Category Archives: Statute of Limitations Analysis

Oregon Trollers Ass'n v. Gutierrez

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Fishermen, fishermen’s organizations, and fishing-related businesses (Oregon Trollers) sued the National Marine Fisheries Association (NMFS) and other government entities challenging 2005 management measures that substantially limited commercial and recreational salmon fishing in the Klamath Management Zone–an area located off the coasts of California and Oregon. The plaintiffs alleged that these measures violated substantive and procedural requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).[1] The Ninth Circuit reversed the district court’s ruling that the plaintiffs’ claim was time-barred due to a failure to file within the thirty-day statutory period of the agency action, but upheld the district court’s ruling that NMFS did not violate the Magnuson Act.

In 2005, NMFS projected that critically low numbers of naturally spawning Klamath chinook salmon (Oncorhynchus tshawytscha) would survive the fishing harvest in the Klamath Management Zone and return to spawn in the upper reaches of the Klamath River. Because the Pacific Fisheries Management Council (PFMC)[2] projected a wild spawner escapement[3] below the 35,000 escapement floor established in a 1989 amendment to the Pacific Coast Salmon Management Plan (Pacific Plan),[4] NMFS adopted fisheries management measures for 2005 that dramatically curtailed commercial, and to a lesser extent recreational fishing in the Klamath Management Zone.[5] The agency did not take public comment before adopting the measures, and instead cited the need to implement restrictions before the beginning of the fishing season as a “good cause” exception to the Administrative Procedure Act (APA) requirement of public comment.[6] NMFS published the 2005 management measures in the Federal Register on May 4, 2005 and within thirty days the plaintiffs filed suit in federal district court to challenge the 1989 escapement floor and the 2005 action.

The district court ruled that the plaintiffs’ claims challenging the 1989 escapement floor were time-barred because they were not filed within thirty days of the agency adoption of the 1989 regulation as required by the Magnuson Act.[7] In addition, the district court ruled that, even if those claims were not time-barred, the plaintiffs failed to show on the merits that NMFS violated any procedural or substantive requirements of the Magnuson Act.[8]

The Ninth Circuit reviewed the district court’s statute of limitations determination de novo.[9] It reversed the district court, ruling that the plaintiffs’ claims were not time-barred because they challenged the 2005 management measures, which constituted an agency “action” within the thirty days of the date when that action was published in the Federal Register.[10] The Magnuson Act had originally only allowed for judicial review of agency “regulation” and required challengers of regulations to file suit within thirty days of the rule’s publication.[11] However, a 1990 amendment extended allowed challenges to agency “actions” that are published in the Federal Register including those “that establish the date of closure to commercial and recreational fishing.”[12] Under the amendment challenges to an action must similarly be filed within thirty days of the action’s publication in the Federal Register. The fact that the plaintiffs’ claims were rooted in the 35,000 spawner escapement goal of the 1989 regulation did not foreclose them from filing within the thirty days of the agency publishing the 2005 management measure.[13]

The court rejected all three of the defendants’ arguments that the plaintiffs’ claims were time-barred. First, the defendants claimed that the plaintiffs waived their argument that the statutory period was based on the 2005 agency action by not raising it in district court. The Ninth Circuit responded by pointing out that the plaintiffs did, in fact, raise it during oral argument on summary judgment. Second, the court determined that the holding in Norbird Fisheries, Inc. v. National Marine Fisheries Service[14] did not time bar the plaintiffs’ challenge to the 1989 regulation because Norbird only applied to cases where only a regulation was at issue. Here, the challenge was not just based on a regulation, but also on a later agency action in which a timely challenge was filed. Third, the court ruled that the plaintiffs’ challenge was not to a regulation, but to an action and therefore within the thirty-day period. Indeed, the court reasoned, there was no better example of an agency action than the 2005 management measures. These measures fit the definition of actions in section 1855(f)(2),[15] and they were implemented, [16] finalized, and published[17] according to the process set out in the Pacific Plan’s regulations for actions.

The Ninth Circuit then turned to the merits of the case reviewing NMFS construction of the Magnuson Act under the two-step test of Chevron, U.S.A. Inc. v. NRDC, Inc.[18]That test requires the court to determine if a statute is ambiguous and, if so, to then determine if the agency’s interpretation of that statute is reasonable.[19] The Magnuson Act adopts the APA standard that in order to set aside an agency’s regulations a court must find they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[20] To meet this standard the agency must consider “relevant data” and “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”[21]

The plaintiffs made six claims, three of which attacked the 1989 regulation establishing a 35,000 natural spawner escapement floor and three of which attacked the 2005 management measures. As to the 1989 regulation the plaintiffs claimed 1) that the regulations counting natural spawning salmon as a “stock of fish” separate from hatchery spawning salmon were not consistent with the Magnuson Act’s definition of “stock of fish,”[22] 2) that an escapement goal that counts only natural spawners was not consistent with the “national standard” requiring measures be “based on the best scientific information available,”[23] and 3) that these regulations were inconsistent with the “national standard” that, “[t]o the extent practicable, an individual stock of fish shall be managed as a unit.”[24]

First, the Ninth Circuit determined that there was nothing in the Magnuson Act that prevented NMFS from including only naturally spawning salmon–that is salmon that spawn outside of hatcheries–in establishing the escapement goals and thereby treating them as an individual “stock of fish . . . for the purposes of conservation and management,” separate from salmon that spawn in hatcheries.[25] The court determined that such a classification is consistent with the dictionary definition of the term “category,”[26] previous NMFS regulations[27] and scientific policy papers.[28] Furthermore, the phrase “capable of management as a unit” in the Magnuson Act does not preclude NMFS from making a distinction between hatchery and natural spawners.[29] NMFS has a great deal of flexibility to set that management unit as long as it is consistent with “the focus of the FMP’s [Fishery Management Plan's] objectives.”[30] Finally, although the Magnuson Act did not expressly distinguish between natural and hatchery spawners, a closely related statute, the Trinity River Basin Fish and Wildlife Management Reauthorization Act of 1997, did.[31] This act’s “clear intent to distinguish between natural and hatchery fish sheds light on Congress’ wishes for the Magnuson Act.”[32]

The court also rejected the argument that a district court’s interpretation of “species” under the Endangered Species Act to include hatchery as well as naturally spawning salmon should apply to “stock of fish” under the Magnuson Act[33] because neither the Endangered Species Act (ESA) nor the district court’s opinion suggested that “species” and “stock” have the same definition.

Second, the Ninth Circuit determined that NMFS had a “rational basis”[34] for including only natural spawners in the 1989 regulation and that there was no evidence that such a determination was not based on “the best scientific information available.”[35] On a strictly statutory interpretation basis, the Magnuson Act regulates fisheries,[36] and fisheries include “stocks.”[37] The court ruled that since naturally spawning salmon may constitute an individual stock, NMFS could set an escapement goal unique to natural spawners. Though the plaintiffs did not attack the scientific basis for the escapement goal, the court went on to state that NMFS had compiled sufficient scientific information in establishing that escapement goal and there was no evidence in the record indicating that the NMFS data was “outdated and flawed.” Furthermore, the reviewing court is “highly deferential” in matters of scientific and technical expertise.[38]

Third, the court ruled that NMFS regulations managing the entire Klamath Management Zone, which extends from Humbug Mountain, Oregon to Horse Mountain, California, were consistent with the Magnuson Act’s national standard requiring that “[t]o the extent practicable, an individual stock of fish shall be managed as a unit throughout its range.”[39] Because Klamath chinook salmon migrate throughout Oregon and California, NMFS regulations managing the entire Klamath Management Zone are necessary to ensure the 35,000 natural spawner escapement goal.

As to the 2005 management measures, the plaintiffs claimed 1) the management measures did not adequately take into account the “importance of fishery resources to fishing communities” as required by a Magnuson Act national standard;[40] 2) the measures were inconsistent with the Magnuson Act’s national standard that required NMFS “to the extent practicable” to “promote the safety of human life at sea;”[41] and 3) NMFS improperly invoked the “good cause” exception under the APA thereby allowing NMFS to skip the public comment period that is typically required before publishing the management measures.[42]

First, the Ninth Circuit held that NMFS adequately addressed the national standard[43] requiring it “to take into account the importance of fishery resources to fishing communities” in its 2004 Environmental Assessment (EA) that supported the 2004 management measures and in a 2005 supplement that supported the contested management measures. The court indicated that the plaintiffs did not provide data to support their claim that the 2004 EA and 2005 supplement were inadequate. “So long as the agency appropriately updates its analysis under [the] National Standard . . . , there is no reason why it must start from scratch every year.”[44]

Second, the court rejected the plaintiffs’ claim that NMFS did not “to the extent practicable” “promote human safety” when they shortened the fishing season thereby forcing fishermen to fish regardless of weather and other dangers. NMFS addressed safety concerns in an April 2005 memorandum when it stated that “the proposed action is expected to be neutral with respect to health and safety.” The court concluded that it was within the agency’s discretion to determine that this neutrality qualified as a promotion of safety “to the extent practicable.”

Third, the Ninth Circuit upheld the agency’s use of the “good cause” exception in adopting the 2005 management measures. Under the APA, NMFS is normally required to open a public comment period prior to adopting annual management measures.[45] However, that requirement is excused when the agency incorporates a finding that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”[46] NMFS cited the time pressure to issue management rules before the fishing season began as grounds for this good cause exception. Management decisions could not be made any earlier because of the lack of data and they could not be made any later because allowing the fishing season to open without new regulations could undermine the annual escapement goals. The court distinguished the facts of the present case from those in NRDC, Inc. v. Evans,[47] in which it determined NMFS had not adequately justified its decision to not open a public comment period prior to publishing management measures implementing a groundfish FMP under the “good cause” exception.[48] In Evans the court stated that the agency had failed to “demonstrate . . . some exigency apart from generic complexity of data collection and time constraints.”[49] However, in this case the Ninth Circuit agreed with the district court that NMFS’s statement of good cause was adequate given its considerable length and the specific reasons cited for the decision. Furthermore, NMFS could continue to invoke this good cause exception in the future as long as it gives “season-specific reasons for why the good cause exception is needed.”[50]

In conclusion, the Ninth Circuit reversed the district court and ruled that plaintiffs’ claims were not time-barred because the thirty-day limitation period did not start until the “action” of NMFS publishing the 2005 management measures. On the merits, however, it upheld the district court’s rejection of each of the plaintiffs’ challenges to the 1989 regulation and the 2005 management measures.

[1] 16 U.S.C. §§ 1801-83 (2000).

[2] The Magnuson Act established eight Regional Fishery Management Councils, including the PFMC. Id. § 1852(a)(1)(A)-(H). The Councils are made up of federal and state officials and private experts appointed by NMFS who draft “fishery management plans” (FMPs) and regulations implementing these FMPs. Id. § 1852(h)(1); Id. § 1853(c).

[3] See United States v. Washington, 774 F.2d 1470, 1473 n.2 (9th Cir. 1985) (explaining that “[f]or natural stocks, the escapement goal is defined as the number of spawning adults needed to produce the maximum number of juvenile salmon that, after incubation and freshwater rearing, will out-migrate to the sea”).

[4] On May 4, 1989, the PFMC adopted an amendment to the Pacific Plan that set its spawner escapement goal at “35 percent of the potential adults from each brood of natural spawners, but no fewer than 35,000 naturally spawning adults in any given year.” 54 Fed. Reg. 19,194 (May 4, 1989) (to be codified at 50 C.F.R. pt. 661); see Ocean Salmon Fisheries off the Coasts of Washington, Oregon, and California, 54 Fed. Reg. 19,800 (May 8, 1989) (to be codified at 50 C.F.R. pt. 661) (lowering the percentage from 34% to 33%).

[5] See Fisheries off West Coast States and in the Western Pacific, 70 Fed. Reg. 23,054-56 (May 4, 2005) (to be codified at 50 C.F.R. pt. 660) (explaining how NMFS adopted the 2005 plan).

[6] See 5 U.S.C. § 553(b)(B) (2000) (explaining that notice or hearing can be dispensed with “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).

[7] See Or. Trollers Ass’n v. Gutierrez, No. 05-6165, 2005 WL 2211084, at *8 (D. Or. Sept. 8, 2005).

[8] See id. (explaining that the claims would fail on their merits).

[9] See Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1127 (9th Cir. 2006) (explaining that the appropriate standard of review for whether a “cause of action accrues and whether it is barred by the statute of limitations” is de novo).

[10] See Fisheries off West Coast States and in the Western Pacific, 70 Fed. Reg. 23,054-56 (explaining how NMFS adopted the 2005 plan).

[11] See Pub. L. No. 94-265, 90 Stat. 354 (1976).

[12] See Magnuson Act, 16 U.S.C. § 1855(f)(1)-(2) (2000) (explaining review for actions).

[13] See Kramer v. Mosbacher, 878 F.2d 134, 137 (4th Cir. 1989) (construing strictly the 30 day period in the pre-1990 version of § 1855(f)(1) to determine that a challenge to a fishery quota regulation was not timely because, although it was filed within thirty days of the Secretary of Commerce’s action to close the fishery, the 30 day period actually started following the publication of the regulation four months earlier). Congress amended         

§ 1855(f)(1) in 1990 to include agency actions as “a direct response to a portion of the decision of the Fourth Circuit Court of Appeals in Kramer” H.R. Rep. No. 101-393, at 28 (1990).

[14] 112 F.3d 414, 416 (9th Cir. 1997) (explaining the effect that section 1855(f)(1) has on a district court’s ability “to hear an attack on the regulations if review is not sought within 30 days of their promulgation”).

[15] “Actions” are defined in section 1855(f)(2) as “actions that are taken by the Secretary under regulations which implement a fishery management plan, including but not limited to actions that establish the date of closure of a fishery to commercial or recreational fishing.” 16 U.S.C. § 1855(f)(2) (2000).

[16] “NMFS will annually establish . . . management specifications . . . by publishing the action in the Federal Register under §660.411.” 50 C.F.R. § 660.408(a) (2005). Management specifications include modifications of fishing seasons for the “protection of depressed stocks present in the fishing areas.” Id.§ 660.408(h)(2). Hence, the court considered the 2005 management measures to be management specifications and, therefore, actions.

[17] Section 660.411 states that “[a]nnual and certain other actions . . . will be implemented by an action published in the Federal Register.” Id.§ 660.411(a) (emphasis added). When NMFS published the 2005 management measures in the Federal Register they also invoked the “good cause” exception to the notice-and-comment requirement that applies to “any action” under section 660.411. See Instream Notice Procedures: Classification, 70 Fed. Reg. 23,063 (May 4, 2005).

[18] 467 U.S. 837 (1984). 

[19] Id.

[20] Magnuson Act, 16 U.S.C. § 1855(b)(1) (2000) (adopting APA, 5 U.S.C. § 706(2)(A) (2000)).

[21] Motor Vehicles Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

[22] Magnuson Act, 16 U.S.C. § 1802(35) (2000).

[23]Id. § 1851(a)(2).

[24] Id. § 1851(a)(3).

[25] “[F]ishery” had previously been defined as “one or more stock of fish which can be treated as a unit for purposes of conservation and management.”Id. § 1802(8) (emphasis added). A “stock of fish” is defined as “a species, subspecies, geographical grouping or other category of fish capable of management as a unit.” Id.§ 1802(25) (emphasis added).

[26] A “category” is “any of several fundamental and distinct classes to which entities or concepts belong” or “a division within a system of classification.” Merriam Webster’s Collegiate Dictionary 180 (10th ed. 1998).

[27] See, e.g., 70 Fed. Reg. 37,204, 37,208 (June 28, 2005) (adopting hatchery policy under ESA).

[28] See, e.g.Hatchery Scientific Review Group, Hatchery Reform: Principles and Recommendations 17 (Apr. 2004), available at http://www.lltk.org/pdf/hsrg/HSRG_Pric_Recs_Reports_Full_Apr04.pdf (outlining how “biological processes shape the biological significance and viability of both hatchery and naturally-spawning populations”); Hatchery Scientific Review Group, Hatchery Reform: Report to Congress  35 (Mar. 2006), available at http://www.lltk.org/pdf/hrp/report_to_congress06/HR_Report_to_Congress_Mar06.pdf (arguing that “hatchery operations should be designed so that the natural environment is the driving force in determining the genetic make-up of nature stocks within . . . watersheds”); Hatchery Scientific Review Group, Hatchery Reform in Washington State: Principles and Emerging Issues, Fisheries Magazine, June 2005, at 12.

[29] 16 U.S.C. § 1802(25) (2000).

[30] 50 C.F.R. § 600.320(d)(1) (2005).

[31] Pub. L. No. 104-143, 110 Stat. 1338 (1996).

[32] Or. Trollers Ass’n v. Gutierrez, No. 05-6165, 2005 WL 2211084, at *8 (D. Or. Sept. 8, 2005).

[33] Endangered Species Act, 16 U.S.C. § 1531(b) (2000); Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001).

[34] Alliance Against IFQs v. Brown, 84 F.3d 343, 350 (9th Cir. 1996).

[35] Magnuson Act, 16 U.S.C. § 1851(a)(2) (2000).

[36] See, e.g., id §§ 1801(b)(4), 1851(a)(1).

[37] 16 U.S.C. § 1802(37) (2000).

[38] Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004).

[39] 16 U.S.C. § 1851(a)(3) (2000).

[40] Id. § 1851(a)(8).

[41] Id. § 1851(a)(10).

[42] Administrative Procedure Act, 5 U.S.C. § 553(b)(3)(B) (2000).

[43] The court assumed that the national standards apply to action taken under regulations implementing FMPs, although § 1851(a) explicitly requires only that FMPs and their implementing regulations be consistent with the national standards. Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1121-22 (9th Cir. 2006).

[44] Id. at 1122.

[45] See Natural Res. Defense Council, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003) (noting parties’ agreement that independent of the Magnuson Act, the notice and comment requirements of the APA applied to management measures); see also 50 C.F.R. 660.411(b) (2005) (providing good cause exception to public comment requirement of the Magnuson Act).

[46] 5 U.S.C. § 553(b)(3)(B) (2000).

[47] 316 F.3d 904 (9th Cir. 2003).

[48] Id. 912.

[49] Id.

[50] Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1125 (9th Cir. 2006).

Skranak v. Castaneda

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1

The Ninth Circuit consolidated two appeals of unconditional use permit denials to owners of patented mining claims within Kootenai National Forest (KNF). The issue before the Ninth Circuit was whether the owners were properly denied access by the United States Forest Service (USFS). The owners brought suit under the Quiet Title Act claiming the USFS denial of unconditional use permits under the Alaska National Interest Lands Conservation Act (ANILCA)[1] either took or ignored their easements. The owners also challenged the permit denials under the Administrative Procedure Act (APA),[2] asserting that USFS did not follow its regulations to first determine whether the owners owned easements. With regard to the ANILCA claims, the Ninth Circuit vacated the district court’s summary judgment against both plaintiffs, instructed the district court to dismiss one plaintiff’s suit for lack of jurisdiction and to further develop the record in the second case to determine whether the owner had notice that USFS asserted exclusive ownership prior to the critical date for the statute of limitations under the Quiet Title Act. The Ninth Circuit reversed the district court’s grant of summary judgment against the owners on their APA claims.

In the first case, Alan and James Skranak (the Skranaks) owned a 50-acre tract[3] comprising four mining claims in the KNF. The United States granted the first patent claim in 1907 and the other three in 1912. Prior, in 1902, a six-foot wide wagon road was built to the tract, but long since has operated as the Fourth-of-July trail, closed to motorized traffic.

The Skranaks’ father, Henry, bought the Fourth-of-July tract in 1961 and has since faced numerous access issues with USFS in his efforts to work his mining claims. In 1995, Henry Skranak requested a special use permit under ANILCA to construct a 2.1 mile access road on and near the Fourth-of-July trail. After considering potential effects of construction on endangered species, water quality, and recreation, among other concerns, USFS granted permission to construct a 2.52 mile road, along a different route between June 16 and October 15 each year. USFS promised a renewable “easement” for ten years upon completion, projected to be within two to three years. Further, USFS prohibited access between April 1 and June 15 and limited access to 46 round trips between June 16 and September 15, 38 round trips between September 16 and November 15, and unlimited access in the winter, as protection for grizzlies.

In the second case, Charles Harpole owned a 40-acre tract[4] comprising two mining claims granted U.S. patents in 1903. A 1.3 mile non-system primitive, road in significant disrepair, off Forest Road 6746 (FR 6746) provided access. FR 6746, built sometime between 1900 and 1930, was open year round, but needed reconstruction after having not been maintained for 30 years.

Beginning 1983, Mr. Harpole worked the claims periodically under permits granted by USFS. All other times, USFS blocked access. In 1995, after nearly a decade had passed with inactivity, Mr. Harpole applied for a special use permit under ANILCA to reconstruct and use FR 6746 and the non-system road. USFS, after contemplating potential effects on endangered species, water quality, and recreation, among other concerns, granted the special use permit under condition that road construction would only be allowed between June 16 and October 15 each year. Further conditions included USFS’ promise to grant a renewable “easement” for ten years upon completion, projected to be within two to three years. Further, USFS limited access to 38 round trips between April 1 and June 15, 46 round trips between June 16 and September 15, 38 round trips between September 16 and November 15, and unlimited access in the winter, as protection for grizzlies.

USFS denied the Skranaks’ and Mr. Harpole’s joint administrative appeal from denial of unconditional use permits wherein the Skranaks and Mr. Harpole complained that the special use permits either took or disregarded their easements and that they should not bear the cost of improving USFS roads that would become publicly available. The Skranaks then brought a district court action to quiet title to an easement to the Fourth-of-July tract under the Quiet Title Act[5] and to challenge the conditional use permit as arbitrary and capricious under the Administrative Procedure Act (APA).[6] Separately, Mr. Harpole brought similar actions with respect to the Wayup Mine.

On cross motions in each action, the district court granted summary judgment in favor of USFS, holding that neither the Skranaks nor Harpole owned an easement under any theory; that had they, ANILCA extinguished it; and, regarding the APA claims, that the permit conditions were reasonable. The Skranaks and Mr. Harpole timely appealed.

After lightly admonishing the district court for failing to consider whether it possessed jurisdiction, the Ninth Circuit began by analyzing its jurisdiction prior to considering the easement claims under the Quiet Title Act. The Skranaks and Harpole filed their actions in the district court on December 28, 2000. The Quiet Title Act has a 12 year statute of limitations.[7] Thus, the claims arising under the Quiet Title Act are barred if the parties knew or should have known of the United States’ adverse claims by December 28, 1988.

The Ninth Circuit held that an expiration of the statute of limitations represented a jurisdictional bar because the Quiet Title Act was a waiver of sovereign immunity.[8] Further, the Ninth Circuit held that despite the United States having failed to move for dismissal of the Quiet Title Act claims, jurisdictional bars may not be waived by the parties and may be decided sua sponte.[9]

Relying on its decision in McFarland v. Norton,[10] the Ninth Circuit held that as the owner of an alleged servient tenement and in view of the government’s right to reasonable use of its land, the United States’ mild interference with easement use pursuant to its own property interests will fail to start the running of the statute of limitations.[11] Furthermore, the Ninth Circuit went on to hold that agencies like USFS often maintain regulatory powers over easements and other property interests, presumably including the power to require permits and condition use under those permits.[12] Thus, the panel read McFarland to hold that “regulatory or supervisory actions, as opposed to those that deny the easement’s existence” do not trigger the statute of limitations.[13]

The Ninth Circuit noted the poorly developed record in light of the district court not addressing the jurisdictional question. However, the Ninth Circuit concluded that the statute of limitations barred both claims based on evidence that USFS had converted the wagon road where Skranak held easement rights into a trail exclusively for hiking and riding use prior to the critical date.

Regarding the Skranak’s action, the Ninth Circuit noted that a mere bar to the public’s vehicular access would not necessarily be inconsistent with the Skranak’s predecessors-in-interest’s easements. Further, the panel concluded that by affirmatively converting the road to a trail, USFS barred access in a manner not temporary nor “obviously overcome by . . . permit or special permission.”[14] Thus, the Skranak’s predecessors-in-interest should have been on notice. Further, the Ninth Circuit relied a 2000 statement by Mr. Skanak in which he claimed to have been denied access for more than 39 years and a 1991 letter in which he claimed to have been denied access by “berms, Kelly ditches, arrests, and fines.”[15] Thus, the Ninth Circuit concluded the Skranak’s action was barred for want of jurisdiction and ordered the district court to dismiss.

The Ninth Circuit observed that restrictions placed upon Harpole’s land were consensually negotiated and remanded the claim to determine “if Harpole had notice that the Forest Service asserted exclusive ownership prior to 1988.”[16] Thus the court read the record to suggest USFS actions failed to rise to the level of a landowner asserting exclusive ownership when USFS merely acted pursuant to its regulatory powers. For example, Mr. Harpole began repairs to the non-system road, last used not later than 1971, in 1983. After a forest ranger called Mr. Harpole, the two agreed he had “right of access” but needed to procure a permit or file a plan of operations. In turn, the Ninth Circuit read the record to show the parties agreed USFS would close access until Mr. Harpole obtained the appropriate permits. In 1984, USFS approved permits to allow Mr. Harpole and a partner unlimited access and barring access by anyone else. In 1986, USFS informed Mr. Harpole that he needed to assert his right to access through the special use permit process, and only after a representative of Mr. Harpole’s Wayup Corporation informed USFS that same year access would not be required for the foreseeable future did USFS erect an earthen berm. The Ninth Circuit noted the record was silent as to other jurisdictional events and concluded the case should be remanded to the district court to further develop the record.[17]

The Ninth Circuit, having disposed of the Quiet Title Act claims through jurisdictional inquiries, turned to the Skranaks’ and Mr. Harpole’s challenge to USFS ANILCA access permits under APA. They claimed USFS failed to comply with its own regulation, 36 C.F.R. § 251.114(f), when USFS failed to determine whether the Skranaks or Mr. Harpole already owned easements.

As before, the Ninth Circuit began its analysis by deciding whether it possessed jurisdiction to hear the claims under the APA. The Ninth Circuit noted that where the APA waived sovereign immunity for suits seeking non-monetary relief against federal officers, the APA did not waive immunity as to claims expressly or impliedly forbidden by another statute granting consent to suit, such as the Quiet Title Act. Thus, the APA did not waive immunity for easement claims resolved in an administrative proceeding that began more than twelve years after the claims accrued. Consequently, a claimant maintains title to a disputed tract even if his claim to quiet title is time barred.[18] While being barred from judicial review of an agency’s administrative resolution to a property claim under the Quiet Title Act , the Ninth Circuit held that a claimant may assert a common law or state property claim in an administrative proceeding, and may further seek judicial review of an agency’s failure to resolve the claims. Thus, because the Skranaks and Mr. Harpole challenged a USFS failure to resolve whether they
possessed easements, the district court had jurisdiction as to the asserted APA claims.

The Skranaks and Mr. Harpole assert 36 C.F.R. § 251.114(f), which reads “the authorizing officer, prior to issuing any access authorization, must also ensure that (1)[t]he landowner has demonstrated a lack of any existing rights or routes of access available by deed or under State or common law . . .”, required USFS to consider easement claims on application for an ANILCA permit. Further, they asserted USFS refused to address whether they owned a common law easement, apparently contrary to this regulation.

The Ninth Circuit held that USFS refused to address whether the parties had easements under common law in limiting its cursory determination as to whether the parties had one or more easements to 43 U.S.C. § 932 (1938) (repealed).[19] The Ninth Circuit further held that normally it must give broad deference to USFS because it best understands its regulations. However, the record offered no USFS rebuttal to the Skranaks’ and Mr. Harpole’s administrative appeal that USFS failed to heed its regulation. Further, at oral argument, USFS conceded that 36 C.F.R. § 251.114(f) required USFS to determine easement ownership.

Thus, the Ninth Circuit noted that the USFS position potentially conflicted with Adams I, a de novo decision by the Ninth Circuit that held 1) Congress intended ANILCA permits as the exclusive means of access over USFS land and 2) to have access determined without respect to existing easements. However, the Ninth Circuit held that USFS, as the agency administering ANILCA, was not bound to interpret the statute identically to the Ninth Circuit on de novo review unless the statute’s terms are unambiguous and leave no room for agency discretion. The Ninth Circuit further held that because ANILCA had not previously been held as unambiguous, USFS was owed deference in its interpretation of the statute as long as its interpretation was based on a permissible construction of ANILCA.[20] The Ninth Circuit held that USFS’ interpretation of ANILCA as requiring a determination of state or common law easements was permissible, especially in light of Congress’ intent to increase rather than decrease access under ANILCA. The Ninth Circuit further expressed reluctance at holding unreasonable agency interpretations of statutes that uphold pre-existing common law property interests. Thus, the Ninth Circuit held that USFS must make an easement determination under 36 C.F.R. § 251.114(f) and that in failing to do so with respect to the Skranaks and Mr. Harpole, USFS violated its regulation. The Ninth Circuit therefore held the district court’s summary judgment inappropriate and ordered it reversed.

In conclusion, the Ninth Circuit vacated the district court’s grant of summary judgment under the Quiet Title Act, remanded the Skranaks’ claim with instructions to dismiss for want of jurisdiction, remanded Mr. Harpole’s claim for further proceedings, and reversed the district court’s grant of summary judgment with respect to the parties’ APA claims.

[1] Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (2000).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[3] The “Fourth-of-July” tract, inherited from their father who died during the litigation.

[4] The “Wayup Mine” tract.

[5] 28 U.S.C. § 2409a (2000).

[6] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-703, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[7] 28 U.S.C. § 2409a(g).

   [8] See, e.g., Block v. North Dakota, 461 U.S. 273, 292 (1983) (holding that if the statute of limitations has run on a waiver of sovereign immunity, federal courts lack jurisdiction). See also Adams v. United States (Adams I), 255 F.3d 787, 796 (9th Cir. 2001) (holding a district court grant of summary judgment under the Quiet Title Act improper because it lacked jurisdiction pursuant to the expiration of the statute of limitations).

[9] Humboldt County v. United States, 684 F.2d 1276, 1280 (9th Cir. 1982).

[10] 425 F.3d 724 (9th Cir. 2005).

[11] Id. at 727.

[12] Here, the Ninth Circuit read Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir. 1994) to hold that 16 U.S.C. § 551 confers broad power to USFS to regulate roads for the good of the forests.

[13] Skranak v. Castaneda, 425 F.3d 1213, 1217 (9th Cir. 2005) (quoting McFarland, 425 F.3d at 727).

[14] Id.

[15] Id.

[16] Id. at 1218.

[17] In so doing, the Ninth Circuit relied on Berardinelli v. Castle & Cooke, Inc., 587 F.2d 37, 39 (9th Cir. 1978) (directing district court to develop the record to the extent jurisdictional questions may be answered and explaining such inquiries are different from those necessary to resolve the substantive claims).

[18] Block v. North Dakota, 461 U.S. 273, 291 (1983).

[19] USFS responded “it is not necessary to address whether there may have been some common law right of access to the private property prior to the passage of the ANILCA.” Skranak, 425 F.3d at 1219.

[20] Here, the Ninth Circuit relied on Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).