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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pursche v. Matanuska-Susitna Borough (3/25/2016) sp-7091

Pursche v. Matanuska-Susitna Borough (3/25/2016) sp-7091

          Notice:   This  opinion  is  subject  to  correction  before  publication  in  the  PACIFIC  REPORTER.   Readers  are  

          requested  to  bring  errors  to  the  attention  of  the  Clerk  of  the  Appellate  Courts,  303  K  Street,  Anchorage,  

          Alaska  99501,  phone  (907)  264-0608,  fax  (907)  264-0878,  email  

                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

RAY  PURSCHE,                                                  )  

                                                               )     Supreme  Court  No.  S-15824  

                             Appellant,                        )  


                                                               )     Superior Court No. 3PA-14-01600 CI  

          v.	                                                  )  


                                                               )    O P I N I O N  




                                                               )    No. 7091 - March 25, 2016  

                             Appellee.	                        )



                    Appeal from the Superior Court of the State of Alaska, Third  


                    Judicial District, Palmer, Kari Kristiansen, Judge.  


                    Appearances:  Ray Pursche, pro se, Wasilla, Appellant.  John  


                    Aschenbrenner,  Deputy  Borough  Attorney,  and  Nicholas  


                    Spiropoulos, Borough Attorney, Palmer, for Appellee.  


                    Before:  Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                    Bolger, Justices.  


                    BOLGER, Justice.  



                    A  Wasilla  landowner  appeals  the  tax  foreclosure  against  his  property,  


arguing that the property is exempt from local property taxes because it was originally  


transferred to his predecessor by federal patent.  He also claims that the federal patent  


takes this property beyond state court jurisdiction.   But after a patent issues, property  


disputes must generally be resolved in state court.  And land once owned by the federal  

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 government is subject to local property taxes after it is conveyed to a private party.                                                                                                                                 We  

 therefore affirm the superior court's judgment of foreclosure.                                                                   

 II.              FACTS AND PROCEEDINGS                  

                                   Ray Pursche owns a parcel of real property in Wasilla, a city located within                                                                                                   

 the   Matanuska-Susitna   Borough   boundaries.     Pursche's   property   was   originally  

 conveyed by a federal homestead patent; Pursche recorded a copy of the patent in 1999.                                                                                                                                              

 In 2012 Pursche failed to pay Borough property taxes on the property.                                                                                                                 In May 2014 the                     

 Borough filed in the                               superior court its annual petition for foreclosureon properties                                                                                              within  


 its boundaries.                                                                                                                                                                                               

                                              Attached to this petition was a foreclosure list showing all taxable  


parcels of land in the Borough that were delinquent in their property taxes.  Pursche's  


property was included on this foreclosure list because he owed $840.89 in delinquent  


 real property taxes, penalties, and interest for taxes levied in 2012.  



                                   Pursche filed an objection to the foreclosure list in the superior court. 


 his objection  Pursche argued that he did not owe any taxes on the property to the  


 Borough because the federal land patent in its chain of title exempted it from local taxes.  


 He also claimed that the superior court did not have jurisdiction to foreclose on his  


property because of the federal land patent in its chain of title.  


                                   TheBoroughfiled amotion for summary judgment, arguing that therewere  


 no genuine issues of material fact and that the foreclosure list provided prima facie  

                  1                The Borough filed this petition pursuant to AS 29.45.330, which provides:                                                                                                                         

 "A municipality shall . . . annually present a petition for judgment and a certified copy                                                                                                                            

 of the foreclosure list for the previous year's delinquent taxes in the superior court for   


                  2                Pursche filed this objection pursuant to AS 29.45.370, which provides: "A  


person having an interest in a lot on the foreclosure list may file an answer within 30  


 days . . . of . . . publication, specifying the person's objection."  


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  evidence that Pursche had failed to pay valid taxes.                                                                                                                                                                                                                                          Pursche then filed a motion to                                                                                                                               

 dismiss, reiterating the arguments he made in his initial objection to the foreclosure list.                                                                                                                                                                                                                                                                                                                                                                               

 The superior court granted the Borough's motion for summary judgment and denied                                                                                                                                                                                                                                                                                                                                                    

 Pursche's motion to dismiss.                                                                                                                              

                                                                        On   the   issue   of   jurisdiction,   the   superior   court   concluded   that   it   had  

jurisdiction over Pursche's land, despite the federal land patent in its chain of title.                                                                                                                                                                                                                                                                                                                                                                    It  

  explained that under Alaska law, the superior court is the court of general jurisdiction,                                                                                                                                                                                                                                                                                                              

  and there is no exception that removes patented property from this broad jurisdictional                                                                                                                                                                                                                                                                                                          


                                                                        The court also held that Pursche's property was properly subject to local                                                                                                                                                                                                                                                                                              

 property taxes.                                                                 The court noted that Pursche had cited no authority to support his claim                                                                                                                                                                                                                                                                                   

 that property with a federal land patent in the chain of title is exempt from local property                                                                                                                                                                                                                                                                                                                               

 taxes. The court stated that the authority cited by Pursche supported only the proposition                                                                                                                                                                                                                                                                                                                  

 that such land was not taxable "while still held by the United States."                                                                                                                                                                                                                                                                                                             Thus, the court                                         

  concluded, Pursche had failed to rebut the evidence that the foreclosure list correctly                                                                                                                                                                                                                                                                                                                                

 identified his property as having unpaid, valid taxes, and as a result, the Borough could                                                                                                                                                                                                                                                                                                                                                  

  foreclose on it.                                                                

                                                                        Pursche appeals the grant of summary judgment pro se.                                                                                                                                                                                                                                                  

 III.                                STANDARD OF REVIEW                                                                               

                                                                        "[A] party seeking summary judgment has the initial burden of proving,                                                                                                                                                                                                                                                                              

 through admissible evidence, that there are no [genuine] disputed issues of material fact                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                  4   "Once the moving  

  and that the moving party is entitled to judgment as a matter of law."                                                                                                                                                                                                                                                                                                                                                         

                                    3                                   See  AS 29.45.370 ("The foreclosure list is prima facie evidence that the                                                                                                                                                                                                                                                                                                       

  assessment and levy of the tax is valid and that the tax is unpaid.").                                                                                                                                                                                                                                      

                                    4                                   Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)  



                                                                                                                                                                                                                              -3-                                                                                                                                                                                                               7091

----------------------- Page 4-----------------------

party has made that showing, the burden shifts to the non-moving party to set forth                                                                                                  

 specific facts showing that he could produce evidence reasonably tending to dispute or                                                                                                     

 contradict the movant's evidence and thus demonstrate that a material issue of fact  


                 5    "We review a grant of summary judgment de novo, 'affirming if the record                                                                                    


presents no genuine issue of material fact and if the movant is entitled to judgment as a                                                                                                     

matter of law.' "                   6  

                              Questions of subject matter jurisdiction are questions of law, which we  


review de novo.7  


 IV.           DISCUSSION  


               A.             The Superior Court Had Jurisdiction Over This Foreclosure Action.  


                              Under  Alaska  law  "[t]he  superior  court  is  the  trial  court  of  general  



jurisdiction, with original jurisdiction in all civil and criminal matters."                                                                                              It has the  


 "power to hear all controversies which may be brought before it . . . except insofar as has  

               4              (...continued)  

 (alterations in original) (quoting                                       Mitchell v. Teck Cominco Alaska Inc                                                ., 193 P.3d 751,         

 760 n.25 (Alaska 2008)).                

               5              Id . (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32  


 (Alaska 1978)).  


               6              Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)  


 (quoting Beegan v. State, Dep't of Transp. &Pub. Facilities, 195 P.3d 134, 138 (Alaska  



               7              Hawkins v. Attatayuk, 322 P.3d 891, 894 (Alaska 2014) (citing Foster v.  


State, Dep't of Transp., 34 P.3d 1288, 1290 (Alaska 2001)).  


               8              AS 22.10.020(a); see also Alaska Const. art. IV,  1 ("The judicial power  


 of the State is vested in a supreme court, a superior court, and the courts established by  


the legislature.  The jurisdiction of courts shall be prescribed by law.").  


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been expressly and unequivocally                                         denied  by the state's constitution or statutes."                                                 Alaska  

 Statute 29.45.330 requires municipalities to file annual tax foreclosure petitions with the                                                                                        

 superior court for adjudication.                                  10  


                             Pursche argues that the superior court lacked subject matter jurisdiction  

over the foreclosure action against his property because there is a federal land patent11  


in the property's chain of title. His argument is threefold: (1) Federal patents flow from  


federal treaties; (2) state courts have no jurisdiction over federal treaties; and (3) thus the  


 superior court lacked jurisdiction over his property because of the federal land patent in  


the chain of title.  He further argues that the statute giving superior courts jurisdiction  



over foreclosure actions by municipalities                                                                                                                        

                                                                                             does not abrogate this exclusive jurisdiction  


of federal courts over claims involving federal land patents.  

               9             Siggelkow v. State                     , 731 P.2d 57, 61 (Alaska 1987) (emphasis in original).                                                                 

               10            AS 29.45.330(a)(1) ("A municipality shall . . . annually present a petition                                                                 

for  judgment  and  a  certified  copy  of  the  foreclosure  list  for  the  previous  year's  


delinquent taxes in the                           superior court                  for judgment." (emphasis added)).                        

               11            "A 'patent' is the conveyance by which the federal government passes its  


title to portions of the public domain and is [generally]necessary to accomplish a transfer  



of ownership from the United States."  73B C.J.S. Public Lands  235 (2015) (footnote  



omitted). Patents werecommonly issuedby the federal government in the latenineteenth  


century to incentivize the discovery and development of valuable mineral lands.  See  


Paul  M.  Schoenhard,  Reconceptualizing  Inventive  Conception:  Strengthening,  Not  

                                                                                                ED. C       IR. B.J. 567, 589-90 (2008);                                see also   

Abandoning the First-to-Invent System , 17 F 

Amoco Prod. Co. v. S. Ute Indian Tribe                                                , 526 U.S. 865, 868 (1999).  A patent conveys  

ownership   in   fee   simple   "unless   a   property  interest   was   expressly   reserved   by   the  

government."   Hash v. United States                                         , 403 F.3d 1308, 1316 (Fed. Cir. 2005);                                           see also          73B  


C.J.S. Public Lands, supra.  It "serves in the same capacity as a deed." 73B C.J.S. Public  


Lands, supra .  

               12            See  AS 29.45.330                      .  

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                                               While we have never squarely decided this issue, "it is clearly established                                                                                                                                          

 that federal courts do not have exclusive jurisdiction over litigation involving property                                                                                                                                                                                  

                                                                                                                                                 13        Quite the contrary:  The mere presence of  

 rights deriving from federal land patents."                                                                                                                                                                                                                                                       


 a federal land patent in the chain of title does not alone give rise to federal jurisdiction.                                                                                                                                                                                                               


 For such a dispute to fall within federal court jurisdiction, there must be some basis for  


 federal jurisdiction other than the patent.15   "Once [a land] patent issues, the incidents of  


 ownership are, for the most part, matters of local property law to be vindicated in local  




                        13                    Landi v. Phelps                                        , 740 F.2d 710, 713 (9th Cir. 1984).                                                                                         

                        14                     See Oneida Indian Nation v. Cnty. of Oneida                                                                                                           , 414 U.S. 661, 676-77 (1974)                                                 

 ("Once [a land] patent issues . . . it is normally insufficient for 'arising under' [federal  


 question] jurisdiction merely to allege that ownership of possession is claimed under a                                                                                                                                                                                                              

 United States patent." (citing                                                                     Joy v. City of St. Louis                                                    , 201 U.S. 332, 342-43 (1906)));                                                                              see  

 also Shultis v. McDougal, 225 U.S. 561, 569 (1912) ("A suit to enforce a right which  


 takes its origin in the laws of the United States is not necessarily, or for that reason alone,                                                                                                                                                                                     

 one arising under those laws, for a suit does not so arise unless it really and substantially                                                                                                                                                                

 involves a dispute or controversy respecting the validity, construction, or effect of such                                                                                                                                                                                               

 a law, upon the determination of which the result depends.");                                                                                                                                                  Virgin v. Cnty. of San Luis                                                

 Obispo, 201 F.3d 1141, 1143 (9th Cir. 2000) (per curiam) ("Federal land patents . . . do  


 not provide bases for federal question jurisdiction.");                                                                                                                                   Hilgeford v. Peoples Bank                                                                     , 776   

 F.2d 176, 178 (7th Cir. 1985) (per curiam) ("It is well settled . . . that a controversy                                                                                                                                                                       

 regarding land has never been regarded as presenting a federal question simply because                                                                                                                                                                                       

 one of the parties to it has derived his title from a patent or under an act of Congress.").                                                                                                                                                                                                                

                        15                     See Oneida, 414 U.S. at 676-78.  


                        16                    Id . at 676; see also id. at 683 (Rehnquist, J., concurring) ("[F]ederal courts  


 have  traditionally  been  inhospitable  forums  for  plaintiffs  asserting  federal-question  


jurisdiction of possessory land claims. . . . [T]he grant of a land patent . . . carries with  


 it no guarantee of continuing federal interest and certainly carries with it no indefinitely  


 redeemable passport into federal court.").  


                                                                                                                                                 -6-                                                                                                                                     7091

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                           Pursche cites                  Ware v. Hylton                       to support his contention that property                         

conveyed by federal patent falls outside the subject matter jurisdiction of state courts.                                                                                          

In   Ware   the U.S.                   Supreme Court heard a suit by British creditors against Virginia                                                         

                 18  The creditors invoked a provision of the 1783 Treaty of the Peace between the  


United States and Great Britain,19 which provides that "creditors on either side . . . shall  


meet with no lawful impediment to the recovery of the full value in sterling money, of  


all bona fide debts heretofore contracted."20                                                 The Supreme Court held that this treaty  


provision preempted contrary state law.21  As the superior court recognized, Ware simply  


holds that federal treaties are the supreme law of the land;22  the case does not hold that  


federal land patents are outside the jurisdiction of state courts.  


                           The only basis for federal jurisdiction that Pursche offers is the presence of  


a federal land patent in his chain of title. But the federal government has no continuing  


interest in this property.   We conclude that the superior court, as Alaska's court of  


general jurisdiction, properly exercised jurisdiction over this case.  


              B.	          Land Once Owned By The Federal Government Is Subject To Local  


                           Property Taxes After It Is Conveyed To A Private Party.  


                           There is no dispute regarding the material facts:  Both Pursche and the  


Borough agree that Pursche owns the property in question, the Borough added this  


              17           3 U.S. (3 Dall.) 199 (1796).

              18           Id . at 199.

              19           Id . at 203-04.


              20           Definitive Treaty of Peace Between the United States of America and His  


Brittanic Majesty, U.S.-Gr. Brit., art. IV, Sept. 3, 1783, 8 Stat. 80.                                                           

              21            Ware, 3 U.S. at 235-38.  


              22           Id . at 218.  


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property to the foreclosure list after he stopped paying property taxes, and the property                                                             

has a federal land patent in its chain of title.                                     Therefore this dispute was appropriate for                                 

resolution by summary judgment.               

                         Under   Alaska   law   a   "foreclosure   list   is   prima   facie   evidence   that   the  

                                                                                                                            23   But Pursche argues  

assessment and levy of the tax is valid and that the tax is unpaid."                                                                                      

that his property is exempt from state and local taxation because of the federal land  


patent in its chain of title.  He contends that he "voluntarily paid property taxes to the  


Borough [from 1999] until 2013," when "he decided to invoke his legal rights under the  


[f]ederal [l]and [p]atent [l]aws and desist paying property taxes to the Borough."  


                         Alaska Statute 29.45.030 enumerates the various property tax exemptions  


available under state law, and various additional exemptions are available under the  


Matanuska-Susitna Borough  Code.24                                          But neither  provides for  a tax  exemption  for  


privately owned real property with a federal land patent in its chain of title.  


                          Pursche cites many cases that describe the nature of the title conferred by  


a federal patent, but none holds that federally patented land is exempt from a local  


                                                                                                                                                  25  but this  

property tax.  Pursche also relies on Sargeant & Lahr v. Herrick & Stevens,  


case holds only that patented land is not subject to state or local taxes while it is still held  


             23          AS  29.45.370.  

             24          See,  e.g.,  Matanuska-Susitna  Borough  Code  3.15.030-.035  (2015).  

             25           221  U.S.  404  (1911).   

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by the United States government.                                              On the other hand, it is well established that once                                                

federal land is conveyed to a private party, the land is subject to state and local taxes,                                                                                     

including property taxes.                             27  

                             Pursche's  property is no longer held by the federal government.   The  


authorities he cites fail to rebut the presumption that "the assessment and levy of [this]  


                           28   We conclude that the superior court properly granted summary judgment  

tax is valid."                                                                                                                                                         


to the Borough.  


V.             CONCLUSION  

                             We AFFIRM the superior court's judgment of foreclosure.  


              26             Id . at 406-07 ("[T]he state was without power to tax the land until the                                                                               

equitable title passed from the United States . . . .").                                               

              27             See, e.g., Okla. Tax Comm'n v. Tex. Co., 336 U.S. 342, 353 (1949) ("[I]t  


is  well  established  that  property  purchased  by  a  private  person  from  the  Federal  


Government becomes a part of the general mass of property in the state and must bear  


its fair share of the expenses of local government.  The theoretical burden which state  


. . . property taxation . . . imposes upon the Federal Government is regarded as too  


remote  and  indirect  to  justify  tax  immunity  for  property  purchased  from  that  




              28             AS 29.45.370.  


                                                                                           -9-                                                                                  7091

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