Brandt-Erichsen v. United States Department of the Interior, Bureau of Land Management

POOLE, Circuit Judge: Appellant Viggo Thor Brandt-Erichsen appeals the district court’s summary judgment in favor of the appellees, the United States Department of the Interior’s Bureau of Land Management and its employees, on the ground that Brandt-Erichsen failed to obtain a “receipt upon final entry” triggering 43 U.S.C. § 1165 and therefore, did not obtain title to an 80-acre tract of land in Alaska. We affirm the district court’s summary judgment. I. BACKGROUND Sometime in 1968, Brandt-Erichsen entered an 80-acre tract of land in the Wrangell-St. Elias National Park and Preserve in Alaska. In August of that same year, Brandt-Erichsen filed a Notice of Location of Settlement or Occupancy Claim with the Bureau of Land Management. With the notice, Brandt-Erichsen paid the required recording fees and obtained a receipt. In August 1973, Brandt-Erichsen filed an application to purchase the 80 acres as a trade and manufacturing site and petitioned for a survey of the land with the Bureau of Land Management. He paid the required application fee for the patent and survey and obtained a receipt. In January 1979, the Bureau of Land Management filed an administrative complaint contesting Brandt-Erichsen’s request for a patent on the property. On December 12, 1979, an administrative law judge cancelled Brandb-Erichsen’s entry on the ground that at the time he applied to purchase the tract, Brandt-Erichsen was not engaged in business operations from which he would derive a profit. The administrative law judge’s determination was affirmed by the Interior Board of Land Appeals. In May 1989, Brandt-Erichsen filed a complaint in district court. In his second cause of action, Brandb-Erichsen claimed equitable title to the 80 acres under 43 U.S.C. §§ 1165 and 687a. In November 1990, both Brandb-Erichsen and the appellees filed summary judgment motions. On May 8, 1991, the district court granted summary judgment in favor of the appellees on Brandb-Erichsen’s second cause of action. The court decided that: (1) 43 U.S.C. § 1165 entitled a person who satisfied its criteria to equitable title, and (2) Brandt-Erichsen failed to satisfy its criteria as he did not pay the entire purchase price and obtain the receiver or manager’s receipt. The court entered final judgment as to the section 1165 issue under Fed.R.Civ.P. 54(b). Brandb-Erichsen filed a timely notice of appeal with this court. We have jurisdiction over the appeal under 28 U.S.C. §§ 1291, 1294. II. DISCUSSION A. Summary Judgment. A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). Viewing the evidence in the light most favorable to the nonmoving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. FDIC v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992); Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). Brandt-Erichsen contends that the district court erred by granting summary judgment in favor of the appellees on the ground that he failed to obtain a “receipt upon final entry” for purposes of 43 U.S.C. § 1165. He argues that the receipts he obtained for payment of fees in connection with his application to purchase land under 43 U.S.C. § 687a [1379] constituted a “receipt upon final entry” triggering the two-year statutory period. Because the Bureau of Land Management failed to object within the two-year period, Brandt-Eriehsen asserts that he has equitable title to the land. The appellees disagree and argue that Brandt-Eriehsen was required to pay the purchase price for the land before obtaining a “receipt upon final entry” and triggering the statute. The problem before us is to determine what constitutes “final entry” within the meaning of the statute. 1. The Statutes. Congress passed what is now known as the Confirmation Statute, 43 U.S.C. § 1165, as part of a 1891 “Act to repeal timber-culture laws, and for other purposes.” 26 Stat. 1095. Section 7 of the 1891 Act read: [Ajfter the lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him.... 26 Stat. 1099 (Emphasis Added). This section, now 43 U.S.C. § 1165, placed an affirmative restriction on the Commissioner of the General Land Office, now the Secretary of the Interior, to contest the rights of an entryman to a patent in a timely fashion. See Grewell v. Watt, 664 F.2d 1380, 1382 (9th Cir.1982). Congress enacted what today is section 687a as part of a 1898 “Act extending homestead laws ... in the District of Alaska.” 30 Stat. 409. As enacted, this section stated: [A]ny citizen of the United States ... in the possession of and occupying public lands in the District of Alaska in good faith for the purposes of trade, manufacture, or other productive industry, may ... purchase one claim ... not exceeding eighty acres of such land ..., at two dollars and fifty cents per acre, upon submission of proof that said area embraces improvements of the claimant and is needed in the prosecution of such trade, manufacture, or other productive industry.... Id. With the exception of the deletion of the words “District of,” this section has remained unchanged since the time of its enactment. See 43 U.S.C. § 687a. Although section 1165 was enacted as part of the 1891 Act and section 687a as part of the 1898 Act, we have held that Congress intended section 1165 to apply to claims under section 687a. Grewell, 664 F.2d at 1384. 2. Statutory Construction. Judicial review of an agency’s construction of a statute that it administers is a two-part process. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). First, we examine “whether Congress has directly spoken to the precise question at issue.” Id. If the intent of Congress is clear, then we must give effect to that intent. Id. at 842-43, 104 S.Ct. at 2781-82. Second, if we determine that Congress has not directly addressed the precise question at issue, then we must decide whether the agency’s interpretation is a permissible construction of the statute. Id. at 843, 104 S.Ct. at 2782. a. Congress’ Intent. Congress did not expressly define the phrase “receipt upon final entry” as found in 43 U.S.C. § 1165. In a series of decisions, the Interior Board of Land Appeals (“IBLA”)1 has interpreted the phrase to require an entryman to comply with the requirements for a patent application and to pay the entire purchase price of the land. For the reasons that follow, I do not believe [1380] that Congress’ intent in using this phrase is clear. At the time Congress passed the Confirmation Statute, an entryman simultaneously received a receiver’s receipt, indicating submission of final proof and payment of required monies, and a register’s certificate, indicating approval of the proof and declaring the entryman entitled to a patent. 30 Stat. 414 (1898); see also Stockley v. United States, 260 U.S. 532, 538-39, 43 S.Ct. 186, 187-88, 67 L.Ed. 390 (1923). By 1908, the procedures of the Land Department changed, and the Department no longer issued receiver’s receipts and register’s certificates simultaneously. Stockley, 260 U.S. at 538, 43 S.Ct. at 187. In reviewing the effects of this change on the meaning of “receipt on final entry,” the Supreme Court, in Stockley, 260 U.S. at 543, 43 S.Ct. at 189, held that the receiver’s receipt alone constituted a “receipt upon final entry.” The Court explained that Congress created section 1165 to avoid delays of unreasonable lengths of time between the time an entryman completed all the requirements of law and the time the agency adjudicated on the final proof. Id. at 540, 43 S.Ct. at 188. The Court noted that “[hjaving submitted to the proper officials proof showing full compliance with the law, and having paid all the fees and commissions lawfully due, [the en-tryman] had done everything which the law required on his part and became entitled to immediate issuance of the receiver’s receipt, and this receipt was issued and delivered to him. No subsequent receipt was contemplated or required.” Id. In 1946, however, 43 U.S.C. § 1165 was amended as a result of the creation of the Department of the Interior’s Bureau of Land Management. 1946 Reorganization Plan No. 3, § 403, 60 Stat. 1100. The term “receiver’s receipt upon final entry” was replaced by “receipt of such officer as the Secretary of the Interior may designate upon final entry.” 43 U.S.C. § 1165 (historical note). As this change centered on the language relied upon by the Court in Stockley, I cannot conclude that Congress intended to continue construing “receipt upon final entry” in the manner suggested by the dissent. The legislative grant of discretion to the Secretary of the Interior regarding the procedures for issuing the receipt has, at the least, made unclear the Congressional intent regarding what constitutes such receipt. I thus turn to the agency’s interpretation of the statute. b. Agency’s Interpretation. By the 1970’s, when Brandt-Erichsen entered the 80-acre tract of land and filed his application to obtain a patent, the Bureau of Land Management had issued a number of regulations dealing with land patent applications. Under these regulations, the receiver and register had been replaced by a Bureau of Land Management manager. 43 C.F.R. § 1862.6. The manager issued three different “receipts” to an entryman as part of the process to obtain land under 43 U.S.C. § 687a before issuing a final certificate. Id. The first receipt was issued after the entry-man paid a $10 recording fee and filed a notice of location of claim. 43 C.F.R. § 2562.1(d); see also United States v. Bunch, 64 I.B.L.A. 318, 324 (1982), aff'd sub nom, Bunch v. Kleppe, Civ. No. A76-115 (D.Alaska Jan. 14, 1983). The second receipt was issued when the entryman paid a $10 service fee and submitted the proofs for application of a patent. 43 C.F.R. § 2562.3(b). A final receipt was issued when the entryman paid the purchase price. 43 C.F.R. § 2562.7. Normally, this final receipt was issued after the surveys of the land were completed and the patent had been approved. Id. In a series of decisions, the IBLA has held that 43 U.S.C. § 1165 is not triggered unless the entryman, in addition to fulfilling the other requirements for a patent application, has paid the entire purchase price for the land and received the final receipt. See United States v. Jones, 106 I.B.L.A. 230, 264 (1988) (holding that the requirement the en-tryman pay the purchase price was a con-gressionally imposed condition for acquiring the right); Bunch, 64 I.B.L.A. at 330 (holding that the entrywoman was not entitled to a patent under 43 U.S.C. § 1165 because she had not received a final receiver’s receipt after payment of the purchase price); United States v. Braniff, 65 I.B.L.A. 94 (1982) (holding that although the entryman paid his ap [1381] plication fees and obtained receipts, he failed to obtain the final'receipt for payment of the statutory purchase price); United States v. Boyd, 39 I.B.L.A. 321, 328-29 (1979) (holding that appellant failed to show any evidence that final payments had been made). In Bunch, 64 I.B.L.A. at 325, the Board explained that the first two receipts that the entrywoman received did not “fall[ ] within the words of the statute” and absent payment of the purchase price and issuance of the final receipt, the two-year period of 43 U.S.C. § 1165 had not begun. Although the judiciary is the final arbiter of the issue of statutory construction, an administrative agency’s interpretation of a statute it is charged with administering is accorded substantial deference. Haynes v. United States, 891 F.2d 235, 238-39 (9th Cir.1989). The statute at issue, 43 U.S.C. § 1165, is part of the acts that the Department of the Interior is charged with administering. See 43 U.S.C. §§ 1 and 1165 (historical notes). As a result, the decisions of the Interior Board of Land Appeals, a part of the Department of the Interior, on the meaning of a “receipt upon final entry” for purposes of 43 U.S.C. § 1165 should be given substantial deference. Furthermore, to affirm we need not conclude that the agency’s construction was the only one it permissibly could have adopted or even the reading we would have reached if the question initially had arisen in a judicial proceeding, but only that the agency’s interpretation is reasonable and not contrary to congressional intent. Chevron U.S.A., 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. Requiring payment of the purchase price before section 1165 is triggered is in keeping with the congressional purpose of avoiding delays between the time the entryman completes the patent requirements and the agency adjudicates the final proof. In fact, it furthers this purpose by making sure all requirements are completed. Because the agency’s interpretation of this term is reasonable and in keeping with the purpose of the statute as a whole, I conclude that a “receipt upon final entry” requires the entry-man to pay the purchase price to trigger the two-year period under 43 U.S.C. § 1165. Thus, Brandt-Erichsen was required to pay the $2.50 per acre for the approximately 80 acres to obtain a final manager receipt. As the statute was not triggéred, Brandt-Eri-chsen did not" obtain equitable title to the land in question. Because there are no genuine issues of material fact and the district court correctly applied 43 U.S.C. § 1165, the grant of summary judgment should be affirmed. B. Waiver. The appellees also argue that Brandt-Erichsen waived the issue of whether the Confirmation Statute was triggered by failing to raise this issue in the earlier administrative proceedings. While the appellees raised the waiver issue in their motion to dismiss and their reply brief in support of the motion to dismiss, the district court did not rely on waiver as a ground for granting the appellees’ summary judgment motion. As the district court never reached the issue and the Confirmation Statute is dispositive in this case, I find it unnecessary to reach the waiver issue. C. Attorney Fees. Brandt-Erichsen claims that he is entitled to attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. A plaintiff may be awarded attorney fees pursuant to the Equal Access to Justice Act," if he is a prevailing party and the position of the United States was not substantially justified. Petrone v. Secretary of Health & Human Serv., 936 F.2d 428, 429 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1161, 117 L.Ed.2d 409 (1992). As Brandh-Eri-chsen was not the prevailing party, he is not entitled to attorney fees under this statute. AFFIRMED. Footnotes [1] The Interior Board of Land Appeals is part of the Office of Hearings and Appeals which is a component of the Office of the Secretary of the Interior. It is authorized to hear, consider, and determine matters within the jurisdiction of the Department of the Interior involving hearings, appeals, and other review functions of the Secretary of the Interior. 43 C.F.R. § 4.1; see also United States v. Jones, 106 I.B.L.A. 230, 246 (1988).