McFarland v. Norton ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN JAMES MCFARLAND, 
Plaintiff-Appellant,
v.
GALE A. NORTON, in her capacity
as Secretary of the Department of No. 03-35831
the Interior; JOHN F. SHIREMAN, in
his capacity as Acting
Superintendent of Glacier National
 D.C. No.
CV-00-00020-DWM
Park; UNITED STATES OF AMERICA; OPINION
NATIONAL PARK SERVICE,
Defendants-Appellees,
NATIONAL PARKS CONSERVATION
ASSOCIATION,
Defendant-Intervenor-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
February 10, 2005—Seattle, Washington
Filed October 11, 2005
Before: Monroe G. McKay,* Diarmuid F. O’Scannlain, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
*The Honorable Monroe G. McKay, Senior United States Circuit Judge
for the Tenth Circuit, sitting by designation.
13965
13968 MCFARLAND v. NORTON
COUNSEL
Alison Roberts, Lakewood, Colorado, argued the cause for
the appellant; Kelly S. Hall and William Perry Pendley,
Mountain States Legal Foundation, Lakewood, Colorado,
were on the briefs.
Todd S. Kim, Washington, D.C., argued the cause for the
appellees; Kelly A. Johnson, Acting Assistant Attorney Gen-
eral, William W. Mercer, United States Attorney, Kris A.
McLean, James C. Kilbourne, and Todd S. Kim, United States
Department of Justice, Washington, D.C., and Gary Moore,
United States Department of the Interior, Washington, D.C.,
were on the brief for the federal appellees. Alan J. Pemberton,
Vijay Shanker, and Emily S. Williams, Washington, D.C.,
were on the brief for appellee National Parks Conservation
Association.
MCFARLAND v. NORTON 13969
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to decide whether a landowner can prove that
he has an easement over a federally-owned road to his prop-
erty within Glacier National Park in Montana and whether the
National Park Service arbitrarily and capriciously denied his
request for a special use permit to use the road during the win-
ter time.
I
In 1916, Charles F.W. Schoenberger received title under
the Homestead Act to an 89-acre parcel in Montana. The par-
cel was within the boundaries of the Glacier National Park
and was used as a year-round subsistence homestead. In 1984,
John James McFarland purchased a 2.75-acre portion of
Schoenberger’s land. McFarland’s portion, and, indeed, the
entirety of the original Schoenberger homestead, is accessible
via a road, in existence since 1901, known within Glacier
National Park as the North Fork Road, the Inner North Fork
Road, or Glacier Route 7. The National Park Service owns
and maintains Glacier Route 7, a portion of which, beginning
at the Polebridge Ranger Station and running north 3 miles,
provides the only vehicular access to the original Schoenber-
ger homestead, including McFarland’s portion of it. Another
possible means of access is across the North Fork of the Flat-
head River, which borders one side of McFarland’s property
and is the Park boundary. A county road runs along the other
bank of the North Fork, outside the park boundaries.
McFarland’s grandparents and others lived year-round on
Schoenberger homestead parcels into the 1960s. The Park
Service snow-plowed Glacier Route 7 past the Polebridge
Ranger Station until the 1950s.1 For a time thereafter, year-
1
The Polebridge Ranger Station is in operation year round and the road
up to that point is plowed.
13970 MCFARLAND v. NORTON
round residents on the Schoenberger homestead cooperated to
plow the road themselves.
In 1975, the Park Service banned snowmobiling within
Glacier National Park, including along Glacier Route 7. For
some time the Park Service has closed Glacier Route 7 to
winter public vehicular access, having published such policy
in official documents since 1987 and announced it to local
media since 1988. At some point in the 1970s, the Park Ser-
vice began to put up wooden barriers at the Polebridge Ranger
Station, though land owners were allowed to move them aside
for access. In 1976, the Park Service replaced the wooden bar-
riers with a locked cable strung across the road but would
unlock the cable at the request of property owners so that they
could access their property in the winter. Later a double lock
system was installed, in which landowners had access to the
road when it was passable after it was closed to the public.
In the fall of 1999, McFarland informed the Park Service
that he and his wife and three daughters intended to live at
their home on the Schoenberger homestead year-round. On
December 8, 1999, the Park Service informed McFarland that
“a policy decision has been made that no one will drive park
roads once they are closed to the public.” The Park Service
went on to say that “[o]nce we close the gate at Polebridge for
the winter, it will remain closed until the road is safely pass-
able to the public again.” The Park Service concurrently
changed the lock system, denying access.
On January 6, 2000, McFarland filed a special use permit
application with the Park Service for motorized access to his
home on Glacier Route 7. In that application, McFarland
explicitly claimed that he owned an easement and requested
permission to “unlock the gate [at the Polebridge Ranger Sta-
tion] and gain access to [his] property at any time without fur-
ther assistance from Park Service personnel.” As a fallback
position, or in “the event the road conditions make it unsafe
or unpractical to drive,” McFarland sought the right to use a
MCFARLAND v. NORTON 13971
snowmobile between his home and the Polebridge Ranger
Station. McFarland sought the same rights of access for
guests.
On January 24, 2000, the Park Service denied McFarland’s
application. McFarland and his family then moved from their
Glacier National Park residence because, he testified, they
were left with no reasonable means of access. On March 14,
2000, McFarland appealed within the agency. On April 21,
2000, the Park Service denied his administrative appeal.
In due course, McFarland filed suit (1) to quiet title to an
easement over Glacier Route 7 under the Quiet Title Act and,
(2) to seek judicial review, pursuant to the Administrative
Procedure Act (“APA”), of the decision by the Park Service
denying him a special use permit.
McFarland and the government each moved for summary
judgment and the government also moved to dismiss, which
latter motion the district court granted. The district court
found that the landowners generally had access to their prop-
erty until 1999 and that McFarland had personally never been
denied access until that year. The district court nonetheless
held that McFarland’s action to quiet title ran afoul of the stat-
ute of limitations, since his action accrued in 1976 when prop-
erty holders had to start requesting the Park Service to open
the gate during the winter. The district court rejected the APA
claim on the ground that it was just an attempt to quiet title
by another means. The district court denied McFarland’s and
the Park Service’s summary judgment motions as moot.
McFarland timely appeals.
II
[1] McFarland filed suit on February 2, 2000, under the
Quiet Title Act, 28 U.S.C. § 2409a, which contains a 12-year
statute of limitations. 28 U.S.C. § 2409a(g). Therefore,
McFarland’s attempts to quiet title, either through the Quiet
13972 MCFARLAND v. NORTON
Title Act or through the APA, would be rightly dismissed if
he knew or should have known of the United States’ adverse
claim by February 2, 1988.
[2] If McFarland were asserting fee title to Glacier Route
7, “notice of a government claim that create[d] even a cloud
on that title may be sufficient to trigger the limitations peri-
od.” Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995)
(citing California v. Yuba Goldfields, 752 F.2d 393, 394-97
(9th Cir. 1985)). An easement, of course, is different. The
government’s claim to ownership and control of the servient
tenement can be entirely consistent with private ownership of
an easement. Id. Because McFarland claims title to an ease-
ment, his action accrued only when he or his predecessors-in-
interest “knew or should have known the government claimed
the exclusive right to deny their historic access” to Glacier
Route 7. Id.
[3] The government, in its capacity as the owner of the ser-
vient tenement, has the right to reasonable use of its land, and
its rights and the rights of easement owners are “mutually lim-
iting,” though of course “easements are burdensome by their
very nature, and the fact that a given use imposes a hardship
upon the servient owner does not, in itself, render that use
unreasonable or unnecessary.” Tooker v. Feinstein, 886 P.2d
1051, 1053 (Or. Ct. App. 1994); see also Restatement (Third)
of Property (Servitudes) § 4.9 (2000). It follows that mild
interference with the use of an easement pursuant to the gov-
ernment’s own property interests will not start the statute of
limitations running.
The situation is more complicated where, as here, the land-
owner could reasonably presume that the federal entity con-
cerned has the power to regulate. See, e.g., 16 U.S.C. § 3
(“The Secretary of the Interior shall make and publish such
rules and regulations as he may deem necessary or proper for
the use and management of the parks . . . .”); Lesoeur v.
United States, 21 F.3d 965, 968 (9th Cir. 1994) (acknowledg-
MCFARLAND v. NORTON 13973
ing that Congress has given the Secretary “a great deal of dis-
cretion in promulgating and enforcing regulations for use of
the national parks.”). This can make it difficult to distinguish
reasonable regulations that happen to restrict use of the ease-
ment from actions taken incident to the government’s claim
of exclusive ownership. To avoid forcing landowners and the
government into “premature, and often unnecessary, suits,”
Michel, 65 F.3d at 132, we should not lightly assume that reg-
ulatory or supervisory actions, as opposed to those that deny
the easement’s existence, will trigger the statute of limita-
tions. Were it not so, any regulation of a property interest
would challenge ownership of the interest itself.
[4] We are satisfied that the 1975 general ban on snowmo-
bile use within the boundaries of Glacier National Park2 did
not constitute notice to McFarland that the Park Service
claimed exclusive ownership over Glacier Route 7. It is true
that McFarland knew or should have known about it, since the
record shows that the ban was a topic of conversation among
landowners. Nevertheless, the snowmobile ban was a gener-
ally applicable regulation which did not affect plowing of
Glacier Route 7, the historic means of facilitating winter
access.
[5] Nor did the installation of barriers, cables with locks in
1976, and later gates with locks, give notice to McFarland that
the Park Service claimed exclusive ownership over the road.
Ordinarily the owner of the land over which an easement runs
has the right to erect gates across the easement if they do not
interfere unreasonably with the easement owner’s right of
passage. See, e.g., United States v. Johnson, 4 F. Supp. 77, 79
(W.D. Wash. 1933) (holding that “gates at termini” do not
preclude the “free, full, and quiet enjoyment” of an easement).
This is especially true where the gate ensures that only those
with a right to use an easement can access it. See id.; Lovitt
2
We assume, as seems likely, that McFarland knew or should have
known of the ban before February 2, 1988.
13974 MCFARLAND v. NORTON
v. Robideaux, 78 P.3d 389, 395-96 (Idaho 2003). Unless the
installation of gates is coupled with a denial of access, there
is no easement infringement.
No landowner was denied access through the gates and bar-
riers when the road was passable until well after February 2,
1988. Nor, prior to that date, was a landowner refused permis-
sion to plow the road or to drive it down.3 McFarland states
that he always had access whenever he wanted it up until
1999, with the exception of an incident in which another land-
owner, Paul Snyder, found that the second lock was locked
while the road was still passable, after which a key to it was
also provided. Scott Emmerich, an official for the Park Ser-
vice, testified that landowners were allowed access while the
road was passable. Another Park Service official has also
asserted that, for at least a period in the 1990s, the Park Ser-
vice allowed private landowners to drive the road after it was
closed to the public “until the snow became too deep.”
[6] There are no instances in the record until 1999 of Park
Service refusal to unlock the gates when landowners asked.
Emmerich insists that he would not have unlocked the gate
after the road became impassable but admits that no one ever
asked. Even if some landowners were denied access, it does
not follow that McFarland knew or should have known.
McFarland’s own testimony is that he was given access every
time he asked and that the latest he sought access was
“through New Year’s” and the earliest was “in April.” McFar-
land testified that he understood his neighbors to have been
given the same degree of access. And even assuming that
McFarland knew or should have known about these instances,
they would not necessarily have been sufficient to begin the
statute of limitations. Barring access to impassable roads—as
opposed to denying permission to make the roads passable
3
A procedure described in the record, in which a truck or other vehicle
is repeatedly driven up and down the road after a snow, packing the snow
down and keeping the road somewhat passable.
MCFARLAND v. NORTON 13975
through plowing or driving down—is well within the govern-
ment’s concern for safety in the use of the easement and need
not be construed as a denial of the easement.
[7] Because McFarland was not denied year-round access
when he desired it until 1999, he did not know nor should he
have known that the government disputed his claim to an
easement. The statute of limitations did not run and McFar-
land is entitled to pursue his Quiet Title Act claims in district
court on remand.4
III
[8] In his Quiet Title Act action, McFarland offers three
different theories under which he owns an easement of access.
First, he argues that his predecessors-in-interest were
expressly granted an easement, because land patents issued
under the Homestead Act conveyed the land “with the appur-
tenances thereof,” citing Hunter v. United States, 388 F.2d
148, 154 (9th Cir. 1967) (explaining that “an appurtenance . . .
is that which is essential to the use of the right granted”). Sec-
ond, he argues that his predecessors-in-interest were granted
an easement by implication, since easements of access would
generally be necessary to fulfill the Homestead Act’s pur-
poses of encouraging the settlement of the vast frontier.
Finally, he argues that he has an easement under the doctrine
of easement by necessity. The district court did not rule on the
merits of these claims. Since the factual basis of these claims
is incomplete in the record, summary judgment at this stage
would be inappropriate. See Jones-Hamilton Co. v. Beazer
Materials & Services, Inc., 973 F.2d 688, 694 n.2 (9th Cir.
1992) (“[W]e may review a denial of summary judgment . . .
where the record has been sufficiently developed to support
4
Nor should the district court have dismissed McFarland’s claims under
the APA on the grounds that they were an end run around the statute of
limitations. McFarland is also entitled to pursue his APA claims on
remand.
13976 MCFARLAND v. NORTON
meaningful review of the denied motion.” (emphasis added)).
McFarland is entitled to pursue all these claims on remand.
IV
McFarland brought his action to quiet title well within the
12-year statute of limitations. The dismissal of his claim is
reversed and this case is remanded to the district court for fur-
ther proceedings consistent with this opinion.
REVERSED AND REMANDED.