Mayer Usd v. Mark Winkleman ( 2009 )


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  •                     SUPREME COURT OF ARIZONA
    En Banc
    MAYER UNIFIED SCHOOL DISTRICT     )   Arizona Supreme Court
    and GADSEN ELEMENTARY SCHOOL      )   No. CV-08-0225-PR
    DISTRICT,                         )
    )   Court of Appeals
    Plaintiffs/Appellants, )   Division Two
    )   No. 2 CA-CV 07-0126
    v.               )
    )   Maricopa County
    MARK WINKLEMAN, in his capacity   )   Superior Court
    as State Land Commissioner; THE   )   No. CV2004-020078
    ARIZONA STATE LAND DEPARTMENT;    )
    THE STATE OF ARIZONA; APACHE      )
    COUNTY; COCHISE COUNTY; COCONINO )
    COUNTY; GRAHAM COUNTY; GREENLEE   )   O P I N I O N
    COUNTY; MARICOPA COUNTY; MOHAVE   )
    COUNTY; NAVAJO COUNTY; PIMA       )
    COUNTY; PINAL COUNTY; SANTA CRUZ )
    COUNTY; YAVAPAI COUNTY; YUMA      )
    COUNTY; MARICOPA COUNTY FLOOD     )
    CONTROL DISTRICT; ARIZONA         )
    DEPARTMENT OF TRANSPORTATION;     )
    TOWN OF CAREFREE; CITY OF         )
    TUCSON; CITY OF FLAGSTAFF; TOWN   )
    OF GILA BEND; CITY OF GLENDALE;   )
    CITY OF GLOBE; MAGMA FLOOD        )
    CONTROL DISTRICT; TOWN OF         )
    MARANA; CITY OF PEORIA; CITY OF   )
    PHOENIX; CITY OF SCOTTSDALE;      )
    CITY OF SIERRA VISTA; and CITY    )
    OF TEMPE,                         )
    )
    Defendants/Appellees. )
    _________________________________ )
    )
    MAYER UNIFIED SCHOOL DISTRICT     )
    and GADSEN ELEMENTARY SCHOOL      )
    DISTRICT,                         )
    )
    Plaintiffs/Appellants/ )
    Cross-Appellees, )
    )
    v.               )
    CITY OF PEORIA and CITY OF        )
    SCOTTSDALE,                       )
    )
    Defendants/Appellees/ )
    Cross-Appellants. )
    _________________________________ )
    Appeal from the Superior Court in Maricopa County
    The Honorable Ruth Harris Hilliard, Judge
    AFFIRMED
    ________________________________________________________________
    Opinion of the Court of Appeals, Division Two
    ___ Ariz. ___, ___ P.3d ___ (App. 2008)
    
    2008 WL 2128064
     (May 19, 2008)
    VACATED
    ________________________________________________________________
    ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST               Phoenix
    By   Timothy M. Hogan
    Joy E. Herr-Cardillo                               Tucson
    Attorneys for Mayer Unified School District and
    Gadsen Elementary School District
    TERRY GODDARD, ARIZONA ATTORNEY GENERAL                   Phoenix
    By   Kenneth D. Nyman, Assistant Attorney General
    William A. Richards, Assistant Attorney General
    Patrick B. Sigl, Assistant Attorney General
    Attorneys for Mark Winkleman, Arizona State Land Department,
    and State of Arizona
    GALLAGHER & KENNEDY, P.A.                                   Phoenix
    By   Mark A. Fuller
    Kevin E. O’Malley
    Kiersten A. Murphy
    C. Lincoln Combs
    Attorneys for Arizona Department of Transportation
    MOYES SELLERS & SIMS, L.T.D.                             Phoenix
    By   C. Brad Woodford
    Jeffrey T. Murray
    Rebecca N. Lumley
    Attorneys for Town of Carefree, City of Flagstaff, Town of
    Gila Bend, City of Glendale, City of Globe, Town of Marana,
    City of Phoenix, City of Sierra Vista, and City of Tempe
    - 2 -
    STEPHEN M. KEMP, PEORIA CITY ATTORNEY                        Peoria
    By   Stephen M. Kemp, City Attorney
    Attorneys for City of Peoria
    DEBORAH W. ROBBERSON, SCOTTSDALE CITY ATTORNEY           Scottsdale
    By   Robert Bruce Washburn,
    Senior Assistant City Attorney
    Attorneys for City of Scottsdale
    COOPER & RUETER, L.L.P.                                  Casa Grande
    By   Stephen R. Cooper
    Attorneys for Magma Flood Control District
    TERENCE C. HANCE, COCONINO COUNTY ATTORNEY                Flagstaff
    By   Jean E. Wilcox, Deputy County Attorney
    Attorneys for Coconino County
    GUST ROSENFELD, P.L.C.                                   Phoenix
    By   Richard A. Segal
    Richard B. Hood
    Craig A. McCarthy
    Attorneys for Maricopa County and Flood Control
    District of Maricopa County
    ________________________________________________________________
    B E R C H, Vice Chief Justice
    ¶1         We have been asked to decide whether suit will lie
    under the Arizona-New Mexico Enabling Act for the State Land
    Commissioner’s failure to require compensation for easements and
    rights of way over state trust lands conveyed between 1929 and
    1967.   We hold that the claims are time-barred.
    I.   FACTUAL AND PROCEDURAL BACKGROUND
    ¶2         The Arizona-New Mexico Enabling Act granted nearly ten
    million acres of land to the State of Arizona to be held in
    trust for the support of public schools.      See Act of June 20,
    1910, ch. 310, §§ 24, 28, 
    36 Stat. 557
    , 572-74 (“Enabling Act”).
    - 3 -
    The State Land Commissioner administers the school land trust.
    Forest Guardians v. Wells, 
    201 Ariz. 255
    , 257, ¶ 2, 
    34 P.3d 364
    ,
    366 (2001).     He serves as the trustee of the land trust and must
    “manage the trust lands for the benefit of the trust and trust
    beneficiaries.”       Berry v. Ariz. State Land Dep’t, 
    133 Ariz. 325
    ,
    327, 
    651 P.2d 853
    , 855 (1982).
    ¶3           Beginning in 1929, the Commissioner granted easements
    over some of these trust lands to various government entities,
    for    roads    and    other     public   purposes,    without    requiring
    compensation to the school land trust.1          This practice continued
    until 1967, when the United States Supreme Court ruled that the
    Enabling Act requires compensation to the trust for the full
    value of any easements or uses of trust lands.              Lassen v. Ariz.
    ex rel. Ariz. Highway Dep’t (Lassen II), 
    385 U.S. 458
    , 469 &
    n.22 (1967).
    ¶4           Between 1929 and 1967, the Department conveyed more
    than   nine    hundred    such    easements   (the    “09   easements”)   to
    government     entities   without   receiving   compensation.      Many   of
    these easements remain in effect, although the trust has never
    been compensated for many of them.
    ¶5           On June 4, 2003, counsel for Plaintiffs Mayer Unified
    1
    For convenience, we use the term easements to encompass
    both easements and rights of way. These easements became known
    as   the  “09   easements”  based on  the   Land  Department’s
    classification number.
    - 4 -
    School   District      and     Gadsen     Elementary       School      District    (the
    “Districts”) sent a letter to the Commissioner alleging that the
    school   land       trust   had    received       no    consideration      for    these
    easements     and    requesting        further    information        regarding    them.
    The Commissioner responded that he needed to review the easement
    records before answering.               Discussions ensued, but the parties
    failed   to    resolve      the   issue.         The    plaintiffs     then    filed    a
    complaint on October 15, 2004, more than one year after they
    sent the June 4th letter to the Commissioner inquiring about the
    status of the easements.2              The complaint named as defendants the
    Land Department and its Commissioner and the State of Arizona.
    Twenty-eight easement holders were later joined as additional
    defendants.
    ¶6            Various defendants filed motions to dismiss on several
    grounds,      including     laches,      nonjusticiability,          the   statute     of
    limitations,     and    lack      of   standing.         They   also    claimed    that
    Lassen II should not apply retroactively.                       The superior court
    granted the defendants’ motions to dismiss based on laches.                          The
    court    of     appeals      reversed       the        superior      court’s      laches
    determination,       but    affirmed     the     dismissal      on   the   alternative
    ground that Lassen II applied prospectively only, and therefore
    2
    The original complaint named several parents of Arizona
    public school children as plaintiffs, but they were later
    dismissed from the action.      An amended complaint, filed in
    January 2005, added the Districts as additional plaintiffs.
    - 5 -
    the Districts were not entitled to relief.                             Mayer Unified Sch.
    Dist. v. Winkleman, ___ Ariz. ___, ___, ¶¶ 65, 77-78, ___ P.3d
    ___, ___, 
    2008 WL 2128064
     (App. May 19, 2008).
    ¶7           We     granted         review     of    the       issues       raised       in   the
    Districts’ petition for review and two issues raised in the
    State’s      cross-petition           to      decide          questions       of     statewide
    importance.        See ARCAP 23(c)(3).               We have jurisdiction pursuant
    to   Article      6,    Section      5(3)    of     the       Arizona   Constitution          and
    Arizona Revised Statutes (“A.R.S.”) section 12-120.24 (2003).
    II.     DISCUSSION
    A.      Enabling Act Background
    ¶8           The Enabling Act created the school land trust and
    provides     detailed        instructions         for     disposing      of    trust      lands.
    Enabling Act § 28.             For example, trust lands must be “appraised
    at   their   true       value”      and    cannot       be    sold    for     less   than     the
    appraised amount.             Id.     Nor may the State sell or lease trust
    lands    “except        to    the    highest      and        best    bidder    at    a    public
    auction.”         Id.        Disposal of any trust land in a manner not
    substantially conforming to the provisions of the Enabling Act
    constitutes “a breach of trust” that renders the disposition of
    trust lands “null and void.”                 Id.3
    3
    For a more detailed exploration of the history of the
    Enabling Act and its provisions, see Kadish v. Arizona State
    Land Department, 
    155 Ariz. 484
    , 486-88, 
    747 P.2d 1183
    , 1185-87
    (1987), aff’d sub nom. Asarco Inc. v. Kadish, 
    490 U.S. 605
    - 6 -
    ¶9             The Enabling Act’s disposition provisions have been
    the subject of recurring litigation with respect to easements
    granted to public entities.                In Grossetta v. Choate, we were
    asked     to    decide     whether     the    Land     Department        could      grant
    easements       over     trust    lands      in     the     absence      of   specific
    authorization in the Enabling Act.                    
    51 Ariz. 248
    , 250-51, 
    75 P.2d 1031
    , 1032 (1938).            We held that the Enabling Act did not
    limit the Legislature’s power “to grant rights of way easements
    over the public lands for public highways.”                   
    Id. at 254
    , 
    75 P.2d at 1033
    .        Grossetta, however, did not address whether easement
    holders     had    to    compensate     the        school   land    trust     for     the
    easements.
    ¶10            We answered that question seven years later in State
    ex rel. Conway v. State Land Department, 
    62 Ariz. 248
    , 
    156 P.2d 901
        (1945).         Conway    involved     an    order    by    the    Commissioner
    requiring       the     State    Highway      Department       to     surrender       all
    easements it held over trust lands.                  
    Id. at 249-50
    , 
    156 P.2d at 902
    .    These easements would be reissued, at the Commissioner’s
    option,    as     leases.        
    Id.
        The       Highway    Department       sought    a
    declaratory judgment that the Commissioner lacked the authority
    to issue the order.         
    Id. at 249
    , 
    156 P.2d at 901
    .                 We agreed and
    held that the Highway Department was “not required to pay . . .
    (1989), and Murphy v. State, 
    65 Ariz. 338
    , 344-53, 
    181 P.2d 336
    ,
    340-46 (1947).
    - 7 -
    for    the    taking     or    use”   of     trust       lands    for     building       and
    maintaining state highways.            Id. at 255-56, 
    156 P.2d at 904
    .
    ¶11           The     compensation    issue       came    before       this    Court    once
    again in 1965.          In State ex rel. Arizona Highway Department v.
    Lassen (Lassen I), we addressed whether the Commissioner could
    adopt a rule requiring compensation for public highway rights of
    way and material sites on trust lands.                     
    99 Ariz. 161
    , 162, 
    407 P.2d 747
    ,     747-48      (1965),    rev’d       
    385 U.S. 458
        (1967).         We
    prohibited adoption of the rule and held that the Commissioner
    must    grant       material    sites       and     easements       to        the    Highway
    Department without requiring compensation for the public use of
    the trust lands.         Id. at 168, 
    407 P.2d at 752
    .
    ¶12           The United States Supreme Court granted certiorari and
    reversed.      Lassen II, 
    385 U.S. at 470
    .                The Court held that the
    Highway Department must pay for the use of the trust lands, even
    though it was building and maintaining highways for the public’s
    benefit.        
    Id. at 466
    .      After       examining      the     Enabling      Act’s
    valuation and fund-usage provisions, as well as its background
    and    legislative       history,     the     Court      concluded       that       Congress
    intended the school land trust to “derive the full benefit of
    the [federal land] grant.”              
    Id. at 466-68
     (citation omitted).
    To further this purpose, it held that the Highway Department
    must “compensate the trust . . . for the full appraised value of
    any material sites or rights of way which it obtains on or over
    - 8 -
    trust lands.”        
    Id. at 469
     (footnote omitted).
    ¶13           The    Court     therefore      permitted   the    Commissioner    to
    issue the rule requiring compensation for public highway rights
    of    way   and     material    sites    on    trust   lands.      It    explicitly
    declined, however, to decide whether compensation was owed for
    the more than nine hundred 09 easements that had been granted
    between 1929 and the date of its opinion in 1967.4                      It is those
    easements for which the Districts now seek compensation.
    B.     Statute of Limitations
    ¶14           The defendants assert that the statute of limitations
    bars    the    Districts’       claims     for   compensation     for     easements
    granted between 1929 and 1967.                They reason that the Districts’
    cause of action accrued in 1967 when the Supreme Court published
    its    opinion      in   Lassen    II    declaring     that     compensation    was
    required for the easements.
    ¶15           The parties do not dispute that A.R.S. § 12-821 states
    4
    Immediately following its holding, the Supreme Court noted
    the following:
    We are informed by counsel that over a period of
    years Arizona has obtained the use of large areas of
    trust lands on bases that may not have accorded with
    those set forth in this opinion.   We wish to make it
    plain that we do not reach either the validity of any
    such transfers or the obligations of the State, if
    any, with respect thereto.
    Lassen II, 
    385 U.S. at
    469 n.22.
    - 9 -
    the applicable limitations period.5          Section 12-821 requires that
    actions against a government entity “be brought within one year
    after the cause of action accrues and not afterward.”                 A.R.S.
    § 12-821 (2003) (current version of statute).                “[A] cause of
    action accrues when the damaged party realizes he or she has
    been damaged and knows or reasonably should know the cause,
    source, act, event, instrumentality or condition which caused or
    contributed to the damage.”         Id. § 12-821.01(B).       The Districts
    filed   their    complaint   on   October    15,   2004.     Therefore,   the
    complaint is not timely unless the Districts’ cause of action
    accrued after October 15, 2003.
    C.    When the Districts’ Cause of Action Accrued
    ¶16        The    Districts’      cause     of   action    stems   from   the
    uncompensated conveyance of easements over trust lands between
    5
    We assume, therefore, that § 12-821 applies.       We note,
    however, that the current version of that section was first
    enacted in 1994.   See 1994 Ariz. Sess. Laws, ch. 162, § 1 (2d
    Reg. Sess.).   But limitations statutes with similar provisions
    were in effect at all times relevant to this action, alleviating
    any harm in applying the terms of § 12-821.    See, e.g., A.R.S.
    § 12-821 (1992) (repealed 1993) (twelve month statute of
    limitations for claims against a public entity); § 12-550 (1956)
    (four year general limitations period when no limitation is
    otherwise prescribed).   In any event, once the new limitations
    statute became effective, the Districts had at most one year
    thereafter to bring their claims.       See A.R.S. § 12-505(B)
    (2003); see also City of Tucson v. Clear Channel Outdoor, Inc.,
    
    209 Ariz. 544
    , 554, ¶ 42, 
    105 P.3d 1163
    , 1173 (2005). Finally,
    the Districts have not questioned the applicability of the
    statute of limitations to them.   Cf. Tucson Unified Sch. Dist.
    v. Owens-Corning Fiberglas Corp., 
    174 Ariz. 336
    , 337, 
    849 P.2d 790
    , 791 (1993) (exempting school district from limitations
    period).
    - 10 -
    1929 and 1967.       Because this Court had held that no compensation
    was owed for the 09 easements, however, the Districts had no
    reason between 1929 and 1967 to know that the school trust had
    been damaged.      See Lassen I, 
    99 Ariz. at 166, 168
    , 
    407 P.2d at 750, 752
    ; Conway, 
    62 Ariz. at 255-56
    , 
    156 P.2d at 904
    .6
    ¶17         But the Districts should reasonably have known that
    compensation for the easements was required and had not been
    paid by January 10, 1967, when the Supreme Court issued its
    opinion in Lassen II, 
    385 U.S. 458
    , which held that government
    entities that acquire trust lands, even for uses that benefit
    the public, must compensate the school trust.              
    Id. at 468-69
    .
    Our opinions in Grossetta, 
    51 Ariz. at 254
    , 
    75 P.2d at 1033
    ,
    Conway, 
    62 Ariz. at 251, 255-56
    , 
    156 P.2d at 902, 904
    , and
    Lassen I, 
    99 Ariz. at 168
    , 
    407 P.2d at 752
    , should have alerted
    the Districts that the Commissioner had granted easements to
    public    entities    without   requiring   compensation   to    the    school
    trust    between   1929   and   1965.   These   opinions   put    all   trust
    6
    Indeed, in Lassen I, we suggested that the highways built
    on the easements enhanced the value of the trust lands:
    Certainly, if the highways had not been established
    the values of these lands would have been much less.
    Nor does [the Commissioner] state whether the values
    estimated are those when the easements were first
    granted or as of the present time, after the values
    have been enhanced by the building of a highway system
    throughout this state.
    
    99 Ariz. at 166
    , 
    407 P.2d at 750
    .
    - 11 -
    beneficiaries, including the Districts, on notice that unpaid-
    for easements existed.
    ¶18          The   Supreme      Court    confirmed      the    existence      of   such
    easements in Lassen II, 
    385 U.S. at
    469 n.22.                      Although Lassen
    II required the Highway Department to compensate the trust for
    future easements granted over trust lands, the Court refrained
    from   deciding     whether      compensation     was      required     for   the    09
    easements.         
    Id.
            Thus,    the   Lassen   II      opinion   placed      the
    Districts on notice of past acquisitions of trust lands for
    which compensation might be owed but had not been paid.                             The
    repeated references by both this Court and the United States
    Supreme Court to the existence of easements conveyed without
    compensation lead us to conclude that reasonable persons either
    knew or should have known of such easements at the time of the
    Lassen II decision.           The Districts’ cause of action thus accrued
    at that time.7
    ¶19          The    Districts         maintain    that     their      claim    should
    nonetheless    not       be   barred    because   the      Commissioner,      as    the
    7
    Although we conclude that the cause of action accrued in
    1967, it is indisputable that the Districts had actual notice of
    the 09 easements, and of the Commissioner’s failure to obtain
    compensation for them, by June 2003, when the Districts’ counsel
    sent a letter to the Commissioner stating his understanding that
    “none of the 985 [09] easements and rights of way issued by the
    Department to governmental and public entities were made in
    exchange for any financial consideration.”     Therefore, at the
    very latest, the Districts’ cause of action accrued on June 4,
    2003, more than one year before a complaint was filed.
    - 12 -
    trustee of the school land trust, has an ongoing duty to remedy
    violations of the Enabling Act.             The Commissioner’s failure to
    obtain compensation for the use of the easements constitutes a
    continuing     violation   that    renders      the   statute    of    limitations
    inapplicable, the Districts assert, because a new claim arises
    each moment that the Commissioner fails to obtain value for the
    easements.
    ¶20          We   disagree.       We    find    persuasive      the    opinion    in
    Mitchell v. United States, 
    13 Cl. Ct. 474
     (1987).                    In that case,
    the court considered a similar “continuing violation” claim in
    the context of a trustee’s duty to obtain adequate compensation
    for the use of trust lands.            Id. at 478.       There, the Bureau of
    Indian Affairs (the “BIA”) served as the statutory trustee of a
    trust   that      benefited      allottees      of    the    Quinault         Indian
    Reservation.      Id. at 476.          The allottees alleged that the BIA
    “collected inadequate fees from the logging companies for the
    private use of roads crossing the allottees’ lands.”                    Id.      Like
    the Districts here, the allottees did not file suit within the
    statutory limitations period.            Id. at 478-79.      In an attempt to
    revive their time-barred claim, the allottees argued that even
    if they had constructive notice of the inadequate compensation
    claim, the statute of limitations should not preclude the claim
    because the trustee had a continuing duty to collect adequate
    compensation      from     the    logging       companies       as    timber     was
    - 13 -
    transported over rights of way on the allottees’ lands.      Id. at
    479.     The court rejected the allottees’ continuing violation
    theory, reasoning that “the duty to secure compensation for a
    right-of-way arises only once – at the time the right-of-way is
    granted.”     Id. at 480.    We agree that the violation here also
    occurred once, when the 09 easements were granted, even though
    the cause of action did not accrue until 1967.
    ¶21         Because the Districts filed their complaint more than
    one year after their cause of action accrued, we hold that their
    claims are time-barred.
    III.   CONCLUSION
    ¶22         For the foregoing reasons, we vacate the opinion of
    the court of appeals and affirm the judgment of the superior
    court.
    _______________________________________
    Rebecca White Berch, Vice Chief Justice
    CONCURRING:
    _______________________________________
    Ruth V. McGregor, Chief Justice
    _______________________________________
    Michael D. Ryan, Justice
    _______________________________________
    W. Scott Bales, Justice
    - 14 -
    H U R W I T Z, Justice, concurring in part and concurring in the
    result
    ¶23            The majority concludes that the Districts’ cause of
    action       accrued    when    the    Supreme       Court    of    the    United      States
    decided Lassen v. Ariz. ex rel. Ariz. Highway Dep’t (Lassen II),
    
    385 U.S. 458
     (1967).             I do not doubt that the relevant statute
    of limitations expired years before this suit was filed.                                But I
    do not believe that we need to decide today that a “reasonable
    person”      would     have    received       constructive        notice       of   potential
    claims on the very day Lassen II was decided from a footnote in
    that   opinion.          As     the    Court    notes,       by    June    4,       2003,    the
    Districts’ counsel had actual knowledge of the facts underlying
    their claims.          Op. ¶ 18 n.8.           Because this suit was filed more
    than     a    year     later,    I     find    it    unnecessary          to    rely    on    a
    constructive notice fiction to set a precise earlier date of
    accrual.        I    therefore        concur    in    ¶¶   1-16     and    19-22       of    the
    majority opinion and in the result.
    ________________________________
    Andrew D. Hurwitz, Justice
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