439 F2d 764 County of Bonner State of Idaho v. Anderson

439 F.2d 764

COUNTY OF BONNER, STATE OF IDAHO, Appellant,
v.
Harold ANDERSON, Supervisor Kanikau National Forest, Appellee.

No. 23535.

United States Court of Appeals, Ninth Circuit.

March 9, 1971.

Rehearing Denied May 10, 1971.

Stephen Bistline (argued), Everett D. Hofmeister, Pros. Atty., Sandpoint, Idaho, Fred F. Kondo, Priest River, Idaho, James W. Derr, of Derr, Derr & Walters, Boise, Idaho, for appellant.

Edmund Clark, Atty., Dept. of Justice (argued), Shiro Kashiwa, Asst. Atty. Gen., Washington, D. C., Jay F. Bates, U. S. Atty., Boise, Idaho, for appellee.

Before CHAMBERS, Circuit Judge, MADDEN,* Judge of the United States Court of Claims, and ELY, Circuit Judge.

PER CURIAM:

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1

The judgment of dismissal is affirmed.

2

We can find no authority that forest supervisor Anderson is or was a proper party to represent the government's interest in what is essentially a quiet title action. (So, we do not reach other questions.) Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168, is clearly applicable here.

3

The situation would be different if it were alleged in the complaint that the supervisor is acting outside his authority or is violating some federal statute.

4

As a matter of policy, it seems a shame that the County of Bonner cannot find a forum or a proper party to sue to test its claim to the land in question. In other fields, the government has created the Court of Claims and the Federal Tort Claims Act for its citizens.

5

We wonder why the government won't sue the County of Bonner, as it may, to quiet title, rather than laughing at its contentions and saying, "If you have a right, you can't vindicate it."

Notes:

*

J. Warren Madden, Senior Judge of the United States Court of Claims, sitting by designation