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County of Inyo v. Dep't of the Interior

August 8, 2008

COUNTY OF INYO, PLAINTIFF,
v.
DEPARTMENT OF THE INTERIOR, DIRK KEMPTHORNE, IN HIS CAPACITY AS SECRETARY, NATIONAL PARK SERVICE, MARY A. BOMAR, IN HER CAPACITY AS DIRECTOR, AND JAMES T. REYNOLDS, IN HIS CAPACITY AS SUPERINTENDENT, DEATH VALLEY NATIONAL PARK, DEFENDANTS, AND SIERRA CLUB, ET AL. DEFENDANT-INTERVENORS



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON MOTIONS BY DEFENDANTS AND DEFENDANT-INTERVENORS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION F.R.C.P. 12(b)(1) Doc. #'s 46 and 49

This is an action by plaintiff County of Inyo ("Plaintiff") to quiet title to rights of way that lie inside federal land in the vicinity of Death Valley National Park, near the California-Nevada border. Defendants are the Department of the Interior, Dirk Kempthorne, Director; National Park Service, and Mary A. Bomar, Director; and James T. Reynolds, in his capacity as Superintendent of Death Valley National Park (collectively, "Federal Defendants"). Defendant- intervenors are a group of environmental interest organizations including Sierra Club, The Wilderness Society, California Wilderness Coalition, National Parks Conservation Association, Center for Biological Diversity, and Friends of the Inyo (collectively "Intervenors"). For purposes of this motion, Federal Defendants and Intevenors will be referred to as "Defendants."

In the instant motion Defendants seek to dismiss the complaint in its entirety for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants move to dismiss on the ground Plaintiff's action is barred by the applicable statute of limitations or, in the alternative, Plaintiff has failed to plead the necessary element of presentation of the claim within the statutory period. For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action concerns four rights of way that are situated near Death Valley National Monument, near the California-Nevada border. Two of these rights of way, Petro Road and Lost Section Road, are located in a roughly triangular area bounded by highway 190 on the north, highway 127 on the east, and by the National Monument boundary on the west and south. Padre Point Road is located in an area adjacent to the western boundary of the national monument and north of highway 190. The fourth right of way, Last Chance Road is located near the northern boundary of the National Monument near the California-Nevada border. Petro Road, Lost Section Road and Last Chance Road were established during the early part of the 1900's as roads connecting small, now mostly depopulated mining communities and mining areas with more established roads and railroads. Padre Point Road was established in the 1950's as a short, scenic side-road off of highway 190. Plaintiff alleges all four roads are basically graded dirt roads that have been maintained as needed by Plaintiff and that have been used in recent times for sightseeing, law enforcement, and regional management.

In 1976, the Federal Land Policy and Management Act ("FLPMA") was enacted. Among other things, the FLPMA placed desert lands in California, including the lands underlying the rights of way at issue in this action, into the California Desert Conservation Area ("CDCA") for the purpose protecting their wilderness characteristics. 43 U.S.C. § 1781. The FLPMA also required that BLM identify and evaluate roadless areas of five thousand acres or more in size for their wilderness values. Pursuant to section 1782, surveys of the roadless areas were to be completed and recommendations made to the President by July 1, 1980, for designation of those lands that are appropriate for inclusion in wilderness areas. The process of evaluation and recommendation was divided into three phases; an inventory phase, a study phase and the reporting phase. The inventory phase was further subdivided into an initial inventory, and a subsequent "intensive inventory. California State Lands Comm'n, 58 IBLA 213, 214 (1981).

Exhibit 1 to intervenors' motion to dismiss sets forth portions of BLM's Wilderness Inventory Handbook, (hereinafter, the "Handbook") published September 27, 1978. Doc. 3 49-1. The Handbook describes in some detail the inventory phase. Pursuant to the Handbook, the initial inventory is intended to separate the areas "that (1) clearly and obviously do not meet the criteria for identification as Wilderness Study Areas, or (2) may possibly meet the criteria and will require more intensive inventory." Handbook at 10. The purpose of the intensive inventory is to "obtain the information necessary to make a determination for each inventory unit included in the intensive inventory as to whether all (or part of [the land units preliminarily identified]) have or don't have the roadless and wilderness characteristic criteria required for Wilderness Study Area [hereinafter "WSA"]identification." Handbook at 11.

For those inventory units that are identified by the inventory process as WSA's, the FLPMA provides that BLM shall manage WSA's "so as not to impair the suitability of such areas for preservation as wilderness, . . . ." 43 U.S.C. 1728 (c). Pursuant to the Handbook, any study unit that is determined either initially or after intensive study to not be qualified for designation as a WSA is released from the restrictive use management of FLPMA following a 30-day comment period. The inventory period concluded on March 31, 1979, with the publication of the State BLM Director's final determination of Wilderness Study Areas, including narrative descriptions of each area and maps of the designated areas. See Exhibit 3 of Intervenors' motion to dismiss, Doc. # 49-3.

Exhibit 3 to Intervenors' motion to dismiss includes relevant portions of the descriptive narratives from the Final Report for the WSA's that incorporate the four alleged rights of way at issue in this action. The descriptive narrative for WSA # 112, which incorporates Last Chance Road, describes the area as being bounded on the south by a road that is also called Last Chance Canyon Road from which the subject Last Chance Canyon Road branches northward and continues until its intersection with Cucomongo Canyon Road on the north boundary of the WSA. Doc. # 49-3. A road that parallels the subject Last Chance Canyon Road north from the southern boundary to Last Chance Spring was "cherry stemmed" out of the WSA, as was a short three-quarter mile segment of the subject Last Chance Canyon Road at the northern end where it intersects with Cucomongo Canyon Road.

With respect to WSA # 147, the area that contains Petro Road, BLM's Final Descriptive Narrative of the Wilderness Inventory describes the WSA as being adjusted to exclude: areas where man's impact has degraded the natural character. The exclusion includes active, abandoned mining operations, patented mining at Section 21, 29, 31 - 33 (T. 25 N., R 4 E.), a graded road, and a network of unimproved says. The graded road leads east from Death Valley Junction past the remains of the abandoned Lila C Mine (site of Old Ryan - now only tunnels, slag piles, and rusting equipment remain) to an area laced with old roads and mining claims at the mouth of Greenwater Canyon. A grid-like network of unimproved ways is located in the vicinity of the Lila C Mine. At the site of the New Ryan, on the tip of the Greenwater Range, active and abandoned mining operations occur side-by-side. Tunnels, slag piles, and road scars exist here as well as many of the old structures there were once inhabited by the population of Ryan. Doc. # 49-3.

Although comparisons between the various maps submitted is somewhat difficult owing to differences in scale, orientation and clarity, it appears to the court that description of the "unnamed road" in the narrative report corresponds roughly to the route taken by Petro road. The term "roughly" is use here to denote what appears to be an inaccuracy in the narrative description. According to the maps provided as exhibit 1 to Plaintiff's complaint, Lila C Mine lies south-west of Death Valley Junction, not east. Making that correction, it appears to the court that Petro Road, which travels west by south from its junction with state route 127 a few miles south of Death Valley Junction to the vicinity of the Lila C Mine, is the only road or right of way visible on the topographical map that accesses the area of the Lila C Mine from the vicinity of Death Valley Junction. The final BLM map of the California Desert Wilderness Inventory, exhibit 5 to Intervenors' motion to dismiss, is not inconsistent with this conclusion. The map of WSA # 147 shows an area not designated as WSA that appears to include a drawn-in road from the vicinity of Death Valley Junction to the general area of the Lila C Mine. The area not included in WSA 147 also appears to include the portion of Petro Road that proceeds first west by north from the area of the Lila C Mine, and then due west, until the road turns south into Greenwater Canyon.

The purpose of the study phase, which followed the State BLM Director's final determination of Wilderness Study Areas, was to make the final determination of suitability for wilderness designation as to each of the WSA's. Federal Defendants provide a brief sketch of the study phase of the FLPMA process at footnotes # 5 and # 12 of their reply to Plaintiff's opposition to the motion to dismiss. According to Federal Defendants, the study period spanned roughly the period from 1980 to 1990. The California Desert Conservation Area plan, which contained the preliminary recommendations for wilderness suitability for WSA's, was published in September 1980. The California State BLM Director made his recommendations to the National BLM Director in December, 1984. "BLM's final suitability recommendations were included in BLM's Statewide Wilderness Study Report which was completed in 1990." Doc.# 58 at fn.12.

Although Plaintiff appears to characterize the FLPMA process as being interrupted or derailed at the reporting phase, Federal Defendants allege that the process was completed in that BLM's recommendations for areas to be designated as wilderness areas were, in fact, forwarded to the President in June of 1991 and the president's recommendations were forwarded to Congress on July 26, 1991. Federal Defendants do, however, point out that "Congress designated wilderness areas beyond the areas recommended as suitable for wilderness by BLM. . . ." Doc. # 58 at fn.5. Thus, to the extent there was any discontinuity with respect to the FLPMA process, it appears to have been in the legislative process that resulted in wilderness designations of lands that were not recommended as suitable for wilderness designation by BLM.

The Wilderness Study Report recommended that none of the area in WSA # 112 be designated as wilderness area. Doc. # 49-8. Similarly, the Wilderness Study Report recommended that none of the area in WSA # 147 be designated as wilderness area. Doc. # 49-8. WSA's numbered 127 and 148, incorporating Padre Point Road and Lost Section Road South, respectively, were described in the narrative descriptions as having little or no indications of presence of human activities. The major portions of both WSA's were recommended for wilderness designations in the Wilderness Study Report.

In 1994 the California Desert Protection Act, PL 103-433, October 31, 1994, 108 Stat. 4471 ("CDPA"), placed the areas described by BLM's final report, including the lands underlying the rights of way in question, under the jurisdiction of the National Park Service as protected wilderness lands. Plaintiff alleges, and exhibit material made available by Plaintiff appears to confirm that the 1994 CDPA was not strictly the product of the process set forth in the FLPMA, but rather was the product of a combination of the FLPMA process and a protracted parallel effort between 1980 and 1994, primarily by Senator Alan Cranston, D. California, to upgrade the protected status of lands suitable for wilderness designation in the Mojave Desert. As a consequence of perceptions that the administrations of Presidents Reagan and Bush were not sympathetic to efforts to afford greater wilderness protection to lands in the Mojave Desert, the focus of efforts to designate desert lands as wilderness areas centered on the legislature, culminating in the passage of the CDPA in 1994. The legislative effort apparently included a good deal of political wrangling and the results were not exactly consistent with BLM's recommendations as to what tracts of land, or portions thereof, should be set aside as wilderness areas. See E.C. Nystrom, From Neglected Space to Protected Place: An Administrative History of Mojave National Preserve (National Park Service, Mar. 2003), Doc.# 8-10.

Plaintiff alleges that it was prevented from accessing or performing maintenance on any of the four rights of way following enactment of the CDPA in 1994, but not before that time. The four rights of way have been closed to vehicular traffic since 1994, either by the positing of signs or by the erection of physical barriers.

Plaintiffs filed their complaint under the Federal Quiet Title Act, 28 U.S.C. § 2409a, on October 25, 2006. The court granted Intervenors' motion to intervene on June 14, 2007. The Federal Defendants and Intervenors filed separate motions to dismiss on May 9, 2008. Plaintiff filed its opposition on May 22, 2008. Intervenors and Federal Defendants filed separate replies on June 13, 2008. On June 17, 2008, the court vacated the scheduled hearing date of June 23, 2008, and took the matter under submission.

LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).

A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

"In resolving a Rule 12(b)(1) motion [to dismiss] for lack of subject matter jurisdiction, unlike motions brought pursuant to Rule 12(b)(6), courts are generally free to consider relevant materials outside the pleadings. [Citations.]" Nat'l Comty. Reinvestment ...


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