United States District Court, D. Alaska
GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs,
CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
DAVID BERNHARDT, Acting Secretary of Interior, in his official capacity, Third-Party Defendant.
ORDER THIRD-PARTY PLAINTIFFS' SECOND MOTION FOR
LEAVE TO FILE AMENDED THIRD-PARTY COMPLAINT
Russel Holland United States District Judge.
plaintiffs Clarence and Demetrie (Dacho) Alexander renew
their motion for leave to file an amended third-party
complaint. This motion is opposed by third-party
defendant David Bernhardt, Acting Secretary of the
Interior. Oral argument was not requested and is not
case involves a dispute over the boundaries of Clarence
Alexander's § 14(c)(1) claim. Plaintiffs Gwitchyaa
Zhee Corporation and Gwichyaa Zhee Gwich'in Tribal
Government allege that in 1984 Clarence Alexander submitted a
§ 14(c)(1) claim for a parcel that was approximately 5.9
acres. Plaintiffs allege that in 2008, in order
to comply with their obligations under § 14(c)(1) of the
Alaska Native Claims Settlement Act, they submitted a
“Map of Boundaries” to the Bureau of Land
Management (BLM) “that identified . . . 14(c)(1) claims
. . . encompassing Fort Yukon and its nearby surroundings. .
. .” Plaintiffs allege that “[i]n April
2008, the BLM accepted GZ Corporation's Map of
Boundaries.” Plaintiffs further allege that the BLM
published notices in the Anchorage and Fairbank papers that
explained that GZ Corporation had filed the Map of Boundaries
and advised that “if a reader disagreed with the
property boundaries on the map of boundaries he had one year
from April 11, 2008, to challenge the boundaries in
court.” Plaintiffs also allege that “[t]he
BLM . . . sent a notice to be posted on the bulletin board of
Fort Yukon's U.S. Post Office.”
allege that “[d]uring the summers of 2009-2011, a
surveyor was hired to conduct a precise survey of the §
14(c)(1) claims identified in the Fort Yukon Map of
Boundaries.” Plaintiffs allege that the Alexanders
convinced the surveyor to include more acreage for Clarence
Alexander's § 14(c) claim than he had claimed in his
1984 application.Plaintiffs allege that the boundaries of
Clarence Alexander's § 14(c) claim were corrected in
2014 and that in 2016, GZ Corporation
executed a quitclaim deed to Clarence Alexander for Tract 19,
which is a 5.77 acre parcel.
allege that the Alexanders “have moved their belongings
not only onto Tract 19, but also Tracts 9, 19A, and the
triangle-shaped parcel of land at the end of Barge Landing
Road.” Plaintiffs seek to eject the Alexanders
“from Tract 9, Tract 19A, and the triangle-shaped
parcel of land at the end of the Barge Landing Road where it
meets the Yukon River. . . .”
Alexanders, however, contend that the boundaries on the Fort
Yukon Map of Boundaries are incorrect and that Clarence
Alexander's § 14(c)(1) claim includes “the Joe
Ward Barge Landing area[.] The Alexanders also contend
that there are issues as to whether plaintiffs complied with
the regulatory requirements for § 14(c)(1) claims. In
addition, the Alexanders contend that they have obtained
documents via FOIA requests that show that the acreage of
Tract 19 was reduced sometime between 2011 and 2014, that the
BLM permitted GZ Corporation to “replat” Tract 19
in 2013-2014, and that this replatting resulted in the
reduction of Tract 19, the relocation of Tract 9, and the
creation of Tract 19A.
13, 2018, the Alexanders filed a third-party complaint
against the Secretary of the Interior. The third-party
complaint asserts an APA claim against the Secretary seeking
review of the 2008 decision by the BLM to accept GZ
Corporation's Fort Yukon Map of Boundaries. The
Alexanders also may be attempting to assert a separate due
process claim against the Secretary based on allegations that
the notice that the BLM gave in 2008 was
October 12, 2018, the Alexanders moved to amend their
third-party complaint. The Alexanders sought to add
third-party defendants, add claims, and amend their existing
claims. Specifically, the Alexanders sought to add as
defendants the Department of Interior, the BLM, and the
BLM's Chief Cadastral Surveyor for Alaska. The proposed
amended third-party complaint, while far from a model of
clarity, appeared to assert four separate causes of action.
First, the Alexanders proposed to assert an APA claim seeking
review of the 2008 acceptance of GZ Corporation's Fort
Yukon Map of Boundaries and the 2014 approval of the plan of
survey. Second, the Alexanders proposed to
assert an APA claim based on allegations that the third-party
defendants failed to give the Alexanders adequate notice
before accepting the Map of Boundaries in 2008 and approving
the plan of survey in 2014. Third, the Alexanders proposed
to assert claims that 43 U.S.C. § 1624 and 43 U.S.C.
§ 1632(b) were unconstitutional as applied to
them. Fourth, the Alexanders proposed to
assert an APA claim based on allegations that the third-party
defendants had failed to act on a request for relief that the
Alexanders submitted on August 23, 2018.
January 3, 2019, the court denied the Alexanders' motion
to amend with leave to renew after plaintiffs filed their
amended complaint. In denying the Alexanders' motion to
amend, the court found that the “Alexanders may have a
plausible APA claim based on allegations that the BLM's
acceptance of the 2008 Map of Boundaries and approval of the
2014 plan of survey were arbitrary and
capricious.” The court found, however, that the
Alexanders did not have a plausible APA claim “based on
allegations that third-party defendants failed to provide
notice or provided insufficient notice. . .
.” The court found that the Alexanders'
proposed constitutional claims were facial challenges, not as
applied challenges, and thus would be barred by the statute
of limitations. And, the court found that it would be
futile for the Alexanders to amend to add a claim under 5
U.S.C. § 706(1).
Alexanders have now filed their renewed motion to amend their
third-party complaint. In their proposed amended third-party
complaint, the Alexanders assert four counts. Count I is a
procedural due process claim based on allegations that the
BLM violated the Alexanders' due process rights in 2008
and 2013-2014. Count II is an APA claim seeking review of the
BLM's 2008 acceptance of the Fort Yukon Map of
Boundaries. Count III is an equitable estoppel claim, in
which the Alexanders allege that the Secretary is equitably
estopped from claiming that the statute of limitations bars
any challenges to actions the BLM took in 2008 and 2011.
Count IV contains an APA claim seeking review of the
BLM's approval of the plan of survey in 2014 and a
procedural due process claim under the Fifth Amendment based
on allegations that the BLM violated the Alexanders' due
process rights in 2013-2014.
Rule of Civil Procedure 15(a) governs the instant motion.
“Rule 15(a) is very liberal and leave to amend
‘shall be freely given when justice so
requires.'” AmerisourceBergen Corp. v.
Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
(quoting Bowles v. Reade, 198 F.3d 752, 757 (9th
Cir. 1999)). “But a district court need not grant leave
to amend where the amendment: (1) prejudices the opposing
party; (2) is sought in bad faith; (3) produces an undue
delay in litigation; or (4) is futile.” Id.
The Secretary only argues that amendment would be futile.
“Futility of amendment can, by itself, justify the
denial of a motion for leave to amend.” Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995). “The
test for futility ‘is identical to the one used when
considering the sufficiency of a pleading challenged under
Rule 12(b)(6).'” Fresno Unified School Dist. v.
K.U. ex rel. A.D.U., 980 F.Supp.2d 1160, 1179 (E.D. Cal.
2013) (quoting Miller v. Rykoff-Sexton, Inc., 845
F.2d 209, 214 (9th Cir. 1988)). “‘[T]o survive a
motion to dismiss, a complaint must contain sufficient
factual matter to state a facially plausible claim to
relief.'” Id. (quoting Shroyer v. New
Cingular Wireless Serv., Inc., 622 F.3d 1035, 1041 (9th
Cir. 2010)). Futility may also “include the
inevitability of a claim's defeat on summary
judgment.'” Calif. ex rel. Calif. Dep't of
Toxic Substances Control v. Neville Chemical Co., 358
F.3d 661, 673-74 (9th Cir. 2004) (quoting Johnson v. Am.
Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987)).
their proposed Count I, the Alexanders assert a procedural
due process claim based on allegations that the BLM failed to
provide sufficient notice in 2008 and in 2013-2014. The
Alexanders appear to be asserting a non-APA due process claim
and may be attempting to assert a Bivens due process
claim. However, “Bivens suits
are individual capacity suits. . . .” Solida v.
McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016). In their
proposed third-party amended complaint, the Alexanders only
name the Secretary as a defendant and he is “named in
his official capacity[.]” Thus, amending to add the
proposed due process claim in Count I would be futile.
the Secretary argues that the Alexanders' proposed APA
claim in Count II could not withstand a motion to dismiss,
the court has already determined that the Alexanders
“may have a plausible APA claim based on allegations
that the BLM's acceptance of the 2008 Map of Boundaries
[was] arbitrary and capricious.” Although this
claim does not appear to be substantially different from the
APA claim that the Alexanders have asserted in the extant