Not for Publication in West's Federal Reporter

Citation is Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-1701

UNITED STATES,

Plaintiff,

COMMONWEALTH OF MASSACHUSETTS,

Intervenor, Appellee,

v.

ROY E. ESTY; HOBART B. ESTY; HOWARD T. ESTY,

Defendants, Appellants,

12,367.47 ACRES OF LAND, MORE OR LESS, LOCATED IN ESSEX COUNTY

MASSACHUSETTS,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Arthur K. Ross, Jr., with whom Peter M. Ross and Ross and Ross

were on the brief, for Appellants.

Frank J. Teague, Special Assistant Attorney General, and

McCullough, Stievater & Polvere, LLP for Intervenor-Appellee. 

February 18, 2004
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Per Curiam. Appellants initiated proceedings to gain

title to a property fifty-three years after the United States

condemned it and nearly forty years after the federal government

transferred title to the Commonwealth of Massachusetts. Their

procedural vehicle for this relief is Fed. R. Civ. P. 60(b).

Agreeing with the district court that the appellants' request for

relief is too late, we affirm.

I.

We provide a brief overview of the historical facts,

which are not materially in dispute. The United States created the

Parker River National Wildlife Refuge in Essex County,

Massachusetts in 1945 by acquiring property through eminent domain.

See United States v. 12,367.47 Acres of Land More or Less Situated

in Essex County, Massachusetts, Civil No. 7010 (D. Mass. Jan. 2,

1945). Before the government could finish compensating all of the

landowners whose property had been taken, Congress passed the 1948

"Exclusion Act," Pub. L. No. 80-579, 62 Stat. 293, to reduce the

size of the wildlife refuge. The Exclusion Act directed the

Secretary of the Interior to "dispose of all of the interests of

the United States" in certain identified plots of land that had

been acquired through the earlier condemnation proceedings. If the

previous owners had already been paid for the property, Section

2(a) of the Act entitled them to regain ownership by returning the

funds to the United States. If the owners had not been paid,
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Section 2(b) directed the Attorney General to return title to the

former owners within ninety days or "within such additional period

as the court in such proceeding may determine to be necessary to

effectuate the purposes of [the] Act." If the government could not

locate the former owners or if title could not be returned under

Sections 2(a) or 2(b) for any other reason, Section 2(c) mandated

that the property "be disposed of in such manner and at such prices

as the Secretary of the Interior may deem to be in the best

interests of the United States." The United States Attorney's

office developed a plan, with the district court's approval, for

implementing the Exclusion Act. This plan was designed to return

property to any former owner who filed a "stipulation for

exclusion," to pay just compensation--as determined by the court--

to the former owners who preferred money instead of their property,

and to provide sufficient time to locate the owners whom the

government was not able to contact. 

The district court, upon motion by the United States

Attorney, extended four times (on September 2, 1948; March 1, 1949;

September 26, 1949; and March 15, 1956) the deadlines by which

former landowners could elect to exclude their property from the

taking. On June 4, 1959, the United States Department of the

Interior, exercising its authority under Section 2(c) of the

Exclusion Act, sold all of the property covered by the Act but not
1Esty had experience with the federal taking and the related

exclusion process since, as a town official, he had participated in

proceedings to exclude another lot under the Exclusion Act. 

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excluded by former owners to the Commonwealth of Massachusetts

Division of Fisheries and Game. 

The property at issue in this case, a 23 acre plot

located in Groveland, Massachusetts and referred to by the parties

as "Lot 95," was owned by the estate of the late William Merrill

prior to the taking by the United States in 1945. The federal

government had not compensated Merrill when Congress passed the

Exclusion Act in 1948, and the U.S. Attorney had not received an

election from the Merrill estate pursuant to the Exclusion Act

prior to the June 4, 1959 sale. Therefore, Lot 95 was included

with the unclaimed properties that the United States transferred to

the Commonwealth in 1959. That land is now included within a

wildlife management area operated by the Commonwealth.

In June 1949, more than four years after the United

States had acquired title to Lot 95, the Town of Groveland

attempted to take title to Lot 95 from the Merrill Estate by

purportedly foreclosing a preexisting tax lien on the lot. On June

30, 1949, the town transferred at auction the putative title to the

lot to Ralph A. Esty,1 a town selectman, a life long resident of

Groveland, and the owner of the Ralph A. Esty and Sons lumber

company. Esty sold the property to his sons, the appellants, in

1953. Although the sons paid taxes on the property for a few
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years, they stopped paying taxes approximately forty-four years

ago. 

The appellants failed to object to either the federal

taking or the transfer of Lot 95 to the Commonwealth until 1998,

fifty-three years after the district court issued its judgment of

taking and nearly forty years after the United States transferred

title to the Commonwealth. Nevertheless, in 1998, the appellants

filed a "Motion to Exclude Lot 95 or to Vacate Judgment Regarding

Lot 95" in the district court. The United States, apparently

believing that it still owned the property, stipulated to the

exclusion without notifying the Commonwealth, and the court issued

a Judgment of Exclusion on February 17, 1999. 

The Commonwealth subsequently objected to this judgment

in a November 8, 1999 letter, stating that it had not received any

notice of either the stipulation or the district court action. On

May 1, 2001, the United States moved to vacate the Judgment of

Exclusion under Fed. R. Civ. P. 60(b), and it entered a joint

motion with the Commonwealth to allow the Commonwealth to

intervene. The court granted both motions on August 1, 2001. On

April 9, 2003, the court granted summary judgment "to the

Commonwealth against the claim of the Estys (as set forth in the

Estys' 'Motion to Exclude Lot 95 or to Vacate Judgment Regarding

Lot 95')." In the body of its opinion, the district court ruled

that "[b]ecause the Estys did not have an interest in Lot 95 at the
2The United States also relied on Rule 60(b) to vacate the

Judgment of Exclusion that had been entered before the Commonwealth

became involved in these proceedings. The appellants claim that

the district court abused its discretion by considering this

motion. Since they only dedicated a paragraph to this claim in

their appellate brief and failed to develop any argument, we

consider this claim to be waived. See United States v. Bongiorno,

106 F.3d 1027, 1034 (1st Cir. 1997) ("We have steadfastly deemed

waived issues raised on appeal in a perfunctory manner, not

accompanied by developed argumentation.").

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time of the taking, they may not invoke the Exclusion Act to void

the sale of Lot 95 to the Commonwealth. Moreover, I find the

period of Exclusion was properly terminated by [the district court]

in 1959." In footnote 1 of its opinion, the district court set

forth an alternative ground for its ruling:

Given (a) the length of the Estys' delay, (b)

the lack of justification, and (c) the

prejudicial disruption of the Commonwealth

conservation efforts at the locus for the past

more than 40 years, I find no extraordinary

circumstances justifying invocation of Rule

60(b) in this setting to divest the

Commonwealth of its title in Lot 95.

Although we agree with the district court's analysis of the merits

of the Estys' claim in its summary judgment ruling, we choose to

focus our brief comments of affirmance on the court's ruling under

Rule 60(b).2

II.

Fed. R. Civ. P. 60(b) allows a court "[o]n motion and

upon such terms as are just, [to] relieve a party . . . from a

final judgment." Pursuant to the subsections of Rule 60(b) not
3The appellants try to avoid the need to explain their delay

by invoking a specious subject matter jurisdiction argument,

apparently on the theory that subject matter jurisdiction can be

raised at any time. Subject matter jurisdiction concerns the

"'power [of the court] to declare the law'" in the dispute before

it. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,

94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).

The appellants argue that the 1948 Exclusion Act stripped the

federal district court of the "power to do anything with Lot 95

except exclude it from the taking." This argument does not

implicate the district court's subject matter jurisdiction in the

1950s in dealing with Lot 95; it is an ordinary and misguided

statutory interpretation argument addressed to the merits of the

court's decision.

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limited by the requirement of filing "not more than one year after

the judgment, order or proceeding was entered or taken," the motion

must be made within a "reasonable time." Fed. R. Civ. P. 60(b)(4)-

(6). "What is 'reasonable' depends upon the circumstances of the

particular case. The circumstances to be considered include the

length of the delay, the justification for it, and the prejudice

(if any) associated with the granting of relief." Farm Credit Bank

v. Ferrera-Goitia, 316 F.3d 62, 66 (1st Cir. 2003) (citation

omitted). The appellants waited thirty-nine years after the United

States transferred title to the Commonwealth to file their motion.

By any measure, that is an exceptionally long delay. When the

appellants finally chose to file their Rule 60 motion, they neither

claimed that they were unaware of the Commonwealth's claim of

ownership nor that their ability to file this motion in a more

timely fashion was impeded in some way. In fact, they failed to

provide any explanation or excuse for their long delay.3 The
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prejudice to the Commonwealth if it were divested of title to Lot

95 is clear. It has relied on the title that it acquired from the

United States for the past forty-five years, through its operation

of a wildlife management area. In sum, we have seldom seen a

weaker claim for 60(b) relief.

Affirmed.