# Animal Welfare Institute v. Soller

> District Court, E.D. New York · February 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10311251

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311251

## How later opinions describe it (automated extraction)

- holding that plaintiff’s claim did not fall under the QTA because the plaintiff himself did not assert title to the disputed land
- holding that the Court may consider matters of which judicial notice may be taken under Federal Rule of Evidence 201

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 17-CV-06952 (RER) (ARL)
_____________________

ANIMAL WELFARE INSTITUTE, ET AL.

VERSUS

ROMERO, ET AL.
___________________

MEMORANDUM & ORDER

February 26, 2024
___________________

RAMÓN E. REYES, JR., U.S.D.J.:
Plaintiffs Animal Welfare Institute (“AWI”) and Wildlife Preserves, Inc. (“WPI”)
(together, “Plaintiffs”) brought this action against the Superintendent of Fire Island
National Seashore (“FINS”), and the United States National Park Service, an agency of
the U.S. Department of the Interior (“NPS”), raising various claims, including under the
Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, concerning the Record of Decision (“ROD”)
finalizing the FINS White-Tailed Deer Management Plan and Final Environmental Impact
Statement (“Plan”) adopted by NPS. (ECF No. 1 (“Compl.”)). Plaintiff AWI is a non-profit
animal advocacy organization. (ECF No. 59 (“SAC”) ¶ 1). Plaintiff WPI is a non-profit land
conservation corporation. (Id. ¶ 2).
On August 3, 2020, District Judge Sandra J. Feuerstein granted in part a motion
to dismiss Plaintiff’s Amended Complaint, but with leave to file a second amended
complaint joining as defendant the United States of America (“United States,” and
together with FINS and NPS, “Defendants”). (ECF No. 49 (“Mem. & Order”); see generally
SAC). Plaintiffs filed the Second Amended Complaint on September 22, 2021. (SAC).
Now before the Court are Plaintiffs’ Motion for Summary Judgment (ECF No. 90 (“Pls
Mot.”)) and Defendants’ Cross-Motion for Summary Judgment (ECF No. 94 (“Defs Cross-
Mot.”)). After carefully reviewing the record, and for the reasons set forth herein, Plaintiffs’
Motion for Summary Judgment is denied, Defendants’ Cross-Motion for Summary

Judgment is granted, and the case is dismissed.
FACTUAL BACKGROUND1
A. Conveyance of Property
This case concerns restrictions on property that were originally created on June
29, 1955, when WPI conveyed via deed four tracts of property (“WP Tracts”) to non-party
Sunken Forest Preserve, Inc. (“SFPI”). (ECF No. 91 (“Shotwell Decl.”), Ex. 1 (“1955
Deed”); ECF No. 90-2 (“Pls 56.1”) ¶ 1; ECF No. 109 (“Defs 56.1 Resp.”) ¶ 1). The WP
Tracts are located in the Sunken Forest Preserve (“Sunken Forest”), a 44-acre piece of

land on the FINS. (ECF No. 75-1 (“Defs 56.1”) ¶ 9; ECF No. 101-1 (“Pls 56.1 Resp.”) ¶
9). The Sunken Forest is a globally rare habitat of national significance in the Northeastern
United States. (Defs 56.1 ¶ 10; Pls 56.1 Resp. ¶ 10). Per Congressional directive,2 NPS

1 The Court assumes as true, for the purposes of the summary judgment motions, facts taken from the
parties’ respective Rule 56.1 statements of undisputed facts, declarations, and exhibits. See Fierro v.
Galluci, No. 06-CV-5189 (JFB) (WDW), 2010 WL 1223122, at *1 (E.D.N.Y. Mar. 24, 2010). In addition, the
Court recognizes the filings in prior litigation, described in further detail throughout. See Kramer v. Time
Warner Inc., 937 F.2d 767, 773–75 (2d Cir. 1991) (holding that the Court may consider matters of which
judicial notice may be taken under Federal Rule of Evidence 201).

2 On September 11, 1964, Congress enacted 16 U.S.C. § 459e (“FINS enabling legislation”), which
mandates that “[t]he Secretary [of the Interior] shall administer and protect the Fire Island National Seashore
with the primary aim of conserving the natural resources located there.” 16 U.S.C. § 459e-6(a). It further
states that “the Sunken Forest Preserve shall be preserved from bay to ocean in as nearly its present state
as possible[.]” Id. The enabling legislation also states that the Secretary “shall permit hunting, fishing, and
shellfishing on lands and waters under his administrative jurisdiction within the Fire Island National
Seashore in accordance with the laws of New York and the United States of America, except that the
is responsible for managing FINS and the wildlife thereon, including the Sunken Forest.
(Pls 56.1 ¶ 16; Defs 56.1 Resp. ¶ 16).
The 1955 Deed states that the conveyance of the WP Tracts to SFPI is:
subject to the express condition and limitation that the premises herein
conveyed shall be maintained in their natural state and operated as a
preserve for the maintenance of wildlife and its natural habitat undisturbed
by hunting, trapping, fishing or any other activities that might adversely
affect the environment or the animal population, and for scientific and
educational purposes incidental to such maintenance and operation.
Should the premises cease to be used solely for the above purposes, or
should any activities be engaged thereon that would adversely affect either
the flora or the fauna, then the title of the grantee shall cease and determine
and shall revert to and vest in the grantor, the said reversion and vesting to
be automatic and not requiring any re-entry.

(1955 Deed at 53 (emphasis added); Pls 56.1 ¶ 2; Defs 56.1 Resp. ¶ 2). This provision
created WPI’s reversionary interest in the WP Tracts. The 1955 Deed further transfers
the property to SFPI, “TO HAVE AND TO HOLD the premises herein granted unto the
party of the second part, its successors and assigns forever, subject to the express
condition and limitation hereinabove set forth.” (Id. at 6) (emphasis in original).
On May 9, 1966, SFPI conveyed the WP Tracts, plus an additional parcel of land,
to the United States via a deed. (Shotwell Decl., Ex. 2 (“1966 Deed”); Pls 56.1 ¶ 6; Defs
56.1 Resp. ¶ 6). The 1966 Deed states, in relevant part,
[A]ll of the premises hereby conveyed shall always be maintained in their
natural state and operated solely as a sanctuary and preserve for the
maintenance of wild life and its natural habitat, undisturbed by hunting,
trapping, fishing or any other activities that might adversely affect the
environment or the flora or fauna of said premises; and for scientific and
educational purposes incidental to such maintenance and operation.

Secretary may designate zones where, and establish periods when, no hunting shall be permitted for
reasons of public safety, administration, or public use and enjoyment.” Id. § 459e-4.

3 All page numbers cited refer to the document’s ECF-stamped page number, or, where applicable, the
PDF page number.
(1966 Deed at 10). In addition, the 1966 Deed states that the conveyance is subject to
“[t]he condition, limitation, and reverter as contained in [the 1955 Deed].” (Id. at 14
(emphasis added)).
As part of the second conveyance, on February 24, 1966, SFPI and NPS entered
into a Cooperative Agreement, which was not recorded and was not referenced within the

1966 Deed. (ECF No. 96 (“Knapp Decl.”), Ex. G (“Cooperative Agreement”); Pls 56.1
Resp. ¶¶ M, O; ECF No. 102 (“Defs 56.1 Reply”) ¶¶ M, O). The Cooperative Agreement
provides that,
to assist the [NPS] in maintaining the property to be conveyed to it under
[the Cooperative] Agreement as a sanctuary, the primeval portion of the
Sunken Forest and certain additional parts of the Preserve adjacent thereto
and in the vicinity thereof shall be fenced as soon as possible with a chain
link fence 6 feet high . . . with 3 stands of barbed wire above the same with
gates to accommodate pedestrians[.]

(Cooperative Agreement at 4; Defs 56.1 ¶ 15; Pls 56.1 Resp. ¶ 15). WPI contends, and
Defendants dispute, that it did not have knowledge of the Cooperative Agreement or the
fence constructed pursuant to the Cooperative Agreement until the initiation of this
lawsuit. (Pls 56.1 Resp. ¶ L; Defs 56.1 Reply ¶ L).
B. Fencing of the Sunken Forest
The purpose of the fence agreed to in the Cooperative Agreement was to protect
the WP Tracts and other deeded lands as a sanctuary to benefit wildlife and protect the
ecosystem by restricting visitor access to the lands. (Pls 56.1 Resp. ¶ Q; Defs 56.1 Reply
¶ Q). In late-1966 and early-1967, NPS corresponded with FINS officials and SFPI
regarding the fence’s construction. (Pls 56.1 Resp. ¶ P; Defs 56.1 Reply ¶ P). WPI was
not privy to the correspondence. (Id.). On December 1, 1966, FINS Acting Superintendent
Robert Branges (“Branges”) sent a memorandum to the NPS Regional Director,
Northeast Region, regarding fencing in the Sunken Forest. (ECF No. 101-2 (“Supp.
Shotwell Decl.”), Ex. 7). The letter states, in part,
we advocate that there not be a complete enclosure; rather the open end
would be near Sailors Haven where protection by personnel is available.
This also permits freer access by deer and fox who would otherwise be
impounded or excluded with possible detrimental results. The five foot
fence, even with barbed wire strands on top, is not a guaranteed deterrent
to humans which argues further for a lesser stand on complete encirclement
of whatever we plan to enclose.

(Id. at 64).
The NPS Regional Director conveyed a similar position to James Dunlop
(“Dunlop”), President of SFPI, in a letter dated December 6, 1966. (Supp. Shotwell Decl.,
Ex. 8). The letter states, in part,
we advocate that there not be a complete enclosure. Rather, the open end
would be near Sailors Haven where protection by National Park Service
personnel is available. This also permits freer access by deer and fox who
would otherwise be impounded or excluded from the area with possible
detrimental results . . . [I] ask that you and members of the Sunken Forest
Preserve, Inc. Board of Directors seriously consider completing the fence in
the manner suggested above.

(Id. at 67).
On April 27, 1967, FINS Superintendent Henry Schmidt (“Schmidt”), stated in a
letter to Dunlop,
we have continued the fence eastward from the west line of the Sunken
Forest, and are enclosing the larger areas . . . . The decision to do this is
two fold. First, in order to enclose the area with a fence on the west
boundary of the Sunken Forest Preserve Property, it would have been
necessary to cut and clear an eight foot swatch through some very fine trees
and natural cover. We did not want to do this, and I am sure that you and
your people would not have wanted the trees cut. Second, by enclosing the
larger area we included additional fine natural environment which can be
better protected by the fence . . . . We are all well aware that the Sunken
Forest is to remain as a natural sanctuary and because of this, we must
provide the best protection possible.
(Supp. Shotwell Decl., Ex. 9). Schmidt noted that the project was nearing completion. (Id.
at 69).
NPS completed the remainder of the construction of the fence in 1967, and
sections of it remained in The Sunken Forest into the late 1980s. (Defs 56.1 ¶ 16; Pls
56.1 Resp. ¶ 16; Knapp Decl., Ex. E at 12:8–19).

C. Prior Litigation
In 1988, various parties, including WPI, brought suit against NPS and others
seeking, in part, to enjoin a proposed experimental research hunt on FINS in December
1988 and January 1989. Allen v. Hodel, No. 88-CV-3901 (TPC) (ASC), 1989 WL 8143,
at *1 (E.D.N.Y. Jan. 11, 1989). The plaintiffs’ causes of action included the failure to
comply with preliminary rulemaking procedures, failure to take measures to adequately
protect the public, negligently planning the proposed hunt, and others. Id.4 Although the
Sunken Forest was initially among the areas of FINS on which the experimental hunt was

to be conducted, it was excluded from the hunt during the pendency of the Allen litigation.
Allen, 1989 WL 8143, at *7 (“[t]he Sunken Forest area, which involves a question of
reverter to private ownership if hunting is permitted, is not involved in any way in the
proposed hunts”). FINS Superintendent Noel J. Pachta (“Pachta”) confirmed as much in
testimony taken during a hearing in Allen on December 16, 1988, the day before the hunt
began:
THE COURT: Sunken Forest area, which says the land reverts to private
land if hunting is permitted.
MR. PACHTA: Yes.
THE COURT: Which may create a problem of losing the land if hunting is
permitted.
MR. PACHTA: Yes, I understand that.

4 The Allen plaintiffs, including WPI, did not allege a cause of action under the Quiet Title Act, 28 U.S.C. §
2409a. See Allen, 1989 WL 8143, at *1; (see also Defs 56.1 ¶ 33; Pls 56.1 Resp. ¶ 33).
THE COURT: Well, that puts another complexion on the case.
MR. PACHTA: Except that, on advise [sic] of my counsel today I removed
that section from the hunt.
THE COURT: This section?
MR. PACHTA: Yes. There will be no hunting of animals in that Sunken
Forest area.
THE COURT: This is the area that Robert L. Perkins, Junior, head of the
Wild Life [sic] Preserves Inc. donated?
MR. PACHTA: Yes, sir.
THE COURT: And you have taken all of the Wild Life [sic] Preserves Inc.
land out of the hunt?
MR. PACHTA: Yes.
(Supp. Shotwell Decl., Ex. 2 at 17:1–19). The WP Tracts were excluded from the hunt
after WPI alerted FINS officials, several days before the hunt was set to begin, of WPI’s
automatic reverter if hunting were to occur on the WP Tracts. (See Supp. Shotwell Decl.,
Ex. 3 at 21:1–9). During another hearing in Allen, on December 19, 1988, Pachta testified:
“That’s why as I very often do when I get threatening letters from attorneys in making
promises, that information is conveyed to my regional solicitor who at that point through
discussion—then we made a decision to remove that portion of Sunken Forest for right
now.” (Id. at 21:22–22:7).
Fencing of the Sunken Forest was discussed during the same hearing. (See id. at
28:11–19). In particular, in response to a question posed by then-counsel for WPI,
Edward Hochman (“Hochman”), as to “the exact boundaries” of the “particular parcel of
[The Sunken Forest] land donated” by WPI, Pachta testified, “[s]ome of the original
sporadic fencing has been removed. We, in fact, treat that, the whole area from the
Sailor’s Haven Visitors Center to the boundary of Oaklyville [sic] and Point of Woods, we
treated that whole area as the Sunken Forest which includes, certainly, the area that was
donated.” (Id.). Following this testimony, Hochman presented Pachta with a copy of the
1955 Deed’s reversion provision, and then continued to question Pachta about the
boundaries of the hunt. (See id. at 28:20–31:10).
Ultimately, in Allen, the court upheld NPS’s authority to conduct the experimental
research hunt on FINS, not including the Sunken Forest area. See Allen, 1989 WL 8143,
at *10.

D. The NPS Plan
In the mid-1980’s, “researchers documented a significant decline in plant species
and abundance of the Sunken Forest . . . .” (Shotwell Decl., Ex. 9 (“ROD and Plan”) at 2).
In recent years, scientists observed that many “[vegetation] species have dramatically
declined in abundance or have been altogether extirpated from the area by deer
browse[.]” (ECF No. 100-2 at 125). Then, on April 28, 2016, NPS issued a ROD finalizing
the Plan,5 the purpose of which is to promote the “protection, preservation, regeneration,
and restoration of native vegetation and other natural and cultural resources at the

Seashore; and minimize undesirable human-deer interactions while maintaining a viable
population of white-tailed deer within the Seashore.” (ROD and Plan at 1, 15; Pls 56.1 ¶
27; Defs 56.1 Resp. ¶ 27). The Plan aims to “address impacts associated with changes
in white-tailed deer abundance, distribution, and behavior.” (Id. at 1, 15). To achieve this,
the Plan sets forth management actions that will “utilize a combination of lethal and
nonlethal actions to reduce and maintain deer density at a target level[.]” (Id. at 5, 17).
For the Sunken Forest, the deer density target is set at zero. (Id.). Lethal actions to
achieve the target density within the Sunken Forest consist of “sharpshooting or capture

5 The Plan is an attachment to the ROD and contains “the complete description of the selected action[.]”
(Shotwell Decl., Ex. 9 at 12–67).
and euthanasia.” (Id. at 5, 19). Once the target deer density is attained via lethal actions
it “will be maintained . . . by either direct reduction (sharpshooting, capture and
euthanasia[)] . . . or by nonsurgical reproductive control when an acceptable agent
becomes available.” (Id. at 5, 17).6
In addition, the Plan includes the “use of exclusion fencing to protect the Sunken

Forest maritime holly forest[.]” (Id. at 4, 18). The exclusion fence would be “installed
around approximately 44 acres of the Sunken Forest to protect the majority of the rare
maritime holly forest from deer browse[.]” (Id.). “Approximately 29 acres of exclusion
fence will be within the Sunken Forest Preserve and approximately 15 acres will be
outside the Preserve, extending to the east[.]” (Id.). The exclusion fence “will be a
minimum of 8 [to] 10 feet high and mesh size will be sufficient to allow most small animals
to move freely through the fence[.]” (Id. at 7, 18). Pursuant to the ROD and Plan, “[d]uring
construction of the fence, deer will be removed from the fenced area by driving them out”
and “[o]nce the fence is completed, any deer found inside the fence will be removed

through direct reduction (sharpshooting or capture and euthanasia).” (Id. at 5, 19).
Installation of the exclusion fence “will result in some adverse impacts on
vegetation in the Sunken Forest,” given “trimming and removal of some vegetation.” (Id.
at 63). “The extent of linear vegetation removal needed for fence installation totals
approximately 1.31 acres in the Sunken Forest[.]” (Id.). “To minimize impacts on
surrounding vegetation, clearing will be accomplished by hand using hand tools.

6 NPS first announced its intent to prepare an environmental impact statement for a “Deer and Vegetation
Management Plan” for FINS on June 17, 2011, via publication of a notice in the Federal Register. (Pls 56.1
¶ 22; Defs 56.1 Resp. ¶ 22; see also Shotwell Decl., Ex. 5). After a period of public comment, the final study
was published on December 31, 2015. (Pls 56.1 ¶ 26; Defs 56.1 Resp. ¶ 26; see also Shotwell Decl., Ex.
8).
Seashore staff will select alignments for the fence that will minimize removal of overstory
trees in the Sunken Forest[.]” (Id.). “Vegetation will be allowed to recover along the edge
of the fence where construction impacts occurred. Vegetative recovery is expected within
one to two growing seasons after fence installation.” (Id.).

PROCEDURAL HISTORY
Plaintiff commenced this action on November 29, 2017, and filed an Amended
Complaint on April 16, 2018. (See Compl.; ECF No. 17). On November 20, 2018,
Defendants moved to dismiss several claims in the Amended Complaint, arguing that,
inter alia, the Court lacked subject matter jurisdiction under the QTA, Plaintiffs failed to
join the United States as a necessary party, the claims are time-barred or foreclosed by

res judicata and collateral estoppel, and the Amended Complaint failed to state a claim.
(See generally ECF No. 29). On August 3, 2020, District Judge Sandra J. Feuerstein
granted in part Defendants motion to dismiss, holding that Plaintiffs failed to join the
United States as a necessary party, but allowed Plaintiffs to file a second amended
complaint. (Mem. & Order at 11–12). The Court further held that the question of whether
the claims are time-barred could not be resolved on the motion to dismiss. (Id. at 17).
On September 22, 2021, Plaintiffs filed the Second Amended Complaint,
requesting that the Court (1) issue a declaratory judgment that the Plan violates the deed
restrictions and the WP Tracts immediately reverted to WPI as a result of the enactment

of the Plan; (2) quiet title in the WP Tracts in favor of Plaintiffs; (3) either (i) eject the
United States from the WP Tracts, allow Wildlife Preserves to recover possession of the
WP Tracts, and order Defendants to execute a deed for the WP Tracts in favor of Wildlife
Preserves, its successors and assigns; or (ii) require the United States to pay just
compensation to Plaintiffs; and (4) rule that the Plan violates the deed restrictions on the
WP Tracts and permanently enjoin NPS from executing the Plan on the WP Tracts. (SAC
¶¶ 50–77).
In December 2022 and January 2023, the parties requested a pre-motion
conference on their anticipated motions for summary judgment. (See ECF Nos. 67, 75,

76, 79). District Judge Nina R. Morrison7 denied the requests for a pre-motion conference
and set a briefing schedule. (Order dated 4/13/2023). On August 31, 2023, the parties
filed the fully briefed Motion and Cross-Motion. (See Pls Mot.; ECF Nos. 90-1 (“Pls
Mem.”), 110 (“Defs Opp.”), 92 (“Pls Reply”); Defs Cross-Mot., ECF Nos. 95 (“Defs Mem.”),
98 (“Pls Opp.”), 103 (“Defs Reply”)).

LEGAL STANDARDS
I. Summary Judgment
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to material fact exists if a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In deciding a motion for summary judgment, the court must “constru[e] the
evidence in the light most favorable to the nonmoving party and draw[] all reasonable

inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.
2011) (citing Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010)).

7 After several reassignments, on October 26, 2022, District Judge Nina R. Morrison was assigned to the
case. (Ordered dated 10/26/2022). On December 7, 2023, the case was reassigned to me for all further
proceedings. (Order dated 12/7/2023).
“The moving party bears the burden of showing the absence of a genuine dispute
as to any material fact[.]” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d
Cir. 2014). “Once this burden is met, however, the burden shifts to the nonmoving party
to put forward some evidence establishing the existence of a question of fact that must
be resolved at trial.” McFarlane v. Harry’s Nurses Registry, No. 17-CV-06350 (PKC) (PK),

2020 WL 1643781, at *4 (E.D.N.Y. Apr. 2, 2020) (citing Spinelli v. City of New York, 579
F.3d 160, 166–67 (2d Cir. 2009)). To do so, the nonmoving party may not rely on “[a]
mere ‘scintilla of evidence’” but “‘must come forward with specific facts showing that there
is a genuine issue for trial.’” Id. (first quoting Hayut v. State Univ. of N.Y., 352 F.3d 733,
743 (2d Cir. 2003), then quoting Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002)); see also Garcia v. Saigon Mkt. LLC, No. 15 Civ. 9433 (VSB), 2019 WL 4640260,
at *3 (S.D.N.Y. Sept. 24, 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)) (“To defeat a summary judgment motion, the nonmoving
party ‘must do more than simply show that there is some metaphysical doubt as to the

material facts.’”).
To satisfy their respective burdens, the parties may rely upon “depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). “Where the non-movant will ultimately bear the burden of proof at trial, he
must present evidence to support the essential elements of his claims.” Hristova v. 3321
Astoria Inc., No. 17-CV-1633 (RER), 2018 WL 4006880, at *3 (E.D.N.Y. June 27, 2018)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Absent evidence supporting
the non-movant’s claims, judgment should be entered for the moving party.” Id. But “[i]f
the evidence is such that a ‘jury could reasonably find for the nonmovant,’ the motion
must be denied.” Id. (quoting Anderson, 477 U.S. at 252).
II. The Quiet Title Act
“The QTA authorizes (and so waives the Government’s sovereign immunity from)

a particular type of action, known as a quiet title suit: a suit by a plaintiff asserting a ‘right,
title, or interest’ in real property that conflicts with a ‘right, title, or interest’ the United
States claims.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209, 215 (2012). In order for a court to exercise jurisdiction over an action under
the QTA, “1) the United States must claim an interest in the property at issue; and 2) there
must be a disputed title to real property between interests of the plaintiff and the United
States.” Leisnoi, Inc. v. United States, 267 F.3d 1019, 1023 (9th Cir. 2001). The Supreme
Court has held that “Congress intended the QTA to provide the exclusive means by which
adverse claimants could challenge the United States’ title to real property.” Block v. N.

Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983).
DISCUSSION
Claims under the QTA must be brought within a twelve-year statute of limitations:
“[a]ny civil action under this section . . . shall be barred unless it is commenced within
twelve years of the date upon which it accrued.” 28 U.S.C. § 2409a(g). As discussed in

further detail herein, WPI’s QTA claim falls outside of the twelve-year statute of limitations
because its claim to title in the WP Tracts accrued at the latest by 1988. Further, WPI’s
time-barred QTA claim could not be resurrected by the 2016 ROD and Plan.
Consequently, because the underlying QTA claim is untimely, Plaintiffs may not be
awarded declaratory or injunctive relief. Finally, Plaintiffs’ claim for ejection is preempted
by the QTA.
I. WPI’s QTA Claim is Time-Barred
Under the QTA, an “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.” 28 U.S.C. § 2409a(g) (emphasis added); see also United States v.
Beggerly, 524 U.S. 38, 39 (1998). In the context of WPI’s claims,8 the statute of limitations
began to run on the date that WPI knew or should have known that a reversionary interest
in the WP Tracts was triggered. The Court previously held that, “[g]iven the nature of the
reversionary interest, the only rational interpretation of the QTA is that the conduct that
triggers the reverter places the title in dispute and simultaneously commences the running
of the statute of limitations.” (Mem. & Order at 16). The Court further noted that “[w]hether
[WPI’s] reversionary interest was triggered . . . cannot be answered on the current record

on Defendants’ motion to dismiss.” (Id. at 17). Now, on summary judgment, the Court is
tasked with determining when, if ever, WPI’s reversionary interest in the WP Tracts was
triggered for QTA statute of limitations purposes.
WPI argues that its reversionary interest was triggered on April 28, 2016, when the
ROD was issued. (Pls Mem. at 19–23). Specifically, WPI argues that “when NPS issued
the ROD requiring enactment of a Plan that mandated lethal deer management and

8 As an initial matter, AWI is not a proper party to the QTA claim. The Supreme Court has made clear that
under the QTA, “adverse claimants” means “plaintiffs who themselves assert a claim to property
antagonistic to the [f]ederal [g]overnment’s.” Patchak, 567 U.S. at 215 (holding that plaintiff’s claim did not
fall under the QTA because the plaintiff himself did not assert title to the disputed land); see also Call-A-
Head Corp. v. United States, No. 21-CV-3234 (LDH) (VMS), 2022 WL 263164, at *2 (E.D.N.Y. Jan. 27,
2022) (same). AWI has not asserted a claim to title to the WP Tracts. Accordingly, the Court considers the
QTA claim only with respect to WPI throughout the remainder of this memorandum.
construction of a wildlife exclusion fence on the WP Tracts, Defendants violated the deed
restrictions.” (Id. at 22). WPI therefore argues that because it brought suit less than two
years later, on November 29, 2017, the QTA claim falls well within the twelve-year statute
of limitations. (Id. at 19). Defendants, on the other hand, argue that WPI’s reversionary
interest was triggered in 1966 or 1967, when SFPI conveyed the Sunken Forest to the

United States with the proviso that the Sunken Forest be enclosed with a chain-link and
barbed wire fence, and when the fence was ultimately constructed, or alternatively in 1988
when WPI definitively gained notice thereof. (Defs Mem. at 19–22).9
A. The 1967 Fence Triggered WPI’s Reversionary Interest
A threshold question in the Court’s inquiry is whether the 1967 fence triggered
WPI’s reversionary interest for QTA statute of limitations purposes. The Supreme Court
has held that “a condition to the waiver of sovereign immunity . . . must be strictly
construed.” Wilkins v. United States, 598 U.S. 152, 162 (2023); see also Block, 461 U.S.

at 287. As such, “the trigger for starting that twelve-year clock running is an exceedingly
light one.” George v. United States, 672 F.3d 942, 944 (10th Cir. 2012). In the context of
the QTA statute of limitations, the Court need not determine whether Defendants’ conduct
conclusively and unequivocally violated the deed restrictions. See Shultz v. Dep’t of Army,
886 F.2d 1157, 1160 (9th Cir. 1989). Rather, the relevant inquiry is whether the
government took actions that were adverse to plaintiff’s interest. See id.; see also

9 Defendants alternatively argue that WPI’s reversionary interest was triggered (1) in 1966, when the United
States took title to the WP Tracts, because the 1964 FINS enabling act obligated NPS to allow hunting on
the WP Tracts (Defs Mem. at 21); (2) in 1975, when NPS issued a final environmental impact statement
that “gave notice that the NPS intended to permit deer hunting at FINS per its ‘legislative mandate’” (id. at
21–22); or (3) in 1988, when NPS conducted a deer hunt within FINS, originally including the Sunken Forest
(id. at 22). Because the Court finds that WPI’s reversionary interest was triggered based on the 1967 fence,
the Court does not consider these alternative arguments.
Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008)
(“the [QTA] statute of limitations inquiry is whether the plaintiff had notice of the federal
claim, not whether the claim itself is valid”) (emphasis added). The government’s conduct
“merely must be substantial enough to create a cloud on title.” Rio Grande Silvery Minnow
v. Bureau of Reclamation, 599 F.3d 1165, 1176 (10th Cir. 2010). Further, even “invalid [

] claims trigger the [QTA] limitations period . . . and the merits of the [ ] claim are not
relevant to the limited inquiry[.]” Graham v. United States, No. 21-CV-03053 (NYW), 2022
WL 1288477, at *8 (D. Colo. Apr. 29, 2022) (quotation marks omitted).
Here, WPI maintains that the purpose of the 1967 fence was “fully consistent with
and advance[d] the purposes of the deed restrictions.” (Pls Opp. at 10). Specifically, WPI
argues that, unlike the fence mandated by the 2016 ROD and Plan, “[t]here is no evidence
that the purpose of the 1967 fence was to exclude wildlife.” (Id. at 10–11). However,
correspondence regarding the fence suggests that the fence did, in fact, exclude wildlife.
For example, correspondence makes clear that the fence was ultimately enclosed on all

sides, despite the letters advocating against full enclosure. (Supp. Shotwell Decl., Ex. 9
at 69 (“we have continued the fence eastward from the west line of the Sunken Forest,
and are enclosing the larger areas”)). The correspondence further states that full
enclosure would “impound[] or exclude[] [deer and fox] from the area with possible
detrimental results.” (Supp. Shotwell Decl., Exs. 7 at 64, 8 at 67). WPI itself concedes, in
briefing regarding the 2016 ROD and Plan, that “eliminating an entire species from the
WP Tracts violates Defendants’ obligation to maintain the land in its ‘natural state’ as a
sanctuary and preserve for the maintenance of wildlife.’” (Pls Opp. at 28–29 (quoting 1955
Deed at 5)). WPI further admits that “barring deer and larger species of wildlife from
accessing the WP Tracts” violates the deed restrictions by “adversely affect[ing] the . . .
fauna.” (Pls Opp. at 29 (quoting 1955 Deed at 5)). The Court is not aware of how, as a
practical matter, a fully enclosed, five-foot high, chain-link and barbed-wire fence could
have allowed for the free access of deer and larger species of wildlife.
In addition, WPI points to the correspondence regarding the fence to support the

argument that the purpose of the 1967 fence was to “protect the WP Tracts as a sanctuary
to benefit wildlife and protect the ecosystem by restricting visitors from disturbing the
area.” (Pls Opp. at 10). But, as WPI rightly points out in briefing regarding the 2016 ROD
and Plan, “[Defendants’ stated] purpose, need, and objectives do not grant [them] the
authority to violate the deed restrictions.” (Pls Opp. at 32). The Court finds that the fence
did not, in fact, serve the purpose of “maintain[ing] [the WP Tracts] in their natural state,”
as required by the deed restrictions. (See 1955 Deed at 5 (emphasis added)).10
Accordingly, the record makes clear that the 1966 proviso and construction of the 1967
fence are fundamentally at odds with the deed restrictions. The Court therefore finds that

the government’s conduct was sufficient to trigger WPI’s revisionary interest for QTA
statute of limitations purposes.11

10 WPI further argues that the 1967 fence aligned with the intent of SFPI and the United States, “as neither
party would have entered into a cooperative agreement that required a violation of the deed they had
recently executed.” (Pls Opp. at 11). Given that the 1967 fence did conflict with the deed restrictions, the
parties’ intention in creating the fence is irrelevant.

11 Defendants alternatively argue that the deed restrictions should not be enforced because they are vague
and ambiguous, and, if enforced, would produce unreasonable results. (See Defs Mem. at 26–34; Defs
Opp. at 28–32). WPI maintains that the deed restrictions are not vague and ambiguous, and are
enforceable. (See Pls Opp. at 24–28). Ultimately, the Court need not determine whether the deed
restrictions are enforceable. Rather, the relevant inquiry for QTA statute of limitations purposes is whether
Defendants’ action would have reasonably alerted WPI that Defendants’ acted adverse to the deed
restrictions. See Shultz, 886 F.2d at 1160; see also Kingman Reef Atoll Invs., L.L.C., 541 F.3d at 1197.
B. WPI Knew or Should Have Known of the 1967 Fence
Having determined that the 1967 fence triggered WPI’s reversionary interest, the
Court next considers whether WPI “knew or should have known” that a QTA claim
accrued. See 28 U.S.C. § 2409a(g). All parties agree that the Cooperative Agreement
referencing the fence was not recorded at any point. (Pls 56.1 Resp. ¶¶ M, O; Defs 56.1

Reply ¶¶ M, O). The parties dispute, however, whether WPI had knowledge of the
Cooperative Agreement or the fence constructed in connection with the Cooperative
Agreement until the initiation of this lawsuit. (Pls 56.1 Resp. ¶ L; Defs 56.1 Reply ¶ L).
WPI asserts that it did not have notice of the fence until this litigation, and so the QTA
claim did not accrue until the 2016 ROD and Plan. (Pls Opp. at 11). As described in further
detail herein, the Court finds that this dispute of fact is not material, as WPI reasonably
“should have known” about the fence based on the December 19, 1988 hearing in Allen.
Even standing alone, FINS Superintendent Pachta’s 1988 testimony that “some”
of the fencing around or within the Sunken Forest was removed should have raised WPI’s

suspicions that a fence had been constructed. (See Knapp Decl., Ex. E at 12:8–19; id.).
The testimony suggests that not only was there a history of fencing around the Sunken
Forest, but also that other fencing remained. In that moment, WPI, via its counsel, was
put on notice that Defendants may have violated and may still be violating the deed
restrictions. See Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994) (where knowledge
acquired by counsel was imputed to plaintiff at the time that his counsel received said
information). WPI argues that Pachta “never elaborated on what fencing he was referring
to, when it was built, why it was built, or whether it was completed.” (Pls Reply at 11). But
WPI did not need to know “the claim’s full contours” in order for the QTA statute of
limitations to accrue. See Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980).
Nor did WPI need to know “the precise nature” of the government’s conduct. See Rio
Grande Silvery Minnow, 599 F.3d at 1176. Instead, WPI only needed to be “reasonabl[y]
aware[]” of a claim to title. Id.
Furthermore, the Court cannot view this testimony in a vacuum and must look to

the broader context of the litigation. In Allen, the Sunken Forest was initially among the
areas of FINS on which the experimental hunt was to be conducted, but was excluded
from the hunt. Allen, 1989 WL 8143, at *7. The exclusion was not a coincidence. Rather,
NPS decided to exclude the WP Tracts from the hunt only after WPI informed NPS of the
deed restrictions and the possibility of reverter. (See Supp. Shotwell Decl., Ex. 3 at 21:1–
9, 21:22–22:7). Pachta testified to that affect during the December 19, 1988 hearing,
shortly before he testified regarding the 1967 fence. (Id.). In addition, directly after Pachta
testified regarding the 1967 fence, Hochman presented Pachta with the 1955 Deed’s
reverter provision and proceeded to ask Pachta questions regarding the hunt. (Id. at

28:20–29:16). This context makes clear that one of WPI’s interests in the Allen litigation
was in preventing the deed restrictions from being violated and ensuring that they were
not. The deed restrictions were front of mind for WPI, and any potential violation thereof
should have been recognized. The Court finds that WPI, as a reasonable party, should
have known that a fence surrounding the donated land could conflict with the deed
restrictions. Therefore, the QTA claim accrued by 1988, and WPI had, at the latest, until
2001 to bring a timely claim.12

12 Defendants argue that WPI’s reversionary interest was extinguished between 1993 and 1996, because
WPI failed to file a “declaration of intention” to preserve the interest within 27 to 30 years of its creation, as
required by New York Real Property Law Section 345 (“RPL 345”). (Defs Opp. at 27–28); see N.Y. Real
C. WPI Cannot Resurrect a Time-Barred QTA Claim
Finally with respect to the QTA, the Court must dispel WPI’s notion that even if its
QTA claim arising from the 1967 fence is time-barred, it is permitted to bring another QTA
claim arising from the 2016 ROD and Plan. (Pls Opp. at 8–10). WPI’s theory is as follows:
[I]f the statute of limitations has run due to some previous activity, then that
merely precludes a grantor from challenging a grantee’s title due to that
particular activity. It does not preclude a challenge of future, different
activities that trigger a reversionary interest. Assuming, arguendo, that the
four activities Defendants cite to did indeed trigger WP’s reversionary
interest, such that the QTA’s statute of limitations began to run, then WP
simply would be barred from bringing an action alleging that title to the WP
Tracts was in dispute based on construction of a fence in 1967, the Enabling
Act, the 1975 [final environmental impact statement], and the 1988 hunt.

(Pls Opp. at 9). But WPI cites no authority for this position, likely because it conflicts with
the construction and history of the QTA. Federal sovereign immunity provides that the
United States cannot be sued without the consent of Congress. Block, 461 U.S. at 287.
“A necessary corollary of [federal sovereign immunity] is that when Congress attaches
conditions to legislation waiving the sovereign immunity of the United States, those
conditions must be strictly observed, and exceptions thereto are not to be lightly implied.”
Id. In passing the QTA, Congress intended to provide a way for claimants to challenge
the United States’ title to real property, and thereby created a waiver of sovereign
immunity. Id. at 286. One “condition” to this legislation is the twelve-year statute of
limitations. Id. at 287. Accordingly, the Court must take caution “not to interpret [the statute

Prop. § 345(1), (4). WPI argues that its reversionary interest was not extinguished for several reasons. (See
Pls. Opp. at 19–24). Even if WPI’s reversionary interest was extinguished between 1993 and 1996, WPI
had notice of a QTA claim based on its reversionary interest by 1988, when the interest was still valid.
Accordingly, the Court need not consider whether RPL 345 extinguished WPI’s interest.
of limitations] in a manner that would ‘extend the waiver beyond what Congress
intended.’” Id. (quoting United States v. Kubrick, 444 U.S. 111, 117–118 (1979)).
If WPI’s position were correct, “all of the carefully-crafted provisions of the QTA
deemed necessary for the protection of the national public interest could be averted. ‘It
would require the suspension of disbelief to ascribe to Congress the design to allow its

careful and thorough remedial scheme to be circumvented by artful pleading.’” Block, 461
U.S. at 286 (quoting Brown v. GSA, 425 U.S. 820, 833 (1976)). Specifically, if WPI were
permitted to resurrect a time-barred QTA claim involving the same disputed title, “the
QTA’s twelve-year statute of limitations, one point on which the Executive Branch was
most insistent, could be avoided[.]” Id.
The Supreme Court’s decision in Block is instructive here. See id. There, the Court
rejected the state of North Dakota’s argument that the QTA statute of limitations did not
apply to civil actions brought by states. See id. The Court observed that Ҥ 2409a(f)
expressly states that civil action is time-barred unless filed within twelve years after the

date it accrued. The statutory language makes no exception for civil actions by [s]tates.”
Id. at 288 (emphasis added). The Court held that in light of its approach to sovereign
immunity cases, the state was not entitled to an exemption from the QTA’s statute of
limitations. See id. Likewise here, the statutory language of the QTA makes no exception
or condition for claimants seeking to resurrect time-barred title disputes due to different
government conduct. See 28 U.S.C. § 2409a. Rather, the QTA allows a party to
“adjudicate a disputed title to real property in which the United States claims an interest”
within twelve years of when the United States’ claim accrued. Id. Here, once WPI knew
or should have known that its reversionary interest was triggered, the United States began
holding a claim to title that was adverse to WPI’s. Particularly in light of the automatic
reverter, the United States continued (and continues) to hold that adverse claim to title.
While WPI had a twelve-year window of time to adjudicate that adverse claim, that window
is now closed and cannot be reopened. Accordingly, given that WPI’s time to bring a claim
under the QTA has expired, the WPI is barred from resolving title to the WP Tracts.13

* * *
Accordingly, Plaintiffs’ Motion for Summary Judgment on the QTA claim is denied,
Defendants’ Cross Motion for Summary Judgment on the QTA claim is granted, and the
QTA claim is dismissed.
II. Plaintiffs Are Not Entitled to Declaratory and Injunctive Relief
Plaintiffs assert claims for both declaratory judgment and permanent injunction,
both of which are forms of relief and not independent causes of action. (SAC ¶¶ 50–54,
69–77); see Nat’l Union Fire Ins. Co. v. Karp, 108 F.3d 17, 21 (2d Cir. 1997) (noting that

the Declaratory Judgment Act “is procedural in nature, and merely offers an additional
remedy to litigants”); Roller v. Red Payments L.L.C., No. 19-CV-5285 (GRB) (VMS), 2022

13 WPI further argues that barring this action would effectively “extinguish[] a grantor’s reversionary interest
for failure to bring a claim over past activity” and allow “a grantee [to] violate deed restrictions in a different
manner in the future without being subject to legal challenge.” (Pls Opp. at 8–9). But the QTA statute of
limitations does not extinguish claimants’ rights. Block, 461 U.S. at 292; United States v. Gammache, 713
F.2d 588, 591–92 (10th Cir. 1983). Rather, it bars the QTA as a remedy. Gammache, 713 F.2d at 591–92.
In other words,

[a] dismissal pursuant to § 2409a(g) does not quiet title to the property in the United States.
The title dispute remains unresolved. Nothing prevents the claimant from continuing to
assert his title, in hope of inducing the United States to file its own quiet title suit, in which
the matter would finally be put to rest on the merits.

Block, 461 U.S. at 292. “Thus, once title has vested, absent eminent domain, title remains with the title
holder ‘regardless of whether [one's] suit to quiet its title is time-barred under [the QTA].’” Kane Cnty., Utah
(2), (3) & (4) v. United States, No. 10-CV-01073 (CW), 2023 WL 6609358, at *5 (D. Utah Oct. 10, 2023)
(quoting Block, 461 U.S. at 292 & n.27). “A vested, but non-perfected property right, still means something.”
Id.
WL 4226094, at *8 (E.D.N.Y. Sept. 12, 2022) (“[I]t is well settled that a request for
injunctive relief is not a separate cause of action.” (internal citation omitted)). Plaintiffs
cannot maintain claims for declaratory and injunctive relief where the underlying
substantive claim has been dismissed. See Prignoli v. Bruczynski, No. 20-CV-907 (MKB)
(VMS), 2021 WL 4443895, at *13 (E.D.N.Y. Sept. 28, 2021) (holding that plaintiff is not

entitled to independent declaratory relief where the court dismissed the underlying
substantive claims); Roller, 2022 WL 4226094, at *8 (“an injunction relies on a valid legal
predicate”). Thus, in light of the dismissal of Plaintiffs’ underlying QTA claim, Plaintiffs are
not entitled to independent declaratory or injunctive relief. Accordingly, Plaintiffs’ Motion
for Summary Judgment with respect to declaratory and injunctive relief is denied and
Defendants’ Cross Motion for Summary Judgment with respect to declaratory and
injunctive relief is granted.
III. The QTA Preempts Plaintiffs’ Ejectment Claim

Plaintiffs also assert a claim for ejectment. (SAC ¶¶ 62–68). Under New York law,
ejectment is an action to recover immediate possession of real property. City of Syracuse
v. Hogan, 234 N.Y. 457, 462 (1923). To succeed on a claim for ejectment, plaintiff must
prove legal title to the real property. Aubuchon v. New York, N.H. & H.R. Co., 137 A.D.
834, 837 (2d Dep’t 1910). Here, legal title to the WP Tracts is in dispute. And because
the United States claims title to the real property at issue, the QTA is Plaintiffs’ “exclusive
means” to challenge title. Block, 461 U.S. at 286 (1983). Therefore, Plaintiffs are
preempted from bringing other causes of action challenging the United States’ title to the
WP Tracts, including ejectment. See id.; see also Shoshone-Bannock Tribes of the Fort
Hall Reservation v. United States of America, No. 18-CV-00285 (AKB), 2024 WL 249367
(D. Idaho Jan. 22, 2024) (holding that QTA prevented ejectment claim against
government officer). As such, Plaintiffs’ Motion for Summary Judgment on ejectment is
denied, Defendants’ Cross Motion for Summary Judgment on ejectment is granted, and
the claim for ejectment is dismissed.

CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment is
denied, Defendants’ Cross Motion for Summary Judgment is granted, and the case is
dismissed.
SO ORDERED.

Hon. R amón E. Re yes, J r. Digita lly signed by Hon. Ramón E. Reyes, Jr.
Date: 2024.02.26 14:01:05 -05'00'

RAMÓN E. REYES, JR.
United States District Judge

Dated: February 26, 2024
Brooklyn, NY

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311251. Public record. Not legal advice.