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Gwitchyaa Zhee Corp. v. Alexander

United States District Court, D. Alaska

December 19, 2019

CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
DAVID BERNHARDT, Acting Secretary of Interior, in his official capacity, Third-Party Defendant.


          H. Russel Holland, United States District Judge

         Third-Party Defendant's Motion to Dismiss

         Third-party defendant Secretary of Interior David Bernhardt moves to dismiss the second amended third-party complaint.[1] This motion is opposed by third-party plaintiffs Clarence and Dacho Alexander.[2] Oral argument was requested and has been heard.


         This 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.[3] Plaintiffs allege that in 2008, in order to comply with their obligations under § 14(c)(1) of the Alaska Native Claims Settlement Act (“ANCSA”), 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” (the “FYMOB”).[4] Plaintiffs allege that “[i]n April 2008, the BLM accepted GZ Corporation's Map of Boundaries.”[5] Plaintiffs allege that the BLM published notices in the Anchorage and Fairbank papers advising 14(c) claimants that they had until April 11, 2008 to bring a court challenge to the boundaries shown on the FYMOB.[6] 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.”[7]

         Plaintiffs 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 FYMOB.[8] Plaintiffs allege that the Alexanders convinced the surveyor to include more acreage for Clarence Alexander's § 14(c) claim than he had included in his 1984 application.[9] 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.[10] Plaintiffs allege that the survey documents show Tract 19 as a 5.77 acre plot:[11]

         (Image Omitted)

         Plaintiffs 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.”[12] 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. . . .”[13]

         The Alexanders, however, allege that the boundaries on the FYMOB are incorrect and that Clarence Alexander's § 14(c)(1) claim includes “an area consisting of approximately 8.79 acres, plus the Joe Ward barge area, ”[14] the triangle-shaped parcel at the end of Barge Landing Road. The Alexanders also allege 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.[15]

         The Alexanders' second amended third-party complaint against Secretary of Interior David Bernhardt contains three counts. Count I is a due process claim based on the BLM's 2008 acceptance of the FYMOB. Count II is a due process claim based on the BLM's actions in 2013-2014. Count III contains APA claims based on the BLM's acceptance of the FYMOB in 2008 and the BLM's conduct in 2014-2014 in connection with the alleged replatting. The Alexanders seek declaratory and injunctive relief on their third-party claims.

         Pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, the Secretary now moves to dismiss the Alexanders' third-party claims.


         As an initial matter, the Secretary contends that the Alexanders have not pled any non-APA, due process claims, even though the court permitted them to do so. The Secretary argues that a fair reading of the Alexanders' amended third-party complaint shows that they have only alleged APA claims. The Secretary points out that the Alexanders allege that “[t]his third-party action is brought under 28 USC § 1331 and 5 USC § 702”[16] and then they incorporate this allegation into each of their three separate counts.[17] The Secretary argues that the APA provides the necessary waiver of sovereign immunity and 28 U.S.C. § 1331 gives the court jurisdiction to entertain APA claims. Thus, the Secretary argues that the Alexanders' claims should all be considered APA claims and be governed by Local Rule 16.3, which applies to APA claims. See Al Otro Lado, Inc. v. Nielsen, 327 F.Supp.3d 1284, 1316 (S.D. Cal. 2018) (treating all of the plaintiffs' claims as APA claims because “[a]lthough the Complaint purports to bring a separate claim for violation of the Plaintiffs' ‘procedural due process rights under the Fifth Amendment,' that claim expressly incorporates the alleged APA violations”).

         The Alexanders have alleged non-APA, due process claims in Counts I and II. For example, in Count I, they allege that “BLM's 2008 final action approving GZ Corp.'s facially conflicting Tract 19 boundaries denied [them] procedural due process and equal protection in violation of the Fifth Amendment Due Process Clause[.]”[18] In Count II, they allege that “BLM's 2013-2014 alterations denied [them] procedural due process and equal protection in violation of the Fifth Amendment Due Process Clause[.]”[19]

         The Secretary next moves to dismiss the Alexanders' due process claims in Count I and Count II on the grounds that they cannot assert non-APA, due process procedural claims.[20] The Secretary acknowledges that the court has already ruled to the contrary in its order on the Alexanders' motion for reconsideration, [21] but the Secretary urges the court to revisit this issue. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817 (1988) (citation omitted) (“[a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice”). The court, however, declines to revisit this issue, particularly in light of the Ninth Circuit's recent observation that while “[i]t is true that the APA is the general mechanism by which to challenge final agency action[, ] . . . this does not mean the APA forecloses other causes of action.” Sierra Club v. Trump, 929 F.3d 670, 699 (9th Cir. 2019).

         The Secretary next moves to dismiss all of the Alexanders' claims on statute of limitations grounds.[22] As an initial matter, the Alexanders argue that the Secretary is equitably estopped from asserting a statute of limitations defense. “The doctrine of equitable estoppel, often referred to as fraudulent concealment, is based on the principle that a party ‘should not be allowed to benefit from its own wrongdoing.'” Estate of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (quoting Collins v. Gee West Seattle LLC, 631 F.3d 1001, 1004 (9th Cir. 2011)). “The doctrine ‘focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit.'” Id. (quoting Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000)). The Alexanders have the

burden of pleading and proving the following elements of equitable estoppel:
“(1) knowledge of the true facts by the party to be estopped, (2) intent to induce reliance or actions giving rise to a belief in that intent, (3) ignorance of the true facts by the relying party, and (4) detrimental reliance.”

Id. (quoting Bolt v. United States, 944 F.2d 603, 609 (9th Cir. 1991)). “Additionally, when estoppel is sought against the government, ‘there must be affirmative misconduct (not mere negligence) and a serious injustice outweighing the damage to the public interest of estopping the government.'” Id. (quoting Bolt, 944 F.2d at 609).

         The Alexanders' argument focuses on whether there has been affirmative misconduct by the government. The only affirmative misconduct that they appear to raise in connection with the BLM's acceptance of the FYMOB in 2008 is that the BLM should not have accepted the FYMOB because GZ Corporation had not posted Clarence Alexander's § 14(c) claim “on the ground” as required by regulation. But, the failure to comply with regulatory requirements is not affirmative misconduct that causes a serious injustice. Id. Rather, it is the basis for an APA claim. Thus, to the extent the Alexanders' equitable estoppel argument is based on their contention that the BLM improperly accepted the FYMOB in 2008, that argument fails.

         As for the 2013-2014 conduct at issue here, the Alexanders argue that the BLM's written statements in 2014 on Sheets 1-2 of recorded Plat 2014-78 materially misrepresent the survey history for Tract 19, Tract 19A, and Tract 9. Sheet 1 shows Tract 19, Tract 19A, and Tract 9.[23] On Sheet 1, the BLM representative stated:

This survey was executed by Eric Stahlke, Registered Alaska Land Surveyor . . . for Tanana Chiefs Conference, July 19 through September 10, 2011, in accordance with the specifications set forth in the Manual of Surveying Instructions (2009), Special Instructions dated April 27, 2011, approved June 6, 2011, . . . and Notice to Proceed dated July 18, 2011.
* * *
The survey represented by this plat, sheets 1-30, having been properly executed and examined, is hereby accepted for having fulfilled the requirements of Section 14(c) of the Alaska Native Claims Settlement Act.[24]

         The Alexanders argue that these statements are misrepresentations because Stahlke did not survey Tract 19A in 2011. Rather, the Alexanders contend that Stahlke only surveyed Tract 19, as shown on Sheet 5 of 13 of the Plan of Survey.[25] The Alexanders argue that Sheets 1-2 conceal that in 2011 Stahlke never surveyed Tract 19A because it did not yet exist and that Tract 19A was created administratively in 2013-2014, and not in accordance with the Manual of Surveying or the Special Instructions.

         But this argument fails. As is discussed in more detail in the order on the cross-motions for summary judgment, which is being entered contemporaneously with this order, there were no misrepresentations on the recorded plat. All the survey work had been done in 2011. All that occurred in 2013/2014 was that GZ Corporation was ...

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