Emerald v. Harrison ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: EMERALD OUTDOOR 
ADVERTISING, LLC,
Debtor,
No. 04-35647
TIFFANY HARRISON, Creditor; GOLD
EAGLE GAMING LLC, Creditor,  D.C. No.
CV-03-00432-RHW
Appellants,
OPINION
v.
EMERALD OUTDOOR ADVERTISING,
LLC,
Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
March 8, 2006—Seattle, Washington
Filed April 13, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Silverman
4089
IN RE: EMERALD OUTDOOR ADVERTISING 4093
COUNSEL
John D. Sullivan; Short Cressman & Burgess PLLC, Seattle,
Washington, for appellant Gold Eagle Gaming, LLC.
Jason M. Whalen; Alexander S. Kleinberg; Eisenhower &
Carlson, PLLC, Tacoma, Washington, for appellant Tiffany J.
Harrison.
Michael J. Murphy; William J. Crittenden; Groff Murphy
Trachtenberg & Everard PLLC, Seattle, Washington, for
appellee Emerald Outdoor Advertising, LLC.
OPINION
SILVERMAN, Circuit Judge:
Peskind’s law holds: When there is uncertainty about where
to file a security interest in order to perfect it, file everywhere.1
This case illustrates the wisdom of that rule. In 1994, a deed
of trust securing Indian trust land was recorded in the Office
of the Auditor of Pierce County, Washington, the county in
which the land is located. In 1995, a commercial lease of the
land was recorded in the BIA Title Plant in Portland, Oregon.
Which interest has priority — the deed of trust or the lease?
1
JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE
§ 23-22 (1st ed. 1972). Peskind’s law is named after E.J. Peskind, a long-
standing member of the Arizona Bar. Peskind was a student of Professor
James J. White at the University of Michigan Law School in the 1960’s.
When Professor White called on Peskind and asked him what steps a party
should take to perfect its security interest when there is uncertainty about
where to file, Peskind responded, “File everywhere.” Apparently moved
by the wisdom of that answer, Professor White declared to the class that
it would be forever known as “Peskind’s law.” The White & Summers
hornbook defines Peskind’s law as follows: “When in doubt about your
perfection take all possible steps (including . . . multiple filing) that could
help.” Id. § 23-22, at 863.
4094 IN RE: EMERALD OUTDOOR ADVERTISING
We hold that federal law directs us to state law to determine
priority, and under Washington’s race-notice statute, priority
is obtained by recording in the county in which the land is
located. Therefore, the deed of trust has priority over the
lease.
I. BACKGROUND
A. Factual Background
Roleen Hargrove, a member of the Puyallup Tribe of Indi-
ans, occupied a parcel of tribal land that was held in trust by
the United States government. Under federal law, holders of
Indian trust lands may mortgage their land, but they must first
obtain BIA approval. See 25 U.S.C. § 483a(a). In 1994, Busi-
ness Finance Corporation (“BFC”) agreed to loan Hargrove
money if she executed a deed of trust in its favor.
On July 7, 1994, the BIA Puget Sound Agency issued a
“Certificate of Approval” in connection with the Hargrove-
BFC deed of trust. The Certificate of Approval provides that
it “shall be attached to and recorded in the Official Records
of the Bureau of Indian Affairs with [the] Deed of Trust” and
that it was granted in accordance with federal law and pursu-
ant to the Secretary of the Interior’s authority. However, the
Certificate of Approval was not recorded in the BIA Title
Plant in Portland at that time (it was not recorded there until
three years later, in 1997). “Title Plant” is a term used to iden-
tify any one of the BIA’s Land Titles and Records Offices
located throughout the country. Each such Office has respon-
sibility for Indian lands located within a particular geographic
region.
BFC recorded the deed of trust with the Pierce County
Auditor in September 1994. On January 9, 1995, Hargrove
and Emerald Outdoor Advertising, LLC executed a lease
whereby Emerald Outdoor was permitted to erect advertising
IN RE: EMERALD OUTDOOR ADVERTISING 4095
signs on Hargrove’s land. Emerald Outdoor recorded its lease
in the Portland BIA Title Plant, but not in Pierce County.
In January 1996, BFC assigned its deed of trust to Gold
Eagle Gaming.2 In March 1997, after discovering that the
deed of trust was recorded only in Pierce County, Gold
Eagle’s counsel asked the BIA to record the deed of trust in
the Portland BIA Title Plant, which it did in May 1997.
In March 1998, after Hargrove defaulted on her loan, Gold
Eagle commenced a non-judicial foreclosure of the deed of
trust. In August 1998, an official at the Portland BIA Title
Plant informed Gold Eagle’s counsel that the deed of trust
was void for lack of approval because “the Puget Sound
Agency did not properly process the Deed of Trust when it
was approved in 1994.”3 Apparently, the Puget Sound Agency
failed to record the Certificate of Approval in the Title Plant.
In September 1997, the Puget Sound Agency sought to correct
the purported defect, recording a new certification “as a
Trailer Document to the original Deed of Trust,” and declared
that the “Deed of Trust is entirely valid.” The new certifica-
tion, dated September 10, 1998, specifically references the
original “Certificate of Approval” signed by the Puget Sound
Agency on July 7, 1994.
In February 2001, before the foreclosure sale occurred,
Gold Eagle assigned its interest to Tiffany Harrison, a mem-
ber of the Puyallup Tribe. The next day, Hargrove filed for
bankruptcy, and the bankruptcy court permitted the deed of
2
The assignment provided that Gold Eagle and John Soh each held a 50
percent interest in the deed of trust. Soh later transferred his interest to
Gold Eagle. So, Soh is not involved in this dispute.
3
The account of what happened is set forth in a letter from Gold Eagle’s
counsel to Mr. William Black, Superintendent of the Puget Sound Agency.
In their Stipulated Facts, dated July 17, 2003, the parties referenced the
existence of that letter, but did not agree to the accuracy of its contents.
Nonetheless, we do not rely on the letter for its truthfulness, but only to
explain why the BIA issued a new certification, as explained infra.
4096 IN RE: EMERALD OUTDOOR ADVERTISING
trust to be foreclosed in May 2002. Harrison was the success-
ful bidder.
In August 2002, Harrison filed an eviction action against
Emerald Outdoor in tribal court. That action was dismissed
without prejudice. In December 2002, Harrison tried again,
this time filing a quiet title action against Emerald Outdoor in
tribal court. While that action was pending, Emerald Outdoor
filed for bankruptcy, which stayed the tribal court proceed-
ings.
B. Bankruptcy Proceedings
In the bankruptcy court, Emerald Outdoor filed a Motion to
Assume Executory Contracts and Leases under 11 U.S.C.
§ 365,4 seeking to establish the validity of its lease of Harri-
son’s land. The bankruptcy court determined that Emerald
Outdoor’s lease was extinguished upon foreclosure of the
deed of trust, because its interest was junior to the interest
conveyed in the deed of trust (which was ultimately assigned
to Gold Eagle, and then to Harrison). See In re Emerald Out-
door Adver., L.L.C., 300 B.R. 775 (E.D. Wash. 2003). A pre-
requisite to that ruling was the bankruptcy court’s conclusion
that recording the deed of trust in Pierce County gave it prior-
ity over Emerald Outdoor’s lease, even though the deed of
trust was not recorded in the Portland BIA Title Plant until
after the lease was recorded there. See id. at 783. The bank-
ruptcy court also concluded that the deed of trust was valid
when the Puget Sound Agency issued the “Certificate of
Approval” on July 7, 1994, not in September 1998 when the
BIA recorded a new certification as a trailer to the deed of
trust. See id. at 780-81.
On appeal, the district court agreed with the bankruptcy
4
11 U.S.C. § 365(a) provides that, with certain limited exceptions not at
issue, “the trustee, subject to the court’s approval, may assume or reject
any executory contract or unexpired lease of the debtor.”
IN RE: EMERALD OUTDOOR ADVERTISING 4097
court that the approval process did not depend on recording
the deed of trust in the Portland BIA Title Plant, thus render-
ing July 7, 1994, the effective date of BIA approval.5 The dis-
trict court, however, concluded that Emerald Outdoor’s lease
had priority over the deed of trust because the lease was
recorded in the BIA Title Plant before the deed of trust was.
Gold Eagle and Harrison timely appealed.
II. ANALYSIS
A. Pierce County was the proper recording location in
this case.
[1] Our analysis focuses on 25 U.S.C. § 483a(a). To protect
mortgagees that loan money to holders of Indian trust lands,
§ 483a(a) subjects the holder to foreclosure “in accordance
with the laws of the tribe which has jurisdiction over such
land or, in the case where no tribal foreclosure law exists, in
accordance with the laws of the State . . . in which the land
is located.” The Puyallup Tribe had no laws governing the
foreclosure of mortgaged land and thus, Washington law gov-
erned the foreclosure of Hargrove’s land. The question before
us is whether § 483a(a)’s direction to follow state law neces-
sarily incorporates Washington’s rules for determining prior-
ity.
Emerald Outdoor asserts that, notwithstanding § 483a(a)’s
direction to follow state law, BIA regulations dictate where a
party must record an interest in Indian land to obtain priority
over competing interests, namely, in the BIA Title Plant, and
that recording there was necessary to perfect the deed of trust.
Appellants, on the other hand, assert that state law dictated the
proper location of recording in this case, namely, in the
County Auditor’s Office in Pierce County, and that such
recording was all that was necessary for perfection.
5
The district court set forth its ruling in an unpublished order.
4098 IN RE: EMERALD OUTDOOR ADVERTISING
[2] We hold that BFC perfected its lien vis-a-vis subse-
quent interest holders such as Emerald Outdoor when it
recorded in Pierce County, in accordance with state law,
regardless of whether it also recorded in the BIA Title Plant.
That is because § 483a(a)’s resort to Washington foreclosure
law necessarily incorporates Washington rules for recording,
lien perfection, and priority.
The act of recording has no legal significance besides pro-
viding notice to interested parties of an interest in land. As the
bankruptcy court correctly noted, whether the notice achieved
by recording establishes priority over another interest depends
on how priority is determined under the applicable substantive
law. To put it another way, priority “is not solely dependent
upon the earliest date of notice but may depend upon the type
of transaction.” 300 B.R. at 782. For example, as the bank-
ruptcy court explained, RCW 60.04.061 establishes priority
among mechanics liens by the date which materials were first
supplied (or labor provided), not solely by the date of notice
of the lien.
[3] This case involves the foreclosure of a mortgage on
land. Priority among the various interests in the land is a criti-
cal part of a foreclosure in Washington. See RCW 61.24.060
(foreclosure extinguishes all liens, leases and other encum-
brances that are subordinate to the foreclosed deed of trust).
As to whose interests are junior, we look to state law — not
federal law — because § 483a(a) and its accompanying regu-
lations say nothing about priority of interests.
[4] Washington law provides that any conveyance of an
interest in land that is not recorded in the county in which the
land sits is void as against any subsequent interest that is duly
recorded, provided the holder of the subsequent interest paid
consideration and had no notice of the prior interest. See
RCW 65.08.070. Indeed, to even conduct a foreclosure sale in
Washington, the deed of trust must be recorded “in each
county in which the land or some part thereof is situated.”
IN RE: EMERALD OUTDOOR ADVERTISING 4099
RCW 61.24.030. Emerald Outdoor does not contend that
Appellants failed to comply with those laws. Accordingly, the
foreclosure sale extinguished its lease.
The bankruptcy court suggested that recording in either the
BIA Title Plant or Pierce County would have perfected BFC’s
interest. See 300 B.R. at 782. As we just explained, though,
Washington law requires a party to record in the county in
which the land sits in order to perfect an interest. See RCW
65.08.070. Thus, for the bankruptcy court to be correct, we
would have to conclude that the BIA recording system pre-
empted Washington’s recording statute (RCW 65.08.070) to
the extent that the statute applies to foreclosures of Indian
trust lands under § 483a(a). We will not do that. Not only is
there no evidence of Congressional intent to preempt state law,6
there is actually clear direction from Congress that we are
supposed to accommodate state or tribal law. See Northwest
S.D. Prod. Credit Ass’n v. Smith, 784 F.2d 323, 326 (8th Cir.
1986) (“Rather than evincing an intention to create a body of
federal law applicable to mortgages on Indian trust lands, the
statute’s language and legislative history demonstrate that
Congress intended to . . . accommodate local law to trust land
mortgages.” (citation omitted)).7
Emerald Outdoor argues, and the district court agreed, that
6
Federal preemption of state law occurs only where Congress expressly
provides for it, Congress establishes a scheme of regulation so comprehen-
sive as to leave no room for supplementary state regulation, or compliance
with both federal and state law is impossible. See In re Cybernetic Servs.,
Inc., 252 F.3d 1039, 1045 (9th Cir. 2001).
7
After Emerald Outdoor’s motion to assume its lease was denied, it
moved for reconsideration, submitting a declaration from Terry Beckwith,
a former local director at the BIA. It was not an abuse of discretion for the
bankruptcy court to deny that motion. See In re Weiner, 161 F.3d 1216,
1217 (9th Cir. 1998) (bankruptcy court’s denial of motion for reconsidera-
tion is reviewed for abuse of discretion). Beckwith’s declaration was noth-
ing more than his personal opinion about how the recording process
should work, and it came far too late.
4100 IN RE: EMERALD OUTDOOR ADVERTISING
giving effect to BFC’s recording in Pierce County renders the
BIA recording system moot. We agree that the BIA regula-
tions make recording in the Title Plant mandatory, and that
Congress would not authorize, nor would the BIA implement,
a recording system in an exercise of futility. Nonetheless, as
explained below, that does not mean recording in the BIA
Title Plant gave Emerald Outdoor’s lease priority over Appel-
lants’ interest.
Pursuant to 25 U.S.C. § 5,8 the BIA has promulgated regu-
lations that establish a comprehensive scheme for recording
title documents relating to Indian lands. For instance, 25
C.F.R. § 150.1 states that the BIA is to “set forth authorities,
policy and procedures governing the recording, custody,
maintenance, use and certification of title documents, and the
issuance of title status reports for Indian land.” Section 150.6
mandates that “[a]ll title documents shall be submitted to the
appropriate Land Titles and Records Office for recording
immediately after final approval, issuance, or acceptance.” 25
C.F.R. § 150.6.
[5] Significantly, BIA Title Plants (i.e., the Land Titles and
Records Offices) are “charged with the Federal responsibility
to record, provide custody, and maintain records that affect
titles to Indian lands.” 25 C.F.R. § 150.2(j) (emphasis added).
We agree with Appellants that the word “Federal” must have
some significance. See United States v. Trident Seafoods
Corp., 92 F.3d 855, 860 (9th Cir. 1996) (court must interpret
statute and rule of civil procedure “in a manner that gives
meaning to every word in each”).
[6] The term “Federal” in § 150.2(j) suggests that the BIA
anticipated that, in addition to a recording in the appropriate
8
25 U.S.C. § 5 provides that the Commissioner of Indian Affairs is “em-
powered and directed to continue to make and keep a record of every deed
executed by any Indian . . . which may require the approval of the . . . Sec-
retary of the Interior, whenever such approval shall have been given.”
IN RE: EMERALD OUTDOOR ADVERTISING 4101
Title Plant, parties to a conveyance of Indian land may be
obligated to comply with parallel state recording systems, or,
in some instances, the systems that the Tribes themselves main-
tain.9 That does not mean, however, that recording in the Title
Plant serves no purpose. While it may not determine priority
between competing interests in Indian land, recording in the
BIA Title Plant allows the BIA to exercise its fiduciary obli-
gations to maintain accurate records of the status of title to
Indian land. See McDonald v. Means, 309 F.3d 530, 538 (9th
Cir. 2002) (BIA has fiduciary obligations in its management
of tribal rights-of-way held in trust by government); cf. Inter
Tribal Council of Ariz., Inc. v. Babbitt, 51 F.3d 199, 203 (9th
Cir. 1995) (Government incurs fiduciary duties toward Indian
tribes when it manages or operates Indian lands).
[7] In fact, a close reading of the BIA’s regulations reveals
that the recording obligation in 25 C.F.R. § 150.6 is an inter-
nal obligation that falls on the shoulders of the BIA, not the
party acquiring an interest in Indian land. Title documents are
recorded “immediately after final approval,” and it is the
approving officials who are responsible “for prompt compli-
ance with the recording requirement.” 25 C.F.R. § 150.6(“Bureau officials delegated authority by the Secretary to
approve title documents or accept title are responsible for
prompt compliance with the recording requirement.”). This
process meshes well with § 483a(a). The statute ensures that
the BIA will receive the title documents by virtue of its
approval requirement, and if the BIA approves the convey-
ance, it then records in its system. Because recording cannot
occur until there is approval, we can discern no reason for the
BIA to approve a conveyance and then turn around and send
the title documents back to the parties, only to have them
resubmit the same documents for recording in the local Title
Plant.
9
See Appellants’ Opening Br. at 33-37 (listing Tribes which have
adopted their own recording systems).
4102 IN RE: EMERALD OUTDOOR ADVERTISING
Title Plants can serve other purposes as well. In some
instances, recording in Title Plants could determine priority
among competing interests in Indian land. For instance, tribal
law may require it, or the BIA could assume recording obliga-
tions under a contract between the tribe and Government. See
Oglala Sioux Tribe of the Pine Ridge Indian Reservation v.
United States, 21 Cl. Ct. 176, 182 (1990) (memorandum of
understanding provided that the BIA “shall assume principal
responsibility for the maintenance of records of all land held
in trust by the United States for the Tribe”).
[8] Moreover, as Emerald Outdoor points out, Title Plants
provide “constructive notice” of title to Indian land. See 25
C.F.R. § 150.2(m). Such notice, according to Emerald Out-
door, makes little sense if it has no impact on priority between
competing interests in Indian land. The BIA, in accordance
with the authority granted it under 25 U.S.C. § 5, can cer-
tainly decree that a recording in the appropriate Title Plant
serves as notice to the world of an interest in Indian land. See,
e.g., Ellingsen v. Franklin County, 810 P.2d 910, 912 (Wash.
1991) (“The matter of constructive notice from the record is
entirely a creation of statute . . . .” (internal quotations omit-
ted)). That does not mean, however, that Emerald Outdoor’s
lease has priority in this case. The fact that Emerald Out-
door’s recording in the Title Plant constituted constructive
notice does not impact a priority contest under Washington
law — the contest is won by recording in the county in which
the land sits. As we said before, there are no federal priority
rules that govern this case.
As to the legal significance of the “constructive notice” ele-
ment in the BIA regulations, our inquiry ends there. There
may be instances where recording in the BIA Title Plant could
establish priority, but we leave that issue for another day.10
10
For instance, if Washington were a “pure notice” state instead of a
“race-notice” state — meaning that the law did not protect subsequent pur-
chasers with notice, even if they recorded first — and BFC recorded in the
IN RE: EMERALD OUTDOOR ADVERTISING 4103
B. The BIA’s approval of the deed of trust was
effective July 7, 1994.
[9] The fact that the Certificate of Approval was not
recorded until 1998 did not delay its effective date and make
BFC’s deed of trust junior to Emerald Outdoor’s lease. As the
district court noted, the BIA may seek criminal penalties if a
person attempts to record conveyance documents before BIA
approval. See 25 C.F.R. § 152.22(a) (“[I]nducing an Indian to
execute an instrument purporting to convey any trust land or
interest therein, or the offering of any such instrument for
record, is prohibited and criminal penalties may be
incurred.”). Consequently, recording must occur after BIA
approval. We agree with the district court that if recording has
any legal significance, it “must have legal significance dis-
tinct from the act of approval.”
The BIA regulations confirm this. In particular, they pro-
vide that “[a]ll title documents shall be submitted to the
appropriate Land Titles and Records Office for recording
immediately after final approval.” 25 C.F.R. § 150.6 (empha-
sis added). Nothing in the BIA regulations conditions validity
of the conveyance upon recording of the title documents. That
comports with the significance of the two procedures — BIA
approval requires an exercise of discretion, whereas recording
“is a ministerial act.” 300 B.R. at 781. Indeed, the Supreme
Court recognized as much when it held that an interest in
Indian land that was duly recorded — but not approved by the
Government as required by law — had priority over an inter-
Title Plant, while Emerald Outdoor recorded in Pierce County, the deed
of trust could still have priority via the “constructive notice” provision in
§ 150.2(m). That is because in a “pure notice” state, the technicalities of
recording requirements, including the proper location, are subservient to
the question of whether the party had notice. We do not, however, offer
any opinion as to how such a case would come out.
4104 IN RE: EMERALD OUTDOOR ADVERTISING
est subsequently recorded and approved by the Government.
See Lomax v. Pickering, 173 U.S. 26, 29 (1899).11
Emerald Outdoor argues that whether the BIA approved the
deed of trust in 1994 is a factual dispute, and the bankruptcy
court erred by deciding the issue without allowing it discov-
ery or an evidentiary hearing. We disagree. The issue is
whether “approval” for purposes of § 483a(a) requires record-
ing in the BIA Title Plant, something that did not occur when
the Puget Sound Agency issued the “Certificate of Approval”
in July 1994. This is purely a question of law that did not
require an evidentiary hearing. Indeed, we note that the record
in this case included all the relevant title documents, and nei-
ther party claims otherwise. Our task, as well as the bank-
ruptcy court’s, was to determine the legal significance of
those documents. There was no error.
III.
[10] It was risky for BFC not to record in the BIA Title
Plant. BFC violated Peskind’s law but not state or federal law.
Recording in Pierce County was enough to establish priority
over Emerald Outdoor’s lease. Section 483a(a) incorporates
state law, and state law is what BFC followed. The order of
the district court is REVERSED.
11
Specifically, the Court said:
There was nothing to apprise the recorder of any want of author-
ity to convey, or to justify him in refusing to put the deed on
record. Whether the grantors had authority to make the deed, as
between themselves and the grantees, or subsequent purchasers,
is a matter which did not concern him. Though the deed might be
impeached by showing that the grantors had no such authority,
the record was notice to subsequent purchasers that they had at
least attempted to convey their interests.
Id.