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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. State (4/27/2012) sp-6668

Smith v. State (4/27/2012) sp-6668

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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SHERMAN C. "RED" SMITH,                       ) 

                                              )       Supreme Court No. S-14222 

                       Appellant,             ) 

                                              )       Superior Court No. 3KN-10-00836 CI 

        v.                                    ) 

                                              )       O P I N I O N 

STATE OF ALASKA, and                          ) 

GOVERNOR SEAN PARNELL,                        )       No. 6668 - April 27, 2012 

COMMISSIONER OF                               ) 

DEPARTMENT OF NATURAL                         ) 

RESOURCES THOMAS IRWIN, and                   )

DIRECTOR OF DEPARTMENT OF                     )


MYLIUS, Individually,                         )


                       Appellees.             )


               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Kenai, Peter G. Ashman, Judge pro tem. 

               Appearances:      Sherman     C.  "Red"    Smith,   pro  se,  Cooper 

               Landing,     Appellant.    Lance    B.  Nelson,    Senior   Assistant 

               Attorney General, Anchorage, and John J. Burns, Attorney 

               General, Juneau, for Appellees. 

               Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, 

               Justices. [Christen, Justice, not participating.] 

               FABE, Justice. 

----------------------- Page 2-----------------------


                Sherman "Red" Smith built and operated a sawmill on 14 acres of land 

under a special-use permit from the U.S. Forest Service.             He alleges that the State of 

Alaska acquired title to the land and conveyed it to a third party without acknowledging 

Smith's claim or compensating him for his improvements. The last disputed conveyance 

of the land took place in 1983.       The superior court dismissed Smith's claim, finding it 

to be time-barred under any applicable statute of limitations.            The superior court also 

ruled in favor of the State on two alternative grounds: first, concluding that sovereign 

immunity bars fraud actions against the State and second, determining that res judicata 

bars the relitigation of a claim the superior court previously dismissed in 2007.             Smith 

appeals, arguing that statutes of limitations cannot bar claims brought for the vindication 

of constitutional rights. Because statutes of limitations do apply to constitutional claims, 

and because Smith has not alleged harm amounting to a continuing violation, we affirm 

the   superior   court's   dismissal   of   Smith's   claim   as   time-barred. We   also   affirm   the 

superior court's alternative finding that the 2007 dismissal of Smith's previous claim 

bars his current action. 


        A.      Facts 

                Sherman Smith received a permit from the U.S. Forest Service in 1959 to 

operate a sawmill on approximately 14 acres of land near Cooper Landing.  The Forest 

Service later explained that it granted Smith the permit in order to facilitate the salvage 

of timber from a recent fire in the area.        After receiving the permit, Smith installed a 

sawmill, improved access to the site, and cleared and graveled about five acres of the 

land.  From 1962 to 1964 Smith leased the land to a sawmill operator who, as part of his 

lease payments to Smith, built a water well, wastewater system, shed, and house. 

                                                 -2-                                           6668

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                The     Forest    Service    temporarily     shut    down    Smith's     operations     in 

September 1964, alleging that Smith's compliance with the terms of his permit was "far 

from satisfactory."     In February 1965 the Forest Service informed Smith in a letter that 

the scope of his sawmill permit would be revised.               The letter stated that because the 

original   purpose   of   the   permit   -   to   remove   fire-killed   timber   -   had   largely   been 

accomplished, the permit for Smith's activities would be changed from a "free use to a 

charge basis" effective January 1, 1966, and the covered land would be reduced to "the 

land actually needed for [Smith's] operation." 

                Smith replied to the Forest Service protesting its proposed changes to his 

permit and requesting title to the sawmill site.  The Forest Service responded to Smith's 

concerns   in   a   March   1965     letter. This   second   letter   confirmed   the   permit   area's 

reduction in size from approximately 14 acres to 4.66 acres, but it also noted that "[t]he 

size of the permit area may be increased at any time after your mill is in full operation 

and a need for this land can be clearly demonstrated."  The Forest Service further stated 

that Smith had remedied many but not all of the issues surrounding his noncompliance 

with the permit, and it informed Smith that if he did not address the remaining issues, his 

mill would be shut down permanently by April 1, 1965. 

                In the March 1965 letter, the Forest Service also declined to recommend 

that Smith be granted title to the land. The Forest Service explained that its decision was 

based upon the State of Alaska's need to "select land for the expansion of communities." 

Specifically, the letter noted that the State was expected to apply for a "selection area" 

at Cooper Landing that was to include Smith's sawmill site.  The Forest Service stated, 

however, that after the State selected the area, Smith would have "an   opportunity to 

purchase the site of [his] sawmill operations." 

                The State of Alaska, Department of Natural Resources (DNR) did apply to 

select a 3,000-acre parcel of land at Cooper Landing - including Smith's permit area - 

                                                   -3-                                             6668

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from the federal government on December 29, 1967.              In the application to the U.S. 

Bureau of Land Management, the DNR's acting director stated:              "[T]o the best of my 

knowledge and belief, the land is unoccupied, unimproved, and unappropriated by any 

person claiming the land other than the applicant." 

                Ten years later, in November 1977, Smith filed an application for a trade 

and manufacturing site for the 14 acres of land he used to operate his sawmill.  The 

Bureau of Land Management rejected Smith's application in May 1978.                 The State's 

selection of approximately 3,000 acres of land at Cooper Landing was also tentatively 

approved in May 1978, but because the rejection of Smith's application for a trade and 

manufacturing site had not yet been approved by the Interior Board of Land Appeals, the 

grant to the State excluded the 14 disputed acres.       The Interior Board of Land Appeals 

affirmed the rejection of Smith's application in August 1979.          In November 1979 the 

Bureau of Land Management tentatively approved the disputed 14 acres for acquisition 

by   the  State.  In   the  letter  informing   DNR    of  its  decision,  the  Bureau   of  Land 

Management noted that the 14 acres in question were "not known to be occupied or 

appropriated under the public land laws." 

               After the State acquired the land, it transferred 5.65 acres - which Smith 

claims contained most of his improvements - to the Cooper Landing Community Club. 

The transfer took place on October 21, 1983.       The deed to the community club provided 

that "[t]he lands contained herein shall remain in perpetuity with and for the benefit of 

the Cooper Landing Community." 

        B.     Proceedings 

               Smith filed a claim similar to the current action in the superior court at 

Kenai in 2006.     Among other claims, Smith asserted in 2006 that the State took the 14- 

acre   sawmill   site  "without   due  process   and  just   compensation"    and  "fraudulently 

patented" 5.65 acres to Cooper Landing without acknowledging Smith's claim to the 

                                               -4-                                          6668

----------------------- Page 5-----------------------

land or compensating him for his improvements.   Smith named the State as a defendant 

along with several state government offices and individual officials.                He sought title to 

the land so that he could in turn transfer it "legally" to Cooper Landing.                  Smith also 

requested damages including the "appraised value of the [improvements] he made . . . 

[to] operate his sawmill."   The superior court dismissed Smith's claim because it did not 

"survive any applicable statutes of limitations." 

                 Smith   filed   his   present   claim   on   August   17,   2010,   naming   the   State, 

Governor Sean Parnell, and two DNR officials as defendants. He argued that in its 1967 

application for selection of lands and its subsequent conveyance to Cooper Landing, the 

State   fraudulently   denied   knowledge   of   Smith's   improvements   to   the   land.        Smith 

maintained that, contrary to the takings clauses of the state and federal constitutions, he 

was   never   compensated   for   the   improvements   he   made   to   the   land.      He   requested 

declaratory judgment of his interest in the land and a jury trial to determine the monetary 

value of his improvements. 

                The State moved to dismiss Smith's complaint, maintaining that his action 

was barred under the doctrines of res judicata, the applicable statutes of limitations, and 

sovereign immunity under AS 09.50.250.               The State noted that Smith's complaint did 

not allege any specific wrongdoing on the part of the individually named defendants. 

The parties also filed cross-motions for summary judgment. 

                The superior court granted the State's motions to dismiss and for summary 

judgment on January 12, 2011.          The superior court concluded that Smith's action was 

barred     by   the  ten-year    statute  of   limitations   for  the   recovery    of   real  property, 

AS 09.10.030(a), and by sovereign immunity under AS 09.50.250(3), which provides 

that the State cannot be sued in a tort or contract action arising from "misrepresentation 

[or] deceit."  The superior court granted summary judgment to the State, concluding that 

res judicata barred Smith from relitigating claims previously dismissed in 2007. 

                                                   -5-                                             6668

----------------------- Page 6-----------------------

                Smith moved for reconsideration, arguing that neither AS 09.10.030(a) nor 

AS   09.50.250(3)   could   "overturn[]   or   deny"   rights   granted   by   the   state   and   federal 

constitutions.  The superior court reaffirmed its dismissal of Smith's case on February 1, 

2011.    In its order on Smith's motion, the superior court explained that all civil suits, 

including constitutional claims, are subject to statutes of limitations unless the plaintiff 

can    prove   a  continuing    violation    of  his  rights.  Citing    our   decision   in  Krause   v. 

Matanuska-Susitna   Borough ,1         the   superior   court   ruled   that   Smith's   claim   stemmed 

directly from "the original taking of the Cooper Landing property for public use" and 

that no violation continued past that point. 

                Smith appeals, again contending that statutes of limitations do not apply to 

constitutional claims.   He briefly addresses the State's arguments regarding res judicata 

and sovereign immunity in his reply brief.   He also waives all claims against individual 

state officials, leaving the State as the only remaining defendant. 


                We review grants of motions to dismiss and grants of summary judgment 

de novo, "draw[ing] all factual inferences in favor of, and view[ing] the facts in the light 

most favorable to, the party against whom summary judgment was granted."2  "We will 

affirm a grant of summary judgment if there are no genuine issues of material fact and 

the prevailing party was entitled to judgment as a matter of law."3 

        1       229 P.3d 168, 171-72 (Alaska 2010). 

        2       Interior   Cabaret,   Hotel,   Rest.   &   Retailers   Ass'n   v.   Fairbanks   N.   Star 

Borough , 135 P.3d 1000, 1002 (Alaska 2006) (internal footnotes omitted). 

        3       Cragle   v.   Gray,   206   P.3d   446,   449   (Alaska   2009)   (citing Rockstad   v. 

Erikson , 113 P.3d 1215, 1219 (Alaska 2005)). 

                                                   -6-                                             6668

----------------------- Page 7-----------------------

                We     apply   our   independent   judgment   when        interpreting    and  applying 

statutes of limitations.4    "A trial court's determination about which statute of limitations 

applies is a question of law."5        Whether res judicata applies is also a question of law.6 

Questions of law are reviewed de novo, "adopting the rule of law that is most persuasive 

in light of precedent, reason, and policy."7 


        A.      Smith's Claim Is Barred By Any Applicable Statute Of Limitations. 

                The     superior    court   characterized     Smith's     claim   as   one   of  inverse 

condemnation        of  real  property    by  the   State,  governed     by   the  ten-year   statute   of 

limitations for recovery of real property found in AS 09.10.030(a).                The superior court 

found   that   Smith's   claim   accrued   when   the   State   took   title   to   Smith's   sawmill   site. 

Because that alleged taking occurred more than ten years before Smith brought this 

action, the superior court determined that the action was time-barred.8             On appeal, Smith 

argues     that  there   is  no   statute  of   limitations   on   constitutional     claims   and    that 

AS 09.10.030(a), as state law, cannot "trump" the state and federal constitutions.  But 

        4       Id. (citing Fernandes v. Portwine , 56 P.3d 1, 4 (Alaska 2002)). 

        5       Id. (citing Sengupta v. Wickwire, 124 P.3d 748, 752 (Alaska 2005)). 

        6       McElroy v. Kennedy , 74 P.3d 903, 906 (Alaska 2003). 

        7       Kohlhaas   v.   State,   Office   of   Lieutenant   Governor ,   147   P.3d   714,   717 

(Alaska 2006) (citing Alaska Action Ctr., Inc. v. Municipality of Anchorage , 84 P.3d 989, 

991 (Alaska 2004)). 

        8       The superior court stated that the alleged injury occurred when the State 

"took title to the land in 1984."      The record suggests that the State had acquired title to 

the land by 1983, when it conveyed the land to the Cooper Landing Community Club. 

The exact dates are inconsequential, as the transfers occurred at least 25 years before 

Smith brought his action. 

                                                   -7-                                             6668

----------------------- Page 8-----------------------

Alaska's statutes of limitations do apply to constitutional claims generally and to Smith's 

claim in particular. 

                 All    civil  claims    are   governed      by   statutes   of   limitations.     Alaska 

Statute 09.10.010 provides that "[a] person may not commence a civil action except 

within the periods described in this chapter after the cause of action has accrued, except 

when,   in   special   cases,   a   different   limitation   is   prescribed   by   statute."   There   is   no 

exception for constitutional claims.9          We have held specifically that certain statutes of 

limitations     apply    to   claims    brought     under    the   takings    clauses    of   the   Alaska 

Constitution.10     Smith's claim is not exempt from the limitations prescribed by law. 

                    The    superior    court   characterized     Smith's    claim    as  one   of  inverse 

condemnation          falling    under     the    ten-year     statute    of   limitations      found     in 

AS  09.10.030(a).11       Regardless of which statute of limitations best applies, however, 

        9        See, e.g., Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1247-49 (Alaska 

2001) (concluding that free speech, due process, and equal protection claims filed under 

42 U.S.C.  1983 are governed by the two-year state statute of limitations for a personal 

injury action). 

        10       City   of  Kenai    v.  Burnett,    860   P.2d   1233,    1240    n.13   (Alaska    1993) 

(reaffirming that inverse condemnation actions are subject to state statutes of limitations 

for adverse possession or ejectment, whichever applies); see generally 27 AM . JUR . 2D 

Eminent Domain   794 (2011) ("[S]ince public policy requires the speedy resolution" 

of eminent domain proceedings, "it is customary [in many jurisdictions] to provide a 

much shorter period of limitations than in ordinary civil actions.") (emphasis added). 

        11       We have defined inverse condemnation as a suit for damages under the 

takings   clause   where   the   state   "invades   private   property   without   instituting   formal 

eminent domain proceedings or otherwise employs land use planning regulations which 

deprive a property owner of the 'economic advantages of ownership.' "                      Burnett , 860 

P.2d at 1238.  Smith did not own his sawmill site, but Alaska's constitution preserves a 

takings claim where the government involuntarily divests a person of improvements 

made to the land without "just compensation and by operation of law."  Alaska Const. 


                                                    -8-                                              6668

----------------------- Page 9-----------------------

Smith's claim accrued at the latest in 1983 when the State conveyed the land - 27 years 

before Smith brought this action. Thus any conceivably applicable statute of limitations 

has long since expired.12 

                Smith argues in his reply brief that the statute of limitations should be tolled 

under the continuing violations doctrine.  That doctrine "allows plaintiffs to establish an 

ongoing tort through incidents that occurred before the statute of limitations period and 

that continued into the limitations period."13        But where a plaintiff's allegations of harm 

focus "on the initial actions taken by defendants, not on a continuing course of conduct," 

we will not find a continuing violation.14  The doctrine applies not to an initial violation 

that causes alleged permanent harm, but instead to an ongoing series of incidents. 

                Smith does not allege continuing bad acts by the State.   He recognizes that 

"the land involved now serves an important public purpose" and he "supports this current 

use."   The claimed wrongdoing is the State's allegedly fraudulent selection of the land 


art. VIII,  16; see also Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 288 (Alaska 2008) 

(holding that article VIII, section 16 is "a broader conception of compensable takings" 

than    provided    for  by  the  federal   constitution).    Even     assuming    that   Smith   had   a 

compensable property interest in the   improvements he made to the sawmill site, his 

action is subject to the limitations periods for either adverse possession or ejectment, 

"whichever   applies."       Burnett ,   860   P.2d   at   1240   n.13. Under   AS   09.10.030,   the 

limitations period for ejectment is ten years.  Under AS 09.45.052, a seven-year period 

applies when, as here, the adverse possessor acquires possession "under color and claim 

of title." 

        12      The "catch-all" statute of limitations, AS 09.10.100, establishes a ten-year 

limitations period for any action not otherwise provided for. 

        13      Reich v. Cominco Alaska, Inc. , 56 P.3d 18, 26 (Alaska 2002). 

        14      Ocean Acres Ltd. P'ship v. Dare City Bd. of Health, 707 F.2d 103, 106 (4th 

Cir. 1983). 

                                                  -9-                                             6668

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in 1979 and its transfer of the land to the Cooper Landing Community Club in 1983. 

Because no alleged violation has occurred since 1983, there is no continuing violation 

here.15   As the   Sixth Circuit has noted, to hold that a taking is continuous until it is 

reversed would mean that "all takings would constitute 'continuing violations,' tolling 

the statute of limitations" and "[t]here would effectively be no statute of limitations" in 

takings cases.16     Because Smith's case is barred by any applicable statute of limitations 

and the continuing violations doctrine does not apply, we affirm the superior court's 

dismissal of Smith's claim. 

         B.	     The Superior Court's 2007 Dismissal Of Smith's Prior Claim Bars His 

                 Current Action. 

                 The superior court granted summary judgment to the State concluding that 

Smith's claim is barred by the operation of res judicata.  Specifically, the superior court 

concluded that its 2007 final judgment dismissing Smith's substantially similar prior 

complaint   operated       to  bar  this   subsequent   action.     Smith     contests   this   point   only 

summarily in his reply brief.17 

                 A   judgment   in   a   prior   action   will   bar   a   subsequent   action   if   the   prior 

judgment   was:      "(1)   a   final   judgment   on   the   merits,   (2)   from   a   court   of   competent 

jurisdiction, [and] (3) in a dispute between the same parties (or their privies) about the 

         15      See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 171-72 (Alaska 

2010)     (holding    that   when   no   action   was   alleged    after  the  approval   of   a  plat,   no 

continuing      violation    occurred     merely    because    the   plat  was   allegedly    wrongfully 

approved and recorded). 

         16      Ohio Midland, Inc. v. Ohio Dep't of Transp., 286 Fed. Appx. 905, 913 (6th 

Cir. 2008). 

         17      Smith   notes   that   res   judicata   does   not   bar   an   appeal   of   a   trial   court's 

decision, but does not address the relevance of the 2007 dismissal of his prior claim. 

                                                   -10-	                                             6668

----------------------- Page 11-----------------------

same cause of action."18      The superior court entered an order of final judgment in 2007 

dismissing Smith's claims on statute of limitation grounds and awarding attorney's fees 

and costs to the defendants.  Under Alaska Civil Rule 41(b), involuntary dismissal of a 

case upon a defendant's motion and after consideration by the court "operates as an 

adjudication upon the merits." There is no dispute that the superior court had jurisdiction 

over the matter. 

                Smith's 2006 and 2011 complaints involved substantially the same parties 

and   the   same   cause   of   action.  In   2006   Smith   named   the   State,   the   Office   of   the 

Governor, the "judicial branch," and several incumbent and former government officials 

as defendants.19     In his current action, Smith named the State, the governor, and two 

DNR officials as defendants. We have held that individual defendants newly named "by 

virtue of their status as successors of previously named defendants" are considered the 

privies for previous parties for the purpose of the res judicata analysis because they "are 

essentially placeholders for previously named defendants."20             Smith's claims against the 

governor and DNR officials were also asserted in 2006.                As we noted in DeNardo v. 

Barrans , newly added commission members sued "simply . . . in their capacity as board 

members"   representing   their   agency,   "not   alleged   to   have   committed   any   specific 

        18      Matanuska Elec. Ass'n v. Chugach Elec. Ass'n , 152 P.3d 460, 465 (Alaska 

2007) (quoting Matanuska Elec. Ass'n v. Chugach Elec. Ass'n , 99 P.3d 553, 561 n.29 

(Alaska 2004)). 

        19      In 2006 Smith named the following individual defendants: the governor, 

a   former   governor,   the   DNR   commissioner,   the   attorney   general,   a   former   attorney 

general, an assistant attorney general, and a commissioner of the Alaska Department of 


        20      DeNardo v. Barrans , 59 P.3d 266, 270 n.19 (Alaska 2002). 

                                                  -11-                                            6668

----------------------- Page 12-----------------------

wrongful acts," are not considered new parties.21             And Smith   has waived all claims 

against the individual defendants in his reply brief on appeal.   The State is therefore the 

only remaining defendant and was also named as a party in 2006. 

                The takings claim Smith asserted in 2006 is essentially the same as his 

current claim.     Smith's 2006 complaint alleged that the State's characterization of the 

land as "unoccupied" was "either deliberate fraud or careless error," that the State cannot 

"pass clear title to lands it [did] not own," and that Smith's "equitable title" to the land 

"is currently the superior title . . . until such time as 'due process and just compensation', 

under Article VIII, section 16 [of the Alaska Constitution] has been afforded to [him]." 

Smith's takings claims are substantially identical, and he is barred from relitigating a 

claim that was dismissed in 2007. 


                For the foregoing reasons, we AFFIRM the superior court's dismissal of 

Smith's claims as time-barred, and we AFFIRM the superior court's grant of summary 

judgment for the State on the ground of res judicata. 

        21      Id. 

                                                 -12-                                              6668 

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