Capitan Grande Band of Mission Indians v. Helix Irrigation District

514 F.2d 465 CAPITAN GRANDE BAND OF MISSION INDIANS, Appellee, v. HELIX IRRIGATION DISTRICT, Appellant. No. 73-2956. United States Court of Appeals, Ninth Circuit. March 14, 1975. Paul D. Engstrand (argued), Paul D. Marks, Jennings, Engstrand & Henrikson, San Diego, Cal., for appellant. Bruce R. Greene (argued), Oakland, Cal., for appellee. Glen R. Gooddell (argued), Dept. of Justice, Washington, D. C., for amicus curiae. OPINION Before BARNES and SNEED, Circuit Judges, and MILLER, * Judge, U.S. Court of Customs and Patent Appeals. SNEED, Circuit Judge: 1 This is an appeal by the Helix Irrigation District from an interlocutory order denying its motion to dismiss the complaint of appellee Capitan Grande Band of Mission Indians on the ground that the action is barred by the California statutes of limitations. Upon denying the motion the district court authorized an appeal (on that issue only) pursuant to 28 U.S.C. § 1292 (b) and this court certified the appeal. 2 In the district court suit, filed on July 17, 1972 pursuant to 28 U.S.C. §§ 1331 and 1362, the Band sought declaratory relief and money damages in trespass for alleged wrongs committed by Helix and its…

This is an appeal by the Helix Irrigation District from an interlocutory order denying its motion to dismiss the complaint of appellee Capitan Grande Band of Mission Indians on the ground that the action is barred by the California statutes of limitations. Upon denying the motion the district court authorized an appeal (on that issue only) pursuant to 28 U.S.C. § 1292 (b) and this court certified the appeal.

In the district court suit, filed on July 17, 1972 pursuant to 28 U.S.C. §§ 1331 and 1362, the Band sought declaratory *467 relief and money damages in trespass for alleged wrongs committed by Helix and its predecessors between 1885 and 1935 in the process of construction and maintenance of a waterworks facility on the Capitan Grande Indian Reservation. The land involved was held in trust by the United States until 1934 when it was conveyed by fee patent to the City of San Diego.

Appellant contends that the application of the California state statutes of limitations is compelled by the enactment by Congress in 1953 of Public Law 280, the civil jurisdiction provisions of which were codified as 28 U.S.C. § 1360 . 1 Appellee, on the other hand, contends that not only…

(concurring):

I agree with' the result reached in the majority opinion on the basis of the persuasive analysis of P.L. 280 ( 28 U.S.C. § 1360 ) and determination that it does not apply to controversies such as the instant case, involving, as it does, “trust or restricted property.”

Such being the case, the lower court’s decision must be affirmed, either because appellee’s action is not barred under 28 U.S.C. § 2415 or, as alternatively contended by appellee, because there is no applicable statute of limitations. Accordingly, it is unnecessary to decide whether 28 U.S.C. § 2415 is applicable.

However, the majority unnecessarily takes up the question of the applicability of 28 U.S.C. § 2415 and then, erroneously in my judgment, decides that it is applicable. Having been persuaded by legislative history in reaching its decision with respect to 28 U.S.C. § 1360 , the majority declines to abide by the legislative history, not to mention the plain meaning, of 28 U.S.C. § 2415 and, instead, invokes the federal instrumentality doctrine used by this court in deciding two cases under the federal “anti-injunction” statute ( 28 U.S.C. § 1341 ). Agua Caliente Band of Mission Indians v.…