Carney v. Washington
| Decision Date | 29 July 2021 |
| Docket Number | CASE NO. C21-415 MJP |
| Parties | Mary M. CARNEY, Plaintiff, v. State of WASHINGTON ; Washington State Parks and Recreation Commission; and Swinomish Indian Tribal Community, Defendants. |
| Court | U.S. District Court — Western District of Washington |
Jennifer A. MacLean, Pro Hac Vice, Odin Alonso Smith, Pro Hac Vice, Perkins Coie, Washington, DC, Nicholas Peter Gellert, Perkins Coie, Seattle, WA, for Plaintiff.
Andy Woo, Attorney General's Office, Olympia, WA, for Defendant State of Washington.
Andy Woo, John Heidinger, Attorney General's Office, Olympia, WA, for Defendant Washington State Parks and Recreation Commission.
Emily Rae Hutchinson Haley, Weston LeMay, Swinomish Indian Tribal Community, La Conner, WA, Marc Slonim, Wyatt Foster Golding, Ziontz Chestnut, Seattle, WA, for Defendant Swinomish Indian Tribal Community.
Before the Court is Plaintiff's motion to remand. (Dkt. No. 21.) Having considered the motion and all related papers, (Dkt. Nos. 1, 21, 22, 32, 33, 34), the Court finds that it has subject-matter jurisdiction over this proceeding and DENIES the motion to remand.
This is a property dispute over a small strip of land on the Swinomish Indian Reservation between Kiket Island and Fidalgo Island in Skagit County. Plaintiff Mary Carney owns waterfront property at 15466 Snee Oosh Rd. Washington State and the United States co-own, in fifty-percent shares as tenants in common, land adjacent to Ms. Carney's property, directly to the north (on Fidalgo Island) and west (on Kiket Island). (Id. at 2.) The United States holds its fifty-percent ownership in trust for the Swinomish Indian Tribal Community. (Id.) The United States also owns the tidelands—surrounding Kiket Island, on both sides of the strip of land at issue, and abutting the southwestern edge of Ms. Carney's property—in trust for the Tribe. (Dkt. No. 1 at 3.) The land co-owned by Washington State and the United States is co-managed by the Washington State Parks and Recreation Commission and the Swinomish Indian Tribal Community as Kukutali Preserve, which was established in 2010. (Am. Compl. at 2.)
The dispute centers on Kiket Island Road, which connects Fidalgo Island with Kiket Island. (See Am. Compl., Ex. B.) A section of Kiket Island Road is on a type of land formation called a tombolo, which is created when deposits accrue such that an island becomes connected to a mainland or another island through a spit or bar. In 2018, the Kukutali Preserve began a restoration project in which it removed portions of Kiket Island Road. According to the Preserve: "The roadway was an artificial—and unpermitted—dam in the intertidal zone and needed to be removed in order to reestablish more natural morphology in the area (including improved water, wood, and sediment transport), to improve fish and wildlife forage and migration, and to facilitate Tribal members’ subsistence and cultural practices such as gathering shellfish." (Dkt. No. 1 at 3.) The Preserve argues that the road was created in part through artificial fill, which disrupted the flow of the tides. Removing that fill apparently resulted in the road being submerged at high tides.
Ms. Carney claims Defendants trespassed on her property through their restoration project and increased inundation on her property, another form of trespass. (Am. Compl. at 8.) She also claims she owns rights under an easement along Kiket Island Road and that the Preserve interfered with those rights. She argues that she has a recorded easement benefitting her property and burdening the Preserve, or, in the alternative, that she has such an easement by prescription. (Am. Compl. at 7.) Her claims are for trespass, blocking an easement, negligence, nuisance, outrage, and negligent infliction of emotional distress and to quiet title. (Am. Compl. at 8–12.) She seeks to quiet title to her property and also asks for injunctive relief directing Defendants to restore the portion of Kiket Island Road "adjacent to the Carney Property to its original elevation and maintain that portion of [the road] in an unobstructed condition, to not otherwise interfere with plaintiff's easement burdening the Preserve Property, and to take no further actions that increase flooding of the Carney Property." (Am. Compl. at 12–13.) Ms. Carney also seeks damages on various grounds.
The Swinomish right to the tidelands was recognized in the Treaty of Point Elliot, in 1855, in which they ceded portions of land in exchange for the Reservation. 12 Stat. 927. This right was further recognized and expanded in an executive order issued by President Ulysses S. Grant, in 1873. (See Dkt. No. 12, Declaration of Emily Haley, "Haley Decl.," Ex. 1.) Under federal law, the upper boundary of any tidelands is the mean high-water line, which is determined by projecting onto the shore the average of all high tides over a period of 18.6 years. Borax Consol. v. City of Los Angeles, 296 U.S. 10, 26–27, 56 S.Ct. 23, 80 L.Ed. 9 (1935) ; see United States v. Milner, 583 F.3d 1174, 1181 (9th Cir. 2009). Although the mean high-water line establishes the boundary of tidelands, that line also changes through natural occurrences. These changes correspond to changes in property rights: "Under the common law, the boundary between the tidelands and the uplands is ambulatory; that is, it changes when the water body shifts course or changes in volume." Milner, 583 F.3d at 1187. Upland owners may lose property to tidelands owners through erosion, whereas tidelands owners may lose property to accretion. Id.
Article 7 of the Treaty of Point Elliott authorized the President to survey reserved lands and assign lots to individuals or families. 12 Stat. 927. The United States most recently surveyed the area in 2010. (Dkt. No. 22, Declaration of Jennifer A. MacLean, "MacLean Decl.," Ex. E.) Government Lots 2, 3, 5, 6, 7, 8, and 9—making up nearly all of Kiket Island plus the two adjacent lots on Fidalgo Island—were assigned to a Swinomish family in 1885 through a federal patent. (Dkt. No. 22, Ex. C.) Those lots subsequently passed into private ownership. Washington State and the Tribe, as tenants in common, purchased Government Lots 5, 6, 7, 8, and 9, plus a subdivision of the original Government Lot 2, in 2010 to create the Preserve. (Am. Compl., Ex. E.) The Tribe then transferred its interest to the United States to hold in trust.
Ms. Carney traces her property to the 1885 federal patent—specifically, to a subdivision of what was Government Lot 3. Government Lots 2 and 3 were sold by minor heirs to the original owner at probate in 1929. That sale stated that Government Lots 2 and 3 were subject to an easement which Ms. Carney now claims gives her the right of access along Kiket Island Road:
A right of way and easement upon and over the south 30 feet of Government Lot 2, Sec. 21 ... for the common benefit of the owners of Government Lots 2, 3, 5, 6, 7, 8 and 9 of Sec. 21 ... as a road for ingress and egress to the public road, said road to be by the Grantee established by the reservation of the East 30 feet of Government Lots 2 and 3 ... and to connect with present road at or beyond the South extremity of said Government Lot 3, together with the right to construct, land and maintain water pipe lines beneath the surface of the ground, and telephone and power lines along said right of way easement.
Id. The importance of the easement here is that, according to Ms. Carney, the owners of Kukutali Preserve—the United States, in trust for the Tribe, and Washington State—took possession of Government Lots 3 and 9 subject to it.
Under Ms. Carney's theory, she has access rights under an easement running along Kiket Island Road, and the Preserve's property (Government Lot 9, on Kiket Island, and the subdivision of the original Government Lot 2, on Fidalgo) is burdened by the easement. However, from the Tribe's perspective, at least part of Kiket Island Road is tideland, owned by the United States in trust for the Tribe. Because the Tribe's rights to the tidelands precede any alienation of Reserve lands and were never themselves alienated or conceded, they would not be subject to the easement.
***
The Tribe removed, (Dkt. No. 1), with the consent of the State, (Dkt. No. 32.). The Tribe also moved to dismiss before Ms. Carney moved to remand. (See Dkt. No. 10.) However, because the Court must first ascertain jurisdiction, the Court re-noted the Tribe's motion to dismiss. (Dkt. No. 31.)
In its notice of removal, the Tribe identified two bases for federal jurisdiction. First, the Tribe removed under 28 U.S.C. § 1441(a), because the Court would have original jurisdiction for cases arising under federal law. See 28 U.S.C. § 1331. Second, the Tribe removed under 28 U.S.C. § 1442(a)(2), which permits removal for certain civil actions by "a property holder whose title is derived from any [United States] officer, where such action or prosecution affects the validity of any law of the United States." The Court considers these statutes in turn and concludes that there is jurisdiction on multiple grounds. There is federal-question jurisdiction under 28 U.S.C. § 1441(a) for two independent reasons. There is jurisdiction because at least two of Plaintiff's claims necessarily depend on the resolution of substantial federal issues. There is also jurisdiction under the doctrine of complete preemption because Plaintiff asserts property interests which contest the Tribe's aboriginal right to the tidelands. The Court also finds that there is jurisdiction under 28 U.S.C. § 1442(a)(2).
A case arises under federal law if (1) federal law creates the cause of action or (2) the plaintiff's right to relief necessarily depends on the resolution of a substantial question of federal law. E.g., Cook Inlet Region, Inc. v....
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