United States District Court, Northern District of California
August 13, 2002
TERRANCE C. PROSCHOLD, ET AL., PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT. DRY CREEK RANCHERIA BAND OF POMO INDIANS OF CALIFORNIA, INTERVENOR.
The opinion of the court was delivered by: Armstrong, District Judge.
In accordance with the Court's Order Granting Defendant's and
Intervenor's Motions to Dismiss,
IT IS HEREBY ORDERED THAT final judgment in entered in favor of the
Defendant and Intervenor.
IT IS SO ORDERED.
ORDER GRANTING DEFENDANT'S AND INTERVENOR'S MOTIONS TO DISMISS
FOR LACK OF JURISDICTION
Plaintiffs are the owners of an easement previously granted to
defendant United States ("the Government") by plaintiffs'
predecessor-in-interest in 1965. The Government obtained the easement to
provide access to a Reservation occupied by the Dry Creek Rancheria Band
of Pomo Indians of California ("the Tribe"). Plaintiffs bring the instant
action against the Government under the Quiet Title Act ("QTA"),
28 U.S.C. § 2409a, seeking a judicial determination concerning the
permissible scope of use of the easement. Their concern arises from the
Tribes' construction of a casino on the Reservation and the attendant
increased traffic over the easement.
The parties are presently before the Court on the Government and the
Tribe's separate motions to dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(1). Both motions contend that the Court lacks subject
matter jurisdiction over the instant action based on a provision in the
QTA which excepts Indian property and property held in trust for Indians
from the QTA's waiver of sovereign immunity. Having read and considered
the papers filed in connection with the motions, and being fully
informed, the Court GRANTS the motions and dismisses the action for lack
In the early 1900's, Margaret Drake owned a parcel of property ("the
Drake property") located in a rural area of Sonoma County, approximately
three miles from the town of Geyserville. The Drake property is adjacent
to an Indian Reservation known as the Dry Creek Rancheria, where a small
number of Tribe members resided. There are two access roads on different
sides of the Reservation. One of the roads was largely unusable during
the Winter. However, the Drakes permitted the Tribe to use a road which
ran through the Drake property as an alternative means of ingress and
egress to the Reservation.*fn2
On March 8, 1965, after discussions with a representative from the
Bureau of Indian Affairs, Mrs. Drake granted to the Government, for
consideration in the amount of $1.00, a permanent easement and right of
way across her property for the purpose of formally allowing the Tribe
access to the Reservation. The easement was granted
West Page1 1029
solely to the
Government and its successors and assigns, and made no reference to the
Tribe. Throughout the time period the road was used by the Tribe, no more
than forty-five members resided at the Reservation. However, in the last
five years, the Tribe population has dwindled to five members.
In early 1999, plaintiffs, successors-in-interest to the Drake
property, learned of the Tribe's intention to build a casino on the
Reservation and to use the easement as the means for accessing that
facility. Alarmed by this prospect, plaintiffs attempted to address the
matter informally with the Tribe. After those negotiations proved
unsuccessful, plaintiffs commenced the instant action under the QTA
against the Government, as owner of the easement. On July 17, 2001,
plaintiffs filed a First Amended Complaint for declaratory relief.
Plaintiffs contend that the purpose of the easement is to allow access to
the Reservation for residential purposes only. They further allege that
permitting the easement to be used to accommodate access to the casino
exceeds the scope of the easement and would overburden the servient
estate (i.e., the property from which the easement was created).
On February 19, 2002, the parties stipulated to the intervention of the
Tribe. Both the United States and the Tribe now move to dismiss the
action for lack of subject matter jurisdiction. They contend that the
QTA's waiver of sovereign immunity, by its terms, does not apply to
"trust or restricted Indian lands . . . ." 28 U.S.C. § 2409a(a). The
Tribe also presents several alternative arguments for dismissal.
Plaintiffs oppose the motions.
Federal Rule of Civil Procedure 12(b)(1) authorizes a party to seek
dismissal of an action for lack of subject matter jurisdiction. "When
subject matter jurisdiction is challenged under Federal Rule of Procedure
12(b)(1), the plaintiff has the burden of proving jurisdiction in order
to survive the motion." Tosco Corp. v. Communities for a Better Env't,
236 F.3d 495, 499 (9th Cir. 2001). The court presumes lack of
jurisdiction until the plaintiff proves otherwise. See Stock West, Inc.
v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). In
adjudicating a motion to dismiss for lack of jurisdiction, the court is
not limited to the pleadings, and may properly consider extrinsic
evidence. See Association of Am. Med. Colleges v. United States,
217 F.3d 770, 778 (9th Cir. 2000) (citations and quotations omitted).
Where the court concludes that it lacks jurisdiction, it must dismiss the
action without reaching the merits of the complaint. See High Country
Resources v. F.E.R.C., 255 F.3d 741, 747 (9th Cir. 2001).
As a sovereign, the United States "can be sued only to the extent that
it has waived its immunity" from suit. United States v. Orleans,
425 U.S. 807, 814 (1976). "By enacting the QTA, Congress waived, with
certain important exceptions, the government's sovereign immunity when
the government is a party to a dispute over title to a parcel of land."
State of Alaska v. Babbitt (Albert), 38 F.3d 1068, 1072 (9th Cir.
1994).*fn3 The QTA provides, in relevant part, as follows:
The United States may be named as a party defendant in
a civil action under
this section to adjudicate a
disputed title to real property in which the United
States claims an interest, other than a security
interest or water rights. This section does not apply
to trust or restricted Indian lands . . . .
28 U.S.C. § 2409a(a) (emphasis added). The party asserting
jurisdiction bears the burden of establishing a waiver of the United
States' sovereign immunity. Cato v. United States, 70 F.3d 1103
(9th Cir. 1995).
The Government and the Tribe contend that the Government holds the
easement in trust for the Tribe, and as such, the Indian lands exception
bars the instant action. In order for this exception to apply, the
Government need only have a "colorable" claim that it holds the easement
"in trust" for the Tribe. Wildman v. United States, 827 F.2d 1306, 1309
(9th Cir. 1987); see also Alaska v. Babbitt, 182 F.3d 672, 674 (9th Cir.
1999) ("the Indian lands exception applies only if the lands at issue are
Indian lands, or at least colorably so.") The colorable claim requirement
is not an onerous one. The Ninth Circuit has made it clear that "the
purpose of the doctrine is to prevent judicial examination of the merits
of the government's position." Wildman, 827 F.2d at 1309. "To the extent
that the QTA allows any inquiry on the merits, that inquiry can extend no
further than a determination that the government had some rationale for
its claim." Albert, 38 F.3d at 1076 (emphasis added). The sovereign
immunity of the Government applies regardless of whether it is "right or
wrong." Wildman, 827 F.2d at 1309.
In this case, it is clear that the Government has claimed an interest
in the disputed property based on its status as trustee for the Tribe
— and that it has not otherwise asserted title to the land in its
own behalf. As an initial matter, the Government, in its motion to
dismiss, affirmatively asserts that the easement is effectively Indian
property. (Govt's Mot. at 2.) The Government also provides a statement
from the United States Department of the Interior which confirms that it
considers the easement to be trust assets of the Tribe. (Fry Decl.
¶¶ 4-7.) The record presented further supports the Government's
position. It is uncontroverted that the Government obtained the easement
from Mrs. Drake in 1965 to ensure that residents of the Reservation had a
means of ingress and egress to their property. (Proschold Decl. ¶
5.) Plaintiffs state as much in their pleadings. (First Am. Compl.
¶ 8 ("The Easement . . . is shown by contemporaneous correspondence
to have been created and intended for the sole purpose of providing a
private means of ingress and egress of (sic) the residents of the
Rancheria").) Thus, the Court finds that under the standards set forth in
Wildman and its progeny, the Government, at a minimum, has "some
rationale" for its claim that the easement is held in trust for the
Plaintiffs contend that the Government's "bald declaration" that the
easement constitutes Indian trust property is insufficient to support
application of the Indian lands exception. (Pls.' Opp'n at 5.) They point
out that the easement which was recorded in 1965 makes no mention of the
easement being held in trust by the Government for the benefit of the
Tribe, and that it has not otherwise undertaken any effort to formally
establish the easement as trust property. (Id. at 7.) However, the
Government need not prove that the easement is held in trust for the
Tribe; as noted, it needs only a colorable claim. See Wildman, 827 F.2d
at 1309 ("Nothing in the [QTA] or its history suggests that the United
States was to be put to the burden of establishing its title when it has
a colorable claim and has chosen to assert its immunity on behalf of land
of which the
Government declares that it is the trustee for Indians.").
Plaintiffs' arguments go to the merits of the Government's contention,
which exceeds the permissible scope of judicial inquiry. Albert, 38 F.3d
at 1076. At bottom, the Court finds that plaintiffs are barred from
bringing a claim under the QTA, and as such, the action must be dismissed
for lack of jurisdiction. See Leisnoi v. United States, 170 F.3d 1188,
1191 (9th Cir. 1999) ("if the Quiet Title Act does not apply, the
district court does not have jurisdiction over [plaintiff's] claim.").*fn4
The Court empathizes with plaintiffs' concerns. Mrs. Drake obviously
had no idea that the easement she granted to the United States thirty-two
years ago for the charitable purpose of allowing forty-five Tribe members
access to their property would someday be used to facilitate traffic for
a full-scale gambling casino on the Reservation. Nevertheless, the
Government — rightly or wrongly — has chosen to assert a
claim to the easement in trust for the Tribe. Therefore, the Court must
dismiss the action for lack of jurisdiction. Accordingly,
IT IS HEREBY ORDERED THAT the United States' and the Tribe's respective
motions to dismiss are GRANTED. The Clerk shall close the file and
terminate any pending matters.
IT IS SO ORDERED.