Opinion
No. CV 03-2496-PHX-EHC.
April 26, 2006
ORDER
Pending before the Court is the Federal Defendants' Motion to Dismiss on the basis of sovereign immunity. [Dkt. 58]. The Motion is fully briefed.
The Federal Defendants are Kathleen Clarke and Gale Norton, who is no longer Secretary of the Int erior. Because Gale Norton is sued in her official capacity, P. Lynn Scarlett, acting Secretary of the Interior, will be substituted for Gale Norton.See Fed.R.Civ.P. 25(d)(1) (providing automatic substitution of public officer sued in official capacity).
Plaintiff owns real property in Mohave County that is used for cattle ranching and hosting tourists. Based on Deeds of Dedication, Mohave County has established Diamond Bar Road on Plaintiff's property. The Bureau of Land Management has a roadway easement across Plaintiff's property. Mohave County and the Bureau of Land Management have allegedly planned to expand the use of Diamond Bar Road as a route servicing Grand Canyon tours and casino gambling hosted by the Hualapai Nation.
Mohave County's right to Diamond Bar Road under the Deeds of Dedication has been resolved. The Court grant ed Mohave County's Motion for Summary Judgment on Plaintiff's claim that the Deeds of Dedication had not been accepted. [Dkt. 54].
Absent a waiver, the United States is immune from suit. Alaska v. Babbitt, 38 F.3d 1068, 1072 (9th Cir. 1994). The United States waived sovereign immunity for certain disputes involving real property in the Quiet Title Act. 28 U.S.C. § 2409a. To find a waiver under the Quiet Title Act there must be "a disputed title to real property in which the United States claims an interest." § 2409a(a). The parties agree that Plaintiff has alleged the United States claims an interest in the property at issue. [Dkts. 59, p. 4; 74, p. 2].
The issue is whether the Unit ed St at es disputes title to Plaintiff's property. A dispute concerning the scope of an easement can constitute a title dispute under § 2409a(a).Kootenai Canyon Ranch, Inc. v. United States Forest Serv., 338 F. Supp. 2d 1129, 1133 (D. Mont. 2004) (sovereign immunity waived where "the government has an easement in land for which the Plaintiff owns the servient estate, and the parties dispute the scope of that easement").
Plaintiff alleges that the Bureau of Land Management's easement for "the use of Diamond Bar Road was limited to providing a means of access to BLM lands located in the area surrounding" Plaintiff's property. [Dkt. 5, p. 4]. The Burea of Land Management allegedly "claims it has the right to allow commercial traffic on Diamond Bar Road pursuant to the BLM easement." [Dkt. 5, p. 5]. Plaintiff alleges that the United States Department of the Interior prepared an environment al impact statement analyzing "realingment of Diamond Bar Road in certain places and widening the current dirt road and adding a hard surface pavement converting it into a fully paved highway." [Dkt. 5, p. 6]. Plaintiff furt her alleges that "there are also issues of failure of consideration, intent, and consummation and procedural irregularities of the BLM easement which may render it unenforceable." [Dkt. 5, p. 7]. Plaintiff has alleged a dispute concerning the scope of the easement and whether it is enforceable. That is a dispute to title allowing the application of the Quiet Title Act's waiver of the United States' sovereign immunity.
Accordingly,
IT IS ORDERED that the Federal Defendants' Motion to Dismiss [dkt. 58] is DENIED. IT IS FURTHER ORDERED that the Federal Defendant s' Request for Oral Argument on Pending Motion to Dismiss [dkt. 85] is DENIED. IT IS FURTHER ORDERED that P. Lynn Scarlett, in her official capacity as the Acting Secretary of the United States Department of the Interior, is substituted for Gale Norton.