671 F.2d 271 (8th Cir. 1982), 81-1441, State of N. D. ex rel. Bd. of University and School Lands v. Andrus

Docket Nº:81-1441, 81-1486.
Citation:671 F.2d 271
Party Name:The STATE OF NORTH DAKOTA, ex rel. BOARD OF UNIVERSITY AND SCHOOL LANDS, Appellee, 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, Appellants. The STATE OF NORTH DAKOTA, ex rel. BO
Case Date:February 12, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 271

671 F.2d 271 (8th Cir. 1982)

The STATE OF NORTH DAKOTA, ex rel. BOARD OF UNIVERSITY AND

SCHOOL LANDS, Appellee,

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, Appellants.

The STATE OF NORTH DAKOTA, ex rel. BOARD OF UNIVERSITY AND

SCHOOL LANDS, Appellant,

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, Appellees.

Nos. 81-1441, 81-1486.

United States Court of Appeals, Eighth Circuit

February 12, 1982

Submitted Dec. 14, 1981.

Page 272

State of North Dakota, Robert O. Wefald, Atty. Gen., John W. Morrison, Owen L. Anderson (argued), Asst. Attys. Gen., Bismarck, N. D., for appellee/cross appellant.

James R. Britton, U. S. Atty., Fargo, N. D., Carol E. Dinkins, Asst. Atty. Gen., Lands Div. (argued), and Jacques B. Gelin, Edward J. Shawaker, Attys., Dept. of Justice, Washington, D. C., for appellants/cross appellees.

George Deukmejian, Atty. Gen., State of Cal., N. Gregory Taylor, Asst. Atty. Gen., Bruce S. Flushman, Linus Masouredis, Joseph J. Barbieri, Deputy Attys. Gen., San Francisco, Cal., for amicus curiae State of Cal., ex rel. State Lands Commission.

Before GIBSON, Senior Circuit Judge, BRIGHT, Circuit Judge, and LARSON, [*] Senior District Judge.

LARSON, Senior District Judge.

The Secretary of the Interior, et al., appeal from the judgment of the district

Page 273

court, State of North Dakota, ex rel. Board of University and School Lands v. Andrus, 506 F.Supp. 619 (D.N.D.1981), 1 holding that the Little Missouri River in North Dakota was navigable in fact on the date of North Dakota's statehood, and hence that title to the bed of the stream originally vested with the State of North Dakota under the equal footing doctrine and the Submerged Lands Act, § 3, 43 U.S.C. § 1311 (1976). We affirm.

The Little Missouri River has its source in the northeastern corner of Wyoming. It flows northward through the southeast corner of Montana, the northwest corner of South Dakota, and the badlands of western North Dakota. It joins the Missouri River in west central North Dakota. The Board of University and School Lands of the State of North Dakota commenced this suit on October 31, 1978, to prevent the federal government from issuing oil and gas leases on the bed of the Little Missouri River in North Dakota. The federal government has issued such leases since at least 1955.

The parties agree that the State of North Dakota was originally vested with title to land under waters that were navigable on October 1, 1889, the date of statehood. 2 At a one day trial the State presented documentary evidence on the historical and current status of the waterway. There was evidence of canoe travel prior to statehood, an effort to float logs down the river shortly after North Dakota became a state, present-day recreational canoe traffic, and other small craft usage over the years. The evidence suggested that the possibility of travel in both historical and contemporary times has depended on the water level and the season of the year, and that some sections have been extremely difficult to negotiate due to rapids and other obstructions. The federal government did not present any evidence on navigability; the Department of Justice only presented evidence on notice for statute of limitations purposes. The district court found that it was entitled to hear the matter as a quiet title action under 28 U.S.C. § 2409a (1976), that the twelve year statute of limitations in section 2409a(f) did not bar the suit even though the United States claimed that the State knew of the federal leases as early as 1955, and that there was sufficient evidence to find that the river was navigable as of statehood. 3

The federal government appeals, arguing that the statute of limitations in section 2409a(f) applies in this action and that, at any rate, the State's evidence demonstrates that the Little Missouri was not navigable. The State cross appeals, maintaining that even if the appellate court finds that the statute of limitations precludes suit under section 2409a, the district court erred in ruling that there was no jurisdiction under the federal question provision, 28 U.S.C. § 1331 (1976), for the State's original complaint. Rather than requesting the court to quiet title, the State originally asked for a declaration that the river is navigable and an Order for the defendants to cease developing the bed of the river. The State of California, through its State Lands Commission, has submitted an amicus curiae brief in these appeals opposing the position of the federal government and supporting the State of North Dakota.

Statute of Limitations

Congress waived sovereign immunity for quiet title actions in section 2409a. This statute provides:

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

Page 274

security interest or water rights. 28 U.S.C. § 2409a(a). ( 4

A statute of limitations for actions under section 2409a is found in 28 U.S.C. § 2409a(f):

Any civil action under this section 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.

The federal government argues that this statute of limitations bars the instant action, while the district court found and the State argues that section 2409a(f) does not apply to a claim by a sovereign to public trust lands.

Under the rule quod nullum tempus occurrit regi the defenses of statute of limitations and laches cannot be asserted against a sovereign. Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S.Ct. 785, 788, 82 L.Ed. 1224 (1938). Although this rule developed in England as a royal prerogative, it is supported in modern law by the policy judgment that the public should not suffer because of the negligence of its officers and agents. Id. A statute of limitations will only apply to a sovereign when the statute expressly designates the sovereign or when the sovereign must necessarily be subject to the statute as determined by legislative intent. See, e.g., id. at 133, 58 S.Ct. at 789; Weber v. Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 70, 21 L.Ed. 798 (1873).

In the present suit North Dakota is asserting title to lands which would be public trust lands if held by the State. 5 Public trust lands are held in trust for the citizens of a state and they are distinguished from lands which the State holds in a proprietary capacity. Title to public trust lands is a basic attribute of state sovereignty. See, e.g., United States v. Mission Rock Co., 189 U.S. 391, 404, 23 S.Ct. 606, 608, 47 L.Ed. 865 (1903); Shively v. Bowlby, 152 U.S. 1, 49, 14 S.Ct. 548, 566, 38 L.Ed. 331 (1894). Rather than arising under congressional grant, title to public trust lands is vested in the states by the Constitution. Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374, 97 S.Ct. 582, 588, 50 L.Ed.2d 550 (1977).

The alleged public trust character of the lands that are the subject of this suit has special implications for the applicability of the section 2409a(f) statute of limitations. In Weber v. Board of Harbor Comm'rs the Supreme Court addressed the issue of title to submerged public trust lands. In the course of its discussion the Court noted: "(s)tatutes of limitation are not ... held to embrace the State, unless she is expressly designated, or necessarily included by the nature of the mischiefs to be remedied." 85 U.S. at 70. Also of significance here is the more recent case of United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), in which the Court held that laches, estoppel, and adverse possession did not preclude the United States from asserting title to submerged public trust lands. Id. at 39-40, 67 S.Ct. at 1668. The Court went on to hold that the federal government had title in certain submerged tidelands. Id. at 41. Although Congress effectively overruled the Court in its adoption of the Submerged Lands Act, 43 U.S.C. §§ 1301, et seq., the principle that equitable defenses do not bar a sovereign from asserting its title to public trust lands applies just as strongly to the State of North Dakota in the present dispute as it did to the United States in United States v. California.

The statute of limitations in section 2409a(f) does not expressly mention actions by states, nor does the legislative history provide any support whatsoever for the

Page 275

proposition that Congress intended section 2409a(f) to apply to actions such as the case at bar. The House Report for section 2409a(f) refers to "persons," "citizens," and "individual citizens," 6 but nowhere does it mention "states." 7 H.R.Rep.No.92-1559, reprinted in (1972) U.S.Code Cong. & Ad.News 4547, 4547-52. In addressing the liability of states for civil rights violations under 42 U.S.C. § 1983 (1976) to states, the Supreme Court noted the absence of reference to states in the legislative history and said: "(w)e can only conclude that this silence on the matter is itself a significant indication of the legislative intent." Quern v. Jordan, 440 U.S. 332, 343, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979).

It might be argued in response that even if the legislative history does not explicitly mention states, the general purpose of the statute of limitations in barring stale claims would not be served if...

To continue reading

FREE SIGN UP