Thiessen v. United States ( 2022 )

Appellate Case: 21-2053 Document: 010110679524 Date Filed: 05/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CRAIG THIESSEN; CANYON DEL
BUEY, LLC,
Plaintiffs - Appellants,
No. 21-2053
v.
(D.C. No. 2:20-CV-00364-GJF-GBW)
(D. N.M.)
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
_________________________________
Plaintiffs Craig Thiessen and Canyon Del Buey, LLC seek to quiet title to
property the federal government withdrew from the public domain in 1899. In a
thorough and well-reasoned Memorandum Opinion and Order, the district court
found that the applicable 12-year statute of limitations bars their suit. We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Appellate Case: 21-2053 Document: 010110679524 Date Filed: 05/04/2022 Page: 2
I. Background1
In 1899, “the United States withdrew from the public domain the land that
became the Gila National Forest and Apache National Forest.” Diamond Bar Cattle
Co. v. United States, 168 F.3d 1209, 1210 (10th Cir. 1999). The Forest Service
authorizes private parties to graze livestock on portions of this land by issuing term
livestock grazing permits. This suit pertains to one such portion, an approximately
48,000-acre grazing allotment known as the Canyon del Buey Allotment.
In 2011, the Forest Service issued Thiessen a 10-year permit to use the Canyon
del Buey Allotment for cattle grazing. Thiessen transferred the permit to Canyon
Del Buey, LLC, a business entity he owned with his brother, after authorities brought
charges against him for violating the Endangered Species Act by killing a “Mexican
gray wolf.” Aplts. App. at 234.
Thiessen later pled guilty to the charges, and the Forest Service terminated the
cattle-grazing permit. After unsuccessfully challenging the permit’s termination,
Thiessen and Canyon Del Buey, LLC brought this suit to quiet title to the Canyon del
Buey Allotment under the Quiet Title Act, 28 U.S.C. § 2409a, which “waives the
United States’s sovereign immunity and permits claims . . . seeking ‘to adjudicate a
disputed title to real property in which the United States claims an interest.’” George v.
United States, 672 F.3d 942, 944 (10th Cir. 2012) (quoting § 2409a(a)). They alleged
1
We recite only the facts necessary to dispose of the issues on appeal. The
district court more thoroughly set forth the historical and procedural facts of the case
and we do not repeat them here.
2
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“that they are the ‘surface owner for all agricultural and ranching purposes’ of the land
area enclosed within the [Canyon del Buey] Allotment and that the [Canyon del Buey]
Allotment is a fee-title property right of” theirs. Aplts. App. at 18.
The district court dismissed the suit under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction. It reasoned that the Quiet Title Act
only waives sovereign immunity for actions brought within the 12-year limitations
period set out in § 2409a(g). And the court concluded that because Plaintiffs’ action
accrued more than 12 years before they filed it, the doctrine of sovereign immunity
deprived the court of subject-matter jurisdiction.
II. Discussion
“We review de novo a dismissal for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).” Baker v. USD 229 Blue
Valley, 979 F.3d 866, 871 (10th Cir. 2020). “We review any findings of
jurisdictional facts for clear error.” Id. “The party invoking federal jurisdiction has
the burden to establish that it is proper, and there is a presumption against its
existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotation marks omitted).
“Timeliness under [§ 2409a(g)] is a jurisdictional prerequisite to suit”
under the Quiet Title Act. Rio Grande Silvery Minnow v. Bureau of Reclamation,
599 F.3d 1165, 1175 (10th Cir. 2010) (internal quotation marks omitted). To be
timely, a suit must be “commenced within twelve years of the date upon which it
accrued.” 28 U.S.C. § 2409a(g). “[T]he trigger for starting that twelve-year clock
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running is an exceedingly light one.” George, 672 F.3d at 944. And “[t]he twelve-
year limitations period is strictly construed in favor of the United States.”
Rio Grande Silvery Minnow, 599 F.3d at 1176.
A cause of action under the Quiet Title Act accrues “on the date the plaintiff or
his predecessor in interest knew or should have known of the claim of the United
States.” 28 U.S.C. § 2409a(g). “Knowledge of the claim’s full contours is not
required. All that is necessary is a reasonable awareness that the Government claims
some interest adverse to the plaintiff’s.” Knapp v. United States, 636 F.2d 279, 283
(10th Cir. 1980). Reasonable awareness “is not dependent on the plaintiff knowing
the precise nature of the property interest upon which the United States predicates its
claim of title.” Rio Grande Silvery Minnow, 599 F.3d at 1176.
The district court reasonably concluded “the record evidence makes clear
beyond dispute that a suit to quiet title in the [Canyon del Buey] Allotment accrued at
least decades—if not more than a century—before Plaintiffs filed the instant suit.”
Aplts. App. at 284. As support for this conclusion, the district court discussed more
than seventy pages of evidence including: (1) the notice to Plaintiffs’ predecessors
resulting from the government’s creation of a national forest encompassing the land
in question, (2) “grazing permits dating back to at least 1948 treating the [Canyon del
Buey] Allotment as land owned or controlled by the United States,” (3) “Federal
Register notices in 1977 further clarifying that such allotments were indeed owned or
controlled by the United States,” (4) “boundary changes that the United States
unilaterally made to the [Canyon del Buey] Allotment,” and (5) “a 2004
4
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environmental assessment again reminding Plaintiffs’ predecessors that the [Canyon
del Buey] Allotment was federal land.” Id. at 284–85 (brackets and internal
quotation marks omitted).
Plaintiffs challenge only the first three reasons discussed by the district court
and do not address the other evidence in the record that supports the court’s decision.
This unchallenged evidence, alone, supports the court’s finding that Plaintiffs’
predecessors “knew or should have known of the claim of the United States,”
28 U.S.C. § 2409a(g), more than 12 years before Plaintiffs filed this suit.
For example, Plaintiffs do not dispute that the United States unilaterally
changed the geographic boundaries of the Canyon del Buey Allotment in 1995 by
combining it with another grazing allotment and provided notice of this change to
Plaintiffs’ predecessors-in-interest. This action was sufficient to trigger a
“reasonable awareness that the Government claim[ed] some interest adverse,” Knapp,
636 F.2d at 283, to Plaintiffs’ claim of “a fee-title property right” to “the land area
enclosed within the [Canyon del Buey] Allotment,” Aplts. App. at 18.
Plaintiffs likewise do not dispute that in 2004 the United States delivered to,
and discussed with, their predecessors-in-interest a notice informing them that the
government planned to eliminate several acres from the Canyon del Buey Allotment.
The notice also stated that under the government’s proposed action, the district
ranger would decide “[w]here and when grazing would take place.” Id. at 100. It
further stated that if the government were to proceed on an alternative course, “there
would be no permitted grazing on the allotment, except for a minor amount attributed
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to recreational use.” Id. at 106. And it described the Canyon del Buey Allotment as
“federal lands.” Id. at 108. These statements made clear in 2004 that the United
States claimed an interest in the Canyon del Buey Allotment adverse to Plaintiffs’
claimed interest.
The district court correctly concluded that Plaintiffs’ predecessors “knew or
should have known of the claim of the United States,” 28 U.S.C. § 2409a(g), more
than 12 years before Plaintiffs filed their suit in 2020, and we therefore affirm the
district court’s dismissal.2
Given our de novo affirmance of the district court’s dismissal, we need not
consider whether the district court erred by denying Plaintiffs’ motion to file a
surreply.
III. Conclusion
We affirm the district court’s dismissal.
Entered for the Court
Joel M. Carson III
Circuit Judge
2
In reaching this conclusion, we do not consider two arguments Plaintiffs did
not present to the district court, including in their proposed surreply filed with the
district court. These are: (1) that the § 2409a(g) statute of limitations does not
implicate the court’s jurisdiction, and (2) that the district court erred by considering
the statute of limitations apart from the merits. Plaintiffs did not argue for plain-error
review, and “the failure to argue for plain error and its application on appeal surely
marks the end of the road for an argument not first presented to the district court.”
United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (ellipses and internal
quotation marks omitted).
6