Date: 11-16-2001

Case Style: Evelynn C. Foster v. State of Alaska, Department of Transportation

Case Number: S-9720

Judge: Eastaugh

Court: Supreme Court of Alaska

Plaintiff's Attorney: Richard A. Weinig, Pletcher, Weinig, Fisher & Dennis, Anchorage, for Appellant

Defendant's Attorney: E. John Athens, Jr. and Paul R. Lyle, Assistant Attorneys General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Description: Indian Law - The superior court dismissed for lack of subject matter jurisdiction Evelynn Foster's trespass claim against the State of Alaska. Because adjudicating Foster's claim would have required the superior court to determine the scope of an easement on Foster's Native allotment, and because state courts lack jurisdiction to adjudicate the ownership or right to possession of Native allotment land, we affirm the dismissal of Foster's claim.

II. FACTS AND PROCEEDINGS

In 1961 the United States Bureau of Land Management (BLM) granted the State of Alaska a material site right-of-way to a 64.39 acre square-shaped parcel of land near Little Honolulu Creek. In 1962 the BLM granted the state a right-of-way to a strip of land near the material site for construction of the George Parks Highway. BLM amended this grant in 1969 to include a slightly different section of land. The Parks Highway was constructed on the amended right-of-way between 1969 and 1971.

In April 1972 Evelynn Foster applied for a Native allotment under the Allotment Act, which "allowed Alaska Natives to apply for land that they had used for certain specified purposes for at least five years." Foster sought approximately 120 acres of unsurveyed land near Little Honolulu Creek, claiming seasonal use and occupancy of the land beginning in August 1964. The BLM granted Foster's application in December 1979. A 1983 survey of Foster's allotment revealed that parts of the 1961 material site right-of-way, the 1962 Parks Highway right-of-way, and the 1969 amended Parks Highway right-of- way were located within Foster's allotment.

In March 1989 the BLM issued a decision confirming its 1979 approval of Foster's allotment, and stating that the allotment would be subject only to the 1961 material site right-of-way, the 1962 Parks Highway right-of-way, and a right-of-way for the Alaska Railroad. In April 1989 the state requested that the BLM make Foster's allotment subject to the 1969 amended right-of-way grant, on which the Parks Highway was constructed. The BLM denied the state's request, explaining that Foster's interest in the allotment related back to 1964, when she began to use and occupy the allotment, and "took precedence over intervening applications filed subsequent to the commencement of her use and occupancy." The state appealed the BLM decision to the Interior Board of Land Appeals (IBLA), which affirmed.

The state then filed a complaint in United States District Court, seeking judicial review of the IBLA's decision. The district court dismissed the state's complaint, concluding that it lacked subject matter jurisdiction over the action, because the United States, an indispensable party to the action, had sovereign immunity under 28 U.S.C. sec. 2409a (the Quiet Title Act). The United States Court of Appeals for the Ninth Circuit affirmed, and the United States Supreme Court denied certiorari.

The United States issued Foster an allotment certificate in August 1998, making Foster's allotment subject to the 1961 material site right-of-way, the 1962 Parks Highway right-of-way, and the Alaska Railroad right-of-way.

In August 1999 Foster filed a superior court complaint against the state for inverse condemnation and trespass, seeking damages, ejectment, and just compensation. The superior court dismissed Foster's complaint for lack of subject matter jurisdiction. Foster appeals.

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Click the case caption above for the full text of the Court's opinion.

Outcome: For these reasons, we AFFIRM the superior court's decision in all respects.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan