United States District Court, D. Alaska
GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs,
v.
CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
v.
DAVID BERNHARDT, Acting Secretary of Interior, in his official capacity, Third-Party Defendant.
ORDER
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.
Background
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.
Discussion
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 ...