STATE OF ND EX REL. BD. OF UNIV., ETC. v. Andrus

• Decision Date: 04 February 1981
• Docket Number: No. A78-1092.,A78-1092.
• Citation: 506 F. Supp. 619
• Parties: The STATE OF NORTH DAKOTA, ex rel. BOARD OF UNIVERSITY AND SCHOOL LANDS, Plaintiff, v. Cecil ANDRUS, Secretary of the Interior; Bob Bergland, Secretary of Agriculture; Frank Gregg, Director of the United States Bureau of Land Management; and John R. McGuire, Chief of the United States Forest Service, Defendants.
• Court: U.S. District Court — District of South Dakota

506 F. Supp. 619

The STATE OF NORTH DAKOTA, ex rel. BOARD OF UNIVERSITY AND SCHOOL LANDS, Plaintiff, v. Cecil ANDRUS, Secretary of the Interior; Bob Bergland, Secretary of Agriculture; Frank Gregg, Director of the United States Bureau of Land Management; and John R. McGuire, Chief of the United States Forest Service, Defendants.

No. A78-1092.

United States District Court, D. North Dakota, Southwestern Division.

February 4, 1981.

COPYRIGHT MATERIAL OMITTED

Thomas O. Smith, Asst. Atty. Gen., Bismarck, N. D., Owen L. Anderson, Asst. Atty. Gen., Grand Forks, N. D., and John W. Morrison, Jr., Asst. Atty. Gen., State Land Dept., Bismarck, N. D., for plaintiff.

Herbert Becker, Asst. U. S. Atty., Fargo, N. D., for defendants.

MEMORANDUM and ORDER

VAN SICKLE, District Judge.

This is a civil action by the State of North Dakota which seeks relief from the actions of the Secretary of the Interior, the Secretary of Agriculture, the Director of the United States Bureau of Land Management, and the Chief of the United States Forest Service, who are engaged in leasing portions of the bed of the Little Missouri River for oil and gas development, and in other proprietary activities incompatible with the State's claimed ownership of the Little Missouri River bed.

This Court has jurisdiction by virtue of 28 U.S.C. § 2409a (quiet title), and 28 U.S.C. § 1331 (federal question). The relief sought is available under 28 U.S.C. § 1361 (mandamus), and 28 U.S.C. §§ 2201 and 2202 (declaratory judgment and further relief).

The Constitutional reference to actions between a state and the United States is:

"In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have Jurisdiction."

United States Constitution, Article III, Section 2.

Chief Justice Marshall assumed that the Supreme Court's original jurisdiction was also exclusive. The statutes from 1789 to the present have proceeded on a different theory and have distinguished between situations in which the Supreme Court is given exclusive jurisdiction and those in which its jurisdiction is concurrent with that of the lower federal courts. The validity of such a division is now settled. Charles Alan Wright, Law of the Federal Courts, 3d Ed., p. 556. Suit by a state against the United States is not permitted except in those instances where the United States has consented to be sued. Wright, supra, p. 558 and Utah v. U. S. (1969), 394 U.S. 89, 89 S.Ct. 761, 22 L.Ed.2d 99.

So in order to proceed further with this action, this Court must determine that:

a. The Supreme Court's jurisdiction in this action by a state against the United States, and testing a sovereign's entitlement to land, is not exclusive; and

b. That this is an area where the United States has consented to be sued.

The problem of exclusive jurisdiction: 28 U.S.C. § 2409a provides in part that:

"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."

Thus it seems clear that in actions to quiet title wherein the United States claims an interest, the Congress has empowered a district court to hear the matter. The State of North Dakota has selected this forum so there is no problem of its consent that the action be tried at this level. The Supreme Court may, of course, exercise its discretion to invoke its original jurisdiction,¹ but until it does so there is no problem of its consent that the matter remain at the district court level.

The problem of consent to be sued: This is an instance where the United States has consented to be sued. See Utah, supra.

The first issue which must be resolved is the question of navigability of the Little Missouri River. As pointed out in Livingston v. United States, 627 F.2d 165 (8th Cir. 1980), "navigability" means different things under different circumstances.

But for our purposes "navigability" means navigability at the date of statehood, Utah v. United States, 403 U.S. 9, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971). A river is a navigable river when it is used or susceptible of being used in its ordinary condition as a highway for commerce over which trade and travel may be conducted in the customary modes of trade and travel on water, Utah, supra, p. 9, 91 S.Ct. p. 1775.

"The lake was used as a highway and that is the gist of the federal test." Utah, supra, p. 11, 91 S.Ct. p. 1776.

The entire valley of the Little Missouri River lies within the Louisiana Purchase of 1803. The Fort Berthold Indian Reservation was carved out of the federal public domain by the Act of March 3, 1891, 26 Statutes 1032, two years after the admission of North Dakota as a state, October 1, 1889.

The Three Affiliated Tribes have such an interest in this litigation that resolution of the claims to any portion of the bed of the Little Missouri River which lies wholly within the Fort Berthold Reservation can only be effective if the Three Affiliated Tribes are before the Court. The area of interest to the Three Affiliated Tribes is that portion of the river bed downstream from the west line of Section 31, Township 147 North, Range 92 West of the 5th Principal Meridian, Dunn County, North Dakota, to the mouth of the Little Missouri River. The Three Affiliated Tribes also have an interest in this litigation insofar as it may involve the bed of the stream along the southerly border of the Fort Berthold Reservation from a point on the west line of Lot 10 of Section 34, Township 148 North, Range 95 West of the Principal Meridian, to the aforementioned point on the west line of Section 31.

Therefore, any orders in this matter shall not be concerned with the bed of the Little Missouri River below the west line of Lot 10, Section 34, Township 148 North, Range 95 West.

The River's history of navigability and use for trade and travel predates the identification of the river by the Corps of Discovery.

Baptiste Le Page, a French Canadian, who had been in the Cote Noir (Black Hills) with the Cheyennes, came downstream on the Little Missouri to the Mandan Village on the Big Missouri at the mouth of the Knife River, near where the Corps of Discovery had built its winter quarters (Fort Mandan). On November 3, 1804 he was "signed on" with the Corps of Discovery.² And it is important to note that the Little Missouri River was the most convenient downstream route from the area of Devils Tower, northwest of the Black Hills to the Knife River settlement of Mandans, and as such was clearly an established channel of commerce between those two centers. Meriweather Lewis viewed the mouth of the river after discussing it with Le Page, and commented:

"The Little Missouri disembogues on the S. side of the Missouri 1693 miles from the confluence of the latter with the Mississippi, it is 134 yeards wide at it's mouth, and sets in with a bould current but it's greatest debth is not more than 2½ feet. It's navigation is extreemly difficult, owing to its rapidity, shoals and sand bars it may however be navigated with small canoes a considerable distance. This river passes through the Northern extremity of the black hills where it is very narrow and rapid and it's banks high an(d) perpendicular. it takes it's rise in a broken country West of the Black hills with the waters of the yellow stone river, and a considerable distance S.W. of the point at which it passes the black hills."³

The river continued navigable into the turn of the century, witness the logging operation of Eber H. Bly, 1881 and 1882.⁴ Finally, the river presently carries approximately 200 canoes each year. The trip usually runs from Medora to the Lost Bridge, where it terminates in the waters of Lake Sakakawea. However the trips can easily originate as far upstream as the Devils Tower.⁵

Thus I conclude that the Little Missouri River was navigable in fact on October 1, 1889, and continues to be navigable to this date.⁶

Since the Little Missouri River is a navigable stream, title to the bed of that stream is originally vested in the State of North Dakota.

The "Shively Doctrine" as articulated in Shively v. Bowlby, 152 U.S. 1, at 26-31, 14 S.Ct. 548, at 557-59, 38 L.Ed. 331 (1894) is that: There is a presumption that lands underlying navigable waters pass to the state upon its admission into the Union because of the Constitutional doctrine of equal footing. This doctrine rises not from an express Constitutional provision, but from the interpretation of the Constitution by the Supreme Court, that this country is a union of political equals. Case v. Toftus, 39 F. 730, p. 732 (C.C.D.Or.1889). The Shively Doctrine is also explained as consistent with enabling legislation which provides for admission of the state "on an equal footing with the original states." See United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950), where the equal footing principle worked to the disadvantage of Texas. In the Enabling Act which provided for the statehood of North Dakota, the "equal footing" language reads:

"(North Dakota) ... shall be deemed admitted by congress into the union on an equal footing with the original states." The Enabling Act, Chapter 180, 25 U. S. Statutes at Large, 676 Sec. 7.

The original states of the Union, by virtue of the Revolution and their sovereignty, succeeded to the English Crown's title and dominion to the land underlying navigable waters. Thus it was held that:

"... to deny to the states admitted subsequent to the formation of the Union, ownership of this property would deny them admission on an equal footing with the original States, since the original States did not grant these properties to the United States, but reserved them to themselves." United States v. Texas, supra, p. 716, 70 S.Ct. p. 922.

In fact, once the factual issue of navigability is determined, North Dakota's...