Doi

FILED

NOT FOR PUBLICATION JUL 27 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

HAZEL GREEN RANCH, LLC, a No. 10-16519 Delaware limited liability company, D.C. No. 1:07-cv-00414-OWW- Plaintiff - Appellant, SMS

and

MEMORANDUM *

MARIPOSA COUNTY,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF

THE INTERIOR; KENNETH LEE

SALAZAR, in his capacity as Secretary of the United States Department of the Interior; NATIONAL PARK SERVICE; DANIEL N. WENK, in his capacity as Acting Director, National Park Service; DAVID V. UBERUAGA, in his capacity as Acting Superintendent, Yosemite National Park; UNITED STATES

DEPARTMENT OF AGRICULTURE;

TOM VILSACK, in his capacity as Secretary of the United States Department of Agriculture; NATIONAL FOREST SERVICE; GAIL KIMBALL, in her

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. capacity as Chief, United States Department of Agriculture, National Forest Service; UNITED STATES OF

AMERICA,

Defendants - Appellees,

SIERRA CLUB;…

MEMORANDUM *

Hazel Green Ranch, LLC appeals the district court’s dismissal of its claims against the Defendants-Appellees, the United States Department of Interior, et al. (“United States”), pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, seeking to assert its easement rights over alleged county roads leading to the Yosemite Valley floor. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the dismissal de novo, see Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005), and affirm.

Hazel Green Ranch first asserts that it has an easement over the alleged county roads by virtue of its status as an abutting landowner. California recognizes an abutting landowner’s easement over a public road as a property right, not merely as a right of access akin to the right of the public. See, e.g., Breidert v. Southern Pac. Co., 61 Cal.2d 659 , 39 Cal.Rptr. 903 , 394 P.2d 719, 721 (1964); People v. Ricciardi, 23 Cal.2d 390 , 144 P.2d 799, 803 (1944); Zack’s, Inc. v. City of Sausalito, 165 Cal. App.4th 1163 , 81 Cal.Rptr.3d 797, 818 (2008). Such an easement is a sufficient interest in property to assert a claim against the United States under the Quiet Title Act. We nevertheless…

concurring in the Judgment.

I concur with the decision to affirm the district court, but depart from the majority’s reasoning for dismissing Hazel *883 Green s claim based on its easement right under California law as a landowner abutting a county road. I believe Hazel Green lacks a cognizable property interest to bring a claim under the Quiet Title Act. Hazel Green’s interest in accessing the roads is ultimately not fundamentally different from public access rights which have been deemed insufficient to assert a claim under the Quiet Title Act. See, e.g., Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910 , 915 (8th Cir.2001); Friends of Panamint Valley v. Kempthorne, 499 F.Supp.2d 1165, 1178 (E.D.Cal. 2007); Alleman v. United States, 372 F.Supp.2d 1212, 1225-26 (D.Or.2005); Tudor v. Members of Ark. State Parks, Recreation and Travel Comm’n, 83 F.R.D. 165, 170 (E.D.Ark.1979). The fact that Hazel Green claims an interest as an abutting landowner does not alter the nature of its claim. See, e.g., Staley v. United States, 168 F.Supp.2d 1209 (D.Colo.2001); see also Kinscherff v. United States, 586 F.2d 159, 160 (10th Cir.1978) (noting that plaintiff asserts real property…