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Paul G. SHULTZ, Plaintiff-Appellant, v. DEPARTMENT OF ARMY, United States of America, Defendant-Appellee , 96 F.3d 1222 ( 1996 )


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  • 96 F.3d 1222

    96 Cal. Daily Op. Serv. 7050, 96 Daily Journal
    D.A.R. 11,561
    Paul G. SHULTZ, Plaintiff-Appellant,
    v.
    DEPARTMENT OF ARMY, United States of America, Defendant-Appellee.

    Nos. 92-35197, 92-35580.

    United States Court of Appeals,
    Ninth Circuit.

    Argued and Submitted Aug. 3, 1993.
    Filed Nov. 30, 1993.
    Reargued Dec. 15, 1994.
    Withdrawn from Submission March 15, 1995.
    Resubmitted Sept. 12, 1996.
    Opinion Withdrawn Sept. 20, 1996.
    Decided Sept. 20, 1996.

    Joseph W. Sheehan, Fairbanks, Alaska, for plaintiff-appellant.

    William B. Lazarus, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendant-appellee.

    Sheri L. Hazeltine, Fairbanks, Alaska, for Amicus, the Tanana Chiefs Conference, Inc.

    Robin L. Rivett, Pacific Legal Foundation, Sacramento, California, for Amicus, Pacific Legal Foundation, Resource Development Council for Alaska, and Alaska Miners Association.

    Cheri C. Jacobus, Assistant Attorney General, Anchorage, Alaska, for Amicus, State of Alaska.

    Steven F. Alder, Assistant Attorney General, Salt Lake City, Utah, for Amicus, the State of Utah and the Utah Association of Counties.

    Eric P. Jorgensen, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for Amici National Parks and Conservation Association, The Wilderness Society, The Audubon Society, Southern Utah Wilderness Alliance, Sierra Club and Northern Alaska Environmental Center.

    Appeals from the United States District Court for the District of Alaska, Andrew J. Kleinfeld, District Judge, Presiding. D.C. No. CV-86-30-AJK.

    Before: SCHROEDER, FLETCHER and ALARCON, Circuit Judges.

    1

    Per Curiam Opinion; Dissent by Judge ALARCON.

    ORDER

    2

    The opinion dated November 30, 1993 is withdrawn.

    OPINION

    PER CURIAM:

    3

    The government's petition for rehearing is granted, the opinion of November 30, 1993 at 10 F.3d 649 is withdrawn, and the following opinion is substituted in its place.

    4

    Paul G. Shultz appeals the district court's judgment in favor of the government in his quiet title action under 28 U.S.C. § 2409a. Shultz argued that he has a right-of-way across Fort Wainwright to get back and forth between Fairbanks and his property under either R.S. 2477, 43 U.S.C. § 932, or Alaska common law, or both. Because we ultimately agree with the district court that Shultz has not sustained his burden to factually establish a continuous R.S. 2477 route or a right-of-way under Alaska common law, we affirm the district court. We do not reach Shultz's argument that the district court erred by holding that his action was time-barred by 28 U.S.C. § 2409a(g).

    5

    AFFIRMED.

    ALARCON, Circuit Judge, dissenting:

    6

    I respectfully dissent.

    7

    I would deny the petition for a rehearing and reverse the district court's judgment for the reasons set forth in Judge Fletcher's scholarly opinion in Shultz v. Department of the Army, 10 F.3d 649 (9th Cir.1993).