Beau Bradley v. Edward Schafer

FILED
NOT FOR PUBLICATION FEB 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BEAU R. BRADLEY, DBA Bradley No. 10-36141
Livestock LC; WOOD’S THREE CREEK
RANCHES, LTD.; CHARLES G. WOOD, D.C. No. 2:08-cv-00085-RFC-
(JCL)
Plaintiffs - Appellants,
v. MEMORANDUM *
TOM VILSACK,** in his official capacity
as Secretary of the United States
Department of Agriculture; UNITED
STATES DEPARTMENT OF
AGRICULTURE; TOM TIDWELL, in his
official capacity as Chief of the United
States Forest Service; UNITED STATES
FOREST SERVICE; DAVE MYERS, in
his official capacity as Forest Supervisor
of the Beaverhead-Deerlodge National
Forest,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Tom Vilsack is substituted for his predecessor, Edward T. Shafer, as
Secretary of the Department of Agriculture; Tom Tidwell is substituted for his
predecessor, Abigail R. Kimbell, as Chief of the U.S. Forest Service; Dave Myers
is substituted for his predecessor, Bruce Ramsey, as Forest Supervisor of the
Beaverhead-Deerlodge National Forest. See Fed. R. App. P. 43(c)(2).
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted January 10, 2012
Seattle, Washington
Before: GRABER, FISHER and RAWLINSON, Circuit Judges.
Plaintiffs-Appellants Beau Bradley, Wood’s Three Creeks Ranches, Ltd.,
and Charles G. Wood (collectively “Bradley”), filed suit against the United States
to quiet title to an alleged easement to maintain and operate the Noble Lake
Reservoir within the Beaverhead-Deerlodge National Forest. The district court
granted summary judgment to the government on the ground that Bradley’s claim
was barred by the 12-year statute of limitations in the Quiet Title Act. See 28
U.S.C. § 2409a(g); Skranak v. Castenada, 425 F.3d 1213, 1216 (9th Cir. 2005).
We agree.
At a minimum, the 1973 and 1985 special use permits issued by the United
States Forest Service to Bradley’s predecessors in interest each gave notice of the
government’s adverse property interest in the very thing Bradley claims to own –
an easement to maintain and use the Noble Lake Reservoir. The government
reserved the right to terminate the permit, and thus forbid access, in the Forest
Service’s sole discretion; charged “rent”; and included an abandonment and
2
reversion provision, which required Bradley to remove the reservoir upon
abandonment, termination or revocation of the permit. See Skranak, 425 F.3d at
1216-17 (government actions that deny easement’s existence will trigger the Quiet
Title Act’s statute of limitations); McFarland v. Norton, 425 F.3d 724, 727 (9th
Cir. 2005) (claim accrued when plaintiff knew or should have known that
government claimed the right to deny plaintiff’s “historic access”).
AFFIRMED.
3