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Parties entitled to initiate an action against the grant of a patent with respect to a public land include[i]:

  • the state; or
  • the person who holds an interest prior to that of a person to whom the patent was issued.


Therefore, a private citizen has no enforceable rights in relation to public lands[ii].  However, where the management and disposition of public lands of the state are in question, the state land commissioners can be authorized to bring or defend suits on behalf of a state.  Likewise, in a mandamus proceeding to prevent an alleged illegal diversion of trust funds produced by lands granted by Congress for specific purposes, the state commissioner of public lands is the appropriate party to the suit.

While in cases involving the surveying and disposal of public lands, the Secretary of the Interior is the appropriate authority to represent the government.  Similarly, in actions concerning grazing privileges in grazing districts the Secretary of the Interior should be made a party.  Some courts have observed that a suit for judicial review of an action of the Interior Department can be brought against the Secretary of the Interior.  But contrary to this, some other courts have observed that such suit must be brought against the U.S., the Department of the Interior, or its subordinate officials[iii].

Generally, a government cannot be sued except by its own consent.  Likewise, no state can pass a law that would make a government subject to suit in its courts.  Hence, without an act of Congress, no direct proceeding can be instituted against the government or its property.  This general rule applies to suits relating to public land as well.  Therefore, a state is prevented from bringing a suit in the U.S. Supreme Court against a federal administrative agency for establishing title to public lands claimed by the state under federal statute[iv].

Likewise, a court judgment involving public lands will not be binding upon the U.S., neither will it affect the title or rights, if the U.S. is not a party to such suit[v].

In litigation based upon decisions of officers and boards administering federal public lands, the officers or boards who passed such decisions are necessary parties.  But, in litigation between private parties upon an assignment of interest that is enforceable between the parties with or without agency approval, the government is not an indispensable party.  However, in cases where the only issue of a suit is the right of possession and where the U.S. has no right of possession, the courts have observed that the U.S. is not an indispensable party.

[i] Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471 (Ind. 1893).

[ii] Pennsylvania v. New Jersey, 426 U.S. 660 (U.S. 1976).

[iii] Gong Poy v. Sahli, 125 F. Supp. 740 (D. Ill. 1954).

[iv] Goldsmith v. Revenue Cutter, 6 Ore. 250 (Or. 1877).

[v] Pennington v. Gibson, 57 U.S. 65 (U.S. 1854).

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