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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Foster v State Department of Transportation (11/16/2001) sp-5504

Foster v State Department of Transportation (11/16/2001) sp-5504

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

EVELYNN C. FOSTER,            )
                              )Supreme Court No. S-9720
             Appellant,       )
                              )Superior Court No. 3AN-99-8850 CI
     v.                       )    
                              )    O P I N I O N
STATE OF ALASKA, DEPARTMENT   )    
OF TRANSPORTATION,            )    [No. 5504 - November 16, 2001]
                              )
             Appellee.        )
______________________________)

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Peter A. Michalski,
Judge.

          Appearances:  Richard A. Weinig, Pletcher,
          Weinig, Fisher & Dennis, Anchorage, for
Appellant.  E. John Athens, Jr. and Paul R. Lyle, Assistant
Attorneys General, Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.  

          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice.

I.   INTRODUCTION
          The superior court dismissed for lack of subject matter
jurisdiction Evelynn Foster's trespass claim against the State of
Alaska. [Fn. 1]  Because adjudicating Foster's claim would have
required the superior court to determine the scope of an easement
on Foster's Native allotment, and because state courts lack
jurisdiction to adjudicate the ownership or right to possession of
Native allotment land, we affirm the dismissal of Foster's claim.
II.  FACTS AND PROCEEDINGS
          In 1961 the United States Bureau of Land Management (BLM)
granted the State of Alaska a material site right-of-way to a 64.39
acre square-shaped parcel of land near Little Honolulu Creek.  In
1962 the BLM granted the state a right-of-way to a strip of land
near the material site for construction of the George Parks
Highway. [Fn. 2]  BLM amended this grant in 1969 to include a
slightly different section of land. [Fn. 3]  The Parks Highway was
constructed on the amended right-of-way between 1969 and 1971.
          In April 1972 Evelynn Foster applied for a Native
allotment under the Allotment Act, [Fn. 4] which "allowed Alaska
Natives to apply for land that they had used for certain specified
purposes for at least five years." [Fn. 5]  Foster sought
approximately 120 acres of unsurveyed land near Little Honolulu
Creek, claiming seasonal use and occupancy of the land beginning in
August 1964.  The BLM granted Foster's application in December
1979. [Fn. 6]  A 1983 survey of Foster's allotment revealed that
parts of the 1961 material site right-of-way, the 1962 Parks
Highway right-of-way, and the 1969 amended Parks Highway right-of-
way were located within Foster's allotment.
          In March 1989 the BLM issued a decision confirming its
1979 approval of Foster's allotment, and stating that the allotment
would be subject only to the 1961 material site right-of-way, the
1962 Parks Highway right-of-way, and a right-of-way for the Alaska
Railroad.  In April 1989 the state requested that the BLM make
Foster's allotment subject to the 1969 amended right-of-way grant,
on which the Parks Highway was constructed.  The BLM denied the
state's request, explaining that Foster's interest in the allotment
related back to 1964, when she began to use and occupy the
allotment, and "took precedence over intervening applications filed
subsequent to the commencement of her use and occupancy."  The
state appealed the BLM decision to the Interior Board of Land
Appeals (IBLA), which affirmed. [Fn. 7]  
          The state then filed a complaint in United States
District Court, seeking judicial review of the IBLA's decision.
[Fn. 8]  The district court dismissed the state's complaint,
concluding that it lacked subject matter jurisdiction over the
action, because the  United States, an indispensable party to the
action, had sovereign immunity under 28 U.S.C. sec. 2409a (the
Quiet
Title Act). [Fn. 9]  The United States Court of Appeals for the
Ninth Circuit affirmed, [Fn. 10] and the United States Supreme
Court denied certiorari. [Fn. 11]  
          The United States issued Foster an allotment certificate
in August 1998, making Foster's allotment subject to the 1961
material site right-of-way, the 1962 Parks Highway right-of-way,
and the Alaska Railroad right-of-way.
          In August 1999 Foster filed a superior court complaint
against the state for inverse condemnation and trespass, seeking
damages, ejectment, and just compensation. [Fn. 12]  The superior
court dismissed Foster's complaint for lack of subject matter
jurisdiction. Foster appeals.
III. DISCUSSION
     A.   Standard of Review
          We review de novo a dismissal for lack of subject matter
jurisdiction. [Fn. 13]  We review attorney's fees awards for abuse
of discretion, "which exists if an award is arbitrary, capricious,
manifestly unreasonable, or improperly motivated." [Fn. 14]
     B.   It Was Not Error to Dismiss Foster's Trespass Claim for
Lack of Subject Matter Jurisdiction.
          Specified states, including Alaska, are granted
jurisdiction by 28 U.S.C. sec. 1360(a) "over civil and criminal
actions in Indian territory and involving Indians." [Fn. 15]  But
sec. 1360(b) reserves for the federal courts jurisdiction over
questions involving the ownership or right to possession of
property held in trust by the United States or subject to a
restriction against alienation imposed by the United States. [Fn.
16]  Hence, we have held that Alaska courts lack jurisdiction to
decide claims involving the ownership or right to possession of
Native allotment land. [Fn. 17]
          In Heffle v. State, [Fn. 18] Alyeska Pipeline Service
Company, acting as an agent for the State of Alaska, obtained from
the United States a right-of-way for constructing the Haul Road.
[Fn. 19]  The defendants, claiming to represent a Native allottee
across whose allotment the right-of-way extended, constructed a
barricade across the Haul Road and attempted to charge road use
tolls to truck drivers using the road. [Fn. 20]  The state moved
for a preliminary injunction to prevent interference with a public
highway. [Fn. 21]  After the superior court entered an injunction,
we vacated the injunction and remanded to the superior court with
instructions to dismiss the state's action for lack of subject
matter jurisdiction. [Fn. 22]  We recognized that under sec.
1360(b),
state courts lack jurisdiction to adjudicate disputes involving the
ownership or right to possession of property, such as Native
allotments, held in trust by the United States or subject to a
restriction against alienation imposed by the United States. [Fn.
23]  We also noted that "to reach the conclusion that an injunction
is proper in this controversy, the ownership of and interests in
the easement which crosses [the defendant's] Native allotment must
be adjudicated." [Fn. 24]
          Foster contends that Heffle is distinguishable, because
in that case "there had been no prior adjudication of the competing
rights of the State and of [the allottee]." By contrast, Foster
argues that "all disputes of title and possession between Foster
and the State have been previously adjudicated" by the IBLA. 
Foster further argues that the IBLA's decision must be accorded
preclusive effect under the doctrines of full faith and credit and
collateral estoppel.  Therefore, she concludes that her claims do
not require the superior court to "adjudicate" the extent of her
possessory interest in her Native allotment.
          We assume for purposes of discussion that Foster
correctly argues that the IBLA's decision must be given preclusive
effect under the doctrines of full faith and credit and collateral
estoppel, and that doing so would not be an impermissible
"adjudication" of Foster's ownership or right to possession of her
allotment.  But we hold that Alaska state courts nevertheless lack
subject matter jurisdiction to decide Foster's trespass claim.  The
1969 amended right-of-way, upon which the Parks Highway was
constructed, lies within the 1961 material site right-of-way. 
Because the IBLA's decision did not address the scope of the
state's 1961 material site right-of-way, and because it is
predictable that the state would argue in defense to Foster's
trespass claim that construction of the Parks Highway was a
permitted use of the 1961 material site right-of-way, the superior
court would have to resolve competing interests to Native allotment
land.  As in Heffle, the superior court would have to determine the
scope of an easement crossing a Native allotment. [Fn. 25]  We
therefore hold that it was not error to dismiss Foster's trespass
claim for lack of subject matter jurisdiction.
     C.   Attorney's Fees and Costs
          Foster argues that it was an abuse of discretion to award
costs and attorney's fees to the state under Alaska Civil Rules 79
and 82, given the superior court's conclusion that it lacked
jurisdiction to adjudicate Foster's complaint.  Foster cites cases
from other jurisdictions holding that a court may not award
attorney's fees and costs if it lacks jurisdiction over an action.
[Fn. 26]  But in Berry v. Ketchikan Pub. Utils., we awarded the
appellee costs and attorney's fees under Alaska Appellate Rule
508(e), even though we held that Alaska courts lacked jurisdiction
to adjudicate the appellant's claims. [Fn. 27]  Similarly, we hold
that the court could award the state costs and attorney's fees
under Civil Rules 79 and 82, even after it concluded that it lacked
jurisdiction over Foster's claims. 
          Invoking the Rule 82(b)(3) factors, Foster argues that
the court should have awarded only nominal attorney's fees.  We
disagree.  Because the attorney's fees award was not "arbitrary,
capricious, manifestly unreasonable, or improperly motivated," [Fn.
28] we affirm it.
IV.  CONCLUSION
          For these reasons, we AFFIRM the superior court's
decision in all respects.


                            FOOTNOTES


Footnote 1:

     The record contains inconsistent spellings of appellant's
first name.  The Native allotment at issue here was granted to
"Evelyn C. Foster," while the order appealed from and appellant's
submissions to this court refer to "Evelynn C. Foster."  We adopt
the latter spelling.  


Footnote 2:

     See Alaska v. Babbitt, 75 F.3d 449, 450-51 (9th Cir. 1996).


Footnote 3:

     See id. at 450.  


Footnote 4:

     43 U.S.C. sec.sec. 270-1 to 270-3 (1970) (repealed 1971).  


Footnote 5:

     Babbitt, 75 F.3d at 451 (citing 43 U.S.C. sec.sec. 270-1, 270-
3
(1970) (repealed 1971)).  The decision of the Interior Bureau of
Land Appeals in Alaska, Dep't of Transp. & Pub. Facilities
(Foster), 125 IBLA 291, 292 (1993), states that Foster applied for
a Native allotment on April 17, 1972. 


Footnote 6:

     See id. 


Footnote 7:

     In Alaska, Dep't of Transp. & Pub. Facilities (Goodlataw), 140
IBLA 205 (1997), the IBLA reevaluated the legal effect that a prior
right-of-way has on a subsequent Native allotment.  The IBLA there
held that where an allottee's use and occupancy of land begins
after a right-of-way grant, the use and occupancy is not "under
color of law," and the concept of relation back cannot save the
allotment, because "the qualifying Native use and occupancy must be
under color of law."  See id. at 214-15; see also Alaska v.
Babbitt, 182 F.3d 672, 676 (9th Cir. 1999); Alaska v. Norton, No.
A94-0301-CV, at 9 (D. Alaska Apr. 18, 2001).


Footnote 8:

     See Babbitt, 75 F.3d at 451. 


Footnote 9:

     See id.


Footnote 10:

     See id. at 454.


Footnote 11:

     See Alaska v. Babbitt, 519 U.S. 818 (1996).


Footnote 12:

     Foster conceded in the superior court that her inverse
condemnation claim was barred by United States v. Clarke, 445 U.S.
253, 254-59 (1980) (holding that Native allotment land may be
condemned only by initiating formal condemnation proceedings and
not by inverse condemnation).


Footnote 13:

     See Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 925 P.2d 246,
248 (Alaska 1996).


Footnote 14:

     Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001) (citations
omitted).


Footnote 15:

     Heffle v. State, 633 P.2d 264, 268 (Alaska 1981).


Footnote 16:

     28 U.S.C. sec. 1360(b) provides in relevant part:  "Nothing in
this section . . . shall confer jurisdiction upon the State to
adjudicate, in probate proceedings or otherwise, the ownership or
right to possession of [property held in trust by the United States
or subject to a restriction against alienation imposed by the
United States] or any interest therein."


Footnote 17:

     See Foster v. Foster, 883 P.2d 397, 401 (Alaska 1994); Heffle,
633 P.2d at 268-69.  The United States is the fee owner of a Native
allotment and holds the land in trust for the allottee.  See
Minnesota v. United States, 305 U.S. 382, 386 (1939).


Footnote 18:

     633 P.2d 264 (Alaska 1981).


Footnote 19:

     See id. at 266.


Footnote 20:

     See id.


Footnote 21:

     See id.


Footnote 22:

     See id. at 269.


Footnote 23:

     See id.


Footnote 24:

     Id.; see also Alaska, Dep't of Pub. Works v. Agli, 472 F.
Supp. 70, 73 (D. Alaska 1979) (holding that state courts cannot
adjudicate "an equitable interest in a Native allotment in a state
quiet title, ejectment or abuse of process action"); Boisclair v.
Superior Court, 801 P.2d 305, 312 (Cal. 1990) ("[I]n order for
section 1360(b)'s jurisdictional preclusion to operate and its
protective purpose to be fulfilled, the threshold question must be
whether one possible outcome of the litigation is the determination
that the disputed property is in fact Indian trust land.  If that
outcome is possible, then a state court is barred from assuming
jurisdiction of the case.").  


Footnote 25:

     See Heffle, 633 P.2d at 269.


Footnote 26:

     See, e.g., Martin v. Secretary of Health & Human Servs., 62
F.3d 1403, 1407 (Fed. Cir. 1995) ("Because the special master had
no jurisdiction over the petition, there was no jurisdiction over
the request for attorneys' fees and costs."); Carpenter v. Discount
Motors, Inc., 652 S.W.2d 716, 718 (Mo. App. 1983) ("There having
been a lack of jurisdiction over the subject matter, it necessarily
follows that the trial court committed no error in failing to
render a judgment for attorney fees.").


Footnote 27:

     727 P.2d 762, 763-65 (Alaska 1986).


Footnote 28:

     Kellis, 20 P.3d at 1113 (citations omitted).