Ahtna, Inc. v. Williams

I. MOTIONS PRESENTED

At docket 45, defendant Dianne Johnson Williams (“Johnson”) moves for leave to file her first amended answer and counterclaim to quiet title based on adverse possession. Plaintiff Ahtna, Inc. (“Ahtna”) opposes the motion at docket 50. Johnson replies at docket 52. Ahtna moves at docket 54 for summary judgment on its claims for declaratory and injunctive relief, and trespass. Johnson opposes the motion at docket 67 and cross moves for summary judgment on her claim of adverse possession at docket 68. Ahtna replies to her opposition and opposes Johnson’s motion at docket 94. Johnson replies at docket 96. Ahtna also moves at docket 64 to strike names from Johnson’s witness list that were not previously disclosed. Johnson opposes the motion at docket 71. Ahtna replies at docket 77. This court set forth its preliminary opinion at docket 99. Oral argument was heard on June 3, 2009. Based on the parties’ arguments, the court now enters its final order.

II. BACKGROUND

The parties do not appear to dispute the relevant facts. Johnson and her former husband, Henry Williams, first occupied Lot 1 U.S.S. 5590 (the “Lot”), a five-acre parcel of land located near Cantwell, AK, in 1965 as a headquarters site. Johnson and Williams filed Headquarters Site Location Notice F-34755 in August 1965, constructed a cabin, developed access to the property, and applied to acquire title to the Lot. However, Johnson and Williams failed to complete their application within the Bureau of Land Management’s (“BLM”) five-year requirement. On August 19, 1970, the statutory life of the William’s entry expired. Johnson and Williams sought to have their application reinstated, but the BLM denied their request on January 26, 1971. Nevertheless, Johnson and Williams remained on the Lot.

On January 17, 1969, the United States issued Public Land Order (“PLO”) 4582, which withdrew all unreserved public lands in Alaska and reserved them under the jurisdiction of the Secretary of the Interior for determination. PLO 4582 was modified on December 8, 1970 to extend the withdrawal period for lands subject to PLO 4582 through September 30, 1971. Shortly after the end of the withdrawal period, on December 18, 1971, Congress enacted the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. § 1601, et seq.[1] ANCSA was enacted to provide a fair and just settlement of all aboriginal land claims in Alaska. Pursuant to 43 U.S.C. § 1611(a), Ahtna, one of the Regional Corporations created pursuant to ANCSA for the benefit of Alaska Natives, received title to the Lot from the United States on October 23, 1981 by Interim Conveyance No. 443 (“I.C. 443”). On July 26, 1983, Johnson and Williams submitted an application to Ahtna seeking reconveyance of the Lot pursuant to ANCSA § 14(c)(1) (43 U.S.C. § 1613(c)(1)), which Ahtna denied on March 1, 1990 on the ground that BLM had rejected their headquarters site application which rendered them trespassers subject to the judicial interpretation of § 14(c)(1) precluding failed land entrants and trespassers from claiming a right to ANCSA lands.[2]

In 1980, prior to Ahtna’s denial of the application, Congress enacted the Alaska National Interest Lands Conservation Act of 1980 (“ANILCA”), 43 U.S.C. § 1636.[3] ANILCA established the Alaska Land Bank Program, a land conservation measure which provided private land owners the option of placing their undeveloped and unleased lands into a cooperative management program with the Secretary of the Interior, or with the State of Alaska, and provided holders of ANCSA lands certain immunities from claims of adverse possession and real property taxes. In 1988, ANILCA was amended to set forth definitions of “developed” and “leased.”[4] In 1998, ANILCA was again amended by the ANCSA Land Bank Protection Act to specifically exclude from the definition of “developed” “[a]ny lands previously developed by third-party trespassers.”[5] The relevant effect of the amendment was to prevent any adverse possession claims by third-party trespassers who had developed ANCSA lands.

Ahtna filed suit on January 8, 2008 seeking declaratory and injunctive relief with respect to its trespass claim against Williams, who is now deceased, and Johnson, who remains on the Lot. Ahtna also seeks trespass damages for the improvements made to the Lot and nuisance damages arising from alleged environmental hazards “creating a high probability of contamination.” Johnson initially answered Ahtna’s complaint by generally denying the allegations, but has moved for leave to amend her answer to add a counterclaim to quiet title based on adverse possession. Ahtna opposed the motion and argued that Johnson’s amendment would be futile. Ahtna subsequently moved for summary judgment on the ground that Johnson’s adverse possession claim is barred because it was not perfected prior to the 1998 ANILCA amendment which, as discussed above, prohibits claims of adverse possession by third-party trespassers on ANCSA lands. Johnson counters that her claim was perfected prior to 1998 and that the 1998 amendment cannot apply retroactively to bar her adverse possession claim.

On February 2, 2009, Ahtna also moved to strike names not previously disclosed from Johnson’s witness list on the ground that Johnson’s late disclosure is prejudicial to Ahtna’s ability to conduct discovery. Johnson acknowledges her untimeliness, but files a concurrent motion to amend the date of the close of discovery to accommodate Ahtna’s objections to her witness list. Johnson proposes that discovery close 45 days after this court rules on the parties’ cross motions for summary judgment. Ahtna does not oppose the motion to amend the scheduling order. The court considers the parties’ various motions below.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that summary judgment should be granted when there is no genuine dispute about material facts and when the moving party is entitled to judgment as a matter of law. The moving party has the burden to show that material facts are not genuinely disputed.[6] To meet this burden, the moving party must point out the lack of evidence supporting the nonmoving party’s claim, but need not produce evidence negating that claim.[7] Once the moving party meets its burden, the nonmoving party must demonstrate that a genuine issue exists by presenting evidence indicating that certain facts are so disputed that a fact-finder must resolve the dispute at trial.[8] The court must view this evidence in the light most favorable to the nonmoving party, must not assess its credibility, and must draw all justifiable inferences from it in favor of the nonmoving party.[9]

IV. DISCUSSION

A. Motions for Summary Judgment and Johnson’s Motion for Leave to Amend

The central question raised by the parties’ cross motions for summary judgment and Ahtna’s assertion that the motion to amend is futile is whether Johnson perfected her adverse possession of the Lot prior to the 1998 ANILCA amendment. To Ahtna, Johnson could not have perfected her claim of adverse possession until after the 1998 ANILCA amendment. It is Ahtna’s position that at the earliest, Johnson’s claim could not have been perfected until March 1, 2000, 10 years after Ahtna denied Johnson’s 14(c)(1) application for reconveyance. Alternatively, Ahtna argues that Johnson’s claim could not have been perfected until September 17, 2003, 10 years after her counsel repudiated Ahtna’s superior title to the Lot. According to Johnson, her claim was perfected on October 23, 1991, 10 years after Ahtna received title to the Lot from the United States. Contrary to Ahtna’s contention, Johnson argues that her § 14(c)(1) application did not interrupt her period of adverse occupancy. For the reasons discussed below, the court concludes that Johnson’s claim of adverse possession is barred by 43 U.S.C. § 1636(d)(1)(A)(i).

In Alaska, claims of adverse possession are governed by AS 09.10.030. Under AS 09.10.030, Johnson may claim title to the Lot by adverse possession only if she shows by clear and convincing evidence[10] that she has adversely possessed the property for ten consecutive years. AS 09.10.030 provides:

“[A] person may not bring an action for the recovery of real property or for the recovery of the possession of it unless the action is commenced within 10 years. An action may not be maintained under this subsection for the recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor of the plaintiff was seized or possessed of the premises in question within 10 years before the commencement of the action.”[11]

“[I]n order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence, . . . that for the statutory period his use of the land was continuous, open and notorious, exclusive and hostile to the true owner.”[12] Hostility of possession means that one in possession of the land claims the exclusive right to that land. Mere possession does not show hostility to the owner or adversity.[13] However, proof of permissive possession by an occupant destroys adversity.[14] Possession that is accompanied by any express or inferable recognition of the right of the real owner cannot be adverse.[15] “In an action based on adverse possession, the law as it exists at the time the adverse possession is perfected and title passes controls, rather than the law as it exists at the beginning of the adverse occupation.”[16]

As noted above, Johnson filed a claim to the Lot with Ahtna under § 14(c)(1) on July 26, 1983, which Ahtna rejected on March 1, 1990. Ahtna denied the claim pursuant to Donnelly v. United States, which held that § 14(c)(1) could not operate as “a sort of amnesty provision extending rights to individuals who are merely trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971, because there was no indication of congressional intent to override the established principle that individuals could obtain no rights to withdrawn lands.”[17] However, Ahtna noted in its denial letter that it would be possible for Johnson to “negotiate a long-term lease or other mechanism that would allow continued occupancy of the [Lot].”[18] Johnson declined to pursue Ahtna’s offer and retained counsel to contest its denial of the § 14(c)(1) application and its August 19, 1993 demand that she remove her personal belongings from the property within 30 days. Johnson’s counsel repudiated Ahtna’s claim of title on September 17, 1993.

Johnson vigorously argues that her adverse occupancy commenced no later than October 23, 1981, the date when Ahtna was granted title to the Lot by I.C. 443. However, the court concludes that Johnson’s possession of the Lot could not have been adverse until September 17, 1993. From 1981 to 1993, Ahtna permitted Johnson to remain on the land. This is supported by the fact that Ahtna appears to have known of the occupancy by virtue of Johnson’s § 14(c)(1) application, but did not demand that Johnson vacate the Lot until August 1993. It is also supported by the fact that Johnson affirmatively recognized Ahtna’s superior title to the Lot when she applied to Ahtna in 1983 for a reconveyance of the Lot pursuant to § 14(c)(1). At oral argument, counsel for Johnson suggested that Ahtna had acquiesced to, but did not permit, Johnson’s occupancy, citing McDonald v. Harris, which held that “[t]he key difference between acquiescence and permission is that a permissive use requires the acknowledgment by the possessor that he holds in subordination to the owner’s title.”[19] As mentioned above, Johnson’s § 14(c)(1) claim represented an acknowledgment that she held the Lot in subordination to Ahtna’s title, rendering Johnson’s possession permissive under Alaska law. Therefore, because Johnson’s possession of the parcel was permissive until 1993, her claim of adversity is necessarily destroyed.

Johnson contends that her application had no legal effect because § 14(c)(1) imposes a mandatory obligation on Native corporations to reconvey land. This strikes the court as “bootstrapping,” for there is no obligation to convey to a trespasser. In other words, the Native corporation’s § 14(c)(1) duty owed generally to legitimate occupants does not change the fact that Ahtna possessed title to this particular property. To elaborate, because § 14(c)(1) was intended to require a Native corporation to reconvey land only where an applicant demonstrated legal right to the occupied land, only an applicant with a valid executory interest would be entitled to a reconveyance. Johnson’s right to the Lot was withdrawn by the United States in 1971 pursuant to PLO 4582 and the passage of ANCSA, which the BLM confirmed on January 26, 1971. The BLM’s withdrawal of the land rendered Johnson a failed entrant. Thus, any executory interest Johnson might otherwise have claimed was extinguished. Johnson also urges this court to adopt the holdings of the Alaska Supreme Court’s decisions in Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487 (Alaska 1991) and Kenai Peninsula Borough v. Tyonek Native Corp., 807 P.2d 502 (Alaska 1991). Both decisions predate the Land Bank Protection Act of 1998, and neither involves the precise question of whether land “developed” by an alleged adverse occupant is subject to a claim of adverse possession, this court declines to apply their holdings to the instant matter. In any event, a review of these decisions indicates that the Alaska Supreme Court’s reasoning was based on an attempt to reconcile the definition of “developed” as used in an Alaska property tax statute with its use in ANCSA. Here, the question is decidedly different – viz., whether Ahtna is subject to adverse possession claims of title asserted by third-party trespasser/developers under § 1636(d)(1)(A)(i). Finally, because Williams failed to perfect her adverse occupancy prior to passage of the Land Bank Protection Act of 1998, the court sees no need to address her statutory retroactivity argument concerning § 1636(d)(1)(A).

As discussed at oral argument, the court cannot rule on Ahtna’s claim for injunctive relief until the parties have adequately addressed how and when Johnson is expected to vacate the land, the fate of her improvements to the land, and other issues associated with a permanent injunction. To the extent Ahtna’s motion for summary judgment seeks a permanent injunction, it must be denied without prejudice.

B. Motion to Strike Names Not Previously Disclosed from Witness List

Johnson’s unopposed motion to amend the court’s scheduling order at docket 72 was granted at docket 91. This extended discovery to 45 days from the court’s final decision on the pending substantive motions. The extension of discovery reduces the prejudice to Ahtna in allowing Johnson to make a late disclosure of witnesses. In addition, this order affords Ahtna substantial relief which virtually eliminates any prejudice to Ahtna. Under these circumstances, Ahtna’s motion at docket 64 to strike names not previously disclosed from Johnson’s final witness list is denied.

V. CONCLUSION

For the reasons above, Ahtna’s motion for summary judgment at docket 54 is GRANTED in part and DENIED in part as follows: the court grants Ahtna’s motion with respect to Counts I and III, but not Count II. On the other side of the coin, Johnson’s motions at dockets 45 and 68 are DENIED. Finally, Ahtna’s motion at docket 64 is DENIED.

DATED at Anchorage, Alaska, this 4th day of June 2009.

/s/ John W. Sedwick

UNITED STATES DISTRICT JUDGE