# Petition for Writ of Certiorari — Lee v. Eklutna, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1052%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1041 ## Text fe al 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. ‘ AN ana Petitioners, EKLUTNA, INC., COOK INLET REGION, INC., UNITED STATES AMERICA, SECRETARY OF THE INTERIOR, and DIRECTOR, RUREAU OF LAND MANAGEMENT, OF 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? ii 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. Se vi 12 16 16 21 26 27 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 iv 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 vi 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 2 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) 6, aa, 335 2, 2, 35 26 31 36 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. o 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, 5 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. 10 721. 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. ll 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 12 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- ka 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 14 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. S A 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 16 e 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 aq 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 18 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- 19 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. 20 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. 21 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, 22 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. 23 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 24 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 25 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 26 or *) 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) 27 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- 28 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 29 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- 30 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. 31 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- 6/ 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. 32 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. 33 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. 34 Il 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 36 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 37 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, 38 359 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: 39 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. 40 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 41 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 42 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 43 = ae ee APPENDIX la 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. ae 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. l 2a 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, | 3a 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. 4a 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 5a 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 Sa 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. Ca 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 Ca 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. oA fu 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, v. UNITED STATES of America, Secretary of the Interior, Director, Bureau of Land Management, Eklutna, Inc., and Cook Inlet Region. Inc., Defendants. Cora CARR, Plaintiff, v. 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 9: 24a ml [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 n [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1052%3A1. Public record. Not legal advice.