Skranak v. Castenada

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HENRY SKRANAK, 
Plaintiff,
and
ALAN SKRANAK; JAMES SKRANAK,
Plaintiffs-Appellants, No. 04-35053
v.  D.C. No.
CV-00-00233-DWM
ROBERT CASTENADA, Supervisor,
Kootenai National Forest; UNITED
STATES FOREST SERVICE, of the
United States Department of
Agriculture,
Defendants-Appellees.


CHARLES W. HARPOLE, 
Plaintiff-Appellant,
v. No. 04-35056
ROBERT CASTENADA, Supervisor,
Kootenai National Forest; UNITED  D.C. No.
CV-00-00232-DWM
STATES FOREST SERVICE, of the
OPINION
United States Department of
Agriculture,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Argued and Submitted
February 10, 2005—Seattle, Washington

13989
13990 SKRANAK v. CASTENADA
Filed October 12, 2005

Before: Monroe G. McKay,* Diarmuid F. O’Scannlain, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Monroe G. McKay, Senior United States Circuit Judge
for the Tenth Circuit, sitting by designation.
 SKRANAK v. CASTENADA 13993

COUNSEL

Ward A. Shanahan, Gough, Shanahan, Johnson and Water-
man, Helena, Montana, argued the cause for the appellants
and was on the briefs.

Katherine W. Hazard, Washington, D.C., argued the cause for
the appellees. Thomas L. Sansonetti, Assistant Attorney Gen-
eral, Ruth Ann Storey, and John Smeltzer, United States
Department of Justice, Washington, D.C., and Alan Campbell
and James Snow, United States Department of Agriculture,
Washington, D.C., were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the United States Forest Service
properly denied owners access to their patented mining claims
within the Kootenai National Forest in Montana.

I

A

Alan Skranak and James Skranak (“the Skranaks”) cur-
rently own the 50-acre “Fourth-of-July” tract,1 consisting of

1
Control passed to them when their father, Henry Skranak, died during
this litigation.
13994 SKRANAK v. CASTENADA
four mining claims in the Kootenai National Forest in Mon-
tana. The United States granted a patent on one in 1907 and
on the other three in 1912. A six-foot wide wagon road was
built to the tract in 1902. The road has long since been closed
to motorized traffic and now functions as the Fourth-of-July
trail.

Henry Skranak, the Skranaks’ father, bought the Fourth-of-
July tract in 1961 and has had numerous run-ins with the For-
est Service over issues of access in his efforts to work the
mining claims. In 1995 Henry Skranak requested a special use
permit under the Alaska National Interest Land Conservation
Act (“ANILCA”) to construct a 2.1-mile access road on and
near the Fourth-of-July trail. The Forest Service considered
the request and its potential effects on endangered species,
water quality, and recreation, among other concerns. The For-
est Service decided to allow the road to be built, but along a
different, 2.52-mile route, in order to minimize its impact.
Road construction would only be permitted from June 16 to
October 15 in each year. The Forest Service promised to issue
an “easement” good for a ten-year period and renewable
thereafter upon completion of construction, estimated to be
within two to three years. In order to protect grizzlies, the
Forest Service would permit only 46 vehicle round trips from
June 16 to September 15, and 38 round trips from September
16 to November 15, with unlimited access in the winter. Use
would be forbidden from April 1 to June 15.

B

Charles Harpole owns the 40-acre “Wayup Mine” tract,
consisting of two mining claims which the United States pat-
ented in 1903. Currently, a non-system primitive road off of
Forest Road 6746 (“FR 6746”) provides access. FR 6746 is
open year round to motorized traffic, but is in need of mainte-
nance and reconstruction. The Forest Service states that FR
6746 was built sometime between 1900 and 1930, and has not
been maintained for 30 years. The non-system road is 1.3
 SKRANAK v. CASTENADA 13995
miles long and in need of significant work before it can be
used by motorized traffic.

Beginning in 1983, Harpole worked the mining claims epi-
sodically. During such times, the Forest Service allowed him
to have access but required that he obtain a permit. The Forest
Service has blocked access entirely during those periods in
which Harpole was not using it.

In 1995, after nearly a decade of inactivity, Harpole applied
for a special use permit under ANILCA to reconstruct and to
use FR 6746 and the non-system road. The Forest Service
considered the request and its potential effects on endangered
species, water quality, and recreation, among other concerns
and granted Harpole’s permit, but with conditions. Road con-
struction would only be permitted from June 16 to October 15
in each year. The Forest Service promised to issue an “ease-
ment” good for a ten-year period and renewable thereafter
upon completion of construction, estimated to be within two
to three years. In order to protect grizzlies, the Forest Service
would permit only 38 vehicle round trips from April 1 to June
15, 46 vehicle round trips from June 16 to September 15, and
38 vehicle round trips from September 16 to November 15,
with unlimited access in the winter.

C

Henry Skranak and Harpole appealed from the denial of
unconditional permits, complaining that the special use per-
mits either took or ignored their easements. They also com-
plained that they ought not to bear the cost of improving
Forest Service roads that would become accessible to the pub-
lic. The Forest Service denied their joint administrative
appeal.

At that point, the Skranaks (their father having died and
ownership of the Fourth-of-July tract having passed to them)
filed suit in district court to quiet title to an easement to the
13996 SKRANAK v. CASTENADA
Fourth-of-July tract under the Quiet Title Act and to challenge
the Forest Service’s permit as arbitrary and capricious under
the Administrative Procedure Act (“APA”). In a separate
action, Harpole raised similar Quiet Title Act and APA claims
with respect to the Wayup Mine.

On cross motions in the two respective actions, the district
court granted summary judgments in favor of the Forest Ser-
vice. The district court held that neither the Skranaks or Har-
pole had owned an easement under any theory; that if they
did, ANILCA had extinguished it; and, with respect to the
APA claims, that the conditions on the permits were reason-
able.

Harpole and the Skranaks have timely appealed.

II

[1] As the district court should have, we forbear any con-
sideration of the Skranaks’ and Harpole’s easement claims
under the Quiet Title Act until we determine whether we have
jurisdiction. The Skranaks and Harpole filed suit on those
claims on December 28, 2000. The Quiet Title Act contains
a 12-year statute of limitations. 28 U.S.C. § 2409a(g). There-
fore, the Skranaks’ and Harpole’s claims are barred if they
knew or should have known of the United States’ adverse
claim by December 28, 1988.

[2] Such bar is jurisdictional. The Quiet Title Act is a
waiver of sovereign immunity. If the statute of limitations has
run on a waiver of sovereign immunity, federal courts lack
jurisdiction. Block v. North Dakota, 461 U.S. 273, 292
(1983); see also Adams v. United States, 255 F.3d 787, 796
(9th Cir. 2001) (“Adams I”) (holding that a district court grant
of summary judgment to the government on a Quiet Title Act
claim was improper because the statute of limitations had run,
removing jurisdiction). Although the United States did not
move to dismiss the Quiet Title Act claim on statute of limita-
 SKRANAK v. CASTENADA 13997
tions grounds below, jurisdictional bars cannot be waived by
the parties and may be addressed sua sponte. Humboldt
County v. United States, 684 F.2d 1276, 1280 (9th Cir. 1982).
Before reaching the merits, then, we must decide whether the
Skranaks and Harpole have actions to quiet title that accrued
before December 28, 1988.

A

[3] We have given significant guidance as to when a Quiet
Title Act statute of limitations begins running in McFarland
v. Norton, No. 03-35831, ___ F.3d at ___ (9th Cir. 2005). We
pointed out that the government, in its capacity as the owner
of the alleged servient tenement, has “the right to reasonable
use of its land,” and we concluded that “mild interference
with the use of an easement pursuant to the government’s own
property interests will not start the statute of limitations run-
ning.” Id. at ___. More importantly, we explained that federal
agencies like the Forest Service often have regulatory powers
over easements and other property interests, including, pre-
sumably, the ability to require permits and put conditions on
use. See, e.g., Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.
1994) (holding that 16 U.S.C. § 551 confers broad powers on
the Forest Service to regulate roads for the good of the for-
ests). Therefore, to avoid forcing landowners and the govern-
ment into “premature and often unnecessary suits” over title,
Michel, 65 F.3d at 132, we concluded that government “regu-
latory or supervisory actions, as opposed to those that deny
the easement’s existence, will not trigger the statute of limita-
tions.” McFarland, No. 03-35831, ___ F.3d at ___.

1

[4] Since the statute of limitations issue was not addressed
in the district court, the record is not well developed. Even on
the current scanty record, however, we are able to determine
that the Skranaks’ action to quiet title accrued before 1988.
By the 1940s, at the latest, the Forest Service had converted
13998 SKRANAK v. CASTENADA
the road into a trail usable only for hiking and riding.
Although merely barring the public’s vehicular access would
not have necessarily been inconsistent with the Skranaks’
predecessors-in-interest’s easement,2 affirmatively converting
the road to a trail barred not only the public’s vehicular access
but the owner’s use of the alleged easement as well. Because
converting the road to a trail barred access in a way that was
neither temporary nor obviously overcome by the securing of
a permit or special permission, the Skranaks’ predecessors-in-
interest should then have been put on notice. In addition,
Henry Skranak appears to have been well aware that the For-
est Service was adverse to his claimed right of access. In 2000
he stated that he “ha[d] been denied access to his property for
more than 39 years.” In a 1991 letter, he complained that
“[d]ue to the policy of the Department of Agriculture and the
Forest Service over the years, we have been barred out by
berms, Kelly ditches, arrests and fines.” Such was sufficient
to start the statute of limitations running and thus to defeat the
Skranaks’ ability to bring a quiet title action. Therefore, the
grant of summary judgment against the Skranaks on their
Quiet Title Act claim must be vacated and the district court
is instructed to dismiss for lack of jurisdiction.

2

[5] In Harpole’s case, what evidence there is tends to sug-
gest that previous restrictions on his access were consensually
negotiated, or at least were consistent with the Forest Service
acting in a regulatory capacity (i.e., requiring a permit for fur-
ther use), instead of in the capacity of a landowner claiming
exclusive rights.3 In 1983, when Harpole started making
2
In Park County, Mont. v. United States, 626 F.2d 718, 720-21 (9th Cir.
1980), we held that the County was on notice of the United States’ adverse
claim to the County’s easement when the United States closed a road to
the public. Though a County’s access cannot be meaningfully distin-
guished from the public’s access, an individual’s can.
3
Though less likely, it may also be that the Forest Service has aban-
doned and then reasserted claims of exclusive right. See Michel v. United
States, 65 F.3d 130, 132 (9th Cir. 1995).
 SKRANAK v. CASTENADA 13999
repairs on the non-system road (it had not been used since at
least 1971), a forest ranger called him and agreed that he had
a “right of access” but told him he needed to request a special
use permit or file a plan of operations. Harpole and the ranger
“mutually agreed that the access [ ] created would be closed
by the Forest Service until [Harpole] had acquired a special
use permit.” In 1984, Harpole’s plan of operations was
approved, which allowed Harpole and a partner unlimited
access provided no one else was allowed access. In 1986, the
Forest Service wrote to Harpole indicating that, according to
“national policy,” the way for him to “assert[ ] rights of
access is through the special use permit process . . . .” Only
after a representative of Harpole’s Wayup Corporation
informed the Forest Service that same year that Harpole
would not need access for the “foreseeable future” did the
Forest Service install an earthen barrier. The record is silent
with respect to other prior and subsequent jurisdictional
events. In the district court, further development of the record
would be appropriate. See Berardinelli v. Castle & Cooke,
Inc., 587 F.2d 37, 39 (9th Cir. 1978) (directing district courts
to “make factual findings” necessary to inquiries into jurisdic-
tion and explaining that the factual determinations necessary
to resolve a statute of limitations claim are different from
those necessary to resolve the substantive claim); see also
Lombard v. United States, 194 F.3d 303, 309-13 (1st Cir.
1999) (remanding to the district court for a determination of
statute of limitation facts in a Quiet Title Act claim). There-
fore, the grant of summary judgment must be vacated. On
remand, the district court should develop the record to deter-
mine whether Harpole had notice that the Forest Service
asserted exclusive ownership before December of 1988.

III

The Skranaks and Harpole also challenge the Forest Ser-
vice’s ANILCA access permit on APA grounds. See 5 U.S.C.
§ 706. They claim that the Forest Service failed to comply
with its own regulation, 36 C.F.R. § 251.114(f), by refusing
14000 SKRANAK v. CASTENADA
to determine whether the Skranaks or Harpole already owned
easements.

A

[6] As with the Quiet Title Act claims, we must first con-
sider whether this court has jurisdiction. “[T]he APA waives
sovereign immunity for suits against federal officers in which
the plaintiff seeks nonmonetary relief. The APA, however,
does not waive immunity as to any claims which are expressly
or impliedly forbidden by ‘any other statute that grants con-
sent to suit.’ The Quiet Title Act . . . is such an act.” Metro.
Water Dist. of S. California v. United States, 830 F.2d 139,
143 (9th Cir. 1987) (citing Block v. North Dakota, 461 U.S.
273, 286 (1983)). For any easement claims that were resolved
in an administrative proceeding commenced 12 years or more
after the Skranaks or Harpole were on notice of the need to
quiet title, the district court has no jurisdiction. However,
though “[t]he statute limits the time in which a quiet title suit
against the United States can be filed, . . . . [it] does not pur-
port to effectuate a transfer of title. If a claimant has title to
a disputed tract of land, he retains title even if his suit to quiet
his title is deemed time-barred under § 2409a(f).” Block v.
North Dakota, 461 U.S. 273, 291 (1983). While Block would
bar judicial review of an agency’s resolution of state or com-
mon law property claims raised in an administrative proceed-
ing, Block does not bar the agency from resolving such claims
in the administrative proceeding itself. Neither does Block
prevent us from reviewing an agency’s failure to resolve such
claims. Because the Skranaks and Harpole only challenge the
Forest Service’s failure to resolve whether they had ease-
ments, the district court has jurisdiction to entertain a claim
under the APA.

B

[7] The Skranaks and Harpole claim that 36 C.F.R.
§ 251.114(f) requires the Forest Service to consider easement
 SKRANAK v. CASTENADA 14001
claims in an application for an ANILCA access permit. That
regulation reads in relevant part: “the authorizing officer,
prior to issuing any access authorization, must also ensure that
(1) [t]he landowner has demonstrated a lack of any existing
rights or routes of access available by deed or under State or
common law . . . .” They further claim that the Forest Service
refused to address whether they owned a common law ease-
ment, in apparent contravention of this regulation.

The Skranaks and Harpole are correct that the Forest Ser-
vice refused to address whether they had common law ease-
ments. The Forest Service did determine, although cursorily,
that they did not have an easement under 43 U.S.C. § 932
(1938) (repealed) (known as “R.S. 2477”) (providing that “the
right-of-way for the construction of highways over public
lands, not reserved for public uses, is hereby granted”). The
Forest Service did not, however, address the Skranaks’ and
Harpole’s common law easement claims. The Forest Service
only responded that “it is not necessary to address whether
there may have been some common law right of access to the
private property prior to the passage of the ANILCA.”

The Skranaks’ and Harpole’s claim that such response vio-
lated 36 C.F.R. § 251.114(f) seems persuasive. See United
States v. Srnsky, 271 F.3d 595, 604 (4th Cir. 2001) (stating
that 36 C.F.R. § 251.114(f) appears to “contemplate exemp-
tions for individuals with preexisting access rights.”); United
States v. Jenks, 22 F.3d 1513, 1518 (10th Cir. 1994)
(“Although we leave it to the Forest Service to interpret [36
C.F.R. § 251.114(f)(1)], it appears that the Forest Service
itself recognizes that any deed or common law access rights
a landowner possesses may affect the terms of the permit or
play a role in the decision to issue a permit.”). Nevertheless,
we would normally give broad deference to the Forest Service
on the grounds that it best understands its own regulations.
See, e.g., Dep’t of Health & Human Serv. v. Chater, 163 F.3d
1129, 1134 (9th Cir. 1998).
14002 SKRANAK v. CASTENADA
We are persuaded that our normal deference to the Forest
Service does not require rejecting the Skranaks’ and Har-
pole’s reading of 36 C.F.R. § 251.114(f). When the Skranaks
and Harpole raised their reading of the regulation in their
administrative appeal, the Forest Service did not offer an
alternate interpretation of the regulation—or even mention it
at all—nor is their interpretation discernible from the reason-
ing found in the record. See Davis v. United States, 348 F.3d
772, 781 (9th Cir. 2003) (stating that agency decisions are
upheld under the APA “unless [a] thorough inspection of the
record reveals no rational basis for the agency’s action”). Per-
haps the Forest Service did not “entirely fail[ ] to consider an
important aspect of the problem,” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43
(1983), but there is scant evidence in the record to suggest
otherwise. In any event, the Forest Service has put the matter
beyond question by conceding at oral argument that 36 C.F.R.
§ 251.114(f) does indeed require it to make an easement-
ownership determination.4

[8] Such interpretation of 36 C.F.R. § 251.114(f) poten-
tially puts the Forest Service position into conflict with
Adams I. In that case, interpreting ANILCA de novo, we held
that Congress meant (1) to make ANILCA permits the exclu-
sive means of access over Forest Service land and (2) to have
such access determined without respect to any existing ease-
ments. Id. at 1259 (“Although the Adamses may have [an
easement by necessity] under common law, we need not ana-
lyze this issue. . . . Common law rules are applicable only
when not preempted by statute. Congress has affirmatively
spoken in this area through [ANILCA].”); see also Adams v.
United States, 255 F.3d 787, 794 (9th Cir. 2001) (“Adams II”)
(explaining that “Adams I clearly stated that . . . common law
claims are preempted by ANILCA”). However, as the agency
tasked with administering ANILCA, the Forest Service is not
4
The Forest Service argued that it had in fact done so. As we explain
above, such is not the case.
 SKRANAK v. CASTENADA 14003
bound to interpret the statute the same way we have when
considering it de novo. See Nat’l Cable & Telecommunica-
tions Ass’n v. Brand X Internet Services, 125 S.Ct. 2688,
2700-01 (2005) (holding that agency interpretations are owed
Chevron or other appropriate deference unless a prior court
decision has unambiguously held that the statute’s meaning is
incompatible with the agency’s interpretation). The Supreme
Court has explained that a “prior judicial construction of a
statute trumps an agency construction otherwise entitled to
Chevron deference only if the prior court decision holds that
its construction follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion.” Id. at
2700. Since Adams I and Adams II did not hold that ANILCA
was unambiguous nor that their interpretation of it left no
room for agency discretion, we must give the Forest Service’s
regulation the same Chevron deference as we would had
Adams I and Adams II never addressed the topic. Id.

[9] We defer to 36 C.F.R. § 251.114(f) as an interpretation
of ANILCA as long as its interpretation is based on a permis-
sible construction of the statutory language. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843 (1984). The relevant provision of ANILCA
reads as follows:

Notwithstanding any other provision of law, and
subject to such terms and conditions as the Secretary
of Agriculture may prescribe, the Secretary shall
provide such access to nonfederally owned land
within the boundaries of the National Forest System
as the Secretary deems adequate to secure to the
owner the reasonable use and enjoyment thereof:
Provided, That such owner comply with rules and
regulations applicable to ingress and egress to or
from the National Forest System.

16 U.S.C. § 3210(a). Because ANILCA does not expressly
refer to pre-existing easements, the Forest Service is free to
14004 SKRANAK v. CASTENADA
interpret it as creating a means of access for those who do not
own pre-existing easements at all or as requiring that pre-
existing easements be taken into consideration in determining
the scope of access granted. This is especially so in light of
the Senate Report indicating that ANILCA was meant to
increase rather than decrease access. See S. Rep. No. 413,
96th Cong., 2d Sess. 1,310, reprinted in 1980 U.S.C.C.A.N.
5070, 5254 (indicating concern that the Secretary of Interior
had made access less certain). In any event, we are reluctant
to hold unreasonable agency interpretations of statutes that
show restraint with respect to pre-existing common-law prop-
erty interests. See United States v. Texas, 507 U.S. 529, 534
(1993) (stating as a rule of construction that “[s]tatutes which
invade the common law . . . are to be read with a presumption
favoring the retention of long-established and familiar princi-
ples” (internal quotation marks and citation omitted)); cf. Cal-
ifornia State Legislative Bd., United Transp. Union v. Dep’t
of Transp., 400 F.3d 760, 764 (9th Cir. 2005) (deferring to an
agency’s interpretation of a statute that showed respect for
federalism principles). We conclude that the Forest Service
must be held to 36 C.F.R. § 251.114(f)’s requirement that an
easement determination be made.

[10] It follows that in refusing to determine whether the
Skranaks and Harpole had easements permitting them access,
the Forest Service violated its own regulations. The district
court’s summary judgment on the APA claim in favor of the
Forest Service was inappropriate and must be reversed.

IV

The district court’s grant of summary judgment with
respect to the Quiet Title Act claims is vacated; the Skranaks’
claim is remanded with instructions to dismiss for lack of
jurisdiction and Harpole’s claim is remanded for further pro-
ceedings consistent with this opinion. The district court’s
 SKRANAK v. CASTENADA 14005
grant of summary judgment with respect to the APA claims
is reversed.

VACATED IN PART, REVERSED IN PART, AND
REMANDED.