Opposition Brief — Lee v. Eklutna, Inc.

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BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION a

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CHARLES FRIED *s

, / ROGER J. MARZULLA "

% Acting Assistant Attorney General -

4 ROBERT L. KLARQUIST o

ag EDWARD J. SHAWAKER =

% Department of Justice EY

s Washington, D.C. 20530 4

6 (202) 633-2217 3

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QUESTIONS PRESENTED

1. Whether petitioners’ suits against the United States

claiming title to land under the homestead laws are barred

by the 12-year statute of limitations in the Quiet Title Act,

28 U.S.C. 2409a(g), because petitioners knew or should

have known of the United States’ claim to the land when

their homest2ad claims were denied by the Secretary of the

Interior in 1961 and 1964.

2. Whether the United States is an indispensable party

to petitioners’ suits against the respondent Alaska Native

corporations that hold the disputed land under patents

issued by the United States pursuant to the Alaska Native

Claims Settlement Act (ANCSA), 43 U.S.C. 1601 ef seq.,

because, under ANCSA, the effect of a judgment in peti-

tioners’ favor would be to enable the Native corporations

to obtain additional land from the United States.

(1)

TABLE OF CONTENTS

Page

LRA aN are ee ee era l

REG NG te a l

ns EE ERIS ACO a sae eeeees l

a kk sy'n dala d'y be aie was A Siala. a 6

ere eee ee hats Cae ese yh gam se 17

TABLE OF AUTHORITIES -

Cases:

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

I) er —

Ara y, ree, 156 US. 537 (1895) .. 0... ee eee, 12

Block v. North Dakota, 461 U.S. 273 (1983) ............ 4,9

yBowen v. City of New York, No. 84-1923 (June 2,

ee a ha wink Gp nad a a AS 7, 8, 9, 10, 11

Duluth & Iron Range R.R. v. Roy, 173 U.S. 587 (1899) .. 12

Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231

IS SES TSO RGR: Mies Se -— 11

Heckler v. Day, 467 U.S. 104 (1984) .................. 8

Milwaukee v. Illinois, 451 U.S. 304 (1981) ............. 5

Provident Bank v. Patterson, 390 U.S. 102 (1968) ....... 14

Reeves v. Andrus, 465 F. Supp. 1065 (D. Alaska 1979) ... 11

Shiny Rock Mining Corp. v. United States, 825 F.2d 216

eee a osu i ac dadtwas hoes iss 10

United States v. Kubrick, 444 U.S. 111 (1979) .......... 10

United States v. Midwest Oil Co., 236 U.S. 459 (1915) ... 10

United States v. Western Pac. R.R., 352 U.S. 49 (1956) .. 14

United States v. Yellow Freight Systems, Inc., 762 F.2d

I aay ka ved ssewaw caecce ene e's 14

Statutes, regulations and rules:

Act of Nov. 4, 1986, Pub. L. No. 99-598, 100 Stat. 3315

ey ue eG 0 eine 6:2 bee awees 4,5

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

a RESUS pe sh 3

Ee Sees see e se ws caes 3

Ce ee rar 4

ge ke. ee een 13

IV

Statutes, regulations and rules — Continued: Page

MECI BC. HOA) cd 6a occ cess cee cdececes 13, 16

43 U.S.C. 1613 (§ 14)... 2.0 cece ccc cece ncness , 13

PGi Coe) | ee eo oe 13

43 U.S.C. 1621(b) (§ 22(b)) ...-- eee eee eee 5

Federal Power Act § 24, 16 U.S.C. OO ou ceuneaa tee y ee

Quiet Title Act:

eo err nr er. ea. 4,5

28 1).S.C. 2O0DAME) ... won ccc cece sence essesens 4

28 U.S.C. PAOGAG) .. 0. nc cw ccc n wen cncenseeeces 5,7, 8

; Lk | Per ernre ner toe. oe, 4

lik te. er mrrrrere rrr ere ike 8

Pol te Cok) Sen cere ee ere es ee. 2

Pein eo) errr rrr rrr rrr ee eee kas. 2

Poo ee | reer rere rrr Sec hoe. 2

Pik ah: | nr eee ere errr coe ee 2

rk Tats re re rrr ee errr tir 2

hot kg. nee mre rer Tie rn a. 0, 2

BS UES MANIA oi sic ncn cece sean t awning han nae 9, 16

43 C.F.R.:

actin DASE AUT) 2.0 cece cee actesaetan ed es 13

ee |) ree ea, 13

Fed. R. Civ. P.:

cg chav eee ws tne n eee x ean ee 12

DP eee ee eee ee ee, 12, 13, 14

|. ere ore rs err reer ee ee 12, 14, 15, 16

Miscellaneous:

26 Fed. Reg. 2486 (1961) .....---- eee e eee eer eee enees 3

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-642

JAMES W. LEE, ET AL., PETITIONERS

v.

EKLUTNA, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The second amended opinion of the court of appeals

(Pet. App. 2a-15a) is reported at 809 F.2d 1406. The opin-

ion of the district court (Pet. App. 16a-47a) is reported at

629 F. Supp. 721.

JURISDICTION

The judgment of the court of appeals (Pet. App.

48a-49a) was entered on March 10, 1987, and a timely peti-

tion for rehearing was denied on July 22, 1987 (Pet. App.

50a-51a). The petition for a writ of certiorari was filed on

October 19, 1987. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. This case concerns the ownership of several parcels

of land in the Eagle River Valley near Anchorage, Alaska.

The land in question was patented by the United States in

1979 to_two Native corporations that were established

(1)

2

under the Alaska Native Claims Settlement Act (ANCSA),

43 U.S.C. 1601 et seg. Prior to that time, however, the

land was included in Power Site Classification 399, which

was issued by the United States Geological Survey in 1950,

pursuant to 43 U.S.C. 31 and Section 24 of the Federal

Power Act, 16 U.S.C. 818.!

Section 24 of the Federal Power Act provides that land

included in a proposed power project site shall be “re-

served from entry, location, or other disposal under the

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

Classification 399 in 1950 therefore had the effect of

withdrawing the parcels at issue in this case from entry

under the public land laws (Pet. App. 6a). Section 24 of

the Federal Power Act further provides that if the FPC

determines that any of the land set aside for a power site

will not be injured or destroyed for purposes of power

development if it is made available for location, entry, or

selection under the public land laws, the Secretary of the

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

State, shall declare the land open to entry under those

laws. In 1952, the FPC determined that certain land

covered by Power Site Classification 399 would not be in-

jured for purposes of power development by location or

entry under the public land laws. However, the Secretary

of the Interior did not thereafter revoke the withdrawal

and declare the land open for entry or settlement. Pet.

App. 6a, 17a-18a.

In 1957, each of the three petitioners settled on a

separate parcel of land in the Eagle River Valley, with the

expectation of homesteading it.2 Some of the iand on

' The FPC has since been abolished and its duties have been

transferred to the Secretary of Energy and the Federal Energy

Regulatory Commission. See 42 U.S.C. 7151(b), 7171(a), 7172(a),

7291 and 7293.

2 Petitioners Lee and Eklund settled on two of the parcels. Peti-

tioner Carr is the widow of Warren Carr, who was the actual en-

tryman on the third parcel. For the sake of convenience, we shall refer

to all three entrymen as petitioners.

3

which petitioners settled was open for homesteading.

However, the Bureau of Land Management (BLM) in-

formed petitioners that other portions of their proposed

homestead sites—the portions at issue here— were within

Power Site Classification 399 and for that reason were not

available for entry until BLM formally opened them for

settlement. Similarly, the Assistant Secretary informed

petitioners in 1959 that portions of their proposed

homestead sites were not open to entry; that further action

by the Department of the Interior with respect to the land

would have to await completion of an engineering survey;

and that even if the power site withdrawal were revoked,

the State of Alaska and veterans would have preference

rights. Pet. App. 6a-7a, 17a-18a.

In 1961, BLM filed a platted survey of the area that

delineated, inter alia, the boundaries of Classification 399

in relation to the potential homestead sites selected by peti-

tioners. 26 Fed. Reg. 2486 (1961). Immediately thereafter,

on April 27, 1961, BLM issued final decisions rejecting

petitioners’ entries insofar as they conflicted with the

power site withdrawal. Finally, in 1964, petitioners

entered into compromise arrangements with BLM that

enabled them to submit proof of occupancy for those por-

tions of their proposed entries that were located outside

the withdrawal area and to receive patents from the United

States for those portions. Pet. App. 7a, 18a-19a; see

Ekhitna Br. in Opp. 3-5.

2. On December 18, 1971, Congress enacted the

Alaska Native Claims Settlement Act (ANCSA), 43

U.S.C. 1601 ef seg., which was intended, inter alia, to set-

tle the aboriginal land claims of Native Alaskans. Under

Section 4 of the Act, 43 U.S.C. 1603, all claims of

aboriginal title in Alaska were extinguished. See Amoco

Production Co. v. Village of Gambell, No. 85-1239 (Mar.

24, 1987), slip op. 3-4. At the same time, Congress pro-

vided for regional and village Native corporations organ-

4

ized under ANCSA to select and receive title to public land

in Alaska. See 43 U.S.C. 1610-1614. Pursuant to these

provisions, the Native village corporation of Eklutna filed

a land selection that included the parcels at issue here. In

1979, the United States issued Eklutna a patent to the sur-

face estate in the land and issued Cook Inlet Region, Inc.,

the regional Native corporation for the area, a corre-

sponding patent to the subsurface estate. Pet. App. 20a.

3. In 1979, 1980 and 1982, petitioners filed the instant

consolidated actions against the Native corporations and

the United States. In their amended complaints, peti-

tioners sought (i) patents from the United States to the

portion of the Native corporations’ land for which peti-

tioners had sought to make homestead entries some years

earlier, and (ii) a ruling that the Native corporations held

those portions subject to a constructive trust for the

benefit of petitioners. Pet. App. 20a-21a.?

On January 23, 1985, the district court granted sum-

mary judgment in favor of the respondents (Pet. App.

16a-47a). The court held that under Block v. North

Dakota, 461 U.S. 273 (1983), petitioners’ claims against

the United States for patents to the land are governed by

the Quiet Title Act (QTA), 28 U.S.C. 2409a, and are

barred by that Act (Pet. App. 22a-23a). The court first

held that, because the United States disclaimed all title to

the parcels at issue here when they were patented to the

Native corporations in 1979, the court lacked jurisdiction

under the QTA by virtue of 28 U.S.C. 2409a(e),* which

> Petitioners also filed monetary claims against the United States

for an alleged taking of their property. The district court dismissed

those claims, holding that because the amount in controversy ex-

ceeded @f $10,000, the Claims Court had exclusive jurisdiction under

28 U.S.C. 1491 (Pet. App. 45a-46a). Petitioners did not seek review of

that ruling in the court of appeals.

4 In 1986, after the district court rendered its decision, Congress

added a new Subsection (c) to 28 U.S.C. 2409a, and succeeding

5

provides that the QTA jurisdiction of the district court

shall cease if the United States disclaims all interest in the

land (Pet. App. 23a-24a). In addition, the court held that

these suits are barred by the 12-year statute of limitations

in 28 U.S.C. 2409a(g), because petitioners knew or should

have known of the United States’ claim to the land in 1961,

when BLM issued the final decisions denying their

homestead claims, or at the very latest in 1964, when peti-

tioners reached compromise agreements with BLM under

which they were granted patents only for the portions of

their original entries that were outside the withdrawal area

(Pet. App. 25a-26a).

The district court also rejected petitioners’ claims

against the respondent Native corporations (Pe*. App.

29a-42a). Relying on Milwaukee v. Illinois, 451 U.S. 304,

313-319 (1981), the court first held that the comprehensive

Statutory framework of ANCSA precludes suits based on

a common law theory of constructive trust with respect to

lands patented to Native corporations under ANCSA (Pet.

App. 29a-34a). The court then concluded that under the

operative statutory provision — Section 22(b) of ANCSA,

43 U.S.C. 1621(b) —claims under the homestead laws must

be presented to the Secretary prior to the issuance of a pa-

tent to a Native corporation, so that land covered by

homestead entries may be excluded from the grant to the

Native corporation (Pet. App. 33a-4la). Accordingly, the

court held that petitioners have no cause of action against

the respondent Native corporations under Section 22(b) of

ANCSA because that Section imposes obligations only on

the Secretary (Pet. App. 41a-42a) and that petitioners have

no cause of action against the federal respondents under

Section 22(b) of ANCSA because any such cause of action

subsections were redesignated accordingly. See Act of Nov. 4, 1986,

Pub. L. No.-99-598, 100 Stat. 3351. The citations in the text are to the

amended version of 28 U.S.C. 2409a.

6

was barred by the QTA before the land in question was

patented to the Native corporations under ANCSA (Pet.

App. 42a-44a).

4. The court of appeals affirmed the judgment of the

district court in favor of both the federal and the non-

federal respondents (Pet. App. 2a-14a). The court of ap-

peals agreed with the district court that petitioners’ claims

against the United States are governed by the QTA and are

barred by that Act, because the United States has dis-

-laimed title to the land since it was conveyed to the Native

corporations in 1979 and because the 12-year period

within which a QTA action could be filed had in any event

expired (Pet. App. 9a-12a).

The court of appeals also affirmed the district court’s

dismissal of petitioners’ actions against the respondent

Native corporations, on the ground that the United States

's an indispensable party that cannot be joined because of

‘he bars to suit under the QTA (Pet. App. 13a-14a). The

court acknowledged that the QTA directly governs only

suits against the United States and that generally a claim-

ant who cannot sue the United States under that Act is not

‘hereby barred from suing a non-federal party who claims

an interest in the same parcel of land (id. at 13a). But the

-ourt reasoned that in order for petitioners to challenge

the patents issued to the Native corporations in this case,

‘hey must first establish their own prior entitlement to the

land in question —a result that could be accomplished only

‘n direct proceedings against the United States (id. at

| 3a-14a).

ARGUMENT

The court of appeals correctly affirmed the district

-ourt’s dismissal of petitioners’ claims against both the

( nited States and the Native corporations. That dismissal,

under the unique statutory framework of the Alaska

Native Claims Settlement Act, does not conflict with any

7

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

it presents no question of general importance warranting

review by this Court. The petition for a writ of certiorari

therefore should be denied.

1. a. The court of appeals correctly held that peti-

tioners’ claims against the United States are barred by the

12-year statute of limitations in the Quiet Title Act. Under

28 U.S.C. 2409a(g), any QTA action is barred “unless it is

commenced within twelve years of the date upon which it

accrued,” and an action “shall be deemed to have accrued

on the date the plaintiff or his predecessor in interest knew

or should have known of the claim of the United States.”

Both courts below found that petitioners knew or should

have known of the United States’ claim to the land inl961,

when BLM rendered the final decisions denying their

homestead claims, or at the very latest in 1964, when peti-

tioners entered into compromise agreements that enabled

them to obtain homestead patents only to the portions of

their proposed entries that were outside the power-site

withdrawal area. See Pet. App. Ila, 25a-27a. Those dates

are more than 12 years prior to the filing of the instant

Suits against the United States beginning in 1979, and peti-

tioners’ claims against the United States therefore are

time-barred.

b. Petitioners do not challenge the determination by

both courts below that they knew or should have known of

the adverse claim of the United States more than 12 years

before they filed suit, and that fact-bound issue does not

in any event warrant review by this Court. However, rely-

ing on this Court’s decision in Bowen v. City of New York,

No. 84-1923 (June 2, 1986), petitioners contend (Pet.

37-42) that the running of the 12-year statute of limitations

under the QTA should be deemed to have been tolled on

equitable grounds prior to 1979. This contention is

without merit. The Court stressed in City of New York

that principles of equitable tolling may be invoked in suits

8

against the federal government only “[w]Jhen application

of the [tolling] doctrine is consistent with Congress’ intent

in enacting a particular statutory scheme” (slip op. 11).

The bases for the Court’s holding in City of New York that

equitable tolling is consistent with the congressional intent

underlying the Social Security Act do not suggest that

equitable tolling is appropriate in this case under the QTA.

First, the Court observed in City of New York that the

60-day limitations period in 42 U.S.C. 405(g) “is contained

ina statute that Congress designed to be ‘unusually protec-

tive’ of claimants” (slip op. 11-12, quoting Hecklerv. Day,

467 U.S. 104, 106 (1984)). The QTA does not manifest a

comparable solicitude for persons who challenge the

United States’ title to real property, and there is no reason

to believe that such claimants are in special need of the

sort of protection that the Court afforded the class of

mentally ill disability claimants in City of New York.

Second, the Court found it significant in City of New

York that 42 U.S.C. 405(g) on its face permits the

Secretary of Health and Human Services to toll the 60-day

limitations period, “thus expressing its clear intention to

allow tolling in some cases” (slip op. 12). The QTA, by

contrast, does not authorize an Executive official to ex-

tend the time for filing suit and does not otherwise

manifest a congressional intention to-aHew tolling in cer-

tain circumstances. Indeed, 28 U.S.C. 2409a(g) is unusual-

ly explicit in specifying when a cause of action accrues:

when the plaintiff “knew or should have known of the

claim of the United States.” Where, as here, that statutory

condition for triggering the limitation on suits under the

QTA is satisfied, a court has no authority to toll the run-

ning of the limitations period.

Third, the Court stressed in City of New York that in

addition to serving the usual purposes of a statute of

limitations, the unusually short 60-day filing period under

42 U.S.C. 405(g) was designed “to move cases to speedy

.

9

resolution in a bureaucracy that processes millions of

claims annually” —a purpose that “serves both the interest

of the claimant and the interest of the Government” (slip

op. 13). The Court concluded that judicial tolling of the

60-day period in “rare” Social Security cases would not

undermine this additional statutory purpose of promoting

administrative efficiency (ibid.). By contrast, the statute

of limitations under the QTA was not intended to serve

any additional purpose that protects the interests of the

claimant and that might iend support to judicial tolling in

certain circumstances. The QTA provision serves only the

usual purpose of a statute of limitations—to protect the

defendant (here, the United States) against stale claims.

See Block v. North Dakota, 461 U.S. 273, 282-285 & n.20

(1983). That purpose would be substantially undermined

by judicial tolling of the limitations period in this case.°

c. Evenif equitable tolling were available on “rare” oc-

casions under the QTA, as it is under the Social Security

Act following City of New York, this case does not present

an appropriate case for such extraordinary judicial in-

tervention. In City of New York, the Court held that the

60-day period for seeking judicial review of the denial of

> Petitioners contend (Pet. 35-37) that suits against the United

States should be governed by the statute of limitations in 43 U.S.C.

1632(a), rather than that in the Quiet Title Act. The former provision

States:

[A] decision of the Secretary under * * * the Alaska Native

Claims Settlement Act * * * shall not be subject to judicial review

unless such action is initiated before a court of competent

jurisdiction within two years after the day the Secretary’s decision

becomes final or December 2, 1980, whichever is later: Provided,

That the party seeking such review shall first exhaust any ad-

ministrative appeal rights.

As its language makes clear, this provision was intended to /imit

claims; it was not intended to revive claims that were already barred

by another statute (e.g., the QTA) before the Secretary rendered the

relevant decision under ANCSA.

10

disability claims was subject to equitable tolling because a

secret administrative policy prevented the class of mentally

ill claimants from knowing of the violation of their rights.

See slip op. 11-13. In this case, there is no suggestion of a

secret policy that might have prevented petitioners from

knowing of the alleged violation of their rights. Petitioners

rely (Pet. 5-6, 39) on the 1959 letter from the Assistant

Secretary (sce page 3, supra) as a justification for

equitable tolling. That reliance, however, is misplaced,

because the information in the 1959 letter was accurate:

the Assistant Secretary correctly informed petitioners that

the land in question would not be open to homestead entry

until the Department of the Interior officially declared it

to be open; that the Department was conducting an

engineering study of the area; and that any homesteading

of the land prior to the revocation of the power site

withdrawal was a nullity. United States v. Midwest Oil

Co., 236 U.S. 459, 471 (1915); Shiny Rock Mining Corp.

v. United States, 825 F.2d 216 (9th Cir. 1987).

Petitioners also argue (Pet. 4, 39) that the Secretary of

the Interior had a duty to revoke the power-site

withdrawal immediately after the FPC determined in 1952

that the land would not be injured for power development

if it were opened to settlement and that the Assistant

Secretary’s 1959 letter was misleading because it did not in-

form petitioners of that supposed duty. But even if peti-

tioners’ view of the statutory scheme were correct, the

Secretary’s failure to revoke the power-site withdrawal im-

mediately reflects nothing more than the fact that the

Secretary took a different view of the law. Such a dif-

ference of legal opinion falls far short of the sort of

affirmative misconduct that would be necessary to toll the

running of the statute of limitations. Compare United

States v. Kubrick, 444 U.S. 111, 123-124 (1979). Indeed,

the first judicial decision addressing the question of the

Secretary’s duties following a no-injury determination was

1]

Reeves v. Andrus, 465 F. Supp. 1065 (D. Alaska 1979),

which was not rendered until after the statute of limita-

tions had already run on petitioners’ claims and many

years after the FPC’s no-injury determination at issue in

this case. Moreover, Reeves did not hold that the Secretary

had an inflexible duty to open such land to immediate set-

tlement.® And in any event, the legal principles on which

Reeves was based were as accessible to petitioners as they

were to the government. There accordingly was no “secret”

governmental conduct in this case, as there was in City of

New York. Thus, the Assistant Secretary’s routine expres-

sion of the Department’s legal views in 1959 does not

amount to the “rare” instance of affirmatively misleading

conduct that was found to justify judicial tolling in City of

New York—even if we assume that the tolling principles

articulated in that case are applicable in cases arising

under the QTA.’

® Reeves was brought by an individual who desired to homestead

land that was the subject of a power site classification, but that the

FPC had declared was not needed for power site purposes. The court

in Reeves held that the Secretary should not have continued to reserve

the land under Section 24 of the Federal Power Act. But the court fur-

ther held that Section 24 is not self-executing and that the Secretary

might well withdraw the land from settlement for some other reason

(465 F. Supp. at 1070):

This does not mean that the Secretary must instantly implement

the Commission’s decision. In fact, 16 U.S.C. § 818 provides for

a ninety day period after notice in which the State can exercise a

preference right to the land. This ninety day period would allow

the Secretary to determine whether there are any other public

values or interests in the land that require the site to be withdrawn

from entry under other powers possessed by the Secretary.

7 In Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231

(1959), upon which petitioners rely (Pet. 38-39), the Court held that

equitable tolling was proper because the defendant had affirmatively

misled the plaintiff with respect to the time within which the plaintiff

could file suit. Here, there is no suggestion that any government of-

ficial misled petitioners regarding the running of the statute of limita-

tions.

12

2. Petitioners further contend (Pet. 16-34) that even if

their suits against the United States were properly dis-

missed, their suits against the Native corporations should

have been permitted to proceed. In petitioners’ view (see

Pet. 21-24), this result is required by certain decisions of

this Court, rendered long before passage of ANCSA in

1971 and the QTA in 1972, that permitted a suit seeking to

establish a constructive trust over land for which a patent

was erroneously issued by the United States, even though

the United States was not a party. See, e.g., Duluth & Iron

Range R.R. v. Roy, 173 U.S. 587 (1899), and Ard v. Bran-

don, 156 U.S. 537 (1895). Petitioners likewise argue that

the court of appeals’ decision erroneously permits the

Statute of limitations in the QTA to bar suits against

private parties. Pet. 27-34. These arguments, however,

miss the significance of the particular factual cir-

cumstances and statutory framework that govern this

case. ‘

The question whether a suit should be dismissed because

of the absence of an “indispensable” party is governed by

Rule 19 of the Federal Rules of Civil Procedure. Rule

19(a) sets forth the conditions for determining if a person

ought to be joined as a party,® and Rule 19(b) describes the

conditions under which a suit should be dismissed if

joinder is not possible. ?

5 Rule 19(a) states:

A person who is subject to service of process and whose joinder

will not deprive the court of jurisdiction over the subject matter

of the action shall be joined as a party in the action if (1) in the

person’s absence complete relief cannot be accorded among those

already parties, or (2) the person claims an interest relating to the

subject of the action and is so situated that the disposition of the

action in the person’s absence may (i) as a practical matter impair

or impede the person’s ability to protect that interest * * *.

» Rule 19(b) states:

If a person as described in subdivision (a)(1)-(2) hereof cannot be

made a party, the court shall determine whether in equity and

13

The United States is a party that should be joined under

Rule 19(a), because it has an “interest” relating to peti-

tioners’ suits against the Native corporations that would be

impaired if petitioners were to prevail on the merits of

their claims against the corporations. This interest arises

primarily from Sections 12 and 14 of ANCSA, 43 U.S.C.

1611 and 1613, which entitled Eklutna to receive 92,160

acres of land from the United States.'® The parcels at issue

in this case have been selected by Eklutna under those pro-

visions of ANCSA. Under the administrative scheme

adopted by the Secretary to implement ANCSA, if peti-

tioners succeed in this case and thereby deprive Eklutna of

its title to the land, Eklutna would be entitled to receive

other land from the United States to compensate for that

loss of its statutory entitlement.'! Petitioners in fact ex-

good conscience the action should proceed among the parties

before it, or should be dismissed, the absent person being thus

regarded as indispensable. The factors to be considered by the

court include: first, to what extent a judgment rendered in the

person’s absence might be prejudicial to the person or those

already parties; second, the extent to which, by protective provi-

sions in the judgment, by the shaping of relief, or other measures,

the prejudice can be lessened or avoided; third, whether a judg-

ment rendered in the person’s absence will be adequate; fourth,

whether the plaintiff will have an adequate remedy if the action is

dismissed for nonjoinder.

10 Generally, respondent Cook Inlet is entitled to the mineral rights

in the land selected by Eklutna. See 43 U.S.C. 1613(f).

'! Under regulations implementing ANCSA, Native corporations

were permitted to “overselect” lands prior to the December 18, 1974

statutory selection deadline in 43 U.S.C. 1611(a). As a result, if cer-

tain of the lands selected by a corporation proved to be unavailable

(e.g., because of prior existing rights), the corporation would have an

opportunity to receive other lands from among those it had

“overselected” as insurance against that eventuality. See 43 C.F.R.

2651.4(f), 2652.3(f).

14

pressly conceded as much in the court of appeals.'? As a

result, whether the United States will be deprived of addi-

tional land depends precisely on whether petitioners

prevail in their suits against the respondent Native cor-

porations. See Provident Bank v. Patterson, 390 U.S. 102,

108 (1968).'?

Rule 19(b) provides that if a person described in Rule

19(a) cannot be made a party, the court must determine

whether “in equity and good conscience the action should

proceed among the parties before it, or should be dis-

missed, the absent person being thus regarded as indispen-

sable.” Rule 19(b) identifies four factors that are

“include[d]” among those that must be considered in mak-

ing this determination. The first factor is the extent to

'2 Petitioners acknowledged that by virtue of the “overselection”

procedure discussed in note 11, supra, the respondent Native corpora-

tions would be entitled to receive additional land from the United

States if petitioners prevailed on their claims against the corporations

(C.A. Br. 38 (footnotes omitted)):

The fact is that appellees’ entitlements will not be reduced.

Since withdrawals and selections under ANCSA are to be from

“public lands”, §§ 3(e), 11 and 12 of ANCSA, appellants’ lands

could not be counted against Eklutna/Cook Inlet’s total entitle-

ment. Eklutna/Cook Inlet are entitled to other lands up to their

full acreage entitlements, and were entitled to overselect for this

purpose. 43 CFR 2651.4(f).

\3 The United States comes within the scope of Rule 19{a) on

another basis as well. The resolution of these cases would turn on a

variety of factual and legal issues that directly implicate the interests

of the United States — e.g., whether the Secretary of the Interior erred

when he determined that the land within the withdrawal area was not

available for homestead entry, whether petitioners otherwise complied

with the homestead laws, whether other persons would have had

superior claims to the land, and whether petitioners abandoned their

claims in the 1960’s. In the normal course, all of these questions would

be decided by the Secretary in the first instance under the doctrine of

primary jurisdiction (see, e.g., United States v. Western Pac. R.R., 352

U.S. 59, 63-64 (1956); United States v. Yellow Freight Systems, Inc.,

762 F.2d 737, 739 (9th Cir. 1985)), and the Secretary of the Interior

would be a party to any suit seeking judical review of those decisions.

15

which a judgment will prejudice the absent party. Here,

the prejudice to the United States is clear, and indeed was

conceded by petitioners below. As we have just explained,

if petitioners prevail in their suits against the Native cor-

porations, the United States stands to lose title to an

equivalent amount of land.

The second factor Rule 19(b) makes relevant is whether

relief may be shaped to lessen the harm to the absent

party. In this case, there would appear to be no way in

which the United States’ interests could be adequately pro-

tected by careful tailoring of the decree. Petitioners seek a

ruling that the Native corporations hold the parcels in con-

structive trust for the benefit of petitioners and a judg-

ment requiring the corporations to convey legal title to

petitioners. If the district court were to enter such an

order, the necessary consequence for the United States

would be to trigger a claim for additional acreage by the

Native corporations under the ANCSA selection pro-

cedures. Petitioners do not contend that the decree should

be shaped to prevent that result by requiring the respond-

ent Native corporations, rather than the United States, to

bear the loss. That result would be unfair, since petitioners

do not contend that the Native corporations were at faull;

any alleged legal error in the circumstances of this case in-

Stead is attributable to the federal government in its ad-

ministration of the public land laws.

The other two factors mentioned in Rule 19(b) are

whether a judgment rendered in the United States’ absence

would be adequate and whether the plaintiff would have

an adequate remedy if the action is dismissed for non-

joinder. These factors to some extent weigh in favor of

allowing petitioners’ suits against the Native corporations

to proceed. We note, however, that the latter factor is

scarcely compelling, because petitioners in fact did have

an adequate remedy—a suit against the United States

16

under the QTA — but they voluntarily allowed the time for

filing such a suit to expire.

In the end, Rule 19(b) requires a court to rely on “equity

and good conscience” in determining whether a suit should

be dismissed because of the absence of a necessary party.

In this case, petitioners’ problems are of their own mak-

ing. At least by 1964, petitioners knew of the Interior

Department’s position that the land was not available for

homesteading, yet they failed to bring any suit seeking

judicial review of the Department’s decision for more than

15 years. If petitioners had sued in a timely manner and

prevailed, the parcels in question could have been ex-

cluded from the grants to the Native corporations, and the

rights of the corporations would not have been implicated.

And if petitioners had sued in a timely manner, the United

States or the Secretary of the Interior could have been

named as a defendant. In light of petitioners’ lack of

diligence, the court of appeals’ conclusion that the United

States is an indispensable party in this suit is amply sup-

ported by “equity and good conscience.”

In any event, the question whether the particular

statutory and regulatory provisions implementing the

selection rights of Native corporations under ANCSA

render the United States an indispensable party to this suit

is not one of general importance warranting review by this

(Court. The statutory deadline for Native corporations to

make selections of land under ANCSA was December 18,

1974 (43 U.S.C. 1611(a)), and suits challenging the

Secretary’s decisions with respect to such selections are

barred unless filed within two years of the decision or

December 2, 1980, whichever is later (43 U.S.C. 1632(a}).

The issue presented here therefore cannot be expected to

arise with any frequency in the future.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Acting Assistant Attorney General

ROBERT L. KLARQUISI

EDWARD J. SHAWAKER

Altorneys

DECEMBER 1987

US GOVERNMENT PRINTING OFFICE 1987 202 037/00 206