95 Cal. Daily Op. Ser v. 7815, 95 Daily Journald.a.r. 13,423state of Alaska, Plaintiff-appellant, v. Bruce Babbitt, Secretary of the Interior; United States Ofamerica; Evelyn Foster, Defendants-appellees, 67 F.3d 864 (9th Cir. 1995)

BACKGROUND

In 1962, the Bureau of Land Management ("BLM") granted the State of Alaska ("Alaska") a right-of-way, pursuant to 23 U.S.C. § 317, for the construction of the George Parks Highway. The right-of-way grant was amended in 1969 to include a slightly different section of land.

In June 1971, Evelyn Foster applied for a Native allotment of land pursuant to the Allotment Act, 43 U.S.C. §§ 270-1 to 270-3 (1970) (repealed 1971).¹  The Allotment Act allowed Alaska natives to apply for land that they had used for certain specified purposes for at least five years. 43 U.S.C. §§ 270-1, 270-3 (1970). A section of Alaska's 1969 amended right-of-way grant runs through the parcel of land for which Foster applied. Foster's application was granted by the BLM in 1979, based on the finding that she had used the designated parcel for statutorily specified purposes since 1964.

The BLM issued another opinion in 1989 confirming its prior approval of Foster's allotment, but expressly subjecting the allotment to Alaska's original 1962 right-of-way for the George Parks Highway. The BLM reasoned that Foster's preference right to the land, which vested when she filed a valid allotment application, "related back" to 1964, the date on which she began to use and occupy the land. Thus, because Alaska had received its original right-of-way grant before Foster had begun her use of the land in 1964, Alaska's right-of-way took precedence over Foster's claim to the land under the Allotment Act. By the same reasoning, the BLM determined that Foster's preference right to the land took precedence over Alaska's other claims to the land that arose after 1964, including Alaska's 1969 amended right-of-way.

Alaska appealed the BLM's decision regarding the amended right-of-way to the Interior Board of Land Appeals ("IBLA"), which affirmed the BLM. The IBLA decision in effect voided Alaska's 1969 amended right-of-way. Alaska then filed a complaint in federal district court, seeking judicial review of the IBLA's decision. The district court dismissed the complaint, concluding that it lacked subject-matter jurisdiction over the action due to the United States' immunity from suit under the Quiet Title Act, 28 U.S.C. § 2409a ("QTA").

Alaska appeals the district court's dismissal. We have jurisdiction under 28 U.S.C. § 1291. As explained below, and primarily on the authority of Alaska v. Babbitt (Albert Allotment), 38 F.3d 1068, 1072 (9th Cir. 1994) ("Albert "), we affirm the district court's dismissal for lack of subject-matter jurisdiction.

DISCUSSION

The district court's determination regarding subject-matter jurisdiction is reviewed de novo, but the court's underlying factual findings "must be accepted unless clearly erroneous." Albert, 38 F.3d at 1072.

II. SOVEREIGN IMMUNITY UNDER THE QUIET TITLE ACT

Alaska asserts that the United States is not immune from its suit because the United States has waived its sovereign immunity under 5 U.S.C. § 702 (Administrative Procedure Act ("APA")); 28 U.S.C. § 2409a (QTA); and 43 U.S.C. § 1632(a) (Alaska National Interest Lands Conservation Act ("ANILCA")). In this type of case, however, "the waiver of sovereign immunity must be found, if at all, within the QTA." Albert, 38 F.3d at 1073.² 

Albert further compels our conclusion that the QTA's waiver of sovereign immunity does not permit Alaska's suit. The QTA's waiver expressly does not apply to "trust or restricted Indian lands." 28 U.S.C. § 2409a(a). As long as the United States has a "colorable claim" to a property interest based on that property's status as trust or restricted Indian lands, the QTA renders the government immune from suit. Albert, 38 F.3d at 1076. The facts in this case are sufficiently similar to those in Albert that we feel constrained to hold that the United States has asserted the requisite "colorable claim" to the land in question here. See id. Accordingly, the Quiet Title Act does not waive the government's immunity. United States v. Mottaz, 476 U.S. 834, 843, 106 S. Ct. 2224, 2230, 90 L. Ed. 2d 841 (1986); Albert, 38 F.3d at 1073.

III. ULTRA VIRES EXCEPTION TO SOVEREIGN IMMUNITY

If the BLM acted ultra vires in approving Foster's allotment (which resulted in cancellation of Alaska's 1969 right-of-way), then sovereign immunity will not bar Alaska's action for judicial review of the agency's decision. Albert, 38 F.3d at 1076. According to Alaska, the BLM's approval of Foster's allotment application was ultra vires because (1) the BLM allocated to Foster land that was not allocable under the Allotment Act, and (2) the BLM lacked the authority to consider Foster's application because the application was not timely filed. Neither argument was expressly raised in Albert.

An action is not ultra vires simply because it "is arguably a mistake of fact or law." United States v. Yakima Tribal Court, 806 F.2d 853, 859-60 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 107 S. Ct. 2461, 95 L. Ed. 2d 870 (1987). An action is ultra vires, and results in a divestiture of sovereign immunity, only if "an employee of the United States acts completely outside his governmental authority." Id. (emphasis added).³  We hold that the ultra vires exception does not divest the United States of sovereign immunity in this case.

Alaska's 1969 right-of-way was granted pursuant to 23 U.S.C. § 317, which provides, in part, that federal land and materials that are necessary for the construction and maintenance of highways may be "appropriated and transferred to the State highway department." 23 U.S.C. § 317(b). Alaska infers from this language that the land in question was "appropriated" to it in 1969. Alaska therefore reasons that the land was no longer available for allocation to Foster when she filed her application pursuant to 43 U.S.C. § 270-1, because section 270-1 only gives the BLM the authority to issue allotments of "vacant, unappropriated and unreserved" public land. (Emphasis added.) According to Alaska, the BLM acted outside its statutory authority by approving for allotment land that had already been "appropriated."

The BLM's reason for according Foster a right to the land, notwithstanding Alaska's 1969 right-of-way, was the agency's "relation-back doctrine." Under that doctrine, an allotment applicant's preference right to the land is deemed to relate back to the initiation of her use and occupancy. See Golden Valley Elec. Ass'n, 98 IBLA 203 (1987). As a result, Foster's preference right was deemed to relate back to 1964. As of that date, the disputed land was, in fact, "unappropriated," and 23 U.S.C. § 317(b) therefore does not preclude a 43 U.S.C. § 270-1 allotment.

Alaska's argument, at bottom, therefore must be a challenge to the relation-back doctrine itself.⁴  We sympathize with Alaska's position: It constructed a highway across land granted to it in 1969--land that, according to Alaska, bore no obvious indicia of use by Foster for three months a year for berry picking--and it is now being required to compensate Foster for its use of the land because the agency has determined, based on Foster's 1971 application, that she has a right to the land that is paramount to Alaska's. Nevertheless, Albert compels us to reject such a challenge to the relation-back doctrine. See 38 F.3d at 1076 (approving the IBLA's use of the relation-back doctrine as within the agency's statutory authority).⁵ 

Alaska also argues that the agency acted ultra vires by approving Foster's allotment application, which Alaska asserts was not timely filed. It is not clear that consideration of an untimely application would constitute ultra vires action. See Yakima Tribal Court, 806 F.2d at 860 (holding that " [a]lthough [the official] may have violated statutes and regulations regarding owner consent to right-of-way changes, those trespasses do not strip him of immunity" because his actions still were not outside his delegated power to enter reservation land and to relocate irrigation canals to serve the tribe better).

Even if we assume that such action would be ultra vires, however, we cannot find that the ultra vires exception to sovereign immunity applies on the facts of this case. Alaska has offered no substantial evidence to show that an untimely application was in fact considered in this case. Cf. Albert, 38 F.3d at 1076 & n. 7 (refusing to consider Alaska's argument that agency acted ultra vires by cancelling the State's highway rights-of-way because Alaska "failed to provide any evidence that agency officials exceeded their authority" by doing so). In fact, the evidence in this case is clearly sufficient, under IBLA precedent and agency policies, to demonstrate that Foster's application was timely filed. See, e.g., State of Alaska (Mary Sanford), 131 IBLA at 125; Ouzinkie Native Corp., 83 IBLA at 228; C.R. 31, Ex. 1, at II-3 (excerpt from BLM Alaska Handbook) .

On the basis of Albert, we reject Alaska's argument that the United States waived its immunity from suit by initiating an administrative action against the State. See 38 F.3d at 1074-75.

CONCLUSION

Although Alaska urges us to distinguish Albert, we cannot find a legally sound basis for doing so. Unless and until an en banc panel of the Ninth Circuit revisits Albert, we are bound to follow it. That means that we must hold in this case that Alaska's suit is precluded by the United States' sovereign immunity. We accordingly affirm the district court's dismissal of the case for lack of subject-matter jurisdiction.

AFFIRMED.