Not for Publication in West's Federal Reporter
Citation is Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1701
UNITED STATES,
Plaintiff,
COMMONWEALTH OF MASSACHUSETTS,
Intervenor, Appellee,
v.
ROY E. ESTY; HOBART B. ESTY; HOWARD T. ESTY,
Defendants, Appellants,
12,367.47 ACRES OF LAND, MORE OR LESS, LOCATED IN ESSEX COUNTY
MASSACHUSETTS,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Arthur K. Ross, Jr., with whom Peter M. Ross and Ross and Ross
were on the brief, for Appellants.
Frank J. Teague, Special Assistant Attorney General, and
McCullough, Stievater & Polvere, LLP for Intervenor-Appellee.
February 18, 2004
Per Curiam. Appellants initiated proceedings to gain
title to a property fifty-three years after the United States
condemned it and nearly forty years after the federal government
transferred title to the Commonwealth of Massachusetts. Their
procedural vehicle for this relief is Fed. R. Civ. P. 60(b).
Agreeing with the district court that the appellants' request for
relief is too late, we affirm.
I.
We provide a brief overview of the historical facts,
which are not materially in dispute. The United States created the
Parker River National Wildlife Refuge in Essex County,
Massachusetts in 1945 by acquiring property through eminent domain.
See United States v. 12,367.47 Acres of Land More or Less Situated
in Essex County, Massachusetts, Civil No. 7010 (D. Mass. Jan. 2,
1945). Before the government could finish compensating all of the
landowners whose property had been taken, Congress passed the 1948
"Exclusion Act," Pub. L. No. 80-579, 62 Stat. 293, to reduce the
size of the wildlife refuge. The Exclusion Act directed the
Secretary of the Interior to "dispose of all of the interests of
the United States" in certain identified plots of land that had
been acquired through the earlier condemnation proceedings. If the
previous owners had already been paid for the property, Section
2(a) of the Act entitled them to regain ownership by returning the
funds to the United States. If the owners had not been paid,
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Section 2(b) directed the Attorney General to return title to the
former owners within ninety days or "within such additional period
as the court in such proceeding may determine to be necessary to
effectuate the purposes of [the] Act." If the government could not
locate the former owners or if title could not be returned under
Sections 2(a) or 2(b) for any other reason, Section 2(c) mandated
that the property "be disposed of in such manner and at such prices
as the Secretary of the Interior may deem to be in the best
interests of the United States." The United States Attorney's
office developed a plan, with the district court's approval, for
implementing the Exclusion Act. This plan was designed to return
property to any former owner who filed a "stipulation for
exclusion," to pay just compensation--as determined by the court--
to the former owners who preferred money instead of their property,
and to provide sufficient time to locate the owners whom the
government was not able to contact.
The district court, upon motion by the United States
Attorney, extended four times (on September 2, 1948; March 1, 1949;
September 26, 1949; and March 15, 1956) the deadlines by which
former landowners could elect to exclude their property from the
taking. On June 4, 1959, the United States Department of the
Interior, exercising its authority under Section 2(c) of the
Exclusion Act, sold all of the property covered by the Act but not
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excluded by former owners to the Commonwealth of Massachusetts
Division of Fisheries and Game.
The property at issue in this case, a 23 acre plot
located in Groveland, Massachusetts and referred to by the parties
as "Lot 95," was owned by the estate of the late William Merrill
prior to the taking by the United States in 1945. The federal
government had not compensated Merrill when Congress passed the
Exclusion Act in 1948, and the U.S. Attorney had not received an
election from the Merrill estate pursuant to the Exclusion Act
prior to the June 4, 1959 sale. Therefore, Lot 95 was included
with the unclaimed properties that the United States transferred to
the Commonwealth in 1959. That land is now included within a
wildlife management area operated by the Commonwealth.
In June 1949, more than four years after the United
States had acquired title to Lot 95, the Town of Groveland
attempted to take title to Lot 95 from the Merrill Estate by
purportedly foreclosing a preexisting tax lien on the lot. On June
30, 1949, the town transferred at auction the putative title to the
lot to Ralph A. Esty,1 a town selectman, a life long resident of
Groveland, and the owner of the Ralph A. Esty and Sons lumber
company. Esty sold the property to his sons, the appellants, in
1953. Although the sons paid taxes on the property for a few
1
Esty had experience with the federal taking and the related
exclusion process since, as a town official, he had participated in
proceedings to exclude another lot under the Exclusion Act.
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years, they stopped paying taxes approximately forty-four years
ago.
The appellants failed to object to either the federal
taking or the transfer of Lot 95 to the Commonwealth until 1998,
fifty-three years after the district court issued its judgment of
taking and nearly forty years after the United States transferred
title to the Commonwealth. Nevertheless, in 1998, the appellants
filed a "Motion to Exclude Lot 95 or to Vacate Judgment Regarding
Lot 95" in the district court. The United States, apparently
believing that it still owned the property, stipulated to the
exclusion without notifying the Commonwealth, and the court issued
a Judgment of Exclusion on February 17, 1999.
The Commonwealth subsequently objected to this judgment
in a November 8, 1999 letter, stating that it had not received any
notice of either the stipulation or the district court action. On
May 1, 2001, the United States moved to vacate the Judgment of
Exclusion under Fed. R. Civ. P. 60(b), and it entered a joint
motion with the Commonwealth to allow the Commonwealth to
intervene. The court granted both motions on August 1, 2001. On
April 9, 2003, the court granted summary judgment "to the
Commonwealth against the claim of the Estys (as set forth in the
Estys' 'Motion to Exclude Lot 95 or to Vacate Judgment Regarding
Lot 95')." In the body of its opinion, the district court ruled
that "[b]ecause the Estys did not have an interest in Lot 95 at the
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time of the taking, they may not invoke the Exclusion Act to void
the sale of Lot 95 to the Commonwealth. Moreover, I find the
period of Exclusion was properly terminated by [the district court]
in 1959." In footnote 1 of its opinion, the district court set
forth an alternative ground for its ruling:
Given (a) the length of the Estys' delay, (b)
the lack of justification, and (c) the
prejudicial disruption of the Commonwealth
conservation efforts at the locus for the past
more than 40 years, I find no extraordinary
circumstances justifying invocation of Rule
60(b) in this setting to divest the
Commonwealth of its title in Lot 95.
Although we agree with the district court's analysis of the merits
of the Estys' claim in its summary judgment ruling, we choose to
focus our brief comments of affirmance on the court's ruling under
Rule 60(b).2
II.
Fed. R. Civ. P. 60(b) allows a court "[o]n motion and
upon such terms as are just, [to] relieve a party . . . from a
final judgment." Pursuant to the subsections of Rule 60(b) not
2
The United States also relied on Rule 60(b) to vacate the
Judgment of Exclusion that had been entered before the Commonwealth
became involved in these proceedings. The appellants claim that
the district court abused its discretion by considering this
motion. Since they only dedicated a paragraph to this claim in
their appellate brief and failed to develop any argument, we
consider this claim to be waived. See United States v. Bongiorno,
106 F.3d 1027, 1034 (1st Cir. 1997) ("We have steadfastly deemed
waived issues raised on appeal in a perfunctory manner, not
accompanied by developed argumentation.").
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limited by the requirement of filing "not more than one year after
the judgment, order or proceeding was entered or taken," the motion
must be made within a "reasonable time." Fed. R. Civ. P. 60(b)(4)-
(6). "What is 'reasonable' depends upon the circumstances of the
particular case. The circumstances to be considered include the
length of the delay, the justification for it, and the prejudice
(if any) associated with the granting of relief." Farm Credit Bank
v. Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003) (citation
omitted). The appellants waited thirty-nine years after the United
States transferred title to the Commonwealth to file their motion.
By any measure, that is an exceptionally long delay. When the
appellants finally chose to file their Rule 60 motion, they neither
claimed that they were unaware of the Commonwealth's claim of
ownership nor that their ability to file this motion in a more
timely fashion was impeded in some way. In fact, they failed to
provide any explanation or excuse for their long delay.3 The
3
The appellants try to avoid the need to explain their delay
by invoking a specious subject matter jurisdiction argument,
apparently on the theory that subject matter jurisdiction can be
raised at any time. Subject matter jurisdiction concerns the
"'power [of the court] to declare the law'" in the dispute before
it. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
The appellants argue that the 1948 Exclusion Act stripped the
federal district court of the "power to do anything with Lot 95
except exclude it from the taking." This argument does not
implicate the district court's subject matter jurisdiction in the
1950s in dealing with Lot 95; it is an ordinary and misguided
statutory interpretation argument addressed to the merits of the
court's decision.
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prejudice to the Commonwealth if it were divested of title to Lot
95 is clear. It has relied on the title that it acquired from the
United States for the past forty-five years, through its operation
of a wildlife management area. In sum, we have seldom seen a
weaker claim for 60(b) relief.
Affirmed.
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