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Shultz v. Department of Army

filed: September 20, 1996.

PAUL G. SHULTZ, PLAINTIFF-APPELLANT,
v.
DEPARTMENT OF ARMY, UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeals from the United States District Court for the District of Alaska. D.C. No. CV-86-30-AJK. Andrew J. Kleinfeld, District Judge, Presiding. This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of November 30,.

Before: Mary M. Schroeder, Betty B. Fletcher and Arthur L. Alarcon, Circuit Judges. Dissent by Judge Alarcon.

Per Curiam:

The government's petition for rehearing is granted, the opinion of November 30, 1993 at 10 F.3d 649 is withdrawn, and the following opinion is substituted in its place.

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).

AFFIRMED.

Disposition

AFFIRMED.

ALARCON, Circuit Judge, Dissenting:

I respectfully Dissent.

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).

19960920

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