Michel

dissenting:

I do not believe it necessary to remand this matter in light of the admissions in the amended complaint.

First, the district court previously considered the issue of whether the government had abandoned its claim within the meaning of Shultz v. Dep’t of Army, 886 F.2d 1157 (9th Cir.1989), aff'd, 10 F.3d 649 (9th Cir.1993). In granting the government’s motion to dismiss, the trial court observed that “plaintiffs claim that throughout the 1960’s, 1970’s and 1980’s, defendants agreed to grant rights of access to plaintiffs. The mere fact that the right of access was being negotiated should have reasonably put the plaintiffs on notice of the United States’ claim in the property.” ER 89-90. The court reiterated its holding in an order denying the Michels’ motion for reconsideration. In that order, the court observed that, “[g]ranting permission to access is an expression of the claim of a right to control access not an abandonment of the claim.” ER 92 (emphasis in original).

Second, the pleadings and attached exhibits support a finding that since as early as 1969, the Michels were on notice of the government’s exclusive right to control access and that this notice…

j

Dwayne, Donna, and Viola Michel own property in the state of Washington. Their land shares common borders with, and in some locations is completely circumscribed by, a national wildlife refuge owned by the United States. Historically, the Michels have used roads and trails across the refuge to conduct their cattle and farming business. Since 1960, the Michels and the government have engaged in a series of disputes and negotiations over the scope of the Michels’ right of access to roads and trails across refuge land. Although the parties appeared to resolve the problem on several occasions, the dispute was always renewed. In 1992, the Michels filed suit against the United States under the Quiet Title Act seeking to quiet title to access routes across the refuge. The district court dismissed on the ground that the Michels’ claim was barred by the Act’s twelve-year statute of limitations. The Michels appeal.

II.

The Quiet Title Act waives sovereign immunity to suits against the United States “to adjudicate title disputes involving real property in which the United States claims an interest.” Block v. North Dakota, 461 U.S. 273, 275-76 , 103 S.Ct. 1811, 1814 , 75 L.Ed.2d 840…