Shade v. United States Dep't of the Interior

1

KENNETH SHADE and ERIC SHADE, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. 3:20-cv-0198-HRH

United States District Court, D. Alaska

August 16, 2022

ORDER

H Russel Holland, United States District Judge.

Motion to Dismiss

Defendant Ellamae Chaney moves to dismiss plaintiff's claims asserted against her in the third amended complaint.^[1] This motion is opposed by plaintiff Kenneth H. Shade.^[2]Oral argument was not requested and is not deemed necessary.

Background

“Plaintiff who is an Alaska Native, is a devisee of a restricted Native allotment (‘Shade allotment') from his father Henry Shade, who died testate on March 28, 2009.”^[3] Plaintiff alleges that “[t]he Shade allotment was conveyed by BLM to Henry Shade on September 23, 1976.”^[4] Plaintiff alleges that “in the 1960s Henry Shade built and maintained a dirt road approximately one mile in length from Aleknagik Lake Road to his allotment (‘Shade access road')” and that “[t]he Shade access road is the only practicable means of access to the Shade allotment.”^[5] Plaintiff alleges that under the terms of Henry Shade's will, “[p]laintiff is to receive a house on the Shade allotment and ten acres of land surrounding it” and that his brother, “Eric Shade is to receive the remainder of the allotment, which is largely undeveloped.”^[6]

Plaintiff alleges that in 1992, a restricted Native allotment was conveyed to Chaney.^[7]Plaintiff further alleges that the Shade access road crosses Chaney's allotment.^[8] Plaintiff alleges that “[i]n the course of subdividing the Shade allotment,” it was discovered that the “BLM had mistakenly forgotten to include an express reservation of a right-of-way for the Shade access road” even though the “BLM knew from its field work that the Shade access road was built before Chaney began the use and occupancy of her allotment site and that the road was necessary to access the Shade allotment.”^[9] Plaintiff alleges that “[b]ecause of the lack of recognized legal access over the Chaney allotment to the Shade allotment, the subdivision of the Shade allotment and the probate of Henry Shade's [will] has been put on hold, and [p]laintiff has not been able to receive title to his portion of the Shade allotment.”^[10]

Plaintiff alleges that “[b]efore Chaney applied for her Native allotment, she agreed with Henry Shade that if her allotment was granted, the road could continue to be used as access to his Native allotment in exchange for his assistance with her application.”^[11] Plaintiff also alleges that “[a]fter learning of BLM's mistake in the Chaney allotment conveyance certificate, [p]laintiff asked Chaney to acknowledge that the Shade access road, as it crosses her allotment, was and is a ‘valid existing right' under ANILCA, to which her allotment is subject.”^[12] Plaintiff alleges that “Chaney has refused to do so[,]” and that “Chaney and those acting on her behalf have, from time to time, interfered and threatened to interfere with the use of the Shade access road by fuel suppliers, tradesmen, and others seeking access to the Shade allotment....”^[13] Plaintiff alleges that Chaney has “rejected suggestions by the federal agencies that she mediate this dispute with” him.^[14] Plaintiff alleges that “[b]ecause of Chaney's actions and failure to act,” he “is unable to receive title to his portion of his father's allotment, . . . obtain financing or insurance for the house, and . . . live in the house that he was intended to inherit.”^[15]

Plaintiff commenced this action on August 12, 2020. Plaintiff's original complaint asserted claims against the federal defendants and Chaney, including several which sought recognition of the Shade access road as an encumbrance on Chaney's Native allotment.^[16]The federal defendants moved to dismiss plaintiff's complaint, a motion in which Chaney joined.^[17] On September 16, 2021, the court granted in part and denied in part the motion to dismiss. The motion was denied as to plaintiff's Counts II(a) and (d), which were APA claims based on plaintiff's allegation that the Secretary erred in determining the extent of her 43 U.S.C. § 1746 authority in connection with his administrative appeal.^[18] The motion was otherwise granted and plaintiff's other claims were dismissed as “foreclosed by the Indian lands exception to the” Quiet Title Act.^[19] Plaintiff was given leave to amend his complaint, and on September 30, 2021, plaintiff filed his second amended complaint.^[20] In his second amended complaint, plaintiff asserted an APA claim against the federal defendants and trespass, tortious interference, and takings claims against Chaney and the federal defendants.^[21] The federal defendants again moved to dismiss plaintiff's claims against them.^[22] The court granted in part and denied in part the federal defendants' motion to dismiss.^[23] The motion was denied as to plaintiff's APA claim but was granted as to all other claims against the federal defendants.^[24] In addition, the court dismissed some of plaintiff's claims against Chaney but expressly did not address plaintiff's breach of contract, trespass, tortious interference, and takings claims against Chaney.^[25] Plaintiff was again given leave to amend his complaint.^[26]

In addition to moving to dismiss plaintiff's second amended complaint, the federal defendants also moved to sever plaintiff's APA claim from his claims against Chaney.^[27] The court denied the motion to sever, finding that “bifurcation rather than severance is appropriate.”^[28] Thus, “[p]roceedings on plaintiff's claims against defendant Chaney are bifurcated from plaintiff's APA claim against the federal defendants.”^[29]

On May 26, 2022, plaintiff filed a third amended complaint against the federal defendants,^[30] Chaney, and Eric Shade.^[31] Plaintiff's third amended complaint contains three counts against Chaney. In Count II, plaintiff asserts a breach of contract claim and a breach of the implied covenant of good faith and fair dealing claim based on allegations that

[b]efore Chaney applied for her Native allotment, she and Henry Shade agreed as follows: Henry Shade agreed to assist Chaney in her allotment claim by helping her stake her land, by supporting her claim, and by allowing her to use the access road that he had built to Aleknagik Lake Road; in exchange, Chaney agreed that if her allotment application was granted, the road could continue to be used as access to his Native allotment.^[32]

For relief on Count II, plaintiff seeks “an order of specific performance to enforce [the] agreement[,]” or in the alternative, damages.^[33] In Count III, plaintiff asserts trespass and tortious interference claims against Chaney based on an allegation that “Chaney, by her actions, has continuously and tortiously trespassed and interfered with [p]laintiff's use and enjoyment of his interest in the Shade allotment, to his harm and detriment.”^[34] For relief on Count III, plaintiff seeks declaratory and injunctive relief and damages.^[35] In Count IV, plaintiff asserts a takings claim against Chaney based on an allegation that he has a property interest in the Shade allotment and that “Chaney['s] taking [p]laintiff's property interest in the Shade allotment [is] constitutionally invalid because the public use requirement of the Takings Clause has not been met.”^[36] For relief on Count IV, plaintiff seeks declaratory and injunctive relief, mandamus, and damages.^[37]

Pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, Chaney now moves to dismiss all claims asserted against her.

Discussion

First Chaney moves to dismiss plaintiff's takings claim in Count IV on the grounds that this claim is barred by the statute of limitations and thus the court lacks jurisdiction over this claim. A takings claim is subject to the six-year statute of limitations in 28 U.S.C. § 2401(a).^[38] Although Chaney argues that Section 2401(a) is jurisdictional, and the Ninth Circuit said as much in Loring v. United States, 610 F.2d 649, 650 (9th Cir. 1979), in a later case, the Ninth Circuit held “that § 2401(a)'s six-year statute of limitations is not jurisdic-tional[.]” Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997). Some district courts have questioned whether Cedars-Sinai is still good law after the Supreme Court's decision in John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008), which “dealt with” the statute of limitations in “§ 2501[.]” Padres Hacia Una Vida Mejor v. Jackson, Case No. 1:11-cv-1094 AWI DLB, 2012 WL 1158753, at *3 (E.D. Cal. April 6, 2012). “[W]hile other courts have found § 2401 is jurisdictional in part because of John R., e.g. West Virginia Highlands Conservancy v. Johnson, 540 F.Supp.2d 125, 143 (D.D.C. 2008), and a panel of the Ninth Circuit has indicated that Cedars-Sinai may no longer be good law, see Aloe Vera of Am., Inc. v. United States, 580 F.3d 867, 872 (9th Cir. 2009) . . ., the Ninth Circuit has yet to actually overrule Cedars-Sinai.” Id. “As such, ‘[i]n the Ninth Circuit, Cedars-Sinai still is controlling law. . . .'” Id. (quoting Rancheria v. Salazar, 2010 WL 693420 (N.D. Cal. Feb. 23, 2010)). Thus, Chaney's motion to dismiss plaintiff's takings claim against her must be treated as a Rule 12(b)(6) motion, not a Rule 12(b)(1) jurisdictional motion.

“‘To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the...