The Ninth Circuit Errs Again: the Quiet Title Act as a Bar to Judicial Review

• Citation: Vol. 19
• Publication year: 2002

§ 19 Alaska L. Rev. 433. THE NINTH CIRCUIT ERRS AGAIN: THE QUIET TITLE ACT AS A BAR TO JUDICIAL REVIEW

Alaska Law Review
Volume 19
Cited: 19 Alaska L. Rev. 433

THE NINTH CIRCUIT ERRS AGAIN: THE QUIET TITLE ACT AS A BAR TO JUDICIAL REVIEW

E. JOHN ATHENS, JR. ^[*]

I. INTRODUCTIONII. BACKGROUNDA. Development of the Legal ConflictB. Foster's Dispute with Alaska, and the Administrative ProceedingsC. The Course of Judicial ProceedingsIII. WHERE THE NINTH CIRCUIT WENT WRONGA. The Relevance of the Quiet Title ActB. Giving Preclusive Effect to the IBLA DecisionC. The Waiver of Sovereign Immunity by 43 U.S.C. 1632(a)D. Jurisdiction to Adjudicate a Constitutional ClaimE. Sovereign Immunity as a Sword to Defeat Property RightsF. The "Colorable Claim" Test for Application of the QTAIV. CONCLUSION

FOOTNOTES

This Comment examines recent Ninth Circuit decisions barring judicial review of administrative decisions adjudicating Native allotment claims and nullifying Alaska's highway rights-of-way where they conflict. The Ninth Circuit bases this bar to review on the Indian lands exception to the waiver of sovereign immunity found in the Quiet Title Act. This Comment illustrates where the Ninth Circuit erred in its analysis, and concludes with recommendations for legislation to correct the jurisdictional vacuum created by these Ninth Circuit decisions.

I. INTRODUCTION

The Ninth Circuit Court of Appeals has received criticism for its relatively high rate of questionable decisions. ^[1] U.S. Senator Murkowski has observed that the Ninth Circuit "has an appallingly high reversal rate by the Supreme Court," ^[2] and there has even been [*pg 434] criticism within the Ninth Circuit itself. ^[3] This Comment will focus on how the Ninth Circuit has repeatedly erred regarding a sovereign immunity issue involving judicial review of certain administrative decisions. ^[4]

Recent decisions of the Ninth Circuit and the Alaska Supreme Court highlight the issue. ^[5] The cases involve a dispute between Evelynn Foster, who is an Alaska Native, and the State of Alaska over a parcel of land claimed for a Native allotment and crossed by a state public highway. ^[6] The federal court held that it lacked subject matter jurisdiction because of sovereign immunity; while the state court held that it lacked jurisdiction because it could not adjudicate matters involving Native allotment lands. ^[7] The result of these decisions is that no federal or state judicial forum exists to resolve the contested ownership of an important parcel of land. ^[8]

There is little reason to question the Alaska Supreme Court's decision; ^[9] a federal statute's proscription against state court jurisdiction is explicit. ^[10] However, there is ample reason to question the Ninth Circuit's decision that the Quiet Title Act deprives federal courts of jurisdiction. ^[11]

This Comment has several purposes. The first is to illustrate the Ninth Circuit's errors in Foster, and why the court should have concluded there was in fact jurisdiction for the federal district court to decide the merits of the case. The second purpose is to review a complex area of Indian law that has not received scholarly discus- [*pg 435] sion despite a number of Ninth Circuit decisions and a federal district court decision. ^[12] The Comment concludes with suggestions for legislation to fill the legal lacuna, thereby allowing the parties in Foster and similar cases to resolve their claims.

II. BACKGROUND

A. Development of the Legal Conflict

Until 1987, Native allotments were subject to Bureau of Land Management (BLM) highway right-of-way grants to the State of Alaska, provided the grants were issued before an allotment application was filed. ^[13] In 1987, the Interior Board of Land Appeals (IBLA) decided Golden Valley Electric Ass'n [GVEA] (On Reconsideration). ^[14] In this decision the IBLA held, for the first time, that an allotment claim would not be subject to a right-of-way grant issued by the BLM to a third party, so long as the Native's use and occupancy of the allotment commenced before the grant was issued. The court held that this rule applies even if the allotment application were not filed with the BLM until after the right-of-way grant was made. ^[15] This holding was based on the "relation back" doctrine, by which the preference right to a Native allotment relates back to the date use and occupancy commenced, even though the application was filed later. ^[16] GVEA (On Reconsideration) "marked a departure from the approach espoused by the [IBLA]" in earlier decisions holding that allotments were subject to BLM highway grants. ^[17] Although GVEA (On Reconsideration) concerned a utility right-of-way that was not appropriated to the utility by the authorizing statute, the decision has nevertheless been applied to defeat highway rights-of-way appropriated to Alaska under 23 U.S.C. 317. That statute provides for appropriations of federal land for highway purposes. ^[18]

[*pg 436]

Although GVEA (On Reconsideration) was premised on the Native use and occupancy being open and notorious to defeat a subsequently granted right-of-way to Alaska, ^[19] even this check on an allotment applicant's power to defeat a highway right-of-way was soon abandoned by the IBLA. In 1989, in State of Alaska (GVEA), ^[20] the IBLA held that the allotment applicant's right to the allotment (with respect to legislatively approved allotments) accrued at the time the allotment application stated that use and occupancy commenced, and there could be no inquiry into the sufficiency of use and occupancy or whether it occurred at all. ^[21]

The effect of GVEA (On Reconsideration) and State of Alaska (GVEA) was to defeat many of the highway right-of-way grants made by the BLM to Alaska where they conflicted with a Native allotment claim. ^[22] The nullification of Alaska's grants was premised on the IBLA's interpretations of law in 1987 and 1989, notwithstanding that almost all of the highway right-of-way grants had been issued to Alaska in the 1960s, and the roads had long since been built in reliance on the grants. ^[23]

In 1995, the IBLA expressed concern with the fairness of interpreting and applying the 1980 legislative approval statute ^[24] to divest previously established rights in the land. The IBLA held that a new law "could not retroactively change the status of the land to [*pg 437] the detriment of a third party." ^[25] In 1997, the IBLA went further and noted that "[i]ndeed, these two [GVEA] decisions have been the subject of criticism within the Board and, at least in some aspects, their continuing validity has been undermined." ^[26]

Had it not been for the initial GVEA decision in 1987, the Foster allotment would have been made subject to Alaska's highway right-of-way by the BLM as a matter of course, and there would likely have been no ensuing litigation. Although the IBLA is now retreating from its 1987 and 1989 GVEA decisions, the BLM and the IBLA still use these cases as precedent to defeat Alaskan interests. ^[27]

B. Foster's Dispute with Alaska, and the Administrative Proceedings

The underlying dispute in the Foster litigation concerns her claim for a Native allotment that overlaps with part of the Parks Highway right-of-way owned by the State of Alaska. ^[28] Each party asserts that its rights are superior. ^[29]

Constructed between 1969 and 1971, ^[30] the Parks Highway is the main highway that connects Alaska's two largest cities, Anchorage and Fairbanks, and provides access to Denali National Park. The right-of-way for the Parks Highway was granted by the BLM to Alaska in 1969. ^[31] A material site to be used for the construction and maintenance of the Parks Highway was granted by [*pg 438] the BLM to Alaska in 1961. ^[32] Both the 1969 highway grant and the 1961 material site grant were made by the BLM pursuant to 23 U.S.C. 317. ^[33]

By express terms within the 1969 and 1961 BLM grants, as in most BLM grants to Alaska issued pursuant to 23 U.S.C. 317, the BLM provided that the rights granted to Alaska would be paramount to any other claims to the land based on settlement, entry, or occupancy. ^[34] Under 317, the federal government granted states rights-of-way over federal lands both for highways and for material sites. ^[35] The BLM has regulatory authority over the rights-of-way. ^[36] The BLM also has regulatory authority over applications for Native allotments. ^[37]

[*pg 439]

Foster applied for a Native allotment of land in 1971 with the Department of the Interior, in accordance with the Alaska Native Allotment Act of 1906. ^[38] Foster claimed to have commenced her use and occupancy of the land in 1964. ^[39]

Foster prevailed at the agency level in the conflict between her interests and Alaska's interests. ^[40] Initially, the BLM ruled that Foster's allotment claim nullified the state's highway right-of-way where the two conflicted, and approved Foster's allotment application. The BLM also ruled that the allotment was subject to the material site that it had granted to Alaska in 1961. Not only does this material site cover a large part of the allotment claim, but the Parks Highway is constructed entirely within the material site where it crosses the allotment. The IBLA affirmed the BLM decision, holding that the 1969 Parks Highway right-of-way was invalid where it crossed the land claimed by Foster because of her occu-...