United States of America v. Stang

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
)
DANIEL STANG, )
) No. 3:13-cv-0190-HRH
Defendant. )
__________________________________________)
O R D E R
Motion for Summary Judgment; Motion to Dismiss
Plaintiff United States moves for summary judgment pursuant to Rule 56, Federal
Rules of Civil Procedure.1 The motion is opposed.2 Plaintiff has replied.3 The United
States moves to dismiss defendant’s counterclaim for lack of jurisdiction.4 The motion to
dismiss is opposed,5 and plaintiff has replied.6
Plaintiff, as trustee for Karen Dickson-Bahnke, contends that defendant Daniel Stang
is trespassing upon a Native allotment which Ms. Bahnke inherited from her father, Steve
Dickson.7 Dr. Stang opposes the motion for summary judgment, contending that Dickson
abandoned his claim as to a portion of the Native allotment, and that he (Dr. Stang) was
1Docket No. 22.
2Docket No. 34.
3Docket No. 47.
4Docket No. 49.
5Docket No. 54.
6Docket No. 59.
7“Stephen Dickson” in some of the relevant documents.
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entitled to notice of the survey and of the adjudication made with respect to the Dickson
Native allotment application. In his counterclaim, Dr. Stang contends that the failure to
notify him of the Dickson Native allotment proceedings constituted a violation of the Due
Process Clause of the United States Constitution.
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn
in its favor. Id. at 255. “[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the non-moving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury might return a verdict in its
favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987).
The facts material to this case, including a lengthy narrative affidavit by Dr. Stang,8
are not in dispute. On the undisputed facts set out below, plaintiff is entitled to judgment
as a matter of law; and plaintiff is entitled to judgment dismissing Dr. Stang’s counterclaim
for lack of jurisdiction.
Undisputed Facts
In the mid-1970s, Dr. Stang, his colleague Ray Lang, Steve Dickson, and Jack Titus
discussed doctors Stang and Lang acquiring a lot in Council, Alaska, from the Council
Native Corporation. Mr. Titus believed that he could, as a shareholder of the corporation,
8Docket No. 35.
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obtain a lot adjacent to his (Titus’) brother’s homesite and Steve Dickson’s homesite. Jack
Titus was willing to exchange that lot for dental work, a snow machine, and some other
personal property. On March 11, 1976, Jack Titus executed a quitclaim deed in favor of
doctors Dan Stang and Ray Lang.9 There is no evidence that this deed was ever recorded.
Steve Dickson became concerned when Titus did not receive title to the property which
Dickson and Lang were occupying.10 Steve Dickson decided to proceed with a Native
allotment application for the property in question.
Steve Dickson filed Application No. F-1050 with the Bureau of Land Management
on September 13, 1971.11 On November 14, 1990, the Bureau of Land Management
determined that the Dickson allotment had been legislatively approved.12 The Bureau of
Land Management, Alaska State Office, issued a decision on the Dickson Native allotment
application in favor of Mr. Dickson on November 14, 1990. The decision described two
parcels:
Lot 1, U.S. Survey No. 8877, Alaska, situated on the left bank
of the Niukluk River at the village of Council, Alaska.
and Lot 1, U.S. Survey No. 8979, Alaska, situated on the southerly
edge of an unnamed road in the village of Council, Alaska.[13]
9Docket No. 34-1. That deed referred to the property in question as the sixth lot
“from east to west between Main Street and cliff of river.” The court understands that the
Dickson Native allotment application and the foregoing quitclaim deed described the same
or approximately the same property.
10Clerk’s Docket No. 35, ¶ 22.
11Department of the Interior, Bureau of Land Management Decision, Docket No. 34-3
at 1: “[o]n June 13, 1968, and April 10, 1972, the Bureau of Indian Affairs (BIA) filed Native
allotment application F-1050, Parcels A and B, respectively ... on behalf of Steve Dickson.”
On June 1, 1981, the State of Alaska protested Application No. F-1050 as to Parcel B.
12Id. at 2 of 5.
13Id. at 3 of 5.
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The foregoing descriptions were based upon official surveys filed in December of 1986 and
December of 1988, respectively.14 The Bureau of Land Management issued its Certificate
of Native Allotment in favor of Dickson as to the property in question on May 20, 1991.15
The certificate provides that:
the land above-described shall be deemed the homestead of the
allottee and his heirs in perpetuity, and shall be inalienable and
nontaxable until otherwise provided by Congress or until the
Secretary of the Interior or his delegate, pursuant to the
provisions of the [Native Allotment Act] of May 17, 1906, as
amended, approves a deed of conveyance vesting in the
purchaser a complete title to the land.[16]
Neither plaintiff nor Dr. Stang has any evidence that the Secretary or his delegate ever
approved a conveyance of a portion of Lot 1, U.S.S. 8877, or Lot 1, U.S.S. 8979, to Dr. Stang.
Dr. Stang first took possession of a portion of the Dickson Native allotment in the
spring of 1976 and commenced construction of a house.17 Over the years, Dr. Stang
constructed improvements on a portion of the Dickson allotment: a house in 1976, a garage
and water well were placed on the property in 1980, and in 1984 a two-story 16' by 16'
addition was added to the house.18 A garage and barn were built in 1992; a generator
building in 1989; a tack shed in 1989; a gas shed and solar array in 2011; and fuel storage
tanks in 1992.19 Dr. Stang was in possession of a portion of the Dickson allotment for
approximately 35 years prior to the filing of plaintiff’s complaint. He had improvements
on the Native allotment when the two lots which make up the allotment were surveyed in
1986 and 1988.
14Complaint, Exhibit 2, Field Diagram A, Docket No. 1-2, a copy of which is
appended to this order.
15Docket No. 23-1.
16Id.
17Second Affidavit of Daniel Stang at 3, ¶¶ 15, 16, and 17, Docket No. 35.
18Id., page 3, ¶ 17, and page 4, ¶ 23.
19Id., page 5, ¶ 28. These improvements may have been on property other than the
Dickson allotment.
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In November of 1986 – while the Dickson allotment application was pending but
before it was approved – Dickson quitclaimed the west 115 feet of Lot 1, U.S.S. No. 8877,
to Dr. Stang.20 In paragraph 6 of plaintiff’s complaint, it is alleged that the November 10,
1986, quitclaim deed “was recorded” and, in the same paragraph, that “it was not
recorded.”21 Defendant’s amended answer is equally equivocal, for defendant “admits the
allegations of Paragraph 6 of plaintiff’s complaint.”22 This conundrum is resolved by
plaintiff’s July 31, 2012, title status report which – under the heading “encumbrance notes
(other)” – contains a notice of the existence of the November 10, 1986, quitclaim deed.
Unlike other proceeding notices which were set out as “recorded” documents, there is no
such information with respect to the November 10, 1986, quitclaim deed.23 The court finds
that the latter deed was never recorded.
The plaintiff’s title status report24 reflects the recording of two quitclaim deeds, one
on May 8, 1989, and the other on October 22, 1998. The court requested and has been
provided with copies of those deeds.25 Neither are germane to a resolution of this case.
The 1989 deed conveys a parcel of land across Council Road from the two subject lots.
Some of the buildings that Dr. Stang constructed were on this parcel; but, again, the April
1989 deed conveys property other than that involved in this case. The 1998 deed does
purport to convey the west 115 feet of Lot 1, U.S.S. 8877, from Dr. Stang’s wife to Dr. Stang.
20Opposition to Motion for Summary Judgment, Quitclaim Deed, Docket No. 34-2.
Dr. Stang believes, and it may be true, that Dickson intended that Stang take title to both
the west 115 feet of Lot 1, U.S.S. 8877, and the west 115 feet of Lot 1, U.S.S. 8979. Neither
party has produced a conveyance with respect to the west 115 feet of U.S.S. 8979; and the
court finds that Dickson’s probable intention was never documented.
21Complaint at 3, ¶ 6, Docket No. 1.
22Amended Answer and Counterclaim at 2, ¶ 6, Docket No. 16-1.
23Plaintiff’s title status report, Docket No. 23-6.
24Id.
25Docket No. 61.
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This conveyance appears to have been part of a divorce settlement, and in no respect affects
the outcome of this case.
Steve Dickson died testate on February 18, 2007. Mr. Dickson’s will was probated
by the United States Department of the Interior, Office of Hearings and Appeals, Probate
Hearings Division. A probate decision was issued April 29, 2010, vesting Steve Dickson’s
Native allotment land in his daughter, Karen Dickson-Bahnke.26
On June 29, 2012, a BIA contractor notified Dr. Stang that he was trespassing on
Ms. Bahnke’s Native allotment, F-1050(B), Lot 1, U.S.S. 8877, and Lot 1, U.S.S. 8979.27 When
a further notice of July 11, 2012,28 produced no results, this action was commenced by
plaintiff on October 1, 2013. The complaint, consisting of a single count, asserts that
Ms. Bahnke has legal title to the property in question and that Dr. Stang has no legal title
to the property which he has occupied.29 In fact, and as reflected by plaintiff’s title status
report,30 title to the Dickson allotment is held by the United States of America in trust for
Ms. Bahnke. Appended to plaintiff’s complaint is Field Diagram B of the two above-
described U.S. Survey lots, showing the relative locations of numerous improvements that
have been placed upon the two lots.31 With reference to Field Diagram B and the affidavit
of Dr. Stang, the “blue” buildings are the improvements that Dr. Stang placed upon the
26Memorandum in Support of Motion for Summary Judgment, Probate Decision,
Docket No. 23-2.
27Id., Notice of Trespass (pages 1-2 of 4), Docket No. 23-4. This notice mistakenly
makes reference to AS 11.46.350(b)(1), a criminal trespass statute. Plaintiff now recognizes
that its action on behalf of Ms. Bahnke is pursuant to AS 09.45.630, actions for recovery of
real property. Complaint at 4, ¶ 16, Docket No. 1.
28Id., Notice of Trespass (pages 3-4 of 4), Docket No. 23-4.
29Complaint at 4-5, Docket No. 1.
30United States’ Memorandum in Support of Motion for Summary Judgment, Docket
No. 23-6.
31Complaint, Exhibit 3, Field Diagram B, Docket No. 1-3, a copy of which is
appended to this order.
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Dickson allotment. Those improvements are located on approximately the westerly half
(perhaps 115 feet) of both Lot 1, U.S.S. 8877, and Lot 1, U.S.S. 8979.
Decision
The General Allotment Act was extended to Alaska Natives in 1906. Ch. 2469,
34 Stat. 197. The Alaska Native Allotment Act was amended in 1956 to provide that:
“[a]ny Indian, Aleut, or Eskimo who receives an allotment under this Act, or his heirs, is
authorized to convey by deed, with the approval of the Secretary of the Interior, the title
to the land so allotted....” Ch. 891, 70 Stat. 954. The Alaska Native Claims Settlement Act
of 197132 repealed the authority of the Secretary to authorize Native allotments in Alaska.33
The Settlement Act further provided that: “[n]otwithstanding the foregoing provisions of
this section, any application for an allotment that is pending before the Department of the
Interior on December 18, 1971, may, at the option of the Native applicant, be approved and
a patent issued in accordance with [the] 1906 Act....”34 Subject to complex conditions not
here relevant, the Alaska National Interest Lands Conservation Act directed the Secretary
to approve then-pending Native allotment applications. The Native allotment issued to
Steve Dickson May 20, 1991, was duly issued pursuant to the foregoing statutes.
The United States holds a legal estate in Lot 1, U.S.S. 8877, and Lot 1, U.S.S. 8979,
and the United States’ beneficiary, Karen Bahnke, is entitled to possession of that property
by virtue of inheritance from her father, Steve Dickson. Accordingly, the United States is
entitled to bring an action to recover possession and damages on account of Dr. Stang’s
presence on the property. AS 09.45.630.35
3285 Stat. 688, 43 U.S.C. §§ 1601-1629.
3343 U.S.C. § 1617(a).
34Id.
35AS 09.45.630 provides: “[a] person who has a legal estate in real property and has
a present right to possession of the property may bring an action to recover the possession
of the property with damages for withholding it....”
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Dr. Daniel Stang owns no right, title, or interest in the above two lots. Neither
Dr. Stang nor Dr. Lang obtained any title to the Dickson allotment lands by virtue of Jack
Titus Jr.’s quitclaim deed of March 11, 1976, because Mr. Titus had never obtained title to
the property in question. The November 10, 1986, quitclaim deed from Dickson to Stang
and his wife as to the west 115 feet of Lot 1, U.S.S. 8877, is invalid and conveys no right,
title, or interest in that property to Dr. Stang for lack of approval of the quitclaim deed by
the Secretary or his delegate.
There is no evidence that Dickson ever abandoned any portion of his Native
allotment application. On the contrary, Dickson applied for and was granted a Native
allotment and intended that Dr. Stang have title to a portion of his Native allotment.
Dr. Stang’s possession of portions of the Dickson Native allotment during Dickson’s
lifetime was permissive. However, and as a matter of law, title to the subject property was
and remains in the United States of America, subject to the rights of Dickson and his
devisee, Karen Bahnke, who became entitled to possession of the Native allotment under
the terms of the Dickson will upon his demise, February 18, 2007.
In opposing plaintiff’s motion for summary judgment, Dr. Stang argues, as pled in
his counterclaim, that his due process rights have been violated. He contends that the
United States was required to provide him with notice “of the survey that has become the
basis of the complaint seeking to oust him from the property he has held under color of title
for more than thirty five years.”36
Dr. Stang’s arguments are based on a faulty premise: that he had some protectable
interest in the Native allotment. On November 10, 1986, the date of the Dickson-to-Stang
quitclaim deed, and thereafter, Dr. Stang had no right, title, or interest in the land which
ultimately became the Dickson Native allotment. When Dickson did acquire an interest in
that property – by virtue of the certificate of his allotment – legal title to the allotment
36Docket No. 16-1 at 6, ¶ 20.
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remained in the United States subject to Dickson’s allotment rights; which rights Dickson
was powerless to convey to anyone without the approval of the Secretary of the Interior
or his delegate. Thus there is no substantive due process violation here, for Dr. Stang has
been deprived of no property right. But what about procedural due process?
It is of course true that Dr. Stang’s improvements on what was to become the
Dickson Native allotment were in plain sight and must have been seen by those who
surveyed the Native allotment, but there is no evidence that the surveyors or anyone else
knew that the buildings that Dr. Stang had placed upon the property had been placed there
by someone other than the allotment applicant. The Titus quitclaim deed to Drs. Stang and
Lang preceded both the 1986 and 1988 surveys. The Dickson quitclaim deed preceded the
1986 and 1988 surveys but, because that deed was never recorded, there was no way the
surveyors would know that anyone but Dickson was interested in the property. Thus there
is no procedural due process violation here, for Dr. Stang has not demonstrated that those
processing Dickson’s Native allotment had any knowledge that Dr. Stang might claim an
interest in the allotment property. In fact, Dr. Stang had no legal interest in the property.
In theory, Dr. Stang might have protested the approval of the Dickson allotment, but
it is clear that both Dickson and Dr. Stang intended that the Dickson allotment application
be granted because they believed – mistakenly – that Dickson’s quitclaim deed would give
Dr. Stang title to part of the allotment. Likely, Dr. Stang had no knowledge of the details
of the allotment proceedings; but, once again, there is no evidence that anyone processing
the Dickson allotment application was ever put on notice that someone other than Steve
Dickson might be interested in the subject land.
In moving to dismiss Dr. Stang’s counterclaim, the United States argues that
Dr. Stang is really claiming that Karen Bahnke does not own the property and that the
gravamen of the counterclaim is a quiet title action. In opposing the plaintiff’s motion to
dismiss, defendant concedes that 28 U.S.C. § 2409a, Quiet Title Act, expressly provides that
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the Act does not apply to trust or restricted lands such as that at issue here. Instead,
defendant suggests that the agency decision to grant Dickson’s Native allotment should
nonetheless be subject to judicial review. But defendant’s counterclaim is not one for
judicial review of an administrative decision. As stated, defendant’s counterclaim is one
for a due process violation. As plaintiff points out, the United States has not waived
sovereign immunity to be sued for constitutional violations. FDIC v. Meyer, 510 U.S. 471,
478 (1994). Either as a quiet title claim or as a constitutional claim, defendant’s
counterclaim against plaintiff fails.
Apparently recognizing that judicial review by way of the Administrative Procedure
Act has neither been pled nor would it have been timely, Dr. Stang argues for a judicial
review of a perceived equal protection issue. Dr. Stang’s counterclaim does not assert any
equal protection claim.
Dr. Stang endeavors to construct an equal protection claim on the basis of this
court’s lack of jurisdiction to entertain a quiet title action, while a Native American whose
allotment application is rejected may obtain judicial review under 25 U.S.C. § 345. The
comparison is inapposite. Title to the property in question has always been held by the
United States of America. The United States has an absolute right to dispose of its property
as it sees fit by virtue of Article IV, Section 3, Clause 2, of the United States Constitution.
Congress has seen fit to extend the allotment process to Alaska, and granted a Native
allotment to Dickson. The fact that Dickson might have sought judicial review under
25 U.S.C. § 345 had his allotment application been denied does not give rise to an equal
protection claim on the part of Dr. Stang. Congress had the absolute right to restrict Native
allotments to Native Alaskans, to limit review to disappointed Native allotment applicants,
and to exclude others from bringing quiet title actions as to trust lands. There are no
circumstances under which Dr. Stang could obtain a Native allotment, and because
Dr. Stang had no interest in the property which became the Dickson Native allotment, the
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circumstances of Dr. Stang and Dickson are entirely different. There would be no equal
protection violation even if such a claim had been made in defendant’s counterclaim.
Plaintiff’s motion for summary judgment is granted. Plaintiff’s motion to dismiss
Dr. Stang’s counterclaim for lack of jurisdiction is granted. The court concludes that Karen
Bahnke is entitled to possession of the entirety of Lot 1, U.S.S. 8877, and Lot 1, U.S.S. 8979.
The court concludes that Dr. Stang’s possession of a portion of that property is a trespass
for purposes of AS 09.45.630.
Remedies
Being entitled to possession of the Dickson allotment, Ms. Bahnke is entitled to
damages for the withholding of that property from her. Steve Dickson died February 18,
2007. Ms. Bahnke, as his devisee, was entitled to possession of the property thereafter.
However, an action for damages for trespass upon real property must be commenced
within six years. AS 09.10.050. This action was commenced October 1, 2013.37 Therefore,
trespass damages in this case may not be recovered for time prior to October 1, 2007.
The parties have stipulated that the value of the Dickson allotment is $20,305.00;38
and Dr. Stang does not contest plaintiff’s contention that the rental value of the portion of
the Native allotment occupied by him is $1,015.25 per year.39 Dr. Stang contends, however,
that even if he is found to be in trespass, damages should begin to accrue in 2013. Dr. Stang
argues that even if he did not own a portion of the Dickson allotment, he was there with
Dickson’s permission. This argument fails because Dickson’s permission for Dr. Stang to
occupy a portion of the Native allotment expired with Dickson. There is no evidence that
Ms. Bahnke ever consented to Dr. Stang’s possession of a portion of the Dickson
allotment.
37Complaint, Docket No. 1.
38Memorandum in Support of Motion for Summary Judgment, Docket No. 23-8.
39Opposition to Motion for Summary Judgment (page 24 of 26), Docket No. 34.
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Plaintiff, for the benefit of Ms. Bahnke, is entitled to trespass damages in the amount
of $1,015.25 per year for seven years, October 1, 2007, through September 30, 2014, a total
of $7,106.75. Ms. Bahnke is entitled to pre-judgment interest on the unpaid rental value of
the Dickson allotment. Plaintiff computes interest through September 30, 2014, at $544.89.
Defendant has not questioned that computation.
Plaintiff seeks a permanent injunction barring Dr. Stang from the allotment which
now belongs to Ms. Bahnke. It is not clear to the court that injunctive relief is necessary
nor an appropriate remedy for Dr. Stang’s trespass upon the Dickson allotment. Subject
to what follows, and unless the parties agree otherwise, the court is prepared to enter a
judgment ejecting Dr. Stang from the Dickson allotment and requiring that he remove
from that property all movable improvements that he has placed on the property.
This litigation will bring to an end a very long and mutually beneficial relationship
that existed between Steve Dickson and others and Dr. Stang. They were neighbors and
friends for some 35 years. Their relationship and their management of real and personal
property was a throwback to times long past. The Dickson-Stang relationship was not “by
the book,” but it was plainly mutually beneficial. There is no suggestion that Dr. Stang
ever took advantage of Steve Dickson. Dr. Stang probably paid Steve Dickson at least the
fair value for a portion of the allotment.
There is a need, and Ms. Bahnke has every right, to have the ownership and
possessory rights with respect to what is now her Native allotment clarified and put on a
proper legal footing. But the court wonders if it is to everyone’s benefit to put Dr. Stang
to the expense of removing the improvements which he placed on the Native allotment –
some of them 35 years ago – as opposed to entering into a proper, BIA-approved, purchase
or lease arrangement for an appropriate portion of the allotment. The court encourages the
parties to engage in a private mediation or to request the assistance of a judicial officer of
this court for purposes of a settlement conference.
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The court will shortly enter a partial judgment for trespass damages and interest
through September 30, 2014.
DATED this 25th day of March, 2015.
/s/ H. Russel Holland
United States District Judge
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