Mills et al v. United States of America et al
Filing
466
ORDER Denying Motion for Summary Judgment at Docket 420 and Cross-Motion for Summary Judgment at Docket 443 . (CC: DQA) (Jan, Chambers Staff)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
CAREY MILLS,
Case No. 4:10-cv-00033-RRB
Plaintiff
vs.
SCOTT WOOD; DOYON LIMITED;
and HUNGWITCHIN CORPORATION;
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AT DOCKET 420
and
CROSS-MOTION FOR
SUMMARY JUDGMENT AT DOCKET 443
Defendants.
and
KURT KANAM,
Defendant in Intervention.
I.
PENDING MOTIONS
Pending before the Court at Docket 420 is the Second Motion for Summary
Judgment filed by Defendant Doyon Limited, in which Defendant Hungwitchin Corporation
and Defendants Scott Wood and Kurt Kanam have joined.1 Also pending at Docket 443
is the Cross-Motion for Summary Judgment filed by Plaintiff Carey Mills.
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1
Dockets 425, 429.
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 1
Mills v. Wood, 4:10-cv-00033-RRB
Mills has opposed Doyon’s Motion,2 and Doyon has replied.3 Doyon has opposed
Mills’ Cross-Motion in which Hungwitchin Corporation has joined, 4 and Mills has replied.5
Defendants Scott Wood and Kurt Kanam have replied to Mills’ opposition and opposed
Mills’ Cross-Motion.6
The Court having determined that oral argument would not materially assist in
resolving the issues presented, the matters are submitted for decision on the moving and
opposing papers without oral argument.7
II.
STANDARD
Summary judgment is appropriate if, when viewing the evidence in the light most
favorable to the non-moving party, there are no genuine issues of material fact and the
moving party is entitled to judgment in its favor as a matter of law.8 Support and opposition
to a motion for summary judgment is made by affidavit made on personal knowledge of the
affiant, depositions, answers to interrogatories, setting forth such facts as may be
admissible in evidence.9 In response to a properly supported motion for summary
judgment, the opposing party must set forth specific facts showing that there is a genuine
2
Docket 442.
3
Docket 452.
4
Dockets 452, 454.
5
Docket 459.
6
Docket 455.
7
D.Ak. LR 7.2(a)(3).
8
Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
9
Fed. R. Civ. P. 56(e).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 2
Mills v. Wood, 4:10-cv-00033-RRB
issue of material fact for trial.10 The issue of material fact required to be present to entitle
a party to proceed to trial is not required to be resolved conclusively in favor of the party
asserting its existence; all that is required is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury or judge to resolve the parties' differing versions
of the truth at trial. In order to show that a genuine issue of material fact exists a
nonmoving plaintiff must introduce probative evidence that establishes the elements of the
complaint.11 Material facts are those that may affect the outcome of the case.12 A dispute
as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return
a verdict for the non-moving party.13 "Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge, [when] he is ruling on a motion for summary judgment."14 The evidence
of the non-moving party is to be believed and all justifiable inferences are drawn in his
favor.15 The moving party has the burden of showing there is no genuine issue of material
fact; therefore, he or she bears the burden of both production and persuasion.16 The
moving party, however, has no burden to negate or disprove matters on which the nonmoving party will have the burden of proof at trial. The moving party need only point out to
10
Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).
11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
12
Id.
13
Id.
14
Id. at 255.
15
Id.
16
Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 3
Mills v. Wood, 4:10-cv-00033-RRB
the Court that there is an absence of evidence to support the non-moving party's case.17
There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact
could not find in favor of the party opposing the motion.18
In general, in ruling on a motion for summary judgment, a court may not weigh the
evidence or judge the credibility of witnesses.19 Instead, it generally accepts as true
statements made under oath.20 However, this rule does not apply to conclusory statements
unsupported by underlying facts,21 nor may the court draw unreasonable inferences from
the evidence.22 “To survive summary judgment, a plaintiff must set forth non-speculative
facts, not sweeping conclusory statements.”23
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17
Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S.
at 325.
18
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
19
Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).
20
Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005); see Williams v. Calderon,
48 F. Supp.2d 979, 989 (C.D. Cal. 1998) (noting in the context of a habeas claim “[t]he
Court is not to determine issues of credibility on a motion for summary judgment; instead,
the truth of each party's affidavits is assumed”), aff'd sub nom. Williams v. Woodford, 384
F.3d 567 (9th Cir. 2004).
21
Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).
22
See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
McLaughlin v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
23
Calfasso, U.S. ex rel. v. Gen Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 4
Mills v. Wood, 4:10-cv-00033-RRB
III.
ISSUE PRESENTED
Both the Motion and Cross-Motion present the same central issue: The extent, if
any, of the rights of Mills to use the R.S. 2477 right-of-way along the Fortymile
Station–Eagle Trail (RST 1594) to the extent it crosses Defendants’ surface estates.24
IV.
STATUS OF THE CASE
This Court has already held as a matter of law that: (1) the rights of Mills to the use
of the Fortymile Trail are those rights that are vested in the public at large; (2) those rights
are established as of the date the State of Alaska accepted title to the Fortymile Trail
(August 3, 1998); and (3) because Doyon has not impeded Mills access along the
Fortymile Trail to the extent it crosses Doyon land, Mills is not entitled to recover any
damages from Doyon.25 The Court declined to reconsider that Order.26 The Court has also
held that as a matter of law Mills is not entitled to recover any damages from
Hungwitchin.27 The Court is not inclined to revisit those issues.
Accordingly, with respect to Doyon and Hungwitchin the sole remaining issue is the
extent of the right, if any, of Mills to traverse along the route of the Fortymile Trail to the
24
In his Fourth Amended Complaint Mills alleges that the Fortymile Trail is part of
the Washington – Alaska Military and Telegraph System (WAMCATS). Docket 291, ¶ 21,
p. 4-5.
25
Docket 333; see Order at Docket 395, at 3-4 (“The Court has further made clear
that Mills has the burden of establishing: “(1) the existence and location of the Fortymile
Station-Eagle Trail; (2) the extent of his rights, as a member of the general public, to the
use of that trail; (3) that both his actual and proposed uses fall within the scope of his
rights; and (4) the damages he may have suffered, if any, as a result of being denied
access.” (citing Orders at Dockets 257, 333)).
26
Docket 346.
27
Docket 311.
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 5
Mills v. Wood, 4:10-cv-00033-RRB
extent it is located on the surface estates held by Doyon and Hungwitchin. With respect
to Wood and Kanam, in addition to the extent of the right to traverse along the route of the
Fortymile Trail over their claims, still remaining before the Court are: (1) relief, if any, to
be granted Mills if Wood and Kanam impeded Mills’ right to traverse the Fortymile Trail;
and/or (2) the damages, if any, to be awarded Wood and Kanam on their counterclaim to
the extent that Mills trespassed on the surface estate of the Wood mining claim, either
because Mills had no right or that the extent of Mills’ activities exceeded his rights.
It is within this purview that the Court addresses the pending motions.
V.
MOTION AT DOCKET 420
The statute at issue in this case provides that: “The right of way for the construction
of highways over public lands, not reserved for public uses, is hereby granted.”28 The
Defendants’ position is predicated upon the argument that the route Mills seeks to
establish as constituting a R.S. 2477 right-of-way was not across public lands at the time
public use began, 1904. The heart of Defendants’ argument is that for Mills to prevail the
route in question must have been in use before the surrounding land lost its public
character.29 Thus, Defendants contend that R.S. 2477 did not create a right-of-way along
the Fortymile Trail because it was not public land when the route was established.
The crucial language of § 932 applicable to this case is the phrase “public lands.”
“Such lands are those subject to sale or other disposal under general laws, excluding those
28
43 U.S.C. § 932 (repealed). Although this section was repealed October 21,
1976, by Pub. L. No. 94-579, all rights-of-way existing on that date were expressly
preserved. 43 U.S.C. § 1769.
29
Adams v. United States, 3 F.3d 1254, 1258 (9th Cir. 1993) (citing Humboldt
County v. United States, 684 F.2d 1276, 1281 (9th Cir. 1983)).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 6
Mills v. Wood, 4:10-cv-00033-RRB
to which any claims or rights of others have attached.”30 Thus, unless the land surrounding
the Fortymile Trail was “public” land when it was established, i.e., land to which the claims
or rights of others have not attached, the State could not have acquired any rights in it
under § 932. 31
The thrust of Defendants’ argument is that the Fortymile Trail was not part of the
public domain prior to the construction of WAMCATS in 1904.32 According to Defendants
between 1895 and 1899 the lands along Teddy’s Fork were claimed and staked by miners,
which claims were recorded in the Alaska Recorders Office. Defendants contend that since
those claims were staked, the chain of title is unbroken and they have been continuously
worked or held since location. 33
30
Humboldt County, 684 F.2d at 1281 (citing Columbia Basin Land Protection Ass’n
v. Schlesinger, 643 F.2d 585, 602 (9th Cir. 1981).
31
Id. The Courts notes that much of Mills’ legal argument is based upon decisions
of the Alaska Supreme Court. While this Court is bound by decisions of the Alaska
Supreme Court on questions of state law, Int’l Bus. Mach. Corp. v. Bajorek, 191 F.3d
1033, 1036–37 (9th Cir. 1999), with respect to issues of federal law this Court is bound by
decisions of the Ninth Circuit and the Supreme Court, see Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc). Accordingly, to the extent decisions of the Alaska Supreme
Court are contrary to controlling federal law, they have no precedential value, persuasive
or controlling.
32
Although the documents to which the Court refers in this decision were filed on
behalf of Doyon, because the other Defendants have joined in the motion, in this decision
the Court assumes that the arguments advanced by Doyon are adopted by the other
Defendants.
33
In support of that position Defendants rely on the Declaration of Charlie Parr as
establishing the facts. In his opposition Mills attacks the credentials of Mr. Parr as an
expert on the validity of “mining claims,” but does not counter the facts stated. Docket 442,
pp. 25–28. The Court accepts Mr. Parr’s declaration to the extent that it sets forth facts.
Any conclusions to be drawn from those facts is strictly within the province of the Court.
Moreover, as the Court has made clear in prior orders, the validity of any mining claim is
(continued...)
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 7
Mills v. Wood, 4:10-cv-00033-RRB
In his opposition Mills refers to several scholarly articles that indicate the existence
of a trail somewhere in the general vicinity of the Fortymile Trail without any specific
information as to the location of those trails. What Mills overlooks is the undisputed fact
that the Fortymile Station–Eagle Trail (RST 1594) accepted by the State follows the old
WAMCATS line, construction of which was indisputably commenced no earlier than 1903.
There is no evidence before Court that the WAMCATS line followed any, or even part, of
any earlier trail. The undisputed evidence before the Court conclusively establishes that
from sometime in the 1890's through date at least some portion of the Fortymile Trail
passed through or over land that was part of a patented or unpatented mining claim. Thus,
the sole question before the Court is whether the claims staked prior to 1903 removed the
land across which the WAMCATS line crossed from the public domain so as to preclude
the establishment of a R.S. 2477 right-of-way.
It is undisputed that the mining claims at issue in this case are unpatented.
Defendants argue that under the Mining Law of 1872, locators of unpatented mining claims
have “the exclusive right of possession and enjoyment of all surface included within the
lines of their locations.”34 Defendants further argue that the Supreme Court has held that
under the 1872 law “[w]here there is a valid location of a mining claim, the area becomes
33
(...continued)
not properly before the Court is this action. Unless and until the claims that may be at
issue or pertinent to the issues before the Court are otherwise determined to be invalid, the
Court will treat such claims as being valid.
34
30 U.S.C. § 26.
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 8
Mills v. Wood, 4:10-cv-00033-RRB
segregated from the public domain and the property of the locator.”35 However, as the
United States Claims Court has noted: “Rights on unpatented mining claims are limited
to possession, and title remains in the United States. The basic right of a holder of a valid
unpatented mining claim is an exclusive right of possession for mining purposes only.”36
“Until a patent issues, the United States, as a fee owner, retains paramount rights and
interests in the Federal lands under the claim, and retains the authority to regulate the uses
of those lands.”37 The Ninth Circuit has held that the holder of an unpatented mining claim
may not interfere with “public use of the surface of the claims for hunting, hiking, camping,
and recreational activities ‘so long as there is no interference with ongoing mining
operations.’”38 Therefore, there was nothing precluding the establishment of a R.S. 2477
right-of-way along the Fortymile Station–Eagle Trail (RST 1594).
For the foregoing reasons the Defendants’ motions fail and will be denied.
VI.
DISCUSSION – MOTION AT DOCKET 443
Although not entirely clear from Mills’ motion, it appears that he is arguing that he
is entitled to judgment as a matter of law on Count One of his Fourth Amended Complaint,
i.e., that the property interests claimed by the Defendants are subject to the valid existing
rights of the non-exclusive rights-of-way known as the Fortymile Station-Eagle Trail (RST
35
Citing St. Louis Mining Co. v. Montana Mining Co., 171 U.S. 650, 655 (1898).
36
Skaw v. United States, 13 Cl. Ct. 7, 28 (1987) (citing Cameron v. United States,
252 U.S. 450, 460 (1920)).
37
Id. (citing Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963)).
38
United States v. Richardson, 599 F.2d 290, 293 (9th Cir. 1979) (citing and
quoting with approval United States v. Curtis-Nevada Mines, Inc., 415 F. Supp. 1373 (E.D.
Cal. 1976)).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 9
Mills v. Wood, 4:10-cv-00033-RRB
1594) held by the State of Alaska and that Mills be awarded damages. More specifically,
Mills contends that the location of the Fortymile Trail is established by a surveyor employed
by the U.S. Government and that Alaska law allows him to transport heavy equipment
across the R.S. 2477 right-of-way. Mills further argues he is entitled to damages for
denying him access along the trial.39
The Court’s review of the cross-motion reveals that Mills has not raised any issue
that has not been previously addressed by the Court. Nothing in that voluminous document
persuades the Court to revisit and revise its earlier Orders.40 For the purposes of the
dispute before it the Court assumes there is a valid R.S. 2477 right-of-way along the
Fortymile Station–Eagle Trail (RST 1594). In so doing the Court, as it has previously noted,
is aware of the fact that whether selection of the surface estates by Doyon and
Hungwitchin under ANSCA prior to acceptance of the Fortymile Trail by the State withdrew
the land from the public domain extinguished the State’s rights under R.S. 2477 is not only
unresolved, but in the absence of the State, cannot be resolved by this Court in this
proceeding.41 This right-of-way is, however, limited to ingress and egress along the trail and
39
As noted above, the Court has previously held that Mills is not entitled to
damages as against Doyon and Hungwitchin and declines to revisit that issue.
40
The Court notes with displeasure that in his cross-motion for the most part, if not
all, Mills continues to attempt to revisit matters that the Court has previously determined
adversely to him. See, e.g., Order at Docket 346 denying reconsideration of the Order
Denying Motion at Docket 335; Order at Docket 354 denying reconsideration of the Order
Denying Motion at Docket 350.
41
See Tentative Order Regarding Pending Motions, Docket 126, p. 38, as adopted
by Final Order Re Pending Motions, Docket 141; see also Lyon v. Gila River Indian Cmty.,
626 F.3d 1059, 1078 (9th Cir. 2010) (holding under the facts in that case that Arizona failed
to show that roads crossing an Indian reservation were established as public highways
(continued...)
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 10
Mills v. Wood, 4:10-cv-00033-RRB
does not permit, without the consent of the State of Alaska, upgrades as Mills contends or
the construction of a road over the right-of-way.42 Therefore, Mills’ cross-motion will also
be denied.
In summary the Court concludes that for the purposes of the dispute before it there
is a valid R.S. 2477 right-of-way along the Fortymile Station–Eagle Trail (RST 1594), but
understands that where this trail runs is in dispute. If the parties can reach an agreement
and stipulate as to this issue it would be helpful.
Mills’ biggest obstacle, after establishing the location of the trail, is to show that he
was prevented from using the right-of-way as a private citizen. As noted above, as a matter
of law the right to construct improvements in that right-of-way is vested in the State, not
Mills, a member of the general public.
To reiterate, the Court has been unable to find any authority that Mills, a private
citizen, can construct a roadway over property owned by others or use a R.S. 2477 right-ofway beyond its historical use. Hence, even if Mills were able to establish exactly where the
41
(...continued)
before the land was withdrawn from the public domain).
42
See Lyon, 626 F.3d at 1077 (“Federal Revised Statute 2477 did not itself create
R.S. 2477 roads, rather it authorized the states to construct highways over state land.”
(emphasis in the original)). Although the Alaska Supreme Court has not expressly held
that a R.S. 2477 right-of-way was so limited, it has indicated that use by the general public
is limited to historical usage. See Fitzgerald v. Puddicome, 918 P.2d 1017 (Alaska 1996)
(remanding for determination of the extent of the historic R.S. 2477 right-of-way); cf. Price
v. Eastham, 75 P.3d 1051, 1056–58 (Alaska 2003) (after rejecting the R.S. 2477 holding
on procedural grounds, remanding for a determination of the precise scope of prescriptive
easement rights). This Court has expressly noted that under the decision of the Ninth
Circuit remanding this case “Plaintiff may assert his individual rights to the use of the
Fortymile Station–Eagle Trail to the extent it crosses the Defendants’ surface estates.”
Docket 218, p. 4 (emphasis in the original).
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 11
Mills v. Wood, 4:10-cv-00033-RRB
right-of-way runs, and show that his use of the right-of-way was impeded by one of the
parties hereto, it is unclear what more he can reasonably expect from this litigation. If a
road is to be constructed over the right-of-way, it must be done by the State of Alaska and
the State has not indicated a current desire to do so.
In order to prevail on their claims against Mills, Wood and Kanam must prove that
Mills somehow interfered with their ability to mine their unpatented claims and the damages
this caused.
In short, rather than endless litigation, given the uncertainties involved, the parties
would be well advised to resolve this dispute amicably.
VII.
ORDER
Doyon’s Second Motion for Summary Judgment at Docket 420 is DENIED.
Plaintiff’s Cross-Motion for Summary Judgment at Docket 443 is DENIED.
For the purposes of this lawsuit this matter will proceed to trial as follows:
1. The Court assumes that the State of Alaska has a valid easement along the
route of the Fortymile Station–Eagle Trail (RST 1594).43
2. Mills has the burden of establishing the physical location of the Fortymile
Station–Eagle Trail (RST 1594) on the Defendants’ surface estates.
43
As noted above, the State of Alaska expressly claims a valid easement and the
validity the State’s claim is not properly before the Court. For the purpose of this lawsuit,
in the absence of other competent evidence, the route of that trail is as accepted by the
State.
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 12
Mills v. Wood, 4:10-cv-00033-RRB
3. Mills has the rights of a member of the general public, i.e., the right of ingress
and egress, to traverse the entire route of the Fortymile Station–Eagle Trail (RST 1594) as
that trail existed on the date it was accepted by the State of Alaska, August 3, 1998.
4. Mills has the right of access across the unpatented mining claims for hunting,
hiking, camping, and recreational activities so long as there is no interference with ongoing
mining operations.
5.
Mills does not have the rights vested in the State of Alaska to make
improvements upon Fortymile Station–Eagle Trail (RST 1594). Specifically, absent the
consent of the holder of the surface estate, Mills does not have the right to build a road
or to improve the trail beyond its traditional use on the date it was accepted by the State.
6. Mills is entitled to recover damages from Defendants Wood and Kanam to the
extent that each has unlawfully denied him access across their claims.
7. Wood and/or Kanam may be entitled to recover from Mills damages on the
cross-claim to the extent that Mills’ road-building or other activities on the surface estate
of the unpatented mining claims exceeded Mills’ rights of ingress and egress. It is more
likely, however, that the right to recover any property damage rests with the State of
Alaska, the holder of the underlying fee estate.
IT IS SO ORDERED this 17th day of November, 2016.
/s/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER DENYING MOTIONS AT DOCKETS 420, 443 – 13
Mills v. Wood, 4:10-cv-00033-RRB
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