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(Cite as: 2005 WL 1586939 (D.Or.))

United States District Court,

D. Oregon.

Leo ALECK, Pearl Charley, Joanne Tahmalwash, and the Heirs of Eddy (Eddie)

Aleck, Plaintiffs,


THE UNITED STATES OF AMERICA, acting by and through the Bonneville Power

Administration, and Steve Wright, Administrator of the Bonneville Power

Administration, Defendants.

No. CV 04-277 AS.

June 21, 2005.

Kenneth E. Kaufmann, Nelson Lovinger Norling Kaufmann, Thomas H. Nelson, Thomas H. Nelson & Associates, Portland, OR, for Plaintiffs.

Stephen J. Odell, United States Attorney's Office, Jacilyn Margeson, Office of General Counsel, Portland, OR, for Defendants.


ASHMANSKAS, Magistrate J.


*1 Plaintiffs are members of the Yakama Nation, and are the owners of Vancouver Allotment No. 162, an 80-acre parcel of property in the Columbia River Gorge, located in the state of Washington, approximately ten miles east of The Dalles, Oregon. Plaintiffs are all of the heirs of Edna Welch Alex, who was the sole heir of Minnie, the original owner of the Allotment. Plaintiffs assert claims for trespass, and seek declaratory and injunctive relief, an accounting and disgorgement of the benefits derived from the trespass, treble damages, fees and costs. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6).


For the purposes of a motion to dismiss under Rule 12(b), the court considers the allegations in the complaint as true, and generally construes those allegations in favor of the plaintiffs. Meek v. County of Riverside, 183 F.3d 962 965 (9th Cir.), cert. denied, Wojcik v. Meek, 528 U.S. 1005, 120 S.Ct. 499, 145 L.Ed.2d 386 (1999). When the court's subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the court may look beyond the pleadings and consider affidavits or "any other evidence necessary" to resolve the issue. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). Plaintiffs retain the burden of establishing that the court has subject matter jurisdiction. Association of Am. Med. Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir.2000).


In 1907 the United States government allotted to Minnie, a member of the Klickitat tribe, an 80-acre parcel of land known as Vancouver Allotment No. 162. Since that time, the United States has held the land in trust.

In 1953 defendant Bonneville Power Administration (BPA) acquired an easement over Allotment No. 162 from Edna Welch Alex, the sole heir of the original owner, Minnie. The document provides that the owner consents "to the granting of an electric transmission line and access road right-of-way thereover, as contemplated by the application of the Bonneville Power Administration," for the consideration of $170. In 1951 the Yakima Superintendent approved the transmission easement for a period of 50 years, commencing May 6, 1953.

BPA has a 500-foot wide transmission easement from the McNary Dam, near Umatilla, Oregon. The easement crosses the Columbia River and runs parallel to the river down the Washington side to a point just east of The Dalles, Oregon. At that point the easement splits, and one half (250 feet) crosses back into Oregon to the Big-Eddy Substation, just east of The Dalles, Oregon. The other half of the easement continues along the Washington side of the Columbia River to the Ross Substation in Vancouver, Washington. Plaintiffs' property is located west of the point where the transmission lines split. Thus, the easement in dispute contains both the McNary-Big Eddy transmission line and the McNary-Ross transmission line. On May 6, 2003, the 50-year easement over Allotment No. 162 expired.

*2 Plaintiffs assert four trespass claims. Their first claim is that the BPA never received an easement for the second transmission line, the McNary-Ross line, erected in 1953, and that the line has been in trespass since construction. Their second claim is that the McNary-Big Eddy line is in trespass since May 6, 2003. Plaintiffs' third claim is that federal law prohibits rights of way for electric transmission lines across Indian lands that are greater than 400-feet in width, and that BPA's 1954 assertion of a right of way 500-feet wide is illegal and void ab initio. Finally, plaintiffs' contend that the BPA access road across their land is outside of the right of way and constitutes a trespass from the date of construction and first use.


Plaintiffs allege that this court has jurisdiction to entertain their trespass claims under four statutes, 28 U.S.C. § 1353 (Indian Allotment); 25 U.S.C. § 345 (General Indian Allotment); 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1346 (United States as defendant). Plaintiffs allege that the court has jurisdiction to award treble damages pursuant to 25 U.S.C. § 3713 (American Indian Agricultural Resource Management Act of 1993 or AIARMA). Finally, plaintiffs contend that the court has authority to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.  [FN1]

FN1. The parties appear to agree that the amount in controversy exceeds $10,000 precluding jurisdiction pursuant to 28 U.S.C. § 1346(a)(2).

As a general rule, sovereign immunity bars suits against the United States absent explicit consent to be sued. Lehman v. Nakshian, 453 U.S. 156, 160- 61, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). The United States must clearly waive immunity through an unequivocal expression in statutory text. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Waiver cannot be implied, and any expressed waiver will be strictly and narrowly construed in favor of the United States. Id. Plaintiffs have the burden of pointing to an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied sub nom., Holloman v. Clark, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).

A. The Allotment Acts

The General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1982 ed. and Supp. II), grants jurisdiction to the district courts over suits "involving the right ... to any allotment."  [FN2] 25 U.S.C. § 325. A corresponding provision governing district court jurisdiction appears in 28 U.S.C. § 1353. It provides that "[t]he district court shall have original jurisdiction of any civil action involving the right of any person in whole or in part of Indian blood or descent to any allotment of land under any Act of congress or treaty." 28 U.S.C. § 1353. The Ninth Circuit has called § 1353 "a recodification of the jurisdictional portion of § 345." Scholder v. United States, 428 F.2d 1123, 1126 n. 2 (9th Cir.) cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970). As in Scholder, plaintiffs do not argue that their rights under § 1353 exceed their rights under § 345.

FN2. Title 25 U.S.C. § 345 reads in part:

"All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; and said district courts are given jurisdiction to try and determine any action, suit, or proceeding arising with their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant); and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him...."

"Allotment" is a term of art meaning "a selection of specific land awarded to an individual allottee from a common holding." Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 142, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). Section 345 grants federal district courts jurisdiction over two types of cases: (i) proceedings "involving the right of any person, in whole or in part of Indian blood ... to any allotment of land ....," and (ii) proceedings "in relation to" the claimed right of a person of Indian descent to land that was once allotted. United States v. Mottaz, 476 U.S. 834, 845, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986). The Supreme Court has determined that " § 345 itself waives the Government's immunity only with respect to the former class of cases: those seeking an original allotment." Mottaz, 476 U.S. 845- 46.

*3 Plaintiffs' claims do not involve the issuance of an allotment. Therefore, the United States has not waived sovereign immunity to plaintiffs' trespass claims by virtue of the Allotment Acts.

B. General Federal Question Jurisdiction

Plaintiffs assert that this court has jurisdiction under 28 U.S.C. § 1331, which provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." However, "[s]ection 1331 does not waive the government's sovereign immunity from suit." Holloman, 708 F.2d at 1401. Before this court can allow a proceeding against the United States, this subject matter jurisdiction must be complemented by a statute containing an explicit waiver of sovereign immunity.

C. Declaratory Judgment Act

Plaintiffs allege that their request for a declaratory judgment is authorized by 28 U.S.C. §§ 2201 and 2202, the Declaratory Judgment Act. However, the Act "does not provide an independent jurisdictional basis for suits in federal court." Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir.1983). It "permits the district court to adopt a specific remedy when jurisdiction exists." Id.

D. American Indian Agricultural Resource Management Act (AIARMA)

Plaintiffs allege that this court has jurisdiction to award treble damages, costs, and attorneys fees under the American Indian Agricultural Resource Management Act, 25 U.S.C. §§ 3701-3746. The purpose of AIARMA is to "carry out the trust responsibility of the United States and promote the self-determination of Indian tribes by providing for the management of Indian agricultural lands ... in a manner consistent with identified tribal goals...." 25 U.S.C. § 3702(1). AIARMA authorizes the Secretary of the Interior to issue regulations that "establish civil penalties for the commission of trespass on Indian agricultural lands." 25 U.S.C. § 3713(a)(1). The parties agree that plaintiffs' land is "Indian agricultural land" within the meaning of the statute.

Plaintiffs note that AIARMA provides that Indian tribes shall have concurrent jurisdiction to enforce the provisions of the Act. They argue that they are entitled to bring claims in their individual capacities to protect their rights in their allotments, citing Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238 (1968). The Poafpybitty Court held that individual Comanche Indians had standing to sue defendant oil company for breach of an oil and gas lease on their allotments. The Court noted that the power of the United States to sue upon a violation of the lease did not diminish the right of the individual Indian to maintain an action to protect that lease.

Defendants contend that AIARMA does not authorize private causes of action. The court need not decide that question. Section 3712 directs the Secretary of the Interior generally to conduct all land management activities on Indian agricultural lands in accordance with tribal laws. However, section 3712(d) provides:

*4 This section does not constitute a waiver of the sovereign immunity of the United States, nor does it authorize tribal justice systems to review actions of the Secretary.

In addition, section 3742 provides:

Nothing in this chapter shall be construed to diminish or expand the trust responsibility of the United States toward Indian trust lands or natural resources, or any legal obligation or remedy resulting therefrom.

Nothing in AIARMA can be construed to constitute a waiver of the United States's sovereign immunity to plaintiffs' trespass claims.

E. The Administrative Procedure Act

In response to defendants' motion to dismiss, plaintiffs contend that their claims for declaratory and injunctive relief are allowed under the Administrative Procedure Act (APA), 5 U.S.C. § 702. Section 702 provides that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." There is no right to sue for violation of the APA unless a violation of statute forms the legal basis for the complaint. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

The APA authorizes review of those agency actions defined in the APA, including "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(1). Each term is defined in the statute, and plaintiffs do not argue that their trespass claims fall within any of those definitions. Plaintiffs' claims are for trespass or quiet title. The acts that plaintiffs complain about, the construction of transmission lines, the expiration of an easement, and the activities to renew the easement, are not agency actions that would invoke application of the APA. The APA

does not provide judicial review for everything done by an administrative agency. The language of the Act is "Any person suffering legal wrong because of an agency action ... shall be entitled to judicial review thereof." The term "agency action" in that provision is not a general term with the all-embracing meaning usually conveyed by those terms, but is a term defined in statute.... Broad as is the judicial review provided by the Administrative Procedure Act, it covers only those activities included within the statutory definition of "agency action."

 Hearst Radio v. Fed. Communications Comm'n., 167 F.2d 225, 229  (D.C.Cir.1948)(emphasis in original)(finding that tort claim for libel was not a challenge to an "agency action" under the APA).

F. The Federal Tort Claims Act (FTCA)

The FTCA is designed to provide compensation to those injured by the government's torts. Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff "shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a). A claim is deemed presented "for purposes of § 2675(a) when a party files '(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.' " Blair v. I.R.S., 304 F.3d 861, 864 (9th Cir.2002)(quoting Warren v. United States Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir.1984)(en banc)). The claim must first be presented to the federal agency and the amount sought in court cannot exceed the amount of that claim. Blair, 304 F.2d at 866.

*5 Plaintiffs contend that the waiver of sovereign immunity contained in the FTCA applies to their claims allegedly based on general federal question jurisdiction under 28 U.S.C. § 1331 and the Allotment Act under 25 U.S.C. § 345. But any waiver of sovereign immunity must be strictly and narrowly construed in favor of the United States. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). The waiver of sovereign immunity contained in the FTCA must be read in context as applying only to actions brought pursuant to the FTCA. In addition, plaintiffs concede that they did not specify a sum certain damages claim to the agency prior to filing this action. An FTCA action may not be maintained when the plaintiff has not exhausted his administrative remedies. McNeil v. United States, 508 U.S. 108, 113 (1993).

G. The Quiet Title Act

In response to defendants' motion, plaintiffs assert that this court has jurisdiction under the Quiet Title Act (QTA). The QTA allows suits against the United States "to adjudicate a disputed title to real property in which the United States claims an interest...." 28 U.S.C. § 2409a(a). The QTA is intended "to provide the exclusive means by which adverse claimants could challenge the United States' title to real property." Block v. North Dakota, 461 U.S. 273, 286, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). Plaintiffs are not proceeding, at this time, pursuant to the QTA, and any waiver of sovereign immunity contained therein does not apply to claims brought outside of the QTA.


For the reasons set forth above, defendants' Motion to Dismiss (# 26) should be granted.


The above Findings and Recommendations will be referred to a United States District Judge for review. Objections, if any, are due July 6, 2005. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due fourteen days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.