Lyon v. Gila River Indian Community

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

G. GRANT LYON, 
Plaintiff-counter-defendant-
Appellee, No. 08-15570
v.  D.C. No.
GILA RIVER INDIAN COMMUNITY, 05-CV-02045-JAT
Defendant-counter-plaintiff-
Appellant.

In re: MICHAEL KEITH SCHUGG, 
DBA Shuburg Holsteins; DEBRA
SCHUGG,
Debtor,
No. 08-15712
G. GRANT LYON,
Plaintiff-counter-defendant-  D.C. No.
2:05-CV-02045-JAT
Appellee Cross Appellant, OPINION
v.
GILA RIVER INDIAN COMMUNITY,
Defendant-counter-plaintiff-
Appellant Cross Appellee.

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding

Argued and Submitted
January 14, 2010—San Francisco, California

Filed November 24, 2010

18775
18776 LYON v. GILA RIVER INDIAN COMMUNITY
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Wallace
 LYON v. GILA RIVER INDIAN COMMUNITY 18779

COUNSEL

Patricia A. Millett (argued), Mark J. MacDougall and Troy D.
Cahill, of Akin Gump Strauss Hauer & Feld LLP, Washing-
18780 LYON v. GILA RIVER INDIAN COMMUNITY
ton, D.C., and Jennifer Kay Giff, Pima Maricopa Tribe Law
Office, Sacaton, Arizona, for appellant/cross-appellee Gila
River Indian Community.

Paul F. Eckstein (argued), Richard M. Lorenzen and Joel W.
Nomkin, Perkins Coie Brown & Bain P.A., Phoenix, Arizona,
for appellee/cross-appellant G. Grant Lyon.

OPINION

WALLACE, Senior Circuit Judge:

This appeal involves a dispute between an Indian tribe and
the trustee of a bankruptcy estate over the rights of access to
and occupation of a parcel of land completely surrounded by
Indian reservation land. The district court had jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1334. We have jurisdiction
to hear this appeal pursuant to 28 U.S.C. § 1291, and we
affirm in part and vacate in part.

I.

The center of the parties’ dispute is “Section 16,” a parcel
of about 657 acres in Pinal County, Arizona. The land sur-
rounding Section 16 is part of an Indian reservation (Reserva-
tion) belonging to the Gila River Indian Community
(Community), a federally recognized Indian tribe. We start
with the history of Section 16 and the Reservation.

The Community historically occupied the land that is now
south-central Arizona. See Gila River Pima-Maricopa Indian
Cmty. v. United States, 24 Ind. Cl. Comm’n 301, 303, 335
(1970). Through the 1853 Gadsden Purchase, the United
States acquired title to land from Mexico, including what is
now Section 16. The following year, Congress adopted a law
providing that when a survey was completed of the lands
 LYON v. GILA RIVER INDIAN COMMUNITY 18781
within the purchased territory, “sections numbered sixteen
and thirty-six in each township, in said Territory, shall be, and
the same are hereby, reserved for the purpose of being applied
to schools in said Territory, and in the States and Territories
hereafter to be created out of the same.” Act of July 22, 1854,
ch. 103, § 5, 10 Stat. 308, 309. The lands were not literally
meant to be sites for school buildings. Instead, the state was
able to sell and lease them to produce funds supporting its
schools. Lassen v. Arizona ex rel. Ariz. Highway Dep’t, 385
U.S. 458, 463 (1967). In 1863, Congress partitioned the Terri-
tory of New Mexico to create the Territory of Arizona. Act of
Feb. 24, 1863, ch. 56, § 1-2, 12 Stat. 664, 664-65. Section 16
became property of Arizona when a survey of the land was
filed in 1877. See United States v. S. Pac. Transp. Co., 601
F.2d 1059, 1067 (9th Cir. 1979).

In 1859, Congress created a reservation for the Community.
Act of Feb. 28, 1859, ch. 66, § 3-4, 11 Stat. 388, 401; see also
Gila River Pima-Maricopa Indian Cmty., 24 Ind. Cl. Comm’n
at 303. The Reservation did not originally abut Section 16; the
borders of the Reservation were later enlarged through a
series of executive orders. Of relevance here, an executive
order dated November 15, 1883 added to the Reservation a
parcel of land immediately to the north of Section 16, and an
executive order dated June 2, 1913 added to the Reservation
the land immediately to the south, east and west of Section
16. The result is that since 1913, Section 16 has been com-
pletely surrounded by Reservation land. Section 16 can be
accessed using Smith-Enke Road, an east-west road that runs
adjacent to the southern boundary of Section 16 and crosses
Reservation land before continuing west to the City of Mari-
copa and east to the City of Sacaton. Section 16 can also be
accessed by Murphy Road, a north-south road that runs adja-
cent to the eastern boundary of Section 16 and crosses Reser-
vation land before continuing south to the City of Maricopa,
and north for two miles until intersecting with another road at
a point within the Reservation.
18782 LYON v. GILA RIVER INDIAN COMMUNITY
The State of Arizona held Section 16 until 1929, when it
sold the parcel to an individual named J.L. Hodges, pursuant
to a patent conveying the land “together with all the rights,
privileges, immunities and appurtenances of whatsoever
nature” and “subject to any and all easements or rights of way
heretofore legally obtained.” Section 16 has since been sold
several times, each time conveyed by a deed containing simi-
lar language. In 2001, a company called S&T Dairy, L.L.C.,
owned by the children of Michael and Debra Schugg (the
Schuggs), purchased Section 16 and constructed a dairy on
the property. In 2003, S&T Dairy conveyed Section 16 to the
Schuggs. In 2004, the Schuggs sought to have Section 16
rezoned, from “rural” to “transitional,” a change that would
allow construction of a higher-density housing development.
Pinal County rejected the Schuggs’ application to rezone Sec-
tion 16.

Also in 2004, the Schuggs declared bankruptcy and listed
Section 16 as their largest asset. G. Grant Lyon was appointed
the Chapter 11 Trustee (Trustee) of the Schuggs’ bankruptcy
estates. During the bankruptcy proceedings, the Community
filed a proof of claim asserting, of relevance here, that it had
(1) “an exclusive right to use and occupy” Section 16, (2) “au-
thority to impose zoning and water use restrictions” on Sec-
tion 16, and (3) “a right to injunctive and other relief for
trespass on reservation lands and lands to which it holds
aboriginal title.” In response, the Trustee initiated an adver-
sary proceeding seeking a declaratory judgment that the
Schuggs’ estate had legal title and access to Section 16. The
district court granted the Community’s unopposed motion to
withdraw the reference, thereby transferring the adversary
proceeding to the district court.

In the district court, the Community moved to dismiss the
case on the basis that the litigation should not proceed without
the United States as a party. See Fed. R. Civ. P. 19. The dis-
trict court denied the motion without prejudice to its renewal.
The Community then filed an answer and counterclaims
 LYON v. GILA RIVER INDIAN COMMUNITY 18783
against the Trustee. The Community alleged, as it had in its
proof of claim, that it held aboriginal title to Section 16; that
nonmembers had no right to cross Reservation land to access
Section 16 and had therefore committed trespass to reach the
parcel; and that it had authority to establish zoning and water
use restrictions for Section 16. The Community sought declar-
atory and injunctive relief prohibiting the Schuggs from fur-
ther trespass and compensatory damages for past trespasses.

On cross-motions for summary judgment, the district court
granted the Trustee’s motion in part, ruling that the Commu-
nity did not hold aboriginal title to Section 16. It denied sum-
mary judgment on all other issues.

Following a bench trial, the district court issued findings of
fact and conclusions of law. The district court held that the
United States was not an indispensable party under Rule 19.
The district court also determined that the Trustee had an
implied easement over Smith-Enke Road to access Section
16. It further concluded that the Trustee had a right of access
over Murphy Road, either because of an implied easement or
because the relevant portion of the road was an Indian Reser-
vation Road that must remain open for public use. The district
court held, therefore, that the Schuggs had not trespassed on
Reservation land. The district court rejected the Trustee’s
argument that it had a right to access Section 16 on the addi-
tional ground that Smith-Enke and Murphy Roads were public
roads under Revised Statute 2477 (R.S. 2477), 43 U.S.C.
§ 932 (repealed 1976). Finally, addressing the Community’s
assertion of authority to control the zoning of Section 16, the
district court held that the issue was not ripe for decision. The
Community appeals from the district court’s judgment regard-
ing necessary and indispensable parties, the Trustee’s rights
of access to Section 16, and the rejection of the Community’s
assertions of aboriginal title and zoning authority over Section
16. The Trustee cross-appeals from the district court’s judg-
ment that Smith-Enke Road and Murphy Road are not public
roads under R.S. 2477.
18784 LYON v. GILA RIVER INDIAN COMMUNITY
II.

We first review the district court’s determinations, under
Rule 19, that this case could proceed without the United
States or the individual Indian allottees of land abutting Sec-
tion 16. We review a district court’s decision regarding join-
der for abuse of discretion, but we review legal conclusions
underlying that decision de novo. E.E.O.C. v. Peabody West-
ern Coal Co., 400 F.3d 774, 778 (9th Cir. 2005).

A court first determines which parties must be joined under
the criteria of Rule 19(a). See Fed. R. Civ. P. 19(a). Then, if
a party that meets the criteria cannot be joined, the court must
decide “whether, in equity and good conscience, the action
should proceed among the existing parties or should be dis-
missed.” Fed. R. Civ. P. 19(b).

The Community argues that the United States was a neces-
sary party to the dispute over the Community’s aboriginal title
claim and the Trustee’s alleged rights of access to Section 16.
The Community further argues that, because the United States
could not be joined due to sovereign immunity, the case
should have been dismissed. Of course, the United States may
be necessary as to some claims and not others. See Makah
Indian Tribe v. Verity, 910 F.2d 555, 559 (9th Cir. 1990)
(Indian tribes were necessary to some, but not all, claims
asserted in the action). We first determine whether the United
States was a necessary and indispensable party to the Com-
munity’s aboriginal title claim. We then analyze whether the
United States was a necessary and indispensable party to
claims regarding the Trustee’s rights of access.

A.

[1] Aboriginal title is a “permissive right of occupancy
granted by the federal government to the aboriginal posses-
sors of the land.” United States v. Gemmill, 535 F.2d 1145,
1147 (9th Cir. 1976). “It is mere possession not specifically
 LYON v. GILA RIVER INDIAN COMMUNITY 18785
recognized as ownership . . . and may be extinguished by the
federal government at any time,” although such “extinguish-
ment cannot be lightly implied in view of the avowed solici-
tude of the Federal Government for the welfare of its Indian
wards.” Id. (internal quotation marks and citations omitted).
Whether a tribe has aboriginal title to occupy land is an
inquiry entirely separate from the question of who holds fee
title to land. Indeed, it is possible for a party to take title to
land subject to an aboriginal right of occupancy. See, e.g.,
Beecher v. Wetherby, 95 U.S. 517, 525-26 (1877) (federal
government transferred fee “subject to” an aboriginal right of
occupancy).

[2] With regard to the Community’s claim of aboriginal
title, we hold that the United States is not a necessary party
under the criteria of Rule 19(a). The United States does not
“claim[ ] an interest” in Section 16. The United States granted
Section 16 to Arizona and has not since held it either in fee
or as a trustee. Fee title to the Reservation land is held by the
United States in trust for the Community, but Section 16 is
not, and has never been, part of the Reservation. Thus, the
United States has no interest in Section 16.

In addition, complete relief can be accorded among the
existing parties without joining the United States. See Fed. R.
Civ. P. 19(a). The Community’s claim of aboriginal title is
based on a theory that the federal government’s transfer of
Section 16 to Arizona (and hence to all subsequent owners)
was subject to the Community’s aboriginal title. The Commu-
nity argues that its aboriginal title to Section 16 cannot be
extinguished without the consent of the United States, and
that the United States must be joined to obtain that consent.
This premise is wrong. The district court did not purport to
extinguish aboriginal title. Rather, the district court deter-
mined whether Congress had already extinguished the Com-
munity’s aboriginal title. Joinder of the United States is not
necessary to answer that question.
18786 LYON v. GILA RIVER INDIAN COMMUNITY
Because the United States is not required to be joined in
order to adjudicate the Community’s aboriginal title claims,
we need not decide whether such claims can proceed without
the United States under Rule 19(b). We also need not decide
whether the United States has waived its sovereign immunity
as to actions regarding aboriginal title.

B.

[3] We next determine whether the United States is neces-
sary and indispensable to adjudication of claims regarding the
Trustee’s rights of access to Section 16. In this regard, the
Trustee does not dispute the district court’s conclusion that
the United States should be joined as a necessary party under
Rule 19(a). The United States holds legal title to the Reserva-
tion lands as a trustee for the Community, and any right of
access to Section 16 must run over Reservation land. The
United States therefore has an interest in the parties’ right of
way disputes because judicial recognition of an easement
would impair the government’s right. Cf. United States v.
Vascarajs, 908 F.2d 443, 445-47 (9th Cir. 1990). If the claims
regarding rights of access to Section 16 are resolved without
the federal government’s participation in this action, the result
may “as a practical matter impair or impede the [govern-
ment’s] ability to protect the interest.” Fed. R. Civ. P.
19(a)(1)(B)(i). Thus, the United States should be joined under
Rule 19(a).

[4] The district court concluded, and the Trustee does not
dispute, that the United States’ joinder was impossible
because it had not waived sovereign immunity. We therefore
review “whether, in equity and good conscience, the action
should proceed among the existing parties or should be dis-
missed.” Fed. R. Civ. P. 19(b).

The Community argues that the United States is an indis-
pensable party under Minnesota v. United States, 305 U.S.
382 (1939). There, the State of Minnesota sought to take by
 LYON v. GILA RIVER INDIAN COMMUNITY 18787
condemnation a right-of-way for a highway over parcels of
land that were part of a reservation and allotted to individual
members of an Indian tribe. Id. at 383-84. The state named the
United States, as holder of the fee in trust, as a defendant
along with the individual allottees. Id. at 384. The United
States moved to dismiss on the ground that, although it was
a necessary party without which the case could not proceed,
it could not be sued due to sovereign immunity. Id. The Court
held:

The United States is an indispensable party defen-
dant to the condemnation proceedings. A proceeding
against property in which the United States has an
interest is a suit against the United States. It is con-
fessedly the owner of the fee of the Indian allotted
lands and holds the same in trust for the allottees. As
the United States owns the fee of these parcels, the
right of way cannot be condemned without making
it a party. . . . The fee of the United States is not a
dry legal title divorced from substantial powers and
responsibilities with relation to the land. . . . In the
stronger case of a trust allotment, it would seem
clear that no effective relief can be given in a pro-
ceeding to which the United States is not a party and
that the United States is therefore an indispensable
party to any suit to establish or acquire an interest in
the lands.

Id. at 386-87 & n.1 (internal citations omitted). Minnesota did
not distinguish between attempts to create new interests in
land and attempts to have pre-existing interests recognized.
See also Carlson v. Tulalip Tribes of Wash., 510 F.2d 1337,
1338-39 (9th Cir. 1975) (United States indispensable party to
individuals’ action to quite title to land claimed by Indian
tribe as part of reservation).

[5] Although an action to establish an interest in Indian
lands held by the United States in trust generally may not pro-
18788 LYON v. GILA RIVER INDIAN COMMUNITY
ceed without it, that rule does not apply where the tribe has
filed the claim to protect its own interest. We recognized this
exception in Puyallup Indian Tribe v. Port of Tacoma, 717
F.2d 1251 (9th Cir. 1983). In that case, a tribe claimed benefi-
cial title to twelve acres of exposed riverbed, and sued the
Port of Tacoma, which possessed and controlled the land at
issue. The Port argued that the United States was a necessary
and indispensable party, but we disagreed: “[T]he rule is clear
in this Circuit and elsewhere that, in a suit by an Indian tribe
to protect its interest in tribal lands, regardless of whether the
United States is a necessary party under Rule 19(a), it is not
an indispensable party in whose absence litigation cannot pro-
ceed under Rule 19(b).” Id. at 1254. We distinguished Minne-
sota and Tulalip Tribes on the basis that those cases were
“instituted by non-Indians for the purpose of effecting the
alienation of tribal or restricted lands, not by individual Indi-
ans or a tribe seeking to protect Indian land from alienation.”
Id. at 1255 n.1. We recognized that our holding was some-
what incongruous, but it was nevertheless our circuit’s law:
“Whether the Tribe is the plaintiff or the defendant in any
given suit would not seem particularly relevant in a joinder
decision under Rule 19(b), according to the factors set forth
in the rule. We do not question, however, the distinction
established in our circuit . . . for determining indispensability
under Rule 19(b).” Id.; see also Skokomish Indian Tribe v.
France, 269 F.2d 555, 556-57, 560 (9th Cir. 1959) (United
States not indispensable party to trespass and quiet title action
brought by Indian tribe).

[6] The Community argues that the Trustee was the
aggressor in this litigation because he asserted title to Section
16 by listing it as a bankruptcy asset, and because he initiated
the adversarial proceeding in bankruptcy court. For purposes
of the Puyallup exception, however, we conclude that the
Community effectively initiated this litigation by filing a
proof of claim in the bankruptcy court contesting the Trust-
ee’s title and access rights to Section 16. It is true that the fil-
ing of a proof of claim does not make the claim “disputed” or
 LYON v. GILA RIVER INDIAN COMMUNITY 18789
initiate an adversary proceeding. See Lundell v. Anchor Con-
str. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir. 2000)
(“The filing of an objection to a proof of claim ‘creates a dis-
pute which is a contested matter’ within the meaning of Bank-
ruptcy Rule 9014 . . .”). But we agree with the district court:
the Community “really stands in the shoes of a plaintiff” in
this case. By filing a proof of claim asserting that the estate
had no right to occupy or access its most significant asset, the
Community “had to know that there would be an objection
which could be litigated only as an adversary proceeding with
[the Community] named as the defendant.”

The Community argues that it was “forced” to “react[ ]
defensively to protect its rights” by filing its proof of claim.
The Trustee did not seek to alienate Section 16 from the Com-
munity, however: it simply listed what it believed was an
asset of the Schuggs’ bankruptcy estate. Cf. In re G.I. Indus.,
Inc., 204 F.3d 1276, 1280 (9th Cir. 2000) (“By filing the
proof of claim, Benedor voluntarily subjected the agreement
[underlying the claim] to the bankruptcy court’s jurisdiction
. . . .”); Bass v. Olson, 378 F.2d 818, 820 & n.4 (9th Cir.
1967) (“[W]hen an adverse claimant comes into a bankruptcy
court of his own motion for a determination of title to prop-
erty, he . . . consents to the entry of an affirmative judgment
in favor of the trustee.”). Moreover, the Community’s proof
of claim challenged not only the Schuggs’ rights in Section
16, but also asserted the Community’s “exclusive right[s] to
use and occupy Reservation lands surrounding” Section 16,
asserted that the Community possessed authority to impose
“zoning and water use restrictions” on Section 16, and sought
relief for previous trespasses. Filing a proof of claim contest-
ing the Schuggs’ right to occupy Section 16 did not inherently
raise issues regarding access to and zoning of Section 16.
Such disputes were solely raised by the Community.

[7] In light of these several considerations, we hold that the
Puyallup exception to the Minnesota rule applies here. This
case is more similar to “a tribe seeking to protect Indian land
18790 LYON v. GILA RIVER INDIAN COMMUNITY
from alienation,” such that the United States is not an indis-
pensable party, than to a case of “litigation . . . instituted by
non-Indians for the purpose of effecting the alienation of
tribal or restricted lands.” Puyallup, 717 F.2d at 1255 n.1.
None of the specific Rule 19(b) factors suggests that we
should carve out an exception to the Puyallup exception in
this particular case. For example, the government’s interests
are shared and adequately represented by the Community.
And this case presents significantly different circumstances
than those in Republic of Philippines v. Pimentel, 553 U.S.
851 (2008), which narrowly held that a particular suit could
not go forward when it threatened to prejudice the interests of
a foreign sovereign that had invoked sovereign immunity. Id.
at 855. The United States is therefore not an indispensable
party to this litigation under Rule 19(b).

C.

The district court also concluded that individual Indian
allottees of the land surrounding Section 16 were not required
parties under Rule 19. The district court observed that the
Community “offered only conclusory statements concerning
the individual allottees’ interest in this action.” The district
court also observed that, like the United States, the individual
allottees were not bound by any judgment in this case. The
Community disagrees, arguing that these individuals claim an
interest relating to the subject of the action, and that this case
will impair their ability to protect that interest.

[8] Assuming, without deciding, that the individual allot-
tees were required parties under Rule 19(a), the litigation
could proceed without them under Rule 19(b). The allottees’
interests were adequately represented by the Community.
There is no reason to believe that the Community did not
make all of the arguments that would have been made by the
individual allottees, or that the individuals “would offer any
necessary element to the proceedings that the present parties
 LYON v. GILA RIVER INDIAN COMMUNITY 18791
would neglect.” Washington v. Daley, 173 F.3d 1158, 1167
(9th Cir. 1999) (internal quotation marks omitted).

III.

We next turn to the district court’s rulings on the merits.
We review the district court’s findings of fact for clear error,
and review its conclusions of law de novo. Adams v. United
States, 255 F.3d 787, 792-93 (9th Cir. 2001).

We first consider whether the district court erred in holding
that the Trustee had an implied easement over reservation
lands, across Smith-Enke Road and Murphy Road, in order to
access Section 16. The district court concluded that when Sec-
tion 16 was conveyed to Arizona as school land in 1877, an
implied easement to access Section 16 was also conveyed.
This implied easement, the district court determined, then
passed to all subsequent owners of Section 16.

A.

The Community first argues that the Trustee’s claim to a
common law easement is preempted by federal procedures for
obtaining rights of way over Indian lands. Although these pro-
cedures were not created until after conveyance of the alleged
easement in 1877, the Community urges that preemption
applies to the claim of the easement now asserted. But noth-
ing in the scheme indicates that Congress, in creating proce-
dures for obtaining new rights of way, intended to preempt all
claims to previously acquired rights of way, such that holders
of pre-existing easements would have to go through the new
procedures.

To support its preemption argument, the Community relies
on Adams v. United States, 3 F.3d 1254 (9th Cir. 1993);
Adams, 255 F.3d at 787; and Fitzgerald Living Trust v. United
States, 460 F.3d 1259 (9th Cir. 2006). These three cases con-
cerned landowners who claimed easements through national
18792 LYON v. GILA RIVER INDIAN COMMUNITY
forests. They are of little help here because they dealt with an
entirely different statutory scheme under which landowners
whose property was surrounded by national forests were
guaranteed reasonable access over federal land and therefore
did not need a common-law easement to cross it. Even there,
the presence of a preexisting common-law easement is rele-
vant to whether regulations governing access are reasonable.
See Fitzgerald, 460 F.3d at 1263-64.

[9] We hold that the Trustee’s claim of a pre-existing ease-
ment to access Section 16 is not preempted by the existence
of a regulatory scheme for obtaining new easements over
Indian lands.

B.

We turn now to the merits of the Trustee’s right-of-access
claims. The Trustee argued that an implied easement gave the
Schuggs a right to cross Reservation land in order to enter
Section 16. The district court agreed, holding that, “when Sec-
tion 16 was conveyed as school land to the then Territory of
Arizona, an implied easement to the land also was conveyed,”
and the implied easement was conveyed to all subsequent pur-
chasers, including the Schuggs.

[10] We first examine whether the federal government’s
conveyance of Section 16 to Arizona, as part of a school land
grant, included an implied easement. Courts normally con-
strue federal land grants narrowly, under a longstanding “rule
that unless the language in a land grant is clear and explicit,
the grant will be construed to favor the [granting] government
so that nothing passes by implication.” Fitzgerald, 460 F.3d
at 1265; see also McFarland v. Kempthorne, 545 F.3d 1106,
1112 (9th Cir. 2008). However, there is an exception to this
general rule where the land grant at issue was made pursuant
to “legislation of Congress designed to aid the common
schools of the states;” in such cases, the grants are “to be con-
strued liberally rather than restrictively.” Wyoming v. United
 LYON v. GILA RIVER INDIAN COMMUNITY 18793
States, 255 U.S. 489, 508 (1921); see also Oregon v. Bureau
of Land Mgmt., 876 F.2d 1419, 1432 (9th Cir. 1989).

It is true that the statute conveying Section 16 to Arizona
mentions no easement or right of access. But the question is
whether the district court properly held there was an implied
one. Utah v. Andrus dealt with a land grant to Utah by the
United States on the condition that Utah “use the proceeds of
the granted lands for a permanent state school trust fund.” 486
F. Supp. 995, 1000 (D. Utah 1979). The land so granted was
surrounded by federal land. Many years later, Utah leased the
land to a company that wished to mine it but could not do so
without crossing federal land. The district court held:

Given the rule of liberal construction [of school land
grants] and the Congressional intent of enabling the
state to use the school lands as a means of generating
revenue, the court must conclude that Congress
intended that Utah (or its lessees) have access to the
school lands. Unless a right of access is inferred, the
very purpose of the school trust lands would fail.
Without access the state could not develop the trust
lands in any fashion and they would become eco-
nomically worthless. This Congress did not intend.
. . . Therefore, the court holds that the state of Utah
and . . . Utah’s lessee do have the right to cross fed-
eral land to reach section 36, which is a portion of
the school trust lands.

Id. at 1002.

[11] This reasoning is persuasive: In granting lands to a
state for the purpose of funding schools, the federal govern-
ment must have intended some right of access to the land or
the purpose of the land grants would fail. Thus, in Koniag,
Inc. v. Koncor Forest Resource, we similarly implied a right
of reasonable access. 39 F.3d 991, 996 (9th Cir. 1994). In
Koniag, a partnership made up of Indian villages owned sur-
18794 LYON v. GILA RIVER INDIAN COMMUNITY
face rights to harvest timber pursuant to a grant from the
United States, while the subsurface rights were owned by a
regional corporation. We held that the Indian partnership had
a reasonable right to use the subsurface rock to accomplish its
timber-harvesting operations. In reaching this conclusion, we
examined “several factors, including congressional intent, the
degree of necessity for the easement, whether consideration
was given for the land, whether the claim is against the United
States or against a simultaneous conveyee, and the terms of
the patent itself.” Id. Here, Congress’s intent in granting Sec-
tion 16 to Arizona was to allow Arizona to use or to sell the
parcel to raise money for the support of public schools. The
property would have had little monetary value if there was no
right of access to it.

The Community argues that we should not follow the rea-
soning of Andrus because there the right of access was
implied over federal wilderness land, not across Indian land.
The Community argues that no right of access should be
implied over Indian land pursuant to the “principle deeply
rooted in [the Supreme] Court’s Indian jurisprudence: statutes
are to be construed liberally in favor of the Indians, with
ambiguous provisions interpreted to their benefit.” County of
Yakima v. Confederated Tribes & Bands of Yakima Indian
Nation, 502 U.S. 251, 269 (1992) (internal quotation marks
and alteration omitted). The Community urges that any dimin-
ishment of rights in their land must be accomplished by lan-
guage showing an “express congressional purpose” to do so.
Solem v. Bartlett, 465 U.S. 463, 475 (1984).

[12] The Community’s argument ignores the fact that in
1877, when the federal government granted Section 16 to Ari-
zona, the lands surrounding Section 16 were not Indian lands.
The Community’s Reservation, as created in 1859, did not
abut Section 16. Land north of Section 16 was added to the
Reservation in 1883, and land to the south, east, and west of
Section 16 was added to the Reservation in 1913. Thus, when
the federal government granted Section 16 to Arizona in
 LYON v. GILA RIVER INDIAN COMMUNITY 18795
1877, an implied easement accompanying the grant would not
have interfered with Indian land at all. Section 16 was not sur-
rounded by Indian lands until 1913, pursuant to an executive
order specifically providing that the expansion “shall be sub-
ject to any existing valid rights of any persons to the lands
described.” By this language, any pre-existing easements
were effectively preserved, including the pre-existing implied
easement to access Section 16. We hold, therefore, that the
district court properly implied an easement in the federal gov-
ernment’s grant of Section 16 to Arizona, and that easement
was not disturbed by the subsequent expansion of the Reser-
vation.

[13] The Community alternatively argues that even if an
implied easement was created in 1877 for the benefit of Ari-
zona, it would not have “silently” passed to subsequent pur-
chasers of Section 16. But the deed transferring Section 16
from Arizona to J.L. Hodges in 1929—more than a decade
after the land became surrounded by the Reservation—clearly
specified that the purchaser received “all the rights, privileges,
immunities and appurtenances of whatsoever nature.” We
have held that “the word ‘appurtenance’ will carry with it an
existing easement.” Fitzgerald, 460 F.3d at 1267. Subsequent
deeds transferring Section 16 contained similar language. We
therefore hold that the implied easement Arizona obtained
from the federal government in 1877 was effectively con-
veyed to each subsequent purchaser of Section 16.

C.

The Trustee asked the district court to opine on the scope
of any easement. The district court held that there was no
actual controversy regarding the scope of the Trustees’ ease-
ment, and properly declined to issue an advisory opinion on
that subject. See generally Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-61 (1992).

The Trustee has not shown that there is a live controversy
with regard to the scope of any easement. There is no indica-
18796 LYON v. GILA RIVER INDIAN COMMUNITY
tion that the roads or utilities as they currently exist are inade-
quate to support the current use of Section 16, or that the
Trustee has any intent to improve the roads or utilities. The
parties may disagree in principle over what activities the
Trustee may undertake on those roads, but there is as yet no
particularized or imminent injury arising out of that disagree-
ment.

IV.

The district court held that, in addition to or as an alterna-
tive to the implied easement, the Trustee has a right to access
Section 16 across Murphy Road because that road was an
Indian Reservation Road (IRR) open to the public. The dis-
trict court observed that the Community had maintained the
road and allowed public travel on it for many years, such that
the owners of Section 16 came to rely on it. The district court
concluded that the doctrine of laches barred the Community
from arguing that the relevant section of Murphy Road was
not an IRR open to the public.

A.

[14] An IRR is defined as “a public road that is located
within or provides access to an Indian reservation” or other
Indian land. 23 U.S.C. § 101(a)(12). A “public road,” in turn,
is “any road or street under the jurisdiction of and maintained
by a public authority and open to public travel.” Id.
§ 101(a)(27). A “public authority” may include a federal, state
or municipal government or instrumentality, or an Indian
tribe. Id. § 101(a)(23). IRRs generally must be open and
available for public use. 25 C.F.R. § 170.120. “Certain IRR
transportation facilities [a term that includes public roads, 25
C.F.R. § 170.5] owned by the tribes or BIA [Bureau of Indian
Affairs] may be permanently closed when the tribal govern-
ment and the Secretary agree. Once this agreement is reached,
BIA must remove the facility from the IRR System.” Id. at
 LYON v. GILA RIVER INDIAN COMMUNITY 18797
§ 170.813(c). The “IRR System means all the roads and brid-
ges that comprise the IRR.” Id. at § 170.5.

Here, the Community argues that the part of Murphy Road
running across Reservation land is neither publicly main-
tained nor open to the public. It submits that it once main-
tained the section of Murphy Road at issue, but stopped doing
so when the BIA removed that section of road from the “IRR
Inventory” in early 2007. “The IRR Inventory is a compre-
hensive database of all transportation facilities eligible for
IRR Program funding . . . .” 25 C.F.R. § 170.442(a). The
Community also asserts that the BIA approved its posting of
“No Trespassing” signs on the road. It unsuccessfully
attempted to introduce evidence in the district court about the
BIA’s removal of the relevant section of Murphy Road from
the IRR Inventory. The district court excluded the evidence
on multiple grounds. The Community also moved for judicial
notice of the BIA’s action, but that motion was denied.

[15] We hold that the district court erred in refusing to take
judicial notice of this official action by the BIA, which repre-
sents the BIA’s opinion that Murphy Road is not an IRR.
Courts may take judicial notice of facts whose “existence is
‘capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.’ ”
W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4
(9th Cir. 2008). It must be taken when a party requests it and
supplies all necessary information. Fed. R. Evid. 201(d); cf.
Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295
F.3d 918, 924 n.3 (9th Cir. 2002) (“Although that decision is
still subject to further administrative and judicial review, and
therefore not finally dispositive of any issue in the case, the
existence of the ongoing litigation within FERC is an adjudi-
cative fact relevant to this case. Further, the existence of the
opinion is not in dispute, nor are its contents. Therefore, we
take judicial notice of the entirety of [the decision]”) (internal
citations omitted). The Trustee does not allege that it would
be prejudiced by the court’s taking of judicial notice of the
18798 LYON v. GILA RIVER INDIAN COMMUNITY
BIA’s action. Indeed, the Trustee was informed of the BIA’s
decision “in a matter of days” after it was made, and has
apparently appealed the BIA decision.

The district court’s decision also conflicts with the primary
jurisdiction doctrine, which applies when “an otherwise cog-
nizable claim implicates technical and policy questions that
should be addressed in the first instance by the agency with
regulatory authority over the relevant industry rather than by
the judicial branch.” Clark v. Time Warner Cable, 523 F.3d
1110, 1114 (9th Cir. 2008). This doctrine “is not designed to
secure expert advice from agencies every time a court is pre-
sented with an issue conceivably within the agency’s ambit,”
but should be used “if a claim requires resolution of an issue
of first impression, or of a particularly complicated issue that
Congress has committed to a regulatory agency, and if protec-
tion of the integrity of a regulatory scheme dictates prelimi-
nary resort to the agency which administers the scheme.” Id.
(internal quotation marks and citations omitted).

[16] We conclude that the district court should not have
ignored the BIA’s removal of the relevant portion of Murphy
Road from the IRR Inventory. Instead, the district court
should have at least stayed its decision pending ongoing BIA
proceedings on the issue. See Clark, 523 F.3d at 1114-15.
BIA proceedings on the issue are apparently ongoing. The
BIA’s initial decision that the relevant portion of Murphy
Road should not be included in the IRR Inventory is on
appeal to the Interior Board of Indian Appeals. The IRR sys-
tem is administered by the BIA under a detailed regulatory
scheme, and uniformity is important. We therefore vacate and
remand this issue to the district court for further consider-
ation.

[17] There is a related issue that we should review in order
to guide the district court on remand: the application of
laches. The district court held that, because the Community
had allowed public access to Murphy Road and maintained
 LYON v. GILA RIVER INDIAN COMMUNITY 18799
the road for many years, the doctrine of laches precluded the
Community from now disclaiming that Murphy Road is an
IRR. “Laches requires proof of (1) lack of diligence by the
party against whom the defense is asserted, and (2) prejudice
to the party asserting the defense.” United States v. Dang, 488
F.3d 1135, 1144 (9th Cir. 2007) (internal quotation marks
omitted). Prejudice typically means that evidence is no longer
available or that the party asserting laches has “altered its
[behavior] in reliance on a plaintiff’s inaction.” Wauchope v.
U.S. Dep’t of State, 985 F.2d 1407, 1412 (9th Cir. 1993).
Here, the Trustee asserts that Section 16 owners, and particu-
larly the Schuggs, have relied on the Community’s treatment
of Murphy Road as an IRR. That reliance was not reasonable,
however, given that the regulations governing IRRs explicitly
contemplate that a road may be closed to the public upon the
agreement of the tribe and the BIA. 25 C.F.R. § 170.813.
There is also no evidence that the Schuggs were relying on
the road’s status as an IRR rather than on the implied ease-
ment the district court found to exist. We therefore hold that
the district court erred in applying laches to conclude that a
section of Murphy Road is an IRR.

V.

[18] The Trustee cross-appeals from the district court’s
holding that Smith-Enke Road and Murphy Road, which pro-
vide access to Section 16, are not public roads under R.S.
2477. Prior to its repeal in 1976, R.S. 2477 authorized rights-
of-way for the construction of highways over public lands not
reserved for public uses. 43 U.S.C. § 932 (repealed 1976).
The law repealing R.S. 2477 expressly preserved any valid,
existing right-of-way. See Adams, 3 F.3d at 1258. The ques-
tion is therefore whether Smith-Enke Road and Murphy Road
were valid R.S. 2477 roads in 1976.

A.

We must first address the Community’s arguments that the
district court lacked jurisdiction to decide this issue. The
18800 LYON v. GILA RIVER INDIAN COMMUNITY
Community argues that the Trustee’s R.S. 2477 claim is
essentially an action to quiet title to lands held by the United
States. The Community points out that such an action may
only be brought under the Quiet Title Act, which expressly
preserves the federal government’s sovereign immunity with
respect to claims regarding Indian lands held in trust by the
United States. 28 U.S.C. § 2409a(a).

The Trustee’s R.S. 2477 argument is not effectively an
action to quiet title. The Trustee is not seeking a declaration
against the United States. He does not contest the federal gov-
ernment’s “title” to the roads or claim a property interest in
them. Rather, the Trustee seeks only a declaration against the
Community that he has legal access to Section 16, which will
not bind the United States.

The Community next argues that the Trustee does not have
Article III “standing to assert the public’s collective right to
use a road under R.S. 2477” because he has no more particu-
larized interest than any other member of the public. To have
standing, the Trustee must have a “concrete and particular-
ized” injury that is more than a “mere generalized grievance.”
Alaska Right to Life PAC v. Feldman, 504 F.3d 840, 848-49
(9th Cir. 2007). But here, the Trustee has not attempted to
obtain a general declaration against the United States regard-
ing whether Murphy Road and Smith-Enke Road are R.S.
2477 roads. Rather, he simply seeks a declaration that will
bind the Community, to defeat its assertion that the Schuggs
have been trespassing on Reservation land. The “threat of lia-
bility for civil or criminal trespass constitutes the type of
injury that . . . is both ‘concrete and particularized,’ and
‘actual or imminent’ ” for purposes of standing. Dixon v.
Edwards, 290 F.3d 699, 712 (4th Cir. 2002).

B.

[19] Moving to the merits of the issue, it is the Trustee’s
burden to establish the existence of an R.S. 2477 route. Shultz
 LYON v. GILA RIVER INDIAN COMMUNITY 18801
v. Dep’t of Army, 96 F.3d 1222, 1223 (9th Cir. 1996). Federal
Revised Statute 2477 did not itself create R.S. 2477 roads;
rather, it authorized the states to construct highways over pub-
lic lands. Thus, for Murphy Road and Smith-Enke Road to be
R.S. 2477 roads, Arizona had to establish them as highways
over public land in accordance with Arizona state law. See
Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 250 (9th
Cir. 1974) (explaining that right of way under R.S. 2477
comes into existence “automatically when a public highway
[is] established across public lands in accordance with the
law of the state”) (emphasis added). R.S. 2477 acts “as a pres-
ent grant which takes effect as soon as it is accepted by the
State,” and acceptance requires merely “some positive act on
the part of the appropriate public authorities of the state,
clearly manifesting an intention to accept.” Wilderness Soc’y
v. Morton, 479 F.2d 842, 882 (D.C. Cir. 1973) (internal quo-
tation marks omitted). Thus, the first question is whether Ari-
zona at some point established these roads as public highways
under Arizona law and if so, whether these roads crossed
lands that were “public lands” at that time.

1.

As to the first question, the Trustee urges that there is evi-
dence that a road existed in the general location of present-
day Smith-Enke Road since at least 1913, and a road in the
general location of present-day Murphy Road since at least
1875. The mere existence of these roads is not enough to
make them “public highways,” however. Rather, Arizona
must have taken some affirmative act to accept the grant rep-
resented by R.S. 2477. See id.

[20] The Trustee points to a declaration by Pinal County in
1922 that public roads ran along all section lines in the region.
Because Smith-Enke Road and Murphy Road were aligned
with section lines, the Trustee argues that the 1922 declaration
made these roads into public highways under Arizona law.
We will assume without deciding that Pinal County’s 1922
18802 LYON v. GILA RIVER INDIAN COMMUNITY
declaration was a sufficient governmental action to create
state “highways,” which eventually became present-day Mur-
phy Road and Smith-Enke Road. We will also assume without
deciding that Arizona thereby took sufficient action to accept
the grant of an R.S. 2477 right of way.

2.

[21] The question then becomes whether, in 1922, those
“highways” ran across “public land.” This is where the Trust-
ee’s argument fails. It is undisputed that a 1913 executive
order expanded the Community’s Reservation to completely
surround Section 16. The district court therefore concluded
that, at the time of Pinal County’s 1922 declaration, Murphy
Road and Smith-Enke Road ran across land that had become
part of the Reservation and therefore lost its public character.

[22] The Trustee’s reply is a counterintuitive proposition:
that the Reservation land added by executive order was some-
how still “public land.” The Trustee’s argument invokes a dis-
tinction between the creation or expansion of a reservation by
executive order and by an act of Congress. The Trustee
asserts that Indian reservation boundaries set by executive
order may be modified by Congress at any time, and that Con-
gress need not compensate Indian tribes for reducing a reser-
vation expanded by executive order. The Trustee relies on
Sioux Tribe of Indians v. United States, which held that an
Indian tribe was not entitled to compensation upon the aboli-
tion of a reservation established by executive order, although
a tribe would be entitled to compensation upon the abolition
of a reservation established by Congress. 316 U.S. 317
(1942). But the Supreme Court recognized in Sioux Tribe of
Indians v. United States that it still “lay within the power of
the President to withdraw lands from the public domain.” 316
U.S. 317, 325 (1942). Executive and congressional reserva-
tion grants may differ as to whether a tribe is entitled to com-
pensation in the event of revocation, but that does not change
the fact that “the executive orders . . . involved here were
 LYON v. GILA RIVER INDIAN COMMUNITY 18803
effective to withdraw the lands in question from the public
domain.” Id.; see also Id. at 326, 331. Accordingly, the rele-
vant lands in this case were removed from the public domain
by the executive order expanding the Community’s Reserva-
tion.

[23] We hold that the Trustee failed to show that Arizona
established Smith-Enke Road and Murphy Road as public
highways crossing public land. They are not R.S. 2477 roads.

VI.

We now turn to the Community’s claim of aboriginal title
to Section 16. The district court held that any aboriginal title
held by the Community to Section 16 was extinguished in
1877 when the federal government conveyed Section 16 to
Arizona. The court concluded that because Section 16 was
granted to Arizona “for the ‘support of common schools,’ ” it
followed “that Congress would not intend the land, to be used
as a revenue generator, to be burdened with a superior right
of use and occupancy such as aboriginal title.”

The Community argues that aboriginal title can only be
extinguished through an unambiguous action and should not
have been implied here, because the school land grant was
silent on the issue. The Community cites cases in which the
Supreme Court has held that school land conveyances vest the
fee in the state subject to any aboriginal title. These cases are
distinguishable because they involved situations where a pre-
existing treaty had preserved the aboriginal title. See United
States v. Thomas, 151 U.S. 577, 584 (1894) (holding that “by
virtue of the treaty . . . the title and right which the state may
claim ultimately to the sixteenth section of every township for
the use of schools is subordinate to this right of occupancy of
the Indians.” (emphasis added)); Wisconsin v. Hitchcock, 201
U.S. 202, 213-15 (1906); Beecher, 95 U.S. at 525.

[24] The Community protests that there is no rationale for
a distinction between an Indian tribe’s right of possession pur-
18804 LYON v. GILA RIVER INDIAN COMMUNITY
suant to a treaty (as in Beecher, Thomas and Hitchcock) and
an Indian tribe’s right of possession pursuant only to aborigi-
nal title. But the rationale in those cases is that the Indian
tribe’s right of possession gained by treaty is akin to a con-
tract right negotiated in exchange for some valuable consider-
ation and not subject to unilateral revocation by the federal
government. Here there was no such right of possession when
Section 16 was conveyed to Arizona in exchange for some
valuable consideration. In this case, at the time that Section 16
was conveyed to Arizona, the Community had no such recog-
nized right of possession.

[25] The district court thus correctly held that the convey-
ance extinguished the Community’s aboriginal title to Section
16. Accord Gemmill, 535 F.2d at 1147-49 (series of federal
actions “clearly demonstrate[d]” title extinguished).

Because we hold that the Community’s aboriginal title was
extinguished in 1877, we need not reach the Trustee’s alterna-
tive argument that the Community is collaterally estopped
from asserting aboriginal title because the Indian Claims
Commission already determined that the Community’s
aboriginal title had been extinguished and awarded compensa-
tion to the Community for the loss of that title.

VII.

We have now determined that the Trustee had a valid right
of access to Section 16, and that the Community’s aboriginal
title to Section 16 has been extinguished. The parties raise one
final question: does the Community have zoning authority to
prevent future residential development of Section 16? The
district court correctly found that the issue was not ripe for
decision. See Cal. ex rel. Lockyer v. United States Dept. of
Agriculture, 575 F.3d 999, 1011 (9th Cir. 2009).

The record before us shows that the possibility that Section
16 might be developed as a housing subdivision is speculative
 LYON v. GILA RIVER INDIAN COMMUNITY 18805
at this time. Pinal County has refused to alter the zoning of
Section 16 to allow such a development, and there are no cur-
rent plans to sell Section 16 to a developer or to construct a
housing development on Section 16. “A claim is not ripe for
adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.”
Texas v. United States, 523 U.S. 296, 300 (1998) (internal
quotation marks and citation omitted); see also Bova v. City
of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). We have no
opportunity to address the claim on its merits, or to review the
district court’s alternative holdings.

AFFIRMED in Part; Vacated and Remanded in Part.
Each party shall bear its own costs.