Dakota ex rel. Stenehjem v. United States

• Decision Date: 26 June 2017
• Docket Number: Case No. 1:12-cv-125 (lead case), Case No. 1:12-cv-102 (consolidated case).
• Citation: 257 F.Supp.3d 1039
• Parties: NORTH DAKOTA, EX REL. Wayne STENEHJEM, Attorney General for the State of North Dakota, Plaintiff, v. UNITED STATES of America, Defendant. Billings County, North Dakota; Golden Valley County, North Dakota; McKenzie County, North Dakota; and Slope County, North Dakota, municipal entities, Plaintiffs, v. United States of America, Defendant.
• Court: U.S. District Court — District of North Dakota

257 F.Supp.3d 1039

NORTH DAKOTA, EX REL. Wayne STENEHJEM, Attorney General for the State of North Dakota, Plaintiff,

v.UNITED STATES of America, Defendant.

Billings County, North Dakota; Golden Valley County, North Dakota; McKenzie County, North Dakota; and Slope County, North Dakota, municipal entities, Plaintiffs,

v.United States of America, Defendant.

Case No. 1:12-cv-125 (lead case), Case No. 1:12-cv-102 (consolidated case).

United States District Court, D. North Dakota.

Signed June 26, 2017

Hope L. Hogan, Matthew A. Sagsveen, Attorney General's Office, Bismarck, ND, for Plaintiff.

Sara Porsia, U.S. Department of Justice Environment Enforcement Section, Stephen G. Bartell, Shawn Derek Shugert, U.S. Department of Justice, Taylor N. Ferrell, U.S. Department of Justice Natural Resources Section, Washington, DC, Anna K. Stimmel, US Department of Justice, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS NORTH DAKOTA'S AMENDED COMPLAINT AND TO DISMISS COUNTIES' FIRST CAUSE OF ACTION IN THIRD AMENDED COMPLAINT

Daniel L. Hovland, Chief Judge

Before the Court are two motions filed on behalf of the Defendant United States of America: "The United States of America's Amended Motion to Dismiss North Dakota's Amended Complaint for Lack of Jurisdiction" filed on September 26, 2014 (Docket No. 88), and "The United States of America's Motion to Dismiss the First Cause of Action in the Counties' Third Amended and Supplemental Complaint for Lack of Jurisdiction" filed on December 9, 2015 (Docket No. 169).¹ Plaintiff North Dakota filed a response in opposition to the motions of the United States on January 27, 2015. See Docket No. 104. Plaintiffs Billings County, Golden Valley County, McKenzie County, and Slope County similarly filed a response in opposition to the motions on January 28, 2015. See Docket No. 141. The United States then filed a reply brief in support of its motions to dismiss on April 30, 2015. See Docket No. 148. The Plaintiffs jointly filed a surreply on May 28, 2015. See Docket No. 152. On June 8, 2015, the United States filed a response to the Plaintiffs' surreply. See Docket No. 154. For the reasons set forth below, the Defendant United States' motions to dismiss for lack of jurisdiction are granted.

I. PROCEDURAL & FACTUAL BACKGROUND

On July 30, 2012, Billings County, McKenzie County, Slope County, and Golden Valley County initiated an action against the Defendant United States of America ("United States") to quiet title to their claims of section line rights-of-way in the Little Missouri National Grassland as well as six individual roads claimed by McKenzie County. See Docket No. 1 (Case No. 1:12–cv–102). The State of North Dakota then filed a complaint on September 14, 2012, against the Defendant United States to quiet title to its claim of section line rights-of-way within the Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota, all which are a part of the Dakota Prairie Grasslands. See Docket No. 1 (Case No. 1:12–cv–125). On April 16, 2013, the Court consolidated the two actions, with North Dakota's action designated as the lead case (Case No. 1:12–cv–125) and the action by the Counties as the consolidated case (Case No. 1:12–cv–102). See Docket No. 24.²

The Plaintiffs' claims arise from a controversy surrounding the public's rights-of-way along section lines within the Dakota Prairie Grasslands in North Dakota. At the heart of both complaints is the contention all section lines in North Dakota, including those within the Dakota Prairie Grasslands, are subject to right-of-way for travel by the public. The Plaintiffs allege the public's right to travel along such section lines arises from North Dakota's acceptance of the grant for construction of public highways offered by federal statute, known as R.S. 2477. However, the Plaintiffs allege the United States refuses to recognize the existence of such public rights-of-way along section lines on lands managed by the United States Forest Service ("Forest Service"). Accordingly, the Plaintiffs request the Court quiet title to the public's right-of-way along section lines within those lands managed by the Forest Service (i.e. Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota).

In the motions before the Court, the United States seeks to dismiss the complaints of North Dakota and the Counties for lack of subject matter jurisdiction because the claims are untimely under the Quiet Title Act, 28 U.S.C. § 2409a. The United States argues the Plaintiffs' claims are untimely because both North Dakota and the Counties had sufficient notice of the United States' position that North Dakota had not accepted the R.S. 2477 grant to create rights-of-way for public travel along the section lines, specifically within the Dakota Prairie Grasslands in North Dakota. The Plaintiffs disagree and contend their quiet title claims were timely filed and consequently the Court has jurisdiction over this matter.

A. Claims of North Dakota

In its complaint, North Dakota alleges three (3) claims against the United States. See Docket No. 17, pp. 17–20. In its first cause of action, North Dakota seeks "to quiet title to all section line easements" managed by the Forest Service within the Little Missouri National Grasslands, with the exception of those section lines on lands "(1) located within the Theodore Roosevelt National Park; (2) managed by the U.S. Army Corps of Engineers; (3) managed by the Bureau of Land Management; and (4) within the Theodore Roosevelt National Park Elkhorn Ranch Site." See Docket No. 17, p. 17. In its second cause of action, North Dakota seeks "to quiet title to all section line easements" managed by the Forest Service within the Sheyenne National Grassland, excluding those section line easements on lands "(1) managed by the U.S. Corps of Engineers; and (2) land managed by the Bureau of Land Management." See Docket No. 17, pp. 18–19. In its third cause of action, North Dakota seeks to quiet title to all section line easements managed by the Forest Service within the Cedar River National Grassland, with the exclusion of sections lines on those lands "(1) managed by the U.S. Army Corps of Engineers; and (2) lands managed by the Bureau of Land Management." See Docket No. 17, pp. 19–20.

According to North Dakota's complaint, the United States has unlawfully interfered with section line easements in the Little Missouri National Grassland, Sheyenne National Grassland, and Cedar River National Grassland "[b]y failing to recognize the state's valid and existing rights in the easement over the 33 feet of federal land abutting section lines in the Dakota Prairie Grasslands, and by failing to abide by the reservation and exception in the conveyances by which it reacquired title...." See Docket No. 17, pp. 18–20.

North Dakota alleges its claim arises from Forest Service decisions in 2001 and 2002, in which the Forest Service "rejected and no longer intended to recognize the [S]tate's valid and existing right to section line easements in the National Grasslands." See Docket No. 17, p. 9. Specifically, in 2001, the Forest Service issued a Record of Decision prohibiting off-highway motor vehicle travel in the Little Missouri National Grassland. Based upon this Record of Decision, the Forest Service then issued an order that "closed to motorized uses all non-system roads or trails on National Forest System land in the Dakota Prairie Grasslands that had not been previously traveled." Id. Then, in the Dakota Prairie Grasslands Land and Resource Management Plan from 2002, the Forest Services expressed that North Dakota "could not accept the R.S. 2477 grant by establishing highways pursuant to state laws that did not satisfy federal requirements, such as construction of the road." See Docket No. 17, p. 10.

The controversy regarding section lines has been amplified by recent oil and gas development on lands owned by North Dakota to support state schools, with the State owning both the subsurface and surface estate. These "state school lands" are scattered throughout the Little Missouri National Grassland. The State also has a reserved mineral interest in additional lands located within the Little Missouri National Grassland. In its complaint, North Dakota alleges lessees of the State's mineral interest in state school lands, as well as other lands in which the State holds a mineral interest, have sought to access such lands by way of section lines. These lessees have been informed by the Forest Service "it does not recognize the state's section line rights-of-way and that using the 33–feet on the USFS side of a section line is prohibited." See Docket No. 17, p. 10. Consequently, in order to develop these State-owned minerals, North Dakota has permitted lessees to build access roads completely on state-owned lands, instead of utilizing the thirty-three feet on the Forest Service's side of section lines.

North Dakota's complaint also includes allegations outlining the consequences because Forest Service refused to recognize section line right-of-way within the Dakota Prairie Grasslands:

105. Had the USFS recognized the section line rights-of-way and not opposed building roads on the section lines described in the preceding paragraphs, the burdens of the roads would not fall entirely on the state school land and its previously-unencumbered surface estate and would have remained in the already existing easements.

106. Had the USFS recognized the section line rights-of-way and not opposed building roads on the section lines described in the preceding paragraphs, the state would have avoided the entire responsibility for overseeing road reclamations when the purposes for which the roads were built terminate.

107. Had the USFS recognized the section line right of way and not opposed

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