                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           DEC 13 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

PINE BAR RANCH LLC; OWEN                         No. 11-35564
TORREY,
                                                 D.C. No. 1:10-cv-00088-RFC
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

INTERIOR BOARD OF INDIAN
APPEALS, Department of Interior;
ACTING REGIONAL DIRECTOR,
United States of America, Bureau of
Indian Affairs, Rocky Mountain Regional
Office; EDWARD LONE FIGHT,
Superintendent, Bureau of Indian Affairs,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                     Argued and Submitted November 8, 2012
                               Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:        W. FLETCHER and FISHER, Circuit Judges, and TUCKER,
               District Judge.**

      This case is the latest installment in a lengthy dispute about the status of

Surrell Creek Road, an unpaved road in Wyoming that crosses an Indian

reservation. In an earlier point in this dispute, Pine Bar litigated in state court

under the Wyoming Private Road Statute. The Wyoming Supreme Court

concluded that Surrell Creek Road is a non-public road for purposes of that statute.

Pine Bar then sought a determination by the Bureau of Indian Affairs (“BIA”) that

Surrell Creek is a public road. Pine Bar failed to inform the agency of the earlier

decision of the Wyoming Supreme Court. The Interior Board of Indian Appeals

(“IBIA”) dismissed the appeal from a determination by the Bureau of Indian

Affairs Regional Director that the road was non-public. Pine Bar then sued in

federal district court seeking a declaration that Surrell Creek Road is a public road

because it was built pursuant to the Civilian Conservation Corps (“CCC”) Act as

well as reversal of the IBIA’s decision under the Administrative Procedure Act

(“APA”). The district court granted summary judgment to defendants, concluding

that it lacked jurisdiction because there was no valid waiver of sovereign

immunity. Pine Bar appealed.


          **
             The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.

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                                   I. Quiet Title Act

      The Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, does not apply and

therefore does not preclude a waiver of sovereign immunity. We review de novo a

grant of summary judgment for sovereign immunity. Holz v. Nenana City Pub.

Sch. Dist., 347 F.3d 1176, 1179 (9th Cir. 2003). The United States government has

sovereign immunity unless waived. Block v. North Dakota, 461 U.S. 273, 280

(1983). Where the QTA applies, it is the exclusive means of waiver. Id. If the

QTA applies, this suit cannot proceed because the QTA provides a carve-out to its

grant of jurisdiction for quiet title actions relating to Indian lands. Match-E-Be-

Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2205

(2012). The land over which Surrell Creek Road passes is Indian land.

      The Supreme Court has recently clarified that the QTA applies only to

actions in which the plaintiff claims a property interest in the land. Id. at 2206-08.

Here, Pine Bar asserts only a statutory right to use Surrell Creek Road, a right

allegedly arising from the CCC Act, not a property right. At most, Pine Bar asserts

a right of access akin to the right of the public, which Wyoming law does not

recognize as a property right. See Thomas v. Jultak, 231 P.2d 974, 982-83 (Wyo.

1951). The QTA is inapplicable and thus does not bar Pine Bar’s claims.

                          II. Administrative Procedure Act


                                           3
      The APA provides a valid waiver of sovereign immunity for Pine Bar’s

claims. The district court erred in finding otherwise. We review de novo a

determination of whether the APA applies, see Linoz v. Heckler, 800 F.2d 871, 875

(9th Cir. 1986), as well as de novo a dismissal for sovereign immunity. See Holz,

347 F.3d at 1179. The APA waives immunity broadly in suits against the

government or officials seeking review of final agency action or unreasonably

withheld agency action. See Sackett v. EPA, 132 S. Ct. 1367, 1371-72 (2012);

EEOC v. Peabody W. Coal Co., 610 F.3d 1070, 1085 (9th Cir. 2010), cert. denied,

132 S. Ct. 91 (2011). The IBIA’s dismissal of Pine Bar’s appeal constitutes final

agency action for purposes of sovereign immunity and jurisdiction under the APA.

43 C.F.R. § 4.314(b); see also 132 S. Ct. at 1372. Even if the IBIA’s dismissal was

not final agency action, the Regional BIA’s decision certainly was. We therefore

hold that sovereign immunity does not bar Pine Bar’s claims.

                                     III. Merits

      Issue preclusion bars relief for Pine Bar. Though the district court did not

reach this issue, we need not remand because the determination of whether

preclusion is available is a question of law. Miller v. Cnty. of Santa Cruz, 39 F.3d

1030, 1032 (9th Cir. 1994).




                                          4
      We must “give to a state-court judgment the same preclusive effect as would

be given that judgment under the law of the State in which the judgment was

rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)

(citing 28 U.S.C. § 1738). Under Wyoming law, there are four requirements for

issue preclusion. Univ. of Wyoming v. Gressley, 978 P.2d 1146, 1153 (Wyo.

1999). The only genuine dispute in this case is whether the issues decided by the

Wyoming Supreme Court are identical to those before the BIA. Pine Bar states in

its complaint that it seeks review of the agency action and declaratory relief for two

reasons: to avoid the easement across its property under the Wyoming Private

Road Statute and to find relief from constitutional violations. The Wyoming

Supreme Court found that Surrell Creek Road was not a public road; thus any relief

Pine Bar seeks through the defendants to declare the road public for purposes of

avoiding its obligation to provide a right of way under the Wyoming Private Road

statute is barred. Pine Bar Ranch, LLC v. Luther, 152 P.3d 1062, 1066 (Wyo.

2007). The Wyoming Supreme Court’s decision also precludes Pine Bar’s

constitutional claims, because it considered whether the CCC Act, under which

Pine Bar now brings its claim, made the road a public road and held that the road

was private. 152 P.3d at 1066 & n.5, 1068. To sustain Pine Bar’s constitutional

claims we would need to hold that the road was public. The Wyoming Supreme


                                          5
Court’s determination to the contrary therefore precludes Pine Bar’s constitutional

claims.

      Even if issue preclusion does not bar Pine Bar’s claims, the agency did not

abuse its discretion in finding that the road was not a public road. Under the APA,

this court may set aside agency decisions only if “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Latino

Issues Forum v. EPA, 558 F.3d 936, 941 (9th Cir. 2009). The IBIA and BIA’s

decisions were none of these.

      AFFIRMED.




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