Lacano Investments, LLC, et al v. Dan Sullivan, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, KIM MCLANE WARDLAW and MORGAN B. CHRISTEN) AFFIRMED. Judge: JCW Authoring, FILED AND ENTERED JUDGMENT. [9221993]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LACANO INVESTMENTS, LLC,
NOWELL AVENUE DEVELOPMENT,
and AVA L. EADS, on behalf of
themselves and the class they seek to
represent,
Plaintiffs-Appellants,

No. 13-35854
D.C. No.
1:12-CV-00014TMB

v.

OPINION

JOE BALASH, Commissioner, Alaska
Department of Natural Resources, in
his official capacity, BRENT
GOODRUM, Director, Division of
Minding Land & Water, Alaska
Department of Natural Resources,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
June 3, 2014—Anchorage, Alaska
Filed August 28, 2014
Before: J. Clifford Wallace, Kim McLane Wardlaw,
and Morgan Christen, Circuit Judges.
Opinion by Judge Wallace

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SUMMARY*

Sovereign Immunity
The panel affirmed the dismissal for lack of subject
matter jurisdiction of an action against Alaska officials who
determined that under the Submerged Lands Act of 1953,
streambeds claimed by the plaintiffs were owned by the State
of Alaska.
The panel held the plaintiffs could not avoid a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(1)
merely because they asserted in their complaint that Alaska
did not own the streambeds.
The panel held that state sovereign immunity barred the
action because the Ex parte Young doctrine, providing that
the Eleventh Amendment does not bar actions when
individual citizens seek only injunctive or prospective relief
against state officials who would have to implement a state
law that is allegedly inconsistent with federal law, did not
apply. The panel concluded that under the exception to Ex
parte Young set forth in Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261 (1997), the relief the plaintiffs sought
was close to the functional equivalent of quiet title.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Gina Marie Cannan (argued), Steven J. Lechner, Mountain
States Legal Foundation, Lakewood, Colorado; Eric Twelker,
Juneau, Alaska, for Plaintiffs-Appellants.
Jessica Moats Alloway (argued), Assistant Attorney General,
State of Alaska Department of Law, Anchorage, Alaska;
Vanessa Maria Lamantia, Assistant Attorney General, State
of Alaska Department of Law, Juneau, Alaska, for
Defendants-Appellees.

OPINION
WALLACE, Circuit Judge:
Plaintiffs-Appellants Lacano Investments, LLC, Nowell
Avenue Development, and Ava L. Eads, allege that they hold
land patents that were issued by the federal government many
years before Alaska entered the Union. The patents give title
to certain streambeds in Alaska. In 2010 and 2011, the Alaska
Department of Natural Resources determined that the
waterways above these streambeds were navigable in 1959,
the year Alaska was admitted to the Union, and remain
navigable. Under the Submerged Lands Act of 1953, all land
beneath such waterways belongs to the State of Alaska. See
43 U.S.C. § 1311(a) (“[i]t is determined and declared to be in
the public interest that (1) title to and ownership of the lands
beneath navigable waters within the boundaries of the
respective States . . . are, subject to the provisions hereof,
recognized, confirmed, established, and vested in and
assigned to the respective States”); Act to Provide for the
Admission of the State of Alaska into the Union, Pub. L. No.

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85-508, 72 Stat. 339, 343 § 6(m) (1958) (“[t]he Submerged
Lands Act of 1953 shall be applicable to the State of Alaska
and the said State shall have the same rights as do existing
States thereunder”). The Department sent letters to Plaintiffs
with the navigability determinations and its conclusion that
the streambeds are “state-owned.”
According to Plaintiffs, Alaska’s determination that the
waterways have been navigable since 1959 does not disturb
the title to the land that was granted to them by the federal
patents. Plaintiffs sued the Alaska officials who made the
navigability determinations in federal court. Plaintiffs allege
that they retain title to the disputed lands because, under the
Submerged Lands Act, streambeds that had already been
patented by the federal government were not granted to
Alaska upon its statehood. See 43 U.S.C. § 1301(f) (“[t]he
term ‘lands beneath navigable waters’ [that belongs to the
states] does not include the beds of streams in lands . . . if
such streams were not meandered in connection with the
public survey of such lands under the laws of the United
States and if the title to the beds of such streams was lawfully
patented or conveyed by the United States”). Plaintiffs sought
a declaratory judgment that the navigability determinations,
and thus the conclusions that the streambeds were stateowned, violated 43 U.S.C. § 1301(f), as well as an injunction
prohibiting Defendants from claiming title to the lands
beneath the waterways.
The state officials moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(1), for lack of subject
matter jurisdiction. The district court agreed, and dismissed
the action with prejudice.

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Plaintiffs filed a timely notice of appeal. We review a
district court’s decision to grant a motion to dismiss for lack
of subject matter jurisdiction de novo. Colony Cove Props.,
LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). We
review the district court’s denial of leave to amend for abuse
of discretion. Airs Aromatics, LLC v. Opinion Victoria’s
Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 598 (9th Cir.
2014). We have jurisdiction under 28 U.S.C. § 1291, and
affirm.
I.
The state officials moved to dismiss the complaint. The
“jurisdictional attack” in their motion was “facial,” which
means that the state officials “assert[] that the allegations
contained in [the] complaint are insufficient on their face to
invoke federal jurisdiction,” but the officials do not “dispute[]
the truth of the allegations.” Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). In this facial attack, we
must accept all of the factual allegations in the complaint as
true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
Plaintiffs argue that because we must accept all of their
factual allegations as true, we must reverse the district court,
insofar as the complaint alleges that the lands are by
definition not submerged, state-owned, lands under federal
law. In other words, Plaintiffs argue that because we accept
the allegations in the complaint as true, at this stage of the
litigation we must conclude that Alaska has no interest in the
lands under Plaintiffs’ complaint, which means that it was
error to dismiss the complaint for lack of subject matter
jurisdiction.

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While we do accept all of the factual allegations in the
complaint as true, id., we do not accept legal conclusions in
the complaint as true, even if “cast in the form of factual
allegations.” Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.
2009) (citation omitted). Plaintiffs’ complaint does not
include factual allegations that the streambeds are privately
owned under the Submerged Lands Act. Instead, the
complaint contains only legal conclusions to that effect:
“[t]he Alaska Statehood Act delineates the terms under which
statehood was granted” and thus Plaintiffs’ lands are
“exempted from the Submerged Lands Act”; “Plaintiff
Lacano is the fee simple owner of record . . . ”; “Plaintiff
Nowell is the fee simple owner of record . . .”; “Plaintiff Eads
is the fee simple owner . . . ”.
Further, we also “may look beyond the complaint and
consider extrinsic evidence.” Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003).
Attached to the complaint are the letters sent by the
Department of Natural Resources, upon which the complaint
relies to explain the basis of Plaintiffs’ action. Those letters
demonstrate Alaska’s claim of ownership to the disputed
properties.
Thus, Plaintiffs cannot avoid a motion to dismiss under
Rule 12(b)(1) merely because they asserted in their complaint
that Alaska does not own the streambeds. See, e.g., W.
Mohegan Tribe and Nation v. Orange Cnty., 395 F.3d 18, 20,
23 (2d Cir. 2004) (dismissing a complaint for lack of subject
matter jurisdiction despite “accepting the factual allegations
contained in the complaint as true” where the complaint
asserted that the plaintiffs, rather than the State of New York,
held title to disputed lands).

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II.
We next consider whether state sovereign immunity bars
Plaintiffs’ action. The Eleventh Amendment bars federal
courts from hearing certain “suit[s]” filed by individual
citizens against a state without the consent of the state. U.S.
Const. amend. XI; see generally Hans v. Louisiana, 134 U.S.
1 (1890). But that Amendment does not bar actions when
citizens seek only injunctive or prospective relief against state
officials who would have to implement a state law that is
allegedly inconsistent with federal law. See generally Ex
parte Young, 209 U.S. 123 (1908). “The Ex parte Young
doctrine is founded on the legal fiction that acting in violation
of the Constitution or federal law brings a state officer into
conflict with the superior authority of the Constitution, and he
is in that case stripped of his official or representative
character and is subjected in his person to the consequences
of his individual conduct.” Cardenas v. Anzai, 311 F.3d 929,
935 (9th Cir. 2002) (internal quotation marks omitted) (citing
Young, 209 U.S. at 159–60). Not all actions that solely seek
prospective relief against state officials fall within the Young
exception, however. See Idaho v. Coeur d’Alene Tribe of
Idaho, 521 U.S. 261 (1997).
A.
In Coeur d’Alene, the Coeur d’Alene Tribe sued the State
of Idaho and state officers who enforced Idaho law in federal
court, alleging an interest under federal law in lands
submerged under navigable waterways within the original
boundaries of the Coeur d’Alene Reservation. Id. at 264–65.
Those lands had been “long deemed by [Idaho] to be an
integral part of its territory.” Id. at 282. The Tribe brought
title claims, sought a declaratory judgment to establish its

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right to use and occupy the lands, and sought an injunction
prohibiting Idaho from infringing upon its rights to the land.
Id. at 265. The “underlying dispute” was “[w]hether the
Coeur d’Alene Tribe’s ownership extends to the banks and
submerged lands of [] [L]ake [Coeur d’Alene] and various . . .
rivers and streams [within the boundaries of the Coeur
d’Alene Reservation] . . . or instead ownership is vested in the
State of Idaho.” Id. at 264.
Idaho moved to dismiss the complaint on Eleventh
Amendment sovereign immunity grounds. Id. at 265. When
the case reached the Supreme Court, a five-Justice majority
agreed that the Eleventh Amendment barred the action. Id. at
288; id. at 296–97 (O’Connor, J., concurring).
Justice Kennedy’s principal opinion was joined in part by
four other members of the Supreme Court. The principal
opinion recognized that “[a]n allegation of an ongoing
violation of federal law where the requested relief is
prospective is ordinarily sufficient to invoke the Young
fiction.” Coeur d’Alene, 521 U.S. at 281. But the case was
“unusual in that the Tribe’s suit [was] the functional
equivalent of a quiet title action which implicates special
sovereignty interests.” Id. According to the principal opinion,
the parties (and the Court) agreed “that the Tribe could not
maintain a quiet title suit against Idaho in federal court,
absent the State’s consent.” Id.
Although the Tribe was not actually seeking quiet title
relief, the Court concluded that the declaratory and injunctive
relief the Tribe sought was “close to the functional equivalent
of quiet title.” Id. at 282. This similarity to a quiet title action
was “especially troubling when coupled with the far-reaching
and invasive relief the Tribe seeks,” which if successful

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“would bar the State’s principal officers from exercising their
governmental powers and authority over the disputed lands
and waters” because the Tribe had independent sovereign
authority. Id. The Court looked to “the realities of the relief
the Tribe demand[ed].” Id. Because of the historical and legal
importance of submerged lands to state sovereignty, the Court
held that “if the Tribe were to prevail, Idaho’s sovereign
interest in its lands and waters would be affected in a degree
fully as intrusive as almost any conceivable retroactive levy
upon funds in its Treasury.” Id. at 287. Thus, “[t]he dignity
and status of its statehood allow[ed] Idaho to rely on its
Eleventh Amendment immunity,” and the Court ordered the
Tribe’s action dismissed. Id. at 287–88.
Justices O’Connor, Scalia and Thomas joined in the
portions of Coeur d’Alene described above, and joined in full
a separate partial concurrence written by Justice O’Connor.
Although this was only a partial concurrence, we analyze it
along with the principal opinion in which only two Justices
concurred to determine what part of the principal opinion was
agreed upon by the five-Justice majority of the Court. See
Agua Caliente, 223 F.3d at 1046 (discussing both the
principal opinion and concurrence of Coeur d’Alene). In her
concurrence, Justice O’Connor agreed that “[t]his case is
unlike a typical Young action,” and thus barred by the
Eleventh Amendment, for two reasons. 521 U.S. at 289
(O’Connor, J., concurring). First, the Tribe’s action was “the
functional equivalent of an action to quiet [the Tribe’s] title
to the bed of Lake Coeur d’Alene,” which was not acceptable
under the Eleventh Amendment because “[a] federal court
cannot summon a State before it in a private action seeking to
divest the State of a property interest.” Id. Second, “the Tribe
does not merely seek to possess [the] land . . . [but] seeks to
eliminate altogether the State’s regulatory power over the

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submerged lands at issue.” Id. Justice O’Connor concluded
that these distinctions from the “typical Young action” meant
that “the Tribe’s suit must be dismissed.” Id. at 291.
B.
Here, Plaintiffs’ action implicates precisely the same
sovereignty interests as in Coeur d’Alene itself. In their
complaint, Plaintiffs allege they are “fee simple owners” of
the streambeds beneath the navigable waters, seek to lift the
“cloud” from their properties, and request that a federal court
return “full use and enjoyment of their property.” The relief
Plaintiffs request “is close to the functional equivalent of
quiet title.” Id. at 282. The lands at issue are streambeds
beneath navigable waters, which are “lands with a unique
status in the law and infused with a public trust.” Id. at 283.
If the court were to rule in Plaintiffs’ favor, the “benefits of
ownership and control would shift from the State” to
Plaintiffs. Id. at 282. Thus, the Eleventh Amendment bars this
action.
Coeur d’Alene provides only a “unique” and “narrow”
exception to Young, and does not “bar all claims that affect
state powers, or even important state sovereignty interests.”
Agua Caliente, 223 F.3d at 1048. But when an action
implicates the “exact issues” of Coeur d’Alene itself, namely
“navigability of waters or the state’s control over submerged
lands,” federal courts lack jurisdiction to hear the case.
Anderson-Tully Co. v. McDaniel, 571 F.3d 760, 763 (8th Cir.
2009). This case presents the same issues as Coeur d’Alene.
Although we affirm the district court’s judgment that it
lacked jurisdiction over this action, we do not affirm its
reasoning. Guided by the parties, the district court made a

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good-faith effort to determine whether Alaska has a sufficient
interest in the lands to assert Eleventh Amendment immunity,
and did so by analogizing to other circumstances in which a
government entity claims title to property. But that attempt to
assess the interest in the property held by the state is not
necessary under Coeur d’Alene. The approach we take
instead is “functional”: we compare the relief sought by
Plaintiffs to a quiet title action, and dismiss because it was
“close to the functional equivalent” of such an action, as the
lands at issue are submerged lands beneath navigable waters,
which have a “unique status in the law” insofar as “[s]tate
ownership of them has been considered an essential attribute
of sovereignty.” 521 U.S. at 282–83 (internal quotation marks
and citation omitted); see also Agua Caliente, 223 F.3d at
1046 (“[t]he challenge posed by Coeur d’Alene is to figure
out whether the Tribe’s claims here are of the same character
as those in Coeur d’Alene”).
C.
We next turn to Plaintiffs’ counterarguments.
1.
Plaintiffs first suggest that Coeur d’Alene is no longer
good law. They assert that we should instead follow the
Supreme Court’s more recent guidance, that “[i]n determining
whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a
‘straightforward inquiry into whether [the] complaint alleges
an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Coeur
d’Alene, 521 U.S. at 296).

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But Coeur d’Alene remains binding upon us. Verizon did
not overrule Coeur d’Alene, and in fact the Court quoted
language from the earlier opinion. Moreover, the Court
recently affirmed Coeur d’Alene’s core holding that the
Eleventh Amendment bars actions that are “the functional
equivalent of a quiet title suit” against a state. Va. Office for
Prot. and Advocacy v. Stewart, 131 S. Ct. 1632, 1639–40
(2011) (quoting Coeur d’Alene, 521 U.S. at 282). To the
extent there is some tension between the “straightforward
inquiry” recognized in Verizon and the “unique” and
“narrow” circumstances of Coeur d’Alene, we must follow
Coeur d’Alene, “which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own
decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997)
(citation omitted).
2.
Plaintiffs next argue that this case is “the exact opposite
factual situation” of Coeur d’Alene, because here Alaska
sought to divest Plaintiffs of their alleged longstanding title,
whereas in Coeur d’Alene, it was the plaintiffs who sought to
divest the state of its longstanding title. But that is not a
proper distinction of Coeur d’Alene. The majority opinion
was not predicated upon the length of the state’s claim to
title. Instead, it was based upon the “principle that
[submerged lands beneath navigable waters] are tied in a
unique way to sovereignty,” regardless of when the state
determined that the waters were navigable. 521 U.S. at 286;
see also Anderson-Tully, 571 F.3d at 761 (dismissing under
Coeur d’Alene despite the recency of the state’s title claim to
the submerged lands).

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3.
Finally, Plaintiffs attempt to distinguish their action from
that in Coeur d’Alene because there, if the tribe were to have
been awarded the property, it would have deprived the State
of Idaho of “all regulatory power” over the submerged lands.
This is true: federally-recognized tribes are themselves
sovereigns. See, e.g., Coeur d’Alene, 521 U.S. at 268 (stating
that “Indian tribes . . . should be accorded the same status as
foreign sovereigns”). If the Coeur d’Alene Tribe were
awarded title, Idaho may not have had any regulatory
authority at all over the disputed lands. Because Plaintiffs in
this case are not a separate sovereign, they argue that “Alaska
would remain free to exercise lawful regulatory jurisdiction
over Landowners’ property as they do over other private
lands.” According to Plaintiffs, this case is distinguishable
from Coeur d’Alene because there is no threat that “all
regulatory power” would be divested from Alaska.
This is not a sufficient distinction of Coeur d’Alene. Both
the principal opinion and Justice O’Connor’s concurrence
mention tribal sovereignty as a consideration to support the
conclusion that the action should be dismissed. But neither
opinion considered this determinative.
The principal opinion discussed the Tribe’s sovereign
character, which meant its action sought “far-reaching and
invasive relief” that was “in effect, a determination that the
lands in question are not even within the regulatory
jurisdiction of the State.” Id. at 282. At that point in the
opinion, however, the majority had already concluded that
“Eleventh Amendment would bar” “a quiet title suit against
Idaho” or relief that “is close to the functional equivalent of
quiet title” in federal court. Id. at 281–82. The fact that the

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plaintiff was a federally recognized tribe only made the
Tribe’s action “especially troubling” in its impact on state
sovereignty. Id. at 282.
Similarly, Justice O’Connor had two bases for
distinguishing the case from a typical Young action that could
be heard in federal court. Id. at 289 (O’Connor, J.,
concurring). First, “the suit is the functional equivalent of an
action to quiet [the plaintiff’s] title to the bed of Lake Coeur
d’Alene.” Id. “A federal court cannot summon a State before
it in a private action seeking to divest the State of a property
interest.” Id. It was only her second basis that discussed the
tribe’s attempt to divest Idaho of all regulatory power. Even
in that context, she continued to make clear that “[c]ontrol of
[submerged lands] is critical to a State’s ability to regulate
use of its navigable waters.” Id. Thus, in Justice O’Connor’s
view, states must possess actual control over submerged lands
in order to regulate properly the use of navigable waters.
Because the tribe sought “in effect[] to invoke a federal
court’s jurisdiction to quiet title to sovereign lands,” Justice
O’Connor concluded that the action had to be dismissed. Id.
at 296.
Thus, we conclude that the identity of plaintiffs is not
dispositive in cases that implicate the Coeur d’Alene
exception to Ex parte Young. See also Anderson-Tully Co.,
571 F.3d at 763 (ordering dismissal of an action filed by a
private party under Coeur d’Alene); MacDonald, 164 F.3d at
972 (same). Federal courts lack jurisdiction over all actions
where a plaintiff seeks relief that is “close to the functional
equivalent of quiet title” over submerged lands that have a
“unique status in the law” and which are “infused with a
public trust.” Coeur d’Alene, 521 U.S. at 282–83.

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III.
Finally, Plaintiffs argue that the district court erred in
denying them leave to amend their complaint. But this was
not an abuse of discretion. As should be clear, any
amendment would be futile. No set of facts pleaded by
Plaintiffs would allow their complaint to proceed, given
Coeur d’Alene.
AFFIRMED.