United States v. City of Tacoma, Washington

332 F.3d 574, 2003 Daily Journal DAR 5987, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20211, 2003 Cal. Daily Op. Serv. 4681, 2003 U.S. App. LEXIS 11109, 2003 WL 21276504

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 2003
• Docket: 00-35070
• Status: Published

Opinions

Opinion by Judge GOULD; Dissent by Judge FERGUSON.

OPINION

GOULD, Circuit Judge.

The United States brought this action, on behalf of itself and as trustee for the Skokomish Indian Tribe (the “Tribe”) and its members, asking for declaratory judgment to invalidate the 1921 condemnation proceedings brought by the City of Tacoma (“Tacoma”) and seeking to void land transfers made by the Tribe long thought by Tacoma to be settled. After cross motions for summary judgment, the District Court granted the United States’ motion, invalidating the condemnation proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

A. Factual History

1. Funk Condemnation Proceedings

In 1920, Tacoma began plans to develop the Cushman hydroelectric power project on the North Fork of the Skokomish River.¹ To that end, Tacoma instituted condemnation proceedings in state court, entitled Tacoma v. Funk, No. 1615 (Wash.Super.Ct.), against private landowners with property in the area of the proposed project. The landowners included five tribal members who held allotted lands.² Three allotments were held in fee by the tribal members with a reversionary interest in the United States. Two were held in trust by the United States for tribal members’ benefit. The United States was not a party in Funk.

On November 20,1920, a bench trial was held on whether construction of the project was a public use. About a year later, the state court held that the project was a public use and that the condemnations were appropriate and necessary for the project. The state court ordered Tacoma to pay $1,411.61 in damages for portions of two allotments and perpetual easements across three. The court entered a conditional judgment on this order, subject to the United States government’s approval, through its “proper authorities.”

Thereafter, Percy P. Brush, Assistant City Attorney, contacted William B. Sams, Superintendent of the Taholah Indian School, about the condemnation. By letter of October 31, 1921, Brush told Sams of the proceedings and said that the clerk of the court in Shelton, Washington held the amounts required by the judgment, subject to the federal government’s approval. Brush asked Sams to “take this matter up with the proper authorities and take such steps as are necessary towards' protecting the government.”

Sams responded, by letter of November 14, 1921, that the allotments “are each and all trust patented allotments, the title to the land remaining in the Government of the United States, and such lands are not subject to condemnation proceedings.” On that day Sams also wrote the Commissioner of Indian Affairs at the Department of the Interior: “I have notified the Assistant Attorney of the City of Tacoma that condemnation proceedings against these trust patented lands will not lie; that the title yet remains in the Government of the United States and that their only method of securing the fee title to such lands is pursuant to the Act of June 25, 1910.”

By letter of December 16, 1921, E.B. Meritt, Assistant Commissioner of Indian Affairs at the Department of the Interior, instructed Sams that condemnation of allotted lands for public purposes was authorized by Section 3 of the Act of March 3, 1901, 31 Stat. 1083-84 (codified at 25 ). By letter of May 12, 1922, W.W. Mount, Assistant United States Attorney for the Western District of Washington, similarly advised Sams: “In view of [25 U.S.C. § 357,] I am inclined to believe that the procedure as adopted by the City in this condemnation suit is in all respects legal.” Sams passed along Mount’s letter to Meritt and said that the appraisement of the lands was “fully sufficient and fair and just to all concerned.”

By letter of June 7, 1922, Meritt responded to Sams, approving the state court’s conditional judgment and directing Sams to “present the original of this letter to the clerk of the court at Shelton, Washington, with request that the amount of the awards be turned over to you to be handled for the benefit of the Indians entitled.” The letter was approved and signed by F.M. Goodwin, Assistant Secretary of the Department of the Interior. In July 1922, Sams complied with these directions, gave the letter to the clerk of the court, and asked that the funds be given to him for distribution.

2. Subsequent Proceedings and Events

The parties also point to several events that occurred between the 1921 Funk decision and the institution of this action in 1996.

a. Agency Proceedings

In 1924, the Federal Power Commission (“FPC”), the predecessor of the Federal Energy Regulatory Commission (“FERC”), issued a 50-year “minor part” license, authorizing Tacoma to flood 8.8 acres of United States Forest Service land. City of Tacoma, 87 FERC ¶ 61,197 at 61,-732 n. 10, 1999 WL 323705 (1999). The FPC by order said that “the license will not interfere or be inconsistent with the purpose for which any reservation affected thereby was created or acquired.”³ Id. After 1974, the FERC issued an order extending the same right by granting Tacoma annual licenses for the next 24 years. In 1998, after this action started, the FERC issued an order granting Tacoma a 40-year license to continue operating the Cushman project. City of Tacoma^ 84 FERCT 61,107, 1998 WL 608611 (1998); see City of Tacoma, 86 FERC ¶ 61,311, 1999 WL 177637 (1999). The order recognized Tacoma’s property interests in the five allotments, but acknowledged that this litigation would materially affect whether the lands were considered “reservations.”⁴ 84 FERC ¶ 61,107 at 61,547 & n. 55, 1998 WL 608611. In March 1999, the FERC issued an order on rehearing, finding that the five allotments fell within the FPA’s definition of “reservations” based on the District Court’s grant of summary judgment. 86 FERC ¶ 61,311, 1999 WL 177637 at 62,075.

b. Skokomish Indian Tribe v. France

In an action against the State of Washington, Tacoma, and several corporations and individuals, the Tribe sought to quiet title on tidelands next to the reservation by the Hood Canal. See Skokomish Indian Tribe v. France, 320 F.2d 205, 206 (9th Cir.1963). The United States was not a party to the action.

The district court held that the Tribe’s challenges to the FPC license were barred by laches and equitable estoppel. It held also that the action was a collateral attack barred by res judicata, that the issues should have been raised by the Tribe or the United States in the FPC hearings. We affirmed, holding that there was no clear error in the findings on which the District Court based its conclusions that the tidelands were not part of the reservation.

c. Tribal Resolution

In March 1977, the Skokomish Tribal Council passed a resolution on the Funk proceedings, to the effect that the state court lacked jurisdiction to condemn the property and that neither the United States nor the Tribe was a party in the action, as was required. The resolution asked the Commissioner of Indian Affairs to “undertake litigation and all other steps necessary to set aside or otherwise secure relief from the illegal condemnations.”

B. Procedural History

On May 1, 1996, the United States filed this federal court action, seeking for the Tribe a declaratory judgment that would invalidate the condemnation proceedings, and seeking damages for trespass. The district court bifurcated trial of liability and remedy. Cross motions for summary judgment on liability followed.

On November 20,1998, the district court granted summary judgment to the United States and denied Tacoma’s cross motion for summary judgment. The district court held that the United States had standing, that it was not equitably estopped, and that the condemnation proceedings were void because brought in state court and the United States was not a party.

After gaining summary judgment on liability, the United States declined to seek damages for trespass. On September 27, 1999, the United States filed a motion for entry of final judgment and to terminate discovery. Tacoma opposed, contending that discovery was needed to identify all parties bound by the judgment. The district court granted the motion and entered final judgment on December 14,1999. Tacoma timely appealed on January 13, 2000.

II

We review the grant of summary judgment de novo. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001) (citations omitted). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law. Id. (citation omitted).

Tacoma contends: (1) that the United States lacks standing to bring this action and (2) that, notwithstanding the contentions of the United States and the Tribe, the Funk proceedings or the actions of the United States effectively conveyed property interests in the five allotments. We hold that the United States has standing to pursue this action, and that the United States did not convey its interest in the five allotments.

A. Standing

Standing requires: (1) that the plaintiff suffered an injury in fact; (2) that there is “a causal connection between the injury and the conduct complained of’; and (3) that there is a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The United States meets the first requirement. See, e.g., United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 88 L.Ed. 1326 (1944) (“Restricted Indian land is property in which the United States has an interest.”). The United States has suffered injury to its property rights in all the allotments, whether the United States’ interest for the Tribe is fee simple or reversionary. See Heckman v. United States, 224 U.S. 413, 431, 437-47, 32 S.Ct. 424, 56 L.Ed. 820 (1912). The United States also suffered an injury as the trustee. See Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942). See generally 25 U.S.C. § 175. And the United States has an independent, governmental interest when it has not been made a party in condemnation proceedings of restricted Indian lands. Hellard, 322 U.S. at 368, 64 S.Ct. 985; United States v. Candelaria, 271 U.S. 432, 443-44, 46 S.Ct. 561, 70 L.Ed. 1023 (1926).

Tacoma argues that the United States cannot fulfill the causal connection requirement, urging that the alleged harm is not fairly traceable to Tacoma’s actions because the federal officials’ approval of the conditional judgment was an intervening cause of the alleged harm. But this ignores the fact that the initial and primary causes of the alleged injury were Tacoma’s institution of the Funk proceedings and its failure to name the United States as a defendant. There remains “a fairly traceable connection between the plaintiffs injury an the complained-of conduct of the defendant.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citation omitted); see Bowling v. United States, 233 U.S. 528, 534, 34 S.Ct. 659, 58 L.Ed. 1080 (1914) (“the United States has capacity to sue for the purpose of setting aside conveyances of lands allotted to Indians under its care, where restrictions upon alienation have been transgressed.”).

Tacoma also contends that the United States cannot meet the redressability requirement, because the United States has not proved that it, the Tribe, or the Tribe’s members have a current interest in the five allotments. Thus, the argument runs, it is unclear how a declaratory judgment can redress the alleged wrong. However, we conclude that the alleged injury would be redressed through the cancellation of the state judgment and the setting aside of the conveyances. Although it may be not yet known precisely which individuals or entities would benefit from such relief, the United States would benefit as land owner and trustee. Thus, Tacoma’s redressability argument fails. We hold that the United States has standing to proceed in this action.

B. Validity of the Conveyances

Condemnations of allotted lands for public purposes are governed by 25 U.S.C. § 357, which provides:

Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.

While § 357 appears to give a broad power of condemnation to Tacoma, the Supreme Court has interpreted the provision narrowly. In Minnesota v. United States, 305 U.S. 382, 386, 59 S.Ct. 292, 83 L.Ed. 235 (1939), the Supreme Court held that, under § 357, “[t]he United States is an indispensable party defendant to ... condemnation proceedings [regarding trust allotments]. A proceeding against property in which the United States has an interest is a suit against the United States.” (citations omitted). Holding that the state court in which the suit was initially brought lacked jurisdiction, the Court noted that § 357 “contains no permission to sue in the court of a state.” Id. at 389, 59 S.Ct. 292. The Court further explained that “[tjhere are persuasive reasons why [§ 357] should not be construed as authorizing a suit in a state court” and that “[t]he judicial determination of controversies concerning such lands has been commonly committed exclusively to federal courts.” Id. (footnote omitted); see also United States v. United States Fid. & Guar. Co., 309 U.S. 506, 512-14, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (holding that a Missouri court acted without jurisdiction and that its judgment, purporting to adjudicate a cross-claim against the United States and a federally recognized Indian tribe without a waiver of sovereign immunity, was void).

Minnesota is particularly relevant, because two of the allotments that Tacoma purported to condemn were held in trust by the United States, as were the allotments in Minnesota; the remaining three, although held in fee by individual Indians, were subject to restraints on alienation and reversionary interests in the United States. It has long been settled that those two types of allotments are to be treated identically as to Congressional control and limitations on alienability. See United States v. Ramsey, 271 U.S. 467, 470-71, 46 S.Ct. 559, 70 L.Ed. 1039 (1926). Moreover, Minnesota’s holding regarding trust allotments expressly relied on earlier holdings regarding allotments in which the United States held a reversionary interest. Minnesota, 305 U.S. at 386 n. 1, 59 S.Ct. 292. As indicated in Minnesota, those earlier holdings were similarly strict in their requirement that the United States be joined in any court proceedings adjudicating the rights to allotted land:

In the case of patents in fee with restraints on alienation it is established that an alienation of the Indian’s interest in the lands by judicial decision in a suit to which the United States is not a party has no binding effect but that the United States may sue to cancel the judgment and set aside the conveyance made pursuant thereto.

Id. (citing Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259 (1924); Privett v. United States, 256 U.S. 201, 41 S.Ct. 455, 65 L.Ed. 889 (1921); Bowling & Miami Inv. Co. v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080 (1914)).

Although Minnesota was issued after the 1921 condemnation proceedings, it interpreted a statute that came into effect in 1901, two decades before the condemnation proceedings. Minnesota’s interpretation of § 357 is thus properly considered to be binding as to all attempted condemnations of allotted lands governed by § 357, regardless of whether the condemnation proceedings predate or postdate the decision in Minnesota:

When [the Supreme Court] applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the ] announcement of the rule.

Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (emphasis added).

Moreover, the Supreme Court’s interpretation of 25 U.S.C. § 357 in Minnesota cannot be considered a “change” of operative law. The theory of a judicial interpretation of a statute is that the interpretation gives the meaning of the statute from its inception, and does not merely give an interpretation to be used from the date of the decision. Rivers v. Roadway Express, 511 U.S. 298, 114 S.Ct. 1510, 128 (1994). As was explained by the Supreme Court in Rivers, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Id. at 312-313, 114 S.Ct. 1510. In a footnote attached to the above statement of rule, the Court elaborated:

when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. In statutory cases the Court has no authority to depart from the congressional command setting the effective date of a law that it has enacted.

Id. at 313 n. 12, 114 S.Ct. 1510.⁵

In sum, Minnesota and its authoritative construction of section 357 control. The superior court in Funk lacked jurisdiction to condemn the five Indian allotments in which the United States continued to hold a valid property interest, and the proceedings are therefore void. No subsequent approval or ratification by federal officials could remedy the underlying jurisdictional problem, United States Fid. & Guar. Co., 309 U.S. at 513, 60 S.Ct. 653, and the federal officials who purported to ratify the court’s decision lacked the authority independently to alienate the allotments. See United States v. Clarke, 445 U.S. 253, 254, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980) (holding that “only in ... a formal judicial proceeding may [allotted] lands such as this be acquired” by a city or state for public use). Under settled law, we must affirm the correct decision of the district court and conclude that the 1921 condemnation proceedings were without effect and conveyed no interest to Tacoma.

Here, there can be no argument that equitable estoppel bars the United States’ action because, when the government acts as trustee for an Indian tribe, it is not at all subject to that defense. See, e.g., United States v. Ahtanwn Irrigation Dist., 236 F.2d 321, 334 (9th Cir.1956); see also Cramer v. United States, 261 U.S. 219, 234, 43 S.Ct. 342, 67 L.Ed. 622 (1923) (holding that, in suit by United States to set aside a land patent of Indian-occupied land granted to a non-Indian, the government could not be estopped from bringing the suit on behalf of the Indians in possession by earlier, unlawful “act[s] or declaration[s] of its officers or agents”); Cato v. United States, 70 F.3d 1103, 1108 (9th Cir.1995) (noting “the well-established rule that a suit by the United States as trustee on behalf of an Indian tribe is not subject to state delay-based defenses”).

Ill

Because we are bound by Minnesota, we hold that the conveyances of the five allotments were invalid. We affirm summary judgment to the United States.

AFFIRMED.

1 . The project includes two dams. Portions of the project are on the Skokomish Indian Reservation, including Powerhouse No. 2, at the north end of the reservation. Some transmission lines from Powerhouse No. 2 to Tacoma go across the five Skokomish allotments here at issue.

2 . Communally held tribal land was allotted pursuant to a Congressional policy of assimilation that began in the 1880s and extended until 1928. See David H. Getches, et al., Federal Indian Law: Cases and Materials, 190-91, 215 (3d ed.1993); see also United States v. Arenas, 158 F.2d 730, 733 (9th Cir.1946). Congress implemented this policy through several allotment acts. See Getches, supra, at 190-98. Some portions of the Sko-komish reservation were allotted under the Tribe’s treaty (the Treaty of Point No Point), and other portions were allotted under the General Allotment Act of 1887, 25 U.S.C. §§ 331-34, 341-42, 348-49, 354, and 381, many sections of which have been subsequently repealed.

3 . In 1963, the FPC determined that its licensing authority encompassed the entire project. See Pac. Gas & Elec., 29 F.P.C. 1265, 1266, 1963 WL 4558 (1963).

4 . The Federal Power Act defines reservations as "national forests, tribal lands embraced within Indian reservations, military reservations, and other land and interests in lands owned by the United States, and withdrawn, reserved or withheld from private appropriation and disposal under the public land laws.” 16 U.S.C. § 796(2).

5 . The dissent incorrectly relies on a dictum in United. States v. Estate of Donnelly, 397 U.S. 286, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970), to argue that Minnesota cannot be applied retroactively here, on the theory advanced by Tacoma that it “justifiably relied” on the federal authorities’ statements that the transfers were permissible. In Donnelly, the government filed but did not enforce a tax lien against Donnelly's property, using a procedure that had been deemed impermissible under the Sixth Circuit's interpretation of the relevant federal statute. Seventeen years after the Sixth Circuit decision, and one year after Donnelly sold the property, the Supreme Court rejected the Sixth Circuit's view in an unrelated case. The government then sought to enforce the lien against the purchaser of Donnelly's property. In Donnelly, the Supreme Court held that its interpretation of the statute applied retroactively, and that there was no "justified reliance” on the Sixth Circuit’s view by the purchaser of the property. Id. at 295, 90 S.Ct. 1033. The Court said that the Sixth Circuit’s ruling did not provide the "justified reliance” necessary to bar the retroactive application of the Supreme Court's interpretation of the statute. The Court added, "In rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute ... but this is not such a case.” Id. (emphasis added) (citation omitted). Similarly, the case before us is not such a case and, as in Donnelly, the justifiable reliance theory should be rejected and the general rule followed to apply statutory interpretation to events predating the interpretation.