Appeal from the United States District Court for the Eastern District of California Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-04-00734-RRB/KJM.
The opinion of the court was delivered by: D. W. Nelson, Senior Circuit Judge
Argued and Submitted April 17, 2009-San Francisco, California
Before: Dorothy W. Nelson, Marsha S. Berzon, and Richard R. Clifton, Circuit Judges.
The Robinsons appeal the dismissal of their complaint for lack of subject matter jurisdiction due to the sovereignty of the United States government under the Quiet Title Act. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the district court's order. We remand so that the district court may determine whether appellants may assert jurisdiction under the Federal Tort Claims Act.
FACTUAL AND PROCEDURAL HISTORY
In the mid-1970s, Clinton and Lorene Miller and Spencer and Alverda Robinson purchased approximately 620 acres of land in Butte County, California. In 1978, a twenty-foot wide road, known as Alverda Drive, was built across Parcels 2, 3, and 4 of the lot. Alverda Drive connects several of the other parcels with local roads.
In 1979, the Robinsons and the Millers entered into a Road Maintenance Agreement (the "RMA") whereby they both agreed to bear the cost of maintaining "the roadways and drainage facilities." In 1980, the Millers gifted a portion of their land, as well as a sixty-foot "non-exclusive right of way for road and public utilities" over Parcels 2 through 4, to the Robinson family. The RMA was duly recorded.
Through a series of transactions, Parcels 2 through 4 were conveyed to the Indians of the Mooretown Rancheria, also known as the Maidu Indians of California (the "Maidu" or the "Tribe"). All of the grants noted the "60.00 foot right of way for road and public utility purposes" (the "easement"). The Maidu subsequently conveyed the parcels, subject to the easement, to the United States to hold in trust for the Tribe.
In the 1990s, the Maidu constructed homes and a casino on Parcel 4. In 2004, Dennis, Spencer, Rickie, Cynthia, and Vickie Robinson filed suit in the Eastern District of California alleging, inter alia, that an unshored slope caused subsidence and that a curb, concrete walkway, wrought iron fence, and fire hydrant encroached onto the easement. The complaint alleged disruption of lateral and subjacent support, negligence, and nuisance.
Although the Government did not dispute the existence of the easement, it filed a motion to dismiss arguing, inter alia, that the court lacked subject matter jurisdiction over the claim due to sovereign immunity. The district court agreed and dismissed the case for lack of ...