WIND RIVER MINING CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America; Manuel Lujan, Jr.; Delos Jacobson, Director of the Bureau of Land Management, Defendants-Appellees.
No. 90-55731
United States Court of Appeals, Ninth Circuit
Submitted June 4, 1991. Decided Oct. 8, 1991.
946 F.2d 710
738 F.Supp. at 370 n. 15 (emphasis added).
Because I am convinced that McMillan does not stand for the simplistic proposition that every statute labeling gun use a sentencing factor passes constitutional muster, I had hoped that our court would have responded to the district court‘s plea, explained that McMillan was not controlling authority and invalidated the statute the district court found so “egregious.”
Kenneth Holland, Denton & Denton, Las Vegas, Nev., for plaintiff-appellant.
Blake A. Watson, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.
Before D.W. NELSON, O‘SCANNLAIN and TROTT, Circuit Judges.
O‘SCANNLAIN, Circuit Judge:
We must determine the applicable statute of limitations, if any, for challenges to federal land classification decisions.
On March 30, 1979, the Bureau of Land Management (“BLM“) published in the Federal Register its decision establishing 138 Wilderness Study Areas (“WSAs“) on federal land located in California. These classifications were mandated by the Federal Land Policy and Management Act of 1976 (“FLPMA“). WSAs are “roadless areas of five thousand acres or more and roadless islands of the public lands” having certain wilderness characteristics.
Wind River Mining Corporation staked certain mining claims within one of those regions, “WSA 243,” over a several-month period stretching from 1982 to September 6, 1983. After Wind River failed to file a 1983 notice of intention to hold the claims, as required by
Because Wind River‘s claims are located within a WSA, Wind River is barred from pursuing ore-extraction activities on the land. See
On September 22, 1989, Wind River filed a complaint for review in federal district court from the IBLA‘s 1987 refusal to declare invalid the BLM‘s creation of WSA 243. Wind River sought a decree declaring WSA 243 null and void ab initio and ordering the agency to restore the property to its former multiple-purpose use. Wind River urged that the agency‘s 1979 administrative decision was ultra vires and an unconstitutional taking.
On March 21, 1990, the district court filed an order and opinion granting the government‘s motion to dismiss. The court concluded that Wind River‘s action was barred by its failure to exhaust administrative remedies and by the six-year statute of limitations on civil actions against the United States set forth in
On May 10, 1990, the court issued an order denying Wind River‘s motion to vacate the prior order and to reconsider its decision. The court did correct the factual error in the new order, however. In so doing, the court apparently abandoned the exhaustion rationale for denying relief, instead reiterating its ruling on the statute of limitations.1
Wind River appeals both orders. Whether Wind River‘s challenge is barred by a statute of limitations is a question of law, subject to plenary review. See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988).
II
Although FLPMA authorizеs judicial review of land-management decisions, see
Section 2401(a) declares that a six-year statute of limitations applies to “every сivil action commenced against the United States,” with an exception not relevant here. While an administrative proceeding is not a “civil action” within the meaning of section 2401(a), see, e.g., Anderson v. Atomic Energy Comm‘n, 313 F.2d 313, 316 (7th Cir.1963); Southern Cal. First Nat‘l Bank v. United States, 298 F.Supp. 1249, 1252 (S.D.Cal.1969), a complaint filed in federal district court seeking review of an administrative decision is another matter, see N.V. Philips’ Gloeilampenfabrieken v. Atomic Energy Comm‘n, 316 F.2d 401, 405-06 (D.C.Cir.1963) (distinguishing, for the purposes of section 2401(a), claims filed with the Patent Compensation Board from actions filed in federal сourt which challenge the Board‘s decision).
We have previously held that an action commenced by filing a complaint for review of agency action is a “civil action” within the meaning of section 2401(a). In Penfold, we applied section 2401(a) to bar the Sierra Club‘s APA challenge to BLM regulations whose adoption purportedly did not comply with the procedural requirements of the National Environmental Policy Act. We stated:
Previously, we have suggested, without holding, that § 2401(a) applies to the APA. Lee v. United States, 809 F.2d 1406, 1409 n. 2 (9th Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 772, 98 L.Ed.2d 859 (1988). We believe this suggestion to be correct.... By its terms, section 2401(a) applies to “every civil action commenced against the United States.” As a general statute of limitation, it should apply to actions brought under the APA which challenge a regulation on the basis of procedural irregularity.
Nonetheless, Wind River cites two earlier decisions of this court that arguably are inconsistent with the Penfold-Shiny Rock rule. In Coleman v. United States, 363 F.2d 190 (9th Cir.1966), a government action for ejectment, this court was faced with a counterclaim seeking judicial review of an Interior Department decision invalidating mining claims. In rejecting the government‘s argument that the counterclaim should be treated as аn impermissible collateral attack on the agency decision, the court observed: “There is no statutory time limit for an aggrieved person to seek judicial review of agency action in the Department of the Interior under
Somewhat more troubling is United States v. Webb, 655 F.2d 977 (9th Cir.1981), in which a mining claimant attempted to raise a challenge to a nine-year-old administrative decision against the claimant as a defense in a government ejectment action. In a short opinion, the court stated:
There is no statute of limitations for judicial review of an administrative decision by the BLA. Thus, a BLA decision is ordinarily reviewable in a subsequent action for ejectment regardless of how much time has elapsed. See Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), rev‘d on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). The broad rule that judicial review of BLA decisions is available without regard to passage of time is subject, however, to the rules of pleading which the Federal Rules of Civil Procedure impose upon all parties, and to the general principles of estoppel.
Id. at 979. While this case is more helpful to Wind River than Coleman, because it involves a claim which seemingly would be barred by section 2401(a) and because it is not self-limiting by specific reference to
Penfold and Shiny Rock mandate our conclusion that section 2401(a) applies to actions brought under the APA. As we observed in Penfold, a suit for review of an agency decision, commenced by filing a civil complaint in federal court, fits the explicit terms of section 2401(a).
III
Concluding that the general statute of limitations for actions against the government aрplies to APA actions does not end our inquiry. The statute requires that the judicial complaint be filed “within
Several possible events could be used for measuring the date on which Wind River‘s right of action first accrued. If the announcement of the BLM‘s decision in the Federal Register in 1979 is chosen, then Wind River‘s 1989 filing of the complaint was too late. Similarly, if the dates on which Wind Rivеr located its claims (ranging from 1982 to September 6, 1983) are used, then Wind River‘s September 22, 1989 filing was still untimely. If, however, Wind River‘s cause of action did not arise until Wind River relocated its claims in 1985, or when the IBLA affirmed the BLM‘s denial of Wind River‘s challenges to the designation of WSA 243 in 1987, then the statutory limit had not expired by the time Wind River filed this action.
In Shiny Rock, a public land order promulgated in 1964 (and amended a year later) withdrew certain lands from appropriation under mining laws. In 1979, Shiny Rock Mining Corporation located a mining claim within the designated region and shortly thereafter applied to the BLM for a mineral patent. In 1983, the BLM denied the application on strength of the 1964 and 1965 orders, and Shiny Rock filed a complaint for declaratory judgment in federal court.
Shiny Rock contended that its right of action, for purposes of section 2401(a), did not accrue until the 1983 denial of its application. We disagreed, holding that the statutory period commenced with publication of the land withdrawal orders in 1964 and 1965. We noted that “[p]ublication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.” 906 F.2d at 1364 (quotation omitted).2 We were concerned that a contrary view would essentially nullify the statute of limitations by permitting renewed challenges with every denial of an аpplication, long after six years had passed. Id. at 1365.
Shiny Rock dealt with a procedural challenge to the agency‘s action. See id. at 1364; see also Shiny Rock Mining Corp. v. United States, 825 F.2d 216, 218-19 (9th Cir.1987) (related proceeding). Similarly, Penfold, the authority for Shiny Rock‘s holding, explicitly limited its conclusion to challenges of a regulation “on the basis of procedural irregularity.” Penfold, 857 F.2d at 1315; see also Shiny Rock, 906 F.2d at 1364 (quoting this portion of Penfold). Here, however, Wind River asserts that the BLM‘s designation of WSA 243 was ultra vires as exceeding the agency‘s statutory authority. We think that different considerations guide the application of the statute of limitаtions to such challenges, although we remain sensitive to the government‘s interest in the finality of its policy decisions.
Other circuits have concluded that an agency regulation or other action of continuing application may be challenged after a limitations period has expired if the ground for challenge is that the issuing agency acted in excess of its statutory authority. See Public Citizen v. Nuclear Regulatory Comm‘n, 901 F.2d 147, 152 (D.C.Cir.) (substantive challenge may come after limitations period by filing petition to rescind regulations and appealing the denial of the petition), cert. denied, 498 U.S. 992, 111 S.Ct. 536, 112 L.Ed.2d 546 (1990); Commonwealth Edison Co. v. United States Nuclear Regulatory Comm‘n, 830 F.2d 610, 613-16 (7th Cir.1987) (limitations period cutting off pre-enforcement review of regulation does not prevent court from reviewing substance of regulation when ap-
In Oppenheim v. Coleman, 571 F.2d 660 (D.C.Cir.1978), the court permitted an indirect challenge to a 1946 Civil Service Commission decision brought thirty years later. The commission‘s 1946 decision had adversely affected Oppenheim‘s retirement benefits. Oppenheim did not challenge the decision at the time, but in 1974, when he retired, he filed a claim for more benefits and then a suit to overturn thе commission‘s denial of his claim. The District of Columbia Circuit carefully noted that section 2401(a) barred any direct challenge to the commission‘s 1946 action. See id. at 662. Nonetheless, the court ruled that Oppenheim was not barred from bringing an APA challenge to the commission‘s current denial of benefits, because Oppenheim‘s action “seeks to set aside recent arbitrary agency action” (to the extent the 1946 decision was substantively wrong and reliance upon it would be arbitrary) rather than to recover damages from the government for its 1946 decision. See id. at 663. The court had in effect permitted a substantive challenge to the earlier decision because it was brought in the context of an adverse application of that decision.
The District of Columbia Circuit‘s approach, in our view, strikes the correct balance between the government‘s intеrest in finality and a challenger‘s interest in contesting an agency‘s alleged overreaching. If a person wishes to challenge a mere procedural violation in the adoption of a regulation or other agency action, the challenge must be brought within six years of the decision. Similarly, if the person wishes to bring a policy-based facial challenge to the government‘s decision, that too must be brought within six years of the decision. This result, even if not dictated by Penfold and Shiny Rock, would make the most sense. The grounds for such challenges will usually be apparent to any interested citizen within a six-year period following promulgation of the decision; one does not need to have a preexisting mining claim in an affected territory in order to assess the wisdom of a governmental policy decision or to discover procedural errors in the adoption of a рolicy. The government‘s interest in finality outweighs a late-comer‘s desire to protest the agency‘s action as a matter of policy or procedure.
If, however, a challenger contests the substance of an agency decision as exceeding constitutional or statutory authority, the challenger may do so later than six years following the decision by filing a complaint for review of the adverse appliсation of the decision to the particular challenger. Such challenges, by their nature, will often require a more “interested” person than generally will be found in the public at large. For example, assuming that Wind River‘s challenge to the designation of WSA 243 is merited, no one was likely to have discovered that the BLM‘s 1979 designation of this particular WSA was beyond the agency‘s authority until someone actually took an interest in that particular piece of property, which only happened when Wind River staked its mining claims. The government should not be permitted to avoid all challenges to its actions, even if ultra vires, simply because the agency took the action long before anyone discovered the true state of affairs.3
We hold that a substantivе challenge to an agency decision alleging lack of agency authority may be brought within six years of the agency‘s application of that decision to the specific challenger. In Wind River‘s case, its September 1989 filing of a complaint for review was easily within the six-year period. The right to bring a civil suit challenging an agency action accrues “upon the completion of the administrative proceedings.” Crown Coat Front Co. v. United States, 386 U.S. 503, 511, 87 S.Ct. 1177, 1182, 18 L.Ed.2d 256 (1967); see also N.V. Philips’ Gloeilampenfabrieken, 316 F.2d at 406 (“under § 2401(а), when, as here, the claimant must first present his claim to an executive tribunal, the right of action does not accrue until the executive tribunal has acted on the claim“). The BLM finally rejected Wind River‘s attempts to have WSA 243 declared invalid in 1987. Although Wind River has instituted another line of attack (attempting to have the BLM approve its plan of operation for mining activities), for our purposes the agency‘s final decision was the IBLA‘s May 7, 1987 rejection of Wind River‘s appeal. Wind River‘s complaint for review was filed less than twenty-nine months later, and therefore was timely.
IV
The dual orders of the district court dismissing Wind River‘s complaint as barred by the applicable statute of limitations are reversed. The case is remanded to the district court for further proceedings.
REVERSED and REMANDED.
D.W. NELSON, Circuit Judge, dissenting:
I agree with the majority that the six-year federal statute of limitations applies to suits challenging agenсy action. I further agree that the Penfold-Shiny Rock rule should not apply to claims for which an agency was wholly without statutory authority to promulgate a regulation. Because I do not think Wind River‘s claim can be so characterized, I dissent.
The Bureau of Land Management (BLM) created the wilderness areas in question pursuant to the Federal Land Policy and Management Act of 1976,
Wind River contests this determination, claiming that it is inconsistent with the BLM Manual. Even if this claim is acceрted at face value, it does not demonstrate an absence of statutory authority vested in BLM. Instead, it merely shows that BLM‘s exercise of its authority was ill-considered or, at worst, arbitrary and capricious.1 The authority to determine which areas are roadless clearly belongs to BLM, and Wind River merely challenges how that authority has been exercised. See Students of the California School for the Blind v. Honig, 736 F.2d 538, 546 (9th Cir.1984) (agency charged with defining statutory language does not exceеd statutory authority unless definition is not even reasonably related to statute), vacated as
The fact that Wind River chose to describe BLM‘s actions as ”ultra vires” in its complaint does not change this analysis. While it is true that courts must take plaintiff‘s allegations as true in resolving motions to dismiss, that rule applies only to factual allegations. See Usher v. Los Angeles, 828 F.2d 556, 561 (9th Cir.1987) (“the court must presume all factual allegations of the complaint to be true“) (emphasis added). By contrast, the question at issue here—what act triggers commencement of the statute of limitations—is a question of law. Englerius v. Veteran‘s Administration, 837 F.2d 895, 896-97 (9th Cir.1988). So too is the definition of an ultra vires act.
I do not think we can allow a plaintiff‘s unsupported legal characterization to preclude disposal of cases on a motion to dismiss. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) (“We do not, however, necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations“). Just as an allegation in a plaintiff‘s complaint that she was denied “due process of law” is not conclusive, so Wind River‘s allegation that BLM‘s actions were ”ultra vires” is not conclusive.
In Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 591 (9th Cir.), cert. denied, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990), this Court noted that a case should be dismissed on statute of limitations grounds only if the determination could be made as a matter of law without resolving genuine factual issues. That is the casе here. Whatever they choose to call it, Wind River simply does not state an ultra vires claim. Dismissal is therefore appropriate. I would affirm.