State of Idaho v. Hodel

The Coeur d'Alene Tribe of Indians contends that the State of Idaho has violated the terms of a 1911 patent by which land formerly part of the Tribe's reservation was conveyed to Idaho for use as a public park. The Tribe appeals two decisions of the district court: a 1979 grant of summary judgment for Idaho, and a 1984 decision holding that even if Idaho breached the patent the Tribe may not exercise a power of termination. We hold that the Tribe may pursue this appeal irrespective of its ability to exercise a power of termination, but we conclude that the Tribe is not entitled to forfeiture.

* BACKGROUND

The Coeur d'Alene Indian Reservation, comprising approximately 590,000 acres in Idaho, was established by Executive Order of President Grant in 1873. Pursuant to the Allotment Act of 1906, ch. 3504, 34 Stat. 325, 335, Congress authorized the allotment of 160 acres of reservation land to each member of the Tribe and opened up the unallotted lands to homestead entry.

Two years later, before the reservation was opened for settlement, Congress withdrew 6,774.65 acres of the land from settlement and allotment by the Act of 1908, ch. 153, 35 Stat. 70. The Act of 1908 authorized the Secretary of the Interior to convey the withdrawn land to Idaho for use as a public park. 35 Stat. 78, 79. The land that is now Heyburn State Park was conveyed to Idaho on June 28, 1911, under a patent setting forth the following conditions:

the lands are to be by said state held, used, and maintained solely as a public park, ... the title to revert to the United States ... absolutely if the said lands, or any portion thereof, shall not be ... so used and maintained by the state, or shall be alienated by said state; and in event of the violation by the state of any of the conditions ..., then the United States may thereupon or at any time thereafter enter upon, and into the exclusive possession of, the said lands ... and have, hold, seize, and possess the same....

(emphasis added).

The park includes within its boundaries Lake Chatcolet. In 1920, Idaho began issuing permits to maintain float homes on the lake. The State also began leasing waterfront cottage sites. The leases and permits were granted for periods of up to ten years and were regularly renewed until 1976. A lease entitled the lessee to "the exclusive right and privilege to possess and use [the site] in the manner and for the purpose hereinafter contained," but prohibited commercial use and required the lessee to substantially improve the leasehold within two years.1 In 1975, the Idaho legislature expressly indicated its intent to continue the cottage site leasing program on its state lands, see Idaho Code Sec. 39-3613 (1985), and imposed additional requirements on lessees primarily concerning water and sewage control, see id. Secs. 39-3609 to -3613. In 1976, there were 161 sites leased and 32 existing float home permits in Heyburn State Park covering approximately 21 acres.

In 1972, an Assistant Area Director of the Bureau of Indian Affairs, on behalf of the Tribe, wrote to the Director of the Idaho Department of Parks suggesting that the cottage site leasing program violated the terms of the patent, and by letter dated March 3, 1976, the Solicitor of the United States Department of the Interior informed the Idaho Attorney General that the Solicitor's Office had concluded that Idaho was "not in compliance with the conditions of the [1911] conveyance." As a protective measure in the event of a lawsuit, the Idaho Board of Land Commissioners decided on March 9, 1976 not to renew cottage site leases or float-home permits in Heyburn State Park upon their expiration. All leases and permits expired in 1981.

Idaho filed suit in federal district court on December 30, 1976, seeking a declaratory judgment that its lease and permit practices did not violate the "public park" and anti-alienation conditions in the patent. In the alternative, Idaho sought a declaration either that its decision not to renew leases and permits constituted compliance with the Department of Interior's request so as to avoid forfeiture, or that granting one-year leases would comply with the patent. On September 7, 1977 the United States filed a complaint claiming the practices violate the conditions in the patent and seeking to quiet title to the property. The suits were consolidated for trial and the court granted the Tribe and the Heyburn State Park Leaseholders Association (Leaseholders) limited leave to intervene.

On November 9, 1979, the district court granted Idaho's motion for summary judgment, concluding on the basis of its findings of undisputed facts that Idaho had not violated the conditions in the patent. Both the United States and the Tribe appealed, but before oral argument the United States moved to voluntarily dismiss its appeal, and a panel of this court granted the motion. With only the Tribe remaining, Idaho moved to dismiss the appeal on the ground that no case or controversy existed because any property interest flowed solely to the United States. We remanded to the district court for a determination of whether the Tribe possessed a beneficial interest in the power of termination.

On remand, the district court held that the Tribe does not have a beneficial interest in the power of termination. The Tribe appealed, and we reversed. While we held that the Tribe does have such a beneficial interest, we remanded for further proceedings including a determination of the nature and extent of that interest. Idaho v. Andrus, 720 F.2d 1461 (9th Cir.1983), cert. denied, 469 U.S. 824, 100 S.Ct. 101, 83 L.Ed.2d 46 (1984). On this second remand, the district court held, by memorandum dated August 9, 1984, that under the 1911 patent only the United States, and not the Tribe, could exercise the power of termination. The court also concluded that the United States, by virtue of its withdrawal from the litigation, had manifested an intent not to exercise the power of termination. The Tribe appeals.

Therefore, two decisions below are before us: first, the district court's 1979 grant of summary judgment in favor of Idaho, and second, the court's 1984 decision holding that the Tribe may not exercise the power of termination contained in the patent.

We have already decided that the Tribe has standing to pursue this appeal despite the withdrawal of the United States. Idaho v. Andrus, 720 F.2d at 1469-70 (1984).2 Idaho and the Leaseholders argue, however, that the district court correctly held that the Tribe may nevertheless not exercise the power of termination provided for in the patent, and that the United States did not exercise that power. We conclude that forfeiture is inappropriate; however, we base our decision on grounds different than those relied on by the district court.3III

Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment in favor of Idaho and its denial of the Tribe's summary judgment motion de novo. E.g., Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). Viewing all the evidence in the record in the light most favorable to the non-moving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the substantive law was correctly applied. E.g., International Union of Bricklayers Local 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985); Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984).

The district court granted summary judgment to Idaho, concluding that its lease and permit practices did not violate the patent's forfeiture provision. In order to determine whether summary judgment was appropriate, it is important to understand the rules by which the forfeiture provision in the patent must be construed. Cf. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (on motion for summary judgment, evidence must be considered in light of substantive evidentiary burden).

Forfeiture provisions are not favored in the law. E.g., Humphrey v. C.G. Jung Educational Center, 714 F.2d 477, 480-81 (5th Cir.1983) (Texas law); Bornholdt v. Southern Pacific Co., 327 F.2d 18, 20 (9th Cir.1964) (California law; "general legislative and judicial hostility to divesture of properties long held by grantees" (footnote omitted)); Schlegel v. Hansen, 98 Idaho 614, 570 P.2d 292, 293 (1977). Such provisions are construed liberally in favor of the holder of the estate, and a construction which avoids forfeiture must be adopted if at all possible. See Humphrey, 714 F.2d at 480-81; Bornholdt, 327 F.2d at 20; Schlegel, 570 P.2d at 293. These rules have been applied to attempts by the United States to enforce a forfeiture provision in a grant of public land, see Oregon & California Railroad v. United States, 238 U.S. 393, 420, 35 S.Ct. 908, 919, 59 L.Ed. 1360 (1915) ("it is a general principle that a court of equity is reluctant to (some authorities say never will) lend its aid to enforce a forfeiture"); New York Indians v. United States, 170 U.S. 1, 25-26, 18 S.Ct. 531, 537, 42 L.Ed. 927 (1898) ("A condition, when relied upon to work a forfeiture, is construed with great strictness.... [A]ny ambiguity in [the grantor's] deed or defect in the evidence offered to show a breach will be taken most strongly against him, and in favor of the grantee."),4 and to an attempt by Indians to recover former Indian land conveyed to a county by United States patent on condition that the land be used for cemetery purposes only, see Choctaw and Chickasaw Nations v. Board of County Commissioners, 361 F.2d 932, 934 (10th Cir.1966) (Oklahoma law). Even a breach of a condition may not result in forfeiture if the grantee has "substantially complied" with the terms of the conveyance. See Bornholdt, 327 F.2d at 20-21.

The construction of a federal patent is governed by federal law, e.g., United States v. Oregon, 295 U.S. 1, 28, 55 S.Ct. 610, 621, 79 L.Ed. 1261 (1935), and if federal law is silent Congress is presumed to have intended the conveyance to be construed according to the law of the state in which the land lies, unless a contrary congressional intent is shown, e.g., Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 88, 43 S.Ct. 60, 64, 67 L.Ed. 140 (1922); Oklahoma v. Texas, 258 U.S. 574, 594-95, 42 S.Ct. 406, 414, 66 L.Ed. 771 (1922) (involving disposal of Indian lands under guardianship of United States). Here, there is no indication as to Congress's intent regarding the appropriate law to apply. Accordingly, where federal law is of no avail we are guided by Idaho law.

Idaho law governing the construction of deeds dictates that a court interpreting a deed should be guided by the intention of the parties, in this case the United States and the State of Idaho. Gardner v. Fliegel, 92 Idaho 767, 450 P.2d 990 (1969). The intention of the parties is to be gleaned from the instrument itself, if possible. However, if the language in the deed is ambiguous, the intention must be determined from extrinsic evidence. Id. 450 P.2d at 994; Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209, 213 (1952); McLean v. Row, 56 Idaho 646, 57 P.2d 689, 691 (1936).

Accordingly, in construing the phrase "to be ... held, used, and maintained solely as a public park " we must attempt to give effect to the intent of the United States, as expressed by Congress. E.g., Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). Where, as here, Congress has left a term undefined, it is presumed that the words were used in their ordinary, commonly understood meaning. E.g., Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979) ("A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."); see also, e.g., City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680, 684 (1956). Since the term "public park" is subject to a host of various interpretations it is appropriate in this endeavor to look to extrinsic evidence relevant to the meaning of the phrase "public park," see, e.g., Leary v. United States, 395 U.S. 6, 37-39, 89 S.Ct. 1532, 1548-49, 23 L.Ed.2d 57 (1969), including evidence of the circumstances prevailing at the time of enactment, see, e.g., United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590 (1962); Burlington Northern Railroad v. Department of Public Service Regulation, 763 F.2d 1106, 1111 n. 3 (9th Cir.1985). Keeping these principles in mind, we must determine whether, in light of all the uncontroverted facts, the district court properly held that Idaho is not required to forfeit the Heyburn State Park land.5

A "public park" is necessarily meant for the use and enjoyment of the public. See, e.g., The Random House Dictionary (Unabridged) 1049 (1979) ("park" is "an area of land ... for the enjoyment of the public"); 67A C.J.S. Park at 604-05 (1978) ("There is general agreement that a park is a place for the resort of the public. Accordingly, a park must be for the benefit of the public at large and open for the use and enjoyment of everyone...." (footnote omitted)); 59 Am.Jur.2d Parks, Squares, and Playgrounds Sec. 1 (1971) (" 'park,' as now commonly understood in this country, means a piece of ground ... for the resort of the public"). This notion, however, is inherently broad and flexible.

Idaho argues that leasing portions of a park to private individuals for the maintenance of cottages makes the leased portions available for the use of the public because those who lease the sites are members of the public. This interpretation of the word "public" is, to put it mildly, disingenuous. Everyone is a member of the public. Idaho's theory would make any use of the park a "public" use. For example, under Idaho's approach, the state could execute 99-year leases of 100-acre cottage sites covering all of the park. Clearly such a practice would not be consistent with the requirement in the patent. The practices at issue here are not as demonstrably violative of the patent as those in our example; nevertheless, the mere fact that members of the public lease the park land does not demonstrate that Idaho's leasing practices constitute proper park uses.

As we have emphasized supra, forfeiture provisions are to be construed so as to avoid forfeiture if at all possible. Idaho is required to forfeit the land only if its leasing practices are clearly not proper "public park" uses. If there is a legitimate question as to whether those practices violate the patent, forfeiture is barred. In short, summary judgment in favor of Idaho was proper if the uncontroverted evidence in the record, taken as a whole,6 precludes a determination that the leasing practices constitute a clear and unambiguous violation of the "public park" condition of the patent. Cf. Anderson, 106 S.Ct. at 2513 (in libel action, court considering motion for summary judgment must be guided by "clear and convincing" evidence standard applicable in libel cases).

We find historical evidence of park uses helpful in determining whether Idaho's leasing practices clearly constitute improper public park uses. The uncontroverted evidence in the record shows the following: By 1928, at least seven states leased summer homes in their state parks. Pennsylvania had, by 1925, leased over 1,200 sites. Mackinac Island State Park, formerly a national park in which summer cottage leasing was permitted, was patented to Michigan in 1895 with conditions similar to those considered in the present case, and renewable, 21-year summer cottage site leases have been issued up to the present day. The superintendent of the park has stated his opinion that such leasing historically has been considered a proper use of a park for public purposes. Four additional states currently lease summer cottage sites, some of which were planned by the National Park Service.

There also is undisputed evidence of cottage leasing in the early 1900's in the national parks. In Glacier National Park, established in 1908 by the same Congress that authorized the Secretary of the Interior to convey the land involved in the instant case to Idaho for use as a public park, leasing of sites for up to 20 years was authorized by statute. Leasing was also authorized in Lassen Volcanic National Park, which was established in 1916, and by 1920 when Idaho began its leasing program in Heyburn State Park, 1,600 leases had been executed. The United States Forest Service has in the past leased sites on its lands, including sites in Idaho around 1920. Additionally, the federal government permits permanent private landholdings in the national parks. For example, in Yosemite National Park there are approximately 200 acres of privately owned land. The private tracts of land contain permanent houses, seasonal residences, mobile homes, rental cabins, a hotel, grocery store and a gas station. J. Lambert, Private Landholdings in the National Parks: Examples From Yosemite National Park and Indian Dunes National Lakeshore, 6 Harv.Envtl.L.Rev. 35, 41 (1982). Private landowners in the Indian Dunes National Lakeshore may sell their land to the federal government and obtain a twenty-five year leaseback. J. Lambert, supra at 51. Thus, the federal government tolerates permanent private inholdings in the national parks and encourages leasebacks for those landowners willing to sell their property to the government.

The record also shows that leasing of sites in both Glacier National Park and Lassen Volcanic National Park has been prohibited since 1931. See 16 U.S.C. Secs. 162a, 202a (1982). Beginning in the 1950's and 1960's, the federal government departed from its policy of leasing sites on its lands, including Forest Service lands. Now, the Forest Service's goal is to eliminate leaseholds on virtually all its lands. However, this shift in the federal government's leasing policy does not mean that the terms of the original Act of 1908 also shift or change over time in such a way as to mirror current notions concerning the proper use of public parks. The words of an instrument are to be given the meaning that they were given when the instrument was executed.

Courts which have been called on to construe ambiguous passages in federal patents have limited their analysis to ascertaining what Congress originally intended in the grant. See Missouri, Kansas and Texas Ry. Co. v. Kansas Pacific Ry. Co., 97 U.S. (7 Otto) 491, 497, 24 L.Ed. 1095 (1878) (land grants to railroad companies intended by Congress to aid in construction of railroads); Leo Sheep Co. v. United States, 570 F.2d 881, 885 (10th Cir.1977), rev'd on other grounds, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979) (intent of Congress in 1862 when it granted railroad companies odd-numbered sections of land on both sides of proposed railroads "was to 'open up' the West and develop it"); Macdonald v. United States, 119 F.2d 821, 825 (9th Cir.1941) (Congressional policy underlying 1875 land grant was "to promote settlement and to enhance the value of the public domain"), modified, Great Northern Railway Co. v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942). Employing the principles articulated in the above cases, our task is to discern congressional intent in 1908. In light of the prevalence of cottage leasing in national as well as state parks in the early 1900's, it is obvious that Congress did not intend to prohibit the practice. If Congress had wished to prohibit such a widely-accepted practice, it certainly would have done so expressly in the Act of 1908.

The evidence that leasing practices historically were considered to be proper park uses is sufficient to preclude a holding that Idaho has clearly violated the "public park" restriction. Because Idaho's practices comport with a historical notion of proper park use, we hold that forfeiture is not an appropriate remedy in this case.

We also note that the State of Idaho must have the authority to administer and operate its state parks. Federal courts should not interfere with a state's administration of its parks unless it is necessary to protect an important federal right. The Idaho legislature has delegated the power to operate, maintain and develop state parks to the Idaho department of parks and recreation. Idaho Code Sec. 67-4219. Pursuant to this delegation of authority, the park and recreation board exercises vast powers in its administration of the Idaho state park system. Idaho Code Sec. 67-4223. The park and recreation board is vested with the authority to lease park land in all Idaho state parks, Idaho Code Sec. 67-4223(g) (1986 Supp.), and specifically in Heyburn State Park, Idaho Code Sec. 67-4204. This court must defer to the board's leasing policy unless the policy substantially infringes on an important federal right. Absent such deference the federal courts will become embroiled in the day-to-day operation of state parks.

State courts have traditionally deferred to the discretion of city park commissioners in the administration of public parks. These courts have condoned many different private, and quasi-private, uses of public park land. For instance, city park administrators may set aside public park land for recreational or athletic purposes. Shields v. City of Philadelphia, 405 Pa. 600, 176 A.2d 697 (1962) (public park land may be set aside for use as a little league baseball diamond); Summit County Historical Society v. City of Akron, 115 Ohio App. 555, 183 N.E.2d 634 (1961) (public square may be converted into ice rink); Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332 (1940) (construction of stadium, race track and athletic fields permitted on park land). The courts have approved using park land to provide temporary housing during emergencies, Hyland v. City of Eugene, 179 Ore. 567, 173 P.2d 464 (1946) (veterans may reside in trailer homes in park for two years during temporary housing shortage following World War II), and leasing subsurface rights for the purpose of constructing a parking garage. City and County of San Francisco v. Linares, 16 Cal.2d 441, 106 P.2d 369 (1940) (parking garage built under Union Square). Courts have also held that long term leases to operate hotels or restaurants are consistent with a "public park" restriction. 795 Fifth Avenue Corp. v. City of New York, 13 A.D.2d 733, 215 N.Y.S.2d 391 (1961); Harter v. City of San Jose, 141 Cal. 659, 75 P. 344 (1904). Thus, the courts will typically defer to the park commission's judgment governing the allocation of park resources and use of park land. We find these cases persuasive. In this case we cannot conclude that the Idaho park and recreation board exceeded its ample authority through its leasing practices. Moreover, we emphasize that only one-third of one percent of the land in Heyburn State Park is subject to the lease restrictions at issue in this action. A court must refrain from finding a violation of a "public park" restriction when only a small segment of land in the park is affected. Angel v. City of Newport, 109 R.I. 588, 288 A.2d 498 (1972); Nichols v. City of Rock Island, 3 Ill.2d 531, 121 N.E.2d 799 (1954). To justify forfeiture, there must be a substantial deviation from commonly accepted forms of public usage. Here, 99.67% of the land in Heyburn State Park is unencumbered by the contested leases. It is not essential that the public have unrestrained access to every square foot of land within a park to make it "public." Consequently, we hold that, given the small size of the area where leases are allowed, the Idaho park and recreation board has not exceeded the scope of its authority to administer and operate Heyburn State Park.

The Tribe also requests forfeiture on the ground that Idaho's practice of leasing cottage sites constitutes an alienation of the land in violation of the patent.7 We must apply the same rule here that we applied to the "public park" provision--we must construe "alienation" so as to avoid a forfeiture if possible, and if there is doubt whether the term includes a particular transfer of an interest we must construe the provision against the party seeking forfeiture. While there is some authority for the proposition that leasing may be considered an alienation of land,8 the more commonly understood meaning of the word is that an alienation is a complete transfer of title rather than a transfer of a leasehold interest.9 See, e.g., Properties Investment Enterprises v. Foundation for Airborne Relief, Inc., 563 P.2d 307, 309 (Ariz.Ct.App.1977) ("[a]n alienation is a complete, voluntary transfer of title"); 3 C.J.S. Alienate at 771 (1973) ("The term 'alienate' has a technical legal meaning, and any transfer of real estate, short of a conveyance of the title, is not an alienation of the estate."); id. Alienation at 772 ("As a general rule [alienation] excludes any transfer short of the conveyance of the title...." (footnote omitted)). Accordingly, we hold that Idaho's leasing practices do not constitute "alienation" of the land for purposes of forfeiture under the patent.10

The judgment of the district court is AFFIRMED.

REINHARDT, Circuit Judge, concurring and dissenting:

While I concur in the conclusion of the majority that the Coeur d'Alene Tribe is not entitled to forfeiture, I disagree strongly with part of the analysis it uses in reaching that conclusion. I also disagree strongly with the majority's suggestions that we should defer automatically to the State of Idaho's interpretation of the term "public park" and that Idaho's Heyburn State Park leasing practice falls within the meaning of that term. I do not believe that leasing prime public land to those who can afford to maintain lakeside summer cottages, and excluding the general public from that portion of the park, complies with the congressional mandate we are obligated to enforce.

The basis of the majority's holding with respect to forfeiture, as I understand it, is that forfeiture is appropriate only if we find that Idaho has clearly and unambiguously violated the public park restriction, and that the historical pattern of park leasing in the earlier periods of our country's development precludes such a finding, at least without prior notice or court ruling. With this much of the majority's opinion I concur; however, I do not agree with the portion of the forfeiture analysis in which the majority states that we should construe the term "public park" according to its meaning at the time Congress used the term in 1908. I believe that the interpretation of a term used in an act of Congress concerning a grant of federal land requires us to apply modern day notions of proper public park uses.

Beyond the forfeiture issue, the majority appears to decide that Idaho's leasing program constitutes a proper public park use because it is analogous to park uses that have been upheld by other courts, and because, in any case, we should not interfere in the administration of state parks. However, none of the cases that the majority attempts to analogize to the case before us condones the denial of public access to park property so that private individuals may enjoy the exclusive use of such property. Further, the majority's invocation of the shibboleth that the federal judiciary should abdicate its duties rather than interfere with state administrative functions makes absolutely no sense in the context of interpreting a document that conveys realty between two parties, one of which happens to be a state.

Accordingly, while I agree that forfeiture is not appropriate, unlike the majority I conclude that the leasing practice complained of here does not constitute a "public park" use and is contrary to the provisions of the federal land patent. I would therefore afford the Tribe declaratory o