                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-35903

              Plaintiff - Appellee,              DC No. 3:09 cv-0204 TMB

  v.
                                                 MEMORANDUM *
DENNIS TORREY,

              Defendant-Cross-Claimant -
Appellant,

  and

MELISSA TORREY; ERIC TORREY,

              Defendants-Cross-Claimants,

  v.

ALICE BISMARK,

              Cross-Defendant.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                         Argued and Submitted May 22, 2013
                                 Anchorage, Alaska

Before:      TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.

      This is a trespass action involving a five-acre parcel of land allotted for

Native Alaskan ownership. Dennis Torrey, a non-Native Alaskan, appeals the

district court’s grant of partial summary judgment in favor of the United States on

its trespass claim and denial of Torrey’s motion to dismiss on res judicata and

equitable estoppel grounds. The complex facts of this long-running quarrel are

well known to the parties and are not materially disputed. We set them forth here

only as necessary to explain our holding.

      We review de novo the grant of summary judgment. United States v. City of

Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      1.     This action is not barred by the doctrine of res judicata (claim

preclusion). Although a 1991 federal court order dismissed with prejudice a

trespass claim brought by Patrick Chuitt, Sr. (“Chuitt”) against Torrey and his

then-wife Alice, that action is not res judicata as to the present action because there

is no “identity of claims.” Turtle Isl. Restoration Network v. U.S. Dep’t of State,

673 F.3d 914, 917 (9th Cir. 2012) (quoting Tahoe-Sierra Pres. Council, Inc. v.



                                            2
Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)); see also

Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982).

      The only right established in the first trespass action was Alice’s right to the

Chuit River Lodge parcel, and the present action does not threaten to destroy or

impair Alice’s rights. See Turtle Island, 673 F.3d at 917-18 (asking “whether

rights or interests established in the prior judgment would be destroyed or impaired

by prosecution of the second action”). Moreover, new evidence is available in the

present action because Alice has since given a sworn statement that she considers

Chuitt’s contractual obligations to be satisfied. See id. at 918 (asking “whether

substantially the same evidence is presented in the two actions”). Finally and most

importantly, the two actions do not share the same transactional nucleus of facts

because the harm alleged in the present action arises from factual developments

that followed the conclusion of the first trespass action. See id. (“whether the two

suits arise out of the same transactional nucleus of facts” is the “most important”

criterion in determining an identity of claims); United States v. Liquidators of

European Fed. Credit Bank, 630 F.3d 1139, 1151 (9th Cir. 2011) (“If the harm

arose from different facts at a different time, . . . then the plaintiff could not have

brought the claim in the first action.”). Chuitt’s heirs (here represented by the

United States) can now exercise ownership over the disputed Chuit River Lodge


                                            3
parcel free and clear of any contractual obligation to Alice because Chuitt

conveyed to Alice a parcel of land that she now considers a satisfaction of his

obligations under their 1983 agreement. Alice’s acquiescence is a “[c]hange of

circumstances” – a “[m]aterial operative fact[] occurring after the decision of an

action with respect to the same subject matter” that “may be made the basis of a

second action not precluded by the first.” Restatement (Second) of Judgments § 24

cmt. f (1982). Accordingly, the first trespass action does not bar this action under

the doctrine of res judicata.

      2.     Torrey cannot meet the traditional requirements of equitable estoppel

because, at minimum, he cannot show ignorance of “the true facts.”1 Baccei v.

United States, 632 F.3d 1140, 1147 (9th Cir. 2011). Since at least 1993, Torrey

has known that Chuitt conveyed a different parcel to Alice, despite being under a

court order to convey the Chuit River Lodge parcel to her. That much is clear from

Torrey and Alice’s 1993 marital settlement agreement, in which Alice disclaimed


      1
               Appellee argues that Torrey lacks Article III standing to assert
equitable estoppel as an affirmative defense against the trespass claim. We
disagree. Article III standing is a requirement that applies “almost invariably” to
plaintiffs and Torrey is in a purely defensive posture with regard to the plaintiffs-
appellees; he has brought no counterclaim against them. 13A Charles Alan Wright
et al., Federal Practice & Procedure § 3531 (3d ed. 2013); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (explaining that “[t]he party
invoking federal jurisdiction bears the burden of establishing” the elements of
Article III standing).

                                          4
interest in the disputed parcel and Torrey disclaimed interest in the parcel that

Chuitt actually conveyed to Alice. In short, Torrey has known for approximately

twenty years that he is living on land owned by neither himself nor Alice. Having

long slumbered on any rights he may have, Torrey cannot now invoke the equitable

defense of estoppel.


      AFFIRMED.




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