Shade v. United States Department of the Interior et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KENNETH H. SHADE, )
)
Plaintiff, )
)
vs. )
)
UNITED STATES DEPARTMENT OF THE )
INTERIOR, et al., )
) No. 3:20-cv-0198-HRH
Defendants. )
_______________________________________)
O R D E R
Motion to Dismiss
The United States moves to dismiss plaintiff’s first amended complaint.1 Defendant
Ellamae Chaney joins in the motion to dismiss.2 The motion to dismiss is opposed.3 Oral
argument was not requested and is not deemed necessary.
1Docket No. 15.
2Docket No. 22.
3Docket No. 31. Plaintiff also filed a “cross-motion for partial summary judgment”
at Docket No. 31. However, briefing on plaintiff’s cross-motion has been stayed pending
resolution of the instant motion to dismiss. Docket No. 41.
-1-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 1 of 19

Background
Plaintiff is Kenneth H. Shade. Defendants are the United States Department of the
Interior; Deb Haaland, Secretary of the Interior; Eugene R. Peltola, Jr., Director of the Alaska
Region of the Bureau of Indian Affairs; and Ellamae A. Chaney. Haaland and Peltola are
sued in their official capacities.4
Plaintiff alleges that he is “an Alaska Native” and that he is “the devisee of a portion
of a restricted Native allotment (‘Shade allotment’) from his father, Henry Shade, who died
testate on March 28, 2009.”5 Plaintiff alleges that “[t]he Shade allotment is located within
the boundaries of the City of Dillingham, Alaska[.]”6 Plaintiff alleges that “[t]he Shade
allotment was conveyed by BLM to Henry Shade on September 23, 1976.”7 Plaintiff alleges
that “[t]o gain access to what would be his allotment, in the 1960s Henry Shade built and
maintained a dirt road approximately one mile in length from Aleknagik Lake Road to his
allotment (‘Shade access road’), which access road is now informally called Shannon Lake
Road.”8
4First Amended Complaint [etc.] at 6, ¶¶ 10-11, Docket No. 14.
5Id. at 7, ¶ 16.
6Id. at 7, ¶ 17.
7Id.
8Id. at 8, ¶ 18.
-2-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 2 of 19

Plaintiff alleges that per the terms of Henry Shade’s will, he was “to receive a house
on the Shade allotment and ten acres of land surrounding it.”9 Plaintiff alleges that his
brother was “to receive the remainder of the allotment, which is largely undeveloped.”10
Plaintiff alleges that “[i]n the course of subdividing the Shade allotment for conveyance to
each brother, . . . [the] surveyor learned that BLM had mistakenly forgotten to include an
express reservation of a right-of-way for the Shade access road where it crossed the land”
that was conveyed to defendant Chaney in 1992.11 Plaintiff alleges that “[t]his omission was
inadvertent because BLM knew from its field work that the Shade access road was built
before Chaney began the use and occupancy of her allotment site and that the road was
necessary to access . . . the Shade allotment.”12 Plaintiff alleges that “[t]he road [is] the only
practicable access to the Shade allotment.”13
Plaintiff alleges that “[b]ecause of the lack of recognized legal access over the Chaney
allotment to the Shade allotment, the subdivision of the Shade allotment and the Henry Shade
probate have been put on hold, and [p]laintiff has not been able to receive title to his portion
9Id. at 8, ¶ 19.
10Id.
11Id. at 8, ¶ 20.
12Id. at 8-9, ¶ 20.
13Id. at 2, ¶ 1. Chaney disputes that the access road is the only practicable means of
access to the Shade Allotment but contends that this dispute “is both irrelevant to and beyond
the scope of the legal issues presented in this motion to dismiss.” Joinder in Motion to
Dismiss and Additional Supporting Memorandum at 2, Docket No. 22.
-3-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 3 of 19

of the Shade allotment.”14 Plaintiff alleges that he “asked Chaney to acknowledge that the
Shade access road, as it crosses her allotment, was and is a ‘valid existing right’ under
ANILCA, to which her allotment is subject.”15 Plaintiff alleges that “Chaney has refused to
do so.”16
Plaintiff alleges that in May 2017, he sought to have the Bureau of Indian Affairs
(BIA) Regional Director “recognize that the Shade access road, as it crosses the Chaney[]
allotment, was and is an implied right-of-way and easement by necessity appurtenant to the
Shade allotment, and thus was and is a ‘valid existing right’ under ANILCA, to which the
Chaney allotment is subject.”17 Plaintiff alleges that he “asked the Regional Director, in the
exercise [of his] trust duty to [p]laintiff, to take appropriate action to prevent future trespass
on that right-of-way.”18 Plaintiff alleges that “[a]lthough the Regional Director did not
dispute [p]laintiff’s right to use the Shade access road as it crosses the Chaney allotment, the
Regional Director refused to affirmatively acknowledge that right, stating that []he lacked
the authority to do so.”19
14First Amended Complaint [etc.] at 9, ¶ 21, Docket No. 14.
15Id. at 9, ¶ 22.
16Id.
17Id. at 10-11, ¶ 23.
18Id. at 11, ¶ 23.
19Id. at 11, ¶ 25.
-4-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 4 of 19

Plaintiff alleges that he appealed the Regional Director’s decision to the Interior Board
of Indian Appeals (IBIA).20 Plaintiff alleges that in December 2019, the IBIA dismissed his
appeal, “agree[ing] with the Regional Director that []he lacked the authority to recognize the
Chaney access road as [a] ‘valid existing right’ under ANILCA.”21
On August 12, 2020, plaintiff commenced this action for declaratory judgment,
injunctive relief, and damages. On January 29, 2021, plaintiff filed his first amended
complaint. Plaintiff’s first amended complaint contains five counts. Count I contains
declaratory judgment claims asserted against the Secretary and Chaney. Count II contains
declaratory judgment claims asserted against the Secretary only. Count III contains claims
for mandamus or injunctive relief against the Secretary. Count IV contains claims for
injunctive relief against Chaney. Count V is a claim for damages against Chaney. Plaintiff
alleges that this court has jurisdiction of his claims pursuant to “28 U.S.C. § 1331 (federal
question); 5 U.S.C. §§ 701-706 (review of agency action); 28 U.S.C. § 2201 (declaratory
relief), 28 U.S.C. § 1361 (action in the nature of mandamus); 28 U.S.C. § 2202 (injunctive
relief); and 28 U.S.C. § 1367 (supplemental jurisdiction).”22
Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, the United States moves
to dismiss Counts I, II, and III of plaintiff’s first amended complaint for lack of subject
20Id. at 11, ¶ 26.
21Id. at 12, ¶ 28.
22Id. at 7, ¶ 13.
-5-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 5 of 19

matter jurisdiction. Alternatively, pursuant to Rule 12(b)(6), the United States moves to
dismiss plaintiff’s claims because they are barred by the statute of limitations. Defendant
Chaney joins in the United States’ motion to dismiss and also raises a Rule 12(b)(6)
argument that plaintiff has failed to state a claim for relief under 43 U.S.C. § 1746.
Discussion
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The United States is making a
facial attack here. “In a facial attack, the challenger asserts that the allegations contained in
a complaint are insufficient on their face to invoke federal jurisdiction.” Id. In considering
a facial challenge, the court is generally confined to the allegations in the complaint and
“assumes the truth of [the] plaintiff’s factual allegations and draws all reasonable inferences
in its favor.” Ecological Rights Foundation v. Pacific Gas and Elec. Co., 803 F. Supp. 2d
1056, 1059 (N.D. Cal. 2011). But, the court may also consider “‘additional facts . . .
contained in materials of which the court may take judicial notice’” without converting a
facial attack into a factual attack. Id. (quoting Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
1994)). “When subject matter jurisdiction is challenged under Federal Rule of Procedure
12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.”
Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001).
“The federal government cannot be sued unless it first waives sovereign immunity.”
State v. United States Dep’t of State, 996 F.3d 552, 564 (9th Cir. 2021). “The doctrine of
-6-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 6 of 19

sovereign immunity applies to federal agencies and to federal employees acting within their
official capacities.” Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). “Whether the
government waives its sovereign immunity is a question of subject matter jurisdiction.” Blue
v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998). “As the contours of any such waiver define
a court’s authority to entertain a suit against the government, each claim against the
government must rest upon an applicable waiver of immunity.” Navajo Nation v. Dep’t of
the Interior, 876 F.3d 1144, 1167–68 (9th Cir. 2017) (internal citation omitted).
The United States argues that it has not waived its sovereign immunity as to plaintiff’s
claims against it because all of plaintiff’s claims put at issue the adjudication of the validity
of plaintiff’s contention that he has an easement across Chaney’s Native allotment. The
United States contends that “the only means to have a right of way recognized across lands
in which the United States holds an interest is the Quiet Title Act (QTA).”23 “The QTA
waives the United States’ immunity with respect to claims covered by that statute, but the
statute excludes from its coverage claims involving ‘trust or restricted Indian lands.’” Alaska
Dep’t of Natural Resources v. United States, 816 F.3d 580, 585 (9th Cir. 2016) (Purdy)
(quoting 28 U.S.C. § 2409a(a)). “This exclusion, known as the Indian lands exception,
preserves the United States’ immunity from suit ‘when the United States claims an interest
in real property based on that property’s status as trust or restricted Indian lands.’” Id.
(quoting United States v. Mottaz, 476 U.S. 834, 843 (1986)).
23Motion to Dismiss at 4, Docket No. 15.
-7-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 7 of 19

There can be no dispute that the Chaney Native allotment is restricted Indian land.
Chaney received her allotment under the Alaska Native Allotment Act24 and such an
allotment is “considered ‘restricted’ by virtue of the restraint on alienation contained in the
allotment certificate[].” Id. The dispute here focuses on whether plaintiff’s claims against
the United States fall within the purview of the QTA. If they do, then there has been no
waiver of sovereign immunity and the claims are subject to dismissal.
The QTA, “[f]rom its title to its jurisdictional grant to its venue provision, . . . speaks
specifically and repeatedly of ‘quiet title’ actions.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 217 (2012). “That term is universally
understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but
also asserts his own right to disputed property.” Id. The Ninth Circuit “has repeatedly held
that both disputes over the right to an easement and suits seeking a declaration as to the scope
of an easement fall within the purview of the QTA.” Robinson v. United States, 586 F.3d
683, 686 (9th Cir. 2009).
To determine whether plaintiff’s claims against the United States fall within these
parameters, a closer look at his claims is required. Plaintiff has set out his claims against the
United States in three counts (Counts I, II, and III).
24Exhibit B, Motion to Dismiss, Docket No. 15.
-8-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 8 of 19

In Count I, plaintiff seeks a declaration that:
a. The Shade access road, which crosses the Chaney
allotment, was built by Henry Shade before Chaney began the
use and occupancy of her allotment. This road is the only
practicable means of access to the Shade allotment.
b. The conveyance of the Chaney allotment was made
subject to “valid existing rights,” under Section 905(a)(1) of
ANILCA, 43 U.S.C. § 1634(a)(1).
c. The Shade access road, as it crosses the Chaney
allotment, was and is an implied right-of-way and easement by
necessity appurtenant to the Shade allotment. Accordingly, this
was and is a “valid existing right” under ANILCA, to which the
Chaney allotment is subject, even though that right-of-way was
not expressly reserved in the Chaney allotment certificate.
d. Any interference or threatened interference by
Chaney with that right-of-way and easement constitutes a
continuing trespass on its use.[25]
In this count, plaintiff seeks to assert the validity of his road as an encumbrance on Chaney’s
Native allotment. In other words, “the essence and bottom line” of this count is a title
dispute. Match-E-Be-Nash-She-Wish Band, 567 U.S. at 220 (citation omitted). This count
plainly falls within the purview of the QTA, which means the United States has not waived
its sovereign immunity as to the claims asserted against it in Count I.
Plaintiff’s “valid existing rights” claim cannot save his Count I. This claim is based
upon plaintiff’s prior construction of a road across public domain which he contends is “an
implied right-of-way and easement by necessity” across the Chaney allotment.26 Plaintiff
contends that if he can show that the Chaney allotment was subject to the easement of
25First Amended Complaint at 14, ¶ 34, Docket No. 14.
26Id. at 3, ¶ 3.
-9-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 9 of 19

necessity for the road prior to the land being conveyed to her, that would mean that the
United States has no colorable claim to the land at issue and the QTA would not apply.
But, “[a]s 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.” State of Alaska v. Babbitt, 75 F.3d 449, 451–52 (9th Cir. 1995) (Foster)
(quoting State of Alaska v. Babbitt, 38 F.3d 1068, 1076 (9th Cir. 1994) (Albert)). And, here,
the United States has a colorable claim to a property interest in the Indian lands in question.
The United States does not have to prove that it has title to the land in the question. “The
QTA’s limitations on actions challenging the United States’ assertions of title apply without
regard to the ultimate validity of those assertions.” Albert, 38 F.3d at 1076. The United
States’ colorable title prevails in absence of proof that – as a matter of law – plaintiff’s
easement has been granted by the United States. “‘Nothing in the [QTA] or its history
suggests that the United States was to be put to the burden of establishing its title when it has
a colorable claim and has chosen to assert its immunity on behalf of land of which the
government declares that it is the trustee for Indians.’” Id. (quoting Wildman v. United
States, 827 F.2d 1306, 1309 (9th Cir. 1987)). Here, the United States has rationally
determined to assert its reserved interest in the Chaney allotment: the restriction on Chaney’s
right to alienation.
The situation in this case is not like that in State of Alaska v. Babbitt, 182 F.3d 672
(9th Cir. 1999) (Bryant). There, “[t]he United States issued a 500 acre grant to the State of
-10-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 10 of 19

Alaska in 1961. The grant was of a right of way for a material site to mine gravel.” Id. at
673. “In 1970, appellee William T. Bryant filed an application for an Alaska Native
allotment, the relevant portion of which [was] within the 1961 grant to the state.” Id. The
“substantive question” before the court of appeals was “whether Bryant’s use and occupancy
entitled him to take priority over the state’s earlier grant.” Id. But first, the appeals court had
to determine “whether the district court had jurisdiction to decide that substantive question.”
Id. As to the jurisdictional question, because of a change in agency policy, Bryant no longer
had a “colorable claim” to the land at issue, which meant that the United States also had no
colorable claim that the land at issue was Indian land. Id. at 675-76. Because the case did
not involve Indian lands, the Indians lands exception to the QTA did not apply, “and there
[was] jurisdiction under the Quiet Title Act.” Id. at 676.
But here, the United States has not disabled itself from granting Chaney’s Native
allotment by reason of an earlier appropriation of the same land in favor of the State. Even
if plaintiff’s road constitutes a valid, existing right across the land which was allotted to
Chaney, there has been no prior appropriation of the land which became Chaney’s allotment,
to plaintiff or anyone else. In other words, the United States continues to have a colorable
claim of title to the lands in question, which are undisputedly Indian lands. As in Purdy,
816 F.3d at 585-86, even if plaintiff’s easement claims have factual potential (even if
plaintiff has the better of the factual argument), the United States has a colorable claim to
title to the lands in question, which means that “the QTA renders the government immune”
-11-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 11 of 19

from the claims asserted against it in Count I. Foster, 75 F.3d at 452. Thus, the court lacks
subject matter jurisdiction as to plaintiff’s claims in Count 1. The claims asserted against the
federal defendants in Count I are dismissed.
In Count II, plaintiff seeks review of the IBIA’s December 4, 2019 decision. Count
II contains APA claims even though plaintiff has labeled these claims as claims for
declaratory judgment. In Count II, plaintiff seeks a declaration that:
a. The Secretary has a trust duty to [p]laintiff, as an Alaska
Native inheriting a portion of a restricted Native allotment, to
protect [p]laintiff’s rights in that allotment.
b. The Secretary erred in deciding that [she] lacked the
authority to recognize that the Shade access road, as it crosses
the Chaney allotment, was and is a ‘valid existing right’ under
ANILCA, to which the Chaney allotment is subject.
c. The Secretary erred in deciding that [she] lacked the
authority to take appropriate action to prevent Chaney from
interfering with or committing trespass on the right to use of that
road.
d. The Secretary erred in deciding that [she] lacked the
authority under 43 U.S.C. § 1746 to correct the document of
conveyance of the Native allotment to Chaney to expressly state
that it is subject to an easement and right-of-way of access to the
Shade allotment.[27]
Although Section 702 of the APA provides a general waiver of sovereign immunity
for APA claims, it does not “confer[] authority to grant relief if any other statute that grants
consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702.
As the Supreme Court has explained, “the QTA specifically authorizes quiet title actions . . .
27Id. at 15-16, ¶ 37.
-12-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 12 of 19

except when they involve Indian lands. . . . In such a circumstance, a plaintiff cannot use the
APA to end-run the QTA’s limitations.” Match-E-Be-Nash-She-Wish Band, 567 U.S. at
216. In Counts II(a) and (d), plaintiff is not attempting to “circumvent[]” the QTA “by artful
pleading[.]” Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273,
285 (1983). Rather, he is asserting straightforward APA claims. The relief plaintiff seeks
as to Counts II(a) and (d) is a declaration that the Secretary had a trust duty to plaintiff and
that she erred in determining the extent of her 43 U.S.C. § 1746 authority in connection with
his administrative appeal. Because Counts II(a) and (d) do not seek recognition of plaintiff’s
easement as relief for his APA claims, the APA serves as a waiver of sovereign immunity
for these claims for judicial review of an administrative decision. Thus, the court has
jurisdiction as to Counts II(a) and (d). Counts II(a) and (d) are not dismissed.
But by Counts II(b) and (c), plaintiff seeks recognition of his road as an encumbrance
on Chaney’s Native allotment. Therefore, Counts II(b) and (c) suffer from the same problem
as Count I. The United States has not waived sovereign immunity for these claims. Counts
II(b) and (c) are dismissed.
In Count III, plaintiff seeks mandamus or injunctive relief in the form of an “order
directing the Secretary” to
a. recognize that the Shade access road, as it crosses the
Chaney allotment, was and is a “valid existing right” under
ANILCA, to which the Chaney allotment is subject; and
b. take appropriate action to prevent Chaney from interfering
with or committing trespass on the right to use of that road[;
and]
-13-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 13 of 19

c. take appropriate action under 43 U.S.C. § 1746 to correct the
document of conveyance of the Native allotment to Chaney to
expressly state that it is subject to an easement and right-of-way
of access to the Shade allotment.[28]
In Counts III(a) and (b), plaintiff is plainly seeking recognition of his road as an encum-
brance on Chaney’s Native allotment. That brings the claims asserted in Counts III(a) and
(b) within the purview of the QTA, which means that there has been no waiver of sovereign
immunity for these claims. The court lacks subject matter jurisdiction of the claims asserted
in Counts III(a) and (b), and these claims are dismissed. As for Count III(c), the claim
asserted duplicates the claim asserted in Count II(d). Thus, Count III(c) is stricken.
Plaintiff’s “exceptional circumstances” argument cannot save his claims that fall
within the purview of the QTA. Plaintiff argues that this case involves “exceptional
circumstances,” which he argues means that his claims should not be dismissed based on the
Indian lands exception to the QTA. The “exceptional circumstance” of this case, according
to plaintiff, is that it involves two competing Alaska Native allotments. Plaintiff cites to
Albert, 38 F.3d at 1077, in support of this argument, but that case provides no support.
There, the court’s discussion of “exceptional circumstances” was in connection with an
argument that the court should look to the legislative history of the QTA, an argument the
court rejected because it found that the QTA was plain on its face. Id. The court did not hold
28Id. at 16, ¶ 40.
-14-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 14 of 19

or even suggest that a case involving competing Alaska Native allotments would be so
exceptional that the court could ignore the plain terms of the QTA.
Plaintiff also argues that if the Indians land exception applies to his claims, then it will
mean that he has no remedy because the Alaska Supreme Court has “held that Alaska courts
lack jurisdiction to decide claims involving the ownership or right to possession of Native
allotment land.” Foster v. State, Dep’t of Transp., 34 P.3d 1288, 1290 (Alaska 2001). The
Ninth Circuit has already rejected such an argument, observing that “Congress’s unambigu-
ous retention of sovereign immunity against quiet-title actions affecting trust and restricted
Indian lands applies without regard to the availability of alternative means of review.”
Albert, 38 F.3d at 1077. The court explained that a “‘lack of an alternative forum does not
automatically prevent dismissal of a suit. Sovereign immunity may leave a party with no
forum for its claims.’” Id. (quoting Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th
Cir. 1990)). Moreover, as discussed above, the QTA does not apply to all of plaintiff’s
claims. His APA claims in Counts II(a) and (d) survive the instant motion to dismiss and it
is also possible that plaintiff could assert other causes of action against the federal defendants
which do not fall within the purview of the QTA.
Because some of plaintiff’s claims against the federal defendants are being dismissed,
the court must determine whether any of plaintiff’s claims against Chaney are subject to
dismissal pursuant to Rule 19, Federal Rules of Civil Procedure. “Rule 19(a) requires joinder
of a party whose presence is necessary to ensure complete relief among the existing parties,
-15-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 15 of 19

or to protect a party whose interests would be impaired or impeded were the action to
proceed without that party.” Deschutes River Alliance v. Portland General Electric Co., 1
F.4th 1153, 1162–63 (9th Cir. 2021). “If joinder is not feasible, Rule 19(b) requires
dismissal when the action cannot proceed ‘in equity and good conscience’ without the
required party.” Id. at 1163 (quoting Fed. R. Civ. P. 19(b)). “Under Rule 19, [the court] first
determine[s] whether an absent party is a required party; then whether joinder is feasible; and
finally whether the case can fairly proceed in the party’s absence.’” Id. (quoting Jamul
Action Comm. v. Simermeyer, 974 F.3d 984, 996 (9th Cir 2020)).
The United States is a necessary party to the adjudication of plaintiff’s claims against
Chaney. As discussed above, in the claims in Count I of plaintiff’s first amended complaint,
which are also asserted against Chaney, plaintiff seeks an adjudication of the validity of his
road as an encumbrance on Chaney’s Native allotment. In Count IV, plaintiff seeks to have
the court “enter an order directing Chaney” to
a. sign, in a recordable form, an acknowledgment that the
Shade access road, as it crosses the Chaney allotment, was and
is a ‘valid existing right’ under ANILCA, to which the Chaney
allotment is subject; and
b. refrain from taking action to interfere with or trespass on the
right to use that road.[29]
In Count V, plaintiff asserts a claim for damages against Chaney. Counts IV and V would
require adjudication of whether or not Shade’s road is an encumbrance upon the Chaney
29Id. at 17, ¶ 44.
-16-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 16 of 19

Native allotment. The United States would be a necessary party to such an adjudication,
primarily because Chaney’s Native allotment is subject to a restriction against alienation,
which means that “any interest therein[] may not be conveyed without the approval of the
Secretary.” 25 C.F.R. § 152.22. However, because of the Indian lands exception to the
QTA, the joinder of the United States as a party to any claim by plaintiff which implicates
title to the Chaney Native allotment is foreclosed.
The question then becomes whether plaintiff’s claims against Chaney can “proceed
‘in equity and good conscience’ without” the United States. Deschutes River Alliance, 1
F.4th at 1163 (quoting Fed. R. Civ. P. 19(b)). “Rule 19(b) provides a four-part test to
determine whether a party is indispensable to an action.” Quileute Indian Tribe v. Babbitt,
18 F.3d 1456, 1460 (9th Cir. 1994). “The district court is directed to balance the following
factors: (1) prejudice to any party or to the absent party; (2) whether relief can be shaped to
lessen prejudice; (3) whether an adequate remedy, even if not complete, can be awarded
without the absent party; and (4) whether there exists an alternative forum.” Id. “[H]owever,
. . . when the necessary party is immune from suit, there may be very little need for balancing
Rule 19(b) factors because immunity itself may be viewed as the compelling factor.” Id.
(citation omitted).
Plaintiff concedes that the United States is an indispensable party.30 Thus, plaintiff’s
claims against Chaney, which depend upon the adjudication of whether or not Shade’s road
30Corrected Plaintiff’s Opposition to Motion to Dismiss [etc.] at 34, Docket No. 31.
-17-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 17 of 19

is an encumbrance upon the Chaney Native allotment and upon the residual interests of the
United States in the Chaney Native allotment, are dismissed. Plaintiff may, however, amend
his claims against Chaney as it is possible that plaintiff may be able to assert plausible claims
against Chaney that are not foreclosed by the Indian lands exception to the QTA.
Because plaintiff’s claims against the federal defendants that fall within the purview
of the QTA are being dismissed, the court does not need to consider the United States’
alternative Rule 12(b)(6) statute of limitations argument. Because plaintiff’s claims against
Chaney are also being dismissed, the court need not consider Chaney’s Rule 12(b)(6)
argument that plaintiff has failed to state a claim for relief under 43 U.S.C. § 1746.
Conclusion
The United States’ motion to dismiss,31 in which Chaney joins,32 is granted in part and
denied in part. The motion is denied as to Counts II(a) and (d). The motion is otherwise
granted. Counts I, II(b) and (c), III, IV, and V of plaintiff’s first amended complaint are
dismissed. Plaintiff is given leave to amend his complaint. Should plaintiff elect to file a
second amended complaint, his second amended complaint shall be filed on or before
September 30, 2021. In the absence of a second amended complaint, this case will proceed
as an APA appeal as to Counts II(a) and (d). See Local Civ. R. 16.3.
31Docket No. 15.
32Docket No. 22.
-18-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 18 of 19

Briefing on plaintiff’s motion for partial summary judgment was stayed33 pending
resolution of the instant motion to dismiss. Because defendants’ motion to dismiss has now
been resolved and substantial portions of plaintiff’s first amended complaint have been
dismissed, plaintiff’s motion for summary judgment34 is denied with leave to renew.
DATED at Anchorage, Alaska, this 16th day of September, 2021.
/s/ H. Russel Holland
United States District Judge
33Docket No. 41.
34Docket No. 31.
-19-
Case 3:20-cv-00198-HRH Document 44 Filed 09/16/21 Page 19 of 19