Hein et al v. United States of America et al

Filing 44

FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that the United States motion to dismiss (ECF 36 ) be DENIED to the extent it seeks dismissal based on Rule 12(b)(1), but GRANTED to the extent it seeks dismissal based on Rule 12(b)(6), with leave to amend. Signed by Magistrate Judge Carolyn S Ostby on 11/18/2015. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ESTATE OF WILLIAM HEIN
and ARLENE HEIN,

CV 14-55-BLG-SPW-CSO

FINDINGS AND
RECOMMENDATIONS OF
UNITED STATES
MAGISTRATE JUDGE

Plaintiffs,
vs.
UNITED STATES OF AMERICA,
DEPARTMENT OF THE
INTERIOR,
Respondent.

Plaintiffs Estate of William Hein and Arlene Hein (“the Heins”)
seek to quiet title to certain real property contiguous to Arrow Creek
and south of and along the Yellowstone River between Worden and
Pompey’s Pillar in Montana. First Am. Cmplt. to Quiet Title (ECF 34)1;
Memorandum in Support of United States’ Mtn. to Dismiss (ECF 37) at
2. Now pending is Respondent United States’ motion to dismiss
brought under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure.2 Mtn. to Dismiss (ECF 36). For the reasons that follow, the
1

“ECF” refers to the document as numbered in the Court’s Electronic
Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3.
2

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
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Court enters the recommendations discussed below.
I.

BACKGROUND3
The Heins own parcels of real property which they describe as

follows:
Lot 11, Section 21, T.3N., R.29E., PMM;
Lots 9 through 18, Section 22, T.3N., R.29E., PMM; and
Lots 3, 13, 14, 15, and 16, Section 23, T.3N., R.29E., PMM.
ECF 34 at ¶¶ 3, 21, and 27. The parcels are in an area that once was
part of the Crow Indian Reservation.
As this Court described it in Crow Tribe of Indians v. United
States, 657 F.Supp. 573, 575 (D. Mont. 1985), rev’d on other grounds,
819 F.3d 895 (9th Cir. 1987):
The Crow Reservation was first set apart by the Treaty of
Fort Laramie, 11 Stat. 749 (1851), and encompassed 38.5
million acres in what is now southern Montana and
northern Wyoming. The second Treaty of Fort Laramie,
entered into in 1868, 15 Stat. 649, reduced the Crow
Reservation to 8 million acres situated entirely within what
is now the State of Montana. The 1868 treaty set apart the
reservation for the absolute and undisturbed use and
occupation of the Crow Tribe. Montana v. United States,
3

The Court compiled the background facts from the Heins’ First
Amended Complaint, the parties’ submissions related to the United
States’ motion to dismiss, and the cases cited. The facts are undisputed
unless otherwise noted.
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450 U.S. 544, 547-48 (1981).
The 1868 Treaty of Fort Laramie (“1868 Treaty”) also established
the boundaries of the Crow Indian Reservation as follows:
“[C]ommencing where the 107th degree of longitude west of
Greenwich crosses the south boundary of Montana
Territory; thence north along said 107th meridian to the
mid-channel of the Yellowstone River; thence up said
mid-channel of the Yellowstone to the point where it crosses
the said southern boundary of Montana, being the 45th
degree of north latitude; and thence east along said parallel
of latitude to the place of beginning....” Second Treaty of
Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650.
Montana v. United States, 450 U.S. 544, 553 n.4 (1981). Thus, the
Crow Indian Reservation was bounded on the north and west by the
mid-channel of the Yellowstone River.
As noted by the Ninth Circuit in Fidelity Exploration and
Production Co. v. United States, 506 F.3d 1182, 1184-85 (9th Cir. 2007):
Montana joined the Union in 1889. By virtue of the
Enabling Act of Feb. 22, 1889, 25 Stat. 676, it did so “on an
equal footing with the original States . . . .” Id. at 679.
Accordingly, Montana along with all new states held title to
the land that lay under navigable waters at the time of
statehood; this title could, however, be defeated by a
“prestatehood conveyance of the land to a private party for a
public purpose appropriate to the Territory[,]” Utah Div. Of
State Lands v. United States, 482 U.S. 193, 197 (1987), or by
a reservation of submerged lands to keep them “under
federal control for an appropriate public purpose,” United
States v. Alaska, 521 U.S. 1, 33-34 (1997).
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Before and shortly after Montana’s entry into the Union in 1889,
the Crow Indian Reservation boundaries changed somewhat.
The 1868 treaty was followed by three major cessions of
territory by the Crow Tribe: the Act of April 11, 1882, 22
Stat. 42, the Act of March 3, 1891, 26 Stat. 989, and the Act
of April 27, 1904, 33 Stat. 352. The third, 1904, cession
reduced the Crow Reservation to its present boundaries and
created the “ceded strip,” an area consisting of about
1,137,500 acres which lies to the north of the acknowledged
reservation.
Crow Tribe of Indians v. United States, 657 F.Supp. at 575.
The Heins’ parcels at issue in this action are within the so-called
ceded strip. The Heins and their predecessors, through a series of
patents issued between 1918 and 1960, acquired the parcels, which lie
south of and are bounded on the north by the Yellowstone River in the
Huntley Reclamation Project irrigation district. ECF 37-1 – 37-7.4
Through the action now before the Court, the Heins seek to quiet
title to the parcels. They claim in Counts I and II of their First
Amended Complaint that when the lots at issue were surveyed, “one or
more of their boundaries was the high water mark of the Yellowstone

4

The Court notes that none of the patents filed by the United
States in support of its motion to dismiss include Lot 16, Section 23. In
responding to the motion, the Heins did not discuss the ownership of
Lot 16, Section 23.
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River” and that “[b]y Montana [l]aw, they also own the land to the low
water mark of the Yellowstone River” so that the lots “were conveyed to
the water.” ECF 34 at ¶¶ 17 and 23. In Count III, they claim that
when the lots at issue were surveyed, “one or more of their boundaries
was the high water mark of Arrow Creek (or a branch of the
Yellowstone River)” and that “[b]y Montana [l]aw, they also own the
land to the low water mark of Arrow Creek , or if it is deemed a nonnavigable body of water, the middle of Arrow Creek . . .” so that “these
lots were conveyed to the water, or the middle of the creek.” Id. at ¶
29.
The Heins named the United States of America as a defendant as
“the former owner of the Lots in question as well as the owner of land
surrounding these parcels.” Id. at ¶ 4. They named the Department of
the Interior because it “is the department of the federal government to
which Congress delegated specific authority to administer the public
lands under federal law.” Id. at ¶ 5. The Heins assert that
a controversy exists as to whether the Ceded Strip, which
includes the Lots at issue, was or was not transferred to
[the] State of Montana at Statehood as it was then part of
the Crow Indian Reservation. A similar controversy exists
with respect to the Yellowstone River and its bed located
within the Ceded Strip.
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Id. at ¶ 9.
II.

PARTIES’ ARGUMENTS
The United States advances two principal arguments in moving

for dismissal of the Heins’ action. First, it argues that the Court lacks
subject matter jurisdiction because the Heins failed to file their action
within the Quiet Title Act’s 12-year statute of limitations. ECF 37 at 412.
Specifically, the United States argues that: (1) subject to certain
exceptions, the United States’ sovereign immunity may be waived
where, as here, an adverse claimant challenges the United States’ title
to real property under the Quiet Title Act (“QTA”), id. at 5-6; (2) as a
jurisdictional prerequisite, a QTA claim must be brought within 12
years of the claim’s accrual, id. at 6; (3) the claim’s accrual is
determined by the date the claimant or claimant’s predecessor in
interest knew or should have known of the United States’ claimed
interest, id. at 7; (4) whether a claimant should have known is
determined under a reasonableness test, id.; (5) here, the Heins’
predecessors in interest knew or should have known of the United
States’ interest in the properly as early as 1868 because the 1868

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Treaty reserved the subject land for the Crow Indians up to the midchannel of the Yellowstone River and the banks of Arrow Creek, id. at
8; (6) the United States exercised its prerogative, through the 1868
Treaty, to confer riparian lands south of the mid-channel of the
Yellowstone River to the Crow Indians so that Montana, when it
became a state in 1889, could not take title to the bed and banks of the
subject portion of the Yellowstone River or to the banks of Arrow Creek,
id. at 8-9; (7) “[s]ince 1868, the United States has continuously held
title to the south half of the Yellowstone River[,]” a fact the Heins’
predecessors should have known, making the Heins’ current claims 134
years too late, id. at 9-10; and (8) the Heins or their predecessors also
should have known of the United States’ claim to the parcels when the
patents were issued – between 1918 and 1960 – because such grants
from the United States do not pass title below the high-water mark
absent explicit language not present in the subject patents, so the QTA
statute of limitations expired no later than 1972, which is more than 42
years ago, id. at 10-11.
Second, the United States argues that the Court should dismiss
the Heins’ claims because the Heins have failed to state a claim upon

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which relief can be granted under Rule 12(b)(6), Fed. R. Civ. P. Id. at
12-14. It argues that the Heins’ First Amended Complaint brought
under the QTA fails to identify with sufficient particularity the “right,
title, or interest” that they claim. Specifically, the United States
argues that it cannot be discerned from the Heins’ allegations precisely
to what real property they seek to quiet title. Id. at 12. Although the
Heins identify “aliquot part lot descriptions,” the United States argues,
“those lots are not the real property where [the Heins] seek to quiet
title[,]” but rather they “seek to acquire title to real property on the
opposite side of the lot boundaries they say were defined by the high
water marks of the Yellowstone River and Arrow Creek in 1922.” Id. at
13. Because the boundaries described by the 1922 survey have since
changed because of the natural flow of the Yellowstone River, the
United States argues, neither it nor the Court can “discern from the
First Amended Complaint the current actual locations of the high and
low water marks of the Yellowstone River or Arrow Creek.” Id. Thus,
it argues, such lines might now, after 93 years, “currently sit[ ] atop a
third party’s ownership interest.” Id. Because of the imprecision of the
Heins’ allegations, the United States argues, it “and the Court cannot

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assess the propriety of [the Heins’] requests, or determine if third
parties are necessary for this adjudication[,]” so the Heins have failed
to “set forth with particularity the title which they seek to quiet
through these QTA proceedings[,]” and their complaint fails to state a
claim. Id. at 14 (internal quotations omitted).
In response, the Heins first argue that their claims under the
QTA are not untimely as argued by the United States. Heins’ Resp. Br.
(ECF 40) at 5-10. They argue that: (1) as an initial matter, the United
States apparently concedes that it has no valid claim of interest in
those portions of the parcels at issue between the meander line and the
high water mark because it did not mention the area in its brief, id. at
6; (2) the United States no longer has an interest in the land below the
high water mark under the Treaty of 1868 because: (a) the United
States Supreme Court, in Montana v. United States, 450 U.S. 544
(1981), held that the Crow treaties did not overcome the presumption
that the beds of navigable rivers remain in trust for future states and
pass to the new states when they achieve statehood, id. at 7-8; (b) even
though the case dealt with the bed of the Bighorn River, the same
reasoning applies to the bed of the Yellowstone River; and (c) when

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Montana became a state in 1889, it obtained the bed of the Yellowstone
River, id. at 8; (3) because the United States did not retain ownership
of the bed of the Yellowstone River, the Heins and their predecessors
could not have reasonably known that the United States claimed an
interest in the riverbed and the Heins’ claims thus are not untimely
under the QTA, id. at 9; and (4) the patents would not have put a
reasonable person on notice of any claim by the United States to the
portion of the parcels below the high water mark because: (a) as noted,
that land was conveyed to Montana when it became a state in 1889,
which predated issuance of all of the patents; (b) Montana law provides
that a riparian land owner owns to the low water mark of navigable
rivers; (c) thus, it would be reasonable for the Heins and their
predecessors to assume that they owned the land to the low water
marks, regardless of the patents’ wording, id. at 9-10.
Second, the Heins argue that, to the extent the United States’
motion is brought under Rule 12(b)(6), it should fail because they have
described the right, title, and interest that they claim with sufficient
particularity. Id. at 10. They argue that their claims describe the
specific lots involved, allege their ownership of them, and adequately

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describe the portions of the lots at issue. Id. at 10-11. Also, they
request that, if the Court concludes that they did not adequately allege
their right, title, or interest with the required specificity, the Court
afford them the opportunity to amend to cure any defects. Id. at 11-12.
In reply, the United States argues that the Heins’ reliance on
Montana v. United States, 450 U.S. 544 (1981), is misplaced for two
reasons. First, it challenges the Heins’ position that the United States
no longer has an interest in the land below the high water mark of the
Yellowstone River because of the Supreme Court’s holding in Montana
v. United States. United States’ Reply Br. (ECF 43) at 2-4. It argues
that the case dealt with the Bighorn River, which lies completely
within the boundaries of the Crow Indian Reservation. The instant
case, on the other hand, involves the Yellowstone River, which is
different, it argues, because it “is explicitly referenced in the verbiage
of the 1868 Treaty” making it “a better candidate for preemption of
state title when Montana entered the Union[.]” Id. at 3.
Second, the United States argues, the Yellowstone River defined
part of the boundary of the Crow Indian Reservation so that
“conveyance to Montana of all the bed and banks [of the Yellowstone

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River] would confound the explicit boundary designation.” Id. A river
as a boundary, the United States argues, “creates different potential
problems than a river wholly encompassed because, on the border,
claims and competing uses from adjacent non-Indian interests are a
certainty.” Id. This use of the river as a boundary for the creation of
an Indian Reservation, it argues, may be an “appropriate public
purpose” that allows Congress to reserve and set aside federal land
interests to preempt a state from acquiring such interests upon
achieving statehood. Id.
Finally, the United States argues that the Heins are not excused
from the QTA’s prerequisite for particularity for claims pleading simply
because the real property at issue is adjacent to rivers with constantly
changing high and low water marks. Id. at 4-6. It argues that
although “the water levels may vary over the course of days or weeks,
[the Heins] offer nothing to suggest that the ordinary high water mark,
i.e., the line where the water stands sufficiently long to destroy
vegetation below it, is subject to such ephemeral vicissitudes.” Id. at 6
(citation and internal quotation marks omitted). Because the Heins
have failed to specifically allege the nature of the interests where they

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seek to quiet title, the United States argues, the Court must dismiss
their QTA claims for failure to state a claim under Rule 12(b)(6) Id.
III. LEGAL STANDARDS
A.

Rule 12(b)(1)

Rule 12(b)(1) allows a defendant to raise the defense, by motion,
that the Court lacks subject matter jurisdiction over an entire action or
over specific claims alleged in the action. And, of course, a federal court
always “ha[s] an independent obligation to address sua sponte whether
[it] has subject-matter jurisdiction.” Dittman v. California, 191 F.3d
1020, 1025 (9th Cir. 1999). “A motion to dismiss for lack of subject
matter jurisdiction may either attack the allegations of the complaint
or may be made as a ‘speaking motion’ attacking the existence of
subject matter jurisdiction in fact.” Thornhill Publishing Co. v. General
Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When, as here, a Rule 12(b)(1) motion attacks the existence of
subject matter jurisdiction, no presumption of truthfulness attaches to
the plaintiff’s allegations. Id. “[T]he district court is not restricted to
the face of the pleadings, but may review any evidence, such as
affidavits and testimony, to resolve factual disputes concerning the

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existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560
(9th Cir. 1988). “However, where the jurisdictional issue and
substantive issues are so intertwined that the question of jurisdiction is
dependent on the resolution of factual issues going to the merits, the
jurisdictional determination should await a determination of the
relevant facts on either a motion going to the merits or at trial.”
Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). When a
Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction
in fact, plaintiff has the burden of establishing that such jurisdiction
does in fact exist. Thornhill Publishing Co., 594 F.2d at 733.
B.

Rule 12(b)(6)

“Dismissal under Rule 12(b)(6) is proper only when the complaint
either (1) lacks a cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710
F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The Court’s standard of
review under Rule 12(b)(6) is informed by Rule 8(a)(2), which requires
that a pleading contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

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U.S. 662, 677-678 (2009) (quoting Fed. R. Civ. P 8(a)).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. at 678. “A claim has
facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A plausibility determination is context
specific, and courts must draw on judicial experience and common
sense in evaluating a complaint. Levitt v. Yelp! Inc., 2014 WL 4290615,
*10 (9th Cir. 2014).
A court considering a Rule 12(b)(6) motion must accept as true the
allegations of the complaint and must construe those allegations in the
light most favorable to the nonmoving party. See, e.g., Wyler Summit
Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th
Cir. 1998). “However, a court need not accept as true unreasonable
inferences, unwarranted deductions of fact, or conclusory legal
allegations cast in the form of factual allegations.” Summit Technology,
Inc. v. High-Line Medical Instruments Co., Inc., 922 F.Supp. 299, 304
(C.D. Cal. 1996) (citing Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981) cert. denied, 454 U.S. 1031 (1981)).
“Generally, a district court may not consider any material beyond
the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios,
Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990)
(citations omitted). But a court may consider material which is
properly submitted as part of the complaint and matters which may be
judicially noticed pursuant to Federal Rule of Evidence 201 without
converting the motion to dismiss into a motion for summary judgment.
Id.; see also Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994).
IV.

DISCUSSION
A.

The United States’ Rule 12(b)(1) Motion

As noted, the United States first argues that the Heins’ QTA
action is barred by the applicable statute of limitations, thus depriving
this Court of subject matter jurisdiction. ECF 37 at 4-12. On the
current record, the Court concludes that the jurisdictional issue and the
substantive issues in this quiet title action are so intertwined that the
jurisdictional determination necessarily must await the determination
of relevant facts, either through a motion on the merits or at trial.
Augustine, 704 F.2d at 1077. Thus, the Court, for the reasons that

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follow, will recommend that the motion to dismiss be denied to the
extent it is premised on Rule 12(b)(1).
The QTA “waives the federal government’s sovereign immunity to
certain civil actions by plaintiffs seeking to quiet title to property in
which the United States claims an interest.” Kingman Reef Atoll
Investments, LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
The QTA provides, in relevant part:
The United States may be named as a party defendant in a
civil action under this section to adjudicate a disputed title
to real property in which the United States claims an
interest, other than a security interest or water rights.
28 U.S.C. § 2409a(a). The QTA’s limitations period is set forth in 28
U.S.C. § 2409a(g), as follows:
Any civil action under this section, except for an action
brought by a State, shall be barred unless it is commenced
within twelve years of the date upon which it accrued. Such
action shall be deemed to have accrued on the date the
plaintiff or his predecessor in interest knew or should have
known of the claim of the United States.
28 U.S.C. § 2409a(g). “Knowledge or notice of such a claim is subject to
a test of reasonableness.” LNG Development, LLC v. U.S. Army Corps
of Engineers, 2015 WL 5155079, *6 (D. Ore., Aug. 31, 2015) (citing
McIntyre v. United States, 789 F.2d 1408, 1411 (9th Cir. 1986);

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California ex rel. State Land Comm’n v. Yuba Goldfields, Inc., 752 F.2d
393, 396 (9th Cir. 1985) (finding that “the words ‘should have known’ ...
impart a test of reasonableness” and that the government need not
“communicate its claim in clear and unambiguous terms”)). “Although
ordinarily the defendant bears the burden of proving an affirmative
statute of limitations defense, here the statute of limitations is
jurisdictional, and, ‘[w]hen subject matter jurisdiction is challenged
under [Rule] 12(b)(1), the plaintiff has the burden of proving
jurisdiction in order to survive the motion.’” Kingman Reef Atoll
Investments, 541 F.3d at 1197 (citation omitted).
“The court must strictly construe the Quiet Title Act’s statute of
limitations in favor of the government.” Shultz v. Dep’t of Army, 886
F.2d 1157, 1159 (9th Cir. 1989). Thus, “[k]nowledge of the claim’s full
contours is not required. All that is necessary is a reasonable
awareness that the Government claims some interest adverse to the
plaintiff’s.” LNG Development, supra (quoting Kingman Reef Atoll
Investments, L.L.C. v. United States, 545 F.Supp.2d 1103, 1110-11 (D.
Hawai‘i 2007), aff’d, 541 F.3d 1189 (9th Cir. 2008)). And, the QTA’s
“statute of limitations applies retroactively,” so that it is not relevant

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whether the plaintiffs’ predecessors in interest were put on notice of
any interest by the United States in the real property at issue before
enactment of the QTA. Kingman Reef Atoll Investments, 541 F.3d at
1197 (quoting Donnelly v. United States, 850 F.2d 1313, 1318 (9th Cir.
1988) (citing Block v. North Dakota, 461 U.S. 273, 284 (1983)).
“The Supreme Court has held that this limitations period is ‘a
central condition of the consent given by the Act.’” Fidelity Exploration
and Production Co. v. United States, 506 F.3d 1182, 1185-86 (9th Cir.
2007) (quoting United States v. Mottaz, 476 U.S. 834, 843 (1986)). “It is
therefore subject to the rule that ‘when Congress attaches conditions to
legislation waiving the sovereign immunity of the United States, those
conditions must be strictly observed, and exceptions thereto are not to
be lightly implied.’” Id. at 1186 (quoting Block, 461 U.S. at 287). And,
“although a court ‘should not construe such a time-bar provision unduly
restrictively,’ it must ‘be careful not to interpret it in a manner that
would extend the waiver beyond that which Congress intended.’” Id.
(quoting Block, 461 U.S. at 287). Where, as here, a claimant seeks “fee
title [to the property at issue as opposed to a non-possessory interest
such as an easement], ‘notice of a government claim that created even a

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cloud on the title may be sufficient to trigger the limitations period.’”
McFarland v. Norton, 425 F.3d 724, 726 (9th Cir. 2005) (quoting Michel
v. United States, 65 F.3d 130, 132 (9th Cir. 1995) (citation omitted)).
In the case at hand, the Heins filed their Complaint on April 29,
2014. Cmplt. (ECF 1) at 1. Thus, to fall within the QTA’s 12-year
limitations period, their quiet title action against the United States
would have had to accrue on or after April 29, 2002. Based on the
foregoing authority, if the Heins’ action accrued before April 29, 2002,
the Court lacks subject matter jurisdiction over the action. Id. (“[W]e
treat the statute of limitations in the QTA as jurisdictional.”); see also
Kingman Reef Atoll Investments, LLC, 541 F.3d at 1195-96 (9th Cir.
2008) (quoting Block, 461 U.S. at 292) (“The running of the twelve-year
limitations period deprives federal courts of ‘jurisdiction to inquire into
the merits’ of an action brought under the QTA.”).
Having considered the parties’ arguments and submissions in light
of the authority discussed above, the Court is unable to conclude, on the
current record, whether the Heins or their predecessors in interest
knew, or should have known, of an interest by the United States in the
subject real property before 2002. In part because of the lack of

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particularity in the Heins’ First Amended Complaint, discussed infra, it
is unclear whether the United States claimed any interest or reasonably
could have claimed any interest in the subject land during the relevant
time frame. The record is not sufficiently developed at this point to
make such a determination, and it would be premature at this juncture
in the proceedings for the Court to do so.
As noted above, the 1868 Treaty, in establishing the boundaries of
the Crow Indian Reservation, provided that all lands up to the midchannel of the Yellowstone River fell within the reservation, as follows:
“[C]ommencing where the 107th degree of longitude west of
Greenwich crosses the south boundary of Montana Territory;
thence north along said 107th meridian to the mid-channel of
the Yellowstone River; thence up said mid-channel of the
Yellowstone to the point where it crosses the said southern
boundary of Montana, being the 45th degree of north
latitude; and thence east along said parallel of latitude to the
place of beginning....” Second Treaty of Fort Laramie, May 7,
1868, Art. II, 15 Stat. 650.
Montana v. United States, 450 U.S. 544, 553 n.4 (1981). The Heins do
not dispute in their response to the United States’ motion that this
treaty encompassed the parcels at issue in this action, including the real
property below the high water mark of the Yellowstone River and the
banks of Arrow Creek.

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But, as noted, subsequent Acts of Congress resulted in “major
cessions of territory by the Crow Tribe[,]” at least one of which reduced
the reservation to its present boundaries and created the ceded strip.
Crow Tribe of Indians v. United States, 657 F.Supp. at 575. And the
current record does not shed any light on whether the cessions of land
affected the parcels at issue here. For example, the record does not
address: (1) the timing of the cession by the Crow Tribe of the specific
parcels at issue in this case (likely, in part, because of the lack of
specificity in their descriptions, as discussed infra); (2) whether the
United States then held them in trust for the Crow Tribe; or (3) whether
the United States otherwise conveyed them in a way that could have
defeated Montana’s title to the land at the time it achieved statehood.
See Fidelity Exploration, 506 F.3d at 1184. In other words, there is
insufficient information of record to permit the Court to determine
whether the Heins’ predecessors in interest should have known that the
United States claims some interest in the land that is adverse to them.
Because of the lack of information in the current record respecting
the land at issue, the patents filed by the United States in support of its
motion are of limited use. If, as the Heins contend, the land at issue

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was conveyed to Montana when it became a state in 1889, the Heins’
predecessors in interest would have no reason to know of any claimed
interest in the land by the United States. At this point, and on the
current record, the Court is simply unable to make that determination.
For these reasons, the Court concludes that the United States’
motion to dismiss for lack of subject matter jurisdiction should be
denied. After further development of the record, however, the United
States, if appropriate, should be permitted to renew its motion on this
basis.
B.

The United States Rule 12(b)(6) Motion

The United States argues that the Heins have failed to state a
claim upon which relief can be granted because they have failed to
identify with sufficient particularity the right, title, or interest that they
claim. ECF 37 at 12-14. The Court agrees.
The QTA requires that a complaint “set forth with particularity
the nature of the right, title, or interest which the plaintiff claims in the
real property, the circumstances under which it was acquired, and the
right, title, or interest claimed by the United States.” 28 U.S.C. §
2409a(d). The Ninth Circuit has determined that, in the context of

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§ 2409a(d), “set forth with particularity” means that a plaintiff must
state allegations describing “the nature of the right, title, or interest
which the plaintiff claims in the real property” with “a great deal of
specificity.” McMaster v. United States, 731 F.3d 881, 897-98 (9th Cir.
2013). Failure to do so subjects the complaint to dismissal under Rule
12(b)(6).
Here, reviewing the allegations in the Heins’ First Amended
Complaint, the Court concludes that they have failed to include in their
allegations the requisite specificity to comply with § 2409a(d). They
have not set forth with precision the real property over which they seek
to quiet title. Although they describe certain lots, the lots themselves
are not the land at issue. Rather, they seek to quiet title to certain real
property that they define by meander, high, and low water marks on the
Yellowstone River and Arrow Creek from a survey conducted in 1922 –
boundaries that they acknowledge have changed “by the natural causes
of the flow” of water over the years. ECF 34 at ¶¶ 18, 24, and 30. As
noted by the United States, in the 93 years since the 1922 survey, it is
quite possible that the marks could have moved enough that they might
overlap with land under ownership that is not involved in this action.

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Without more information, it is impossible to tell.
Based on the foregoing, the Court concludes that the Heins have
not “set forth with particularity” the title which they seek to quiet
through this QTA action, and their First Amended Complaint should be
dismissed for failure to state a claim. When a Rule 12(b)(6) motion is
granted, leave to amend should be granted unless doing so would be
futile. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
Here, the Court concludes that amendment of the complaint would not
be futile, so further recommends that the Heins be afforded an
opportunity to amend to correct the deficiencies in their current
pleading.
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the United

States’ motion to dismiss (ECF 36) be DENIED to the extent it seeks
dismissal based on Rule 12(b)(1), but GRANTED to the extent it seeks
dismissal based on Rule 12(b)(6), with leave to amend.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that

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pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 18th day of November, 2015.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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