No.

________

Supreme Court of the United States

Sawtooth Mountain Ranch, LLC,
Lynn Arnone, and David Boren,

Petitioners,

v.
United States Forest Service, et al.,
Respondents.
_______
On Petition for a Writ of Certiorari to the
United States Court of Appeals
For the Ninth Circuit
_______

PETITION FOR A WRIT OF CERTIORARI

MICHAEL M. BERGER*
*Counsel of Record
MANATT, PHELPS & PHILLIPS
2049 Century Park East,
Suite 1700
Los Angeles, CA 90067
(310) 312-4000
mmberger@manatt.com
Counsel for Petitioners
 -i-

QUESTIONS PRESENTED

Petitioners’ predecessors sold an easement to the

United States in order to preserve the land’s
environmental character and to permit members of
the public to use the easement as a trail. The
property was unimproved and the grantors expected
it to remain that way. When the property owners
learned that the government intended to build a
paved road instead, they sued. The trial court held
that they waited too long and granted summary
judgment to the government. That allowed it to
construct a raised and paved roadway across the
otherwise pristine landscape. The Ninth Circuit
affirmed, in an opinion raising these questions:

1. Whether equitable tolling is available for

statutes of limitation, highlighting a conflict
between Boechler, P.C. v. Commissioner, 142 S. Ct.
1493, 1500 (2022), holding that such relief is
“presumptively” available, and the earlier decisions
in United States v. Beggerly, 524 U.S. 38, 49 (1998)
and Block v. North Dakota, 461 U.S. 273, 287 (1983),
holding that the statute of limitations must be
“strictly” applied.

2. Whether the only remedy for a regulatory

taking is cash payment, a conclusion of the Ninth
Circuit that conflicts with recent decisions of this
Court, like Cedar Point Nursery v. Hassid, 141 S. Ct.
2063 (2021); Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987); Dolan v. City of Tigard, 512
U.S. 374 (1994); and Lingle v. Chevron U.S.A. Inc.,
 - ii -

544 U.S. 528 (2005), holding that takings relief is not

limited to compensation but can be declaratory or
injunctive, depending on the circumstances.

3. Whether a constitutional right can be

eliminated by a statute — in this case, whether the
“self-executing” just compensation provision of the
Fifth Amendment can be eliminated by a statute
purporting to impose an artificial time limit in which
to sue to enforce that constitutional guarantee.
 - iii -

PARTIES TO THE PROCEEDING

Petitioner Sawtooth Mountain Ranch LLC is an
Idaho Limited Liability Company. Petitioner David
Boren is an Idaho resident who is the organizer and
sole member of Sawtooth Mountain Ranch LLC.
Petitioner Lynn Arnone is an Idaho resident
married to David Boren. They are collectively
referred to in this petition as “Ranchers.”
United States Forest Service; Sawtooth National
Forest; Jim Demaagd, Forest Supervisor; Sawtooth
National Recreation Area; Kirk Flannigan, Area
Ranger; United States Department of Agriculture;
Thomas J. Vilsack, Secretary of Agriculture; Federal
Highway Administration; United States of America;
are Respondents.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Petitioner Sawtooth
Mountain Ranch LLC certifies that it has no parent
or subsidiary companies and no publicly held
corporation owns 10% or more of its stock.

RELATED CASES
 Sawtooth Mountain Ranch, et al., v. United
States Forest Service, et al., 9th Cir. No. 22-
35324, mem. opinion (Nov. 26, 2023).

 Sawtooth Mountain Ranch, et al., v. United

States Forest Service, et al., 9th Cir. No. 22-
35324, order denying rehearing (Jan. 11, 1014).

 Sawtooth Mountain Ranch, et al., v. United

States of America, et al., USDC No. 1:19-cv-
00118-CWD, memorandum decision and order
(Feb. 24, 2022).
 - iv -

TABLE OF CONTENTS

Page

PETITION FOR A WRIT OF CERTIORARI…….…1

INTRODUCTION .................................................... 1
OPINIONS BELOW................................................. 3
JURISDICTION ....................................................... 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED................................. 3
STATEMENT OF THE CASE ................................. 4
I. Petitioners own an operating cattle
ranch in Idaho ............................................. 4
II. The United States Announces That it
Intends to Construct a Paved Road
That Exceeds the Bounds of the
Easement ..................................................... 7
III. Proceedings Before the District Court ....... 8
IV. Proceedings on Appeal ................................ 9
REASONS FOR GRANTING CERTIORARI ........ 11
I. The Court Should Grant Certiorari to
Eliminate the Conflict About the
Application of Equitable Tolling of
Statutes of Limitations Created by the
Court’s Decisions in Beggerly and
Boechler ..................................................... 11
A. There is Conflict and Confusion on
How to Apply the Concept of
Equitable Tolling ............................... 13
 -v-

TABLE OF CONTENTS (CONTINUED)

Page

B. Boechler Demonstrates a Superior

Methodology for Dealing with
Quiet Title Cases. Beggerly Should
Either be Overruled or at Least
Properly Cabined Where it Can do
No Harm. ............................................ 16
II. This Court Should Grant Certiorari to
Clarify That the Remedy for
Government Action that Violates the
Fifth Amendment’s “Takings” Clause
Can be Either Compensation or
Declaratory or Injunctive Relief,
Depending on What it Takes to
Vindicate the Constitution in the
Circumstances ........................................... 18
III. The Court Should Grant Certiorari to
Ensure that the Constitution Prevails
Over Statutes ............................................ 20
A. The Constitution is paramount ......... 21
B. The Just Compensation Clause is a
Constitutional Guarantee that This
Court has held to be both Self-
Executing and Irrevocable ................. 22
CONCLUSION ....................................................... 26
 - vi -

TABLE OF CONTENTS (CONTINUED)

Page

APPENDIX

Court of Appeals opinion in Sawtooth

Mountain Ranch v. United States
(Nov. 16, 2023) ………..……….…..….. App. 1

Court of Appeals Order Denying

Rehearing (Jan. 11, 2024)….........…. App. 8

District Court Memorandum Decision

and Order (Feb. 24, 2022)…..…….... App. 10
 vii

TABLE OF AUTHORITIES

Page

CASES
Agins v. City of Tiburon,
447 U.S. 255 (1980)........................................... 18
Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006)..................................1, 11, 12
Arkansas Game and Fish Comm'n v. United
States,
133 S.Ct. 511 (2012).......................................... 24
Babbitt v. Youpee,
519 U.S. 234 (1997)......................................19, 24
Barber v. Charter Township,
31 F.4th 382 (6th Cir. 2022) ............................. 20
Block v. North Dakota,
461 U.S. 273 (1983)......................................10, 12
Boechler, P.C. v. Commissioner,
142 S. Ct. 1493 (2022).................. 2, 10, 11, 12, 16
Brown-Forman Distillers Corp. v. New York
State Liquor Auth.,
476 U.S. 573 (1986)........................................... 25
Cedar Point Nursery v. Hassid,
141 S. Ct. 2063 (2021)....................................... 19
Cedar Point Nursery v. Hassid,
594 U.S. 139 (2021)......................................15, 20
Dolan v. City of Tigard,
512 U.S. 374 (1994)......................................19, 24
 viii

TABLE OF AUTHORITIES
(continued)
Page
Eastern Enterprises v. Apfel,
524 U.S. 498 (1998)......................................19, 24
Entick v. Carrington,
95 Eng. Rep. 807 (C.P. 1765) ............................ 22
Ewert v. Bluejacket,
259 U.S. 129 (1922)........................................... 25
First English Evangelical Lutheran Church
v. County of Los Angeles,
482 U.S. 304 (1987)................................18, 23, 24
Hamer v. Neighborhood Hous. Servs. of
Chicago,
138 S. Ct. 13 (2017)........................................... 11
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011)........................................... 11
Horne v. Department of Agriculture,
135 S.Ct. 2419 (2015)........................................ 24
Jacobs v. United States,
290 U.S. 13 (1933)........................................20, 22
Jett v. Dallas Independent School Dist.,
491 U.S. 701 (1989)........................................... 17
Knick v. Township of Scott,
588 U.S. 180 (2019)......................................23, 24
Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005)........................................... 19
Marbury v. Madison,
5 U.S. 137 (1803)....................................21, 22, 25
 ix

TABLE OF AUTHORITIES
(continued)
Page
Monongahela Nav. Co. v. United States,
148 U.S. at 324.............................................22, 24
Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987)......................................19, 24
Olson v. United States,
292 U.S. 246 (1934)........................................... 22
Palazzolo v. Rhode Island,
533 U.S. 606 (2001)......................................25, 26
Phelps v. United States,
274 U.S. 341 (1927)........................................... 20
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010)........................................... 11
Reeves v. Sanderson Plumbing Products,
Inc.,
530 U.S. 133 (2000)........................................... 17
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013)........................................... 11
United States v. Beggerly,
524 U.S. 38 (1998)...................... 10, 11, 12, 13, 16
United States v. Dickinson,
331 U.S. 745 (1947)........................................... 23
United States v. Jones,
132 S.Ct. 945 (2012).......................................... 22
United States v. Lee,
106 U.S. 196 (1882)........................................... 26
United States v. Wong,
575 U.S. 402 (2015)..................................1, 11, 16
 x

TABLE OF AUTHORITIES
(continued)
Page
Wilkins v. United States,
598 U.S. 152 (2023).............. 1, 8, 9, 10, 11, 12, 13
STATUTES
28 U.S.C. § 1254(1)................................................... 3
28 U.S.C. § 2409a ..................................................... 1
Just Compensation Clause ...............................22, 23
Quiet Title Act ............................... 1, 9, 11, 13, 21, 25
Sawtooth National Recreation Area (SNRA)
Act, 16 U.S.C. § 460aa et seq. .................4, 5, 6, 8
CONSTITUTIONS
U.S. Constitution, Fifth Amendment ......2, 3, 18, 19,
21, 22, 23, 24, 26
U.S. Constitution, Fourteenth Amendment ......3, 21
OTHER AUTHORITIES
https://www.fs.fed.us/t-
d/pubs/pdfpubs/pdf07232806/
pdf07232806dpi72.pdf ........................................ 5
Sawtooth National Forest, Schedule of
Proposed Actions, January 2014 ........................ 7
 -1-

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari
to review a judgment of the Ninth Circuit Court of
Appeals.

INTRODUCTION
The law regarding statutes of limitation is in
disarray. This is due in large part to a series of old
cases routinely treating such statutes as
“jurisdictional.” That was taken to mean that failure
to file suit within the stated period would deprive
the courts of jurisdiction to consider the suit. Many
of those older decisions were made with little
thought or consideration. Indeed, this Court has
referred to them as “drive-by jurisdictional rulings
that should be accorded no precedential effect on the
question whether the federal court had authority to
adjudicate the claim in suit.” Wilkins v. United
States, 598 U.S. 152, 160-61 (2023) (quoting
Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006)
(emphasis added)).
The Court probably thought it had settled the
issue when it concluded “that most time bars are not
jurisdictional.” United States v. Wong, 575 U.S. 402,
410 (2015) (emphasis added). In the specific context
at bar, the Court held in its last Term that the
statute of limitations in the Quiet Title Act (QTA),
28 U.S.C. §§ 2409a, was not jurisdictional. Wilkins,
598 U.S. at 159.
But lower courts like the Ninth Circuit Court of
Appeals apparently refuse to accept that. In this
case, for example, the Ninth Circuit applied a
“strict” construction to the statute of limitations
 -2-

that, in effect, applied it as a jurisdictional statute

through the back door.
Worse than that, the Ninth Circuit ignored this
Court’s teaching in Boechler, P.C. v. Commissioner,
142 S. Ct. 1493, 1500 (2022), where the Court was
clear that “nonjurisdictional limitations periods are
presumptively subject to equitable tolling.”
(Emphasis added.) Instead of considering equitable
tolling, the Ninth Circuit rigidly applied the statute
of limitations.
Certiorari is needed to clarify the proper
application of statutes of limitation and the impact
on them of equitable tolling.
But there is more. The Ninth Circuit also created
further uncertainty in two aspects of takings law:
 First, the court assumed that the only
remedy for a taking is compensation, so that
any request for either declaratory or
injunctive relief is not available. That
conflicts with multiple decisions of this Court.
 Second, the court held that a statute can undo
a constitutional guarantee. It did this by
holding that the “self-executing” just
compensation guarantee of the Fifth
Amendment can be eliminated by a limitation
statute passed by Congress. Congress lacks
the authority to override the Constitution.
The upshot is that, despite this Court’s efforts to
bring some rationality to the standards governing
both takings law and statutes of limitations, the law
applied in lower courts is confused. This case
 -3-

provides an appropriate platform to set matters

straight.

OPINIONS BELOW
The Ninth Circuit Court of Appeals’ unpublished
opinion is reproduced at App.1. The Ninth Circuit’s
unpublished Order denying rehearing is reproduced
at App. 8. The District Court’s unpublished
Amended Judgment is reproduced at App. 10.

JURISDICTION
The Ninth Circuit Court of Appeals filed its
opinion on November 16, 2023. The timely petition
for rehearing was denied on January 11, 2024. This
Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution provides: “…. nor shall private
property be taken for public use without just
compensation.”
The Fourteenth Amendment to the United States
Constitution provides: “No State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.”
 -4-

STATEMENT OF THE CASE

I. Petitioners own an operating cattle ranch
in Idaho.
Petitioners (Ranchers) own 1781.07 acres known
as the Sawtooth Mountain Ranch, located within the
Sawtooth National Recreation Area in Idaho. (ER-
78.) They acquired the Ranch in 2016 from the Piva
family, which had operated a cattle ranch on the
property for many years. (ER-18.) Ranchers
continued that use. (ER-78.)
The Piva family had allowed snowmobile use of a
dirt path across the property. (ER-78.) In 2005, that
use was formalized in an easement granted to the
United States in a Conservation Easement Deed.
(ER-79.)1 The dirt path meets the definition of an
esthetic trail as defined in the Forest Service Trail
Construction and Maintenance Notebook:
“No discussion of trails is complete without
attention to esthetics. We’re talking scenic beauty
here. Pleasing to the eye. The task is simple. An
esthetically functional trail is one that fits the

1 Since the equipment usage on the Easement’s trail was

limited to snowmobiles and snow grooming equipment, it
raised no concern about equipment, machinery or motorized
vehicles that would permanently alter or damage the natural
landscape or scenic beauty of the property because the whole
point of the Easement Deed was to preserve the Conservation
Values of the Sawtooth National Recreation Area (SNRA) Act.
(ER-224.)
 -5-

setting. It lies lightly on the land and often looks like

it just happened.” 2
The purpose of the Conservation Easement Deed
was to maintain the statutory values of the SNRA,
16 U.S.C. § 460aa et seq., so as to prevent “any use
of the Property that will significantly impair or
interfere with the Conservation Values of the
Property,” and to “confine the use of the Property to
such activities as are consistent with the purposes of
this Easement.” (ER-79.) Plans to transform the
existing trail from a natural trail that “lies lightly on
the land” to a highly developed gravel commuter
route are antithetical to the preservation of the
Conservation Values in both the Easement Deed and
the SNRA Act. The Easement itself was created and
defined in Part VI, section K of the Conservation
Deed as follows:
“Nothing herein contained shall be
construed as affording the public access
to any portion of the Property except the
United States is hereby granted the
right to permit public use of the
following:
(1) A strip of land to be utilized as a trail
in that portion of the Easement area
within Secs. 9,15, and 16, as shown on
Exhibit D, attached hereto and made a
part hereof. The total right-of-way
width of the trail easement shall be 30
feet. The following uses are allowed on

2https://www.fs.fed.us/t-d/pubs/pdfpubs/pdf07232806/
pdf07232806dpi72.pdf. (Emphasis added.)
 -6-

the trail: snowmobile, snow grooming

equipment, bicycle, horse, and foot
travel. The Grantee [United States] may
erect appropriate signs to delineate the
public use areas where needed.
(2) A strip of land along Velley Creek, to
be utilized for foot travel only, extending
from the centerline of Valley Creek to a
point parallel and being 20 feet distant
beyond each mean high water line of
Valley Creek. The Grantee may erect
appropriate signs to delineate the public
use areas where needed.” (Emphasis
added.) (ER-79-80.)
Absent from the easement is any language
permitting construction activities or permanent
placement of any substance on the “strip of land.”
The easement was granted as part of a document
intended to preserve the natural beauty of the area,
in line with the intent of the SNRA Act, 16 U.S.C.
§ 460aa et seq. (ER-79.) That statute’s general
purpose is “to assure the preservation and protection
of the natural, scenic, historic, pastoral, and fish and
wildlife values and to provide for the enhancement
of the recreational values associated therewith ….”
16 U.S.C. § 460aa. The Conservation Deed states
that members of the Piva Family (i.e., the grantors)
“intend that the Conservation Values of the Property
be preserved and maintained by the continuation of
land use patterns, including those currently existing,
that do not significantly impair or interfere with
those values.” (ER-84, emphasis added.) As the
parties agreed in the Conservation Deed:
 -7-

“It is the purpose of this Easement to

assure that the Property’s scenic,
natural, historic, pastoral, and fish and
wildlife values … be maintained forever
and to prevent any use of the Property
that will significantly impair or
interfere with the Conservation Values
of the Property.” (ER-141.)
Thus, looking within the four corners of the
Conservation Deed, and construing the document as
a whole, it is apparent that that document dealt with
more than simply granting the government an
easement for a trail. The deed’s larger purpose was
to preserve the Property for the Conservation Values
listed in the preamble, i.e., “scenic, natural, historic,
pastoral, and fish and wildlife values.” (ER-85, 140.)
These Conservation Values do not include public
recreation. The intent was to maintain and preserve
the Property as it was in 2005. (ER-84, 141.)
II. The United States Announces That it
Intends to Construct a Paved Road That
Exceeds the Bounds of the Easement.
In early 2014, the government announced its
intention to create an engineered commuter route
over the rustic trail on the easement on Sawtooth
Mountain Ranch. The commuter route would
provide alternative access between the City of
Stanley and Redfish Lake, then accessible only via
Highway 75. The government’s expansion plan was
summarized in a “proposed action” that was
published in the Sawtooth National Forest’s
Schedule of Proposed Actions in January 2014. (ER-
80.) It was at this time that the government asserted
 -8-

that the Conservation Deed allowed construction

across the Ranch despite the numerous provisions in
the deed precluding construction and promoting
conservation and preservation of the existing use.
That was confirmed in 2018 when the government
formally approved the project. (ER-82.)
III. Proceedings Before the District Court.
Upon realizing the government’s intention to do
construction work far beyond what the easement
authorized, Ranchers sued to quiet their title to the
land. (ER-61.) The complaint demonstrated the way
in which the government’s current plan far exceeded
anything allowed by the easement. Had the
government actually wanted this extensive ability to
change the landscape — albeit in contravention to
the intent and wording of the SNRA Act — the time
to effect that was in the words of the Easement deed
themselves. But those words — drafted by the
government — do not authorize anything but the
passive uses that had gone on theretofore. Thus,
Ranchers’ lawsuit.
The district court, with little analysis, decided
that it lacked jurisdiction over the case because the
complaint was purportedly filed too late (ER-5, 20)
and entered summary judgment in favor of the
government (ER-23) based on the jurisdictional
nature of the statute of limitations. But “too late”
was exactly one of the key factual issues in this case
at the district court, i.e., did the statute of
limitations begin to runat the time of the creation of
the easement for a dirt path or at the time the
government made concrete its plans to overburden
the easement with a paved commuter route. The
 -9-

district court deprived the Ranchers of an

opportunity to argue the facts on this critical issue.
IV. Proceedings on Appeal.
The case was briefed and argued in the Ninth
Circuit at the same time that this Court was
considering the nature of the QTA’s statute of
limitations in Wilkins. Wilkins was decided before
oral argument in the Ninth Circuit. That should
have eased the Ninth Circuit’s task, as the
decision that the QTA statute of limitations was
not jurisdictional meant that the district court
had erred fundamentally.
Instead of simply reversing and remanding for
a decision unsullied by that plainly erroneous
“jurisdictional” determination, the Ninth Circuit
decided to affirm anyway. It relied on its own
decision in Wilkins (App. p. 2), the one that the
Ninth Circuit knew this Court had reversed on
certiorari, and concluded that the Circuit’s rule
was that the statute of limitations could not be
waived and was thus an active part of the case
even though the government had not raised it as
an affirmative defense.
The Ninth Circuit then purported to hold what
was essentially an evidentiary determination (on
review of a dismissal as a matter of jurisdiction)
and conclude that suit was filed too late even if
the statute of limitations was not jurisdictional.
At most, that “evidence” was in conflict. As
noted above, the easement deed that granted the
government its interest was made pursuant to a
statute intended to maintain the land in pristine
 - 10 -

condition, placing more restrictions on it than had

existed before.
Moreover, the grantors of that easement
believed that the right they granted the public to
use the easement “as a trail” would be to continue
the use of the undeveloped trail that had been in
existence. In their view, the use they had granted
members of the public as a matter of grace would
be transferred to the government for use as a
matter of right — but nothing about the use would
change.
The Ninth Circuit chose to give conclusive
weight to a letter written about the time of the
easement’s creation by a member of the Piva
family, but one who had no interest in the land at
that time, purporting to record some
conversations had with the government about
how it might plan to use the easement in the
future. But, as noted above, nothing formal was
done (or even announced) by the government until
years later. Instead of returning the matter for
trial of this critical issue, the Ninth Circuit took it
upon itself to decide it, giving conclusive weight to
a letter by a non-owner of the property that was
contradicted by the allegations of the complaint
and the words of the easement deed.
The Ninth Circuit justified its action legally by
referencing Beggerly and Block and their
conclusions that the QTA’s statute of limitations
must be “strictly” applied.
That reading of Beggerly and Block did an end-
run around Boechler and Wilkins, essentially
reinstating the QTA’s limitation as jurisdictional.
 - 11 -

This Court’s review is essential to establish the

primacy of Wilkins’s holding that the QTA’s
statute of limitations is not jurisdictional and
that Boechler’s presumptive application of
equitable tolling must be applied. The older
decisions in Beggerly and Block must be restricted
in light of the Court’s recent decisions.

REASONS FOR GRANTING CERTIORARI

I. The Court Should Grant Certiorari to
Eliminate the Conflict About the
Application of Equitable Tolling of
Statutes of Limitations Created by the
Court’s Decisions in Beggerly and
Boechler.
This Court has addressed the question of
equitable tolling recently and has produced results
that are contradictory and sow confusion in the
lower courts. Clarification can only come from this
Court.
In United States v. Beggerly, 524 U.S. 38, 49
(1998), the Court held — at a time when statutes of
limitation were considered to be jurisdictional, i.e.,
matters that deprived courts of jurisdiction once the
statutory period had expired — that the QTA’s 12-
year limitation period must be “strictly” construed
and applied.
Since then, the Court concluded a years-long
process during which it finally concluded in Wilkins
v. United States, 598 U.S. 152 (2023) that statutes of
 - 12 -

limitation in general, and the QTA statute in

particular, were not jurisdictional.3
The Ninth Circuit held here that the rigid rule of
Beggarly (that used to be called “jurisdictional”) had
to prevail here, and then joined its obeisance to
Beggarly with another, even older, case: Block v.
North Dakota, 461 U.S. 273, 287 (1983). It relied on
Block for the proposition that the QTA’s statute of
limitations “must be strictly observed.” (App. p. 5)
But Block’s statute of limitations discussion has
been disowned by this Court because Block did not
directly consider whether the QTA’s statute of
limitations was jurisdictional. Rather, it made one
passing reference in the conclusion of its opinion,
461 U.S. at 292, without any analysis of the issue.
The Court itself has “described such unrefined
dispositions as drive-by jurisdictional rulings that
should be accorded no precedential effect on the
question whether the federal court had authority to
adjudicate the claim in suit.” Wilkins, 598 U.S. at
160-61 (quoting Arbaugh v. Y&H Corp., 546 U.S.
500, 511 (2006) (emphasis added)). Yet the Ninth
Circuit held that “drive-by jurisdictional ruling” to
be controlling.
In the final decision before Wilkins, Boechler,
P.C. v. Commissioner, 142 S. Ct. 1493, 1500 (2022),

3See Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006); Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 164-65 (2010);
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435
(2011); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013); United States v. Wong, 575 U.S. 402, 410 (2015); Hamer
v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 21
(2017); Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1500
(2022); Wilkins v. United States, 598 U.S. 152 (2023).
 - 13 -

the Court added another layer of protection against

the harsh application of statutes of limitation by
making it clear that “nonjurisdictional limitations
periods are presumptively subject to equitable
tolling.” (Emphasis added.) Thus, the statute at
issue here should be “presumptively subject to
equitable tolling” under Boechler.
The conflict and confusion exist because, even
though Boechler was decided nearly a quarter-
century after Beggerly, the Ninth Circuit in this case
refused to apply Boechler’s presumption and
concluded that the old Beggerly decision absolutely
forbade equitable tolling. In effect, the Ninth Circuit
reinstated the “jurisdictional” limitations rule
through the back door. The conflict between these
two approaches can only be resolved by this Court.
A. There is Conflict and Confusion on
How to Apply the Concept of
Equitable Tolling.
The Ninth Circuit’s decision in this case vividly
demonstrates the confusion wrought by the Court’s
existing decisions on the interface between quiet
title cases and the application of equitable tolling.
One would have thought the issue was resolved
in Wilkins, the most recent decision in this line and
one dealing directly with the precise statute of
limitations involved here, i.e., the one in the QTA.
There, the Court held that the QTA statute of
limitations was merely a “mundane” claim
processing rule that was not “jurisdictional.” 598
U.S. at 159.
 - 14 -

This was a classic case for the application of

equitable precepts. What the Ranchers and their
predecessors believed about the government’s
interest in the easement needs to begin with the
words of the easement deed. As stated in the
document creating the easement, both the
Government and the property owners “desire to
expand the restrictions imposed by the Original
Easement on the property through the conveyance
of additional rights to the United States … because
the Property contains significant scenic, natural,
historic, pastoral, and fish and wildlife values
[collectively referred to as Conservation Values] ….”
(ER-140, emphasis added). The preservation intent
was clearly expressed in terms of maintaining the
status quo:
“WHEREAS, Grantors intend that
the Conservation Values of the
Property be preserved and
maintained by the continuation of
land use patterns, including those
currently existing, so as not
significantly to impair or interfere
with those values; and
“WHEREAS Grantors further
intend, as owners of the Property,
to convey to the United States the
right to preserve and protect the
Conservation Values of the
Property in perpetuity ….” (ER-
141, emphasis added.)
* * *
 - 15 -

“It is the purpose of this

Easement to assure that the
Property’s scenic, natural, historic,
pastoral, and fish and wildlife
values … be maintained forever
and to prevent any use of the
Property that will significantly
impair or interfere with the
Conservation Values of the
Property.” (ER-141, emphasis
added.)
Equitably, the beginning of the statute of
limitations needs to account for the clear wording of
the deed by which the government obtained its title
as well as the formal announcement of its intent to
build a paved and raised roadbed to replace the
natural, and almost invisible, dirt path that had
existed for years. Such a decision could lead to the
equitable tolling of the statute of limitations. But the
Ninth Circuit took it upon itself to eliminate
equitable considerations and reinstate the rigid
statutory period that this Court had just held
needed to be subject to equitable tolling.

The decision here needs to blend with the Court’s

decisions generally protecting the rights of private
property owners. The Court recently summarized
that history this way:

“As John Adams tersely put it,

[p]roperty must be secured, or
liberty cannot exist. Discourses on
Davila, in 6 Works of John Adams
280 (C. Adams ed. 1851). This
 - 16 -

Court agrees, having noted that

protection of property rights is
necessary to preserve freedom and
empowers persons to shape and to
plan their own destiny in a world
where governments are always
eager to do so for them.” Cedar
Point Nursery v. Hassid, 594 U.S.
139, 147 (2021) (internal
punctuation simplified).

B. Boechler Demonstrates a Superior

Methodology for Dealing with Quiet
Title Cases. Beggerly Should Either
be Overruled or at Least Properly
Cabined Where it Can do No Harm.
Common sense should prevail over rigidity.
Essentially, that is the rule established by Boechler.
Boechler took the non-jurisdictional determinations
and carried them a step further in order to provide
protection to the rights of private property owners:
they are subject to further examination to determine
whether equitable precepts provide additional
reasons to avoid application of an otherwise
applicable statute of limitations. The reason for
doing so, of course, simply expands on the Court’s
rationale for doing away with the so-called
jurisdictional nature of statutes of limitations. Rigid
rule applications had unintended “harsh
consequences” for individuals. See Wong, 575 U.S. at
409.
The Ninth Circuit arrogated that determination
to itself, when it decided that it could examine all the
facts (at least all that had surfaced during the lower
 - 17 -

court’s examination of legal issues — issues largely

colored by the “jurisdictional” determination) and
decide issues that otherwise should have gone to
trial.
Aside from the other issues presented by this
case, the Ninth Circuit’s determination that it could
wrench this factual decision from a jury and
determine it on its own is enough to warrant this
Court’s review. As this Court explained:
“Once those officials who have the power to
make official policy on a particular issue
have been identified, it is for the jury to
determine whether their decisions have
caused the deprivation of rights at issue.” Jett
v. Dallas Independent School Dist., 491 U.S.
701, 737 (1989) (emphasis added).
What the Ninth Circuit ignored was the bedrock
this Court laid down in Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 150-151
(2000):
“the court must draw all reasonable inferences
in favor of the nonmoving party, and it may
not make credibility determinations or
weigh the evidence. [Citations.] ‘Credibility
determinations, the weighing of the evidence,
and the drawing of legitimate inferences from
the facts are jury functions, not those of a
judge.’ [Citations.]” (Emphasis added.)
And yet, that is precisely what the Ninth Circuit
did to justify its affirmance.
 - 18 -

II. This Court Should Grant Certiorari to

Clarify That the Remedy for Government
Action that Violates the Fifth
Amendment’s “Takings” Clause Can be
Either Compensation or Declaratory or
Injunctive Relief, Depending on What it
Takes to Vindicate the Constitution in the
Circumstances.
It took this Court the better part of a decade to
rid the country of California’s erroneous notion that
the only remedy for the taking of property within the
meaning of the Fifth Amendment was invalidation
of the offending regulation. Nothing more. No
compensation for any taking of property, whether
permanent or temporary. Compare the decisions
beginning with Agins v. City of Tiburon, 447 U.S.
255 (1980) and ending with First English
Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304 (1987).4 First English held
that, when the Fifth Amendment spoke of “just
compensation,” then those whose property was
taken by government action could recover a
monetary judgment.
In this case, the Ninth Circuit took the holding in
First English to mean that the only remedy for a
regulatory taking in violation of the Fifth
Amendment was compensation. Thus it concluded
that, because the Ranchers’ complaint had not
sought compensation, but only invalidation of the
agency’s action, it could have no claim for Fifth
Amendment relief at all. (App. p. 6)

4 That history is recounted in First English, 482 U.S. at 311.

 - 19 -

The Ninth Circuit’s action goes beyond mere

“error.” It is a bowdlerization of the First English
decision. Where First English expanded the relief
available under the Fifth Amendment, the Ninth
Circuit’s decision eliminates the available relief, in
conflict with settled decisions of this Court.
Thus, for example, in one of the Court’s most
recent takings cases, the issue was whether a
California regulation authorizing labor unions to
“take access” to farms violated the takings clause.
The complaint claimed the regulation caused a
taking but sought no monetary relief. It sought only
to invalidate the regulation as a Fifth Amendment
violation. And that is what the Court did, after
concluding that the regulation effected a taking of
private property without compensation. As no
compensation was made, the regulation was invalid
under the Fifth Amendment and the Court struck it
down. Cedar Point Nursery v. Hassid, 141 S. Ct.
2063 (2021).
The same was true of Nollan v. California
Coastal Comm’n, 483 U.S. 825 (1987). There, the
issue was the validity under the Fifth Amendment
of conditions that the California Coastal
Commission had placed on issuance of a
development permit. Those conditions mandated
that the applicants provide access to strangers
across their property. The Court held that the
conditions violated the takings clause and
invalidated the conditions. See also Dolan v. City of
Tigard, 512 U.S. 374 (1994) (conditions invalidated
as taking); Lingle v. Chevron U.S.A. Inc., 544 U.S.
528 (2005) (legislation challenged as taking; remedy
sought was declaratory relief and injunction);
 - 20 -

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)

(same re economic regulation); Babbitt v. Youpee,
519 U.S. 234, 234–235 (1997) (same re native
American property/probate regulation).
Thus, this Court’s recent decisions are clear that
a property owner may seek declaratory and
injunctive relief — in addition to or instead of
compensation — when government action has
worked a Fifth Amendment taking of property,
depending on what remedy is needed in the
circumstances.
The Ninth Circuit’s decision conflicts with this
Court’s plain holdings. It also conflicts with other
Circuit court decisions. See, e.g., Barber v. Charter
Township, 31 F.4th 382, 389 (6th Cir. 2022)
(authorizing injunctive relief and relying on Cedar
Point).
III. The Court Should Grant Certiorari to
Ensure that the Constitution Prevails
Over Statutes.
Under our system of government, the
Constitution is preeminent. It cannot be undercut by
statutes. The issue here is whether a constitutional
provision held to be “self-executing,” i.e., requiring
no Congressional action to enliven it, can be
restricted or eliminated by a mere statute. In brief,
it cannot.
Because the right to just compensation arises
directly from the Constitution, Congress cannot
abrogate this right by statute. As the Court put it in
Jacobs v. United States, 290 U.S. 13, 17 (1933), “the
right to just compensation could not be taken away
 - 21 -

by statute or be qualified ….” In Jacobs, the question

was whether the failure of Congress to provide for
interest on awards of just compensation could
override the general Constitutional command for
payment of compensation for takings, as interest is
part of just compensation. The Court answered
curtly that it could not, because the Constitution
prevailed in protecting the rights it guarantees. In
other words, “acts of Congress are to be construed
and applied in harmony with and not to thwart the
purpose of the Constitution.” Phelps v. United
States, 274 U.S. 341, 344 (1927).
A. The Constitution is paramount.
The Constitution is our paramount authority.
Marbury v. Madison, 5 U.S. 137, 177 (1803):
“The powers of the legislature are
defined, and limited; and that those
limits may not be mistaken, or
forgotten, the constitution is written.
[¶] …. Certainly all those who have
framed written constitutions
contemplate them as forming the
fundamental and paramount law of the
nation, and consequently the theory of
every such government must be, that
an act of the legislature, repugnant to
the constitution, is void.” Id. at 176-77
(emphasis added).
The Constitution — in this case, particularly the
5th and 14th Amendments — is thus supreme
against legislative reduction or evasion. The district
court permitted a statute to condone the
government’s overburdening of the easement in a
 - 22 -

way that took an interest in Ranchers’ property in

violation of the constitution. And the Ninth Circuit
affirmed. To the extent that any legislation, e.g.
under the QTA, 28 U.S.C. § 2409a, can be read as
restricting or eliminating the rights under
constitutional guarantees, that legislation is
“repugnant to the constitution [and] void.”
As Chief Justice Marshall put it, “If then the
courts are to regard the constitution; and the
constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary
act, must govern the case to which they both apply.”
Marbury, 5 U.S. at 177-78.
B. The Just Compensation Clause is a
Constitutional Guarantee that This
Court has held to be both Self-
Executing and Irrevocable. It Does
Not Depend Upon Legislative Grace.
Owners’ rights to be secure in their property is
one of the primary objects for which the national
government was formed. In United States v. Jones,
132 S.Ct. 945, 949 (2012), the Court recalled Lord
Camden's holding in Entick v. Carrington, 95 Eng.
Rep. 807 (C.P. 1765), “The great end for which men
entered into society was to secure their property.”
This Court explained, “In any society the fullness
and sufficiency of the securities which surround the
individual in use and enjoyment of his property
constitute one of the most certain tests of the
character and value of government.” Monongahela
Nav. Co. v. United States, 148 U.S. 312, 324
(followed by Olson v. United States, 292 U.S. 246,
254 (1934)).
 - 23 -

This Court held the Fifth Amendment guarantee

of compensation does not “depend on the good graces
of Congress,” explaining:
“[A] landowner is entitled to bring an action
in inverse condemnation as a result of the
“self-executing character of the
constitutional provision with respect to
compensation”…. As noted in Justice
Brennan’s dissent in San Diego Gas, it has
been established at least since Jacobs [v.
United States, 290 U.S. 13 (1933)] that
claims for just compensation are grounded
in the Constitution itself.” First English
Evangelical Lutheran Church v. Los
Angeles, 482 U.S. 304, 315-16 (1987).
The Court reiterated recently that the Just
Compensation Clause is “self-executing.” Knick v.
Township of Scott, 588 U.S. 180, 192 (2019).
In First English, the Solicitor General (as amicus
curiae) urged that the Fifth Amendment was merely
“a limitation on the power of the Government to act,
not a remedial provision.” (See 482 U.S. at 316, n.9.)
The Court rejected that argument, concluding that
it was the Constitution itself that both established
the right and dictated the remedy. Id.
Indeed, even before San Diego Gas and First
English, this Court found:
“whether the theory … be that there was a
taking under the Fifth Amendment, and that
therefore the Tucker Act may be invoked
because it is a claim founded upon the
Constitution, or that there was an implied
 - 24 -

promise by the Government to pay for it, is

immaterial. In either event, the claim traces
back to the prohibition of the Fifth
Amendment….” United States v. Dickinson,
331 U.S. 745, 748 (1947).
The Fifth Amendment “prevents the public from
loading upon one individual more than his just share
of the burdens of government, and says that when
he surrenders to the public something more and
different from that which is exacted from other
members of the public, a full and just equivalent
shall be returned to him.” Monongahela, 148 U.S. at
325.
When the government takes an owner's property
the government has a “categorical duty” to comply
with the Fifth Amendment. See Arkansas Game and
Fish Comm'n v. United States, 133 S.Ct. 511, 518
(2012) and Horne v. Department of Agriculture, 135
S.Ct. 2419, 2428 (2015). Although the general
remedy may be compensation, there are times (as
here and in cases like Nollan, Dolan, Eastern
Enterprises, and Babbitt noted above) when the
appropriate remedy is invalidation or declaratory
relief. The federal government may not escape this
“categorical duty” by creating a statutory scheme
that truncates the Constitutionally guaranteed
compensation when property is taken. Thus, in First
English, this Court held that California had
“truncated” the Fifth Amendment’s rule by refusing
compensation for any part of the time that the
regulation precluded use of the property. 482 U.S. at
317. So, here, the Ninth Circuit “truncated” the rule
by precluding injunctive or declaratory relief when
needed.
 - 25 -

More than that, the Court recently held that the

duty to pay just compensation when government
takes private property is “irrevocable.” Knick, 588
U.S. at 192. A right that is both Constitutional and
“irrevocable” cannot be eliminated by a statute
purporting to place a time restriction on claiming
that remedy.
In a somewhat different context, the Court had
no trouble in explaining the priority of the
Constitution over lower forms of regulation, noting
that “[t]he protections afforded by the Commerce
Clause cannot be made to depend on the good grace
of a state agency.” Brown-Forman Distillers Corp. v.
New York State Liquor Auth., 476 U.S. 573, 583
(1986). Governmental “grace” cannot overcome the
Constitution.
To be sure, statutes of limitation are valid —
when confined to their proper spaces. Thus, to the
extent that the QTA deals with issues of less than
constitutional dimension, it may freely establish a
limitation period within which to file suit. However,
such statutory limitations would be, as Marbury put
it, “repugnant to the constitution [and] void” to the
extent that they purported to impact
constitutionally protected rights. 5 U.S. at 176-77.
Even if we were dealing only with a federal
statute, rather than a federal Constitutional right,
the result would be the same. Under federal law, an
act occurring in violation of a statutory mandate is
void ab initio and not subject to a statute of
limitations when it is challenged. Ewert v.
Bluejacket, 259 U.S. 129, 138 (1922).
As this Court put it bluntly in a more recent
 - 26 -

regulatory taking case, the law cannot “put an

expiration date on the Takings Clause.” Palazzolo v.
Rhode Island, 533 U.S. 606, 627 (2001). Palazzolo
dealt with the ability of a property owner to sue for
a regulatory taking when the challenged regulation
was enacted before the plaintiff acquired title to the
property. The Court held that it would violate the
Constitution to hold that such a happenstance of
timing could prevent an injured property owner from
filing suit. Hence, “no expiration date” on the
Takings Clause.
The same is true here, where Ranchers acquired
the property after the easement in question was
created. As in Palazzolo, they retain the right to sue.
See also United States v. Lee, 106 U.S. 196 (1882),
where property wrongfully taken in 1862 was
restored to its rightful owners by this Court in 1882
— twenty years later.
CONCLUSION
The Ninth Circuit has once again ignored
Constitutional dictates designed to protect private
property owners. Its brief opinion found three
different ways to violate the Fifth Amendment. This
must stop. The petition for certiorari should be
granted.

MICHAEL M. BERGER*
*Counsel of Record
MANATT, PHELPS & PHILLIPS
2049 Century Park East, Suite 1700
Los Angeles, CA 90067
(310) 312-4000
mmberger@manatt.com
APPENDIX
 i

APPENDIX TABLE OF CONTENTS

Page
Court of Appeals opinion in Sawtooth Mountain
Ranch v. United States (Nov. 16, 2023) ........... App. 1
Court of Appeals Order Denying Rehearing
(Jan. 11, 2024) .................................................. App. 8
District Court Memorandum Decision and Order
(Feb. 24, 2022) ................................................ App. 10
 App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAWTOOTH MOUNTAIN No. 22-35324

RANCH, LLC; LYNN ARNONE; D.C. No.
DAVID BOREN,
1:19-cv-00118-CWD
Plaintiffs-Appellants,
MEMORANDUM*
v. (Filed Nov. 16, 2023)
UNITED STATES FOREST
SERVICE; SAWTOOTH
NATIONAL FOREST; JIM
DEMAAGD, Forest Supervisor;
SAWTOOTH NATIONAL
RECREATION AREA; KIRK
FLANNIGAN, Area Ranger;
UNITED STATES DEPARTMENT
OF AGRICULTURE; THOMAS J.
VILSACK, Secretary of Agriculture;
FEDERAL HIGHWAY
ADMINISTRATION; UNITED
STATES OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.
 App. 2

Argued and Submitted October 5, 2023

Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges,
and HINKLE, District Judge.
Sawtooth Mountain Ranch, LLC, Lynn Arnone,
and David Boren (collectively, the “Ranch”) appeal the
district court’s order granting summary judgment in
favor of the Defendants (hereafter, the “USFS”). We
have jurisdiction under 28 U.S.C. § 1291, and we af-
firm.
1. The Ranch’s claims brought under the Quiet
Title Act (“QTA”) are untimely under the QTA’s
twelve-year statute of limitations. 28 U.S.C.
§ 2409a(g). A quiet title claim filed under the QTA
accrues when the plaintiff or its predecessors-in-inter-
est “knew or should have known of the claim of the
United States.” Id. Although the QTA’s statute of lim-
itations is nonjurisdictional, it must be enforced when
properly raised as an affirmative defense. See Wilkins
v. United States, 598 U.S. 152 (2023); United States v.
Beggerly, 524 U.S. 38, 49 (1998). Although the USFS
did not previously raise the statute of limitations as a
defense to the Ranch’s two QTA claims now on appeal,
it was clearly established in our Circuit prior to the
Supreme Court’s decision in Wilkins that the QTA’s
statute of limitations is jurisdictional and cannot be
waived. See Wilkins v. United States, 13 F.4th 791, 794-
95 (9th Cir. 2021), rev’d, 598 U.S. 152 (2023). Because
the district court sua sponte ordered the parties to brief
the statute of limitations issue, the USFS has properly
 App. 3

preserved its arguments that the Ranch’s QTA claims

are time-barred. We therefore find that the USFS has
not waived its now-affirmative defense.
2. Reviewing the district court’s dismissal of the
Ranch’s QTA claims on statute of limitations grounds
de novo, we find ample, undisputed evidence in the rec-
ord that, as early as 2005, the Ranch’s predecessors-in-
interest (“the Pivas” or “the Piva family”) had actual
notice of both the USFS’s claimed interest in the trail
easement and the USFS’s intent to construct a trail for
public use across the easement. See Johnson v. Lucent
Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 2011); cf.
Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995)
(noting that in QTA disputes over easement access, ac-
tual or constructive knowledge of government action
inconsistent with the easement, as opposed to mere
awareness of a claimed government interest, may be
required to start the running of the statute of limita-
tions).
In May of 2005, the Pivas executed a Conservation
Easement Deed with the USFS. Among other provi-
sions, the Deed granted the government “the right to
permit public use of . . . [a] strip of land to be utilized
as a trail” (the “trail easement”) along a far-eastern
portion of the ranch property. According to a letter
written by Robert Piva to the USFS in June 20051 and
an email written by Piva to the USFS in 2014, “Piva
1
The district court found that Piva’s letter was likely written
in June 2005. The parties do not dispute that the undated letter
was written at that time, and the Ranch does not assert that the
district court’s factual finding was clearly erroneous.
 App. 4

ranch owners” met with representatives of the USFS

“on site of the proposed trail” shortly after the Conser-
vation Easement Deed was executed to discuss the
USFS’s “proposed trail” across the easement. Piva’s
letter recounts that certain Piva family members had
concerns with the USFS’s “trail proposal as it [then]
existed,” “if put into use in the future.” Almost a decade
later, Piva wrote that, since the meeting between the
Pivas and the USFS on the ranch property, “nothing of
substance in the [USFS’s] proposed trail plan ha[d]
changed.” (Emphasis added).
The Ranch does not dispute the authenticity of
Piva’s letters nor their factual content, and the Ranch
has not addressed the letters in its briefing below or
on appeal other than to confirm that Piva’s corre-
spondence provides “evidence” of the “Piva Family’s
knowledge . . . at the time the Deed was granted.”
Although there is not direct evidence of Piva’s owner-
ship interest in the ranch property in 2005, there is
circumstantial evidence that he attended the meeting
and the undisputed content of his letters substantiates
that “Piva ranch owners” as early as 2005 had actual
knowledge of the government’s “proposal” to install a
“trail system” along the easement.
Additional undisputed evidence in the record sub-
stantiates, in the alternative, that a reasonable land-
owner would have known as early as 2005 of the
government’s intent to construct a trail akin to the one
that the USFS ultimately proposed and the Ranch now
challenges. See Shultz v. Dep’t of Army, 886 F.2d 1157,
 App. 5

1160 (9th Cir. 1989). The Ranch has argued, and the
parties do not dispute, that no “visible” trail existed
along the easement, at least during spring, summer,
and fall months, prior to the execution of the 2005
Deed. Nor do the parties dispute that the 30-foot-wide
trail easement crosses wetland areas. Given the wet-
land areas, a reasonable landowner would have rec-
ognized the need to construct at least some graded
pathway to facilitate the public uses of the trail con-
templated within the Deed, including foot travel, bik-
ing, horseback riding, and snowmobiling.
In combination, the lack of a visible trail and the
existence of wetlands along the easement would have
put a reasonable landowner on notice of the govern-
ment’s need to construct at least some partially graded
and compacted trail surface along the “strip of land to
be utilized as a trail” as early as 2005. The Ranch’s
QTA claims, filed in 2019, go to both the construction
and nature of the trail, and therefore fall outside of the
QTA’s limitations period. See Block v. North Dakota,
461 U.S. 273, 287 (1983) (noting that, as a limitation
on the government’s waiver of sovereign immunity,
the QTA’s statute of limitations “must be strictly ob-
served”).2

2
Although the district court dismissed the Ranch’s QTA
claims and granted summary judgment for the USFS based on its
since-corrected view that the QTA’s statute of limitations was ju-
risdictional, we “may affirm on any ground supported by the rec-
ord.” Lima v. U.S. Dep’t of Educ., 947 F.3d 1122, 1125 (9th Cir.
2020); cf. Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254
(2010) (noting that remand is not appropriate where “remand
 App. 6

3. The district court correctly concluded that the

statute of limitations period is not tolled. The Supreme
Court has held that “[e]quitable tolling of the already
generous statute of limitations incorporated in the
QTA . . . is incompatible with the Act.” Beggerly, 524
U.S. at 49. In Wilkins, the Court cited to Beggerly’s
“nonjurisdictional reasons why tolling specifically [is]
unavailable” under the QTA as support for the Court’s
holding that the QTA’s statute of limitations is nonju-
risdictional. 598 U.S. at 164 (describing Beggerly’s
“careful analysis of whether the text and context [of
§ 2409a(g)] were consistent with equitable tolling”).
Because equitable tolling is unavailable under the
QTA, the district court correctly concluded that the
limitations period is not tolled.

4. Finally, the Ranch argues for the first time on

appeal that it would violate the Fifth Amendment’s
Takings Clause to enforce the QTA’s statute of limita-
tions against it. We decline to reach this issue, which
is both forfeited and unripe. Greger v. Barnhart, 464
F.3d 968, 973 (9th Cir. 2006) (noting that we adhere to
“the general rule that the court will not consider an
issue raised for the first time on appeal”). The Ranch’s
QTA action seeks only declaratory and injunctive,
not monetary, relief. And even if the Ranch obtained
a judgment against the United States, there is no
guarantee the government would “elect” to retain its
interest in the trail easement upon payment of

would only require a new Rule 12(b)(6) label for the same Rule
12(b)(1) conclusion”).
 App. 7

compensation, as opposed to relinquishing its chal-

lenged interest altogether. See 28 U.S.C. § 2409a(b).
AFFIRMED.
 App. 8

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAWTOOTH MOUNTAIN No. 22-35324

RANCH, LLC; LYNN ARNONE; D.C. No.
DAVID BOREN, 1:19-cv-00118-CWD
Plaintiffs-Appellants, District of Idaho,
v. Boise

UNITED STATES FOREST ORDER

SERVICE; SAWTOOTH (Filed Jan. 11, 2024)
NATIONAL FOREST; JIM
DEMAAGD, Forest Supervisor;
SAWTOOTH NATIONAL
RECREATION AREA; KIRK
FLANNIGAN, Area Ranger;
UNITED STATES DEPARTMENT
OF AGRICULTURE; THOMAS J.
VILSACK, Secretary of Agriculture;
FEDERAL HIGHWAY
ADMINISTRATION; UNITED
STATES OF AMERICA,
Defendants-Appellees.

Before: WARDLAW and M. SMITH, Circuit Judges,

and HINKLE,* District Judge.
The panel unanimously votes to deny the petition
for panel rehearing (Dkt. 40). Judges Wardlaw and M.
Smith vote to deny the petition for rehearing en banc,

* The Honorable Robert L. Hinkle, United States District

Judge for the Northern District of Florida, sitting by designation.
 App. 9

and Judge Hinkle so recommends (Dkt. 40). The full

court has been advised of the petition for rehearing en
banc, and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35. The peti-
tion for panel rehearing and the petition for rehearing
en banc are DENIED.
IT IS SO ORDERED.
 App. 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SAWTOOTH MOUNTAIN
RANCH LLC, LYNN ARNONE, Case No.
and DAVID BOREN, 1:19-cv-00118-CWD
Plaintiffs, MEMORANDUM
v. DECISION AND
ORDER
UNITED STATES OF
AMERICA; UNITED STATES RE: Quiet Title Act
DEPARTMENT OF Claims One and Two2
AGRICULTURE; THOMAS (Filed Feb. 24, 2022)
J. VILSACK,1 Secretary of
Agriculture; UNITED STATES
FOREST SERVICE;
SAWTOOTH NATIONAL
FOREST; JIM DEMAAGD,
Forest Supervisor; SAWTOOTH
NATIONAL RECREATION
AREA; KIRK FLANNIGAN,
Area Ranger; UNITED
STATES DEPARTMENT
OF TRANSPORTATION,
FEDERAL HIGHWAY
ADMINISTRATION,
Defendants.

1
Sonny Perdue is no longer Secretary of Agriculture. Because
Mr. Perdue was sued in his official capacity, his successor, Thomas
J. Vilsack, is substituted as a defendant pursuant to Fed. R. Civ. P. 25(d).
2
Plaintiffs’ claims under the Quiet Title Act are distinct from
their environmental claims. Accordingly, the Court filed a separate
memorandum decision and order addressing Claims Three through
Nine. (Dkt. 50.)
 App. 11

INTRODUCTION
This case arises out of the United States Forest
Service’s acquisition of a Conservation Easement Deed
in 2005 encumbering Plaintiffs’ property, and the For-
est Service’s related efforts to develop a public trail
connecting the town of Stanley with Redfish Lake in
one of the most iconic recreation areas in Idaho—the
Sawtooth National Recreation Area.
Currently, visitors to Stanley or Redfish Lake
must use Highway 75 to travel between the two desti-
nations. Upon completion of the 4.4 mile long public
trail, of which approximately 1.5 miles traverses Plain-
tiffs’ Property within the confines of an easement, trav-
elers by foot, horseback, and bicycle will have an
alternative, non-motorized transportation route dur-
ing the summer between Stanley and the Redfish Lake
entrance station.
Plaintiffs are opposed to construction of what they
characterize as a “commuter trail” through their Prop-
erty. Pls.’ Mot. at 2. (Dkt. 114.) Plaintiffs contend the
Forest Service and the Federal Highway Administra-
tion have exceeded the scope of the public access ease-
ment granted to the Forest Service by way of the 2005
Deed between the Forest Service and prior owners of
the Property by engaging in “construction activities”
inconsistent with the rights granted to the Govern-
ment.
 App. 12

Plaintiffs filed this lawsuit on April 9, 2019. (Dkt.

1.) Before the Court are the parties’ cross-motions for
summary judgment and a related motion filed by
Plaintiffs pursuant to Fed. R. Civ. P. 56(d). Considered
here, apart from Plaintiffs’ seven environmental
claims, are Claims One and Two, brought pursuant to
the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a. Claim
One seeks a declaration that Defendants have ex-
ceeded the scope of the Conservation Easement Deed,
and Claim Two seeks a declaration that the proposed
use of the Trail is incompatible with the Conservation
Values and rights enumerated in the Conservation
Easement Deed.
The Court conducted a hearing on the motions on
September 8, 2021, and, following the hearing, re-
quested supplemental briefing regarding the applica-
tion of Wilkins v. United States of America, 2021 WL
4200563 (9th Cir. Sept. 15, 2021), if any, to the Plain-
tiffs’ QTA claims. (Dkt. 128.) After fully considering the
parties’ arguments, briefing, supplemental briefing,
administrative records, and applicable legal authori-
ties, the Court finds it lacks subject matter jurisdiction
over Claims One and Two, because these claims are
time-barred under the QTA. The Court will deny Plain-
tiffs’ motion for summary judgment and the related
motion brought under Fed. R. Civ. P. 56(d), and grant
Defendants’ motion on these two claims, as explained
below.
 App. 13

FACTS3
Plaintiffs own or have ownership-related interests
in real property in Custer County, Idaho, adjacent to
the southern end of the town of Stanley, and westward
of State Highway 75, in a contiguous parcel including
all or part of Sections 4, 5, 8, 9, 10, 15, 16 and 17 of
T.10 N., R. 13 E., Boise Meridian (“Property”). The
Property is located within the Sawtooth National Rec-
reation Area (SNRA), and consists of approximately
1,781.07 acres. Decl. of Boren ¶ 3. (Dkt. 11-2.)
The SNRA is located in south-central Idaho, cov-
ering more than 756,000 acres. (AR 1127.) The SNRA
is a Congressionally-designated special area, created
in 1972 “to assure the preservation and protection of
the natural, scenic, historic, pastoral, and fish and
wildlife values and to provide for the enhancement of
the recreational values associated therewith. . . .” 16
U.S.C. § 460aa. Redfish Lake and Little Redfish Lake
are popular summer destinations located within the
SNRA six miles south of the town of Stanley. (AR
1127.) The Redfish Lake Complex “is the single most
popular destination in the SNRA. Its many facilities
have the capability to host around 2,200 visitors dur-
ing peak times in the summer months,” and tourism in

3
Unless otherwise indicated, the facts are taken from the
Second Amended Complaint, and the administrative records sub-
mitted by the Forest Service and the Federal Highway Admin-
istration (“FHWA”). Citations to the Forest Service’s record will
be noted as AR, while citations to the Federal Highway Admin-
istration’s record will be noted as FHWA AR. The respective ad-
ministrative records are filed at Docket Nos. 93 and 98.
 App. 14

the area “is most active during the two month peak
summer season in July and August.” (AR 1048.) State
Highway 75 connects Redfish Lake to Stanley, with
high speed traffic and heavy summer traffic volumes.
(AR 1128.) There currently is no alternative transpor-
tation route connecting Stanley and Redfish Lake dur-
ing the summer. (AR 1128.)
In the early to mid-1990’s, SNRA staff began dis-
cussing the idea of constructing a trail connecting
Stanley and Redfish Lake to provide an alternate
means of travel between the two areas. (AR 1126.) At
that time, the Forest Service envisioned a trail that
would allow for non-motorized summer travel, and
serve pedestrians, bicyclists, and equestrians. (AR
0938.)
SNRA staff commenced with evaluating and nego-
tiating the terms of a conservation easement with the
Pivas,4 Plaintiffs’ predecessors in interest, in or about
2004. (AR 0666.)5 The Forest Service engaged Bradford
Knipe to appraise the proposed Conservation Ease-
ment in its entirety, which included a provision for a
Public Trail Easement crossing the eastern portion of
the Property. (AR 0685, 0698.) Mr. Knipe valued the
Conservation Easement as it existed at that time at
$1,840,000.00. (AR 0688 - 0689.) When conducting his

4
The Piva family, and various family trusts and partner-
ships, previously owned the Property. (AR 0824.) The Court refers
to Plaintiffs’ predecessors in interest as the Pivas.
5
Forest Service staff conducted a field inspection, inter-
views, and other activities throughout 2004, as reflected on the
Land Transaction Screening Process Summary. (AR 0666.)
 App. 15

evaluation, Mr. Knipe considered the impact of a “30

foot wide trail/snowmobile easement crossing the east-
ern portion of the subject property,” noting that “an
owner buyer would likely be concerned about the loss
of privacy on the subject property and the probability
of trespassing outside of the easement area by public
users.” (AR 0698.) Mr. Knipe appraised the Public Trail
Easement portion of the Conservation Easement,
which he described as “a greenbelt or public pathway
easement,” at $581,840.00. (AR 2824, 2825.)
On May 10, 2005, the United States, by and
through the Secretary of Agriculture, and the Pivas,
executed a Conservation Easement Deed encumbering
the Property. The Deed was recorded in the records of
Custer County on May 20, 2005, as record number
321391. (AR 0824.) The Pivas accepted $1,840,000.00
in exchange for the Conservation Easement. (AR 0824,
0825.)
Per the terms of the Conservation Easement Deed,
the Pivas, as Grantors, agreed as follows: to “hereby
grant and convey in perpetuity, with general warranty
of title, unto the United States . . . all right, title and
interest in the land described in Part II6 below, except
those rights and interests specifically reserved by the
Grantors in Part III below and those affirmative obli-
gations retained by Grantors in Part V below.”

6
Part II is the Property Description, which incorporates the
legal description and encumbrances of the Property set forth on
Exhibit A to the Deed.
 App. 16

Part III of the Deed enumerates the reserved

rights of the Pivas. These rights include:
C. The right to prevent trespass and control
access to the Property by the general public
except for specific access rights granted to or
acquired by the United States, including the
access granted in Part VI, Section K of this
Easement.
The access rights granted to or acquired by the
United States and set forth in Part VI, Section K are
as follows:
K. Nothing herein contained shall be con-
strued as affording the public access to any
portion of the Property except that the United
States is hereby granted the right to permit
public use of the following:
(1) A strip of land to be utilized
as a trail in that portion of the Ease-
ment area within Secs. 9, 15, and 16,
as shown on Exhibit D, attached
hereto and made a part hereof. The
total right-of-way width of the trail
easement shall be 30 feet. The follow-
ing uses are allowed on the trail:
snowmobile, snow grooming equip-
ment, bicycle, horse, and foot travel.
The Grantee may erect appropriate
signs to delineate the public use ar-
eas where needed.
(2) A strip of land along Valley
Creek, to be utilized for foot travel
only, extending from the centerline of
 App. 17

Valley Creek to point parallel and be-

ing 20 feet distant beyond each mean
high water line of Valley Creek. The
Grantee may erect appropriate signs
to delineate the public use areas
where needed.
(AR 0833.)7 Exhibit D is a map depicting the 30 foot
wide right of way as it meanders through the Piva
Ranch Property. (AR 0850.)8
After the parties executed the Conservation Ease-
ment Deed, Robert Piva authored a letter to Sara Bald-
win, Area Ranger of the USFS-Sawtooth National
Recreation Area, in May or June of 2005. (AR 0723 –
0726.)9 In it, Mr. Piva objects to the inclusion of the
Trail Easement in the Deed, indicating that the Pivas
“would never have agreed to a summer use trail

7
Section K(1) is referred to by the parties as the Trail Ease-
ment. The entire project is referred to by the parties as the Trail
Project, while the trail itself is referred to as the Trail, or the
Stanley Redfish Trail. The Court will use these references as well.
8
This is the same map considered by Mr. Knipe in the 2004
appraisal report. (AR 2824.)
9
It is not clear when the letter was drafted, as it is undated
other than a reference to “May 2005” in the Administrative Rec-
ord index. From the letter’s context, it may have been written
sometime after June 9, 2005, as Mr. Piva refers to learning of the
Trail Easement upon receiving an email from the Administrator
of the SNRA, dated June 9, 2005, requesting permission to pub-
lish an announcement of the purchase of the Piva Ranch ease-
ment. (AR 0724.) A later email from Mr. Piva refers, however, to
an “original letter . . . written to Area Ranger Sara Baldwin in
May of 2005.” (AR 0788.) There are no other letters from Mr. Piva
addressed to Ms. Baldwin in the record, nor does the record con-
tain a June 9, 2005 email from Ms. Baldwin to Mr. Piva.
 App. 18

system across ranch property,” because the “location

and use of a summer trail system across Piva ranch
property constitutes a significant government ‘takings’
due to loss of large tracts of grazing land.” (AR 0725,
0726.) Mr. Piva explained that “[e]xtensive public use
of the trail will effectively preclude use of grazing
lands . . . on either side of the trail.” (AR 0725.) Other
concerns expressed by Mr. Piva included harassment
of livestock by persons or dogs, as well as other liability
issues. Id. One solution proposed was a land trade,
while another solution was acquisition of “the trail site
Piva bench lands” by the Government. (AR 0726.) Nei-
ther alternative came to fruition.
The Forest Service undertook efforts to implement
the Trail Project in or about August of 2008, and began
planning the Trail Project in 2012. (AR 0904, 0161,
1126.) The Stanley Redfish Trail, as proposed, was an
improved six-and- R Q H-half foot wide, 4.4-mile-long,
gravel-paved, multi-use trail that would connect Pio-
neer Park in Stanley to the Redfish Lake Entrance
Station. (AR 0294.)10 Approximately 1.5 miles of the
Trail is located within the 30-foot trail easement area
on the Property. (AR 0294.) Before formal publication
of the proposed Trail Project, Robert Piva wrote to
Matt Phillips, the trail’s architect, on March 30, 2014.
(AR 0877.) In the email, Mr. Piva referenced the
10
A future project was proposed to develop a two mile, fully
accessible, multi-purpose, non-motorized public trail from the
Redfish Lake Entrance Station to Redfish Lake, to “seamlessly
connect Stanley and Redfish Lake.” (AR 2664.) The notice of pro-
posed action for Phase 2 of the Redfish to Stanley Trail was pub-
lished by the Forest Service on July 1, 2015.
 App. 19

proposed “public hiking trail,” reiterating that the Pi-

vas would “never allow[ ] public access across our
ranch when it is stocked with cattle. . . .” (AR 0877.)
The Forest Service later published the proposed Trail
Project on July 1, 2014, in the Sawtooth National For-
est’s Schedule of Proposed Action. (AR 2648 – 2655.)
Plaintiffs11 purchased the Property in the Fall of
2016, subject to the 2005 Conservation Easement
Deed. Second Am. Compl. ¶ 79. (Dkt. 50.) Shortly after
the purchase of the Property, the Forest Service noti-
fied Plaintiffs of the status of its plan to construct the
Stanley Redfish Trail. (AR 001.)12 The Forest Service
approved the Trail Project in a Decision Memo issued
by Area Ranger Kirk Flannigan on June 6, 2017. (AR
0294-0304.)
Plaintiffs filed a complaint on April 9, 2019, seek-
ing declaratory and injunctive relief against the Forest
Service and its personnel. (Dkt. 1.) In addition to
claims asserted under various environmental statutes,
the complaint alleged the Forest Service was in viola-
tion of the Conservation Easement Deed, and Plain-
tiffs sought review under the Administrative

11
Sawtooth Mountain Ranch, LLC, holds title to the Prop-
erty, while Mr. Boren is the organizer and sole member of Saw-
tooth Mountain Ranch, LLC. He is married to Lynn Arnone.
Second Am. Compl. ¶¶ 5 – 7. (Dkt. 50.)
12
Kirk Flannigan, Area Ranger, wrote to Plaintiffs on No-
vember 30, 2016, indicating the Forest Service’s planning efforts
to develop the Trail were well underway, and that once planning
efforts were complete, the intent was to “build this trail in the
current easement location.” (AR 001.)
 App. 20

Procedure Act, 5 U.S.C. § 706(2). On May 10, 2019,

Plaintiffs filed a motion for preliminary injunction.
Plaintiffs argued the Forest Service’s actions were con-
trary to the terms of the 2005 Conservation Easement
Deed.13 On June 13, 2019, the Court issued a memo-
randum decision and order denying Plaintiffs’ motion,
explaining Plaintiffs failed to state a claim upon which
relief could be granted because Plaintiffs did not bring
suit pursuant to the Quiet Title Act, 28 U.S.C. § 2409a.
(Dkt. 24.)
Plaintiffs filed an amended complaint on August
8, 2019, which asserted three claims under the Quiet
Title Act. (Dkt. 29.) The first claim concerned the
boundaries of the easement, while Claims Two and
Three concerned different aspects of the scope of the
easement. Defendants filed a motion to dismiss Claim
One for lack of subject matter jurisdiction, and sought
dismissal of two defendants named in Claims One, Two
and Three. Defendants did not raise the statute of lim-
itations as grounds for dismissal. The Court granted
Defendants’ motion. (Dkt. 44.)
Thereafter, Plaintiffs filed the Second Amended
Complaint which, after further briefing, was deemed
filed on May 8, 2020. (Dkt. 50, 59.) Claims One and Two
seek to quiet title to the Property and prevent the con-
struction of the Trail as proposed.

13
Plaintiffs argued also that the Forest Service’s actions
were contrary to the National Environmental Policy Act, 42
U.S.C. § 4321 et. seq. (“NEPA”). Plaintiffs’ environmental claims
are discussed in a separate memorandum decision and order.
 App. 21

STANDARD OF REVIEW
Summary judgment is appropriate where a party
can show that, as to any claim or defense, “there is no
genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he mere existence of some alleged fac-
tual dispute between the parties will not defeat an oth-
erwise properly supported motion for summary
judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986). Material facts are those
that may affect the outcome of the case. See id. at 248.
The Court does not determine the credibility of affiants
or weigh the evidence set forth by the non-moving
party. All inferences which can be drawn from the evi-
dence must be drawn in a light most favorable to the
nonmoving party. T. W. Elec. Serv., Inc. v. Pac. Elec. Con-
tractors Ass’n, 809 F.2d 626, 630 - 31 (9th Cir. 1987)
(internal citation omitted). However, Plaintiffs bear
the burden of satisfying the Court as to its jurisdiction.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
Cir. 2004).

DISCUSSION
Under the Quiet Title Act (“QTA”), 28 U.S.C.
§ 2409a, the United States may be named as a party
defendant in a civil action to “adjudicate a disputed
title to real property in which the United States claims
an interest. . . .” Disputes over the right to an ease-
ment and suits seeking a declaration as to the scope of
 App. 22

an easement fall within the purview of the QTA. Rob-

inson v. United States, 586 F.3d 683, 686 (9th Cir.
2009).
While the QTA waives the sovereign immunity of
the United States in a civil action “to adjudicate a dis-
puted title to real property in which the United States
claims an interest,” any such action must be brought
within the applicable limitations period. 28 U.S.C.
§ 2409a(a). A civil action to quiet title is “barred unless
it is commenced within twelve years of the date upon
which it accrued.” 28 U.S.C. § 2409a(g). “Such action
shall be deemed to have accrued on the date the plain-
tiff or his predecessor in interest knew or should have
known of the claim of the United States.” Id. The
phrase, “ ‘should have known’ imparts a test of reason-
ableness.” Shultz v. Dep’t of Army, U.S., 886 F.3d 1157,
1160 (9th Cir. 1989) (quoting 28 U.S.C. § 2409a(g)). A
claim accrues when the United States’ actions “would
have alerted a reasonable landowner” to the adverse
interest of the United States. Id. “The crucial issue in
the statute of limitations inquiry is whether the plain-
tiff had notice of the federal claim, not whether the
claim itself is valid.” Kingman Reef Atoll Invs., L.L.C.
v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008).
The limitations period is jurisdictional and cannot
be waived. Wilkins v. United States, 13 F.4th 791, 795
(9th Cir. 2021). Therefore, a jurisdictional bar may be
raised at any time, and the Court may address it sua
sponte. Humboldt County v. United States, 684 F.2d
1276, 1280 (9th Cir. 1982); Park County, Mont. v.
 App. 23

United States, 626 F.2d 718, 720 (9th Cir. 1980).14 The
QTA’s statute of limitations is strictly construed. Block
v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.
273 (1983). If a suit is barred by the QTA’s statute of
limitations, the Court has “no jurisdiction to inquire
into the merits.” Id. at 274.

ANALYSIS
Plaintiffs’ first claim under the QTA challenges
the scope of the Trail Easement. Plaintiffs argue that
the Trail Easement does not authorize “construction or
maintenance” of a “commuter trail” for summer use.15
Plaintiffs’ second claim contends the proposed Trail is
not compatible with the Conservation Values and
rights reserved to the Grantors in the 2005 Conserva-
tion Easement Deed.
Plaintiffs argue their claims are not time barred,
because Plaintiffs were not “on notice” of the Govern-
ment’s adverse claim until the Forest Service formally
announced its plan to construct a “developed

14
Plaintiffs’ assertion that the Forest Service conceded the
Court’s jurisdiction over Plaintiffs’ QTA claims is rejected. See Pl.
Supp. Brief at 7 n.1. (Dkt. 130.) If at any time the Court deter-
mines it lacks subject-matter jurisdiction, the Court must dismiss
the cause of action. Fed. R. Civ. P. 12(h)(3). Further, the defense
of lack of subject matter jurisdiction is expressly preserved
against waiver. Cmt. 1966 Amendment, Fed. R. Civ. P. 12(h)(3).
Thus, the Court may determine the question of its jurisdiction at
any time.
15
Plaintiffs have never objected to winter use of the Trail
by snowmobiles or snow grooming equipment. See Second Am.
Compl. ¶¶ 82, 110, 111. (Dkt. 50.)
 App. 24

commuter trail.” Pls.’ Supp. Brief at 8, n.3. (Dkt. 130.)16

Plaintiffs insist that, until plans for development of the
Trail became concrete and particularized, which oc-
curred no earlier than July 1, 2014, the date of publi-
cation in the Schedule of Proposed Actions, the Forest
Service took no action inconsistent with Plaintiffs’ (or
their predecessors’) ownership interests. Therefore,
Plaintiffs argue neither they nor their predecessors in
interest “would [ ] have reasonably known that Trail
construction would occur.” Id. at 10. Thus, Plaintiffs
contend the statute of limitations did not accrue until
the Forest Service impermissibly expanded the “scope
of the Conservation Easement by undertaking con-
struction activities” inconsistent with the “plain lan-
guage of the Easement.” Pls.’ Supp. brief at 10.
Put simply, Plaintiffs contend that their interests
peacefully coexisted with those granted to the Govern-
ment, and the clock did not begin to run on their QTA
claims until the Forest Service announced its intent to
begin construction activities. Plaintiffs insist the For-
est Service asserts a “new interest that is fundamen-
tally incompatible with” the Conservation Values
expressed in the Deed, and “seeks to expand a preex-
isting claim.” See Werner v. United States, 9 F.3d 1514,
1519 (11th Cir. 1993.) The Court views it differently.

16
Plaintiffs’ complaint indicates they believed the Property
subject to the Easement “would only be used as it exists in its
current state – as an undeveloped path that is well hidden within
the landscape during the summer and serves as a snowmobile
trail in the winter.” Second Am. Compl. ¶ 110. (Dkt. 50.)
 App. 25

The property right that Plaintiffs challenge—the

right to permit public use—is the same property right
that Plaintiffs’ predecessors in interest granted to the
Government in May of 2005. The Forest Service’s plan
to actually construct a serviceable trail within the 30
foot Easement area, and thereby facilitate public use,
did nothing to expand the public use rights granted to
the Government in 2005. The Government’s interest
has been adverse to that of the Grantors ever since the
Conservation Easement Deed was executed and rec-
orded. The Forest Service’s decision to act upon its
rights, and develop the “strip of land to be utilized as a
trail in that portion of the Easement area . . . as shown
on Exhibit D,” and thereby facilitate “bicycle, horse,
and foot travel,” did nothing to expand its rights. Ra-
ther, the plan to construct the Trail and create a six-
and-one-half foot wide, 4.4-mile-long, gravel-paved,
multi-use trail brought to fruition the Government’s
right to permit public use of a trail within the Ease-
ment area.
Plaintiffs’ thinly veiled attempt to couch their
claims in terms of impermissible “construction activi-
ties” that “expand the scope of the easement,” rather
than what it really is—opposition to public use of a
well-delineated trail by summer visitors to Redfish
Lake—is revealed by the complaint and Plaintiffs’
briefing. For instance, Plaintiffs allege a “high-traffic
commuter Trail” will interfere with their right to use
and enjoy their Property, and will present problems be-
tween cattle and people. Second Am. Compl. ¶ 113.
(Dkt. 50.) Plaintiffs express concern for trail users such
 App. 26

as individuals in wheelchairs or pushing strollers. Id.

In their brief, Plaintiffs openly claim that “construction
of a commuter trail, which invites large numbers of
people, undermines the Grantors’ reserved interests”
of cattle ranching and quiet enjoyment. Pls.’ Mem. at
16. (Dkt. 114-5.)
Plaintiffs insist they were under the impression
when they purchased the Property that the land would
remain in its current state, i.e., undeveloped, with any
path that may have existed17 within the Easement
area “well hidden” during the summer. Second Am.
Compl. ¶ 110. But development—in this case construc-
tion of a six-and-one-half foot wide, 4.4-mile-long,
gravel-paved, multi-use trail—begets an increase in
public use. And public use is exactly what the Forest
Service has had the right to allow pursuant to the Trail
Easement since May of 2005.
Public use, not construction, is exactly what the
Pivas, and now Plaintiffs, were aware could occur. For
instance, the record reflects the Pivas were aware of
the potential for extensive public use of a summer trail.
Mr. Piva’s May 2005 letter referred to the Trail as a
“public trail across the ranch.” He outlined “enormous
problems” with the concept of a “summer use trail sys-
tem across ranch property.” These problems included
contacts between livestock and humans, especially
those accompanied by dogs and bicycles, and the
17
The Forest Service disputes that there was any visible
pathway crossing the Property for pedestrian, bicycle D Q
Gequestrian use within the Easement area in 2005. Def. Brief
at 3 n. 2. (Dkt. 115.) The dispute is not material.
 App. 27

potential preclusion of use of grazing lands by livestock

on either side of the trail because of “extensive public
use of the trail.” Mr. Piva referred also to the Trail
Easement as a “significant government ‘takings’ due to
loss of large tracts of grazing lands,” and his later 2014
email referred to the trail as a “public hiking trail."18
Only now, when the Forest Service has actually de-
veloped (and implemented) plans19 to facilitate public
use, do Plaintiffs complain. Whether the trail was a
“well hidden path” or a six-and-one-half foot wide,
gravel-paved multi-use trail is of no moment for ac-
crual of the statute of limitations in this case. The 12-
year limitations period begins when a plaintiff knows
or should know of the government’s adverse land
claim. 28 U.S.C. § 2409a(g). This standard does not re-
quire the Government to provide explicit notice of its
claim, nor must the Government’s claim be “clear and
unambiguous.” Block II, 789 F.2d at 1313. “Knowledge
of the claim’s full contours is not required. All that is
necessary is a reasonable awareness that the Govern-
ment claims some interest adverse to the plaintiff ’s.”
Id. (quoting Knapp v. United States, 636 F.2d 279, 283
(10th Cir. 1980)). “As long as the interest claimed is a
‘cloud on title,’ or a reasonable claim with a substantial
basis, it constitutes a ‘claim’ for purposes of triggering
the twelve-year statute of limitations.” Richmond,

18
Although Mr. Piva’s two letters are in the Administrative
Record, Plaintiffs failed to comment on this evidence in their
briefing.
19
Construction of the Stanley Redfish Trail began on or
about June 17, 2019.
 App. 28

Fredericksburg & Potomac R.R. Co. v. United States,

945 F.2d 765, 769 (4th Cir. 1991). Even invalid govern-
ment claims trigger the limitations period for QTA
claims. See id.
Simply put, the limitations period is triggered
when a landowner has reason to know that the Gov-
ernment claims some type of adverse interest in that
land. Spirit Lake Tribe v. North Dakota, 262 F.3d 732,
738 (8th Cir. 2001) (citing Patterson v. Buffalo Nat’l
River, 76 F.3d 221, 224 (8th Cir. 1996)). Here, adversity
did not arise simply because the Forest Service began
“construction” of the Trail. Rather, the adverse interest
of permitting or otherwise facilitating public use of a
trail within the Easement area was known at the time
the Conservation Easement Deed was executed and
recorded in May of 2005. And, to the extent that there
may have been implied limitations to the volume of
public use by virtue of the Deed’s preservation of Con-
servation Values or the rights reserved to the Grantors,
that conflict was also known at the time the Deed was
executed and recorded.
Even if the Court credited Plaintiffs’ arguments,
the Court cannot conclude, as a matter of law, that the
QTA limitations period was tolled. As explained, the
QTA limitations period accrues when a plaintiff or his
predecessor in interest has reason to know of a cloud
on his title. See Richmond, 945 F.2d at 769. The ines-
capable corollary to this principle is that the QTA lim-
itations period is not tolled when government action
simply compounds a pre-existing cloud on title. Spirit
Lake Tribe v. North Dakota, 262 F.3d 732, 744 (8th Cir.
 App. 29

2001). Viewing Plaintiffs’ position charitably, the 2014

Notice of Proposed Action, and the 2017 Decision
Memo, did no more than confirm the cloud that already
existed on the Property by virtue of the 2005 Conser-
vation Easement Deed. That cloud is public use,
whether by construction of a developed trail or some
other alternative.
The statute of limitations is not tolled simply be-
cause the Forest Service had not officially proposed un-
til 2014 a trail that could actually be used by the public
for bicycle, horse, and foot travel within the Easement
area. State of Cal. ex rel. State Land Comm’n v. Yuba
Goldfields, Inc., 752 F.2d 393, 397 (9th Cir. 1985) (deeds
constituted notice of the federal claim); Humboldt
County v. United States, 684 F.2d 1276 (9th Cir. 1982)
(limitations period began when agreement signed, not
when government built road). Further, it is well estab-
lished that the United States does not abandon its
claims to property by inaction. Kingman Reef Atoll
Invs., L.L.C. v. United States, 541 F.3d 1189, 1199 (9th
Cir. 2008) (citing United States v. California, 332 U.S.
19, 40 (1947)). Here, there is no dispute that the public
access rights granted to the Government constitute a
“claim,” and that Plaintiffs, and their predecessors in
interest, were on notice of the Deed recorded in May of
2005. To hold otherwise, and confirm there was no jus-
ticiable controversy until construction activities began
and conditions changed, does not comport with the lim-
ited waiver of sovereign immunity Congress intended.
See Vincent Murphy Chevrolet Col, Inc. v. U.S. 766 F.2d
449, 452 (10th Cir. 1985) (declining to toll statute of
 App. 30

limitations based upon changed conditions; re-

strictions contained in 1965 quitclaim deeds were en-
forceable).
Put simply, the accrual of Plaintiffs’ claims for pur-
poses of the statute of limitations is not affected by the
Forest Service’s failure to formally announce or other-
wise implement a plan for development of the Trail un-
til July of 2014. By virtue of the language in the 2005
Conservation Easement Deed, Plaintiffs’ predecessors
in interest had actual notice of the Government’s right
to permit public use of a strip of land within the Ease-
ment area for a trail allowing bicycle, horse, and foot
travel. This adverse interest, regardless of any actual
adversity until the construction of a developed trail be-
gan, existed from the time the Deed was executed. Con-
sequently, the statute of limitations on Plaintiffs’
claims under the QTA expired before Plaintiffs filed
their complaint in 2019, some fourteen years later. Cf.
Saylor v. United States, 315 F.3d 664, 670 (6th Cir.
2003) (rejecting the plaintiffs’ argument that the stat-
ute of limitations should start to run from the date the
plaintiff became aware of its claim). Therefore, the
Court finds that it lacks subject matter jurisdiction
and must dismiss Claims One and Two from this law-
suit.
Plaintiffs’ related motion, filed pursuant to Fed. R.
Civ. P. 56(d), will be denied. Plaintiffs sought permis-
sion to conduct additional discovery if the Court con-
sidered the Forest Service’s extrinsic evidence
submitted in support of its arguments related to
 App. 31

Plaintiffs’ QTA claims. The Court did not consider the

evidence, and therefore the motion will be denied as
moot.

CONCLUSION
An appreciation of the full contours of the Forest
Service’s claim is not needed to start the QTA’s clock.
Knapp, 636 F.2d at 283. It is enough that Plaintiffs or
their predecessors in interest were area of the exist-
ence of an adverse right held by the Government. That
right—the right to permit public use—existed long be-
fore the Forest Service detailed its construction plans
to develop the Stanley Redfish Trail for use during the
summer by bicycle, horse, and foot travelers. “Records,
not actions, were enough to put the plaintiffs on notice”
here. George v. U.S., 672 F.3d 942, 947 (10th Cir. 2012).
The Court rejects Plaintiffs’ attempt to reframe the
conflict and tease out a rule that a plaintiff need not
bring suit until the Government acts to enforce its
rights as inconsistent with the plain language and ap-
plication of the QTA. Plaintiffs’ claims under the QTA
are time-barred.

ORDER
NOW THEREFORE IT IS HEREBY OR-
DERED:
1) Plaintiffs’ Motion for Summary Judgment on
Claims One and Two of the Second Amended
Complaint (Dkt. 114) is DENIED.
 App. 32

2) Defendants’ Motion for Summary Judgment

on Claims One and Two of the Second
Amended Complaint (Dkt. 116) is GRANTED
for lack of subject matter jurisdiction.
2) Plaintiffs’ Motion Pursuant to Federal Rule of
Civil Procedure 56(d) (Dkt. 118) is DENIED
as MOOT.
DATED: February 24, 2022
[SEAL] /s/ Candy W. Dale
Candy W. Dale
Chief U.S. Magistrate Judge