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George v U.S.

Case No. 11-2045 (C.A. 10, Mar. 5, 2012)

Anne George wants to fence her property and, with it, corral her horse. Trouble is, the Forest Service has a road running through her land that Ms. George’s fence threatens to block. Ms. George offered to leave a gate across the road unlocked, but the Service rejected this option, arguing that the public needs unfettered access to the adjacent Gila National Forest. Instead, the Forest Service encouraged Ms. George to pen her horse with a fence running alongside its road, but she found this alternative just as unsatisfactory. The parties’ wrangling dragged on for years but led nowhere until Ms. George filed this lawsuit. In the end, however, we must rule against her. Whatever legal entitlement she might have had to build a fence across the Forest Service’s road she lost years ago thanks to an even less permeable barrier to entry: the statute of limitations.

Where did this dispute get its start and how did it wend its way to federal court? The answer begins with the Gila National Forest, just outside Silver City, New Mexico. First set aside by presidential decree in 1899, the Forest is a place of soaring peaks and rugged canyons, covering over 3 million acres and embracing what may be the first formally designated wilderness area in the country. Our dispute takes place just outside the Forest’s boundaries and traces its own roots back to 1979. It was then when the Forest Service decided to consolidate its holdings and settle (another) land dispute with a certain John S. Hamilton. As part of the deal, Mr. Hamilton agreed to give the government various other lands he owned in return for 1,000 acres next to the Forest. But with Mr. Hamilton’s new property came a hitch. The government reserved an easement across the land for its existing Forest Development Road (“FDR”) 6819, also known as Shrine Mine Road. The road was and had long been used by the public and Forest Service to enter and exit Gila. Preexisting Forest Service regulations prohibited fencing or otherwise obstructing Forest Service lands, roads, or trails, and at the time of the conveyance FDR 6819 was indeed fence-free.

The real trouble began over a quarter century later, in 2005, when Mr. Hamilton’s lot passed (through various owners) to Ms. George. Soon Ms. George set about the business of building a fence around her property, one that crossed the Forest Service’s road. The Service objected, removed the fence, and issued a citation. Undeterred, Ms. George rebuilt her fence only to have the process repeat itself — three times in all. As these things go, the dispute became increasingly testy with time. The parties exchanged letters. Ms. George erected “no trespassing” signs. The Service sent investigators. Photos were taken, evidence was amassed, neighbors were involved. Eventually, Ms. George filed suit in 2009 under the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a et seq., a provision that waives the United States’s sovereign immunity and permits claims, like this one, seeking “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. § 2409a(a). At summary judgment the district court dismissed Ms. George’s suit as time-barred — and it was right to do so.
 

 

Judge(s): Neil Gorsuch
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Government / Politics , Property
 
Circuit Court Judge(s)
Neil Gorsuch
William Holloway
Michael Murphy

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Steven Lechner Mountain States Legal Foundation
James Manley Mountain States Legal Foundation

 
Defendant Lawyer(s) Defendant Law Firm(s)
Cassandra Currie U.S. Department of Agriculture
Steve Hattenbach U.S. Department of Agriculture
Andrew Varcoe U.S. Department of Agriculture
Aaron Avila U.S. Department of Justice
Manuel Lucero U.S. Department of Justice
Ignacia Moreno U.S. Department of Justice
Robert Stockman U.S. Department of Justice

 

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documents were recorded with the state of new mexico and are thus presumably parties’ contractual exchange or the background principles of state property and it fails because a range war isn’t necessary to start the quiet title act’s agree, there must be some claim, some assertion of an adverse interest. michel, contract. reply br. at 2-9. she stresses that the forest service’s 1977 f.2d at 279; kingman reef atoll investments, l.l.c. v. united states, 541 f.3d v. or trail[s].” 36 c.f.r. §§ 261.10(a); 261.l(a) (1977); see also 261.12(e) (1977). can be no question that, at least by the time mr. hamilton engaged in the land entitlement to fence-free property and roads — and thus legally charged with service failed to maintain the road and created dangerous erosion conditions. the and long before the government did anything adverse to the plaintiff or with mr. hamilton’s new property came a hitch. the government reserved an roads, or trails, and at the time of the conveyance fdr 6819 was indeed fence- -11- 1165, 1176 (10th cir. 2010); rosette inc. v. united states, 141 f.3d 1394, 1397 later and survive. this line of argument, however, makes its first appearance in and whether callous or not, no one before us seeks to suggest that congress development road owned by the forest service. it follows from all this that mr. government acts to enforce its claim — by tearing down a fence, issuing a under 44 u.s.c. § 1507 and 28 u.s.c. § 2409a(g), anyone “subject to or affected does not reflect a callous outlook. it merely expresses the duty of all courts to new mexico. first set aside by presidential decree in 1899, the forest is a place of commerce v. bd. of governors of fed. reserve sys., 513 f.2d 164, 167 (10th land was enough to start the limitations clock running. 65 f.3d at 131. but, as given that in our constitutional order congress has (for better or worse) much no. 11-2045 triggered by the government’s claim — by its assertion of “some interest adverse” 1398; vincent murphy chevrolet co. v. united states, 766 f.2d 449, 451 (10th extent she seeks a rule that a plaintiff need not bring suit until the government register. one can be “subject to or affected by” a governmental regulation george. a problem because, just as the district court held, ms. george’s hamilton. as part of the deal, mr. hamilton agreed to give the government richison v. ernest group, inc., 634 f.3d 1123, 1128 (10th cir. 2011). we can of end, however, we must rule against her. whatever legal entitlement she might 519 u.s. 452, 461 (1997) (surveying definitions of “subject to”); 17 oxford march 5, 2012 government’s claim of right to a fence-free road as early as 1979, about thirty swapped land with the government. the qta clock thus began ticking by 1979 the problem is that what the qta gives it often proceeds to take away. agriculture, washington, d.c., with him on the brief), for defendants-appellees. land isn’t always and inherently inconsistent with private ownership of an appeal from the united states district court the forest service’s road. the service objected, removed the fence, and issued a tenth circuit chevrolet, 766 f.3d at 451. testy with time. the parties exchanged letters. ms. george erected “no rio grande silvery minnow, 599 f.3d at 1188; see also rosette, inc., 141 f.3d at terms of the qta, the statute begins running whenever a plaintiff or her michel, the government went so far as to assert that its mere claim of title to the -12- regulatory claim) even if the regulation later turns out to be utterly invalid. see, where did this dispute get its start and how did it wend its way to federal claiming a property interest (and thus legally charged with notice of that citation, or the like. as we’ve already explained, by its plain terms the qta is the interaction between the federal register and qta matters in this case washington, d.c., and cassandra casaus currie, steve hattenbach and andrew itself — three times in all. as these things go, the dispute became increasingly ms. george cites a pair of ninth circuit cases that, she says, compel us to a government’s claim to an unobstructed easement. or even when anyone who swap in 1979, he was all of those things when it came to the forest service’s peaceably coexist. to trigger the qta, the ninth circuit held and again we the federal register must be considered “sufficient to give notice of [its] right. id.; see also spirit lake, 262 f.3d at 738 (the claim “need not be clear and plaintiff’s.” knapp, 636 f.2d at 283; see also 3 oxford english dictionary 261 english dictionary 30 (2d ed. 1989) (defining “subject” as “exposed or open to; mccampbell royalty interest, inc. v. national park service, 112 f.3d 1283, 1287 all these layered responses, however, suffer from a common underlying russell ward, district ranger, and the government or in the government’s easement. and, she argues, both started building them, this argument still fails. (10th cir. 1998); knapp v. united states, 636 f.2d 279, 283 (10th cir. 1980). service; thomas vilsack, various other lands he owned in return for 1,000 acres next to the forest. but anne george wants to fence her property and, with it, corral her horse. regulations prohibited fencing or otherwise obstructing forest service lands, george’s fence threatens to block. ms. george offered to leave a gate across the environment & natural resources division, united states department of justice, -6- set about the business of building a fence around her property, one that crossed -10- national forest, relatively generous twelve years to bring suit, the trigger for starting that twelve- regulations dictate the scope of the forest service’s easement. id. unambiguous”) (quotation omitted). and in this respect our case is much like attempts to tease something more out of the ninth circuit opinions — to the easement across the land for its existing forest development road (“fdr”) 6819, to the plaintiff or her predecessor. knapp, 636 f.2d at 283; 3 oxford english owned the land before her knew. the clock started running when she or her because of regulations the secretary of agriculture published in 1977. those citation. undeterred, ms. george rebuilt her fence only to have the process repeat was amassed, neighbors were involved. eventually, ms. george filed suit in 2009 tenth circuit down any fences or taken any other actions to keep the road fence-free. and this, while the qta waives the government’s immunity and affords plaintiffs a must be prone, disposed, exposed, liable, or influenced by it. auer v. robbins, and erosion claims warranted a separate and different accrual analysis than her forester, intermountain region, pursuant to fed. r. app. p. 43(c)(2). should have known of the claim of the united states.” 28 u.s.c. § 2409a(g). so claims an interest.” 28 u.s.c. § 2409a(a). at summary judgment the district them. unfettered access to the adjacent gila national forest. instead, the forest service federal crop ins. corp. v. merrill, 332 u.s. 380, 385 (1947) (quoting rock corbin newman is substituted for harv forsgren as the current regional james m. manley (steven j. lechner with him on the briefs), mountain states anne george, free. instead and only it has to do with the statute of limitations. under the plain contents” to “a person subject to or affected by it.” 44 u.s.c. § 1507; see also affirmed. e.g., merrill, 332 u.s. at 386 (noting that “the validity of the regulation” is a at 8-11. but even straining to overlook the fact that there were no fences for the merit. where the rule otherwise, of course, the statute of limitations and merits united states court of appeals tribe v. north dakota, 262 f.3d 732, 738 (8th cir. 2001); see also knapp, 636 district court dismissed all her claims, however, reasoning that each was time- accrued in 1979 and is time-barred, her maintenance and erosion claims accrued encouraged ms. george to pen her horse with a fence running alongside its road, (5th cir. 1997) (refusing to reach question whether a regulation was legally valid problem: they confuse the merits with the time for litigating them. we in no way * limitations clock starts running as soon as the federal government publishes a under the two statutes’ plain terms. neither is it an altogether surprising rule regional forester, intermountain prone to or liable to suffer from something damaging, deleterious, or contract law. if we reached the merits, it might well be that the service’s anti- right-to-fence argument — and this, at the least, served to forfeit the point. see r. varcoe, office of the general counsel, united states department of road unlocked, but the service rejected this option, arguing that the public needs consolidate its holdings and settle (another) land dispute with a certain john s. 1977 regulations. it is undisputed that mr. hamilton knew in 1979 he was directly to the question. see rio grande silvery minnow, 599 f.3d at 1188; silver city ranger district, gila because the plaintiff subject to or affected by it failed to bring suit in time). so involved plaintiffs who owned easements running over government land. in court dismissed ms. george’s suit as time-barred — and it was right to do so. united states of america; -4- before murphy, holloway, and gorsuch, circuit judges. (d.c. no. 09-cv-00851-lfg-rhs) predecessors objectively should have known about the government’s claim to a have had to build a fence across the forest service’s road she lost years ago observe the conditions defined by congress for charging the public treasury.” diamond ring ranch, inc. v. morton, 531 f.2d 1397, 1405 (10th cir. 1976); bank country. our dispute takes place just outside the forest’s boundaries and traces trespassing” signs. the service sent investigators. photos were taken, evidence in fact, an appreciation of the “full contours” of the government’s assertion under the quiet title act (“qta”), 28 u.s.c. § 2409a et seq., a provision that supervisor, gila national forest; property claim in the federal register and a qta plaintiff or her predecessor in questions like these. -8- whether the forest service regulations are valid we don’t (and don’t need to) say. federal regulations to dictate the scope of an easement granted by private definitively asserted its claim to title. 636 f.2d at 283. records, not actions, hamilton’s lot passed (through various owners) to ms. george. soon ms. george the ninth circuit held in both cases and we agree, a government’s claim of title to subject to interpretation under the terms of that state’s laws. at the very least, dictionary at 261. “our precedent does not allow plaintiffs to wait until the court some 18 years too late to do anything about her problem. but she found this alternative just as unsatisfactory. the parties’ wrangling united states forest clerk of court sought not only a right to fence across the road. she also argued that the forest fact that people “‘must turn square corners when they deal with the government,’ endorse the government’s view that its regulations override the scope of the easement over that land. easements and servient estates can (and usually do) property. and it is undisputed that the government’s road was and is a forest united states court of appeals ms. george responds that the forest service should not be permitted to use adverse claims of the title asserted by them and the united states crystallize into because mr. hamilton objectively should have known at least by then of the it’s enough ms. george’s predecessors were legally charged with knowing of course vindicate on appeal an argument forfeited in the district court if the -7- hamilton became “subject to or affected by” the 1977 regulations claiming the real trouble began over a quarter century later, in 2005, when mr. plaintiff - appellant, well-defined and open disagreements before commencing a quiet-title action.” elisabeth a. shumaker and that leaves only one remaining issue. in her complaint, ms. george irrelevant. one can be on notice of a claim even if that claim lacks any legal 65 f.3d at 132; mcfarland, 425 f.3d at 726. far from being inconsistent with anywhere in the “national forest system” or on its “[f]orest development road[s] legal foundation, lakewood, colorado, for plaintiff-appellant. knapp itself. there we held a qta claim accrued when the plaintiffs learned of tidwell, chief of the u.s. forest instructed that (subject to exceptions not relevant here) publishing a regulation in thanks to an even less permeable barrier to entry: the statute of limitations. our court. in the district court, ms. george failed to suggest that her maintenance discretion to decide when and under what conditions to waive sovereign immunity “moved on, influenced, acted upon either physically or materially”). but there public and forest service to enter and exit gila. preexisting forest service secretary of agriculture; thomas is enough if the plaintiff or her predecessor knew or should have known of the she insists, there’s a triable question of fact regarding whether the 1977 existence of some assertion — some claim — by the government of an adverse seeking “to adjudicate a disputed title to real property in which the united states or claim isn’t even needed to start the qta’s clock. knapp, 636 f.2d at 283. it for the district of new mexico and that leaves ms. george to try a different and more difficult path. she filed separate question from whether someone is subject to or affected by it); dunn- were enough to put the plaintiffs on notice there and so they must be here. knapp, 363 f.2d at 283; rosette, inc., 141 f.3d at 1398; vincent murphy (defining “claim” as a “demand for something” or “an assertion of right to year clock running is an exceedingly light one. the qta’s limitations period -3- it is this last feature of the qta clock that poses the real problem for ms. service retained an existing and unobstructed road across his newly acquired publish something”). the merits of that claim or assertion of adverse interest are cir. 1985). 2005); michel v. united states, 65 f.3d 130, 132 (9th cir. 1995). both cases by” this claim of right was legally charged with notice of it sufficient to start the of sovereign immunity at issue in this case. its own roots back to 1979. it was then when the forest service decided to servient estate owner, allowing her to erect unlocked fences across all rights-of- -9- interest is “subject to or affected by” it. a tough rule to be sure, but unavoidable forest service to tear down before 2006 because it was only then ms. george and allow individuals to tap the public fisc. as the well worn saying goes, the -5- cir. 1975). so laying 44 u.s.c. § 1507’s publication rule beside the qta’s the government’s claim to some interest in their land by way of a record search — predecessor in interest knew or should have known of the government’s “claim,” also known as shrine mine road. the road was and had long been used by the way running through her land. our holding today has nothing to do with merits acts adversely to her interests — we reject her invitation as inconsistent with the exceeded its considerable constitutional powers when it circumscribed the waiver gorsuch, circuit judge. maintenance and erosion claims — and that is enough to seal their fate. see id. service; corbin newman,* region; kelly m. russell, forest result. but ms. george does not even attempt such a showing for her regulations prohibited anyone from “placing . . . [a] fence . . . without a permit” fence-free road. rio grande silvery minnow v. bureau of reclamation, 599 f.3d fencing regulations would have to yield to ms. george’s state law rights as a waives the united states’s sovereign immunity and permits claims, like this one, barred. ms. george now argues that, even accepting that her right-to-fence claim robert p. stockman (ignacia s. moreno, manuel lucero and aaron p. avila, disadvantageous”); 1 oxford english dictionary 212 (defining “affected” as of soaring peaks and rugged canyons, covering over 3 million acres and different conclusion — mcfarland v. norton, 425 f.3d 724, 726-27 (9th cir. trouble is, the forest service has a road running through her land that ms. she says, means that she had no duty to bring her lawsuit before then. reply br. regulations make no appearance either in the 1979 deed between mr. hamilton inquiries would collapse and involve no analytically distinct work. spirit lake appellant can show that the failure to do so would leave intact a plainly erroneous predecessor in interest, mr. hamilton, objectively should have known of the our holdings today, all this squares neatly with it. to the extent that ms. george the clock in our case started not just when ms. george first knew about the neither does the rule change when notice of a claim comes by way of the federal court? the answer begins with the gila national forest, just outside silver city, why this is so has much to do with the federal register. congress has begins running as soon as “the plaintiff or his predecessor in interest knew or 1189, 1197 (9th cir. 2008); rio grande silvery minnow, 599 f.3d at 1176-77. notice of the property claims made in those regulations — from the moment he receiving land from the forest service. it is undisputed that he knew the forest island, arkansas & louisiana r. co. v. united states, 254 u.s. 141, 143 (1920)). defendants - appellees. -2- qta clock running. to be “subject to or affected by” a regulation, of course, one a term we have held means an assertion of “some interest adverse to the plain terms of the qta and our many precedents, discussed above, speaking embracing what may be the first formally designated wilderness area in the limitations clock. the limitations period isn’t triggered only when the forest service’s property claim that ms. george seeks to contest in this case. points out that before 2006 the forest service hadn’t issued any citations or torn years before she brought suit in 2009. and this means ms. george has come to dragged on for years but led nowhere until ms. george filed this lawsuit. in the limitations provision in 28 u.s.c. § 2409a(g) tells us this much: the qta’s


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