Carey Mills v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CAREY CLAYTON MILLS, No. 12-35589
Plaintiff-Appellant,
D.C. No.
v. 4:10-cv-00033-
RRB
UNITED STATES OF AMERICA; SALLY
JEWELL, Secretary of the Department
of the Interior; JULIA DOUGAN, OPINION
Acting State Director, Alaska State
Office; MARK FULLMER, Supervisor
Land Transfer Specialist, Division of
Land Alaska State Office; ROBERT
W. SCHNEIDER, District Manager,
Fairbanks District Office; LENORE
HEPLER, Field Manager, Eastern
Interior Field Office; SCOTT WOOD;
DOYON LIMITED; HUNGWITCHIN
CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted
August 15, 2013—Anchorage, Alaska
2 MILLS V. UNITED STATES

Filed January 29, 2014

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

SUMMARY*

Right-of-Way / Standing

The panel affirmed in part and reversed in part the district
court’s dismissal of plaintiff’s action seeking access to his
state mining claims over real property owned by the federal
government and third parties.

The panel held that plaintiff’s claims against the federal
government were barred by sovereign immunity. The panel
further held that the district court erred in concluding that
plaintiff’s claims against the third parties were barred by
principles of prudential standing, and remanded for further
proceedings. The panel also held that the district court
correctly dismissed plaintiff’s claim that he was entitled to a
right-of-way over the property subject to third party Scott
Wood’s federal unpatented mining claims under 30 U.S.C.
§ 41.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MILLS V. UNITED STATES 3

COUNSEL

Carey Mills, San Antonio, Texas (argued), pro se Plaintiff-
Appellant.

Ignacia S. Moreno, Assistant Attorney General, Dean K.
Dunsmore, Mark R. Haag, and Robert P. Stockman (argued),
Attorneys, Environmental & Natural Resources Division,
United States Department of Justice, Washington D.C., for
Federal Defendants-Appellees.

James D. Linxwiler (argued) and Josh Van Gorkom, Guess &
Rudd P.C, Anchorage, Alaska, for Defendant-Appellee
Doyon, Limited.

OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether an individual
seeking access to his state mining claims over real property
owned by the federal government and third parties can bring
an action asserting a right-of-way over such real property.
We conclude that Mills’s claims against the federal
government are barred by sovereign immunity, but that the
district court erred in concluding that his claims against
Doyon Limited and Hungwitchin Corporation were barred by
principles of prudential standing. We therefore affirm in part
and reverse in part the district court’s dismissal of this action.
4 MILLS V. UNITED STATES

I

Carey Mills has an ownership interest in two state mining
claims on state-owned land. According to Mills, “the only
economically feasible and environmental[ly] friendly
transportation route” to access these claims is over the
Fortymile Station-Eagle Trail (the Fortymile Trail or the
Trail), a trail that runs from a point approximately eight miles
south of Eagle, Alaska (a city near the United States-Canada
border in eastern Alaska), across various federal and non-
federal lands.

Alaska has enacted legislation asserting it has a right-of-
way to the Fortymile Trail under a federal statute commonly
referred to as R.S. 2477, which had been codified at
43 U.S.C. § 932 but was repealed in 1976. See 43 U.S.C.
§ 932 (repealed 1976). R.S. 2477 stated that “[t]he right of
way for the construction of highways over public lands, not
reserved for public uses, is granted.” Id. R.S. 2477 has been
construed as presenting a free right-of-way “‘which takes
effect as soon as it is accepted by the State.’” Lyon v. Gila
River Indian Cmty., 626 F.3d 1059, 1077 (9th Cir. 2010)
(quoting Wilderness Soc'y v. Morton, 479 F.2d 842, 882 (D.C.
Cir. 1973)).1 The state statute provides that Alaska “claims,
occupies, and possesses each right-of-way granted under”
R.S. 2477, and lists the Fortymile Trail among the rights-of-
way that “have been accepted by public users and have been
identified to provide effective notice to the public of these
rights-of-way.” Alaska Stat. § 19.30.400(a), (c)–(d).

1
Although repealed in 1976, “[t]he law repealing R.S. 2477 expressly
preserved any valid, existing right-of-way.” Lyon, 626 F.3d at 1076.
 MILLS V. UNITED STATES 5

The defendants in this action have varying property
interests in the land crossed by the Trail. First, the Trail
crosses federal land that is subject to 15 unpatented federal
mining claims owned by Scott Wood.2 The United States and
Wood have different property interests in these parcels: the
United States owns the legal title to the land, Best v.
Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963),
while Wood has exclusive possessory rights to use of the
surface within the area of the claim. United States v. Locke,
471 U.S. 84, 86 (1985). Second, the Trail crosses land that
is subject to the interests of Doyon Limited and Hungwitchin
Corporation, two Alaska Native Corporations that hold
patents issued by the federal Bureau of Land Management
(BLM) in 2008.3 For most of these lands, Hungwitchin holds
the patent for the surface estate and Doyon holds the patent
for the subsurface estate. Doyon claims it also holds title to
the surface estate in some portion of these lands.

Mills first attempted to obtain access to the Fortymile
Trail administratively by filing an application with the BLM.
In November 2009, Mills applied to the BLM for a right-of-
way for the construction, maintenance, and use of an access
road from Taylor Highway to his mining claim across the

2
The holder of an “unpatented” claim has the right to extract and
develop the mineral deposit, but does not own the land. See Swanson v.
Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993) (“Although ownership of a
mining claim does not confer fee title to the claimant, the claimant does
have the right to extract all minerals from the claim without paying
royalties to the United States.”).
3
“A patented mining claim is one in which the government has passed
its title to the claimant, giving him exclusive title to the locatable minerals,
and, in most cases, the surface and all resources.” Swanson, 3 F.3d at
1350.
6 MILLS V. UNITED STATES

land subject to Wood’s unpatented mining claims. The BLM
denied this application on the ground that it lacked the
authority to approve a right-of-way, and its decision was
upheld on administrative appeal. Mills subsequently asked
the BLM to amend the conveyances to Doyon and
Hungwitchin to include a reservation of an easement for the
Fortymile Trail. Again, the BIA denied the request in March
2010 on the ground that it lacked the legal authority to do so.
Mills has not appealed either of these administrative
decisions, and they are not before us.

In April 2010, in response to Mills’s inquiry, the State
confirmed that it was the owner of the right-of-way to the
Fortymile Trail.

In November 2010, Mills, proceeding pro se, filed this
action raising numerous claims against the federal
government, Wood, Doyon, and Hungwitchin on the ground
that he was entitled to use the Trail for access to his state
mining claims. Mills sought a declaration that he is entitled
to a right-of-way to access his state mining claims on the
Fortymile Trail both under R.S. 2477 and because he has an
easement by implication or necessity, and that the real
property interests claimed by Wood, Doyon, and
Hungwitchin (collectively, the non-federal defendants) are
subject to this right-of-way.

In considering Mills’s claims, the district court concluded
that legal title to any R.S. 2477 right-of-way was vested in
Alaska. Accordingly, the court held that Mills had no
independent property interest in the Fortymile Trail and
instead was merely attempting to enforce the rights of Alaska.
Because the state was not a party to the suit, but was “the
party in the best position to assert its own rights,” the district
 MILLS V. UNITED STATES 7

court tentatively granted Mills’s motion to join Alaska as a
party. After Alaska objected, both under the Eleventh
Amendment and because it had not yet decided whether to
file a quiet title action against the federal government to
confirm the state’s title to the Fortymile Trail right-of-way,
the district court dismissed Mills’s joinder motion.

After allowing Mills to amend his complaint twice, the
district court dismissed Mills’s claims against all defendants.
As relevant here, the district court dismissed certain claims
against Hungwitchin and Doyon on the ground that Mills
lacked prudential standing to bring an action seeking to
establish a right-of-way under R.S. 2477. Further, the district
court dismissed certain claims against the United States
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure on sovereign immunity grounds. Finally, the
district court dismissed Mills’s claim that he was entitled to
a right-of-way under a provision of the General Mining Law,
30 U.S.C. § 41.4 Mills timely appealed these issues, and has
continued to proceed pro se.

4
30 U.S.C. § 41 states:

Where two or more veins intersect or cross each other,
priority of title shall govern, and such prior location
shall be entitled to all ore or mineral contained within
the space of intersection; but the subsequent location
shall have the right-of-way through the space of
intersection for the purposes of the convenient working
of the mine. And where two or more veins unite, the
oldest or prior location shall take the vein below the
point of union, including all the space of intersection.
8 MILLS V. UNITED STATES

II

We review de novo a district court’s grant of a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure. Viewtech,
Inc. v. United States, 653 F.3d 1102, 1103–04 (9th Cir. 2011).
Suits against the government are barred for lack of subject
matter jurisdiction unless the government expressly and
unequivocally waives its sovereign immunity. Fed. Deposit
Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); Tobar v.
United States, 639 F.3d 1191, 1195 (9th Cir. 2011).

The Quiet Title Act (QTA), 28 U.S.C. § 2409a, allows a
plaintiff to name the United States as a defendant in a civil
action “to adjudicate a disputed title to real property in which
the United States claims an interest.”5 Id. § 2409a(a). This
statute “‘provide[s] the exclusive means by which adverse
claimants [can] challenge the United States’ title to real
property,’” Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 132 S. Ct. 2199, 2207 (2012) (quoting
Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,
461 U.S. 273, 286 (1982)), and applies to claims against the

5
28 U.S.C. § 2409a(a) states in full:

The United States may be named as a party defendant
in a civil action under this section to adjudicate a
disputed title to real property in which the United States
claims an interest, other than a security interest or water
rights. This section does not apply to trust or restricted
Indian lands, nor does it apply to or affect actions
which may be or could have been brought under
sections 1346, 1347, 1491, or 2410 of this title, sections
7424, 7425, or 7426 of the Internal Revenue Code of
1986, as amended (26 U.S.C. 7424, 7425, and 7426), or
section 208 of the Act of July 10, 1952 (43 U.S.C. 666).
 MILLS V. UNITED STATES 9

United States for rights of access, easements, and rights-of-
way, as well as those involving fee simple interests. See
McMaster v. United States, 731 F.3d 881, 900 (9th Cir.
2013); Alaska v. Babbitt, 38 F.3d 1068, 1074 (9th Cir. 1994)
(collecting cases). Therefore, Mills’s claim against the
United States for a right of access over the Fortymile Trail
must proceed, if at all, under the QTA.6

In construing the scope of the QTA’s waiver, we have
read narrowly the requirement that the title at issue be
“disputed.” See Alaska v. United States, 201 F.3d 1154,
1164–65 (9th Cir. 2000). For a title to be disputed for
purposes of the QTA, the United States must have adopted a
position in conflict with a third party regarding that title. See
id. In Alaska v. United States, we held that the title to a
riverbed underlying the Black River was not disputed because
the government had not expressly asserted a claim with
respect to that real property. See id. Even though the United
States did not disclaim its interest to the riverbed, and
reserved the right to make a claim to the riverbed in the
future, we reasoned that “whatever dispute there may be, it
has not yet occurred,” and concluded that “[a] title cannot be
said to be ‘disputed’ by the United States if it has never
disputed it.” Id. at 1165. Because the title to the riverbed
was not disputed for purposes of the QTA, we remanded for
the district court to dismiss the claim for lack of subject
matter jurisdiction. Id.

6
The QTA is not the exclusive remedy for claims that do not “involv[e]
adverse title disputes with the government,” such as claims that are
“founded on administrative wrongdoing.” McMaster, 731 F.3d at 899.
Mills, however, declined to amend his complaint to add such a claim
under the Administrative Procedures Act, although offered the opportunity
to do so.
10 MILLS V. UNITED STATES

As in Alaska v. United States, here the United States does
not expressly dispute the existence of an R.S. 2477 right-of-
way for the Fortymile Trail. The BLM stated only that the
United States lacked the authority to make a determination as
to the existence of an R.S. 2477 right-of-way. Nor has the
United States taken an action that implicitly disputes the
Fortymile Trail right-of-way. Although Mills’s complaint
alleges that a BLM employee denied him access to the
Fortymile Trail, this isolated allegation is insufficient to raise
the inference that the United States disputes the R.S. 2477
right-of-way. First, the government stated in open court that
the United States did not intend to prevent Mills from
accessing the Fortymile Trail. A federal employee’s decision
to deny Mills access to the route is not evidence that the
United States has taken a contrary position. See Wagner v.
Dir., Fed. Emergency Mgmt. Agency, 847 F.2d 515, 519 (9th
Cir. 1988) (observing that “[t]he government could scarcely
function if it were bound by its employees’ unauthorized
representations” (internal quotation marks omitted)).
Moreover, Mills’s complaint does not allege that the federal
employee denied him access because the government
disputed the existence of an R.S. 2477 right-of-way. The
federal employee could have barred Mills’s use of the right-
of-way for other reasons. See Adams v. United States, 3 F.3d
1254, 1258 n.1 (9th Cir. 1993) (stating that, even if the
landowners had an easement under R.S. 2477, “they would
still be subject to reasonable Forest Service regulations”).

Because the United States does not currently dispute the
existence of an R.S. 2477 right-of-way over the Fortymile
Trail, Mills’s action does not meet the QTA’s requirement
that title “be disputed.” The QTA’s waiver of sovereign
immunity is therefore inapplicable to this case. In the
absence of such a waiver, the district court lacked jurisdiction
 MILLS V. UNITED STATES 11

to hear Mills’s claims against the United States under the
QTA. Because Mills does not claim any other basis for a
waiver of sovereign immunity, the district court did not err in
dismissing this claim.

III

We next consider the district court’s conclusion that Mills
lacked prudential standing to bring his action against
Hungwitchin and Doyon. We review this ruling de novo. La
Asociacion de Trabajadores de Lake Forest v. City of Lake
Forest, 624 F.3d 1083, 1087 (9th Cir. 2010).

A

Prudential standing is “not compelled by the language of
the Constitution.” Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, Inc., 454 U.S. 464,
471, 474–75 (1982). Rather, rules of prudential standing are
“flexible rule[s]” applied to ensure the “concrete adverseness
which sharpens the presentation of issues upon which . . .
court[s] so largely depend[] for illumination of difficult
constitutional questions.” United States v. Windsor, 133 S.
Ct. 2675, 2686–87 (2013) (internal quotation marks and
citations omitted). Among other requirements, “‘the plaintiff
generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests
of third parties.’” Valley Forge, 454 U.S. at 474 (quoting
Warth v. Seldin, 422 U.S. 490, 499 (1975)).7 Courts

7
The Supreme Court has listed two other prudential standing
considerations. First, “even when the plaintiff has alleged redressable
injury sufficient to meet the requirements of Art. III, the Court has
refrained from adjudicating abstract questions of wide public significance
12 MILLS V. UNITED STATES

“typically decline to hear cases asserting rights properly
belonging to third parties rather than the plaintiff.”
McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870,
878 (9th Cir. 2011). There are limited exceptions to this rule,
however. It may be “necessary to grant a third party standing
to assert the rights of another” when (1) “the party asserting
the right has a ‘close’ relationship with the person who
possesses the right” and (2) “there is a ‘hindrance’ to the
possessor’s ability to protect his own interests.” Kowalski v.
Tesmer, 543 U.S. 125, 130 (2004) (citing Powers v. Ohio,
499 U.S. 400, 411 (1991)).

Here, Mills asserts both his own interest in the Fortymile
Trail, claiming that he “has an easement by ‘necessity’ and/or
by ‘implication’ over the R.S. 2477 rights-of-way,” and also
alleges that he may assert Alaska’s title to the R.S. 2477 route
(either as a member of the public or as a private attorney
general).

We have previously considered plaintiffs’ claims that they
were entitled to an easement or right-of-way over an R.S.
2477 road to access real property they owned. In Adams, we
considered the landowners’ claim to an easement over an R.S.

which amount to generalized grievances, pervasively shared and most
appropriately addressed in the representative branches.” Valley Forge,
454 U.S. at 474–75 (internal quotation marks omitted). Second, “the
Court has required that the plaintiff’s complaint fall within the zone of
interests to be protected or regulated by the statute or constitutional
guarantee in question.” Id. at 475 (quoting Ass’n of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 153 (1970)); see also Individuals for
Responsible Gov't Inc. v. Washoe County, 110 F.3d 699, 703 (9th Cir.
1997) (noting that the zone-of-interests test is applied “most frequently in
suits brought under the Administrative Procedure Act,” but has been
applied to “claims under the Constitution in general.”).
 MILLS V. UNITED STATES 13

2477 right-of-way that connected two noncontiguous tracts of
land which they owned within a national forest. 3 F.3d at
1255. We explained that “[t]o establish an easement, the
[landowners] must show that the road in question was built
before the surrounding land lost its public character.” Id. at
1258. We denied the landowners an easement over the road
pursuant to R.S. 2477, but only because the district court had
found that the road at issue was no longer in the same
location as the historical road. Id.; see also Schultz v. Dep’t
of Army, 96 F.3d 1222, 1223 (9th Cir. 1996) (considering and
rejecting a landowner’s claim to a right-of-way across federal
property to access his own property under R.S. 2477 or state
common law).

We have also determined that a landowner has standing
to seek a right of access over an R.S. 2477 right-of-way to
access his landlocked property. See Lyon, 626 F.3d at
1076–77. In Lyon, the trustee of a bankruptcy estate sought
a right-of-way over two R.S. 2477 roads to access real
property surrounded by Indian reservation lands. Id. at
1066–67. The tribe argued that the trustee could not bring
such a claim for two reasons: the claim had to be brought as
a quiet title action against the federal government, and the
trustee lacked Article III standing “to assert the public’s
collective right to use a road under R.S. 2477.” Id. at 1076.
We rejected both arguments. First, we held that because the
trustee “seeks only a declaration against the [tribe] that he has
legal access” to the property, and such a declaration does not
bind the United States, the trustee did not have to proceed
under the QTA. Id. Second, we held that the trustee had
Article III standing to bring this claim. We reasoned the
trustee had a sufficiently particularized interest in seeking a
declaration that he could use the R.S. 2477 route to access the
landlocked property, because absent such a declaration, the
14 MILLS V. UNITED STATES

trustee could be exposed to liability for trespass. Id. at
1076–77.

Although neither Adams nor Lyon expressly addressed
prudential standing, they both implicitly adopted the common
sense view that landowners seeking a right-of-way for access
to their own property have a sufficiently individualized and
personal interest in bringing suit, and are not attempting to
raise rights belonging to third parties or the general public.
The analysis may be different if a plaintiff seeking a
declaration regarding an R.S. 2477 route “lacks any
independent property rights of its own.” See Wilderness
Soc’y v. Kane Cnty., 632 F.3d 1162, 1171 (10th Cir. 2011)
(en banc) (Kelly, J., plurality) (holding that an environmental
group lacked prudential standing to bring an action
challenging a county government’s assertion of R.S. 2477
rights over federal lands). But when landowners bring a legal
action seeking a right to access their own land, there is little
risk that the litigation will lack the “concrete adverseness”
required to illuminate difficult legal issues. Windsor, 133 S.
Ct. at 2687 (internal quotations omitted). Indeed, state courts
frequently adjudicate actions by private landowners claiming
an R.S. 2477 right-of-way to access their own land. See, e.g.,
Fitzgerald v. Puddicombe, 918 P.2d 1017, 1021–22 (Alaska
1996) (permitting holders of mining claims to access their
property by means of an R.S. 2477 right-of-way over private
property); Anderson v. Richards, 96 Nev. 318, 321–22 (1980)
(allowing private landowner to access his own land by means
of an R.S. 2477 right-of-way over his neighbors’ property);
Ball v. Stephens, 68 Cal. App. 2d 843 (1945) (holding that the
private defendant could not bar the plaintiff from accessing
his mining claim over an R.S. 2477 right-of-way).
 MILLS V. UNITED STATES 15

Accordingly, we conclude that the flexible prudential
standing doctrine does not bar a legal action by landowners
asserting an interest in accessing their own property over an
alleged R.S. 2477 route.

Here, Mills brings precisely that sort of claim: he seeks
a declaration that he may use a right-of-way over private
property to access his own property interests. If successful,
Mills’s suit would prevent Doyon, Hungwitchin and Wood
from barring Mills’s access or suing him for trespass, but
would not be binding on the federal government. Nor would
it place additional burdens on Alaska, as Doyon argues.
Alaska has already stated in a statute that it “claims, occupies,
and possesses” the R.S. 2477 right-of-way in the Fortymile
Trail, Alaska Stat. § 19.30.400(a), (d), and Doyon does not
explain why Alaska would have any additional maintenance
obligations if Mills succeeded on the merits of his action.

Because Mills asserts his own right to use the Fortymile
Trail to access his state mining claims, his action may not be
dismissed on prudential standing grounds. Accordingly, we
need not consider Mills’s claim that he could assert the rights
of Alaska to the Fortymile Trail either as a member of the
public or as a private attorney general. We therefore reverse
the district court’s dismissal of Mills’s claims against
Woods,8 Doyon, and Hungwitchin, and remand for
proceedings consistent with this opinion.

8
Mills may seek a declaration that Wood, as the current possessor of the
unpatented claim, may not bar him from traveling on the alleged R.S.
2477 right-of-way. Because such a declaration would be binding only on
Wood, not the federal government, his action does not implicate the QTA.
Accordingly, we deny Woods’s outstanding motion seeking dismissal
from the case.
16 MILLS V. UNITED STATES

B

The district court correctly dismissed Mills’s claim that
he was entitled to a right-of-way over the property subject to
Wood’s federal unpatented mining claims under 30 U.S.C.
§ 41. By its terms, this section is limited to providing a
procedure for reconciling two competing mining interests in
veins of ore. Thus “[w]here two or more veins intersect or
cross each other, priority of title shall govern,” but the holder
of the subsequent claim “shall have the right-of-way through
the space of intersection for the purposes of the convenient
working of the mine.” Id. As this text makes clear, § 41
applies only in situations where “two or more veins intersect
or cross each other.” Here, Mills’s complaint makes no
allegations regarding intersecting or crossing veins, and Mills
does not contend he is engaged in a dispute regarding priority
of title to ore or minerals. See Calhoun Gold Mining Co. v.
Ajax Gold Mining Co., 182 U.S. 499 (1901) (applying § 41 to
a dispute over intersecting underground veins of ore).
Section 41 is therefore inapplicable, and the district court
correctly dismissed this claim against Wood.9

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART.

9
To the extent Mills appeals the district court’s dismissal of claims
under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), the Declaratory
Judgment Act, 28 U.S.C. § 2201, or other theories, they were not
“specifically and distinctly” argued in the opening brief and therefore are
waived. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).