Petition for Writ of Certiorari — McKenzie County, North Dakota, Petitioner v. United States, et al.

No. 25-____

In The Supreme Court of the United States

MCKENZIE COUNTY, NORTH DAKOTA,

Petitioner,

v.

UNITED STATES OF AMERICA AND THE DEPARTMENT OF

THE INTERIOR,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

APPENDIX

DANIELLE R. BETTENCOURT

Counsel of Record

CONSTANCE E. BROOKS

Fairfield & Woods P.C.

1801 California St.,

Suite 2600

Denver, CO 80202-2645

(303) 830-2400

Counsel for Petitioner

McKenzie County, ND

i.

Table of Appendices

APPENDIX A - JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT, ENTERED ON MARCH 20, 2025………1a

APPENDIX B - ORDER GRANTING PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NORTH DAKOTA, ENTERED ON

NOVEMBER 29, 2023....……………………………..35a

APPENDIX C - ORDER DENYING UNITED

STATES’ MOTION TO DISMISS AND GRANTING

THE PLAINTIFF’S MOTION TO AMEND THE

COMPLAINT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NORTH DAKOTA,

ENTERED ON AUGUST 20, 2019...……...……….. 66a

APPENDIX D - ORDER DENYING UNITED

STATES’ MOTION TO DISMISS SECOND

AMENDED COMPLAINT OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF NORTH DAKOTA, ENTERED ON AUGUST 9,

2020…………………….……….……………………….90a

1a

United States Court of Appeals

For the Eighth Circuit

No. 24-1177

McKenzie County, ND

Plaintiff - Appellee

v.

United States of America; Department of Interior

Defendants - Appellants

Appeal from United States District Court

for the District of North Dakota - Western

Submitted: October 23, 2024

Filed: March 20, 2025

Before SHEPHERD, KELLY, and STRAS, Circuit

Judges.

SHEPHERD, Circuit Judge.

2a

This case concerns mineral royalties under

certain lands in McKenzie County, North Dakota.

McKenzie County sued the United States, claiming

those royalty interests as its own and that previous

litigation settled the matter. The United States

asserts that the prior litigation involved different

lands and that the County’s1 claim is untimely. The

district court granted judgment for the County, and

the United States appeals. Having jurisdiction under

28 U.S.C. § 1291, we reverse.

I.

Before it achieved statehood in 1889, North

Dakota was part of the Dakota Territory, an organized

incorporated territory of the United States. Much of

the land in present-day North Dakota was then part

of the public domain: “land owned by the [Federal]

Government . . . that was ‘available for sale, entry, and

settlement under the homestead laws, or other

disposition under the general body of land laws.’” See

Hagen v. Utah, 510 U.S. 399, 412 (1994) (citation

omitted). These lands were “in the first instance the

exclusive property of the United States, to be disposed

of to such persons, at such times, . . . in such modes,

and by such titles, as the Government may deem most

advantageous . . . .” Irvine v. Marshall, 61 U.S. (20

How.) 558, 561-62 (1857).

1 For clarity, we refer to the plaintiff-appellee municipal

entity as “the County,” while we refer to the geographic location

as “McKenzie County.”

3a

Beginning in the mid-nineteenth century,

Congress exercised that authority “to encourage the

settlement of the West.” See Amoco Prod. Co. v. S. Ute

Indian Tribe, 526 U.S. 865, 868 (1999). It did so by

providing land “in fee simple absolute” to settlers in

the Dakota Territory and the newly admitted North

Dakota under various land-patent laws. See id. Some

of these acts authorized patents with title to both the

surface and mineral estates. Id.; see, e.g., 1862

Homestead Act, ch. 75, 12 Stat. 392 (1862). Others

authorized the conveyance of title in only the surface

estate, reserving the mineral interest as part of the

public domain. Amoco Prod. Co., 526 U.S. at 870; Watt

v. W. Nuclear, Inc., 462 U.S. 36, 38-39 (1983); see, e.g.,

Stock-Raising Homestead Act of 1916, ch.9, 39 Stat.

862. In both cases, the lands were “valuable for

grazing [livestock] and raising forage crops.” See

Watt, 462 U.S. at 38 (citation omitted).

In the 1920’s and 1930’s, however, the economic

bounty of these lands began to falter. A series of

droughts hit North Dakota, causing widespread dust

storms and crop failure. Exacerbated by the onset of

the Great Depression, property values plummeted as

the Dust Bowl ravaged the Great Plains. Many

landowners were forced into bankruptcy, unable to

afford the property taxes on their once profitable land.

Like many other counties, the County foreclosed on a

significant acreage of land within McKenzie County

and acquired title to the property through tax

forfeiture proceedings. Whatever title the previous

landowner held passed to the County: only the surface

estate if the United States initially reserved the

4a

minerals, or both the surface and mineral estates if

the original patent included title to both.

But the dire times continued. By 1935, vast

swaths of land were in such poor condition “that the

operators ha[d] practically no chance of securing a

decent living,” and much of the land remained

“submarginal” to the point of nearing “retire[ment]

from cultivation.” See M.L. Wilson, The Report on

Land of the National Resources Board, 17 J. Farm

Econ. 39, 44 (1935). Congress responded to the crisis

with a series of emergency relief bills authorizing the

President to acquire and restore these “submarginal”

lands. See National Industrial Recovery Act, Pub. L.

No. 73-67, §§ 201-03, 48 Stat. 200 (1933); Federal

Emergency Relief Appropriation Acts, Pub. L. No. 7411, 49 Stat. 115 (1935), and Pub. L. 74-739, § 689, 49

Stat. 1608 (1936). Eventually, Congress enacted the

Bankhead-Jones Farm Tenant Act, which, like the

earlier acts, codified the authority to “acquire by

purchase, gift, or devise, or by transfer from . . . any

State, Territory, or political subdivision, submarginal

land and land not primarily suited for cultivation.”

See Pub. L. 75-210, § 32(a), 50 Stat. 522, 525-26

(1937). The Act also permitted the Secretary of

Agriculture2 to acquire these lands “subject to any

The lands in McKenzie County were initially

administered by the Secretary of Agriculture, and that authority

was assigned to the United States Forest Service. See 19 Fed.

Reg. 74, 75 (Jan. 6, 1954). These lands were later designated as

part of the Little Missouri National Grassland, with surface

administration again vested in the Forest Service. 36 C.F.R. §

213.1(b), (d), and (e). While the Department of Agriculture

continues to manage the surface, see id. § 213.1, the Secretary of

2

5a

reservations,

outstanding

estates,

interests,

easements, or other encumbrances which . . . w[ould]

not interfere” with the Act’s purposes. Id. § 32(a), 50

Stat. at 526. Moreover, like the earlier relief acts, the

Act authorized the sale, lease, or other disposal of land

acquired under the Act, but not property acquired

through other means. Id. § 32(c), 50 Stat. at 526.

Using this collection of statutes and relevant

executive orders, the United States sought to acquire

lands from the County. To avoid the possibility of

redemption by the previous landowners and to obtain

clear title, the United States used the power of

eminent domain. So, beginning in 1937, the United

States invoked the Condemnation Act, Pub. L. 50-728,

25 Stat. 357 (codified as amended at 40 U.S.C. § 3113),

and the Declaration of Taking Act, Pub. L. 71-736, 46

Stat. 1421 (codified as amended at 40 U.S.C. §§ 311416, 3118), and filed six declarations of taking in

federal district court in North Dakota. The

declarations listed the specific tracts the United

States wanted—some where the County held both the

surface and mineral estates (acquired lands or, when

referring to the mineral estate only, acquired

minerals) and others where the County held only the

surface estate, as the United States had retained the

mineral estate in the original patent (public domain

lands or public domain minerals). See Wallis v. Pan

Am. Petroleum Corp., 384 U.S. 63, 65 & n.2 (1966)

(“[I]n general[,] acquired lands are those granted or

the Interior is responsible for managing the subsurface estate.

See 30 U.S.C. §§ 181, 189, 226, 352; 43 U.S.C. §§ 1731-32.

6a

sold to the United States by a State or citizen and

public domain lands were usually never in state or

private ownership.”). The lands were listed by tract

number and legal description.3

Though the declarations took title to the listed

lands “in full fee simple,” they did so “subject . . . to

the rights of [the] County . . . to a 6¼% perpetual

royalty in minerals which may exist or may be

developed on all of said tracts of land.” In entering

judgment on the declarations, the district court noted

that “[a]ll the [taken] tracts or parcels of land . . .

[we]re subject to a 6¼% royalty reservation” in the

County, with the exception of specific tracts. The

County then delivered to the United States the tax

deeds for the listed tracts, though these deeds did not

include the royalty reservation. Thereafter, the

district court entered final judgment in each of the

condemnation actions (collectively, the 1930’s

Condemnation Judgments), thus completing the

3These

legal descriptions followed the Public Land

Survey System, which subdivides and describes land in 30

southern and western states—all states except the 13 original

colonies, Maine, Vermont, Kentucky, Tennessee, West Virginia,

Hawaii, and Texas. Under this system, land is divided into 3840acre “Townships,” which can be subdivided into 640-acre

“Sections,” 160-acre “quarter sections,” and 40-acre “quarterquarter sections.” Individual parcels can then be labeled

according to a standardized system. For example, one of the

tracts now in dispute (Tract No. 277) comprises 320 acres of land

in the Northeast and Southeast quarters of Section 20 of

Township 147 North, Range 104 West and is labeled as: NE¼ and

SE¼, Sec. 20, T147N, R104W.

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acquisition of title.4 Each of the 1930’s Condemnation

Judgments contained the “6¼% perpetual royalty”

language, again excepting certain specified tracts

from the reservation,5 but making no reference to

public domain or acquired lands and minerals.

Thereafter, the Bureau of Land Management

(BLM) at the Department of the Interior annotated its

records to reflect the County’s royalty interest in

tracts with acquired minerals, but not those with

public domain minerals. Over the next four decades,

BLM leased both acquired and public domain

minerals for oil and gas development and directed the

royalty from acquired lands with producing mineral

leases to be paid to the County. In 1985, however,

BLM informed the County that it would no longer

recognize the royalty reservation in the acquired

minerals based on an intervening change in state law

prohibiting the County from reserving interests in

lands it had acquired through tax forfeiture

proceedings. See De Shaw v. McKenzie County, 114

N.W.2d. 263, 264-65 (N.D. 1962).

Understandably, the County was displeased.

After unsuccessfully appealing to the Interior Board

of Land Appeals, in 1987 the County sued in the

United States District Court for the District of North

4The condemnation judgments are identified by their

“Action At Law” number and include, as relevant here, Nos. 1000,

1001, 1002, 1006, 1007, and 1028.

5Additionally, some judgments included the royalty

reservation in only particular tracts as specified.

8a

Dakota.6 In its complaint, the County defined the suit

as “a dispute over ownership of a 6¼% royalty interest

under certain lands located in McKenzie County,” and

referenced Enclosure 1 as the “subject lands” in the

dispute. The County also referenced each of the 1930’s

Condemnation

Judgments,

both

as

general

background information and in listing the tracts from

Enclosure 1 that were taken in each judgment. Among

other forms of relief, the County sought to “[q]uiet title

in the name of [the] County, to the 6¼% royalty under

the subject lands.”7

After discovery and initial briefing, the district

court certified questions of law to the North Dakota

Supreme Court. See McKenzie County v. Hodel, 467

N.W.2d 701 (N.D. 1991). Leaving the construction of

the 1930’s condemnation judgments to the district

court, the North Dakota Supreme Court narrowed its

consideration to two issues. Id. at 703-04. First, it held

that “North Dakota Law did not impede the transfer

6This

complaint named as defendants Donald Hodel

(then Secretary of the Interior), Robert Burford (then National

Administrator of BLM), Marv LeNoue (Area Administrator of

BLM), and Cynthia L. Embretson (Chief of the Fluids

Adjudication Section at BLM) in their official capacities. The

complaint did not name the United States as a defendant. Before

this Court, the parties proceed as if it were brought against the

United States.

7Though seeking to quiet title, the County did not invoke

the Quiet Title Act. See 28 U.S.C. § 2409a. Instead, the County

relied on the district court’s authority to issue mandamus relief,

see 28 U.S.C. § 1361, declaratory relief, see id. § 2201, and

injunctive relief, see id. § 2202, and to review final agency action,

see 5 U.S.C. § 704. The United States did not argue that the Quiet

Title Act provided the exclusive means of adjudicating the

dispute in that litigation.

9a

of title to real property by operation of a judgment”

because the judgment itself “has the effect of a

conveyance executed in due form of law.” Id. at 705

(citation omitted). A transfer of real property through

a judgment, then, need not comply with North

Dakota’s conveyancing statutes. Id.

Second, the court held that “nothing in . . . De

Shaw . . . limit[ed] the County’s authority to reacquire

title to property formerly held by tax title,” and thus

the County was permitted to “repurchase, take by

eminent domain, or otherwise reacquire an interest in

the property” that it had previously conveyed. Id.

Accordingly,

North

Dakota

law,

“and

its

interpretation in DeShaw, d[id] not prohibit the

County from acquiring title to mineral interests

through operation of a condemnation judgment.” Id.

Back in the district court, the County moved for

summary judgment based on the North Dakota

Supreme Court’s opinion and answers to the certified

questions. After hearing opposition from the United

States, the district court granted the County’s motion.

It held that “the recognition of a mineral reservation

in the County in the [1930’s Condemnation

Judgments] operate[d] as a conveyance of that

mineral interest to the County.” The court thereby

directed that judgment be entered “quieting title in

the County to the disputed minerals.” A week later,

the court entered judgment:

The

Federal

Government’s

condemnation actions against McKenzie

10a

County in the late 1930’s extinguished

all title McKenzie County had in the

land, including any royalty interests.

New title then vested in the Federal

Government

and

through

the

condemnation judgments [the] County

received the 6¼% royalty interest. The

recognition of a mineral reservation in

favor of McKenzie County in the federal

condemnation judgments operates as a

conveyance of that mineral interest to

McKenzie County.

It is ORDERED AND ADJUDGED that

title to the disputed minerals (6¼%

royalty) is quieted in McKenzie County;

and, the Defendants are barred from any

claim in regard to the same or proceeds

from the same; that McKenzie County is

the owner of the disputed minerals (6¼%

royalty) free and clear of any claim of the

above named defendants.

(“1991 Judgment”). The United States did not appeal.

In the years that followed, BLM updated its records to

again recognize the County’s royalty interest in

acquired lands and directed oil and gas operators to

resume paying the royalty to the County. As before,

however, BLM’s records never reflected a royalty

interest in public domain minerals.

Despite the return to the status quo, the County

soon became concerned about BLM’s compliance with

11a

the 1991 Judgment. So the County initiated a project

to “inventory and map all royalties the [C]ounty owns,

research the statute of limitations and then file with

the federal government and proceed to court if

necessary.” In the summer of 1998, the County

authorized a search of the National Archives for the

case files from the 1930’s Condemnation Judgments.

This inventory effort continued for several years, with

the Board of County Commissioners receiving regular

updates on its progress. Throughout the process, the

County

and

its

attorneys

had

extensive

correspondence with BLM about the mineral royalties

and their operation.

In November 2003, BLM sent the County a

message which stated that, according to BLM’s

records, “only the acquired minerals in the [1930’s

Condemnation Judgments we]re subject to a 6¼%

royalty reservation[].” Two weeks later, in a meeting

on December 2, the Board of County Commissioners

noted “that BLM may not be recognizing the

[C]ounty’s royalty right on parcels which were

originally patented with mineral reservations to the

federal government.” In the County’s view, the 1930’s

Condemnation Judgments “supersede[d] those

reservations.” After meeting with BLM officials later

that month to address the issue, the County received

a letter from BLM on January 27, 2004. Along with a

list of specific tracts, the letter included three relevant

statements: that BLM recognized a royalty interest in

only about three-quarters of the lands the County

identified; that the discrepancy was “because [the

County’s] records included lands with Public Domain

minerals”; and that “[o]nly lands acquired by the

12a

United States in the condemnations are subject to a

6¼ percent royalty reservation.”

On January 11, 2016, the County sued the

United States under the Quiet Title Act, 28 U.S.C. §

2409a, seeking to quiet title to the royalty interest in

public domain minerals, listing specific tracts of land

in its complaint. After the County filed an amended

complaint, the United States moved to dismiss,

arguing that the County’s claim was untimely under

the Quiet Title Act’s 12-year statute of limitations. See

28 U.S.C. § 2409a(g). The district court denied the

motion and granted the County leave to file a second

amended complaint. In the district court’s view, the

1991 Judgment already quieted title to the public

domain minerals for the County, and thus the Quiet

Title Act’s limitations period might not be relevant.

The County then filed its second amended

complaint (“2019 Complaint”), which included an

additional claim for relief.8 Invoking the All Writs Act

and Federal Rule of Civil Procedure 70(c), the County

sought to enforce the 1991 Judgment or the 1930’s

Condemnation Judgments which, in its view, included

the royalty interest underlying the tracts it was now

disputing. The United States again moved to dismiss,

claiming that the County failed to plausibly allege a

right to relief under the All Writs Act and reasserting

its statute-of-limitations argument under the Quiet

Title Act. The district court denied that motion as

well, concluding that the County had pled facts

8The County also added the Department of the Interior

as a defendant.

13a

sufficient to survive a motion to dismiss and

reiterating its decision on the statute of limitations.

Both parties moved for summary judgment.

Rejecting the United States’ argument that the

County could not circumvent the Quiet Title Act, the

district court held that the All Writs Act and Rule 70

empowered it to enforce its orders from both the 1991

Judgment and the 1930’s Condemnation Judgments.

The district court then concluded that the 1930’s

Condemnation Judgments clearly and unambiguously

included the royalty interest in all lands listed,

whether public domain or acquired, and that the 1991

Judgment plainly and unambiguously quieted title to

the royalty interests in tracts listed in the 2019

Complaint. In the alternative, the district court held

that the County’s Quiet Title Act claim was not barred

by the Act’s statute of limitations and further, were it

to address the issue in the first instance, it would

quiet title to the public domain mineral royalty in the

County. The district court thus denied the United

States’ motion for summary judgment, granted the

County’s motion for summary judgment, and entered

judgment in favor of the County. It issued the

County’s requested writ of mandamus, along with a

declaration that the royalty interest applies to both

public domain and acquired minerals, and directed

the United States to comply with that declaration as

embodied in the 1930’s Condemnation Judgments and

1991 Judgment.

The United States appeals, arguing that the

County must proceed, if at all, under the Quiet Title

Act because the All Writs Act does not provide a

14a

remedy; that the County’s Quiet Title Act claim is

untimely; and that, even assuming timeliness, the

1930’s Condemnation Judgments did not convey a

royalty interest to the County in public domain

minerals.

II.

The United States first challenges the district

court’s grant of judgment under the All Writs Act. We

review the grant of summary judgment de novo,

affirming “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a

matter of law.” Torgerson v. City of Rochester, 643

F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citation

omitted).9

The All Writs Act grants “[t]he Supreme Court

and all courts established by Act of Congress [the

authority to] issue all writs necessary or appropriate

in aid of their respective jurisdictions and agreeable to

the usages and principles of law.” 28 U.S.C. § 1651(a).

The Act thus “authorizes a federal court ‘to issue such

commands . . . as may be necessary or appropriate to

effectuate and prevent the frustration of orders it has

previously issued in its exercise of jurisdiction

otherwise obtained.’” Syngenta Crop Prot., Inc. v.

9The facts of this case are not in dispute. The only

question is whether the County or the United States was entitled

to judgment as a matter of law.

15a

Henson, 537 U.S. 28, 32 (2002) (quoting United States

v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977)).

But this authority is not without limits. For one

thing, the Act “is not an independent source of subject

matter jurisdiction.” Ark. Blue Cross & Blue Shield v.

Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 821

(8th Cir. 2009). “[W]hile the All Writs Act empowers

federal courts to wield certain ‘procedural tools,’ such

as the ‘various historic common-law writs,’” id. at 820

(citation omitted), such tools are available “only to the

extent that ‘the issuance of process [is] “in aid of” the

issuing court’s jurisdiction,’” id. (alteration in original)

(quoting Clinton v. Goldsmith, 526 U.S. 529, 534

(1999)). For another, the All Writs Act is not a

mechanism

for

“circumvent[ing]

statutory

requirements or otherwise binding procedural rules.”

Shoop v. Twyford, 596 U.S. 811, 820 (2022). The All

Writs Act cannot provide relief “[w]here a statute

specifically addresses the particular issue at hand.”

Syngenta, 537 U.S. at 32 (alteration in original)

(quoting Pa. Bureau of Corr. v. U.S. Marshals Serv.,

474 U.S. 34, 43 (1985)). The United States invokes this

latter limitation here. According to the United States,

the Quiet Title Act precludes All Writs Act relief when

a plaintiff merely seeks to quiet title against the

United States.

As a general matter, the United States is

correct. The Quiet Title Act contains a limited waiver

of sovereign immunity for civil actions against the

United States “to adjudicate a disputed title to real

property in which the United States claims an

interest.” 28 U.S.C. § 2409a(a). By its terms, the Quiet

16a

Title Act “specifically addresses” disputes with the

United States over title to real property. See

Syngenta, 537 U.S. at 32 (citation omitted). Because

the Quiet Title Act provides the means for

adjudicating those disputes, the All Writs Act “cannot

[be] use[d] . . . to circumvent [the Quiet Title Act’s]

statutory requirements [and] otherwise binding

procedural rules.” See Shoop, 596 U.S. at 820.

The nature of the Quiet Title Act makes this

point particularly clear. The Quiet Title Act is not just

“a statute [that] specifically addresses” title disputes

with the United States, see Syngenta, 537 U.S. at 32;

it is the only such statute. The Quiet Title Act

“provide[s] the exclusive means by which adverse

claimants c[an] challenge the United States’ title to

real property.” Block v. North Dakota ex rel. Bd. of

Univ. & Sch. Lands (Block I), 461 U.S. 273, 286 (1983).

Parties cannot use other statutes or rules “to end-run

the [Quiet Title Act]’s limitations.” Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak,

567 U.S. 209, 216 (2012). Thus, if a plaintiff “not only

challenges [the United States’] claim [to property], but

also asserts his own right” to that property, he must

do so subject to the Quiet Title Act’s strictures. See id.

at 217. This is true regardless of how the claim is

labeled. See, e.g., Block I, 461 U.S. at 277-78, 286, n.22

(prohibiting suits brought under Declaratory

Judgment Act and Administrative Procedure Act

(APA)); United States v. Mottaz, 476 U.S. 834, 846-49

(1986) (prohibiting suits under General Allotment

Act, 25 U.S.C. § 345); cf. Patchak, 567 U.S. at 220-24

(permitting APA claims when party does not assert

17a

personal property interest adverse to that of the

United States).

On its face, then, the County’s claim under the

All Writs Act is no different. The County asserts a

royalty interest in certain minerals that conflicts with

the interest claimed by the United States. The Quiet

Title Act provides a remedy for this dispute, and its

remedy is exclusive of all others. See Mottaz, 476 U.S.

at 846-48. By the United States’ logic, the County thus

cannot “avoid [the Quiet Title] Act’s strictures” by

resorting to the All Writs Act. See id. at 847. In the

district court and on appeal, the County suggests two

ways the All Writs Act can be used in this case:

through enforcing the 1930’s Condemnation

Judgments or through enforcing the 1991 Judgment.

For different reasons, neither option provides the

County the relief it seeks.

A.

The County argues that the All Writs Act can

be invoked to enforce the terms of a prior judgment

that itself quieted title, claiming that the 1991

Judgment did so for the minerals at issue in this

litigation. But such relief could be available only if the

1991 Judgment included the tracts of land now in

dispute.10 In other words, the All Writs Act only

10Though

we ultimately conclude that 1991 Judgment

does not include the tracts at issue here, we do not doubt that a

district court can enforce a Quiet Title Act judgment, either

under Rule 70 or the All Writs Act. See Ohio Oil Co. v. Thompson,

120 F.2d 831, 837 (8th Cir. 1941) (noting “the general rule that

when a plaintiff seeks to quiet title,” he may request judgment

18a

provides a mechanism for the County to the extent the

1991 Judgment addressed the tracts in the 2019

Complaint. We must therefore determine the scope of

the 1991 Judgment.

The parties have provided no authority from

this Circuit—and we are aware of none—where we

reviewed a district court’s interpretation of a prior

order or final judgment, nor is there a clear statement

of the standard of review. That being said, other

courts addressing similar issues have held that “[t]he

interpretation of the text of a court order or judgment

is considered a conclusion of law subject to de novo

review.” United States v. Spallone, 399 F.3d 415, 423

(2d Cir. 2005). We adopt that standard here.11 See id.;

“for a writ of possession” to require title to be passed in

accordance with the underlying judgment); Peacock v. Thomas,

516 U.S. 349, 356 (1996) (recognizing a court’s “inherent power

to enforce its judgments”).

11We

have previously endorsed a more deferential

standard for reviewing a bankruptcy court’s interpretation of a

Chapter 11 plan, see In re Dial Bus. Forms, Inc., 341 F.3d 738,

744 (8th Cir. 2003) (reviewing for an abuse of discretion), and for

reviewing a district court’s interpretation of its mandate on

remand to an Administrative Law Judge, see Steahr v. Apfel, 151

F.3d 1124, 1126 (8th Cir. 1998) (“defer[ring] to the district court’s

interpretation”). We did so in part because we were reviewing “a

court’s interpretation of its own order,” In re Dial Bus. Forms,

341 F.3d at 744 (citation omitted), and thus the district court was

“best able to determine whether its [order] ha[d] been violated.”

Steahr, 151 F.3d at 1126. The temporal proximity justifying that

deference is not present here, nor is the district judge who issued

the order later interpreting it. Instead, this situation is more like

interpreting a consent decree, where we apply de novo review,

though we accord deference when the court that entered the

decree and the court tasked with interpreting it are one and the

19a

see also United States v. 60.22 Acres of Land, More or

Less, Situate in Klickitat Cnty., 638 F.2d 1176, 1178

(9th

Cir.

1980) (reversing

district

court’s

interpretation of a condemnation judgment); SEC v.

Hermil, Inc., 838 F.2d 1151, 1153-54 (11th Cir. 1988)

(reversing

district

court’s

interpretation

of

unambiguous final judgment). In doing so, “[i]t is our

responsibility to construe a judgment so as to give

effect to the intention of the court, not to that of the

parties.” 60.22 Acres of Land, 638 F.2d at 1178.12

In relevant part, the 1991 Judgment reads as

follows:

The

Federal

Government’s

condemnation actions against McKenzie

County in the late 1930’s extinguished

all title McKenzie County had in the

land, including any royalty interests.

New title then vested in the Federal

same. See United States v. City of Fort Smith, 48 F.4th 900, 907

(8th Cir. 2022). Because that is not the case here, we do not

accord that deference. See also Spallone, 399 F.3d at 423 (noting

that issuing judge’s “construction of an ambiguity in his own

words” is reviewed for abuse of discretion).

12This makes our analysis slightly different than in the

consent-decree context, where we “look to rules of contract

interpretation” to “discern the parties’ intent” because “the

content of a consent decree is generally a product of negotiations

between the parties.” See City of Fort Smith, 48 F.4th at 907

(emphasis added) (citations omitted). To state the obvious, the

1991 Judgment was not the result of a collaborative effort in any

sense of the word.

20a

Government

and

through

the

condemnation judgments McKenzie

County received the 6¼% royalty

interest. The recognition of a mineral

reservation in favor of McKenzie County

in the federal condemnation judgments

operates as a conveyance of that mineral

interest to McKenzie County.

It is ORDERED AND ADJUDGED that

title to the disputed minerals (6¼%

royalty) is quieted in McKenzie County;

and, the Defendants are barred from any

claim in regard to the same or proceeds

from the same; that McKenzie County is

the owner of the disputed minerals (6¼%

royalty) free and clear of any claim of the

above named defendants.

R. Doc. 20-8, at 3. As the district court noted, the

question is whether “disputed minerals (6¼%

royalty)” covers the lands and mineral rights at issue

in this appeal.

When “a ‘judgment is clear and unambiguous,’

a court must ‘adopt, and give effect to,’” its plain

meaning. Spallone, 399 F.3d at 421 (citation omitted);

see also Travelers Indem. Co. v. Bailey, 557 U.S. 137,

150 (2009) (“[W]here the plain terms of a court order

unambiguously apply, . . . they are entitled to their

effect.”). But the meaning of the 1991 Judgment is not

so obvious. Though the order refers to the 1930’s

Condemnation Judgments and “the disputed minerals

21a

(6¼% royalty),” it does not reference specific tracts of

land, public domain or acquired minerals, or even

specific condemnation actions. Nor is there any

clarifying language elsewhere in the memorandum

decision, as the court referred only to “the 6¼%

royalty” or “large tracts of land” that were “‘subject to’

a 6¼% royalty.” The court’s reference to “disputed

minerals” necessarily raises the question of what

minerals were in dispute. The County argues that the

court defined the term as the “6¼% royalty,” but that

leaves us in the same place: which minerals under

which tracts? Thus, the plain text of the 1991

Judgment does not “unambiguously apply” to the

public domain minerals at issue here, cf. Travelers

Indem., 557 U.S. at 151.

Because the scope of 1991 Judgment is unclear

from its plain terms, we may resort to “the entire

record before the issuing court” to determine what was

decided. See Ruiz v. Snohomish Cnty. Pub. Util. Dist.

No. 1, 824 F.3d 1161, 1167 (9th Cir. 2016) (citation

omitted); see also City of Fort Smith, 48 F.4th at 907

(“[W]hen interpreting the meaning of a consent decree

‘as written,’ we are not to ignore the context in which

the parties were operating, nor the circumstances

surrounding the order.” (citation omitted)). We must

interpret the order “with reference to the issues it was

meant to decide,” see Mayor & Aldermen of Vicksburg

v. Henson, 231 U.S. 259, 269 (1913), so we must not

construe it “as going beyond the motion in pursuance

of which the order was made, for a court is presumed

not to intend to grant relief which was not demanded,”

see Spallone, 399 F.3d at 424 (citation omitted). See

also Henson 231 U.S. at 269 (“Every decree in a suit

22a

in equity must be considered in connection with the

pleadings, and . . . it will be limited by construction so

that its effect shall be such, and such only, as is

needed for the purposes of the case that has been

made and the issues that have been decided.” (citation

omitted)).

Applying those principles here, we conclude

that the 1991 Judgment does not include the tracts

listed in the 2019 Complaint and at issue in this case.

There are several clues that indicate as much. Start

with the language of the County’s complaint from that

case. See id. at 269 (noting that scope of an order

“must be considered in connection with the pleadings”

(citation omitted)). In the second paragraph, the

County defined the litigation as “a dispute over

ownership of a 6¼% royalty interest under certain

lands located in McKenzie County.” The County said

the lands were those “described in Enclosure 1,” and

defined them as the “subject lands.” In its own words,

then, the County limited its claim to the minerals

underlying the tracts listed in Enclosure 1.

The County doubled down on this limitation a

few pages later. It described the 1930’s Condemnation

Judgments by referencing each of the actions at law

through which the United States obtained lands in

McKenzie County. But in doing so, the County

explicitly listed specific tracts—the same ones from

Enclosure 1 and not a single tract more. None of those

tracts contains public domain minerals, and none of

those tracts is part of the lawsuit now before us. As

“master of the complaint,” it was up to the County to

decide which tracts were included, and it only

23a

included those listed in Enclosure 1. See Johnson v.

MFA Petroleum Co., 701 F.3d 243, 247 (8th Cir. 2012);

see also The Fair v. Kohler Die & Specialty Co., 228

U.S. 22, 25 (1913) (“Of course, the party who brings a

suit is master to decide what law he will rely upon.”).

If the County wanted the litigation to cover other

tracts, it should have listed them. Cf. Hunter v. Page

County, 102 F.4th 853, 869 (8th Cir. 2024) (“If

[plaintiffs] did not want to risk removal of their case

to federal court, they should not have pleaded a

federal claim.”).

That the County did not list any other tracts is

compelling evidence that the 1991 Judgment does not

extend beyond those listed in Enclosure 1, particularly

given the strict pleading requirements for quiet title

actions against the United States—requirements the

County was capable of fulfilling in the instant case.

See 28 U.S.C. § 2409a(d) (requiring plaintiffs to

describe “with particularity the nature of the right,

title, or interest which the plaintiff claims in the real

property, the circumstances under which it was

acquired, and the right, title, or interest claimed by

the United States”). Just as the instant litigation is

limited to the tracts particularly described in the 2019

Complaint, the 1991 Judgment is limited to those

tracts the County chose to include in its lawsuit,

nothing more.

The County’s requested relief further confirms

the 1991 Judgment’s scope. The County first

requested a preliminary injunction preventing further

claims to the royalty “under the subject lands.”

Similarly, it asked the court to “[q]uiet title” to the

24a

royalty interest “under the subject lands.” With its

request for relief tailored to specific tracts, it is hard

to see how the judgment granting that relief would not

be so limited. To be sure, it elsewhere used only the

phrase “the 6¼% royalty”—when asking for

reimbursement and when seeking declaratory relief

and a permanent injunction. But each of those

references contained no other limiting language and

immediately followed the specific requests tied to the

“subject lands.” Because “a court is presumed not to

intend to grant relief which was not demanded,”

Spallone, 399 F.3d at 424 (citation omitted), we do not

think the court could have intended the 1991

Judgment to extend to lands not listed in Enclosure 1.

See also Ford Motor Co. v. Summit Motor Prods., Inc.,

930 F.2d 277, 286 (3d Cir. 1991) (noting that orders

must be construed to “give effect to the intention of the

court.” (citation omitted)).

This conclusion is supported by other portions

of the record. For example, the County’s memorandum

in support of its renewed motion for summary

judgment referenced the “subject lands” throughout,

describing differences among the “subject lands” and

including a list of the tracts taken in each of the 1930’s

Condemnation Judgments—the same tracts from the

complaint. That the County itself continued to refer to

the “subject lands” is just further evidence the 1991

Judgment was not meant to address anything beyond

that. See Spallone, 399 F.3d at 424 (noting that orders

must not be construed “as going beyond the motion in

pursuance of which the order was made” (citation

omitted)). Each of these facts alone would be

persuasive evidence of the judgment’s scope. Taken

25a

together, they compel our conclusion that the 1991

Judgment was limited to only the tracts listed in

Enclosure 1.

The County’s responses are unconvincing. It

argues that the plain terms of the 1991 Judgment

include the tracts specifically listed in the 2019

Complaint. As already discussed, the plain terms do

nothing to clarify the judgment’s scope. It asserts that

the dispute was defined as one “over ownership of a

6¼% royalty interest,” without limiting the argument

to specific tracts of land or minerals. What the County

conveniently omits, however, is the rest of the

sentence: “under certain lands” that are “described in

Enclosure 1” and referred to as “subject lands.”

Finally, the County argues that its reference to the

1930’s Condemnation Judgments was sufficient to

incorporate all of the tracts taken in those actions, not

just the ones listed in Enclosure 1. This argument is

as implausible as it is factually inaccurate. The

County did not incorporate the 1930’s Condemnation

Judgments wholesale in its 1987 complaint; it listed,

with particularity, specific tracts from Enclosure 1

that were taken in each individual condemnation

judgment. Moreover, it would require suspension of

disbelief to think that the County incorporated every

tract from the 1930’s Condemnation Judgment by

specifically listing only a select few. Both individually

and collectively, these arguments are unconvincing. It

is clear from the record that the judgment does not

cover tracts that were neither listed nor discussed.

The All Writs Act could only provide relief to

the extent the 1991 Judgment included the royalties

26a

from tracts now in dispute. Based on the order’s terms

and the record upon which it was based, we conclude

that the judgment was limited to the tracts listed in

Enclosure 1. Because none of those tracts are included

in the 2019 Complaint now before us, the All Writs Act

cannot provide the relief the County seeks by

enforcing the 1991 Judgment.13

B.

Alternatively, the County argues that the All

Writs Act can be used to enforce the 1930’s

Condemnation Judgments directly, even without an

intervening quiet title judgment. We have never

addressed whether a plaintiff can enforce or challenge

the scope of a prior condemnation judgment through

something other than a quiet title action, but the

Circuits that have considered the argument appear to

be uniform in their rejection of it. See, e.g., Klugh v.

United States, 818 F.2d 294, 297-98 (4th Cir. 1987)

(prohibiting use of Rule 60(b) to contest original

condemnation action); see also Bank One Tex. v.

United States, 157 F.3d 397, 401 (5th Cir. 1998)

(noting that contests over title to condemned property

must be asserted “via an independent action against

the United States” (citation omitted)), abrogated on

other grounds by Wilkins v. United States, 598 U.S.

13For that same reason, the County cannot rely on

Federal Rule of Civil Procedure 70. That rule grants courts

certain procedural tools to enforce judgments for specific acts.

See Fed. R. Civ. P. 70. Because the 1991 Judgment does not

include the tracts from the 2019 Complaint, Rule 70 could not

afford the County’s requested relief either.

27a

152, 156 & n.2 (2023). We join those courts today and

reject the County’s argument.

The reason we do so is because of the nature of

eminent domain proceedings. A condemnation action

“proceeds in rem against the property itself” and

thereby “‘extinguishes all previous rights,’ and gives

the United States title to the entire condemned

property ‘good against the world.’” Cadorette v. United

States, 988 F.2d 215, 222-23 (1st Cir. 1993) (Breyer,

C.J.) (citations omitted); see also United States v.

Carmack, 329 U.S. 230, 235 n.2 (1946). The

condemnation judgment creates title; it does not settle

disputes over that title’s scope. See Cadorette, 988

F.2d at 222-23. With that understanding, challenges

to the scope or validity of a condemnation judgment

are like any other claim contesting the scope or

validity of title in any other legal instrument. Those

types of challenges are properly brought under the

Quiet Title Act. See Patterson v. Buffalo Nat’l River,

76 F.3d 221, 224 (8th Cir. 1996) (addressing Quiet

Title Act suit challenging scope of easements in a

deed); see also Block I, 461 U.S. at 277, 285-86

(holding Quiet Title Act is the exclusive remedy in suit

challenging scope of property taken under the equal

footing doctrine). A challenge to a condemnation

judgment is no different. See Fed. R. Civ. P. 70(b)

(noting that “judgment divesting any party’s title and

vesting it in others” operates as “a legally executed

conveyance”).

When looking to our precedent, this outcome

makes sense. We have previously permitted

challenges to the scope of land taken in a prior

28a

condemnation action to proceed under the Quiet Title

Act. In United States v. Herring, we held that a

plaintiff could invoke the Quiet Title Act to ascertain

“the validity or substance of the title” acquired

through eminent domain. 750 F.2d 669, 670-71 (8th

Cir. 1984); see Herring v. United States, 781 F.2d 119,

121 (8th Cir. 1986) (recounting that “the Quiet Title

Act can be invoked to collaterally attack the

government’s title acquired through condemnation

under the Declaration of Taking Act”). We have

applied that rule in the years since, entertaining suits

by plaintiffs arguing that previous condemnation

proceedings “never t[ook]” property in dispute. See

Long v. Area Manager, Bureau of Reclamation, 236

F.3d 910, 913 (8th Cir. 2001) (addressing dispute over

scope of land taken in prior condemnation action);

Bear v. United States, 810 F.2d 153, 154 (8th Cir.

1987) (entertaining quiet title action over lands

acquired by United States through condemnation

proceedings).

Because the Quiet Title Act can address these

claims, only the Quiet Title Act can do so. See Block I,

461 U.S. at 273; see also Patchak, 567 U.S. at 216

(noting that where Quiet Title Act provides a remedy,

that remedy is exclusive of all others). And because

the Quiet Title Act “specifically addresses the

particular issue,” the All Writs Act cannot provide a

mechanism for relief. See Pa. Bureau of Corr., 474

U.S. at 43. Accordingly, the All Writs Act cannot be

used to ascertain the validity or scope of title taken in

condemnation proceedings, and such claims must be

brought under the Quiet Title Act. To hold otherwise

would permit plaintiffs to avoid the Quiet Title Act’s

29a

“carefully-crafted” remedial scheme through artful

pleading, something Congress could not have

intended. See Block I, 461 U.S. at 284-85.

Because the All Writs Act cannot be used to

challenge the scope of the 1930’s Condemnation

Judgments, and because the 1991 Judgment does not

include the mineral royalties at issue in this case, the

district court erred in granting summary judgment for

the County under the All Writs Act. The United States

was entitled to judgment as a matter of law on that

claim. The County must proceed, if at all, under the

Quiet Title Act and subject to the Quiet Title Act’s

requirements.

III.

The United States invokes one of those

requirements here, arguing that the County’s claim is

barred by the Quiet Title Act’s statute of limitations.

Claims under the Act are barred unless they are

brought “within twelve years of the date upon which

[they] accrued”—when the plaintiff “knew or should

have known of the claim of the United States.” 28

U.S.C. § 2409a(g). As an alternative to its All Writs

Act holding, the district court granted the County

relief under the Quiet Title Act and rejected the

United States’ argument that the claim was untimely.

“We review de novo whether a statute of limitations

bars a party’s claim.” Humphrey v. Eureka Gardens

Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018)

(citation omitted). Because the County commenced its

lawsuit on January 11, 2016, its claim is time barred

30a

if it “knew or should have known” of the United States’

claim on or before January 10, 2004.

The Quiet Title Act contains a limited waiver of

sovereign immunity, so its 12-year statute of

limitations must be strictly construed. Spirit Lake

Tribe v. North Dakota, 262 F.3d 732, 745 (8th Cir.

2001), abrogated on other grounds by Wilkins, 598

U.S. at 165.14 The Quiet Title Act does not require

actual notice of the United States’ adverse claim. Id.

at 738. Rather, “the [Quiet Title] Act’s statute of

limitations’ trigger [i]s light.” Gambrell, 111 F.4th at

875. “Knowledge of the claim’s full contours is not

required,” North Dakota ex rel. Bd. of Univ. & Sch.

Lands v. Block (Block II), 789 F.2d 1308, 1313 (8th

Cir. 1986) (citation omitted), nor must the United

States’ claim have merit, North Dakota ex rel. Wrigley

v. United States, 31 F.4th 1032, 1038 (8th Cir. 2022).

Instead, the limitations period begins to run once the

plaintiff has “a reasonable awareness” that the United

States claims some adverse interest. Spirit Lake

Tribe, 262 F.3d at 738 (citation omitted). That

awareness need not be tract-specific so long as the

United States’ claim is based on “single legal theory.”

See Wrigley, 31 F.4th at 1041-42 (citation omitted).

The United States argues that the County knew

or should have known about the United States’ claim

14Wilkins held that the Quiet Title Act’s statute of

limitations was not a jurisdictional bar. See 598 U.S. at 165. The

law governing when the limitations period accrues, however,

remains valid. See Gambrell v. United States, 111 F.4th 870, 875

(8th Cir. 2024).

31a

to public domain minerals at multiple points before

January 11, 2004. One date stands out in particular:

November 17, 2003.15 On that date, BLM informed the

County that “only the acquired minerals [in the 1930’s

Condemnation Judgments we]re subject to a 6¼%

royalty reservation[].” In the United States’ view, this

was an explicit statement that the United States did

not recognize a royalty interest in at least some lands

and thus provided notice sufficient to trigger the

limitations period. See Spirit Lake Tribe, 262 F.3d at

738 (noting that a plaintiff need only know “that the

Government claims some interest”).

The County responds that the message was

vague, ambiguous, and could not have put the County

on notice of the United States’ claim. The County first

asserts that non-possessory claims like mineral

royalties are only adverse when the interest interferes

with the plaintiff’s rights, so the County could not

have known that the United States claimed an

adverse interest without more information. See

Wrigley, 31 F.4th at 1039. It is true that the

limitations period will not begin running until a

plaintiff knows or should know of an adverse

government claim, so a non-possessory interest might

accrue later than a possessory one. See Kane County

15The United States further argues that (1) the 1930’s

Condemnation Judgments themselves; (2) the failure to receive

royalty payments from public-domain minerals at any point since

then; (3) a 1981 letter from BLM to the County; (4) the 1985 BLM

decision based on De Shaw; and (5) the County’s investigation in

1998 triggered the limitations period. Because we hold that the

County’s claim accrued no later than December 2003, we do not

reach these alternative triggering events.

32a

v. United States, 772 F.3d 1205, 1216 (10th Cir. 2014)

(noting that easements can “peaceably coexist” with

servient estates (citation omitted)), abrogated on

other grounds by Wilkins, 598 U.S. at 165. But that

does not mean the County could never be on notice of

the adverse claim without the United States declaring

that it did not recognize the royalty in specific tracts.

Rather, the County still knew or should have known

of some adverse non-possessory claim based on the

notice that the United States did not recognize the

royalty interest. See also Wrigley, 31 F.4th at 1039

(public notices sufficient to place state on notice of

adverse non-possessory interest); 28 U.S.C. §

2409a(k)(1) (outlining accrual for claims by a state

through public communications). The fact that the

message did not specifically list which tracts the

United States claimed is of no matter, as tract-bytract notice is not required. See Block II, 789 F.2d at

1313-14.

The County also claims that the acquiredpublic domain distinction was not clear from the

message—a distinction the district court thought was

merely an after-the-fact fabrication by BLM to justify

its position—and thus the use of the terms could not

provide sufficient notice of anything. This argument

falls short for multiple reasons. First, contrary to the

County’s suggestions, there is an established

distinction between acquired and public lands. See,

e.g., Murray v. United States, 291 F.2d 161, 162 (8th

Cir. 1961) (“Acquired land is Government owned land

acquired from private ownership. Public land is

Government owned land which was part of the

original public domain.” (citation omitted)). Nor are

33a

these terms merely creatures of judicial decision

making. Congress explicitly codified the distinction

well before the County’s dispute with the United

States arose. See Wallis, 384 U.S. at 65 (noting the

distinction and comparing the Mineral Leasing Act of

1920, Pub L. 66-146, 41 Stat. 437 (codified as amended

at 30 U.S.C. § 181 et seq.), with the Mineral Leasing

Act for Acquired Lands of 1947, Pub. L. 80-382, 61

Stat. 913 (codified as amended at 30 U.S.C. §§ 35160)). The fact that BLM only used one of these terms

of art in the message does not mean that the

distinction was fabricated.

The County’s reaction to the message also

demonstrates it understood the distinction. Board

meeting minutes from December 2003 show that the

County was “concern[ed] that BLM may not be

recognizing the [C]ounty’s royalty right on parcels

which were originally patented with mineral

reservations to the federal government.” This goes

beyond whether the County should have known of the

United States’ claim to the royalty interest, as the

County actually expressed concern about it. The

County knew of the United States’ adverse claim, thus

triggering the limitations period. See 28 U.S.C. §

2409a(g). The County argues that the meeting

minutes only show that the County was concerned

about the problem, but it had no information about

which tracts had producing leases and whether BLM

was withholding any royalty payments. This

misunderstands the Quiet Title Act’s accrual rule. The

United States’ “claim need not be ‘clear and

unambiguous’” or asserted together with “explicit

notice.” Spirit Lake Tribe, 262 F.3d at 738 (quoting

34a

Block II, 789 F.2d at 1313). The question is not

whether BLM provided such notice, but whether the

County knew or should have known of the claim’s

general contours. See Gambrell, 111 F.4th at 875

(“[A]ll that is required is constructive notice that the

[G]overnment holds a reasonable claim to some

interest in the property.”). The December 2003

meeting minutes demonstrate that the County had

that notice here.

Finally, the County asserts that our decision in

Patterson v. Buffalo National River means the

limitations period is not triggered when a claim is

vague or disputed. Patterson involved competing

interpretations of language in the original deed. 76

F.3d at 224. In addition to a plot of land, the deed

conveyed to the United States an interest in “any

means of ingress or egress.” Id. at 223. The United

States interpreted the phrase to include a “primitive”

road accessing ungranted property, while the grantors

felt it applied only to paths to the granted property.

Id. at 223-24. Because the language was “too

ambiguous to place the [grantors] on notice of the

Government’s claims”—in large part because

Arkansas

law

supported

the

grantor’s

interpretation—the limitations period could not have

begun by the issuance of the deed itself. Id.

That situation stands in stark contrast to the

one here. BLM made its interpretation of the 1930’s

Condemnation

Judgments

known.

More

fundamentally, the County actually understood what

the United States meant: the United States was not

recognizing a royalty interest “on parcels which were

35a

originally patented with mineral reservations to the

federal government.” That the County did not know

which tracts had producing leases or which royalty

interests the United States claimed does not affect the

analysis. “Knowledge of the claim’s full contours is not

required,” Block II, 789 F.2d at 1313 (citation

omitted), nor is notice of the specific tracts or

royalties, Wrigley, 31 F.4th at 1041-42. All that was

needed was “a reasonable awareness that the

Government claims some [adverse] interest.” Block II,

789 F.2d at 1313 (citation omitted). The County had

that awareness here.

At the latest, the County knew the United

States did not recognize outstanding mineral royalties

in lands in which the mineral estate was reserved to

the United States in the original patent by December

2, 2003. It had a “generous” twelve years from that

date to figure out which specific tracts were disputed

and bring its claim. See Gambrell, 111 F.4th at 875.

The County’s failure to do so is fatal. The County’s

Quiet Title Act claim is untimely, and the district

court erred in holding otherwise. Accordingly, the

district court erred in entering judgment in favor of

the County, and its judgment must be reversed.

IV.

For these reasons, the judgment of the district

court is reversed, and we remand this case to the

district court with instructions to enter judgment in

favor of the United States consistent with this opinion.

36a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

McKenzie County, North )

Dakota,

Plaintiff,

vs.

United States of

America and the

Department of the

Interior,

)

)

)

)

)

)

)

)

)

)

)

ORDER

GRANTING

PLAINTIFF’S

MOTION FOR

SUMMARY

JUDGMENT

Case No. 1:16-cv001

Defendants.

Before the Court are cross motions for summary

judgment filed on May 24, 2023. See Doc. Nos. 71 and

72. The motions have been fully briefed. See Doc. Nos.

71-1, 73, 74, 75, 76, and 77. For the reasons set forth

below, the Plaintiff’s motion for summary judgment is

granted and the Defendant’s motion for summary

judgment is denied.

I.

BACKGROUND

This case began when McKenzie County, North

Dakota, filed a complaint against the United States on

January 11, 2016. See Doc. No. 1. In its complaint,

37a

McKenzie County sought to quiet title to the 6 ¼

percent royalty interest in he mineral estate granted

to it in six condemnation judgments entered by this

Court in the 1930's. McKenzie County filed an

amended complaint on April 2,2016. See Doc. No. 7.

On August 6, 2019, the Court denied the United

States’ motion to dismiss for lack of subject matter

jurisdiction. See Doc. No. 36. A second amended

complaint was filed on August 30, 2019, alleging

claims for enforcement of the Court’s judgments in

prior related litigation and, in the alternative, to quiet

title to the disputed mineral interests under the Quiet

Title Act, 28 U.S.C. § 2409a (“Quiet Title Act”). See

Doc. No. 37. On September 9, 2020, the Court denied

the United States’ motion to dismiss the second

amended complaint. See Doc. No. 49. Much of the

present controversy stems from legal proceedings

spanning more than seventy-five (75) years and

relating to mineral interests in land located in

McKenzie County. Now before the Court are cross

motions for summary judgment. See Doc. Nos. 71 and

72. To provide context for the current motions, a

discussion of the long legal history of the disputed

lands and minerals in McKenzie County is necessary.

A.

Early Condemnation Actions

From the late 1800's through the 1920's,

settlers acquired federal lands for agricultural

purposes under the Homestead Act of 1862, the StockRaising Homestead Act of 1916, the Mineral Lands

and Mining Act of 1914, or through purchasing land

granted to railroads by the United States in the

western United States, including McKenzie County in

western North Dakota. In some cases the patent

38a

granted the settler title to both the surface and

mineral estate while in others the United States

reserved the mineral interest.

In the 1930's, prolonged drought along with

economic depression caused many farms in McKenzie

County to fail and farmers were unable to pay their

property taxes. Consequently, McKenzie County

acquired title to significant acreage through

foreclosures. See McKenzie County Hodel, 467 N.W.2d

701, 702 (N.D. 1991). Through these tax foreclosures,

McKenzie County acquired title to the foreclosed land,

including the minerals if the farmer owned them prior

to foreclosure. McKenzie County formalized its

ownership of the foreclosed land by quit claim or

Sheriff's deed, whether it was both the surface and

mineral estates or the surface estate alone.

Due to the difficult economic conditions in the

United States in the 1930's, Congress directed the

United States Department of Agriculture (“USDA”) to

acquire failed farmland for conservation and other

public purposes, including grazing. The USDA

program in North Dakota was known as the Little

Missouri Land Adjustment Project. The acquisitions

were accomplished pursuant to a number of federal

programs including the National Industrial Recovery

Act of 1933, Emergency Relief Appropriations Act of

1935, Emergency Relief Appropriations Act of 1936,

and the Bankhead-Jones Farm Tenant Act of 1937.

Congress authorized the USDA to not only acquire

land, but also authorized it to grant, sell, lease, or

otherwise dispose of such property.

In furtherance of these Congressional

directives, the Secretary of Agriculture, with the

assistance of the Attorney General, negotiated the

39a

purchase of foreclosed lands from McKenzie County.

Pursuant to the agreement reached between

McKenzie County and the United States, McKenzie

County deeded all interests it owned in the foreclosed

lands to the United States in exchange for a small

cash payment, a 6 ¼ percent perpetual royalty

interest in the oil and gas production on all of the

foreclosed lands, and cooperation with condemnation

proceedings. The deeds from McKenzie County to the

United States did not recite any royalty reservation,

although the declarations of taking and final

judgments noted the 6 ¼ percent perpetual royalty

interest in favor of McKenzie County. See Doc. No. 475, pp. 6 and 59. In an effort to avoid a claim to a right

of redemption under state law by the party who

originally forfeited the property, and to ensure clear

title to the lands, the United States initiated “friendly”

condemnation actions in federal district court in

North Dakota which were unopposed by McKenzie

County. The six relevant condemnation actions are

identified as follows:

1. United States v. 10,683.00 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1000 (D.N.D. June 30,

1937);

2. United States v. 12,344.54 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1001 (D.N.D. Feb. 6, 1938);

3. United States v. 17,463.13 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1002 (D.N.D. Oct. 5, 1938);

4. United States v. 11,994.84 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1006 (D.N.D. Feb. 25,

40a

1938);

5. United States v. 9,914.53 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1007 (D.N.D. Oct. 11,

1939); and,

6. United States v. 11,626.49 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1028 (D.N.D. June 15,

1938).

See Doc. Nos. 47-2, 47-3, 47-4, 47-5, 47-6, and 47-7

(collectively referred to as the “Condemnation

Judgments” and often referenced by the “At Law”

number). Following an agreement by the parties, a

Declaration of Taking, which started the

condemnation process, was filed and eventually a final

judgment was entered in each condemnation action.

See Doc. Nos. 47-2, p. 5; 47-3, p. 6; 47-4,p. 6; 47-5, p. 6;

47-6, p. 9; and 47-7, p. 6.

The Declarations of Taking signed by the

Secretary of Agriculture, and caused to be filed in five

of the six condemnation cases, provided the United

States took the described lands in fee simple and

“subject, however, to the rights of McKenzie County,

State of North Dakota, to a 6 ¼% perpetual royalty in

minerals which exist or may be developed on said

lands...” See Doc. Nos. 47-2, p. 5, 47-3, p. 6, 47-4, p. 6,

47-5, p. 6, and 47-7, p. 6. In At Law 1000 the

Declaration of Taking similarly provided the United

States’ interest was taken “subject, however, to the

rights of McKenzie County, State of North Dakota, to

a 6 ¼% perpetual royalty in minerals which may exist

or may be developed on all of said tracts...” and a

second reference therein stated the United States’

interest was “subject to a 6 ¼ percent royalty

41a

reservation in favor of McKenzie County...” See Doc.

No. 47-6, pp. 6 and 9.

The final judgments and partial final

judgments entered in each case stated, with some

slight variations, as follows:

That the United States of America

is the owner in fee simple of the lands

hereinbefore described, subject, however,

to the rights of McKenzie County, North

Dakota, to a 6 ¼% perpetual royalty in

minerals which exist or may be

developed on said lands.

See Doc. Nos. 47-2, pp. 49, 59, and 89; 47-3, pp. 50 and

72; 47-4, pp. 46, 55, and 83; 47-5, p. 59; 47-6, p. 60; and

47-7, pp. 69 and 84. The Court retained jurisdiction in

each case in order to enter such further orders or

decrees as may be necessary. See Doc. Nos. 47-2, pp.

50, 59, and 90; 47-3, pp. 51 and 73; 47-4, pp. 47, 55,

and 84; 47-5, p. 60; 47-6, p. 61; and 47-7, pp. 70 and

85.

The United States Department of Interior

(“DOI”), through the Bureau of Land Management

(“BLM”), is tasked with the responsibility to monitor

and manage the royalty payments owed to landowners

and monitored McKenzie County’s 6¼ percent

perpetual royalty interest following the entry of the

Condemnation Judgments. See Doc. No. 20 at ¶ 4.

Upon entry of the Condemnation Judgments, BLM

annotated its records to recognize the 6¼ percent

royalty interest in favor of McKenzie County for those

lands where the previous owner held both the surface

and mineral estates and were foreclosed by McKenzie

County prior to the condemnation proceedings. See

Doc. No. 20 at ¶ 4. These minerals, received from

42a

McKenzie County through tax foreclosure, are

referred to by the BLM as “acquired minerals.”

Unbeknownst to McKenzie County, the BLM did not

annotate its records to reflect the 6 ¼ percent royalty

interest in favor of McKenzie County for those lands

in which the United States had reserved the mineral

interest in the original patent. Id. At ¶ 6. These

mineral interests are referred to by the BLM as

“public domain minerals.” Id. at ¶ 7. The lands subject

to the Condemnation Judgments included both lands

with “acquired minerals” and lands with “public

domain minerals.” The Condemnation Judgments do

not use the terms “acquired minerals” or “public

domain minerals” or make any distinction between

the two terms, and only an investigation of title could

reveal the distinction. In other words, the terms

“acquired minerals” or “public domain minerals” are

not used anywhere in the final judgments from the

1930's. These terms are also not used or even referred

to in the Declarations of Taking. The 6¼ royalty

interest conveyed to McKenzie County is located in

the universal paragraph found in each judgment, and

applied to all tracts of land listed in each judgment

unless the tract was expressly excluded.

After entry of the Condemnation Judgments,

McKenzie County received payments from operators

as a result of the 6 ¼ percent royalty interest

annotation in BLM’s records, at least as to the socalled “acquired minerals.” These payments stopped

in 1985 when the BLM directed operators to pay the 6

¼ percent royalty interest to the United States. The

BLM’s unilateral decision to stop payments to

McKenzie County was based solely on their

interpretation of the North Dakota Supreme Court’s

43a

1962 decision in DeShaw v. McKenzie County, 114

N.W.2d 263 (N.D. 1962) (holding North Dakota law

did not permit a county to convey anything less than

all of its interest in a tax title, thus effectively

foreclosing any right of redemption). This BLM

decision to stop the royalty payments to McKenzie

County occurred more than 20-years after the holding

in DeShaw.

B.

DeShaw v. McKenzie County

In 1962, in DeShaw v. McKenzie County, the

North Dakota Supreme Court concluded McKenzie

County was precluded under North Dakota law from

retaining a mineral interest and conveying less than

all of its rights, title, and interest to property acquired

through tax foreclosure. 114 N.W.2d 263, 265 (N.D.

1962). On June 7, 1985, and as a consequence of the

North Dakota Supreme Court’s DeShaw decision in

1962, the BLM notified McKenzie County that as of

July 1, 1985, “royalty payments formerly made to the

counties [Billings, Golden Valley, and McKenzie]

based on the invalid 6 ¼ percent royalty reservation

are payable to the United States.” See Doc. No. 20-4,

p 1. The effect of the letter was to invalidate McKenzie

County’s 6 ¼ percent royalty interest created by the

Condemnation Judgments from the 1930's.

McKenzie County appealed the BLM’s June 7,

1985, letter decision to the Interior Board of Land

Appeals (“IBLA”). On October 20, 1987, the IBLA

issued an opinion affirming the BLM’s invalidation of

the 6 ¼ percent royalty interest in light of DeShaw.

See Doc. No. 20-5. In its opinion, the IBLA stated

McKenzie County, along with Billings County and an

oil company, were appealing BLM’s decision

44a

“declaring invalid royalty reservations . . . in lands

acquired by those counties through tax proceedings

and subsequently acquired by the United States as

the result of condemnation proceedings.” See Doc. No.

20-5, p. 2. On December 16, 1987, McKenzie County

filed suit in federal court against Donald Hodel, thenSecretary of the Interior, and others, seeking to quiet

title to its 6 ¼ percent royalty interest created by the

condemnation judgments. See McKenzie County v.

Hodel, No. A4-87-211 (D.N.D. Dec. 17,1987)

(“McKenzie II”).

C.

McKenzie County II

In the 1987 federal suit (McKenzie II),

McKenzie County alleged DeShaw was inapplicable to

the 6 ¼ percent royalty interest in the Condemnation

Judgements. They requested the Court declare the 6

¼ percent royalty interest belonged to McKenzie

County, quiet title in favor of McKenzie County to the

6 ¼ percent royalty interest, and order the defendants

to reimburse and pay to McKenzie County the monies

due pursuant to the valid 6 ¼ percent royalty interest.

See Doc. No. 20-6, p. 22. Upon McKenzie County’s

motion, the Court (Judge Patrick A. Conmy) certified

two questions to the North Dakota Supreme Court:

The question of law can have a different

appearance from the ‘spin’ put on its

presentation.

Does

a

condemnation

judgment,

pursuant to a stipulation between the

parties, recognizing an otherwise invalid

reservation of a mineral interest, operate

as a conveyance, so as to give validity to

45a

the conveyance as between the parties to

the stipulation?

Does a condemnation judgment, brought

for the purpose of quieting title in the

Federal Government to lands acquired

from the County, insulating the federal

government from any claims of former

owners who lost the land to the County

through tax title proceedings, which

recognizes an invalid mineral interest

reservation, operate as a conveyance

back to the county of the mineral interest

covered so as to make no longer

applicable North Dakota statutory

provisions declaring the reservation

invalid?

McKenzie County v. Hodel, 467 N.W.2d 701, 703 (N.D.

1991) (“McKenzie I”). The North Dakota Supreme

Court noted the questions posed by the federal district

court could be taken as asking the North Dakota

Supreme Court to “construe a federal court judgment

and determine its legal effect.” Id. Leaving the

construction of the Condemnation Judgments to the

federal district court, the North Dakota Supreme

Court narrowed the questions presented for its

consideration to:

I.

Under North Dakota law, may

title to real property be transferred

through a judgment without compliance

with the conveyancing statutes?

II.

Do Chapter 288, 1931 N.D. Sess.

Laws, and DeShaw v. McKenzie County,

114 N.W.2d 263 (N.D. 1962), prohibit the

County from acquiring title to a mineral

46a

interest through operation of a

condemnation judgment under the facts

presented?

Id. at 704.

In answering the first question, the North

Dakota Supreme Court held “North Dakota

conveyancing statutes do not affect the validity or

enforceability” of federal condemnation judgments

because under Rule 70 of the North Dakota Rules of

Civil Procedure, as well as its federal counterpart, a

judgment may divest the title of a party and vest it in

another, having the effect of conveying real property.

Id. at 705; see also N.D. R. Civ. P. 70. The North

Dakota Supreme Court recognized that a federal

condemnation judgment creates a new title,

extinguishes all previous rights, and has the effect of

a conveyance despite the use of language of

reservation. Id. Therefore, “North Dakota law does not

impede the transfer of title to real property by

operation of a judgment.” Id.

The North Dakota Supreme Court then turned

to the question of whether Chapter 288, 1931 N.D.

Session Laws, and its decision in DeShaw prohibit the

County from “acquiring title to the disputed mineral

rights through operation of the condemnation

judgment.” Id. The North Dakota Supreme Court

concluded nothing in DeShaw or Chapter 288 “limits

the County’s authority to reacquire title to property

formerly held by tax title,” and more specifically

“Chapter 288, and its interpretation in Deshaw do not

prohibit the County from acquiring title to mineral

interests through operation of a condemnation

judgment.” Id. at 707.

47a

After the North Dakota Supreme Court issued

its order addressing the certified questions, McKenzie

County filed a motion for summary judgment in the

federal district court case, requesting the Court enter

judgment in its favor by confirming McKenzie

County’s ownership of the disputed 6 ¼ percent

royalty interest and setting aside the decisions of the

BLM and the Interior Board of Land Appeals. See Doc.

No. 24-9, pp. 2-3. The Court granted the motion and

held that “the recognition of a mineral reservation in

the County in the federal condemnation judgments

operates as a conveyance of that mineral interest to

the County.” See Doc. No. 20-7 at 2. Judgment

quieting title in the disputed minerals in favor of

McKenzie County was entered on June 24, 1991

(“1991 Judgment”). See Doc. No. 20-8. In the 1991

Judgment, the Court concluded “a mineral reservation

in favor of McKenzie County in the federal

condemnation judgments operates as a conveyance of

that mineral interest to McKenzie County” and

ordered “title to the disputed minerals (6 ¼% royalty)

is quieted in McKenzie County; and, the Defendants

are barred from any claim in regard to the same or

proceeds from the same; that McKenzie County is the

owner of the disputed minerals (6 ¼% royalty) free

and clear of any claim of the above named

defendants.” See Doc. No. 20-8 at 3. The United States

did not appeal the 1991 Judgment.

D.

Events After McKenzie County II

After the 1991 Judgment was entered quieting

title to the 6 ¼ percent royalty interest in favor of

McKenzie County, the BLM “resumed annotating its

records to recognize the 6 ¼ percent royalty interest

48a

to McKenzie County for those lands described in its

1987 complaint, which were the lands described in the

Condemnation Judgments that contained acquired

minerals.” See Doc. No. 20, ¶ 11. McKenzie County

understood the 1991 Judgment to apply to all tracts

listed in the Condemnation Judgments. See Doc. No.

24-2, ¶ 4. However, and unbeknownst to McKenzie

County, the BLM did not annotate its records to apply

the 1991 Judgment to the tracts referenced in the

Condemnation Judgments which BLM determined

pertained to “public domain minerals.” See Doc. No.

20, ¶ 13, 24-2, ¶¶ 4-5. Again, this was a term never

used in the Condemnation Judgments. While the BLM

directed well operators to resume payment of a 6 ¼

percent royalty interest to McKenzie County on the

“acquired mineral” tracts, the record reveals as late as

1993, the BLM was still identifying “additional oil and

gas leases subject to the 6 ¼ percent royalty rate

reservation” because “lands were not identified on

[BLM’s] records during [its] initial review.” See Doc.

Nos. 24-11 and 24-12.

After the 1991 Judgment was entered,

McKenzie County, along with other companion

counties, made efforts to ascertain what lands within

the counties were burdened by the 6 ¼ percent royalty

interest. By 1998, McKenzie County had undertaken

a “Natural Resource Inventory” project to review

legal records and condemnation judgments, with

State’s Attorney Dennis Johnson traveling to Kansas

City, Missouri, to retrieve legal records of the 1930's

condemnation actions. See Doc. No. 24-2, pp. 5, 36. On

November 17, 2003, Karen Johnson, Chief of the

Fluids Adjudication Section in the BLM Billings Field

Office, sent a fax to McKenzie County States’s

49a

Attorney Dennis Johnson and Keith Winter that

stated, in part: “Our records show only the acquired

minerals in the Judgments/Partial Judgments of

Declarations of Taking At Law Nos. 1000, 1001, 1002,

1006, 1007, 1028, 1036 and 1042 are subject to a 6 ¼%

royalty reservations.” See Doc. No. 24-4, p. 13. As

previously noted, the term “acquired minerals” is a

term created solely by the BLM but never used in any

of the Condemnation Judgments or the Declarations

of Taking.

On December 19, 2003, McKenzie County

Commissioner Roger Chinn and Billings County

Commissioner Jim Arthaud met with Elaine

Kaufman, Karen Johnson, and Joan Seibert from the

BLM Fluids Adjudication Section in Billings,

Montana, to compare the tracts of lands the records

obtained by the Counties of the commendation

judgments subject to a 6 ¼ percent royalty interest

and the BLM records. See Doc. No. 24-2, p. 10. Chinn

and Arthaud provided the BLM with copies of the

Condemnation Judgments and documents from the

condemnation proceeding, as well as a list of the legal

descriptions of the tracts of land in McKenzie, Golden

Valley, and Billings Counties that were tied to a

specific paragraph in the condemnation judgments

recognizing the 6¼ percent royalty interest grant to

the Counties. Id. After the meeting, Karen Johnson

sent an email to individuals within the BLM

indicating the Counties provided the BLM with “a list

of legal descriptions which provides reference to the

At Law #s and the Tract #s” and “[BLM] will review

the information they provided to ensure our records

accurately reflect the 6 ¼% outstanding royalty

50a

reservation in Slope, Golden Valley, McKenzie, and

Billings Counties.” See Doc. No. 24-2, p. 84.

On January 30, 2004, McKenzie County

Commissioner Roger Chinn received a letter from

Karen Johnson from the BLM dated January 27, 2004,

informing the Counties of the result of the BLM’s

review of lands subject to a 6 ¼ percent royalty

interest in favor of the Counties. See Doc. No. 24-2, pp.

92-93. In the letter, the BLM indicated McKenzie

County claimed 74,032.81 acres are subject to a 6 ¼

percent royalty reservation, but the BLM’s records

show only 58,368.94 acres are subject to the

reservation; Golden Valley County claimed 5,925.27

acres are subject to a 6 ¼ percent royalty reservation,

but the BLM’s records show only 3,845.27 acres are

subject to the reservation; and Billings County

claimed 14,921.63 acres are subject to a 6 ¼ percent

reservation, but the BLM’s records show only

13,990.94 acres are subject to the reservation. The

BLM explained the discrepancy between the Counties’

records and the BLM’s records: “the acreage

differences between our records and yours are

primarily because your records included lands with

Public Domain minerals. Only lands acquired by the

United States in the condemnations are subject to a 6

¼ percent royalty reservation.” See Doc. No. 24-2, p.

92. The letter also included attachments enumerating

lands in McKenzie, Golden Valley, and Billings

County in which the BLM does not recognize a 6 ¼

percent mineral interest in favor of the Counties

because those minerals are either “public domain

minerals” or were specifically excluded from the

reservation in the original condemnation judgments.

Id.

51a

After McKenzie County received the BLM’s

January 27, 2004, letter, McKenzie and Billings

Counties exchanged several more letters with the

BLM to clarify the status of certain lands. On June 18,

2004, the BLM sent another letter to Chinn and

Arthaud stating the BLM would direct the Counties’

request for recognition of the 6 ¼ percent royalty

interest in all lands acquired through condemnation

judgments to BLM’s Rock Mountain Field Solicitor

“for an opinion regarding [their] claim to a 6 ¼

percent royalty in lands with public domain

minerals acquired through condemnation.” See Doc.

No. 24-2, p. 116. On December 16, 2004, BLM sent a

letter to Chinn and Arthaud stating the BLM’s Rocky

Mountain Region Field Solicitor reviewed the

Counties’ claim to a 6 ¼ percent royalty interest in all

lands in the condemnation judgments, and

determined, in an opinion dated September 7, 2004,

that “the Bureau of Land Management’s decision to

issue public domain mineral leases without a royalty

reservation to the counties is defensible.” See Doc.

Nos. 24-2, p. 118 and 24-2, pp.119-22.

On March 7, 2005, counsel for McKenzie

County sent a letter to the United States Department

of the Interior, Office of the Solicitor requesting the

office review the opinion of the Rocky Mountain

Region Field Solicitor and direct the BLM to recognize

a 6 ¼ percent royalty interest in favor of the Counties

for all lands acquired by the United States in the

condemnation judgments. See Doc. No. 24-4, pp. 15,

20. It does not appear the Department of the Interior

ever responded to McKenzie County’s letter.

McKenzie County then initiated this action on

January 11, 2016, filed an amended complaint on

52a

April 12, 2016, and a second amended complaint on

August 30, 2019. See Doc. Nos. 1, 7, and 37. The

second amended complaint contains two claims. The

first is for enforcement of the Court’s prior judgments

through a writ of mandamus. The second claim, pled

in the alternative, is to quiet title to the 6 ¼ percent

royalty interest in favor of McKenzie County for the

“public domain minerals” related to the condemnation

judgments. Both parties have moved for summary

judgment. See Doc. Nos. 71 and 72.

II.

STANDARD OF REVIEW

Summary judgment is appropriate when the

evidence, viewed in a light most favorable to the nonmoving party, indicates that no genuine issues of

material fact exist and that the moving party is

entitled to judgment as a matter of law. Davison v.

City of Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007);

see Fed. R. Civ. P. 56(a). Summary judgment is not

appropriate if there are factual disputes that may

affect the outcome of the case under the applicable

substantive law. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). An issue of material fact is

genuine if the evidence would allow a reasonable jury

to return a verdict for the non-moving party. Id. The

purpose of summary judgment is to assess the

evidence and determine if a trial is genuinely

necessary. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

The Court must inquire whether the evidence

presents a sufficient disagreement to require the

submission of the case to a jury or whether the

evidence is so one-sided that one party must prevail

as a matter of law. Diesel Mach., Inc. v. B.R. Lee

53a

Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The

moving party bears the responsibility of informing the

court of the basis for the motion and identifying the

portions of the record which demonstrate the absence

of a genuine issue of material fact. Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The

non-moving party may not rely merely on allegations

or denials in its own pleading; rather, its response

must set out specific facts showing a genuine issue for

trial. Id.; Fed. R. Civ. P. 56(c)(1). If the record taken

as a whole and viewed in a light most favorable to the

non-moving party could not lead a rational trier of fact

to find for the non-moving party, there is no genuine

issue for trial and summary judgment is appropriate.

Matsushita, 475 U.S. at 587.

III.

LEGAL DISCUSSION

Both parties have moved for summary

judgment. There is no dispute McKenzie County holds

a 6 ¼ percent royalty interest as to the “acquired

minerals” and this interest was created by the

Condemnation Judgments. The dispute is over

approximately 10,000+ acres of “public domain

minerals,” which is a term of art created by the BLM

and found nowhere in the Condemnation Judgments

from the 1930's, the Declarations of Taking, or the

1991 Judgment. The Court has carefully reviewed the

parties’ briefs and exhibits and the entire record,

which is extensive. The Court finds, based upon the

plain language of the judgments in question, that the

position of McKenzie County that the Condemnation

Judgments created a 6 ¼ percent royalty interest in

favor of McKenzie County in all the listed tracts of

land to be more persuasive than the position of the

54a

United States. The United States’ position that the 6

¼ percent royalty interest does not apply to“public

domain minerals” is devoid of merit.

A.

STATUTE OF LIMITATIONS

The United States contends both of McKenzie

County’s claims for relief are barred by the Quiet Title

Act’s 12-year statute of limitations. See 28 U.S.C. §

2409a(g). The statute provides “Any civil action under

this section, except for an action brought by a State,

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.” 28

U.S.C.A. § 2409a(g). The Quiet Title Act’s 12-year

time limit for bringing a claim against the United

States is a nonjurisdictional claims-processing rule.

Wilkins v. United States, 598 U.S. 152, 155 (2023). As

a nonjurisdictional claims-processing rule, the

limitation period in the Quiet Title Act is subject to

equitable tolling, fraudulent concealment, waiver, and

estoppel arguments. Id. at 164.

This action was commenced on January 11,

2016, when McKenzie County filed its complaint

against the United States. As set forth in the second

amended complaint, McKenzie County’s first claim for

relief is for a writ of mandamus under the All Writs

Act, 28 U.S.C. § 1651(a) and Rule 70 of the Federal

Rules of Civil Procedure. McKenzie County seeks an

order compelling the United States to comply the

Court’s Condemnation Judgments from the 1930's

and the 1991 Judgment. McKenzie County’s second

claim, which is made in the alternative, is brought

55a

pursuant to the Quiet Title Act and seeks to quiet title

to the “public domain minerals.”

The United States contends the first claim is

barred because it seeks to quiet title. McKenzie

County maintains the first claim does not seek to quiet

title because title was quieted in 1991 in federal court

and all that is sought is enforcement of the Court’s

prior judgments. The Court agrees with McKenzie

County. The Court is unpersuaded that it lacks

authority to enforce its own judgments which, as

explained below, are clear and unambiguous.

The All Writs Act provides that federal courts

“may issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the

usages and principles of law.” 28 U.S.C. § 1651(a).

Standing alone, it is not an independent source of

subject matter jurisdiction. Ark. Blue Cross & Blue

Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d

812, 820-21 (8th Cir. 2009). However, it does “give[]

federal courts power to effectuate and prevent the

frustration of orders it has previously issued in its

exercise of jurisdiction otherwise obtained.” Nichols v.

Harbor Venture, Inc., 284 F.3d 857, 862 (8th Cir.

2002). The All Writs Act gives federal courts the power

to issue writs of mandamus “to enforce our prior

mandate

to

prevent

evasion”

and

such

mandate“encompasses everything decided, either

expressly or by necessary implication.” In re

MidAmerican Energy Co., 286 F.3d 483, 486-87 (8th

Cir. 2002).

Rule 70(a) of the Federal Rules of Civil

Procedure provides that “[i]f a judgment requires a

party to convey land, to deliver a deed or other

document, or to perform any other specific act and the

56a

party fails to comply within the time specified,” then

a court can “order the act to be done.” Fed. R. Civ. P.

70(a). “Rule 70 gives the district court a discrete and

limited power to deal with parties who thwart final

judgments by refusing to comply with orders to

perform specific acts.” Analytical Eng’g, Inc. v.

Baldwin Filters, Inc., 425 F.3d 443, 449 (7th Cir.

2005).

When the Court issued the Condemnation

Judgments in the 1930's it retained jurisdiction “for

the purpose of entering such further orders or decrees

as may be necessary.” See Doc. No. 47-5, p. 60. It is

undisputed the Court had jurisdiction over the

condemnation cases and in McKenzie II. What

McKenzie County seeks in its first claim for relief is

an order of the Court directing the United States to

comply with the Court’s prior orders and the judgment

from 1991. The first claim for relief does not seek to

quiet title. It is clear that title had already been

quieted in McKenzie II. It is enforcement that is

sought in the first claim for relief. Based on the

judgments themselves, the All Writs Act, and Rule 70

of the Federal Rules of Civil Procedure, the Court

finds the Quiet Title Act’s 12-year limitations period

does not apply to McKenzie County’s first claim for

relief. The Court further finds it has the authority to

enforce its prior judgments and prevent the BLM from

evading the clear intent expressed therein.

As for the second claim for relief, because the

claim was pled in the alternative and the Court has

ruled in McKenzie County’s favor on the first claim for

relief, the Court does not need to reach the merits of

the claim. That being so, the Court finds McKenzie

County’s position on the issue of timeliness is far more

57a

persuasive than that of the United States. The United

states points to and relies upon a November 17, 2003,

fax from the BLM with a vague and undefined

reference to “acquired minerals” and no mention of

“public domain” minerals as triggering the limitations

period. See Doc. No. 24-4 pp. 11-13. It is clear and

undisputed the Court did not use the terms “acquired

minerals” and “public domain minerals” in the

Condemnation Judgments from the 1930's or the 1991

Judgment. See Doc. No. 76, p. 1. Any after the fact

assertion by the BLM, which was the losing party in

McKenzie II, that these self-created terms represent

the unexpressed intent of the Court is baseless.

In his declaration, former McKenzie County

State’s Attorney Dennis Johnson makes it clear that

he and McKenzie County did not know and could not

have known that the BLM was refusing to recognize

McKenzie County’s 6 ¼ percent royalty interest after

McKenzie II was decided. The BLM was difficult to

communicate with, unwilling to fully share

information, and the royalty checks the county

received did not describe the tracts of land involved.

See Doc. No. 24-3, ¶¶ 13-14. The BLM never notified

McKenzie County of its decision to refuse to pay

royalties on what it considered “public domain

minerals.” See Doc. No. 24-3, ¶ 14. The only way

McKenzie County could have determined the BLM

was withholding royalty payments would have been to

audit oil and gas well records kept by the North

Dakota Industrial Commission and royalty receipts

received by McKenzie County and compare them to

the tracts of land listed in the Condemnation

Judgments from the 1930's. See Doc. No. 24-3, ¶ 22.

The November 17, 2003, fax, relied upon by the United

58a

States as a trigger event for the statute of limitations,

is vague at best; fails to define “acquired minerals;”

fails to define or make any mention of “public domain

minerals;” and the Court did not use those terms in

the Condemnation Judgments or the 1991 Judgment.

As a result, it cannot be said that the fax from the

BLM in 2003 reasonably put McKenzie County on

notice as to the BLM’s interpretation of the Court’s

judgments. The 12-year statute of limitations is not

triggered if the Government’s claim is ambiguous or

vague. Patterson v. Buffalo National River, 76 F.3d

221, 224 (8th Cir. 1996).

B.

AMBIGUITY

The United States contends the Condemnation

Judgments from the 1930's are ambiguous and the

1991 Judgment did not resolve the dispute. McKenzie

County contends, and the Court agrees, that the

Condemnation Judgments and the 1991 Judgment

are clear and unambiguous and the issue was fully

resolved in McKenzie II. If a judgment is clear and

unambiguous, then “it shall be construed according to

its plain meaning.” Minch Family LLLP v. BuffaloRed River Watershed Dist., 628 F.3d 960, 967 (8th Cir.

2010).

The condemnation judgments stated as

follows:

That the United States of America is the

owner in fee simple of the lands

hereinbefore described, subject, however,

to the rights of McKenzie County, North

Dakota, to a 6¼ percent perpetual

59a

royalty in minerals which exist or may be

developed on said lands.

See Doc. Nos. 47-2, pp. 49, 59, and 89; 47-3, pp. 50 and

72; 47-4, pp. 46, 55, and 83; 47-5, p. 59; 47-6, p. 60; and

47-7, pp. 69 and 84.

The plain language of the Condemnation

Judgments clearly conveyed to McKenzie County a 6

¼ percent royalty interest in the minerals associated

with each tract of land described therein. None of the

Condemnation Judgments made any distinction

between or even made any reference to “acquired

minerals” or “public domain minerals,” nor did the

judgments make any direct or indirect reference to

those terms. As the Supreme Court has explained, “a

good rule of thumb for reading [a Court’s] decision is

that what they say and what they mean are one and

the same.” Mathis v. United States, 579 U.S. 500, 514

(2016). The Court sees no ambiguity in the language

of the Condemnation Judgments.

In McKenzie II, this Court reaffirmed the plain

meaning of the Condemnation Judgments and clearly

recognized McKenzie County’s 6 ¼ percent royalty

interest. The Court held “that the recognition of a

mineral reservation in the County in the federal

condemnation judgments operates as a conveyance of

that mineral interest in the County.” See Doc. No. 207 (emphasis added). The condemnation

actions

extinguished all title McKenzie County held and

the Condemnation Judgments conveyed new title (6

¼ percent royalty interest) to McKenzie County. See

Doc. No. 20- 8, p. 3. The Court further directed that

“judgment be entered quieting title in the County to

the disputed minerals.” See Doc. No. 20-7. The 1991

Judgment stated as follows:

60a

The

Federal

Government’s

condemnation actions against McKenzie

County in the late 1930’s extinguished

all title McKenzie County had in the

land, including any royalty interests.

New title then vested in the Federal

Government

and

through

the

condemnation judgments McKenzie

County received the 6¼% royalty

interest. The recognition of a mineral

reservation in favor of McKenzie County

in the federal condemnation judgments

operates as a conveyance of that mineral

interest to McKenzie County.

It is ORDERED AND ADJUDGED that

title to the disputed minerals (6¼%

royalty) is quieted in McKenzie County;

and the Defendants are barred from any

claim in regard to the same or proceeds

from the same; that McKenzie County is

the owner of the disputed minerals (6¼%

royalty) free and clear of any claim of the

above named defendants.

See Doc. No. 20-8, p. 3. Under the plain and

unambiguous terms of the 1991 Judgment, this Court

held that the mineral reservation in the

Condemnation Judgments operates as a conveyance of

a 6 ¼ percent royalty interest to McKenzie County,

and quieted title to it in favor of McKenzie County.

Not unsurprisingly since the terms were not used by

either party in the case, the 1991 Judgment did not

make any distinction between nor make any reference

to “acquired minerals” or “public domain minerals.”

The Court defined the “disputed minerals” as the “6

61a

¼% royalty” conveyed by the Condemnation

Judgments. See Doc. No. 20-8, p. 3. More important,

the United States never appealed the 1991 Judgment.

The United States contends this cannot be so

because the use of the word “reservation” in two of the

Judgments On Declaration of Taking renders them a

reconveyance that could only apply to lands with

“acquired minerals.” The United States also contends

it did not gratuitously create a royalty interest in

McKenzie County’s favor for the lands which it

describes as holding “public domain minerals.” These

contentions are unpersuasive for several reasons.

First, the United States fails to acknowledge

the plain language of the Condemnation Judgments.

The plain language is crystal clear when it states the

United States is the owner of the condemned lands in

fee simple “subject, however, to the rights of McKenzie

County, North Dakota to a 6 ¼ percent perpetual

royalty in minerals which exist or may be developed

on said lands.” See Doc No. 47-6, p. 60. The

Condemnation Judgments neither make any mention

of, nor make any distinction between, “acquired

minerals” and “public domain minerals.” These terms

of art are not used in the Declarations of Taking or the

Condemnation Judgments. Nor are these terms used

in the 1991 Judgment. These terms are a fiction,

created by the BLM after the fact, to justify its

unwillingness to recognize the plain language of the

Condemnation Judgments. The United States cannot

create ambiguity by ignoring the plain language of a

judgment that it failed to appeal. It should be noted

that in its reply brief (Doc. No. 76, p. 1, n. 1) the United

States acknowledged that the terms “acquired

minerals” or “public domain minerals” are not used

62a

anywhere in the Condemnation Judgments or the

Declarations of Taking.

Second, the royalty was not gratuitous. The

royalty was the result of the bargain struck between

McKenzie County and the United States. The record

reveals negotiations involved one price with a royalty

in favor of McKenzie County and another higher price

with no royalty. See Doc. No. 73-10. Ultimately, the

United States received all of the land and the minerals

and McKenzie County’s cooperation in the “friendly”

condemnation proceedings. In return, McKenzie

County received a 6 ¼ percent perpetual royalty in all

the land and a cash payment. See Doc. No. 47-5, p. 50.

This arrangement also had the effect of simplifying a

complex proceeding involving approximately 75,000

acres of land in McKenzie County. If the United States

and McKenzie County had intended to limit the 6 ¼

percent royalty interest to only the “acquired

minerals” they surely would have mentioned that in

the takings and made sure such language was

included in the Condemnation Judgments. They did

not. Given the amount of oil found underneath some

of the condemned lands, it is understandable that the

United States regrets the bargain it struck. McKenzie

County may have regrets as well. But a “deal is a deal”

and there was certainly nothing gratuitous about the

arrangement which was in keeping with “accepted

policy at that time” to “allow counties such royalty

reservations on lands optioned.” See Doc. No. 73-8, p.

1.

Third, the United States’ contention that the

use of the word “royalty reservation” in the

condemnation cases “could only have referred to lands

with acquired minerals” is unpersuasive. See Doc. No.

63a

76, p. 3. If such was the intent, there are certainly

clear and concise ways to express it. The only

reference to a “royalty reservation” in the

condemnation cases is in the Judgment On The

Takings in At Law 1000 and At Law 1006, and the

Declaration of Taking in At Law 1000. See Doc. Nos.

47-2, p. 26 and 47-6, pp. 9 and 30. The records as to

the judgments in At Law 1028, 1002, 1007, and 1001

make no reference whatsoever to a “royalty

reservation.” The final judgments in each of the

condemnation cases, including At Law 1000 and At

Law 1006, make no reference to a “royalty

reservation” but simply refer to the right of McKenzie

County to a “6 ¼% perpetual royalty.” The final

judgments are the operative documents in regards to

McKenzie County’s royalty interest, not the

Judgments on Declarations of Taking, which the

United States relies upon. In addition, the “royalty

reservation” language is only found in two of the six

Judgments on Declarations of Taking. A careful

review of the entire record leaves no doubt as to the

meaning of the language used in the Condemnation

Judgments. The Condemnation Judgments created

new title and conveyed to McKenzie County a 6 ¼

percent perpetual royalty interest in all of the

condemned lands.

In addition, the United States’ argument

regarding the use of the words “royalty reservation” is

foreclosed by the Court’s decision to the contrary in

McKenzie II. In McKenzie II, the Court specifically

held the Condemnation Judgments vested new title in

the federal government and McKenzie County

received a 6 ¼ percent royalty interest in the

condemned lands. See Doc. No. 20- 8, p. 3. The Court

64a

did not limit or qualify this holding in McKenzie II in

any manner nor make any reference to “acquired

minerals” or “public domain minerals.”

C.

CLAIM TWO – QUIET TITLE

McKenzie County’s second claim, which is

made in the alternative, asks the Court to quiet title

in the disputed minerals. Having already quieted title

in favor of McKenzie County in 1991, the Court need

not address the issue again. Were the Court to address

the issue again, it would reach the same conclusion it

reached in 1991, namely that the 6 ¼ percent royalty

interest belongs to McKenzie County and pertains to

all tracts of land listed in the Condemnation

Judgments.

IV.

CONCLUSION

The Court has carefully reviewed the entire

voluminous record, the parties’ briefs, and the

relevant case law, and finds the Plaintiff’s contentions

persuasive. For the reasons set forth above, the

Plaintiff’s motion for summary judgment (Doc. No. 72)

is GRANTED and the Defendant’s motion for

summary judgment (Doc. No. 71) is DENIED. In

addition, the Court DECLARES and ORDERS as

follows:

1. McKenzie County’s request for a Writ

of Mandamus is granted in full.

2. McKenzie County’s 6 ¼ percent

royalty interest created by the

Condemnation Judgments applies to

both the “acquired minerals” and

65a

“public domain minerals” as those

terms have been defined by the

Bureau of Land Management.

3. The United States is directed to

comply with the plain language of the

Condemnation Judgments which

clearly and unambiguously conveyed

to McKenzie County a 6 ¼ percent

royalty interest in all tracts of land

listed therein, save for those tracts

specifically exempted.

4. The United States is directed to

comply with the plain language of the

Court’s 1991 Judgment which quieted

title in favor of McKenzie County in

the disputed 6 ¼ percent royalty

interest created by the Condemnation

Judgments.

IT IS SO ORDERED.

Dated this 29th day of November, 2023.

/s/ Daniel L. Hovland

Daniel L. Hovland, District

Judge

United States District

Court

66a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

McKenzie County, North )

Dakota,

) ORDER DENYING

) UNITED STATES’

) MOTION TO

Plaintiff,

) DISMISS AND

) GRANTING

vs.

) PLAINTIFF’S

) MOTION TO

AMEND THE

United States of

)

COMPLAINT

America,

Defendants.

)

)

) Case No. 1:16-cv-001

67a

Before the Court is the “United States’ Motion

to Dismiss” filed on December 20, 2016. See Doc. No.

18. Plaintiff McKenzie County, North Dakota

(“McKenzie County” or “County”), filed a response in

opposition to the motion on January 31, 2017. See Doc.

No. 24. The United States then filed a reply brief on

February 27, 2017. See Doc. No. 29. McKenzie County

filed a surreply on March 17, 2017, and the United

States filed a response to the surreply on March 31,

2017. See Doc. Nos. 32 and 33. For the reasons set

forth below, the Defendant United States’ motion to

dismiss for lack of jurisdiction is denied.

I.

PROCEDURAL & FACTUAL

BACKGROUND

McKenzie County, North Dakota, filed a

complaint against the United States on January 11,

2016. See Doc. No. 1. In its complaint, McKenzie

County seeks to quiet title to the 6 ¼ percent royalty

interest in the mineral estate granted to the County

in condemnation judgments entered by this Court in

the 1930’s and 1940’s. McKenzie County filed an

amended complaint on April 12, 2016. See Doc. No. 7.

On December 20, 2016, the United States filed this

motion to dismiss the action pursuant to Federal Rule

of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction because McKenzie County’s complaint is

untimely pursuant to the Quiet Title Act, 28 U.S.C. §

2409a (“Quiet Title Act”). The United States contends

McKenzie County’s complaint is untimely because the

County knew or should have known of the United

States’ claim to the 6 ¼ percent royalty interest in the

mineral estate of “public domain” lands described in

68a

the condemnation judgment more than twelve (12)

years before McKenzie County initiated this action.

Much of the present controversy stems from legal

proceedings spanning more than seventy-five years

and relating to mineral interests in land in McKenzie

County. To provide context for the current

manifestation of a long-standing squabble, a

discussion of the legal history of lands in McKenzie

County is necessary.

A.

Early Condemnation Actions

In the late 1800’s through the 1920’s, settlers

acquired federal lands for agricultural purposes under

the Homestead Acts or through purchasing land

granted to railroad companies. These homestead

patents granted to settlers title to 640 acres, but

reserved to the United States the mineral interest in

those lands. By the 1930’s, extensive drought, along

with plowing of sub- marginal farm land, caused the

loss of the lands’ protective cover. The lands quickly

lost fertility and the soil blew, causing “dustbowl”

conditions and significant crop failure. As a result,

many farms in McKenzie County failed and farmers

were unable to pay their property taxes.

Consequently, McKenzie County acquired title to

significant acreage throughout the County through

foreclosures. See McKenzie County v. Hodel, 467

N.W.2d 701, 702 (N.D. 1991). Through these tax

foreclosures, McKenzie County acquired both the

surface estate and the mineral estate for foreclosed

land, except McKenzie County acquired only the

surface estate for those lands in which the United

States had reserved the mineral interest in the

original patent. McKenzie County formalized its

69a

ownership of the foreclosed land by quit claim or

Sheriff’s deed, whether it was both the surface and

mineral estates or the surface estate alone.

Due to the economic conditions in the United

States, Congress directed the United States

Department of Agriculture (“USDA”) to acquire failed

farmland for conservation and public use purposes.

Lands were the subject of the condemnation actions

through tax forfeiture proceedings and McKenzie

County deeded the forfeited property to the United

States with a reservation of a 6¼ royalty interest in

oil and gas production. See Doc. No. 20, ¶ 3. In an

effort to avoid the claim to a right of redemption under

state law by a party who originally forfeited the

property and to ensure clear title to the lands, the

United States initiated condemnation actions in this

Court. Id. The condemnation actions are identified as

follows:

1. United States v. 10,683.00 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1000 (D.N.D. June 30,

1937);

2. United States v. 12,344.54 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1001 (D.N.D. Feb. 6, 1938);

3. United States v. 17,463.13 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1002 (D.N.D. Oct. 5, 1938);

4. United States v. 11,994.84 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1006 (D.N.D. Feb. 25,

1938);

5. United States v. 9,914.53 Acres of Land, More

70a

or Less, in McKenzie County, State of North

Dakota, At Law No. 1007 (D.N.D. Oct. 11,

1939); and,

6. United States v. 11,626.49 Acres of Land, More

or Less, in McKenzie County, State of North

Dakota, At Law No. 1028 (D.N.D. June 15,

1938).

Id.

Following an agreement by the parties, a

judgment was entered in each condemnation action.

See Doc. No. 20-1. Each of the judgments identified

the lands to be condemned and used language similar

to the language found in judgment No. 1000:

All the above tracts or parcels of

land, with the exception of Tracts 872

and 873, are subject to a 6 ¼% percent

royalty reservation in favor of McKenzie

County, North Dakota, in the minerals

which exist or may be developed therein

by said McKenzie County. And subject,

also, to and excepting all existing public

roads, public utilities, easements and

rights of way, is therefore taken for said

public use.

See Doc. No. 20-1, p. 6. However, when the United

States did not grant a 6 ¼ percent royalty in favor of

McKenzie County for tracts, the judgments

specifically excluded those tracts from the grant.

The United States Department of Interior

(“DOI”), through the Bureau of Land Management

(“BLM”), is tasked with the responsibility to monitor

and manage the royalty payments owed to landowners

and monitored the royalty interest reservation to

71a

McKenzie County following the judgments entered in

the condemnation cases. See Doc. No. 20 at ¶ 4. The

United States admits that upon entry of the

condemnation judgments, BLM annotated its records

to recognize the 6¼ percent royalty interest in favor of

McKenzie County for those lands that the previous

owner held both the surface and mineral estates and

were foreclosed by the County prior to

the

condemnation proceedings. See id. These minerals

received

from

McKenzie County through tax

foreclosure are referred to as “acquired minerals.”

However, BLM did not annotate its records to reflect

the 6 ¼ percent mineral interest reserved in favor of

McKenzie County for those lands in which the United

States had reserved the mineral interest in the

original patent. Id. at ¶ 6. These mineral interests

are referred to as “public domain minerals.” Id. at ¶

7. The parties agree lands subject to the condemnation

judgments included both lands with acquired

minerals and with public domain minerals.

After entry of the condemnation judgments,

McKenzie County received payments from operators

as a result of the 6 ¼ percent mineral interest

reservation annotation in BLM’s records. These

payments ended in 1985 when BLM directed

operators to pay the 6 ¼ percent interest to the United

States. The BLM’s decision to stop payments to

McKenzie County was based wholly on the North

Dakota Supreme Court’s decision of DeShaw v.

McKenzie County, decided more than 20 years earlier.

B.

DeShaw v. McKenzie County

In 1962, in DeShaw v. McKenzie County, the

North Dakota Supreme Court concluded McKenzie

72a

County is precluded under North Dakota law from

retaining a mineral interest and conveying less than

all of its rights, title, and interest to property acquired

through tax foreclosure. 114 N.W.2d 263, 265 (N.D.

1962). As a consequence of the North Dakota Supreme

Court’s DeShaw decision, more than twenty (20) years

later, on June 7,1985, the United States notified

McKenzie County that “royalty payments formerly

made to the counties [Billings, Golden Valley, and

McKenzie] based on the invalid 6 ¼ royalty

reservation are payable to the United States.” See

Doc. No. 20-4 at 1. BLM’s letter to McKenzie County

included an attachment, referenced in the letter as

“Enclosure 1,” which purported to identify lands that

were acquired by Billings, McKenzie, or Golden Valley

Counties through tax proceedings, and were later

acquired by the United States through condemnation

actions. The letter specifically informed McKenzie

County:

Effective at 12:01 A.M., July 1,

1985, royalty payments formerly made to

the counties based on the invalid 6 ¼

percent royalty reservation are payable

to the United States. The lease terms of

each of the leases listed on Enclosure 1

are amended accordingly and lessees,

approved operators, or designated

operators are responsible for compliance

with the amended lease terms.

Id. at 1. The letter then identifies Enclosure 1 as

“Lands Containing Invalid 6 ¼ Percent Royalty

Reservation (Producing Leases).” Id. Enclosure 1 is a

tract summary, which identifies the legal description

and acquisition number for each tract and lists the

73a

serial numbers of leases, unit agreement numbers,

and the names of lessees and unit operators. See Doc.

No. 20-4, pp. 6-18.

McKenzie County appealed the BLM’s letter

decision to the Board of Land Appeals, which affirmed

the invalidation of the 6 ¼ percent mineral interest

reservation in light of DeShaw. See Doc. No. 20-5. In

its opinion, the Board of Land Appeals stated

McKenzie County, along with Billings County and an

oil company, were appealing BLM’s decision

“declaring invalid royalty reservations . . . in lands

acquired by those counties through tax proceedings

and subsequently acquired by the United States as the

result of condemnation proceedings.” See Doc. No. 205, p. 2. The Board of Land Appeals describes the scope

of BLM’s June 7, 1985 decision to cover “119 tracts in

McKenzie County, 10 tracts in Billings County, and 2

tracts in Golden Valley County.” Id. After the Board of

Land Appeals issued its decision on October 20, 1987,

affirming the BLM’s invalidation of the 6 ¼ percent

mineral interest, McKenzie County filed suit in

federal court against Donald Hodel, then-Secretary of

the Interior, and others on December 16, 1987.

C.

McKenzie County II

In the 1987 suit, McKenzie County alleged

DeShaw was inapplicable to the 6 1/4 percent mineral

royalty reservation in the condemnation judgements

and requested the U.S. District Court for the District

of North Dakota declare the 6 ¼ percent mineral

interest belonged to McKenzie County, quiet title in

favor of McKenzie County to the 6 ¼ percent mineral

interest, and order the defendants to reimburse and

pay to McKenzie County the monies due pursuant to

74a

the valid 6 ¼ percent mineral interest. See Doc. No.

20-6. McKenzie County’s claims were not brought

pursuant to the Quiet Title Act. In McKenzie County

v. Hodel (“McKenzie County II”), upon Plaintiff’s

motion, the Honorable Judge Patrick Conmy certified

the question presented in McKenzie County II to the

North Dakota Supreme Court as follows:

The question of law can have a different

appearance from the ‘spin’ put on its

presentation.

Does a condemnation judgment,

pursuant to a stipulation between the

parties, recognizing an otherwise invalid

reservation of a mineral interest, operate

as a conveyance, so as to give validity to

the conveyance as between the parties to

the stipulation?

Does a condemnation judgment,

brought for the purpose of quieting title

in the Federal Government to lands

acquired from the County, insulating the

federal government from any claims of

former owners who lost the land to the

County through tax title proceedings,

which recognizes an invalid mineral

interest reservation, operate as a

conveyance back to the county of the

mineral interest covered so as to make no

longer

applicable

North

Dakota

statutory provisions declaring the

reservation invalid?

McKenzie County v. Hodel, 467 N.W.2d 701, 703 (N.D.

1991). The North Dakota Supreme Court noted the

questions posed by the federal district court could be

75a

taken as asking the North Dakota Supreme Court to

“construe a federal court judgment and determine its

legal effect.” Id. Leaving the construction of a federal

court judgment to the federal district court, the North

Dakota Supreme Court narrowed the questions

presented for its consideration to:

I.

Under North Dakota law, may title to

real property be transferred through

a judgment without compliance with

the conveyancing statute?

II.

Do Chapter 288, 1931 N.D. Sess.

Laws, and the North Dakota

Supreme Court’s decision in DeShaw

prohibit the County from acquiring

title to a mineral interest through

operation

of

a

condemnation

judgment under the facts presented?

In answering the first question, the North Dakota

Supreme Court held “North Dakota conveyancing

statutes do not affect the validity or enforceability” of

federal condemnation judgments because under Rule

70 of the North Dakota Rules of Civil Procedure, as

well as its federal counterpart, a judgment may divest

the title of a party and vest it in another, having the

effect of conveying real property. Id. at 704; see also

N.D. R. Civ. P. 70. Therefore, “North Dakota law does

not impede the transfer of title to real property by

operation of a judgment.” Id. at 705.

The North Dakota Supreme Court then turned

to the question of whether Chapter 288, 1931 N.D.

Session Laws, and its decision in DeShaw prohibit the

County from “acquiring title to the disputed mineral

rights through operation of the condemnation

76a

judgment.” Id. The North Dakota Supreme Court

concluded nothing in DeShaw or Chapter 288 “limits

the County’s authority to reacquire title to property

formerly held by tax title,” and more specifically

neither DeShaw nor Chapter 288 “prohibit the County

from acquiring title to mineral interests through

operation of a condemnation judgment.” Id. at 707.

After the North Dakota Supreme Court issued

its order addressing the certified questions, McKenzie

County filed a motion for summary judgment in the

federal district court case, requesting the Court enter

judgment in its favor by confirming McKenzie

County’s ownership of the 6 ¼ percent mineral

interest “in the lands in question” and setting aside

the decisions of the BLM and the Board of Land

Appeals. Judge Conmy granted the motion, holding

“the recognition of a mineral reservation in the

County in the federal condemnation judgments

operates as a conveyance of that mineral interest to

the County.” See Doc. No. 20-7 at 2. In the judgment

entered, the Court again articulated “a mineral

reservation in favor of McKenzie County in the federal

condemnation judgments operates as a conveyance of

that mineral interest to McKenzie County” and

ordered “title to the disputed minerals (6 ¼% royalty)

is quieted in McKenzie County; and, the Defendants

are barred from any claim in regard to the same or

proceeds from the same; that McKenzie County is the

owner of the disputed minerals (6 ¼% royalty) free

and clear of any claim of the above named

defendants.” See Doc. No. 20-8 at 3. The judgment

was entered June 24, 1991. See id.

D.

Events After McKenzie County II

77a

The United States represents to the Court that

after Judge Conmy’s decision quieting title to the 6 ¼

percent mineral interest in favor of McKenzie County,

the BLM “resumed annotating its records to recognize

the 6 ¼ percent royalty interest to McKenzie County

for those lands described in its 1987 Complaint, which

were the lands described in the condemnation

Judgements that contained acquired minerals.” See

Doc. No. 20, ¶ 11 (emphasis added). While the BLM

directed well operators to resume payment of a 6 ¼

percent mineral interest to McKenzie County, the

record reveals as late as 1993, the BLM was still

identifying “additional oil and gas leases subject to the

6 ¼% royalty rate reservation” because “lands were

not identified on [BLM’s] records during [its] initial

review.” See Doc. Nos. 24-11 and 24-12. McKenzie

County represents that the BLM’s application of

Judge Conmy’s decision was not limited to those lands

enumerated on Enclosure 1, attached to the BLM’s

decision letter in 1985, but extended to other lands.

Consequently, after the 1991 Judgment, McKenzie

County, along with companion counties, made efforts

to ascertain what lands within the counties were

burdened by the 6 ¼ percent mineral interest in favor

of the counties in light of the 1991 Judgment. By at

least 1998, McKenzie County had initiated a “Natural

Resource Inventory” project to review legal records

and condemnation judgments, with State’s Attorney

Dennis Johnson traveling to Kansas City, Missouri, to

retrieve legal records of the 1930’s condemnation

actions. See Doc. No. 24-2, pp. 5, 36. During this

process, on November 17, 2003, Karen Johnson, Chief

of the Fluids Adjudication Section in the BLM Billings

Field Office, sent a fax to Dennis Johnson and Keith

Winter that stated, in part: “Our records show only

78a

the acquired minerals in the Judgments/Partial

Judgments of Declarations of Taking At Law Nos.

1000, 1001, 1002, 1006, 1007, 1028, 1036 and 1042 are

subject to a 6 ¼% royalty reservations.” See Doc. No.

24-4, p. 13.

On December 19, 2003, McKenzie County

Commissioner Roger Chinn and Billings County

Commissioner Jim Arthaud met with Elaine

Kaufman, Karen Johnson, and Joan Seibert from the

BLM Fluids Adjudication Section in Billings,

Montana, to compare the tracts of lands the records

obtained by the Counties of the commendation

judgments subject to a 6 ¼ percent royalty reservation

and the BLM records. Chinn and Arthaud provided

the BLM with copies of the condemnation judgments

and documents from the condemnation proceeding, as

well as a list of the legal descriptions of the tracts of

land in McKenzie, Golden Valley, and Billings

Counties that were tied to a specific paragraph in the

At Law Judgments recognizing the 6¼ percent royalty

interest grant to the Counties. After the meeting,

Karen Johnson sent an email to individuals within the

BLM indicating the Counties provided the BLM with

“a list of legal descriptions which provides reference to

the At Law #s and the Tract #s” and “[BLM] will

review the information they provided to ensure our

records accurately reflect the 6 ¼% outstanding

royalty reservation in Slope, Golden Valley,

McKenzie, and Billings Counties.” See Doc. No. 24-2,

p. 84.

On January 27, 2004, Roger Chinn, as

McKenzie County Commissioner, received a letter

from Karen Johnson from the BLM informing the

Counties of the result of the BLM’s audit of lands

79a

subject to a 6 ¼ percent mineral interest in favor of

the Counties. See Doc. No. 24-2, pp. 92-93. In the

letter, Johnson indicated McKenzie County claimed

74,032.81 acres are subject to a 6 ¼ percent royalty

reservation, but the BLM’s records show only

58,368.94 acres are subject to the reservation; Golden

Valley County claimed 5,925.27 acres are subject to a

6 ¼ percent royalty reservation, but the BLM’s records

show only 3,845.27 acres are subject to the

reservation; and Billings County claimed 14,921.63

acres are subject to a 6 ¼ percent reservation, but the

BLM’s records show only 13,990.94 acres are subject

to the reservation. Johnson explains the discrepancy

between the Counties’ records and the BLM’s records:

“the acreage differences between our records and

yours are primarily because your records included

lands with Public Domain minerals. Only lands

acquired by the United States in the condemnations

are subject to a 6 ¼ percent royalty reservation.” Id.

The letter also included attachments enumerating

lands in McKenzie, Golden Valley, and Billings

County in which the BLM does not recognize a 6 ¼

percent mineral reservation in favor of the Counties

because those minerals are either public domain

minerals or were specifically excluded from the

reservation in the original condemnation judgments.

After McKenzie County received Johnson’s

January 27, 2004 letter, McKenzie and Billings

Counties exchanged several letters with the BLM to

clarify the status of certain lands. In this

correspondence, the Billings Field Office of the BLM

indicated it would direct the Counties’ request for

recognition of the 6 ¼ percent mineral reservation in

all lands acquired through condemnation judgements

80a

to BLM’s Rock Mountain Field Solicitor “for an

opinion regarding [their] claim to a 6 ¼ percent

royalty in lands with public domain minerals acquired

through condemnation.” See Doc. No. 24-2, p. 116. On

December 16, 2004, Johnson sent a letter to Chinn

and Arthaud indicating BLM’s Rocky Mountain

Region Field Solicitor reviewed the Counties’ claim to

a 6 ¼ percent in all lands in the condemnation

judgments, and determined “the Bureau of Land

Management’s decision to issue public domain

mineral leases without a royalty reservation to the

counties is defensible.” See Doc. No. 24-2, p. 118.

McKenzie County sent a letter to the United States

Department of the Interior, Office of the Solicitor, on

March 7, 2005, requesting the office review the

opinion of the Rocky Mountain Region Field Solicitor

and direct the BLM to recognize a 6 ¼ percent royalty

reservation in favor of the Counties for all lands

acquired by the United States in the condemnation

judgments. See Doc. No. 24-4, pp. 15, 20. According

to the record, the Department of the Interior did not

respond to McKenzie County’s letter.

McKenzie County initiated this action on

January 11, 2016, and filed an amended complaint on

April 12, 2016. See Doc. Nos. 1 and 7. The sole cause

of action in the amended complaint is to quiet title to

the 6 ¼ percent mineral interest in favor of McKenzie

County for specific tracts of lands. On December 20,

2016, the United States filed a motion to dismiss the

County’s amended complaint pursuant to Rule

12(b)(1) of the Federal Rules of Civil Procedure for

lack of subject matter jurisdiction. See Doc. No. 18.

The United States contends McKenzie County’s

81a

complaint is barred by the twelve (12) year statute of

limitations in the Quiet Title Act.

II.

STANDARD OF REVIEW

The United States requests the Court dismiss

McKenzie County’s amended complaint pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure.

When considering a motion to dismiss, the Court must

generally construe the complaint liberally and assume

all factual allegations to be true. Eckert v. Titan Tire

Corp., 514 F.3d 801, 806 (8th Cir. 2008). Dismissal

will not be granted unless it appears beyond a

reasonable doubt that the plaintiff can prove no set of

facts that would entitle plaintiff to relief.

Rule 12(b)(1) of the Federal Rules of Civil

Procedure governs challenges to subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). Here, the United

States asserts a factual challenge to the Court’s

jurisdiction. In such a factual 12(b)(1) motion, the trial

court’s jurisdiction – its very power to hear the case –

is at issue, and the trial court is “free to weigh the

evidence and satisfy itself as to the existence of its

power to hear the case.” Osborn v. United States, 918

F.2d 724, 730 (8th Cir. 1990). As a result, “no

presumptive truthfulness attaches to the plaintiff’s

allegations” and the existence of disputed material

facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims. Spirit

Lake Tribe v. North Dakota, 262 F.3d 732, 744 (8th

Cir. 2001). The burden is on the plaintiff to

demonstrate jurisdiction exists. Id.

82a

III.

LEGAL ANALYSIS

McKenzie County brought this action to “quiet

title to the 6 ¼ percent royalty interest in the mineral

estate granted to the County as part of the

condemnation of the lands by the United States.” See

Doc. No. 7, p. 18. The United States requests the Court

dismiss the County’s amended complaint pursuant to

Rule 12(b)(1) of the Federal Rule of Civil Procedure

because the Plaintiff’s claim is untimely pursuant to

the Quiet Title Act and, consequently, this Court lacks

jurisdiction over the matter.

McKenzie County

contends its claim is timely as its complaint was filed

within the twelve (12) year statute of limitations of the

Quiet Title Act and the Court has jurisdiction over the

matter. In the alternative, McKenzie County requests

leave to file a second amended complaint.

The United States is immune from suit absent

a waiver of sovereign immunity. Hart v. United

States, 630 F.3d 1085, 1088 (8th Cir. 2011). The Quiet

Title Act (“QTA”) provides a limited waiver of

sovereign immunity:

The United States may be named as a

party defendant 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.

28 U.S.C. § 2409a(a). The QTA is the exclusive means

by which an adverse claimant can challenge the

United States’ title to real property. Block v. North

Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.

273, 286 (1983). “Because the QTA waives the

83a

government’s sovereign immunity from suit, a

plaintiff must comply with the limitations period to

effectuate that waiver. Hence the QTA statute of

limitations acts as a jurisdictional bar unlike most

statutes of limitations, which are affirmative

defenses.” Spirit Lake Tribe, 262 F.3d at 737-38

(internal citations omitted).1

Subsection (g) of 28 U.S.C. § 2409a, describes

the statute of limitations applicable to claims brought

by persons or entities, such as a county:

Any civil action under this section,

except for an action brought by a State,

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

1Some

circuit courts of appeal have questioned whether the

QTA’s limitations period serves as a jurisdictional bar. In Irwin

v. Dep’t of Veteran Affairs, the United States Supreme Court

concluded the statute of limitations in an employment

discrimination action against the United States was subject to

equitable tolling. 498 U.S. 89, 95-96 (1990). Courts have

interpreted Irwin to imply a statute of limitations does not

function as a jurisdictional bar for claims against the United

States. See, e.g., Wisconsin Valley Improvement Co. v. United

States, 569 F.3d 331, 334 (7th Cir. 2009). For example, in

Schmidt v. United States, the Eighth Circuit concluded the

statute of limitations in the Federal Tort Claims Act is not

jurisdictional pursuant to the Supreme Court’s holding in Irwin.

933 F.2d 639, 640 (8th Cir. 1991). Nonetheless, absent an express

contrary manifestation by the Eighth Circuit or the United

States Supreme Court, this Court follows the Eighth Circuit’s

determination in Spirit Lake Tribe that the QTA’s statute of

limitations serves as a bar to the district court’s jurisdiction. See

262 F.3d at 737-38.

84a

knew or should have known of the claim

of the United States.

28 U.S.C. § 2409a(g). In Spirit Lake Tribe, the Eighth

Circuit discussed the operation of the statute of

limitations of subsection (g). Specifically the Eighth

Circuit stated that subsection (g) does not require the

government to provide explicit notice of its claim.

Spirit Lake Tribe, 262 F.3d at 738. In fact, the

government’s claim need not be “clear and

unambiguous.” Id. (citing North Dakota ex rel. Bd. of

Univ. & Sch. Lands v. Block, 789 F.2d 1308, 1313 (8th

Cir. 1986). “Knowledge of the claim’s full contours is

not required. All that is necessary is a reasonable

awareness that the Government claims some interest

adverse to the plaintiff’s.” Id. (quoting Knapp v.

United States, 636 F.2d 279, 283 (10th Cir. 1980)).

Courts have consistently held that to trigger the QTA

general limitation period in subsection (g) a plaintiff

must have a “reasonable awareness that the

Government claims some interest adverse to the

plaintiff’s.” Knapp, 636 F.2d at 283 (emphasis added);

see, e.g., Kane Cnty v. United States., 772 F.3d 1205,

1215 (10th Cir. 2014); Michel v. United States, 65 F.3d

130, 131-32 (9th Cir. 1995); and North Dakota ex rel

Bd. of Univ. & Sch. Lands v. Block, 789 F.2d 1308,

1313 (8th Cir. 1986). The only notice sufficient to

trigger the limitation period is notice of an adverse

claim, San Juan Cnty. v. United States, 754 F.3d at

787, 795-96 (10th Cir. 2014), because when the

plaintiff claims a non-possessory interest in property,

such as a mineral royalty, “knowledge of a government

claim of ownership may be entirely consistent” with

the plaintiff’s claim. Michel, 65 F.3d at 132.

85a

In the present motion, the Court has been

asked to determine whether McKenzie County

complied with the limitations period of the Quiet Title

Act to effectuate a waiver of sovereign immunity by

the United States. Because McKenzie County

instituted its action on January 11, 2016, its attempt

to quiet title is barred if the County “knew or should

have known” of the United States’ claim to the 6 ¼

percent mineral interest for public domain minerals

on lands within the condemnation judgments by

January 10, 2004. See Doc. No. 1.

In its motion, the United States contends the

limitations period of the QTA bars McKenzie County’s

claim because the United States has consistently

maintained the 6 ¼ percent mineral reservation in the

commendation judgment applies only to those

minerals acquired by McKenzie County through tax

proceedings and does not apply to public domain

minerals. Specifically, the United States directs the

Court to several events that occurred prior to January

10, 2004, to demonstrate McKenzie County knew or

should have known of the United States’ claim to the

6 ¼ percent mineral interest in public domain

minerals on those lands included in the condemnation

judgments; namely: (1) A 1981 Letter from the BLM

to McKenzie County; (2) the BLM’s historic nonpayment of royalties for public domain minerals on

those lands included in condemnation judgments; (3)

McKenzie County’s initiation of its a “Natural

Resource Inventory” project to review legal records

and condemnation judgments; (4) Minutes for County

Commission meetings in McKenzie, Golden Valley,

and Billings Counties; (5) the correspondence between

86a

McKenzie County and the BLM after entry of

judgment in McKenzie County II.

In its response to the United States’ motion,

McKenzie County contends not only did it timely bring

this action, but this Court’s holding in McKenzie

County II already quieted title to the 6 ¼ percent

mineral interest in favor of McKenzie County for both

acquired and public domain minerals in those lands

described in 1930’s-1940’s condemnation judgments.

McKenzie County also contends the doctrines of

collateral estoppel and res judicata preclude the

United States from denying and relitigating McKenzie

County’s ownership of the 6 ¼ percent mineral

interest in any lands conveyed to the United States in

the condemnation judgments.

Before addressing whether those specific events

or communications described above triggered the QTA

limitation period, the Court first turns to consider

whether the judgment entered in McKenzie County II

or the condemnation judgments preclude the parties

from relitigating title to the 6 ¼ percent mineral

interest in favor of McKenzie County in this matter.

Assuming, arguendo, that the Court were to conclude

those actions already quieted title to the 6 ¼ percent

mineral interest for public domain minerals, such

conclusion would certainly alter the landscape of this

action.

The Court has carefully and thoroughly

reviewed the record in this case, particularly the

materials submitted by the parties related to the

litigation of McKenzie County II in this Court and the

condemnation judgments. In McKenzie County II, this

Court specifically held “the recognition of a mineral

reservation in the County in the federal condemnation

87a

judgments operates as a conveyance of that mineral

interest to the County.” See Doc. No. 20-7. In the

judgment entered upon Judge Conmy’s grant of

summary judgment, the Court again articulated “a

mineral reservation in favor of McKenzie County in

the federal condemnation judgments operates as a

conveyance of that mineral interest to McKenzie

County” and ordered “title to the disputed minerals (6

¼% royalty) is quieted in McKenzie County; and, the

Defendants are barred from any claim in regard to the

same or proceeds from the same; that McKenzie

County is the owner of the disputed minerals (6 ¼%

royalty) free and clear of any claim of the above named

defendants.” See Doc. No. 20-8 (emphasis added). The

condemnation judgments referred to in the McKenzie

County II judgment, plainly state: “All the above

tracts or parcels of land . . . are subject to a 6 ¼%

percent royalty reservation in favor of McKenzie

County, North Dakota, in the minerals which exist or

may be developed therein by said McKenzie County.”

See Doc. No. 20-1, p. 6. Whether the McKenzie County

II judgment, along with the earlier condemnation

judgments, has quieted title to the mineral interest in

dispute here (i.e. public domain minerals) turns on the

breadth of Judge Conmy’s decision and the scope of

the phrase “disputed minerals” as used in the

McKenzie County II judgment. The Court combed the

records from McKenzie County II submitted by the

parties to help provide context for the phrase

“disputed minerals.” The Court looked to the

complaint in McKenzie County II, in which the County

described the dispute as follows:

2. This lawsuit consists of a dispute over

ownership of a 6 ¼% interest under

88a

certain lands located in McKenzie

County (said lands are described in

Enclosure 1 of Exhibit A attached hereto

and made a part hereof, and will be

herein referred to as “subject lands”). All

of the subject lands were patented by the

United States Government into private

ownership. McKenzie County acquired

the lands by tax sale proceedings.

Doc. No. 20-6. Neither this allegation or other

allegations of the complaint, or any other pleading

from McKenzie County II submitted by the parties,

define the scope of the lawsuit in terms of “disputed

minerals,” and the United States’ answer to the

complaint in McKenzie County II is not part of the

record before the Court. Although there is reference in

the McKenzie County II complaint to “Enclosure I”

(originating from the BLM’s 1985 letter to McKenzie

County), nothing in the record defines the “disputed

minerals.” With these considerations, the Court is

convinced that title to the 6 ¼ percent mineral interest

in the lands identified in the complaint filed in this

action was already quieted by this Court in the 1991

judgment or the condemnation judgments. In fact,

based upon the plain language of the condemnation

judgments (stating “[a]ll the above tracts or parcels of

land . . . are subject to a 6¼% percent royalty

reservation in favor of McKenzie County, North

Dakota, in the minerals which exist or may be

developed therein by said McKenzie County.”) and the

holding of the North Dakota Supreme Court in

DeShaw and McKenezie County, the Court is left with

the clear impression the 6 ¼ percent mineral interest

in dispute in this case may have already been quieted.

89a

If such is the case, the Court’s jurisdictional inquiry

changes substantially because the actions of the BLM

since the 1930’s described in the United States’ motion

to dismiss have forced the County to relitigate an

issue already decided and seek relief from this Court

to enforce judgments previously entered against the

United States. Therefore, under these circumstances,

the Court concludes it is in the interests of justice to

grant McKenzie County leave to file a second amended

complaint to assert additional claims supported by the

record.

IV.

CONCLUSION

The

Court

has

carefully

scrutinized,

considered, and weighed each of the hundreds of

documents in the record. Based on the foregoing, the

Court DENIES the United States’ motion to dismiss

McKenzie County’s amended complaint (Doc. No. 18)

and GRANTS McKenzie County leave to file a second

amended complaint. McKenzie County is to file its

second amended complaint on or before August 30,

2019.

IT IS SO ORDERED.

Dated this 6th day of August, 2019.

/s/ Daniel L. Hovland

Daniel L. Hovland, Chief

Judge

United States District

Court

90a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

McKenzie County, North )

Dakota,

) ORDER DENYING

) UNITED STATES’

) MOTION TO

Plaintiff,

) DISMISS SECOND

) AMENDED

vs.

) COMPLAINT

United States of

America,

)

)

) Case No. 1:16-cv-001

Defendants.

Before the Court is the Defendant “United

States’ Motion to Dismiss Amended Complaint” filed

on November 4, 2019. See Doc. No. 43. The Plaintiff,

McKenzie County, North Dakota, filed a response to

the motion on December 16, 2019. See Doc. No. 47.

The United States filed a reply brief on December 30,

2019. See Doc. No. 48. For the reasons set forth below,

the United States’ motion to dismiss the second

amended complaint is denied.

I.

PROCEDURAL BACKGROUND

The Court has previously discussed the origins

of the parties’ dispute and will not repeat it here. See

Doc. No. 36, pp. 1-11. However, a brief review of the

procedural history of this matter is helpful.

91a

McKenzie County, North Dakota, filed its

original complaint against the United States on

January 11, 2016. See Doc. No. 1. In its complaint,

McKenzie County alleged a single cause of action: to

quiet title to the 6 ¼ percent royalty interest in the

mineral estate granted to the County in condemnation

judgments entered by this Court in the 1930s and

1940s. McKenzie County filed an amended complaint

on April 12, 2016. See Doc. No. 7. On December 20,

2016, the United States filed a motion to dismiss the

action pursuant to Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction because

McKenzie County’s complaint was untimely pursuant

to the Quiet Title Act, 28 U.S.C. § 2409a (“Quiet Title

Act”). On August 6, 2019, the Court denied the United

States’ motion to dismiss. See Doc. No. 36. However,

in its order denying the United States’ motion to

dismiss, the Court granted McKenzie County leave to

file a second amended complaint. See Doc. No. 36, pp.

17-18. In its order, the Court addressed whether the

judgment entered in McKenzie County II or the

condemnation judgments entered in the 1930s and

1940s “preclude the parties from relitigating title to

the 6 ¼ percent mineral interest in favor of McKenzie

County in this matter.” See id. at 16. Specifically, this

Court stated:

Whether the McKenize County II

judgment, along with the earlier

condemnation judgments, has quieted

title to the mineral interests in dispute

here (i.e. public domain minerals) turns

on the breadth of Judge Conmy’s decision

and the scope of the phrase “disputed

92a

minerals” as used in the McKenzie

County II judgment.

See id.

McKenzie County filed a second amended

complaint on August 30, 2019. See Doc. No. 37. In its

second amended complaint, McKenzie County alleges

two causes of action: (1) enforcement of judgements

previously entered by the District Court for the

District of North Dakota, and (2) quiet title to 6 1/4

percent royalty interest in the mineral estate granted

to McKenzie County in the condemnation judgments.

See id. at 25-28. In response to the second amended

complaint, the United States filed the pending motion

to dismiss pursuant to Federal Rules of Civil

Procedure 12(b)(1) and (6). See Doc. No. 43. In its

motion, the United States contends McKenzie

County’s claim to enforce previously entered

judgments should be dismissed pursuant to Fed. R.

Civ. P. 12(b)(6) and the claim to quiet title to the 6 ¼

percent royalty interest should be dismissed pursuant

to Fed. R. Civ. P. 12(b)(1). McKenzie County filed a

response to

the motion, contending dismissal

pursuant to Rule 12(b)(1) and 12(b)(6) is not

warranted.

II.

STANDARD OF REVIEW

The United States requests the Court dismiss

McKenzie County’s first cause of action to

enforcement previously entered judgments pursuant

to Rule 12(b)(6). Rule 8(a)(2) of the Federal Rules of

Civil Procedure requires a pleading to contain a “short

and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

93a

Rule 12(b)(6) of the Federal Rules of Civil Procedure

mandates the dismissal of a claim if there has been a

failure to state a claim upon which relief can be

granted. In order to survive a motion to dismiss under

Rule 12(b)(6), a complaint must contain “sufficient

factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotations omitted).

A plaintiff must show that success on the merits is

more than a “sheer possibility.” Id. A complaint does

not need detailed factual allegations, but it must

contain more than labels and conclusions. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The court must accept all factual allegations of

the complaint as true, except for legal conclusions or

“formulaic recitation of the elements of a cause of

action.” Iqbal, 556 U.S. at 678. A complaint does not

“suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Id. The determination

of whether a complaint states a claim upon which

relief can be granted is a “context-specific task that

requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. Dismissal

will not be granted unless it appears beyond doubt the

plaintiff can prove no set of facts entitling him to

relief. Ulrich v. Pope Cty., 715 F.3d 1054, 1058 (8th

Cir. 2013). The burden is on the moving party to prove

that no legally cognizable claim for relief exists. 5B

Wright & Miller, Federal Practice and Procedure §

1357 (3d ed. 2004); Mediacom Se. LLC v. BellSouth

Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012)

(the moving party bears the burden on a Rule 12(b)(6)

motion).

94a

III.

LEGAL ANALYSIS

In its motion, the United States seeks to

dismiss McKenzie County’s first cause of action

(enforcement of judgments) pursuant to Federal Rule

of Civil Procedure 12(b)(6) and dismiss McKenzie

County’s second cause of action (quiet title to the

royalty interest in the mineral estate) pursuant to

Federal Rule of Civil Procedure 12(b)(1). The Court

first addresses the United States’ request to dismiss

the first cause of action – enforcement of judgments.

A.

MOTION TO DISMISS PURSUANT

TO RULE 12(b)(6)

In its motion to dismiss, the United States

contends the Court should dismiss McKenzie County’s

first cause of action to enforce the previous judgments

of this Court conveying and quieting title to the

“enumerated 6 ¼ percent royalty interests in the

mineral estates granted to the County as part of the

condemnation of the lands by the United States”

because McKenzie County fails to state a claim upon

which relief can be granted. See Doc. No. 37, pp. 1, 2527. Specifically, the United States posits the first

cause of action in the second amended complaint is

conclusory and “unsupported by even the allegation of

facts sufficient to establish it . . .” See Doc. No. 44, p.

9.

In its second amended complaint, McKenzie

County brings a claim, requesting: “this Court issue a

writ of assistance or mandamus to enforce the

condemnation judgments, which conveyed the royalty

rights in all minerals including certain public domain

95a

minerals described in Paragraph 60 to McKenzie

County more than 80 years ago.” See Doc. No. 37, p.

25. The County brings this claim pursuant to 28

U.S.C. § 1361, 28 U.S.C. § 1651, and Rule 70(c) of the

Federal Rules of Civil Procedure. Id.

In its brief in support of its motion to dismiss,

the United States presents several broad legal bases

to dismiss the County’s claim to enforce previously

entered judgments, even contending this Court’s

Order of August 6, 2019, effectively determined

McKenzie County is required to submit additional

factual allegations as part of its second amended

complaint to survive a Rule 12 motion. However, the

United States does not identify or analyze any

elements of McKenzie County’s claim or the legal

standards which apply to McKenzie County’s claim to

enforcement of prior judgments. Despite bearing the

burden, the United States fails to identify the facts

which McKenzie County failed to allege to support its

legal claim to enforce prior judgments. Accordingly,

the United States’ motion to dismiss the claim must

be denied. See Spirit Lake Tribe v. Jaeger, 2020 U.S.

Dist. LEXIS 22162, *16 (D.N.D. Feb. 10, 2020) (citing

Ross v. United States Capitol Police, 195 F. Supp. 3d

180, 192 (D.D.C. 2016) (concluding denial of

defendant’s motion to dismiss for failure to state a

claim based upon the defendant’s failure to enumerate

or analyze the elements of the plaintiff’s claim

warranted).

In its second amended complaint, McKenzie

County makes detailed factual allegations of the

history and background of the western North Dakota

settlement and the United States’ reacquisition of

land and establishment of land utilization projects.

96a

See Doc. No. 37, pp. 5-10. McKenzie County also

makes detailed factual allegations describing

condemnation judgments entered by this Court from

1935 to 1941:

30.

Due to the landowners’ failure to

pay property taxes, McKenzie County

foreclosed on a significant acreage of the

land within the County and acquired the

lands by tax sale proceedings. Prior to

the issuance of the tax deed, the County

acquired by quit claim or a Sheriff’s deed

for the full ownership interest of the land

owned by the individual landowners.

This included the surface and mineral

estate for those lands patented under the

early homestead laws or purchased from

the Railroad, and the surface estate for

those lands patented under the Mineral

Lands and Mining Act of 1914 and the

Stock-Raising Homestead Act of 1916.

31.

Pursuant to the appropriations

laws and programs described in

Paragraphs 20 through 25, the United

States then acquired these lands from

the County for the LUPs in North

Dakota. The United States sought to

extinguish any right of redemption by

the original landowners, so it initiated

condemnation actions against the

County to ensure that title passed

without any right of redemption. The

declarations of taking took title to the

lands in fee simple subject to the

County’s 6¼ percent royalty interest in

97a

mineral production. See infra ¶ 60a-f,

Declarations of Taking, At Law Nos.

1000, 1001, 1002, 1006, 1007, 1028.

32.

The subsequent condemnation

judgments entered by this Court from

1935 to 1941 conveyed the County’s

royalty rights on tracts previously owned

by the County without regard to whether

the mineral estate was “acquired” or

“public domain” minerals. See infra ¶

60a-f, Judgment, At Law Nos. 1000,

1001, 1002, 1006, 1007, 1028. The

condemnation judgments specifically

state:

That the United States of America

is the owner in fee simple of the

lands hereinbefore described,

subject, however, to the rights of

McKenzie County, North Dakota

to a 6¼% perpetual royalty in

minerals which exist or may be

developed on said lands, and also

subject to and excepting all

existing public roads, easements

and rights of way, such reserved

rights to be exercised only in

accordance with all pertinent rule

and regulations of the Department

of Agriculture.

See e.g. United States of Am. v. 10,683.00

Acres of Land, More or Less, in McKenzie

County, North Dakota, et al., Judgment,

At Law No. 1000 at p. 8 (Aug. 15, 1939).

98a

33.

The condemnation judgments also

stated: “That this Court shall retain

jurisdiction of this cause for the purpose

of entering such further orders or decrees

as may be necessary in the premises.”

See id. at p. 9.

See Doc. No. 37, pp. 11-12. McKenzie County’s second

amended complaint also contains the factual

underpinnings which led to the cases of McKenzie

County v. Hodel, 467 N.W.2d 701, 703 (N.D. 1991),

and McKenzie County v. Hodel, No. A4-87-211 (D.N.D.

1991) (“McKenzie County II”), the procedural history

of those cases, and the actions of the United States

subsequent to those cases. The allegations of the

second amended complaint well articulate the dispute

between the parties. Accordingly, after a careful

review of the detailed allegations in the second

amended complaint, the Court cannot say McKenzie

County has failed to state a claim upon which relief

may be granted.

B.

MOTION TO DISMISS PURSUANT

TO RULE 12(b)(1)

The United States next contends McKenzie

County’s second cause of action – to quiet title to the

6 ¼ percent royalty interest in the mineral estate

granted to the County as part of the condemnation

judgments entered by this Court in the 1930s and

1940s – should be dismissed pursuant to Federal Rule

of Civil Procedure 12(b)(1) because the Plaintiff’s

claim is untimely pursuant to the Quiet Title Act, and,

consequently, this Court lacks jurisdiction over the

matter.

99a

In its earlier order in this case, the Court

stated:

Before addressing whether those specific

events or communications described

above triggered the QTA limitation

period, the Court first turns to consider

whether the judgment entered in

McKenzie County II or the condemnation

judgments preclude the parties from

relitigating title to the 6 ¼ percent

mineral interest in favor of McKenzie

County in this matter. Assuming,

arguendo, that the Court were to

conclude those actions already quieted

title to the 6 ¼ percent mineral interest

for public domain minerals, such

conclusion would certainly alter the

landscape of this action.

See Doc. No. 36, p. 15-16. The Court previously

acknowledged that if the 6 ¼ percent mineral interest

in dispute here was in fact already quieted in the

condemnation judgments or McKenzie County II, this

Court’s jurisdictional inquiry changes significantly. In

fact, the scope of Court’s jurisdictional inquiry of

McKenzie County’s quiet title claim is wholly affected

by the disposition of the County’s first cause of action.

Accordingly, at this stage, the Court is reluctant to

dismiss the County’s quiet title claim.

It is necessary for the Court to determine its

own jurisdiction by resolving the merits of the

County’s first cause of action. Under such

circumstances, dismissal pursuant to Rule 12(b)(1) is

unwarranted. City of Santa Monica v. United States,

650 Fed. App’x. 326, 327 (9th Cir. 2016) (concluding

100a

that in action brought pursuant to the Quiet Title Act,

“[w]hen jurisdictional and substantive issues are so

intertwined that the question of jurisdiction is

dependent on the merits, it is both proper and

necessary for the trial court to resolve the merits of

the claim to determine its own jurisdiction.”) (internal

quotations omitted). See Osborn v. United States, 918

F.2d 724, 728-30 (8th Cir. 1990) (discussing the

treatment of Rule 12(b)(1) motions as Rule 56 motions

when matters outside the pleadings are considered);

Hogan v. Mance, 2013 U.S. Dist. LEXIS 122004, at *34 (D. Neb. Aug. 23, 2013) (finding “[a] federal court

should not decide the factual dispute over jurisdiction

if the jurisdictional issue is so bound up with the

merits that a full trial on the merits may be necessary

to resolve the issue.”) (internal quotations omitted).

Therefore, at this stage and without the benefit of

briefing on the merits of the County’s first cause of

action, the Court denies the United States’ request to

dismiss the County’s second cause of action (quiet title

to the 6 ¼ percent royalty interest).

IV.

CONCLUSION

The Court has carefully reviewed the entire

record, the parties’ briefs, and the relevant law. For

the reasons set forth above, the Court DENIES the

United States’ motion to dismiss McKenzie County’s

second amended complaint (Doc. No. 43).

IT IS SO ORDERED.

Dated this 9th day of August, 2020.

101a

10la

/s/

/s/ Daniel

Daniel L.

L. Hovland

Hovland

Daniel L.

L. Hovland,

Hovland, District

District

Daniel

Judge

Judge

United States

States District

District

United

Court

Court