Dumarce v. Scarlett, Acting Secretary of the Interior

446 F.3d 1294, 2006 U.S. App. LEXIS 11064, 2006 WL 1170121
CourtCourt of Appeals for the Federal Circuit
DecidedMay 4, 2006
Docket2005-1104
StatusPublished

This text of 446 F.3d 1294 (Dumarce v. Scarlett, Acting Secretary of the Interior) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dumarce v. Scarlett, Acting Secretary of the Interior, 446 F.3d 1294, 2006 U.S. App. LEXIS 11064, 2006 WL 1170121 (Fed. Cir. 2006).

Opinions

Opinion for the court filed by Chief Judge MICHEL.

Dissenting opinion filed by Circuit Judge LOURIE.

MICHEL, Chief Judge.

Gale Norton, the Secretary of the Interior, the Department of the Interior, and the United States appeal the United States District Court for the District of South Dakota’s grant of summary judgment based, ultimately, on its holding that plaintiff Colleen Renville DuMarce’s (“Du-Marce”) Fifth Amendment takings claim was not time-barred. DuMarce v. Norton, 277 F.Supp.2d 1046 (D.S.D.2003) {“Du-Marce ”). On cross-motions for summary judgment, the trial court granted in part plaintiffs’ motion for summary judgment, holding that the enactment of section 5 of Public Law No. 98-513, the Sisseton-Wah-peton Sioux Act of 1984, effected a taking of Indian land without just compensation in violation of the Fifth Amendment.1 The court denied defendants’ Motion to Dismiss and Motion for Partial Summary Judgment which contended that Du-Marce’s takings claim was barred under the relevant statute of limitations. On appeal, the government argues that plaintiffs claim was barred by the six-year statute of limitations of 28 U.S.C. § 2401(a) because she filed her claim fourteen years after her cause of action accrued, which, the government contends, occurred when the government apprised her of all facts grounding her cause of action. Because we agree with the government that DuMarce’s claim is time-barred, we reverse the trial court’s grant of summary judgment to plaintiffs.2

[1297]*1297I.

In 1984, Public Law No. 98-513, the Sisseton-Wahpeton Sioux Act, was enacted. Section 5 of this Act prevented the conveyance of land by members of the Sisseton-Wahpeton Sioux Indian tribe by devise or by intestacy.3 The purpose of this provision was to remedy the problem of fractionation of land. Long ago, the government had given small tracts of land that were part of larger expanses of land to individual Indians. These Indians had then passed these tracts to their heirs, either by devise or through intestacy. Over the generations, this created the phenomenon of progressive fractionation. In addition to their decreasing size, these small tracts of land each became owned by several owners, each of whom had an undivided interest in that land. In many cases, one Indian would have an undivided interest in many different small tracts of land. Moreover, one tract of land was frequently owned by an increasing number of individual Indians. The cost to the government of managing the land and title paperwork was high, due to the many small tracts and the many undivided interests in each small tract. Over time, the expense to the government became excessive. The Act reduced this problem by preventing the transfer of an interest in land that was less than two and a half acres. Instead, such land would escheat to the Tribe.

The plaintiffs in this case inherited such land from their fathers (and brother). The various plaintiffs are Pamela Renville and Colleen Renville DuMarce, whose father’s (Felix Renville) estate was probated on November 24, 1987, Harvey and Kenneth DuMarce, whose father’s (Gerald Du-Marce) estate was probated on December 27, 1996, and Dennis DuMarce, whose brother’s (Gerald DuMarce) estate was probated on December 27, 1996. At the time their estates were probated, the Department of the Interior notified the individual plaintiffs that their individual interests would escheat to the Tribe pursuant to section 5 of Public Law No. 98-513 because they totaled less than two and a half acres.4 Fourteen and a half years after DuMarce received her November 24, 1987 Notice, Harvey, Kenneth, and Colleen Renville DuMarce filed suit (on June 26, 2002), alleging that the escheats “constitute an unconstitutional taking ... in violation of the Fifth Amendment of the United States Constitution” and requesting just compensation, among other relief. On December 17, 2002, Dennis DuMarce and Pamela Renville filed similar complaints.

Both parties in the suit brought by Harvey, Kenneth, and Colleen Renville Du-Marce filed cross-motions for summary judgment. The government alleged in its partial summary judgment motion that [1298]*1298DuMarce was barred from bringing this claim by the six-year statute of limitations of 28 U.S.C. § 2401(a).5 DuMarce moved for summary judgment that, among other things, section 5 of the Act effected a taking without just compensation. District Judge Charles B. Kornmann denied the government’s combined motion for partial summary judgment and to dismiss, reasoning that DuMarce’s claim was not barred by the statute of limitations because her claim had not accrued in 1987 as the government had breached its fiduciary duty to her, an Indian, by failing to inform her of her cause of action against the government. DuMarce, 277 F.Supp.2d at 1055. The judge granted DuMarce’s motion for summary judgment in part, holding that section 5 of the Act did effect ■ a taking without just compensation. Id. at 1056-67. Based on this May 15, 2003 decision, Dennis DuMarce and Pamela Renville filed similar motions for summary judgment in their separate cases. All of the cases were consolidated on August 4, 2004. On October 22, 2003, the court entered a final Order enjoining “any further use of Section 5 of Public Law 98-513” and ordering the Department of the Interior to “reopen the estates” and “proceed[] through the probate procedures as though Section 5 of Public Law 98-513 did not and does not exist.” See DuMarce v. Norton, Nos. 02-1026, -1040, -1041, 2003 WL 24224102 (D.S.D. Oct. 21, 2003). The government appeals the grant of DuMarce’s summary judgment motion, based on the running of the statute of limitations.

DuMarce requested other forms of relief in addition to just compensation, including reopening of Felix Renville’s estate and an injunction prohibiting the government from escheating land to the Tribe. Yet in its May 15, 2003 decision the trial court held that the Sisseton-Wahpeton Sioux Act effected a taking without just compensation but “refrain[ed] from ordering any relief at [that] time, save, of course, a declaration that section 5 is unconstitutional.” DuMarce, 277 F.Supp.2d at 1056. Nonetheless, in a subsequent Judgment of Dismissal, dated September 29, 2004, the trial court ordered and adjudged, inter alia, that the government is “permanently enjoin[ed] and restrained ... from any further use of Section 5 of Public Law 98-513.” See DuMarce v. Norton, Nos. 02-1026, -1040, -1041 (D.S.D. Sep. 29, 2004). Thus, because of the permanent injunction, this judgment of the trial court is appealable even though not a final judgment. Because in this case district court jurisdiction was based on a takings claim under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), we have jurisdiction under 28 U.S.C. § 1295(a)(2).

II.

A.

The government argues that the district court erred by holding that the government breached its fiduciary duty by not informing DuMarce of a possible cause of action against the government.

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Bluebook (online)
446 F.3d 1294, 2006 U.S. App. LEXIS 11064, 2006 WL 1170121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dumarce-v-scarlett-acting-secretary-of-the-interior-cafc-2006.