook

Inlet Region from suit, the plaintiffs are

free to assert their claims of ownership

against those corporations insofar as other

statutes and common-law principles permit.

[13] The plaintiffs have raised several

common-law claims against Eklutna and

Cook Inlet Region, including a claim that

the disputed lands were wrongfully with-

held from tnem by the federal government,

were wrongfully transferred to Eklutna

and Cook Inlet Region under ANCSA, and

thus are currently being held for them in a

constructive trust by those corporations.

To determine the extent to which common-

law causes of action and remedies are

available to individuals like the plaintiffs,

who claim title to lands contained in ANC-

SA conveyances, it is necessary to examine

the extent to which Congress “spoke direct-

ly” concerning such claims in ANCSA it-

self. See City of Milwaukee v. Illinois,

451 U.S. 304, 313-19, 101 S.Ct. 1784, 1790-

94, 68 L.Ed.2d 114 (1981); see also Texas v.

Pankey, 441 F.2d 236, 241 (10th Cir.1971)

(federal common law applies “{uJntil the

field has been made the subject of compre-

hensive legislation or authorized adminis-

trative standards”). “{W]hen Congress ad-

dresses a question previously governed by

a decision rested on federal common law,

the need for [application of common law]

by federal courts disappears,” City of Mil-

wauxee, 451 U.S. at 314, 101 S.Ct. at 1721;

29a

moreover, “[t]he establishment of ... a

seif-consciouslx comprehensive program by

Congress [for regulating a particular area]

strongly suggests that there is no room for

Courts to attempt to improve on that pro-

gram with federal common law.” /d. at

319, 101 S.Ct. at 1793.

ANCSA’s language, structure, and legis-

lative history indicate that Congress intend-

ed it to provide a comprehensive and final

resolution of all issues relating to native

land claims in Alaska. In enacting ANC-

SA, Congress declared that “‘the settlement

[of those issues] should be accomplished

rapidly, with certainty, ... [and] without

litigation.” 43 U.S.C. § 1601(b) (emphasis

added). Congress viewed ANCSA as con-

Sstituting a complete and detailed “settle-

ment package,” in which Alaska natives

agreed to the extinguishment of all their

claims based upon aboriginal title in ex-

change for fee title to more than 40 million

acres and a cash settlement 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 (empha-

sis origina!); see also United States v. At-

lantic Richfield Co., 612 F.2d 1132, 1134

(9th Cir.), cert. denied, 449 U.S. 888, 101

S.Ct. 244, 66 L.£d.2d 113 (1980). In light

of Congress’ desire to provide a complete,

final, and certain resolution of native land

claims in ANCSA and to minimize the need

for litigation, it seems unlikely that Con-

gress would have authorized large-scale

30a

conveyances of lands to native corporations

without carefully delineating the rights of

other parties to assert claims to those

lands. Allowing private parties to claim

ownership to ANCSA-conveyance lands un-

der a host of common-law theories would

enable them to undermine the ANCSA set-

tlement and to prevent native corporations

from fully enjoying the fruits of the settle-

ment for many years.

Moreover, Congress “spoke directly” in

ANCSA concerning individuals’ rights to

assert claims to ANCSA-conveyance lands

based on prior use and occupancy. At

least four separate, detailed ANCSA provi-

sions address and define these rights. See

43 U.S.C. §§ 1613{c)(1) (primary place of

residence and business); 1613/g) (leases,

contracts. rights-of-way, and easements);

1621(b) (homesteads, headquarters sites,

trade and manufacturing sites, and small

tract sites); 162lic) (mining claims and lo-

cations). According to ANCSA’s legisla-

tive history, Congress believed that “{alll

valid existing rights [to ANCSA-convey-

ance lands], including inchoate rights of

entrymen and mineral locators, are protect-

ed” under ANCSA’s provisions. H.Conf.

Rep. No. 746, at 37, U.S.Code Cong. &

Admin.News 1971, at p. 2229. Congress

plainly did not believe that common-law

remedies would be necessary to supple-

ment ANCSA in order to protect individu-

als’ rights to ANCSA iands, or that parties

should be permitted to assert claims to

3la

ANCSA-conveyance lands that were not ex-

pressly recognized in ANCSA.

[14] Based on the detail with which

ANCSA was drafted and Congress’ inten-

tion to provide a certain and all-encompass-

ing resolution of Alaska native land claims,

I agree with the assessment of the United

States Court of Claims in Cape Fox Corp.

v. United States, 4 Cl.Ct. 223 (1988):

The ANCSA is comprehensive. It sets

out with particularity the rights of the

United States, the natives, the State, and

third parties, with respect to the lands

and revenues to be distributed, and es-

tablished a time frame in which these

rights and duties are to attach.

[15] Since Congress “spoke directly” in

ANCSA concerning individuals’ rights to

assert claims to ANCSA-conveyance lands

and established ‘‘a self-consciously compre-

hensive program” in ANCSA for determin-

ing such rights, I conclude, based upon

City of Milwaukee, that Congress intended

ANCSA to “occupy the field’’ in this area

and to preempt any common-law theories

or other statutory claims that individuals

might assert. See City of Milwaukee, 451

U.S. at 314, 319, 101 S.Ct. at 1793-94. Giv-

en the extensive set of provisions in ANC-

SA delineating the rights of individual

clainiants to ANCSA-conveyance lands, any

attempt to supplement these provisions

with common-law remedies, such es the

constructive-trust theory advanced by the

plaintiffs, would represent an attempt to

alter the comprehensive legislative scheme

adopted by Congress in ANCSA, rather

than to “fill a gap” that Congress has not

occupied, and would therefore be an imper-

missible application of federal common law.

See id. at 324 & n. 18, 101 S.Ct. at 1796 &

n. 18. Thus, I dismiss the plaintiffs’ com-

mon-law claims against Eklutna and Cook

Inlet Region, and hold that the plaintiffs’

claims seeking to recover title to the dis-

puted lands from these corporations must

be expressly based upon provisions con-

tained in ANCSA.

The plaintiffs have brought claims

against Eklutna and Cook Inlet Region un-

der ANCSA sections 14g), 43 U.S.C.

§ 1613(g), and 22(b), 43 U.S.C. § 1621(b).

They claim that these ANCSA provisions

preserve their rights to receive title to their

disputed homestead entries as against the

defendant native corporations. ANCSA

section 22(b) provides that:

The Secretary is directed to promptly

issue patents to al! persons who have

made a lawful entry on the public lands

in compliance with the public land laws

for the purpose of gaining title to

homesteads. headquarters sites, trade

and manufacturing sites, or small tract

sites ... and who have fulfilled all re-

quirements of, the law prerequisite to

obtaining a patent. Any person who has

made a lawfu! entry prior to August 31,

1971, for any of the foregoing purposes

shall be protected in his right of use and

33a

occupancy until all the requirements of

law for a patent have been met....

Provided, that oceupancy must have

been maintained in accordance with the

appropriate public land law....

43 U.S.C. § 1621(b) (emphasis added).

ANCSA section 14(g) provides that:

All conveyances made [to native corpo-

rations], pursuant to [ANCSA] shail be

subject to valid existing rights. Where

‘prior to patent of any land or minerals

under [ANCSA], a lease, contract, per-

mit, right-of-way, or easement (includ-

ing a lease issued under section 6(g) of

the Alaska Statehood Act) has been is-

sued for the surface or minerals covered

under such patent, the patent shall con-

tain provisions making it subject to the

lease, contract, permit, right-of-way, or

easement, and the right of the lessee,

contractee, permittee, or grantee to the

complete enjoyment of all rights, privi-

leges, and benefits thereby granted to

him.

43 U.S.C. § 1613(g) (emphasis added).

{16} Based upon my-analysis and com-

parison of the wording of these two provi-

sions, I conclude that ANCSA section 22(b),

and not section 14(g), was intended by Con-

gress to protect the interests of individuals,

like the plaintiffs, who claim ANCSA-con-

veyance lands based upon their prior entry

and occupancy of those lands “for the pur-

pose of gaining title to homesteads.” The

34a

plain language of section 22(b) refers to

“homesteads,” “the public land laws,” and

“lawful entry”; in contrast, section 14(g)

refers only to “lease{s], contract{s], per-

mit{s], right[s]-of-way, [and] easement{s].”

The two provisions thus address completely

distinct sets of property interests and con-

tractual rights established by the federal

government: section 22(b) addresses those

interests arising out of the operation of the

public land law and four statutory pro-

grams in particular, whereas section 14(g)

addresses those property interests and con-

tractua! rights that the federal government

creates on a case-by-case basis through the

“issufance]” of written authorizations and

agreements.’ There is no reason to believe

that Congress intended section 14(g) to ov-

erlap with section 22(b) and to apply also to

interests arising out of homestead entries,

7. At first glance, another distinction between

section 22(b) and section 14(g) may appear to

be that section 22(b) covers interests leading to

acquisition of title, whereas section 14(g) does

not. However, this distinctiori runs contrary to

the Secretary's interpretation of the two provi-

sions, which is that they both encompass at least

some property inicrests that may eventually ma-

ture or develop into fuil-scale title. See, eg,

Secretarial Order No. 3016 and accompanying

Memorandum, Valid Existing Rights Under the

Alaska Native Claims Settlement Act, 85 Interior

Dec. 1, 5-8 (1977). The correctness of the “2c-

retary s interpretation is unnecessary to resolve

for purposes of the present case, and I anly

conclude now that Congress did not intend to

luciude homesicad entries as property interests

mrotected by section 14(:).

35a

when section 14(g) does not mention the

term “homestead,” as section 22(b) does,

and when section 14(g) appears to have

been designed to cover a totally different

: set of property interests.

[17] Moreover, a step-by-step analysis

of the ANCSA conveyance process, includ-

. ing the Secretary’s regulations for adminis-

tering ANCSA conveyances, confirms that

section 14(g) cannot be interpreted to over-

lap with section 22(b) and to apply to home-

stead entries. Under section 22(b), “{t]he

Secretary is directed to promptly issue

natents to all persons who have made a

lawful entry on the public lands in compli-

ance with the [homestead] laws ... and

who have fulfilled all requirements of the

law prerequisite to obtaining a patent’; he

is also directed to “protect in [their] right

of use and occupancy” all “person{s] who

ha({ve}] made a lawful entry prior to August

31, 1971” but who have not yet fulfilled all

the homestead requirements. 43 U.S.C.

§ 1621(b) (emphasis added). Unlike other

ANCSA provisions concerning individuals’

prior existing claims to lands selected un-

der ANCSA, including section 14(g), section

22(b) does not indicate that the lands to

> « which it refers will ever be conveyed. See,

e.g., 43 U.S.C. § 1613(c)(1) (primary places

of residence and business); 43 U.S.C.

+ os § 1613(g) (leases, contracts, permits,

rights-of-way, and easements); 43 U.S.C.

§ 1621(c) (mining claims and _ locations).

This omission, combined with Congress’

36a

use of the word “promptly,” suggests that

Congress intended section 22(b), unlike

many parallel ANCSA provisions, to oper-

ate prior to, rather than following, anv

ANCSA conveyance: it requires the Secre-

tary to assess the validity of potential

clairns that might be raised under the

homestead laws before conveying lands in-

volving such claims to native corporations.

This interpretation of section 22(b) as a

pre-conveyance provision is supported by

the Secretary’s regulations, which provide

that the Secretary will not transfer to a

native corporation any !ands for which he

determines that valid homestead entries

have been made:

Pursuant to sections 14(g) and 22(b) of

the act, a/] conveyances issued under

the act shall exclude any lawful entries

which have perfected under, or are be-

ing :naintained in compliance with, laws

ieading to the acquisition of title, but

shail include lands subject to valid exist-

ing rights of a temporary or !imited na-

ture such as those created by leases (in-

cluding leases issued under section 6(g)

er the Alaska Statehood Act), contracts,

permits, rights-of-way, or easements.

43 CFR § 2650.3-1(a) (emphasis added).

Since the Secretary is required under sec-

tion 22(b) to assess the validity of all poten-

tial homestead claims, and is also required

under his own regulations to exclude from

any ANCSA conveyances those nomestead

claims determined to be valid, it is clear

37a

that he must make the homestead evalua-

tions required under section 22(b) prior to

making any ANCSA conveyances.

In contrast to section 22(b), section 14(g)

is by its very terms a post-conveyance

provision: it imposes obligations upon na-

tive corporations that take effect only once

they receive conveyances of lands that are

subject to “valid existing rights.” See 43

U.S.C. § 1618(g). Since under section 22(b)

and 43 CFR § 2650.3-1(a), the validity of

all homestead-related claims is supposed to

be resolved by the Secretary prior to any

ANCSA conveyance, and since in theory,

no conveyance is supposed to include valid

homestead entries, Congress could not

have intended section 14(g) to apply to

homestead-related claims. Under the

ANCSA convevance process, any “valid”

homestead claim will be segregated by the

Secretary before it can be conveyed, and

will never reach the native corporations.

Conversely, any purported homestead claim

contained in an ANCSA conveyance will

presumatly already have been determined

invalid by the Secretary. Thus, it would be

anomalous for a native corporation to con-

clude that a homestead claim within a con-

veyance it receives is a “valid existing

right” entitled to protection under section

14(z). As a result, section 14(g) cannot

apply to claims based on the homestead

laws.

Congress appears to have had several

strong reasons for choosing to address

claims under the homestead laws in a sepa-

38a

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

rate provision from claims involving the

property and contractual interests enumer-

ated in section 14(g), and for choosing to

require the Secretary to assess the validity

of all homestead claims prior to convey-

ance, rather than requiring native corpo-

rations to perform this function following

conveyance, as it did with the section 14(g)

property interests. First, the Secretary is

better equipped than the individual native

corporations to assess the validity of home-

stead claims, because of his expertise con-

cerning the intricacies of public land law,

his access to records concerning various

claims, and his prior dealings with various

entrymen. It would create an unnecessary

burden on native corporations’ time and

resources to require them to accumulate

this same information and expertise.

Second, if lands subject to homestead

claims were inciuded in ANCSA conveyanc-

es to native corporations, those lands would

presumably be counted as part of the cor-

porations’ total ANCSA lands entitlement.

Since the corporations would then have to

relinquish all valid homestead entries with-

out receiving any compensating benefit,

they would effectively be deprived of part

of the total benefits to which ANCSA enti-

tled them. In contrast, the property and

contractual interests which section 14(g)

requires the native corporations to adminis-

ter are all revernue-generating: when the

lands subject to section 14(g) leases, per-

39a

bad

mits, options to purchase,* or other inter-

ests are turned over to native corporations,

the corporations will ultimately either re-

tain control of these lands or at least re-

ceive some rent or income in return. See

generally Secretarial Order No. 3016 and

accompanying memorandum, Valid Exist-

ing Rights Under the Alaska Native Claims

Settlement Act, 85 Interior Dec. 1, 8.

Thus, treating homestead claims different-

ly from section 14(g) claims and requiring

the Secretary to exclude any valid home-

stead claims from ANCSA conveyances can

be viewed as an attempt by Congress to

ensure that native corporations receive

their full lands entitlements under ANCSA.

Furthermore, requiring the Secretary, as

opposed to the native corporations, to make

the final determinations concerning the va-

lidity of all homestead claims is especially

appropriate, given the direct economic

stake that native corporations would have

in rejecting homestead claims so that they

would be entitled to retain the lands being

8. The Secretary has concluded that certain op-

trons tG purchase constitute “valid existing

rights’ under section 14(g). Secretarial Order

No. 2016 and cccompanying Memorandum, Val-

id Existing Rights Under the Alaska Naiive

“aims Seitlement Act, 85 Interior Dec. 1, 7-8

(1977). I merely cite options to purchase as an

example of a possible section 14(g) property

interest in this context, and do not mean to

imply any decision at this point as to whether

such opticns are covered under the terms of

section 144).

40a

claimed.?

[18] Based on this analysis, I dismiss

the plaintiffs’ claims against Eklutna and

Cook Inlet Region under ANCSA sections

14(g) and 22(b). The claims by Lee, Ek-

lund, and Carr to the disputed lands are all

exclusively premised upon compliance with

the homestead laws: all three individuals

claim to have originally entered and occu-

pied the contested lands “for the purpose

of gaining title to homesteads.” See 43

U.S.C. § 1621(b). None of the three plain-

tiffs’ claims are based upon any of the

property interests enumerated in section

14(g). As a result, the plaintiffs have

failed to state a claim for which relief can

be granted under section 14(g), and I must

dismiss their section 14(g) claims. See Fed.

R.Civ.P. 12(b)(6).

[19] I dismiss the plaintiffs’ section

22(b) claims against Eklutna and Cook Inlet

Region for lack of subject-matter jurisdic-

tion. By its plain terms, section 22(b) es-

tablishes a duty only on the part of the

Secretary to issue patents to individuals

with valid homestead claims. It does not

establish any duty on the part of native

corporations to individuals claiming lands

9. It should be noted, however, that Congress did

not structure all of ANCSA’s provisions in order

to avoid having native corporations determine

the validity of claims to lands that they might

consider economically valuable. See, e.g., 43

U.S.C. § 1613(c)(1).

4la

based on the homestead laws: as indicated

above, Congress did not intend for native

corporations to be involved in evaluating

the validity of such claims, or to convey

any of the lands they receive under ANC-

SA to those raising such claims. See 43

U.S.C. § 1621(b). As a result, the plain-

tiffs cannot bring any claims against the

defendant native corporations under sec-

tion 22(b).'°

{20] The only defendant that the plain-

tiffs could conceivably sue based upon sec-

tion 22(b) is the Secretary. See id. How-

ever, section 22(b) does not itself contain 2

waiver of the federal government’s sover-

eign immunity, or provide any mechanism

for parties, like the plaintiffs, to obtain

administrative or judicial review of the Sec-

retary’s determinations under that provi-

sion. Therefore, any action that the plain-

tiffs bring against the Secretary based

upon section 22(b) that is designed to ac-

quire patent to the contested lands would

have to be brought under the QTA. See

Block, 461 U.S. at 286 and n. 22, 103 S.Ct.

10. Although I dismiss the piaintiffs’ common-

law and section 22(b) claims against Eklutna

and Cook Iniet Kegion tor lack of subject-matter

jurisdiction, Eklutna has requested that I never-

theless make complete findings of faci on these

claims in case the Court of Appeals disagrees

with my jurisdictional analysis. Such findings

would be purely advisory in light of my conclu-

sions concerning this court's jurisdiction, and |!

therefore decline to make such findings.

42a

at 1819 n. 22 (holding that “Congress in-

tended the QTA to provide the exclusive

means by which adverse claimants could

challenge the United States’ title to real

property,” and that parties claiming title to

lands held by the federal government can-

not bring actions under the APA). Since

the plaintiffs’ claims to acquire title to the

disputed lands from the government were

already barred under the QTA’s twelve-

year statute of limitations before the Secre-

tary made his section 22(b) determination,

sce section 1, supra, I conclude that any

claims by them seeking title based on his

section 22(b) determination are also time-

barred."

11. I conciude that section 22(b) does not extend

the period of limitations for individuals like the

plaintiffs, whose time for initiating actions has

already elapsed under the QTA. Section 22(b)

does not expand the rights of the plaintiffs in

the disputed lands beyond those they had in

1961-1964, when their QTA causes of action

accrued. See section 1, supra. Therefore, the

picintiffs cannot contend that the QTA’s twelve-

vear period started over again when ihe Secre-

ta:¥ madz his section 22(b) determination in the

late 197Cs. Sve Yuba Goldfields, 752 F.2d a

396-S7 (QTA's tweive-year period begins to run

when parties first become aware that the United

Siates may assert a claim to lands they are

claiming: Guam, 744 F.2d at 700-01 (same);

Nevada, 721 F.2d at 635 (same).

The piainniffs may contend that their actions

raise timely section 22(5) claims based on ANC-

SA's iimutat.ons provision for challenges io deci-

sicns mace bv the Secretary, 43 U.S.C. § 1632(a)

(10%2, Section 1632(a) provides that: “a deci-

sina of tne Secretary under ... the Alaska Na-

43a

tive Claims Setttement Act shall not be subject

to judiciai review unless such action is initiated

before a court of competent jurisdiction within

two vears after the dav the Secretary's decision

hecomes f:nal or December 2, 1980, whichever

is later: Provided, that the party seeking such

review she!l first exhaust any administrative

appea! richts.” Jd.

Tre negative phrasing of section 1632(a)

(“shall nor be subject te judicial review unless

“. and its reference to ‘court{s] of competent

jurisdiction” indicate that it was not intended

by Congress to create jurisdiction over parties’

claims based on ANCSA or to expand the reme-

dies available to parties beyond those already

available under other provisions. Moreover,

secticn 1632(a)’s legislative history confirms

that it was adopted to limit, rather than extend,

the time for judicial review: Congress noted

that “[dJue to the interwoven nature of entitle-

ments, decisions, and conveyances concerning

land under ... ANCSA, it is desirous that ad-

minisiraiive decisions be absolutely final in

minimum periods of time.” S.Rep. No. 413,

96th Cong., 2d Sess. 291 (1980), reprinted in

1980 U.S.Code Cong.Ad.News 5070, 5235. Con-

gress did not envision the provision as authoriz-

ing judicial review in cases where it was not

already available, but instead stated that “[(t]his

section provides that judicial review be institut-

ed, if at al!, within two years of the date a

Secretarial decision becomes effective.” /d. at

291-93, reprinted in 1980 U.S.Code Cong. and

Ad.News at 5235-36 (emphasis added). Thus,

because at the time of the Secretary's section

22(b) decision, the QTA barred any challenge to

that decision, section 1632(a) does not create an

independent basis for jurisdiction over such a

challenge.

1 note in passing also that section 1632(a)

requires that parties “exhaust any administra-

tive appeal rights” before seeking judicial review

of Secretarial decisions under ANCSA. 43

U.S.C. § 1632{a). The record indicates that of

44a

3. Inverse Condemnation Claims

Against the United States

(21j Lee, Eklund, and Carr have also

brought inverse condemnation claims

against the United States. alleging a ‘‘tak-

ing ' of their property without just compen-

sation. They contend that prior to the Sec-

retarv’s conveyance of the contested lands

to Eklutna and Cook Inlet Region, they had

property rights in those lands that re-

mained intact despite the bar of the QTA.

See generally Block, 461 U.S. at 291-92,

103 S.Ct. at 1822. According to the plain-

tiffs, by conveying those lands under ANC-

SA to the defendant native corporations,

who cannot be sued for title under ANC-

SA’s provisions, the Secretary effectively

extinguished their property rights. It is

these property rights for which the piain-

tiffs have brought inverse condemnation

claims. See generally Hawaii Housing

Authority v. Midkiff, 467 U.S. 229, 104

S.Ct. 2321, 2828-32, 81 L.Ed.2d 186 (1984)

(holding that eminent domain power may

be used to implement land redistribution

program).

Each plaintiff is seeking “in excess of

$10,000” in money damages on their in-

verse condemnation claims. The United

States Claims Court has exclusive jurisdic-

the three plainuffs, only Lee can arguably be

deemed to have exhausted his administrative

appea: rigiits regarding his section 22(b) claims.

45a

tion over actions for money damages

against the United States when the amount

sought is greater than $10,000. 28 U.S.C.

§§ 1491, 1346(a)(2) (1982); Cape Fox Corp.

v. United States, 646 F.2d 399, 401-02 (9th

Cir.1981). Therefore, I must dismiss the

plaintiffs’ inverse condemnation claims for

lack of subject-matter jurisdiction.'*

WHEREFORE, iT IS ORDERED THAT:

1) the plaintiffs’ claims for patent

against the federal defendants are dis-

missed for lack of subject-matter jurisdic-

tion;

2) the plaintiffs’ common-law claims for

patent against defendants Eklutna and

Cook Inlet Region are dismissed for lack of

subject-matter jurisdiction;

3) the plaintiffs’ claims for patent

against defendants Eklutna and Cook Inlet

12. Despite the fact that this court lacks subject-

matter jurisdiction over the plaintiffs’ inverse

condemnation claims, the federal defendants

have requested me to make findings of fact that

could be used by the Claims Court in any subse-

quent action there. However, such findings

would be purely advisory and would undermine

the exclusive jurisdiction of the Claims Court

over the plaintiffs’ inverse condemnation

claims. See Cape Fox Corp. v. United States, 646

F.2d 399, 402 (9th Cir.1981). Therefore, I de-

cline to make such findings.

46a

Region under ANCSA section 14(g) are dis-

missed for failure to state a claim upon

which relief can be granted, and their

claims under ANCSA section 22(b) are dis-

missed for lack of subject-matter jurisdic-

tion; and

4) the plaintiffs’ inverse condemnation

claims against the United States are dis-

missed for lack of subject-matter jurisdic-

tion.

47a

Judgment

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES W. LEE; RALPH A. EKLUND;

CORA CARR,

Plaintiffs-Appellants, No. 86-

vs 3651

SECRETARY OF THE INTERIOR;

DIRECTOR, BUREAU OF LAND

MANAGEMENT; EKLUNTNA, INC.;

COOK INLET REGION, INC.,

)

UNITED STATES OF AMERICA; )

)

Defendants-Appellees. )

)

CV-A80-301 CV-A79-336 CV-A82-441

APPEAL from the United States

District Court for the ANCHORAGE District

of ALASKA

THIS CAUSE came on to be heard on

the Transcript of the Record from the

United States District Court for the

ANCHORAGE District of ALASKA and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now

43a

here ordered and adjudged by this Court,

that the judgment of said District Court

in this Cause be, and hereby is AFFIRMED.

Filed and entered 03=10-87

FILED

JUL 22 1987

CATHY A CATTERSON CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES W. LEE; RALPH A.

EKLUND; CORA CARR, CA No. 86-

3651

Plaintiffs-

Appellants, BC No. CV-

A80-301

Vv. (District of

Alaska)

UNITED STATES OF AMERICA;

SECRETARY OF THE IN-

TERIOR, DIRECTOR, BUREAU ORDER

OF LAND MANAGEMENT;

EKLUTNA, INC.; COOK INLET

REGION, INC.

Defendants-

Appellees.

mae eee”

Before: WRIGHT, FARRIS, and BEEZER,

Circuit Juges.

The panel as constituted in the

above case has voted to deny the petition

for rehearing filed April 24, 1987.

Judges Farris and Beezer have voted to

reject the suggestion for a rehearing

50a

en banc and Judge Wright recommends

rejection.

The full court has been advised of

the suggestion for an en banc hearing,

and no judge of the court has requested

a.vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

5la

Federal Power Act of 1920; 16 U.S.C.

§818.

Any lands of the United States included in

any proposed projection under the provisions of

this subchapter shall from the date of filing of

application therefor be reserved from entry, lo-

cation, or other disposal under the laws of the

United States until otherwise directed by the

commission or by Congress. Notice that such

application has been made, together with the

date of filing thereof and a description of the

lands of the United States affected thereby,

shall be filed in the local land office for the dis-

trict in which such lands are located. Whenever

the commission shall determine that the valuc

of any lands of the United States so applied for.

or heretofore or hereafter reserved or classified

as power sites, will not be injured or destroyed

for the purposes of power development by loca-

tion, entry. or selection under the public-land

laws, the Secretary of the Interior. upon notice

of such determination, shall declare such lands

open to location, entry, or selection. for such

purpose or purposes and under such restric-

tions as the Commission may determine. sub-

ject to and with a reservation of the right of

the United States or its permittecs or licensees

to enter upon, occupy, and use any part or al!

of said lands necessary, in the judgement of the

Commission, for the purposes of this sub-

chapter, which right shall be expressly reserved

in every patent issued for such lands: and no

claim or right to compensation shall accrue

from the occupation or use of any of said lands

for said purposes. The United States or any li-

censee for any such lands hereunder may enter

thereupon for the purposes of this subclhapter,

upon payment of any damages to crops. build-

ings, or other improvements caused thereby to

—

52a

the owner thereof, or upon givine a good and

sufficient bond to the United States for the use

and benefit of the owner to secure the payment

of such damages as may be determined and

fixed in an action brought upon the bond in a

court of competent jurisdiction, said bond to be

in the form prescribed by the Commission: Pro-

vided, That locations, entries, selections, or fil-

ings heretofore made for lands reserved as

water-power sites, or in connection with water-

power development, or electrical transmission

may proceed to approval or patent under and

subject to the limitations and conditions in this

section contained: Provided further, That

before any lands applied for, or heretofore or

hereafter reserved, or classified as power sites,

are declared open to location, entry, or selec-

tion by the Secretary of the Interior. notice of

intention to make such declaration shall be

given to the Governor of the State within

which such lands are located, and such State

shall have ninety days from the date of such

notice within which to file, under any statute

or regulation applicable thereto, an application

for the reservation to the State, or any political

subdivision thereof, of any lands required as a

right-of-way for a public highway or as a source

of materials for the construction and mainte-

nance of such highways, and a copy of such ap-

plication shall be filed with the Federal Power

Commission; and any location, entry. or selec-

tion of such lands, or subsequent patent there-

of. shall be subject to any rights granted the

State pursuant to such application.

53a

Quiet Title Act of 1972, as amended; 28

U.S.C. §$2409a.

(a) The United States may be named

as a party defendant in a civil action

under this section to adjudicate a dis-

puted title to real property in which

the United States claims an interest,

other than a security interest or water

rights. This section does not apply to

trust or restricted Indian lands, nor

does it apply to or affect actions which

may be or could have been brought under

sections 1346, 1347, 1491, or 2410 of

this title, sections 7424, 7425, or 7426

of the Internal Revenue Code of 1954,

as amended (26 U.S.C. 7424, 7425 and

7426), or section 208 of the Act of July

10, 1952 (43 U.S.C. 666).

(b) The United States shall not be

disturbed in possession or control of

any real property involved in any action

54a

under this section pending a final judg-

ment or decree, the conclusion of any

appeal therefrom, and sixty days; and

if the final determination shall be ad-

verse to the United States, the United

States nevertheless may retain such pos-

session or control of the real property

or of any part thereof as it may elect,

upon payment to the person determined

to be entitled thereto of an amount which

upon such election the district court

in the same action shall determine to

be just compensation for such possession

er control.

issue in any action brought under this

section.

(d) The complaint shall set forth

with particularity the nature of the

right, title, or interest which the

plaintiff claims in the real property,

55a

the circumstances under which it was ac-

quired, and the right, title, or interest

claimed by the United States.

(e) If the United States disclaims

all interest in the real property or in-

terest therein adverse to the plaintiff

at any time prior to the actual commence-

ment of the trial, which disclaimer is

confirmed by order of the court, the jur-

isdiction of the district court shall

cease unless it has jurisdiction of the

Civil action or suit on ground other than

and independent of the authority

conferred by section a of this

title.

(f£) A civil action against the United

States under this section shall be tried

by the court without a jury.

(g) Any civil action under this sec-

tion, except for an action brought by

a State, shail be barred unless it is

56a

commenced within twelve years of the date

upon which it accrued. Such action shall

be deemed to have accrued on the date

plaintiff or his predecessor in interest

knew or should have known of the claim

of the United States.

[Subsections (h) through (m) pertain

to actions brought by a state, and are

therefore omitted as not being pertinent

to the issues of this petition. ]

(n) Nothing in this section shall

be construed to permit suits against the

United States based upon adverse posses-

sion.

57a

43 U.S.C. §161.

Every person who is the head of a family, or

who has arrived at the age of twenty-one years,

and is a citizen of the United States, or who has

filed his declaration of intention to become

such, as required by the naturalization laws,

shall be entitled to enter one-quarter section, or

a less quantity, of unappropriated public lands,

to be located in a body in conformity to the

Icgal subdivisions of the public lands: but no

person who is the proprictor of more than one

hundred and sixty acres of land in any State or

Territory, shall acquire any right under the

homestead law. And every person. owning and

residing on land may, under the provisions of

this section, enter other land Iving contiguous

to his land, which shall not, with the land so al-

ready owned and occupied, excced in the agegre-

gate one hundred and sixty acres.

43 U.S.C. §164.

No certificate shall be given or patent issued

therefor until the expiration of three years

from the date of such entry; and if at the expi-

ration of such time, or at any time within two

years thereafter, the person making such entry,

or if he be dead his widow, or in case of her

death his heirs or devisee, or in case of a widow

making such entry her heirs or devisee, in case

of her death, proves by himself and by two

credible witnesses that he, she, or they have a

habitable house upon the land and have actual-

ly resided upon and cultivated the same for the

term of three years succeeding the time of

filing the affidavit and makes affidavit that no

part of such land has been alienated, except as

provided in section 174 of this title, and that

io)

+07)

he, she, or they will bear true allegiance to the

Government of the United States, then in such

case he, she, or they, if at that time citizens of

the United States, shall be entitled to a patent,

as in other cases provided by law: Provided,

That upon filing in the local land office notice

of the beginning of such absence the entryman

shall be entitled to a continuous leave of ab-

sence from the land for a period not exceeding

five months in each year after establishing resi-

dence, and upon the termination of such ab-

sence the entryman shall file a notice of such

termination in the local land office, but in case

of commutation the fourteen months’ actual

residence required by law must be shown, and

the person commuting must be at the time a

citizen of the United States: Provided further,

That when the person making entry dies before

the offer of final proof those succeeding to the

entry must show that. the entryman had com-

plied with the law in all respec’: to the date of

his death, and that they have since complicd

with the law in all respects, as would have been

required of the entryman had he lived, except-

ing that they are relieved from any require-

ment of residence upon the land: Provided fur-

ther, That the entryman shall, in order to

comply with the requirements of cultivation

herein provided for, cultivate not less than one-

sixteenth of the area of his entry, beginning

with the second year of the entry, and not less

than one-eighth, beginning with the third year

of the entry and until final proof, except that

in the case of entrics under section 218(f) of

this title, double the area of cultivation herein

provided shall be required, but the Secretary of

the Interior may, upon a satisfactory showing,

under rules and regulations prescribed by him,

reduce the required area of Cultivation: And

provided further, That the above provision as to

59a

cultivation shall not apply to entries under the

Act of Apri) 28, 1904. commonly known as the

Kinkaid Act (43 U.S.C. 224], or entries under

the Act of June 17, 1902, commonly known as

the reclamation Act, and that the provisions of

this section relative to the homestead period

shall apply to all unperfected entries as well as

entries hereafter made upon which residence is

required.

Alaska Native Claims Settlement _ Act,

§2(b); 43 U.S.C. $1601(b).

Coneress finds and declares that—

(a) there is an immediate need for a fair

and just settlement of all claims by Natives

and Native groups of Alaska, based on ab-

original land claims;

(b) the settlement should be accomplished

rapidly. with certainty, in conformity with

the real economic and social needs of Natives,

without litigation, with maximum participa-

tion by Natives in decisions affecting their

rights and property. without establishing any

permanent racially defined institutions,

rights, privileges, or obligations. without cre-

ating a reservation system or lengthy ward-

ship or trusteeship, and without adding to the

categories of property and institutions enjoy-

ing special tax privileges or to the legislation

establishing special relationships between the

United States Government and the State of

Alaska:

Alaska Native Claims Settlement Act,

$14(g); 43 U.S.C. §1613(q).

All conveyances made pursuant to this chap-

ter shall be subject to valid existing riehts

Where, prior to patent of any land or minerals

under this chapter, a lease, contract. permit,

right-of-way, or casement (including a lease

issued under section 6(¢) of the Alaska State

hood Act) has been issued for the surface or

minerals covered under such patent, the paten!

shall contain provisions making it subject to

the lease, contract, permit. right-of-way. or

easement. and the right of the lessee. cont rar

tee, permittee, or grantee to the complete en

joyment of all rights, privileres. and benefits

thereby granted to him. Upon issuance of the

patent, the patentee shall succeed and become

entitled to any and all interests of the State or

the United States as Iessor, contractor, permit:

ter, or grantor, in any such leases, contracts,

permits, rights-of-way, or casements coveriny

the estate patented, and a lease issued under

section 6(g) of the Alaska Statehood Act shal!

be treated for all purposes as though the

patent had been issued to the State. The ad-

ministration of such lease, contract, permit,

right-of-way, or easement shall continue to be

by the State or the United States, unless the

agency responsible for administration waives

administration. In the event that the patent

doés not cover all of the land embraced within

any such lease, contract, permit, right-of-way,

or easement, the patentee shall only be entitled

to the proportionate amount of the revenues

reserved under such lease, contract, permit,

right-of-way, or casement by the State or the

United States which results from multiplying

the total of such revenues by a fraction in

Which the numerator is the acreage of such

62a

lease, Contract, permit, right-of-way, or ease-

ment which is included in the patent and the

denominator is the total acreage contained in

such lease, contract, permit, right-of-way, or

casement.

Alaska Native Claims Settlement Act,

§22(b); 43 U.S.C. §1621(b).

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 purpose of gaining

title to homesteads, headquarters sites, trade

and manufacturing sites, or smal] tract sites (43

U.S.C. 682 ®), and who have fulfilled all require-

ments of the law prerequisite to obtaining a

patent. Any person who has made a lawful

entry prior to AuguSt 31, 1971, for any of the

foregoing purposes shall be protected in his

right of use and occupancy until all the require-

ments of law for a patent have becn met even

though the lands involved have been reserved

or withdrawn in accordance with Public Land

Order 4582, as amended, or the withdrawal pro-

visions of this chapter: Provided, ‘That occupan-

cy must have been maintained in accordance

with the appropriate public land law: Provided

further, That any person who entered on public

lands in violation of Public Land Order 4582: as

amended, shall gain no rights.

43 U.S.C. §1632(a).

(a) Except for administrative determinations

of navigability for purposes of determining

ownership of submerged lands under the Sub-

merged Lands Act (43 U.S.C. 1301 et seq., 1311

et seq.), a decision of the Secretary under this

chapter or the Alaska Native Claims Settle-

ment Act (43 U.S.C. 1601 et seq.) shall not be

subject to judicial review unless such action is

initiated before a court of competent jurisdic-

tion within two years after the day the Secre-

tary’s decision becomes final or Decembcr 2,

1980, whichever is later: Provided, That the

party seeking such review shall first exhaust

any administrative appeal rights.

H4a

AS (Alaska Statutes) 9.10.230:

Sec. 09.10.230. Certain actions

relating to real property. No person

may bring an action for the determination

of a right or claim to or interest in

real property unless commenced within

the limitations provided for actions for

the recovery of the possession of real

property. But no person may bring an

action to set aside, cancel, annul, or

otherwise affect a patent to land issued

by this state or the United States, or

to compel a person claiming or holding

under a patent to convey the land

described in the patent or a portion of

the land to the plaintiff in the action,

or to hold the land in trust for or to

the use and benefit of the plailntiff,

Or on account of any matter, thing, or

transaction which was had, done,

suffered, or transpired before the date

65a

)

of the patent unless commenced within

10 years from the date of the patent. In

an action upon a new promise, fraud, or

mistake, the running of the time with-

in which an action may be commenced

starts from the making of the new promise

or the discovery of the fraud or mistake.

This section does not bar an equitable

owner in possession of real property from

defending possession by means of the e-

quitable title. The right of an equita-

ble owner to defend possession in an ac-

tion or by complaint for injunction is

not barred by lapse of time while an ac-

tion for the possession of the real pro-

perty is not barred by the provisions

of this chapter.

66a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.