Reid v. U.S., s. 81-1112
| Citation | 715 F.2d 1148 |
| Decision Date | 19 July 1983 |
| Docket Number | 81-2613,81-2850 and 81-2852,Nos. 81-1112,s. 81-1112 |
| Parties | Ben REID, Plaintiff-Appellant, v. UNITED STATES of America, the State of Indiana, and Floyd County Commissioners, Defendants-Appellees. Bruce K. LORCH, Plaintiff-Appellant, v. UNITED STATES of America, State of Indiana, and Jefferson County Commissioners, Defendants-Appellees. Maurice C. and Mary F. SMITH, Plaintiffs-Appellants, v. UNITED STATES of America, Defendants-Appellees. Dorothy WINKLER, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Charles Gleason, Indianapolis, Ind., for plaintiffs-appellants.
Brenda Franklin Rodeheffer, Deputy Atty. Gen., Indianapolis, Ind., Thomas W. Yoder, Edward J. Liptak, Fort Wayne, Ind., Bruce E. Cissna, Dale, Ind., Maria A. Iizuka, Dirk D. Snel, Dept. of Justice, Land & Natural Resources, Washington, D.C., Margaret Smith, Rockport, Ind., Max C. Mason, New Albany, Ind., Virginia Dill McCarty, Bradley L. Williams, Michael Schaefer, Linley E. Pearson, Sarah Evans Barker, Indianapolis, Ind., for defendants-appellees.
Before CUMMINGS, Chief Judge, and PELL and COFFEY, Circuit Judges.
These four consolidated cases present a unified attack alleging that the United States and others are trespassing on land owned by the appellants along the banks of the Ohio River. The alleged trespass has occurred due to the construction and operation by the United States of high-lift navigation dams along the Ohio River. The appellants brought their initial petitions for injunctive relief in Indiana state courts, requesting an injunction directing the United States to lower the river level. The cases were all removed to federal district court, which dismissed the complaints. Because we hold that these actions are barred by sovereign immunity, that the cases were improperly filed in state court, and that appellants' sole remedy is an action in federal court under the Tucker Act, 28 U.S.C. §§ 1346 and 1491, we affirm the orders of the district courts.
Five sets of actions are of particular concern to this appeal. The first set is composed of appellants Reid and Lorch, whose claims to ownership of the properties in question are not disputed by the appellees. The second set is composed of appellants Smith and Winkler, whose claims of ownership are challenged by the appellees. The appellees may also be divided into two sets, the first of which is composed solely of the United States. The second set of appellees consists of the State of Indiana, the Commissioners of Floyd and Jefferson counties, the Spencer County Park and Recreation Board, the Indiana-Michigan Electric Co., and Shelly & Sands, Inc. (This set of appellees will hereinafter be referred to as the "non-federal appellees.") And the final group of importance to this case consists of 17 high-lift navigation dams on the Ohio River, the construction of which was the apparent genesis of this litigation. Several of these groups will be discussed more fully below, beginning with the last.
The function of the high-lift dams is described in detail in Loesch v. United States, 645 F.2d 905, 912-13, 227 Ct.Cl. 34, certiorari denied, 454 U.S. 1099, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981). Briefly, the dams replaced 49 low-lift navigation dams along the river. The high-lift dams were constructed to improve navigation by reducing the number of locks a ship or barge needed to pass through on its way up or down the river. The court in Loesch found that these high-lift dams were not flood control dams, and while they could maintain a certain minimum flowage during periods of natural low flow, the high-lift dams did not affect the river level during periods of high flow and could not
cause floods, or increase the number of floods, or affect flood peaks and time intervals, or increase the effect of flood events.
Appellants Reid (No. 81-1112) and Lorch (No. 81-2613) both claim title to land along the Ohio River. Both claim that the United States, through the Army Corps of Engineers, is trespassing upon their land and causing erosion thereof by maintaining the Ohio River at an artificially high water level. The relief requested is an injunction requiring the United States to lower the river level to the depth specified in a 1911-1914 survey of the river.
Both appellants also state claims against certain of the non-federal appellees. Appellant Reid claims that Indiana and the Floyd County Commissioners have breached their duty to protect the appellant's property from trespass by the United States. Appellant Lorch makes the same claim against Indiana and the Jefferson County Commissioners.
Appellants Smith (No. 81-2850) and Winkler (No. 81-2852) also allege that the United States is committing trespass and waste on their property. Appellant Winkler also alleges trespass on the part of the State of Indiana, Spencer County Recreation Board, and the Indiana-Michigan Electric Co., and Shelly & Sands, Inc. 1 Unlike the situation with respect to appellants Reid and Lorch, however, the appellees here claim that appellants Smith and Winkler do not own the properties in question. Appellants in fact concede as much. The record indicates that Tracts No. 605 and 605-E-1 were acquired by the United States from the Smiths by a judgment of condemnation entered October 2, 1967. Similarly, Tract No. 1108 was acquired by the United States from appellant Winkler by purchase. A warranty deed was recorded on February 18, 1971. The appellants' response is that both of these transfers to the United States are void for failure to comply with Indiana state law.
A continuing theme pressed by all the appellants throughout this litigation concerns Indiana Code §§ 4-21-4-1 and 4-21-4-2. Section 4-21-4-1 confers Indiana's consent to the purchase by the United States of land on the bank of the Ohio and Wabash Rivers for purposes of navigation improvement. Section 4-21-4-2 confers jurisdiction on state courts to adjudge condemnation proceedings brought by the United States against owners of land riparian to the Ohio and Wabash, again for purposes of improving the rivers. This section also sets forth procedures to be followed in such condemnation proceedings. Appellants claim that these statutes are the exclusive means by which the United States may acquire land along the Ohio for river improvement. Appellants Smith and Winkler argue that the transfer of land from them to the United States was void for failure to comply with §§ 4-21-4-1 and 4-21-4-2 and that they are in fact the true owners of the disputed properties. All appellants claim that, because §§ 4-21-4-1 and 4-21-4-2 do not provide for inverse condemnation, 2 that remedy is not available to them and they are therefore entitled to an injunction prohibiting trespass by the United States. 3
The appellants each filed petitions in various Indiana state courts in 1980 requesting injunctions prohibiting trespass by the appellees. 4 The United States removed all the cases to the United States District Court for the Southern District of Indiana. Each of the non-federal appellees consented to removal. Appellants, however, vigorously opposed removal.
In each case the district court denied the appellants' motions to remand and granted the appellees' motions to dismiss. In Reid and Lorch, the district court held that the appellants' remedy, if any, lay in an action for inverse condemnation under the Tucker Act, 28 U.S.C. §§ 1346 and 1491. In Smith, the district court relied on this Court's opinion in Cole v. United States, 657 F.2d 107 (7th Cir.), certiorari denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981). Cole held that because the United States had not consented to be sued for trespass in state courts, appellant Cole's claim was barred by sovereign immunity. Id. at 109. Finally, in Winkler the district court held alternatively that the appellant's claim was barred by sovereign immunity, citing Cole, that the appellant had failed to show that the purchase of her property by the United States was not authorized, and that the appellant's claim was barred by the applicable statute of limitations, 28 U.S.C. § 2401(a) and (b). Appellants filed timely notices of appeal from each of these orders.
After the notice of appeal had been filed in Winkler, the United States moved in this Court for leave to petition the district court to correct a clerical error in the original judgment and order of the district court. The motion for leave was granted. The clerical error referred to was a statement made by the district court that the United States owned the disputed property in fee simple. In fact the United States concedes that it owns the land subject to an interest in minerals retained by Winkler. Appellant Winkler vigorously opposed the motion to correct the clerical error, arguing that the United States, by acknowledging appellant Winkler's retained mineral interest, had effectively conceded that Winkler was the true owner of the property, and that therefore the error was substantive rather than clerical. The district court declined to consider the appellant's argument and granted the motion to correct error.
Lastly, in Smith the United States has moved for an award of costs and attorneys' fees assessed against appellants' counsel, 5 arguing that counsel has engaged in a pattern of frivolous, duplicative, and harassing lawsuits. While the response in Smith to the government's motion for costs and fees argues that in fact Smith is distinguishable from Cole, in appellant Winkler's reply brief the appellant suggests that the United States should be estopped from arguing that these lawsuits are multiplicious because the United States opposed an attempt to certify a class in a related case, referring to Loesch v. United States, 645 F.2d 905, ...
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