Nielson v. United States of America et al

Filing 16

MEMORANDUM DECISION AND ORDER It is ORDERED that Defendant United States of America's Motion to Dismiss (Dkt. 5) is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 4:16-cv-00216-REB

STEVE NIELSON,
Plaintiff,

MEMORANDUM DECISION
AND ORDER ON DEFENDANT’S
MOTION TO DISMISS

vs.
UNITED STATES OF AMERICA, BUREAU OF
LAND MANAGEMENT, a United States agency
within the United States Department of the Interior,
Defendant.

Currently pending before the Court is Defendant United States of America’s Motion to
Dismiss (Dkt. 5). Having carefully considered the record and otherwise being fully advised, the
undersigned enters the following Memorandum Decision and Order.
I. HISTORICAL BACKGROUND
Prior to Idaho’s statehood in 1890, the United States held the beds of navigable waters in
trust and upon statehood, these lands passed to the State of Idaho.1 States surveyors surveyed
Idaho and all bodies of water running through Idaho, including the Snake River, in the late 19th
century. The intention of the United States was to deed much of the platted land to private

1

The equal footing doctrine governs how new States join the United States and under
the doctrine, each State enters the union on equal footing with the original States. The equal
footing doctrine applies to lands under navigable waters and under the doctrine, the United
States is understood to have held lands under navigable waters in trust for future States, such
that, when new States entered the union, they would take title to the lands under navigable
waters within their borders, as did the original States. See, generally, Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 283 (1997); Utah Div. of State Lands v. United States, 482 U.S.
193, 196 (1987).
MEMORANDUM DECISION AND ORDER- 1

settlers by way of “patent deed.” Accordingly, real property owned by private individuals and
entities can trace the chain of title to their real property to a United States patent deed.
In 1893 and 1901, the United States issued patents to Plaintiff’s predecessors-in-interest
for the land adjacent to the Snake River that Plaintiff now owns. See Stenquist Aff., Ex. C; see
also Pollard v. Hagan, 44 U.S. 212 (1845) (the United States did not own the beds of navigable
waters, but merely held these lands in trust for the new states - ownership that immediately
inured to the new states on the date of statehood); Utah Div. of State Lands v. United States, 482
U.S. 193, 195-198 (1987) (lands underlying navigable waters have historically been considered
“sovereign lands” and state ownership of them has been considered an essential attribute of
sovereignty); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283-84 (1997) (same).
II. FACTUAL BACKGROUND
On May 26, 2016, Plaintiff Steve Nielson (“Plaintiff”) filed this complaint pursuant to
the Quiet Title Act, 28 U.S.C. § 2049a, et seq., seeking to quiet title to 15.79 acres of land
located south and east of the Snake River in Bingham County, Idaho. The land is located in the
“Part of the Northeast 1/4 Section 36 Township 1 North Range 36 East, [Boise Meridian], also
part of the Northwest 1/4 Section 31 Township 1 North Range 1 East [Boise Meridian] Bingham
Count, Idaho” (hereinafter, “the Property”). Compl. (Dkt. 1) at p. 2 (containing full legal
description).
Plaintiff holds title to three parcels of land south of the Property at issue, in Bingham
County. Id at ¶ 9. In the nature of such things, as rivers ebb and flow and spring freshets
remodel the course and channels of a waterway, the banks and beds of navigable streams change
location and character. Such a process leads, in some instances, to “accretion,” by which the size
of the land adjacent to the waterway increases. “Accretion of land is of two kinds: by alluvion,
MEMORANDUM DECISION AND ORDER- 2

i.e., by the washing up of sand or soil, so as to form firm ground; or by dereliction, such as when
the sea shrinks below the usual water-mark.” Black’s Law Dictionary, (6th ed. 1990).
The Property consists of accreted land located along the banks of the Snake River that
has formed by accretion from the Snake River over the past 100 years. Id. at ¶¶ 7- 8. Plaintiff
holds title to the three parcels south of the Property. Id. at ¶ 9. Plaintiff and his predecessors-ininterest have occupied and cultivated the Property for over 20 years. Id. at ¶ 10. Included in the
Property is land that has not passed to any party by way of real property deed, and all portions of
the Property not specifically conveyed to Plaintiff has accreted from the Snake River to real
property owned by Plaintiff and his predecessors-in-interest. Id. at ¶¶ 24-25.
Plaintiff alleges that he has not discovered a patent deed in the chain of title to the
Property. He is concerned that in the absence of such a patent deed, the United States may claim
an ownership interest or seek an interest in the Property which is adverse to Plaintiff’s interest
and he therefore seeks an order from this Court quieting title to the accreted Property in his
name. Id. ¶¶ 31-34.
To set further context, Plaintiff alleges that the State of Idaho, through Governor Otter,
has executed a disclaimer of interest disclaiming all interest in the Property. Id. ¶ 27. Similarly,
the City of Shelley, City of Ammon, County of Bingham, and County of Bonneville, in their
individual capacities and in their capacity as owners and managers of the Eastern Idaho
Wastewater Authority (“EIRWWA”) and EIRWWA in its individual capacity, have also
disclaimed any potential interest, excepting easements, in the Property. Id. at ¶ 28. Plaintiff also
contends that his title to the Property is unmarketable because two title companies doing

MEMORANDUM DECISION AND ORDER- 3

business in Bingham County, Idaho have each issued “Title Insurance Commitments” that state
that the United States is the outright owner of the Property. See Stenquist Aff., Ex. B (Dkt.12).
III. RULE 12(b)(1) LEGAL STANDARD
This court is a court of limited jurisdiction. Pursuant to Federal Rule of Civil Procedure
12(b)(1), the United States claims the action must be dismissed based on lack of subject matter
jurisdiction. In order to establish subject matter jurisdiction against the United States, there must
be: (1) “statutory authority vesting a district court with subject matter jurisdiction”; and (2) “a
waiver of sovereign immunity.” Alvardo v. Table Mountain Racheria, 509 F.3d 1008, 1016 (9th
Cir. 2007). The burden is on the party bringing the action to establish both elements of subject
matter jurisdiction against the United States. Dunn & Black P.S. v. United States, 492 F.3d
1084, 1087-88 (9th Cir. 2007); Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
When considering a motion to dismiss based on a lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), the Court is not restricted to the face of the pleadings, but may review
any evidence to resolve factual disputes concerning the existence of jurisdiction. McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988).
IV. ANALYSIS
The beginning place in any dispute such as this is the black letter rule that suits against
the government are barred for lack of subject matter jurisdiction unless the government expressly
and unequivocally waives its sovereign immunity. Fed. Deposit Ins. Corp.v. Meyer, 510 U.S.
471, 475 (1994); Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011). One such waiver
of sovereign immunity is found in the Quiet Title Act, 28 U.S.C. § 2409a (“QTA”), which allows
suit against the United States as a defendant in a civil action “to adjudicate a disputed title to real

MEMORANDUM DECISION AND ORDER- 4

property in which the United States claims an interest.” Id. § 2409a(a). This statute “‘provide[s]
the exclusive means by which adverse claimants [can] challenge the United States’ title to real
property,’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. – ,
132 S.Ct. 2199, 2207 (2012).
Two conditions must exist under § 2409a(a) before a district court can exercise
jurisdiction over an action under the QTA: (1) the United States must claim an interest in the
property at issue; and (2) there must be a disputed title to real property. Leisoni, Inc. v. United
States, 170 F.3d 1188, 1191 (9th Cir. 1999). In construing the scope of the QTA’s waiver, the
requirement that the title at issue be “disputed” is read narrowly. Alaska v. United States, 201
F.3d 1154, 1164-65 (9th Cir. 2000). For a title to be disputed for the purposes of the QTA, the
United States must have adopted a position in conflict with a third party regarding that title. See
id.; Mills v. United States, 742 F.3d 400, 405 (9th Cir. 2014).
Plaintiff argues that there is a dispute, because: (1) the United States failed to patent the
Property, at the time of the patenting process, and thereby the United States retained its claim to
the Property2; and (2) the title companies assert that the United States owns the Property in fee
simple, thus rendering the Property unmarketable and otherwise clouding title thereof.

2

Plaintiff contends this occurred because the surveyors hired by the United States to
survey the property adjacent to the Snake River in the 19th century drew meander lines along the
borders of the Snake River and by doing so the United States “claimed an explicit possessory
interest” in the Property. See Pl.’s Mem., Dkt. 10, pp. 6-7. Plaintiff does not submit this survey
which shows the meander lines. Regardless, the general rule is that meander lines are run for the
purpose of defining the sinuosities or natural curves of the banks of the stream, not the
boundaries of upland lots. See 11 C.J.S. Boundaries §§ 55-56; Snake River Ranch v. United
States, 395 F. Supp. 886, 900 (D. Wyo. 1975).

MEMORANDUM DECISION AND ORDER- 5

Plaintiff contends that the United States retained its ownership interest to the Property
because the Property was located under the waters of the Snake River at the time of the patenting
process. See Pl.’s Mem., p. 3. This is not supported by the law or facts. As discussed above, the
beds of navigable waters were held in trust for the States and upon Statehood, transferred to the
States. The real property adjacent to navigable waters was deeded to private individuals and
entities via a patent deed, the means by which Plaintiff’s predecessors-in-interest acquired title to
the land Plaintiff now owns. Any accreted land to that property then became part of the land to
which Plaintiff’s predecessors-in-interest had title. The doctrine of accretion establishes that the
grantee of land bounded by a body of navigable water acquires a right to any natural and gradual
accretion formed along the shore. See Hughes v. State of Washington, 389 U.S. 290, 293 (1967);
State of Nebraska v. State of Iowa, 143 U.S. 359 (1892). Pursuant to this doctrine, the
Government contends that Plaintiff’s predecessor-in-title acquired title to any new land that was
naturally formed by accretion. Additionally, the Government contends that it has never
expressed an intent to retain any interest in any submerged or accreted lands and has denied that
it claims any interest in the property. See Dkt. 5-2 (a letter from BLM Realty Specialist Rebecca
Lazdauskas to Plaintiff’s counsel on October 6, 2015, stating that the “United States, managed
through the Department of Interior Bureau of Land Management, does not claim any portions of
[the Property] . . . All of the lands within those described legal descriptions have been patented
out of federal ownership. . . Once the lands have been patented, subsequent ownership
documents are tracked by the County in which they are located.”)
Plaintiff contends this does not suffice as a “disclaimer of interest” and until the
Government files such a disclaimer, the Government may retain its claim in the Property. But,

MEMORANDUM DECISION AND ORDER- 6

the Government contends that title is not “disputed” and contends, therefore, that the QTA
waiver of sovereign immunity does not apply, thus depriving this Court of subject matter
jurisdiction. These facts are analogous to those in Alaska v. United States, 201 F.3d 1154 (9th
Cir. 2000), in which the State of Alaska sought to quiet title to three riverbeds. As to one – the
Black River riverbed–the United States had never “expressly asserted a claim on.” Id. at 1164.
That fact, the court ruled, was the stopping point for any further inquiry: “the United States
reserves a right to start a dispute, and has not disclaimed any interest. There may well be a
dispute at some time . . .[ b]ut whatever dispute there may be, it has not yet occurred.” Id. at
1165. In that setting, there was no jurisdiction because “title cannot be said to be ‘disputed’ by
the United States if [the United States] has never disputed it.” Id.3
The court’s rationale with respect to the Black River stood in contrast to the two other
riverbeds it addressed, that of the Nation and Kandik Rivers. With respect to those rivers, the
United States had taken a position in an earlier administrative law proceeding that these rivers
were not navigable at statehood and therefore belonged to the United States. Id. at 1158. From
that, the court held that there was “no question that the Untied States did actively assert a claim
of ownership,” therefore there was disputed title to the property and the court had jurisdiction.
Id. at 1160, 1163.

3

Plaintiff relies on Leisoni for the proposition that a “third party’s claim of an interest of
the United States satisfies the two Leisoni prongs if that assertion clouds the plaintiff’s” title. See
Pl.’s Mem., Dkt. 10, p. 5. Such reliance is misplaced. That discussion from Leisoni is in
reference to a third party’s filing of a notice of lis pendens on behalf of the United States. 170
F.3d at 1190. That is distinguishable from the facts before the Court here; no third party is
claiming an interest on behalf of the United States.

MEMORANDUM DECISION AND ORDER- 7

The holding in the Alaska case with respect to the Black River is a template for this case.
At least so far as the record in this case reveals, the United States has never asserted any claim of
ownership (considered discretely or broadly) to the accreted Property that Plaintiff seeks to quiet
title to and has never disputed Plaintiff’s interest in or title to the Property. This presents a
practical impediment to Plaintiff, given the dilemma raised by the language of the Title
Commitments, but the practical concerns fall into the category of what the court in Alaska
described as worries over a “federal dog in the manger.” But, there is no space for judicial
intervention as to that concern because: “The statute as it stands does not enable [a federal
court] to repair this practical problem.” Id. at 1165. The fact that the United States did not
disclaim its interest in the riverbed in the Alaska case did not vest jurisdiction in the federal court
under the QTA, even if it caused practical problems. Id.4
Any waiver of sovereign immunity is to be strictly construed in favor of the sovereign
and must be expressed unequivocally. United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992).
Similarly, the QTA’s waiver of immunity requiring that there must be “disputed” title to the
property is also to be read narrowly. Alaska v. United States, 201 F.3d 1154, 1164-65 (9th Cir.
2000). Accordingly, there is no disputed title to the Property coming from the United States and

4

The resulting situation appears to allow for no absolute guarantees of the sort Plaintiff
would seek – that is, the title company is unwilling to insure against the risk that the United
States might dispute title at some future date, and (presumably) potential lot buyers would be
unwilling to purchase (or lenders would be unwilling to lend) without so-called “clear” title
against whatever interest the United States might have. Perhaps the ruling required by the law in
this case will shift those risks to some degree, but ultimately the risk is a business/economic risk
that the law cannot further define in this case. Each of the parties along the path to future
transfers of the property can make their own decisions as to whether to accept (or, depending
upon which side of the transaction one might occupy, indemnify against) the risk. There may
well be a solution, but the solution sought in this case is not available to Plaintiff.

MEMORANDUM DECISION AND ORDER- 8

the QTA’s waiver of immunity does not apply. The Court lacks subject matter jurisdiction and
must dismiss this case.
ORDER
IT IS THEREFORE ORDERED that Defendant United States of America’s Motion to
Dismiss (Dkt. 5) is GRANTED.

DATED: March 22, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER- 9