Grindstone Indian Rancheria et al v. Olliff

Filing 37

ORDER signed by District Judge John A. Mendez on 8/13/2019 DENYING 29 Motion for Summary Judgment. (Huang, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GRINDSTONE INDIAN RANCHERIA
and ONE HUNDRED PLUS MEN,
WOMEN AND CHILDREN LIVING ON
THE GRINDSTONE INDIAN
RESERVATION,

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Plaintiffs,

No.

2:17-cv-02292-JAM-EFB

ORDER DENYING PLAINTIFFS’ MOTION
FOR SUMMARY ADJUDICATION

v.
TERRENCE OLLIFF, individually
and as a beneficiary/trustee
of the Olliff Family Trust,
DIANNE L. OLLIFF,
individually and as a
beneficiary/trustee of the
Olliff Family Trust, and DOES
1-10,
Defendants.
This case arises out of a dispute between Defendants

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Terrence and Dianne Olliff and Plaintiffs Grindstone Indian

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Ranceria et.al. over who owns a fifty-foot-wide strip of land

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between their properties.

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Indian Rancheria and 100 of its residents (collectively

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“Plaintiffs”) sued the Olliffs for trespass, intentional

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infliction of emotional distress (“IIED”), negligent infliction

In October of 2017, the Grindstone

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of emotional distress (“NIED”), and declaratory judgment.

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Compl., ECF No. 1.

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Plaintiffs’ filed an amended complaint, adding claims for

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conversion and civil harassment.

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No. 10-2.

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Pursuant to the parties’ stipulation,

First Am. Compl. (“FAC”), ECF

In response, Defendants raised four counterclaims.

Answer

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at 15-26, ECF No. 12.

The Court dismissed the counterclaims

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without prejudice because Defendants failed to plead an exception

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to Grindstone’s tribal immunity.

Order Granting Mot. to Dismiss,

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ECF No. 21.

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did not attempt to revive their counterclaims.

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Defendants filed an amended answer, ECF No. 22, but

Plaintiffs filed a motion for summary adjudication on their

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declaratory judgment claim.

Mot. for Summ. Adjudication

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(“Mot.”), ECF No. 29.

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No. 32.

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of material fact exist, the Court DENIES Plaintiffs’ motion for

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summary adjudication.1

Defendants oppose this motion.

Opp’n, ECF

Because Defendants have demonstrated that genuine issues

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I.

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FACTUAL ALLEGATIONS

The Grindstone Indians are a federally-recognized Indian

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Tribe.

Response to Statement of Undisputed Facts (“RSUF”) ¶ 1,

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ECF No. 32-3.

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trust for the Grindstone Indians: a parcel recorded in 1909 (“80-

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acre Parcel”) and a parcel recorded in 1994 (“Parcel 2”).

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¶ 2.

The United States holds two parcels of land in

RSUF

Parcel 2’s southern border lies along a portion of the 80-

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for August 13, 2019.
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acre Parcel’s northern border.

RSUF ¶ 3.

The Olliffs’ property

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is adjacent to the western borders of both the 80-acre Parcel and

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Parcel 2.

Id.

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BLM Survey, Exh. A. to Duran Decl., ECF No. 29-4.

The parties

dispute whether the area between points 14, 20, and 19 (“disputed
strip of land”) is part of Parcel 2 or part of the Olliff Parcel.
RSUF ¶ 4.
In 2011, the Bureau of Land Management (“BLM”) surveyed
Parcel 2.

RSUF ¶ 5.

See also BLM Survey.

The Olliffs

informally objected to the results of the survey, arguing they
either owned or held a prescriptive easement over a portion of
land that the BLM included in Parcel 2.

RSUF ¶ 6.

The Olliffs

did not, however, formally protest BLM’s findings within 60 days
of receiving the survey.

RSUF ¶ 9.

The BLM Survey purported to resolve a discrepancy between
two prior surveys: the Pride Survey (conducted in 1976) and the
Knock Survey (conducted in 1893).
32-3, see also BLM Survey at 14.

See Disputed Fact ¶ 7, ECF No.
The Knock Survey used a cedar

post to mark the corner of the “center south 1/16 section,” i.e.,
point 14.

Id.

The Pride survey, however, declined to recognize

Knock’s cedar post as the center south 1/16 section corner.
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Id.

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Rather, Pride set the corner 48.15 ft. east of the cedar post,

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i.e., point 20.

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survey found “the Knock monument . . . functions as the NW corner

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of the Grindstone Indian Rancheria, being that property described

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in the deed filed April 30, 1909.”

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Id.

Notwithstanding the Pride survey, the BLM

Id.

The parties advance two contrasting interpretations of what

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the BLM Survey says regarding who owns the disputed strip of

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land.

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monument not only to the northwest corner of the 80-acre parcel,

Plaintiffs’ position is that the survey adopted the Knock

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but also for the southwest corner of Parcel 2.

DF ¶ 7.

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Conversely, Defendants maintain the BLM survey did not displace

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the Pride survey with respect to Parcel 2’s boundaries;

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therefore, the Pride monument functions as the southwest corner

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of Parcel 2.

Id.

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II.

OPINION

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A.

Legal Standard

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A Court must grant a party’s motion for summary judgment

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“if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter

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of law.”

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initial burden of “informing the district court of the basis for

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its motion, and identifying [the documents] which it believes

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demonstrate the absence of a genuine issue of a material fact.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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material if it “might affect the outcome of the suit under the

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governing law.”

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248 (1986).

Fed. R. Civ. Proc. 56(a).

The movant bears the

A fact is

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

Once the movant makes this initial showing, the
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burden rests upon the nonmoving party to “set forth specific

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facts showing that there is a genuine issue for trial.”

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issue of fact is genuine if “the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.”

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Id.

Id.

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B.

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An

Evidentiary Objections

Defendants raised evidentiary objections to ¶¶ 7-8 in

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Plaintiffs’ statement of undisputed facts.

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argue that these two “undisputed facts” misstate the evidence

They

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cited.

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of Hoagland’s Declaration (¶ 3 and Exh. C), ECF No. 29-3, as well

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as portions of Kirk’s Declaration (¶¶ 6, 14-15), ECF No. 29-5.

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Objections, ECF No. 32-4.

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No. 35-1.

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The court agrees.

RSUF ¶¶ 7-8.

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Defendants also objected to portions

Plaintiffs responded.

Response, ECF

Objection 1

Paragraph 3 of Hoagland’s declaration states, “I have

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reviewed and authenticated as true and correct copies all

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exhibits attached hereto.”

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arrows pointing to the disputed strip of land alongside a caption

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that says, “Unwritten rights and or use may exist for Parcel 2 of

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Book 5 P.M. 43.”

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speculative.

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Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th

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Cir. 1979)).

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their objection.

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discuss the sufficiency of evidence adduced by non-moving parties

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to defeat a motion for summary judgment, rather than the evidence

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brought by a moving party to satisfy his initial burden.

Accompanying Exhibit C contains

Defendants argue this caption is impermissibly

Objection at 2-3. (citing Fed. R. Civ. Proc. 56(e);

The authority Defendants cite does not support
Both Rule 56(e) and Thornhill,594 F.2d at 738

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Furthermore, Hoagland’s sworn affidavit contends his survey was

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based on “experience as a Professional Land Surveyor with the

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State of California and as an employee of Compass Consulting

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Incorporated.”

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Defendants’ objection is OVERRULED.

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2.

Hoagland Decl. ¶¶ 4-7; Response at 2-3.

Objection 2

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Paragraph 6 of Kirk’s Declaration says, “However, for

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decades prior to 1994, the Grindstone Indians used portions of

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Parcel 2 for ingress and egress to the Rancheria.

This use was

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open and obvious.”

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are conclusory, lack foundation, and are vague and ambiguous.

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Objection at 3.

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foundation.

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the Tribe’s Chairman does not necessarily afford him personal

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knowledge of what Parcel 2 was used for or for how long.

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Response at 3.

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3.

Defendants object, arguing the statements

The Court agrees that the statements lack

Contrary to what Plaintiffs argue, Kirk’s role as

See

Defendants’ objection is SUSTAINED.
Objection 3

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Paragraph 14 of Kirk’s Declaration says, “The BLM Survey

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determined that in 1976, Surveyor George Pride had moved a marker

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that had been in existence for more than eighty years by the

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original surveyor T.S. Knock in 1983.”

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arguing the statement is conclusory, hearsay lacking foundation,

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and misstates the evidence.

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that this statement misstates the evidence, and is not, as

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Plaintiffs argue, “an accurate paraphrase of the BLM Field

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Notes.”

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///

See Response at 4.

Defendants object,

Objection at 4.

The Court agrees

Defendants’ objection is SUSTAINED.

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4.

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Objection 4

Paragraph 15 of Kirk’s Declaration says, “The 2011 BLM

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survey re-established the original Knock boundary line,

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Overruling [sic] Pride’s boundary line, and providing the

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disputed land along the border between Parcel 2 and the Olliff

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Parcel to the Grindstone Rancheria.”

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statement is conclusory, hearsay lacking foundation, and

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misstates the evidence.

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the statement misstates the evidence.

Defendants contend this

Objection at 5.

The Court agrees that

Kirk’s interpretation of

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the BLM Survey and accompanying field notes go beyond what the

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BLM expressly concluded.

Defendants’ objection is SUSTAINED.

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C.

Analysis

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The Declaratory Judgment Act allows a district court to

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“declare the rights and other legal relations of any interest

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party seeking such declaration.”

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Plaintiffs request a declaration from the Court affirming that

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the Bureau of Land Management’s 2011 Cadastral Survey

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conclusively established Grindstone Rancheria’s ownership of the

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disputed strip of land.

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because the question of whether the BLM Survey included the

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disputed strip of land in Parcel 2 is a genuine issue of material

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fact.

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28 U.S.C. § 2201(a).

Here,

The Court denies Plaintiffs’ motion

Plaintiffs correctly maintain that federal law grants the

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BLM authority perform cadastral surveys of public lands.

See

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Mot. at 13-14.

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establishing the boundaries of public land.

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because Defendants failed to timely protest the BLM Survey in

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2011, they are barred from doing so now.

These surveys, they argue, are dispositive in

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Mot. 12-15.

Mot. at 16-18.

And

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Defendants, however, neither refute BLM’s authority to prescribe

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the metes and bounds of public land nor the conclusiveness of the

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2011 survey.

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does not include the disputed strip of land as part of Parcel 2.

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Opp’n at 7.

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Rather, they contend the BLM Survey, on its face,

Defendants concede that the BLM Survey is dispositive in

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prescribing the boundaries of Parcel 2.

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accept that the Knock monument functions as the northwest corner

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of the 80-acre Parcel.

Opp’n at 3.

Opp’n at 3-4.

They also

But they reject Plaintiffs’

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contention that the BLM Survey also set the Knock monument as the

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southwest corner of Parcel 2.

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Defendants’ brief support their opposition.

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White Decl., ECF No. 32-1.

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reasonable juror could interpret Parcel 2 and the 80-acre Parcel

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as having two different corners.

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BLM Survey, and the White Survey all show an unaccounted-for gap

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between the line that appears to be the western border of Parcel

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2 and the line that appears to be the eastern border of the

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Olliffs’ property.

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Opp’n at 4-5, 7.

The exhibits to

See Exh. A-C to

Relying on these exhibits, a

See id.

The Pride Survey, the

See id.

Plaintiffs’ opening brief does not identify anything in the

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BLM Survey or otherwise that accounts for this gap or clearly

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states that Parcel 2’s western border extends as far as the 80-

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acre Parcel’s western border.

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counsels the Court against accepting Plaintiffs’ interpretation

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of the BLM Survey.

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response to Defendants’ informal objections to the 2011 survey.

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///

In fact, one of their exhibits

Exhibit B to Duran’s declaration is the BLM’s

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The letter states:
With acceptance of Knock’s center south 1/16 corner,
the monuments set during the 1976 survey by Pride to
mark the corners of Parcel 2, were accepted during our
resurvey as marking the corner of said parcel, but not
as points on the north and south centerline of the
section.

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Exh. B. to Duran Decl. at 1.

This statement is wholly consistent

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with Defendants’ argument that the Knock monument marks the

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northwest corner of the 80-acre Parcel and the Pride monument

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marks the southwest corner of Parcel 2.

See Opp’n at 3-5, 7.

It

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also reinforces Defendants’ position that they are not attempting

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to challenge the BLM Survey; in this respect, they agree with it.

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Plaintiffs’ reply does not meaningfully respond to

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Defendants’ argument that disputed issues of fact preclude

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summary adjudication.

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(“Reply”), ECF No. 35.

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that Defendants failed to timely exhaust their administrative

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remedies and are now using a “backdoor approach” to “completely

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contradict and challenge the BLM Survey.”

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Despite these accusations, Plaintiffs are the only ones who seek

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to muddle the distinction between interpreting the BLM’s survey

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and challenging the validity of that survey.

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Citing the APA, 5 U.S.C. § 704, Plaintiffs argue the Court is

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without authority to interpret the BLM Survey.

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This argument misses the mark.

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the accuracy of an administrative decision under certain

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circumstances.

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ability to discern how an agency’s decision applies to a set of

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facts.

Reply ISO Mot. for Summ. Adjudication
Instead, they double-down on their theory

5 U.S.C. § 702.

Reply at 2-5.

See Reply at 3-4.

Reply at 3-4.

The APA allows courts to review

It does not curtail the Court’s

As explained above, Defendants do not challenge the
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accuracy of the BLM Survey; they challenge Plaintiffs’ reading of

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it.

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Anticipating their exhaustion argument might fail,

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Plaintiffs contend they are entitled to summary adjudication

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because neither adverse possession nor prescriptive easements are

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permitted on Indian land.

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fail, as they assume what has not yet been proven: that

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Grindstone Rancheria ever owned the disputed strip of land.

Mot. 17-18.

Both of these arguments

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Finally, Plaintiffs insist the Court should grant their

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motion for summary adjudication even if they failed to prove

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their ownership interest in the disputed strip.

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Reply at 4-5.

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proving ownership on non-Indians—here, the Olliffs—when there’s a

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property dispute between Indians and non-Indians.

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quite.

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ownership on non-Indians until “the Indian [has made] out a

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presumption of title in himself from the fact of previous

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possession or ownership.”

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previously owned the land and who previously possessed it.

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DF ¶¶ 8, 13-15.

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matter of law, that they are entitled to Section 194’s

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presumption.

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their ownership of the disputed strip of land to defeat

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Plaintiffs’ motion.

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Mot. at 15-16;

They argue 25 U.S.C. § 194 places the burden of

Id.

Not

Section 194 does not place the burden of proving

The parties dispute both who
See

Given this dispute, Plaintiffs cannot show, as a

Accordingly, Defendants were not obliged to prove

Questions of “where the line run by a survey lies on the

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ground, and whether any particular tract is on one side or the

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other of that line, are questions of fact.”

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State Inv. Co., 264 U.S. 206, 211 (1924), see also U.S. v.
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United States v.

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Pappas, 814 F.2d 1342, 1343 n.2 (9th Cir. 1987).

These issues of

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fact are material and preclude the Court from granting summary

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adjudication on Plaintiffs’ declaratory judgment claim.

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III.

ORDER

For the reasons set forth above, the Court DENIES

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Plaintiffs’ motion for summary adjudication on their declaratory

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judgment claim.

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IT IS SO ORDERED.
Dated:

August 13, 2019

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