January 14, 2000.
Evan Beavers, Esquire, John H. Martin, Esquire, EVAN BEAVERS ASSOSIATES PC, Minden, NV., Attorney for Plaintiff.
Elizabeth Goff Conzalez, GONZALEZ SALZANO, CHTD., Las Vegas, NV., Attorney for Defendant.
MINUTE ORDER IN CHAMBERS
Plaintiff Washoe Tribe of Nevada and California ("Washoe Tribe") brings this action for trespass, ejectment, accounting, damages, and declaratory and injunctive relief against Defendants Southwest Gas Corporation and Paiute Pipeline Company. Plaintiff alleges that one of the two pipelines that runs across property held in trust for the Washoe Tribe by the United States does not lie within the right of way granted for that purpose.
On June 1, 1999 (#8), Defendants moved to dismiss those portions of the complaint wherein Plaintiff seeks damages for any cause of action which accrued prior to December 23, 1992. Plaintiff has opposed the motion (#9), and Defendants have replied (#10). For the reasons given below, the court will deny the motion.
Under federal law, the United States must bring suit for certain claims, including tort claims brought on behalf of Native American tribes, within six years and ninety days from the date the claim matures. Section 2415 of Title 28 of the United States Code provides, in relevant part:
[A]n action to recover damages resulting from a trespass on lands of the United States; an action to recover damages resulting from fire to such lands; an action to recover for diversion of money pair under a grant program; and an action for conversion of property of the United States may be brought within six years after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band or group of American Indians, including actions relating to allotted trust or restricted Indian lands, may be brought within six years and ninety days after the right of action accrues. . . .28 U.S.C. § 2415 (b). Defendants argue that 28 U.S.C. § 2415 (b) applies to the present case and, therefore, that the six-year, ninety-day statute of limitations applies to bar recovery of damages for any harm which occurred more than six years and ninety days before the date of filing of the complaint.
On its face, however, the relevant part of § 2415 applies only to actions brought by the United States on behalf of Indian tribes. The statute says nothing about claims brought by Indian tribes themselves. According to the plain language of the statute, § 2415 does not apply to the present case.
Defendants claim that in the Indian Claims Limitation Act of 1982, Congress, for the first time, made the six-year and ninety-day statute of limitations found in § 2415 applicable to all claims brought by Indian tribes and individual Indians as well as claims brought on their behalf by the United States. However, the language of the act does not bear out that claim.
Under the ICLA, the Secretary of the Interior was to compile and publish a list of all Indian claims which had accrued on or before July 18, 1966. Indian tribes and individual Indians then had one hundred and eighty days to submit additional claims to the Secretary for consideration. The Secretary then had to publish a second list of claims submitted. Those pre-1966 claims not found on either list were barred unless brought within sixty days after the date of publication of the second list:
(a) Any right of action shall be barred sixty days after the date of the publication of the list required by section 4(c) of this Act [the second listi for those pre-1966 claims which, but for the provisions of this Act would have been barred by section 2415 of title 28, United States Code, unless such claims are included on either of the lists required by section 3 [the first list] or 4(c) of this Act.
Indian Claims Limitation Act of 1982, Pub.L. No. 97-394, §§ 2-6 (note following 20 U.S.C. § 2415), § 5(a). In addition, any claims on either list which the Secretary decided not to pursue had to be brought within one year of the publication of the list of such rejected claims.
(b) If the Secretary decides to reject for litigation any of the claims or groups or categories of claims contained on either of the lists required by . . . this Act, he shall send a report to the appropriate tribe, band or group of Indians, whose rights or the rights of whose members could be affected by such rejection, advising them of his decision . . . themselves, and that it assumed that the Indians' right to sue was not otherwise subject to any statute of limitations.Id. at 242. The foregoing language must be seen to override any determination to the contrary by the Ninth Circuit in Capitan Grande Band of Mission Indians v. Helix Irrigation District, 514 F.2d 465 (9th Cir. 1975) (where the appellate court applied the statute of limitations found in § 2415 to the benefit of the Indian tribe in the case). Capitan Grande Band can no longer be deemed controlling precedent on the question of the application of § 2415 to claims brought by Indians or Indian tribes.
The Supreme Court has stated very clearly that no federal statute of limitations exists with respect to Indian property-rights claims: "There is no federal statute of limitations governing federal common-law actions by Indians to enforce property rights." Oneida II, 470 U.S. at 240. Therefore, we must reject the claim by Defendants that the six-year, ninety-day statue of limitations found in § 2415 applies in the present case. No federal statute of limitations applies here.
Generally, where no federal statute of limitations controls, the corresponding state limitations period would apply, provided that application of the state statute of limitations does not conflict with underlying federal policy. Id. In the context of Indian land claims, application of the analogous state limitations period does conflict with federal policy as set out by Congress. See id. at 241-44 ("[T]he statutory framework adopted in 1982 presumes the existence of an Indian right of action not otherwise subject to any statute of limitations. It would be a violation of Congress' will were we to hold that a state statute of limitations should be borrowed in these circumstances."). Therefore, the court here declines to adopt the relevant state statute of limitations for torts to land.
IT IS, THEREFORE, HEREBY ORDERED that the Motion to Dismiss Portions of Plaintiff's Complaint (#8) is DENIED .