Shearer v. Zinke et al

Filing 24

ORDER granting in part and denying in part 8 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge H. Russel Holland on 11/9/18. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

PAUL G. SHEARER,

)
)
Plaintiff,
)
)
vs.
)
)
RYAN ZINKE, UNITED STATES
)
DEPARTMENT OF INTERIOR, BUREAU
)
OF LAND MANAGEMENT, and NATIONAL )
PARK SERVICE,
)
)
Defendants.
)
_______________________________________)

No. 3:18-cv-0035-HRH

ORDER
Motion to Dismiss
Defendants move to dismiss plaintiff’s complaint.1 This motion is opposed.2 Oral
argument was not requested and is not deemed necessary.
Background
Plaintiff is Paul G. Shearer. Defendants are Ryan Zinke, the Department of Interior
(“DOI”), the Bureau of Land Management (“BLM”), and the National Park Service (“NPS”).

1

Docket No. 8.

2

Docket No. 18.
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This case involves two unpatented mining claims, the Banjo and Pass claims, which
“are located in the Kantishna Mining District within Denali National Park and Preserve,
Alaska[.]”3 Plaintiff alleges that the Banjo and Pass mining claims were discovered in the
late 1920s by Joseph Quigley; and that in 1937, Quigley and his wife “optioned” the claims
to E. Fransen and C.M. Hawkins.4 Plaintiff alleges that Fransen and Hawkins subsequently
“assigned their option to Red Top” Mining Company.5
Plaintiff alleges that Red Top developed and mined the Banjo and Pass claims from
1938 to 1942, but ceased mining the claims in 1942 due to an executive order closing gold
mines because they were nonessential to the war effort.6 Plaintiff alleges that Michael R.
Mark Anthony (“Anthony”) acquired Red Top’s interest in the Banjo and Pass claims
sometime in the 1980s and that “on July 19, 1989, [he] filed a patent application . . . for the
Banjo and Pass Claims. . . .”7 Plaintiff alleges that Anthony’s ownership of the Banjo and
Pass Claims was confirmed in a quiet title action Anthony commenced in state court in
1991.8 More specifically, plaintiff alleges that Anthony’s ownership of the Banjo and Pass

3

Complaint at 3, ¶ 16, Docket No. 1.

4

Id. at 6, ¶¶ 21-22.

5

Id. at 6, ¶ 22.

6

Id. at 6-7, ¶¶ 23-24.

7

Id. at 9, ¶ 28.

8

Id. at 11, ¶ 32.
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claims was confirmed by the court when it approved a 2000 settlement agreement reached
by the parties (Anthony, Red Top, and plaintiff) to the quiet title action.9
Plaintiff alleges that he “purchased all of Anthony’s rights to the Banjo and Pass
Claims in 2005.”10 In addition, plaintiff alleges that the parties to the state quiet title action
reached an agreement in 2005, in which Red Top assigned or transferred any remaining
rights it might have had in the Banjo and Pass claims to plaintiff.11 Plaintiff alleges that the
2000 and 2005 settlement agreements in the quiet title action, and the court orders approving
same, “resolved all remaining issues that were brought, or could have been brought, by
parties opposed to [plaintiff’s] claims of interest in the Banjo and Pass Claims.”12
“On November 14, 1997, . . . Congress passed an Appropriations Act for the
Department of Interior that included ‘Section 120,’ a provision taking all mining claims in
the Kantishna Mining District in Denali National Park and establishing a procedure to pay
just compensation to the claim owners.”13 “Specifically, Section 120 allows owners of
‘patented mining claims and valid unpatented mining claims . . .’ within the Kantishna
Mining District in the boundaries of Denali National Park to consent to a taking of their

9

Id. at 32, ¶ 71.

10

Id. at 33, ¶ 73.

11

Id. at 33-34, ¶¶ 74-75.

12

Id. at 34, ¶ 77.

13

Id. at 14-15, ¶ 39.
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claims by the Government.”14 “Section 120 also provides for the payment of ‘just
compensation . . . of any valid claims to which title has vested in the United States pursuant
to [Section 120], determined as of the date of taking.”15
Plaintiff alleges that in February 1998, pursuant to Section 120, he and Red Top both
“filed written consents to the taking of any interest in mining claims” that they owned as of
February 1998.16 Plaintiff alleges that he did not own any interest in the Banjo and Pass
claims in February 1998 because at that point in time, Anthony “was the owner of record of
[the] Banjo and Pass” claims.17 Because Anthony did not consent to the taking of the Banjo
and Pass claims, plaintiff contends that the Banjo and Pass claims have not been taken by the
United States.
In November 2003, plaintiff filed a complaint in this court “seeking compensation
under Section 120 for the claims he owned” that had been taken by the United States
pursuant to his 1998 consent (“Case No. 263”).18 In his original complaint in Case No. 263,
plaintiff only sought compensation for “his ownership of . . . a 3.05 acre tract[] of the
Doherty patented mining claim that [he] consented to have taken pursuant to . . . Section

14

Id. at 15, ¶ 39 (quoting Pub. L. No. 105-83, § 120).

15

Id.

16

Id. at 15, ¶ 40.

17

Id. at 16, ¶ 40.

18

Id. at 16, ¶ 41.
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120.”19 However, in May 2005, plaintiff filed a first amended complaint in Case No. 263.20
In his first amended complaint, plaintiff sought compensation for additional mining claims
(Parcels 2-21), which included the Banjo and Pass claims (Parcel 7).21 Plaintiff alleged that
he had consented to the taking of whatever interest in the Banjo and Pass claims the Quigley
heirs had conveyed to him and that Red Top had consented to the taking of any interest it had
in the Banjo and Pass claims on or before February 12, 1998.22 Plaintiff also “reserve[d] the
right to amend [the first amended] Complaint to remove the Banjo and Pass mining claims
. . . from the list of Claims consented and proceed to complete the current patent application
which is in progress on those mining claims.”23
In September 2005, the United States moved for partial summary judgment in Case
No. 263.24 The United States argued that plaintiff’s consent to the taking of Parcels 2-21
“was not effective to invoke the provisions of Section 120” because plaintiff had not

19

Complaint in Case No. A03-cv-0263-JKS at 5, ¶ 19, Exhibit 1, Defendants’ Motion
to Dismiss, Docket No. 8.
20

First Amended Complaint in Case No. A03-cv-0263-JKS, Exhibit 4, Defendants’
Motion to Dismiss, Docket No. 8.
21

Id. at 12-13, ¶ 47.

22

Id.

23

Id. at 16, ¶ 64.

24

Exhibit 5, Defendants’ Motion to Dismiss, Docket No. 8.
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adequately described the claims at issue.25 This motion was denied, except as to claims that
plaintiff had agreed should be dismissed.26 Plaintiff had not agreed that the Banjo and Pass
claims should be dismissed.
In 2007, plaintiff filed a second amended complaint in Case No. 263.27 In the second
amended complaint, as to the Banjo and Pass claims, plaintiff again alleged that he had
consented to the taking of whatever interest had been conveyed to him by the Quigley heirs
and that Red Top had consented to the taking of whatever interest it had as of February
1998.28 And, plaintiff again reserved the right to amend his complaint as to the Banjo and
Pass claims to remove them from the consent list and proceed with completing the patent
application that Anthony had filed in 1989.29
In 2008, plaintiff and the United States reached a settlement as to most of plaintiff’s
claims in Case No. 263.30 The settlement agreement did not, however, involve the Banjo and
Pass claims.31

25

Id. at 2.

26

Order at 5, Exhibit 6, Defendants’ Motion to Dismiss, Docket No. 8.

27

Docket No. 114 in Case No. 3:03-cv-0263-TMB.

28

Id. at 13-14, ¶ 47.

29

Id. at 17, ¶ 64.

30

Order re Granting in Part Defendant’s Motion to Dismiss at 1, Exhibit 7, Defendants’ Motion to Dismiss, Docket No. 8.
31

Id.
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In April 2011, the United States filed a renewed motion to dismiss in Case No. 263.32
On January 6, 2012, the court granted the renewed motion to dismiss in part and denied it in
part.33 Plaintiff’s claim for Section 120 compensation for the Banjo and Pass claims was not
dismissed because the United States did not move to dismiss this claim.34 However, the court
did address plaintiff’s “reservation of the right to ‘amend this Complaint to remove the Banjo
and Pass mining claims . . . from the list of claims consented to [under Section 120]. . . .”35
The court observed that “if Shearer successfully consented to the taking of those parcels
under Section 120, title will have vested in the United States, and he cannot simply take the
property back.”36 The court further observed that it had “already ruled, over the Government’s objection, that any interest held by Shearer in [the Banjo and Pass mining claims] was
taken under Section 120 by the Government with Shearer’s consent.”37 The court also stated
that it had never “held[] that Shearer had perfected his title [of the Banjo and Pass claims]
at the time he consented to their taking by the Government. The [c]ourt’s ruling was merely
that Shearer [in February 1998] had consented to the taking of any title that he had in these

32

Docket No. 162 in Case No. 3:03-cv-0263-TMB.

33

Order re Granting in Part Defendant’s Motion to Dismiss at 1, Exhibit 7, Defendants’ Motion to Dismiss, Docket No. 8.
34

Id. at 1.

35

Id. at 6.

36

Id.

37

Id.
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parcels.”38 The court thus rejected plaintiff’s “assertion of a reservation of right to withdraw
consent” because the court had “already ruled on the validity of Shearer’s consent to the
taking of the Banjo and Pass claims . . . , and there is no reason to believe that the [c]ourt
would ever revisit the ruling and find that the consent was invalid.”39
Shortly after the court entered the order on the United States’ renewed motion to
dismiss in Case No. 263, the DOI issued the first of two 2012 decisions involving the validity
of the Banjo and Pass claims, which had been the subject of administrative proceedings for
a number of years. As set out above, Anthony had filed a patent application for the Banjo
and Pass claims in 1989,40 and in 1995, the DOI approved the First Half Final Certificate for
the claims.41
Issuance of the FHFC “[c]onfirms [that] equitable title is vested
in the applicant, subject to the confirmation of a discovery of a
valuable mineral deposit by a mineral examiner,” and
“[c]ertifies that the applicant has satisfactorily complied with all
of the ‘paperwork’ requirements of the Mining Law (title,
proofs, posting requirements, purchase money).”
Independence Min. Co. v. Babbitt, 885 F. Supp. 1356, 1357-58 n.3 (D. Nev. 1995) (quoting
Bureau of Land Management, Processing Mineral Patent Applications H–3860–1, Rel. No.
3–265, at VI–1 (1991)). But, in 2003, “BLM, on behalf of NPS, initiated an administrative

38

Id.

39

Id. at 7.

40

Complaint at 9, ¶ 28, Docket No. 1.

41

Id. at 4, ¶ 17.
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adjudication of the validity of the Banjo and Pass [c]laims.”42 In 2011, the IBLA issued a
decision upholding the validity of the Banjo and Pass claims.43
On February 9, 2012, however, Secretary of Interior Ken Salazar issued a decision
cancelling the First Half Final Certificate.44 Salazar’s decision explained that the certificate
was being cancelled because at the time that Red Top had filed the necessary Federal Land
Policy and Management Act (“FLPMA”) paperwork in 1979,45 it was not the owner of the
claims and thus the claims were deemed abandoned as of December 30, 1980, by operation
of law.46
On April 5, 2012, Marcilynn Burke, DOI Acting Assistant Secretary for Land and
Minerals Management, issued a final decision on the validity of the Banjo and Pass claims.
Burke declared the Banjo and Pass claims “abandoned and void as of October 22, 1979, for
failure to comply with the initial recording requirements of Section 314 of” FLPMA and

42

Id. at 17, ¶ 43.

43

Id. at 18-19, ¶ 47.

44

Decision at 1, Exhibit 10, Complaint, Docket No. 1.

45

FLPMA, which was enacted in 1976, “required the owners of preexisting mining
claims to record their claims . . . with DOI . . . by October 22, 1979” and required owners to
file yearly affidavits of annual assessment work. Complaint at 8, ¶ 26, Docket No. 1.
“Failure to timely file these required FLPMA instruments constitutes abandonment of the
mining claim.” Id. Plaintiff alleges that Red Top and Anthony timely filed all documents
required by FLPMA. Id. at 29, ¶ 64.
46

Decision at 2-3, Exhibit 10, Complaint, Docket No. 1.
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BLM’s implementing regulations.47 Burke then rejected Anthony’s patent application
because he was “not the holder of these mining claims as of the date [he] applied for
patent.”48
In May 2013, plaintiff moved for partial summary judgment in Case No. 263.49 On
March 10, 2014, the court entered an order denying plaintiff’s motion for partial summary
judgment and dismissing plaintiff’s claim for Section 120 compensation for the Banjo and
Pass claims without prejudice.50 The court found that it did not have jurisdiction of
plaintiff’s Section 120 compensation claim for the Banjo and Pass claims because “Shearer
no longer holds a valid mining claim for which he can be compensated pursuant to Section
120[.]”51 The court explained that
[t]he undisputed facts show that Secretary of the Interior Babbitt
issued the First Half Final Certificate (“FHFC”) for the Banjo
and Pass mining claims on January 5, 1995. BLM approved
issuance of the Second Half Final Certificate (“SHFC”) on
March 3, 1995, and the IBLA issued its final decision upholding
the validity of the Banjo and Pass mining claims on January 12,
2011. But on February 9, 2012, Secretary Salazar canceled the
FHFC issued by Secretary Babbitt, and on April 5, 2012, Acting
Assistant Secretary Burke determined that the Banjo and Pass
mining claims were “abandoned and void” no later than

47

Decision at 1, Exhibit 12, Complaint, Docket No. 1.

48

Id. at 2.

49

Docket No. 211 in Case No. 3:03-cv-0263-TMB.

50

Order at 1, Docket No. 226 in Case No. 3:03-cv-0263-TMB.

51

Id. at 7.
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December 30, 1980 and rejected [p]laintiff’s patent
application.[52]
The court also observed that in order for plaintiff to challenge the two 2012 DOI administrative decisions “invalidating his mining claims,” he would have to file a claim under the
Administrative Procedure Act.53
Plaintiff did not amend his complaint in Case No. 263 to add an APA claim. Instead,
plaintiff appealed, and the Court of Appeals affirmed the dismissal of his Section 120
compensation claim for the Banjo and Pass claims.54
On February 7, 2018, plaintiff commenced this action. In his complaint, plaintiff
asserts six claims. Count I is a claim seeking a declaratory judgment that the 2012 DOI
decisions are invalid. Count II is a claim seeking a declaratory judgment that plaintiff holds
title to the Banjo and Pass claims. Count III is a claim seeking a declaratory judgment that
DOI should issue patents for the Banjo and Pass claims. Count IV is a claim for a
declaratory judgment that plaintiff is entitled to Section 120 compensation for the Banjo and
Pass claims. Counts V and VI are APA claims in which plaintiff seeks judicial review of the
2012 DOI decisions. For relief on his claims, plaintiff seeks an order declaring the 2012 DOI
decisions void and unlawful, an order declaring that he is the owner of the Banjo and Pass

52

Id.

53

Id. at 8.

54

A copy of the memorandum decision is attached as Exhibit 12 to Defendants’
Motion to Dismiss, Docket No. 8.
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claims, and an order directing the Secretary of Interior to issue patents for the Banjo and Pass
claims or remanding this matter to the DOI.55 In the alternative, plaintiff seeks an order
declaring that he is entitled to Section 120 compensation for the Banjo and Pass claims.56
Despite the labels that plaintiff has put on his claims, the court is treating this case as
an administrative agency appeal.57 Plaintiff alleges that the 2012 DOI decisions are arbitrary
and capricious because
(1) DOI misinterpreted the applicable statutes and regulations,
including FLPMA; (2) DOI failed to consider other evidence on
record regarding the 2005 Fairbanks Court Order that establishes the correct chain of title, which in turn establishes that the
correct party made the FLPMA filings in 1979 and later; (3)
DOI failed to consider the complete context of all the settlement
documents in its possession that controlled the scope of the 2005
Fairbanks Court Order; (4) DOI did not have authority to issue
[the 2012 decisions]; (5) DOI waived the right to raise the issues
by not raising them in a previous 2008 Settlement between
Shearer and DOI; and (6) DOI violated Shearer’s due process
rights and its own regulations by failing to provide notice and an
opportunity to be heard, and by failing to engage in any process
to establish the issues of fact or analysis whatsoever, before
issuing the 2012 DOI decisions.[58]

55

Complaint at 53-54, Docket No. 1.

56

Id.

57

Docket No. 13 at 1.

58

Complaint at 5-6, ¶ 20, Docket No. 1.
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Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, defendants now move
to dismiss all of plaintiff’s claims because plaintiff lacks constitutional standing and because
his Section 120 compensation claim is barred by the statute of limitations.
Discussion
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger
asserts that the allegations contained in a complaint are insufficient on their face to invoke
federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Here,
defendants have made a factual attack. “In resolving a factual attack on jurisdiction, the
district court may review evidence beyond the complaint without converting the motion to
dismiss into a motion for summary judgment.” Id. “The court need not presume the
truthfulness of the plaintiff’s allegations.” Id.
“The ‘irreducible constitutional minimum of standing’ consists of three elements: the
plaintiff must have (1) suffered an injury in fact; (2) that was caused by the defendant’s
challenged conduct; and (3) that would be redressed by the remedy the plaintiff seeks.”
Desert Water Agency v. U.S. Dep’t of the Interior, 849 F.3d 1250, 1253 (9th Cir. 2017)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Defendants argue that
plaintiff lacks standing because he cannot establish that his alleged injuries are likely to be
redressed by the remedy he seeks. “Determining redressability ‘requires an analysis of

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whether the court has the power to right or to prevent the claimed injury.’” Barnum Timber
Co. v. U.S. E.P.A., 633 F.3d 894, 899 (9th Cir. 2011) (quoting Gonzales v. Gorsuch, 688
F.2d 1263, 1267 (9th Cir. 1982)).
Defendants contend that plaintiff is seeking a reversal of the DOI decisions that the
Banjo and Pass claims were abandoned by operation of law and therefore did not exist when
plaintiff consented to their taking. But, defendants argue that plaintiff would not be entitled
to any relief if the court were to set aside the 2012 DOI decisions because if plaintiff
consented to the taking of the Banjo and Pass claims, as he has previously alleged and as this
court has previously found, then he cannot possibly have any ownership interest in the Banjo
and Pass claims. Defendants argue that because plaintiff consented to the taking of the Banjo
and Pass claims, title to the claims is now in the United States, and the court could not
declare that plaintiff is the owner of the Banjo and Pass claims or direct the Secretary of
Interior to issue patents for the Banjo and Pass claims. Defendants insist that if plaintiff were
to prevail on his claims to set aside the 2012 DOI decisions, any rights he may have held as
to the Banjo and Pass claims have been taken by the United States and cannot be restored to
him. See Higginson v. United States, 384 F.2d 504, 507 (6th Cir. 1967) (“title to property
which is vested in the United States government cannot be returned to the original land
owners without Congressional authorization”).
Plaintiff argues that there are several problems with defendants’ argument. First of
all, he disputes that he ever consented to the taking of his 100% unencumbered title to the

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Banjo and Pass claims, primarily because he did not acquire that title until 2005, several
years after he submitted his Section 120 consent in 1998. Plaintiff also points out that in
Case No. 263, the Government took the position “that the required section 120 consent for
taking submitted by Shearer did not include any property other than the 3.05 acres of the
Doherty lode claim”59 and that the Transfer of Property Ownership that the Government
recorded in 1998 only lists 13.6 acres of the Doherty Lode claim.60 Plaintiff argues that this
shows that the Government did not previously believe that he had consented to the taking of
the Banjo and Pass claims but rather that he had only consented to the taking of the Doherty
Lode claim. Plaintiff argues that he is seeking a declaration that his title to the Banjo and
Pass claims is valid and that he has alleged that title to the Banjo and Pass claims never
passed to the United States. He insists that he is not seeking to divest the United States of
title; rather, he is seeking a declaration that title to the Banjo and Pass claims remains with
him. Thus, plaintiff argues that there is relief that the court could grant to redress his injuries.
Plaintiff disputes that the court in Case No. 263 found that he had consented to the
taking of the Banjo and Pass claims. Plaintiff argues that Judge Burgess merely ruled that
he had consented to the taking of whatever interest he had in the Banjo and Pass claims in
1998. Because plaintiff alleges that he did not acquire a 100% interest in those claims until
2005, he argues that he could not have consented to the taking of the entirety of the Banjo

59

Fourth Joint Status Report at 15, Exhibit 25, Complaint, Docket No. 1.

60

Exhibit 8 at 1, Complaint, Docket No. 1.
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and Pass claims in 1998. Plaintiff contends that if he did not hold clear title to the Banjo and
Pass claims in 1998, as he alleges, then any consent he made to their taking was ineffective.
Plaintiff also argues that if he held title that was encumbered or undivided, then his consent
was also ineffective.
Plaintiff acknowledges that he alleged in his first and second amended complaints in
Case No. 263 that he had consented to the taking of the Banjo and Pass claims. But, plaintiff
argues that he is not judicially estopped from arguing to the contrary now.
Under the judicial estoppel doctrine, “‘where a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply
because his interests have changed, assume a contrary position. . . .’” Baughman v. Walt
Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (quoting New Hampshire v. Maine,
532 U.S. 742, 749 (2001)). Plaintiff argues that judicial estoppel would not apply here
because in Case No. 263 there was no ruling regarding title to the Banjo and Pass claims and
because he did not succeed on his claim for Section 120 compensation for the Banjo and Pass
claims.
Defendants, however, argue that plaintiff should be judicially estopped from arguing
that he did not consent to the taking of the Banjo and Pass claims. Defendants emphasize
that in his first amended complaint in Case No. 263, plaintiff alleged that his “ownership in
the [Banjo and Pass] Claims is no longer being disputed by the parties [and he] can now

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proceed to recover from the Government Defendants just compensation for the Claims. . . .”61
Defendants also emphasize that plaintiff alleged that he owned “all rights, title, and interest
in the mining claims” which were “enumerated below in the section titled ‘Mining Claims
Subject to Individual Consent Declaration of Taking.’”62 Given that the Banjo and Pass
claims were included in the claims “enumerated below”, defendants argue that there can be
no dispute that plaintiff alleged in prior litigation that he owned the Banjo and Pass claims
and that he consented to their taking. Defendants also argue that there can be no dispute that
Judge Burgess held that the Banjo and Pass claims were subject to the consent and were thus
taken by operation of Section 120.
Plaintiff is not judicially estopped from contending in this action that he did not
consent to the taking of his 100% interest in the Banjo and Pass claims. In the previous
action, plaintiff alleged, and Judge Burgess determined, that plaintiff had consented to the
taking of whatever interest he had in the Banjo and Pass claims in 1998. Plaintiff has alleged
that he did not have a 100% interest in the Banjo and Pass claims until 2005. Moreover,
plaintiff was not successful in Case No. 263 as to his Section 120 compensation claim, which
means that judicial estoppel does not apply here.
Plaintiff next argues that defendants are ignoring the fact that some of his claims are
administrative challenges to the 2012 DOI decisions and that he has standing to bring an
61

First Amended Complaint at 9-10, ¶ 37, Exhibit 4, Defendants’ Motion to Dismiss,
Docket No. 8.
62

Id. at 3, ¶ 9.
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APA claim, even if the only redress he can obtain is a declaration that the decisions were
arbitrary and capricious. Plaintiff aptly argues that if the court were to decide that the 2012
DOI decisions were invalid, such a decision would allow him to pursue his patent claims.
As for plaintiff’s Section 120 compensation claim, defendants argue that this claim
is barred by the statute of limitations. Section 120 provides that actions seeking compensation pursuant to Section 120 must be brought “no later than six years after the date of the
enactment of this section.” Department of Interior and Related Agencies Appropriations Act,
1998, PL 105–83, § 120, 111 Stat 1543 (1997). Plaintiff did not file this action until
February 2018, long after the six years would have expired.
Although defendants have couched their statute of limitations argument as a Rule
12(b)(1) jurisdictional argument, there is nothing in Section 120 that suggests that the statute
of limitations is jurisdictional. “[U]nless Congress has ‘clearly state[d]’ that the statutory
limitation is jurisdictional, ‘courts should treat” a statute of limitations “‘as nonjurisdictional
in character.’” United States ex rel. Air Control Technologies, Inc. v. Pre Con Industries,
Inc., 720 F.3d 1174, 1176 (9th Cir. 2013) (quoting Sebelius v. Auburn Reg’l Med. Ctr., 568
U.S. 145, 153 (2013)).
Because the statute of limitations in Section 120 is nonjurisdictional, defendants’
argument that plaintiff’s Section 120 claim is “barred by the statute of limitations . . . should
have been raised through a Rule 12(b)(6) motion to dismiss for failure to state a claim, not
a Rule 12(b)(1) motion to dismiss for lack of jurisdiction.” Supermail Cargo, Inc. v. United

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States, 68 F.3d 1204, 1206 n.2 (9th Cir. 1995). “A Rule 12(b)(6) motion to dismiss on statute
of limitations grounds may be granted ‘only if the assertions of the complaint, read with the
required liberality, would not permit the plaintiff to prove that the statute was tolled.’” Ilaw
v. Daughters of Charity Health System, Case No. 11–cv–02752–LHK, 2012 WL 381240, at
*4 (N.D. Cal. Feb. 6, 2012) (quoting Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir.
2000)).
Because the statute of limitations in Section 120 is not jurisdictional, then it is subject
to equitable tolling. Okafor v. United States, 846 F.3d 337, 340 (9th Cir. 2017). “‘Generally,
a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Plaintiff argues
that there can be no question that he has been diligently pursuing his rights. As for
extraordinary circumstances, plaintiff argues that the only reason that the statute of
limitations has run on his Section 120 compensation claim is because of the Government’s
efforts to delay deciding both his Section 120 claim63 and the validity of the Banjo and Pass
claims. He emphasizes that he timely filed his original Section 120 suit and that the only
reason that suit was dismissed was because of the invalid 2012 DOI decisions.

63

Case No. 263 was stayed as the Banjo and Pass claims pending resolution of the
adminstrative proceedings. Docket No. 138 at 2, Case No. A03-cv-0263-JKS.
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Defendants argue that plaintiff would not be entitled to equitable tolling because this
doctrine “‘focuses on the plaintiff’s excusable ignorance of the limitations period. . . .’”
Supermail Cargo, 68 F.3d at 1207 (quoting Naton v. Bank of Calif., 649 F.2d 691, 696 (9th
Cir. 1981)). Here, there is no suggestion that plaintiff was not aware of the six-year statute
of limitations period. Defendants point out that in Case No. 263, after the 2012 DOI
decisions were issued, the Government indicated that it would not oppose plaintiff amending
his complaint to add an APA claim for review of the 2012 DOI decisions.64 Defendants
argue that if plaintiff had amended his complaint in Case No. 263, then he would not have
had to bring this action and there would not be any statute of limitations problem as to his
Section 120 compensation claim for the Banjo and Pass claims.
If plaintiff had amended his complaint in Case No. 263 to add an APA claim and
prevailed on that claim, then he could have repled his Section 120 claim and it would have
related back to his original complaint, which was timely. But, that is not what he did. He
instead chose to file a new lawsuit, which means that his current Section 120 claim cannot
relate back to his Section 120 claim in Case No. 263. Plaintiff’s Section 120 compensation
claim is barred by the six-year statute of limitations, and it is dismissed.
But, as to plaintiff’s other claims, and contrary to defendants’ contention, there is
relief that the court can grant that would redress plaintiff’s injuries. Plaintiff only consented

64

Joint Status Report at 8-9, Exhibit 13, Defendants’ Motion to Dismiss, Docket No.

8.
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to the taking of whatever interest he held in the Banjo and Pass claims as of 1998 when his
consent was filed. Based on what is currently before the court, it appears that plaintiff did
not own any interest in the Banjo and Pass claims in 1998. Thus, if the court were to set
aside the 2012 DOI decisions, plaintiff could continue to pursue the patent application for
the Banjo and Pass claims. Plaintiff has arguably suffered an injury caused by defendants
which is redressable.
Conclusion
Defendants’ motion to dismiss is granted in part and denied in part. The motion is
granted as to Count IV of plaintiff’s complaint, which seeks Section 120 compensation for
the Banjo and Pass claims. Count IV is dismissed with prejudice because this claim is barred
by the statute of limitations. Defendants’ motion to dismiss is otherwise denied.
DATED at Anchorage, Alaska, this 9th day of November, 2018.
/s/ H. Russel Holland
United States District Judge

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