United States of America v. Abernathy

Filing 52

OPINION AND ORDER by Judge Frank H. Seay granting in part and denying in part 36 Motion for Summary Judgment (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,

)
)
)
)
) No. CIV-10-311-FHS
)
)
)
)

Plaintiff,
v.
TONY WAYNE ABERNATHY,
Defendant.

OPINION AND ORDER
Plaintiff, the United States of America (the “United States”),
on behalf of the United States Army Corps of Engineers (the
“Corps”), instituted this action against Defendant, Tony Wayne
Abernathy (“Abernathy”), for injunctive relief contending Abernathy
has (1) interfered with the flowage easement of the United States
on land owned by Abernathy on Eufaula Lake in Oklahoma, (2)
trespassed upon property owned by the United States on Eufaula
Lake, and (3) violated 36 C.F.R. § 327.20 by placing structures on
such Eufaula Lake property owned by the United States.

Now before

the Court for its consideration is the Motion for Summary Judgment
(Doc. No. 36) filed by the United States.

Abernathy has filed his

Response (Doc. No. 41) and the United States has filed its Reply
(Doc. No. 48).

Having considered all matters submitted, the Court

finds that summary judgment in favor of the United States is
appropriate as to its claim for interference with its flowage
easement.

In all other respects, summary judgment should be

denied.

1

FACTUAL BACKGROUND
The relevant facts are undisputed.1
Flowage

Easement

Deed

was

executed

On April 18, 1960, a
by

B.L.

McCullough

(“McCullough”) in favor of the United States whereby McCullough
conveyed to the United States the perpetual right, power, privilege
and easement occasionally to overflow, flood and submerge the land
described as may be required in connection with the operation and
maintenance of the Eufaula Reservoir on the Canadian River.

On

July 15, 1960, the Flowage Easement Deed was recorded in Pittsburg
County, Oklahoma.

The described land is identified in the Flowage

Easement Deed as:
All that part of the following described tracts lying
below elevation 602.0' M.S.L.: SE1/4 SE 1/4 SE 1/4 SW1/4;
W1/2 NE1/4 SE1/4 SE1/4 SW1/4; the Southwest diagnonal
half of the W1/2 SE 1/4 NE1/4 SE1/4 SW1/4; E1/2 W1/2 E1/2
SE1/4 SW1/4; W1/2 SE1/4 NE1/4 SW1/4; S1/2 SW1/4 NE1/4
NE1/4 SW1/4; a tract of land in the SW1/4 NE1/4 SW1/4;
S1/2 S1/2 NW1/4 NE1/4 SW1/4, more particularly described
as: Beginning at the Southwest Corner of said SW1/4 NE1/4
SW1/4; then East 660.00' to the Southeast Corner thereof;
thence North 825.00' to the Northeast Corner of said S1/2
S1/2 NW1/4 NE1/4 SW1/4; thence Southwesterly on a
straight line to the point of beginning; W/12 NW1/4 NE1/4
SE1/4 SW1/4; NW1/4 SW1/4 NE1/4 SE1/4 SW1/4; N1/2 S1/2
NW1/4 SE1/4 SW1/4; N1/2 NW1/4 SE1/4 SW1/4; NE1/4 NE1/4
SW1/4 SW1/4; and N1/2 SE1/4 NE1/4 SW1/4 SW1/4 of Section
16, Township 9 North, Range 17 East of the Indian
Meridian.

1

These undisputed facts are established by the affidavits
of Ida Lafayette (“Lafayette”), the Supervisory Realty Specialist
of the Management and Disposal Branch, Real Estate Division of
the Corps, Tulsa District, and Aimee Jordan (“Jordan”), a Natural
Resources Specialist (Park Ranger) for the Corps, Eufaula Lake
Project Office. As detailed below, Abernathy does dispute one
statement in Jordan’s affidavit relating to an August 29, 2007,
conversation.
2

This land was designated as Tracts H-817E-1 through H-817E-4,
Eufaula Reservoir Project, containing approximately 3.27 acres.
Portions of Lots 23 and 24, Stephenson’s Lakeview 2, Pittsburg
County, Oklahoma, are within the flowage easement Tract H-817E-2,
Eufaula Reservoir Project.

The parties have referenced those

portions of Lots 23 and 24 as the “flowage easement property.”
Abernathy acquired the flowage easement property by virtue of two
quitclaim deeds.

On August 11, 2003, John R. Heusdens executed a

quit claim deed in favor of Abernathy as to the flowage easement
property.

This quit claim deed was filed of record with Pittsburg

County, Oklahoma, on May 26, 2005.

On May 10, 2007, Sandra K.

Heusdens executed a quit claim deed in favor Abernathy as to the
flowage easement property.

This second quit claim deed was filed

of record with Pittsburg County, Oklahoma, on June 5, 2007.
The Flowage Easement Deed acknowledges that the covenant runs
with the land and that “no structures for human habitation shall be
constructed or maintained on the [] land; and further, that no
structure of any type, . . . shall be constructed or maintained on
the

[]

land

except

such

as

may

be

approved

in

writing

representative of the Government in charge of said project.”

by
The

Corps is the entity in charge of the Eufaula Reservoir Project.
The

Corps

has

never

issued

to

Abernathy

a

written

approval

applicable to the flowage easement property.
When Abernathy purchased Lots 23 and 24, Stephenson’s Lakeview
2, Pittsburg County, Oklahoma, there was an existing mobile home on
the property that had a history of flooding.
flooded

again

after

Abernathy’s

purchase

The mobile home

and

he

thereafter

destroyed the old mobile home, burned it, and then added fill to
raise the elevation of the property. On August 29, 2007, fill dirt
was deposited on the flowage easement property.
3

The United States

contends Abernathy was informed by Jordan that he could not fill or
erect a habitable structure on the flowage easement property.

In

his affidavit, Abernathy denies that Jordan made this statement to
him.

Sometime between August 29, 2007, and October 15, 2007, a

mobile

home

Abernathy.

was

placed

on

the

flowage

easement

property

by

Abernathy also built a deck on the flowage easement

property sometime before June 4, 2009.
In his affidavit, Abernathy contends that before he started
any demolition activities or improvements on the flowage easement
property he contacted the Corps to make sure these activities and
improvements were allowed.
talked

with

Ed

In this regard, Abernathy contends he

Parisotto

(“Parisotto”),

a

Natural

Resource

Specialist for the Corps’ Tulsa District, about the “plans for
demolition of the existing mobile home, anticipated site work and
placement

of

another

mobile

home

on

the

[flowage

easement

property].”

Abernathy contends Parisotto told him “it was my

property

that

and

what

I

was

proposing

would

be

allowed.”

Abernathy further states that it wasn’t until after he had removed
the mobile home, placed fill on the property, and purchased a
replacement mobile home that Corps employees, including Jordan,
came to the property and told him “[a]lthough we can not stop you,
you really should not be doing that.”

Abernathy states that in

reliance on Parisotto’s statements he had, by this time, “expended
significant sums of money for the demolition, site clearing, fill
material purchase and haulings as well as the acquisition of
another mobile home.”

Abernathy estimates that he obligated

himself for $85,000 to $95,000 for this work.

He further states

that the existing mobile home had been on the flowage easement
property for decades and he could have simply cleaned it up and
refurbished
regulations.

it

to

stay

in

compliance

with

Corps

rules

and

Finally, Abernathy states that as late as mid-April
4

2008, during a meeting with Corps officials in Tulsa, Parisotto
reiterated his position regarding Abernathy’s actions with respect
to the flowage easement property and, moreover, no Corps official
disputed what Parisotto had told Abernathy.
This

lawsuit

also

involves

allegations

of

trespass

and

unauthorized structures on land owned by the Corps, identified by
the parties as “fee-owned property.” On April 18, 1960, McCullough
sold 103.13 acres, designated as Tract No. H-817, Eufaula Reservoir
Project, to the United States by virtue of a General Warranty Deed
recorded in Pittsburg County, Oklahoma, on July 15, 1960.

This

“fee-owned property” is adjacent to the flowage easement property.
Multiple encroachments have been placed on the fee-owned property.
Abernathy admits that there are multiple encroachments on the feeowned property, but he denies that he placed any such encroachments
on the fee-owned property.
ANALYSIS
Summary

judgment

is

appropriate

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c).

The

Court’s application of this standard requires that it “view the
evidence and draw reasonable inferences therefrom in the light most
favorable to the nonmoving party.” Simms v. Okla. ex rel. Dep’t of
Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 910th
Cir. 1999).

A genuine issue of a material fact exists and summary

judgment is inappropriate “if a rational [trier of fact] could find
in favor of the non-moving party based on the evidence presented.”
Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1216 (10th Cir. 2000).
5

The

facts

as

set

forth

above

clearly

establish

that

Abernathy’s activities on the flowage easement property, i.e. the
addition of fill to raise the elevation level of the property and
the placement of the mobile home, constitute an interference with
the rights of the Corps under the flowage easement deed. This case
is similar to another case arising out of the Eastern District of
Oklahoma involving the Eufaula Reservoir.

In United States v.

Fisher, 496 F.2d 1146 (10th Cir. 1974), the United States Court of
Appeals for the Tenth Circuit affirmed this Court’s determination
that defendants were prohibited from using landfill within a
flowage easement area having an elevation below 602' m.s.l.2

In

Fisher, the government alleged that the defendants had “placed (or
[had] permitted to be placed with their knowledge and consent)
earth fill within the flowage easement areas so as to raise the
surface elevation of the land above 602 feet m.s.l.”. Id. at 1148.
The government further contended that the use of this fill to raise
the elevation of land below 602 feet m.s.l. to above that level
“cannot

circumvent

the

flowage

easement

prohibition

against

construction for human habitation on land with a pre-fill elevation
below 602 feet m.s.l.”.

Id.

In affirming this Court’s ruling in

favor of the government, the Tenth Circuit rejected the defendants’
argument that they had the right to place a “moderate amount” of
landfill on the land.

The Tenth Circuit concluded:

[I]t is clear that the Government’s flowage easement
prohibits the use of landfill to raise the surface
elevation of land below 602 feet m.s.l. to above that
level in order to build structures for human habitation.
Any such claimed right [of a “moderate amount” of
landfill], carried to its logical conclusions, would
allow the removal of all lands presently within the

2

Just like Abernathy, the defendants in Fisher were
successors in title to the ownership of the subject property.
Fisher, 496 F.2d at 1148.
6

easement areas, and consequently would permit the
destruction of the Government’s easement.
The United
States acquired the flowage easement in order to be able
to overflow, flood and submerge the lands in question in
connection with its operation and maintenance of the
Eufaula Reservoir on the Canadian River.
The use of
landfill to raise the elevation of property to above 602
feet m.s.l. thereby removing it from the flowage easement
area, is a material interference with the Government’s
rights under the flowage easement deed. In our view,
such landfilling violates, in general, the overall intent
and purpose of the Government’s easement.
Id. at 1152 (citing United States v. Hughes, 408 F.2d 619 (6th Cir.
1969)).

Similarly, Abernathy’s actions in placing landfill on the

flowage easement property and erecting a new mobile home structure
on such property interferes with the Corps’ rights under the
flowage easement deed.3
Abernathy does not challenge the interpretation of the flowage
easement nor does he dispute the interference with the Corps’
rights, but rather, he contends that the Corps should be equitably
estopped from enforcing its rights under the flowage easement deed
due to the representations made by Corps personnel regarding his
proposed improvements to the flowage easement property.

For good

reason, a particularly stringent burden is placed on a party
seeking to present a case of equitable estoppel against the federal
government.

“Courts

generally

invoke

estoppel

against

the

government ‘only when it does not frustrate the purpose of the

3

In his affidavit, Abernathy acknowledges this
interference but contends his actions of placing the fill and new
mobile home do not create a “greater burden or interference with
the United States Flowage Easement than that which existed before
the improvements by me.” Abernathy Affidavit at ¶ 9. This is an
equitable argument, directed at the nature of the relief
available to the United States, and it does not negate the
undisputed fact that an interference exists.
7

statutes expressing the will of Congress or unduly undermine the
enforcement of the public laws.’” Wade Pediatrics v. Department of
Health

and

Human

Services,

567

F.3d

1202,

2009)(quoting FDIC v. Hulsey, 22 F.3d 1472, 1489 (10
A

party

claiming

estoppel

against

the

(10th

1206
th

federal

Cir.

Cir. 1994)).

government

is

required to show:
(1) the party to be estopped must know the facts; (2) he
must intend that his conduct will be acted upon or must
so act that the party asserting the estoppel has the
right to believe that it was so intended; (3) the latter
must be ignorant of the true facts; and (4) he must rely
on the former’s conduct to his injury.
Lurch v. United States, 719 F.2d 333, 341 (10th Cir. 1983).

In

addition to these traditional elements of equitable estoppel, the
Tenth

Circuit

has

imposed

the

requirement

of

a

showing

of

“affirmative misconduct on the part of the government” in order to
Hulsey, 22 F.3d at 1489-90.

claim equitable estoppel.

“Mere

‘erroneous advice’ will not do.” Wade Pediatrics, 567 F.3d at 1206
(quoting Hulsey, 22 F.3d at 1489-90).
Abernathy’s

attempt

to

invoke

the

doctrine

of

equitable

estoppel against the Corps must fail as the plain language of
flowage easement deed negates any argument that Abernathy was
ignorant of the true facts regarding the necessity to obtain
written approval from the Corps before any structure could be
constructed or maintained on the flowage easement property.

See

Heckler v. Community Health Services of Crawford County, Inc., 467
U.S. 51, 59 n. 10 (“If, at the time when he acted, such party had
knowledge of the truth, or had the means by which with reasonable
diligence he could acquire the knowledge so that it would be
negligence on his part to remain ignorant by not using those means,
he

cannot

claim

to

have

been
8

misled

by

relying

upon

the

representation or concealment.”)(quoting Restatement (Second) of
Torts, § 810, at 219).

The language of the flowage easement deed

is clear: “no structure for human habitation shall be constructed
or maintained on the above-described land; and further, that no
structure of any type . . . shall be constructed or maintained on
the above-described land except as may be approved in writing by
representative of the Government in charge of said project.”
Flowage Easement Deed, Exhibit 1 to United States’ Motion for
Summary Judgment (emphasis added).

As a property owner, Abernathy

is charged with knowledge of the public records concerning his
property including, and in particular, the Flowage Easement Deed.
See Heckler, 467 U.S. at 64 (“As a participant in the Medicare
program, respondent had a duty to familiarize itself with the legal
requirements for cost reimbursement.”).

Abernathy’s reliance on

the alleged oral representations by Parisotto, and the alleged
later affirmations by Corps personnel, simply do not negate or
overcome the knowledge impressed upon Abernathy by virtue of the
clear,

unequivocal

language

of

the

Flowage

Easement

Deed.

Furthermore, any statements or affirmations made to Abernathy which
may have communicated approval of his proposed actions with respect
to the flowage easement property do not rise to the level of
“affirmative misconduct” necessary for the application of equitable
estoppel.
true,

These statements and affirmations, even if taken as

fall

insufficient

in

the

to

category

establish

of

“erroneous

“affirmative

advice”

which

misconduct.”

is

Wade

Pediatrics, 567 F.3d at 1206. Consequently, Abernathy’s attempt to
invoke the doctrine of equitable estoppel is rejected and the
United States is entitled to the entry of summary judgment in its
favor on its claim for injunctive relief related to the flowage
easement property.
With respect to the fee-owned property, however, the Court
9

finds genuine issues of material fact prevent the entry of summary
judgment in favor of the United States. The United States presents
two claims in connection with the fee-owned property: trespass and
a violation of 36 C.F.R. § 327.20.4

Nothing in the evidentiary

record provided by the United States would authorize the entry of
summary judgment against Abernathy on either claim. The affidavits
of Lafayette and Jordan - the sole evidentiary support for the
Motion for Summary Judgment - are devoid of any evidentiary basis
for a finding of trespass and, further, they fail to establish that
Abernathy, as opposed to some predecessor in interest, placed the
“multiple

encroachments”

on

the

fee-owned

property.5

In

his

affidavit, Abernathy denies having placed any encroachments on the
fee-owned property.6

Given this conflicting record, the Court

4

The rules and regulations governing public use of water
resource development projects administered by the Corps, as found
in 36 C.F.R. § 327.20 provides, in part:
The construction, placement, or existence of
any structure . . . of any kind under, upon,
in or over the project lands, or waters is
prohibited unless a permit, lease, license or
other appropriate written authorization has
been issued by the District Commander.
5

These “multiple encroachments” have never been
identified. While counsel for the United States asserts at page
14 of the Motion for Summary Judgment that “[a] Corps Ranger
visited the subject property on October 14, 2009 and observed
unauthorized structures including a shed, a paved drive and
miscellaneous personal property on the fee-owned property,” no
evidentiary record has been submitted to enable the Court to
identify these “multiple encroachments” with any specificity.
6

Abernathy states that he “do[es] not oppose the removal
of any encroachments located on the U.S. fee-owned property
adjacent to my property.” Abernathy Affidavit, ¶ 6. Likewise,
the Court is not aware of any reason why the Corps cannot remove
any structure it may so desire on its fee-owned property. With
the record before it at this stage of the proceedings, however,
the Court is not justified in ordering Abernathy to remove, at
10

finds it inappropriate to enter summary judgment in favor of the
United States with respect to the fee-owned property.
CONCLUSION
Based on the foregoing reasons, the United States’ Motion for
Summary Judgment (Doc. No. 36) is granted as to the flowage
easement property and denied as to the fee-owned property.
Abernathy is hereby ordered to remove, at his own cost, all
fill, structures and/or improvements made to the flowage easement
property and to return the land to an elevation below 602.0' m.s.l.
as set forth under the Flowage Easement Deed.

If requested by

Abernathy, the United States, through Corps officials, shall confer
with Abernathy to assure compliance with this order.
shall comply with this order within 180 days.

Abernathy

Any failure to

comply with this order shall result in the Court entering an order,
upon proper application by the United States, authorizing the
United States to remove the fill, structures and/or improvements,
and return the land to an elevation below 602.0' m.s.l., and
furthering ordering Abernathy to pay all costs incurred by the
United

States.

Abernathy

is

also

permanently

enjoined

from

constructing any further improvements on said flowage easement
property without the approval of the Corps.
Pursuant

to

Rule

54(b)

of

the

Federal

Rules

of

Civil

Procedure, the Court directs the entry of final judgment as to the
United States’ claim with respect to the flowage easement property.
The Court finds no just reason for delaying the entry of judgment
as to the flowage easement property while the remaining claims for

his cost, any such encroachments.
11

trespass and violation of 36 C.F.R. § 327.20, in relation to the
fee-owned property, proceed to trial or other disposition.7
It is so ordered this 4th day of August, 2011.

7

The Court notes that counsel for the parties informed the
Court at the pretrial conference that Abernathy’s deposition
testimony, taken after the submission of briefs in connection
with the Motion for Summary Judgment, may have resolved the
issues on the fee-owned property claims. If not, the Court is
prepared to proceed to trial on those claims.
12