State of Nevada v. United States

• Decision Date: 23 September 1982
• Docket Number: Civ. No. R-78-157 BRT.
• Citation: 547 F. Supp. 776
• Parties: STATE OF NEVADA, Plaintiff, v. UNITED STATES of America, James Watt, Secretary of the Interior, Lynn Greenwalt, Director, Fish and Wildlife Service, and Kayler Martinson, Regional Director, Fish and Wildlife Service, Defendants, v. DEFENDERS OF WILDLIFE, INC., Intervenors.
• Court: U.S. District Court — District of Nevada

547 F. Supp. 776

STATE OF NEVADA, Plaintiff, v. UNITED STATES of America, James Watt, Secretary of the Interior, Lynn Greenwalt, Director, Fish and Wildlife Service, and Kayler Martinson, Regional Director, Fish and Wildlife Service, Defendants, v. DEFENDERS OF WILDLIFE, INC., Intervenors.

Civ. No. R-78-157 BRT.

United States District Court, D. Nevada.

September 23, 1982.

Richard H. Bryan, Atty. Gen., Larry D. Struve, Chief Deputy Atty. Gen., Harry W. Swainston, Deputy Atty. Gen., Carson City, Nev., for plaintiff.

Shirley Smith, Asst. U. S. Atty., Lamond R. Mills, U. S. Atty., Reno, Nev., William E. Hill, Dept. of Justice, Washington, D. C., for defendants.

Paul A. Zevnik, Paul, Hastings, Janofsky & Walker, Washington, D. C., for intervenors.

ORDER GRANTING SUMMARY JUDGMENT

BRUCE R. THOMPSON, District Judge.

This action is before the court on Nevada's motion for partial summary judgment and the Government's cross-motion for summary judgment. Although the briefs are lengthy and the arguments many, after careful study we have concluded that there is a clear path to a proper disposition.

The subject matter of the action is the Ruby Lake Wildlife Refuge and its regulation.

The Ruby Lake National Wildlife Refuge was established by Executive Order No. 7923 on July 21, 1938. See 2 F.R. 1639. That Executive Order withdrew 7,166 acres of public land for the Refuge. Subsequently, Public Land Order 1878 withdrew 80 acres of public land on June 12, 1959, and Public Land Order 4795 withdrew 440 acres of public land on April 2, 1970. During the late 1930's, Tracts accorded Numbers 3, 5, 8a, and 9a, consisting of 5,062.12, 8,062.16, 7,666.91, 7,621 acres, respectively, were acquired by purchase; and Tract No. 10, consisting of 40 acres, was acquired by condemnation. Tract 7, consisting of 1493 acres, was acquired in 1963 and, at that time, it was the last land in private hands within the meander line of Ruby Lake.

Under the property clause of the Constitution "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." In implementation of its power to make rules and regulations concerning its property, regulations may be promulgated which directly affect conduct upon adjoining or adjacent property not in government ownership to the extent reasonably necessary to effectuate and control the government's stewardship of its own property. Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976); United States v. Brown, 552 F.2d 817 (8th Cir. 1977). Cf. United States v. 1,216.83 Acres of Land, 573 F.2d 1054 (9th Cir. 1978).

Further, under the Supremacy Clause (U.S.Const. Art. VI, Cl. 2), when Congress acted by enactment of the Migratory Bird Conservation Act, 16 U.S.C. § 715 et seq. and regulations were promulgated thereunder, the law and regulations necessarily superseded and rendered ineffective any attempts by the State of Nevada and its agencies to enforce on the Ruby Lake Refuge any controls inconsistent with the federal law and regulations.

In the light of the foregoing premises, the sine qua non of Nevada's action is demonstration that, irrespective of Nevada's possible ownership of the bed of Ruby Lake on a navigable waters theory, the United States does not own sufficient property within the Refuge to support its promulgation of waterfowl regulations under the Property Clause of the Constitution.

The undisputed facts are that 7,686 acres within the Refuge are federal lands withdrawn from entry. Federal ownership cannot be disputed. Forty (40) acres were acquired by condemnation, and at the time there was in effect a Nevada statute affirming the right of eminent domain for "all public uses authorized by the government of the United States." NCL 1929, § 9153(1). The United States purchased 29,905.19 acres from private ownership. Title was conveyed by delivery and acceptance of deeds which purported to transfer not only the patented lands but also the adjoining relicted and submerged lands. All these titles were acquired in the middle 1930's except for 1493 acres added in 1963. By 1938, the Ruby Lake Wildlife Refuge had been essentially acquired and established and has been operating under federal control since that date. This action was commenced on September 29, 1978, some forty years later.

By the act of July 10, 1952 (66 Stat. 560) 28 U.S.C. § 2409a et seq., the Congress waived sovereign immunity and consented to suit against the United States "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." This is such an action. Before the foregoing waiver of sovereign immunity, no court would have enjoyed jurisdiction of this action, whether the disputed title to be adjudicated was disputed with a private citizen or with one of the fifty sovereign states. See Minnesota v. United States, 305 U.S. 382, 386, 59 S.Ct. 292, 294, 83 L.Ed. 235 (1939):

A proceeding against property in which the United States has an interest is a suit against the United States. The Siren, 7 74 U.S. Wall. 152, 154 19 L.Ed. 129; Carr v. United States, 98 U.S. 433, 437 25 L.Ed. 209; Stanley v. Schwalby, 162 U.S. 255 16 S.Ct. 754, 40 L.Ed. 960. Compare Utah Power & Light Co. v. United States, 243 U.S. 389 37 S.Ct. 387, 61 L.Ed. 791. It is confessedly the owner of the fee of the Indian allotted lands and holds the same in trust for the allottees. As the United States owns the fee of these parcels, the right of way cannot be condemned without making it a party. The exemption of the United States from being sued without its consent extends to a suit by a State. Compare Kansas v. United States, 204 U.S. 331, 342 27 S.Ct. 388, 391, 51 L.Ed. 510; Arizona v. California, 298 U.S. 558, 568, 571, 572 56 S.Ct. 848, 853, 854, 80 L.Ed. 1331. Compare Minnesota v. Hitchcock, 185 U.S. 373, 382-387 22 S.Ct. 650, 654-656, 46 L.Ed. 954; Oregon v. Hitchcock, 202 U.S. 60 26 S.Ct. 568, 50 L.Ed. 935. Hence Minnesota cannot maintain this suit against the United States unless authorized by some act of Congress.

The statute in question, specifically 28 U.S.C. 2409a(f), contains a statute of limitations:

(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.

Such a provision for limitation of actions included in a statute waiving sovereign immunity has with great consistency been considered to be a condition on the waiver, that is to say, if the action is timebarred under the statute the waiver of sovereign immunity does not exist and the court lacks jurisdiction. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979); Park County Montana v. United States, 626 F.2d 718 (9th Cir. 1980); Loring v. United States, 610 F.2d 649 (9th Cir. 1979); Grosz v. Andrus, 556 F.2d 972 (9th Cir. 1977); Szyka v. U. S. Secretary of Defense, 525 F.2d 62 (2nd Cir. 1975); United States v. 422,978 Square Feet of Land, 445 F.2d 1180 (9th Cir. 1971).

The State of Nevada to avoid the bar of the statute of limitations relies upon State of North Dakota ex rel. Board of University v. Andrus, 671 F.2d 271 (8th Cir. 1982) and State of Cal. ex rel. State Lands Commission v. U. S., 512 F.Supp. 36 (N.D.Cal.1981). These two cases present a direct conflict in philosophy with the ones that we have cited. The Kubrick, supra, decision and the others rely upon the absence of a waiver of sovereign immunity if the action is timebarred, a waiver which is essential if any court is to have jurisdiction. Minnesota v. United States, supra. Plaintiff's precedents, by contrast, rely upon the waiver of sovereign immunity but ignore the express condition included in it, saying the condition does not apply to a plaintiff who is itself a...