# Petition — IOWA v. OMAHA INDIAN INDIAN TRIBE (Nos. 79-1779, 79-1741, 79-1744)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980

## Text

EILED
MAY 7 1980

In The

Supreme Court of the United States

October Term, 1979

79-1779

= ae

State of Iowa, State Conservation Commission of the
State of Iowa,
; Petitioners,

Roy Tibbals Wilson, Charles E. Lakin, Florence Lakin,

R.G.P. Incorporated, Darrell L., Harold, Harold M. and

Luea Sorensen, Harold Jackson, Otis Peterson and
Travelers Insurance Company,

Respondents (Petitioners on Separate Petitions),
vs.
Omaha Indian Tribe and United States of America,
Respondents.

fy.
———

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

ra’
m4

THomas J. MILLER,
Attorney General of the
State of Iowa, and

EizaBetu M. OsEnBaucH,

Assistant Attorney General
Hoover Building, Second Floor
Des Moines, Iowa 50319

Joun P. Sarcone,

Assistant Attorney General
Hoover Building, Second Floor
Des Moines, Iowa 50319

Counsel for Petitioners

COCKLE PRINTING (O., 2311 Douglas St., Omaha 68102

TABLE OF CONTENTS

Pages
Opinions Below and of this Court 1
Jurisdiction 2
Questions Presented for Review 3
Constitutional and Statutory Provisions Involved.......... a
Statement of the Case 4

Reasons for Granting the Writ:

I. The decision of the Court of Appeals’ on re-
mand is inconsistent with the mandate of this
Court in Wilson v. Omaha Indian Tribe, 442
U. S. 653 (1979) 9

II. The Court of Appeals’ construction of federal
law as a source of state law is inconsistent with
decisions of this Court and of the Ninth Cireuit. 10

III. The Court of Appeals decided the Nebraska law
of accretion and avulsion, which involve impor-

tant questions of state law, in conflict with Ne-
braska law. 14

IV. The method used by the Court of Appeals to
predict Nebraska law violates the authority of
state courts and is inconsistent with decisions of
this Court and other Circuit courts. 14

V. This Court should exercise its supervisory juris-
diction over lower federal courts to prevent
abuse of the authority to decide questions of
state law. 21

ll

TABLE OF CONTENTS—Continued
Pages

VI. The decision of the Court of Appeals will have
significant adverse effect by unsettling land
titles, encouraging forum shopping, and confus-
ing application of the Nebraska-[owa Boundary

Compact. 23
Conclusion 26
CITATIONS

CasEs:
Beaver v. United States, 350 F. 2d 4, 6-7, 10-12
(9 Cir. 1965) 13

Becker v. Interstate Properties, 569 F. 2d 1203,
1205-1206 (3 Cir. 1977) 19

Bernhardt v. Polygraphic Company of America,
350 U. S. 198, 204-205 (1956) 15, 22

Bouvier v. Stricklett, 40 Neb. 792, 59 N. W. 550, 552-
554 (1894) 18

Carroll v. United States, 354 U. S. 394, 414, n. 34
(1957) 22

Cascade Natural Gas Corporation v. El Paso Nat-
ural Gas Co., 386 U. S. 129 (1967) 9

Conkey v. Knudsen, 143 Neb. 5, 8 N. W. 2d 588
(1943), vacating 141 Neb. 517, 4 N. W. 2d 290
aa ES cr 7, 14, 16, 17

lil

CITA TIONS—Cntinued

Pages
Continental Insurance Co. v. United States, 259 U.

S. 156, 166 (1922) 9
Day & Zimmoner, Ine. v. Challoner, 423 U. S. 3,

4-5 (1975) 20
Erie R. R. v. Tompkins, 304 U. S. 64 (1938) ow. 19
First National Life Ins. Co. v. Fid. & Dep. Co.

of Md., 525 F. 2d 966, 968 (5 Cir. 1976) 19
Frank v. Smith, 1388 Neb. 382, 293 N. W. 329, 335

(1940) 20

Garrard v. Larsen, 517 F. 2d 1127, 1132 (8 Cir. 1975) 21
Gill v. Lydick, 40 Neb. 508, 59 N. W. 104, 105 (1894)... 19

Guaranty Trust Co. v. York, 326 U. S. 99 (1945) ....... 19
Holeomb Const. Co., Ine. v. Armstrong, 590 F. 2d
811, 813 (9 Cir. 1979) 22

Ideal Structures Corp. v. Levine Huntsville Develop.
Corp., 396 F. 2d 917, 921-924 (5 Cir. 1968) 2. 16

Louisiana v. Mississippi, 384 U. 8. 24 (1966) 11, 17, 23
Mason v. American Emery Wheel Works, 241 F.

2d 906 (1 Cir. 1957) 16
Moore v. [Illinois Central Railroad Co., 312 U. S.
630, 633 (1941) 15

Mullaney v. Wilbur, 421 U. S. 684, 691-692 (1975)._...15, 16
Nebraska v. Iowa, 143 U. S. 359 (1892).......... 12, 138, 23, 24, 25
Nebraska v. Iowa, 406 U.S. 117 (1972) 25

iv
CITATIONS—Continued

Pages

New..Orleans v. United States, 35 U. S. (10 Pet.)
662, 717 (1836) 20

Nolan v. Transocean Air Lines. 365 U. S. 293 (1961) 15
Oregon v. Corvallis Sand and Gravel Co., 429 U. S.

363, 381 (1977) . 18, 21
Omaha Indian Tribe v. Wilson, 575 F. 2d 620 (8
Cir. 1978) 2
Omaha Indian Tribe v. Wilson, 614 F. 2d 1153
(8 Cir. 1980) 2
Oregon v. Corvallis Sand and Gravel Company,
429 U.S. 363, 378-381 (1977) 18, 19
Passwaters v. General Motors Corp., 454 F. 2d
1270 (8 Cir. 1972) 21
Peterson v. Morton, 465 F. Supp. 986 (D. Nev.
1979) ..... 13, 17
Putnam v. Erie City Manufacturing Company, 338
F, 2d 911, 919 (5 Cir. 1964) ....... 17
Soo Line R. Co. v. Fruehauf Corp., 547 F. 2d 1365,
1373 (8 Cir. 1977) = 21
State v. Eklund, 147 Neb. 508, 23 N. W. 2d 782, 789
(1946) _ ......... s . 17

Uhlhorn v. U. S. Gypsum Co., 366 F. 2d 211 (8
Cir. 1966), cert. denied, 385 U. S. 1026 (1967) ..... 10, 16

United States v. Wilson, 433 F. Supp. 57 and 433
F. Supp. 67 .... 1,2

Vv

CITATIONS—Continued
Pages

Veatch v. White, 23 F. 2d 69 (9 Cir. 1927) 0. 10
West v. American Tel. & Tel. Co., 311 U. S.

223, 236 (1940) 15
Wiggenhorn v. Kountz, 23 Neb. 690, 37 N. W. 603

(1888) 17,18
Wilson v. Omaha Indian Tribe, 442 U. S. 653, 99 S.

Ct. 2529, 61 L. Ed. 2d 153 (1979) 2, 3,9
Wiltse v. Bolton, 1382 Neb. 354, 272 N. W. 197

(1937) 15, 16, 17,18
Winkle v. Mitera, 195 Neb. 821, 241 N. W. 2d 329,

332 (1976) ; 20
STATUTES:
28 U.S. C. § 1254(1) 2
28 U. S. C. $§ 1331, 1345, and 1362 5
25 U.S.C. § 194 6, 7,8
Text:

Thomas, The Erosion of Erie in the Federal Courts:
Is State Law Losing Ground?, 1977 Brigham Young
U. L. Rev. 1, 13 (1977) 22

Note, Federal Interpretation of State Law—An
Argument for Expanded Scope of Inquiry, 53
Minn. L. Rev. 806, 819-820 (1969) 22

Note, The Ascertainment of State Law in a Federal
Diversity Case, 40 Ind. L. J. 541, 555-560 (1965)... 22 |

vi

CITATIONS—Continued
Pages

Comment, Land Accretion and Avulsion: The Battle
of Blackbird Bend, 56 Neb. L. Rev. 814, 829-830
(1977) 24

CoNSTITUTION :

U. S. Constitution, Amendment V, Due Process
Clause 4

In The

Supreme Court of the United States
October Term, 1979

ny
Vv

Ree

State of Iowa, State Conservation Commission of the

State of Iowa,
Petitioners,

Roy Tibbals Wilson, Charles E. Lakin, Florence Lakin,

R.G.P. Ineorporated, Darrell L., Harold, Harold M. and

Luea Sorensen, Harold Jackson, Otis Peterson and
Travelers Insurance Company,

Respondents (Petitioners on Separate Petitions),

vs.
Omaha Indian Tribe and United States of America,
Respondents.
—o

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

fy
Vv

Petitioners State of Iowa and State Conservation
Commission of the State of Iowa respectfully pray that
a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Iighth Cireuit rendered on remand from this Court on
January 15, 1980.

ra’
Vv

OPINIONS BELOW AND OF THIS COURT

The memorandum opinion and the findings of fact
and conclusions of law of the District Court for the
Northern District of Iowa are reported in United States

v. Wilson, 433 F.Supp. 57 and 433 F.Supp. 67 respec-
tively and are reproduced in Appendix B (findings at
page 1 and conclusions at p. 51) (hereinafter “App. B’”’)
and Appendix C (memorandum opinion) (hereinafter
“App. C”) to the previous petition for certiorari filed
in this case by Wilson et al. (No. 78-160). The opinion
of the Court of Appeals for the Eighth Circuit on appeal
is reported as Omaha Indian Tribe v. Wilson, 575 F. 2d
620 (8 Cir. 1978), and is reproduced as Appendix A (here-
inafter “App. A”) to the previous petition for certiorari.

The opinion of this Court, dated June 20, 1979, upon
certiorari to the Eighth Circuit, is reported as Wilson v.
Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61
L. Ed. 2d 153 (1979), and is reproduced at page 2 of the
appendix separately presented to this Court with the
petition for certiorari of Petitioners Wilson et al, which
appendix is hereby adopted as the appendix to this pe-
tition. The opinion of the Court of Appeals for the
Eighth Circuit, on remand from this Court, is reported
as Omaha Indian Tribe v. Wilson, 614 F. 2d 1153 (8 Cir.
1980) and is reproduced at page 31 of the appendix.

co)

JURISDICTION

The Court of Appeals for the Eighth Circuit entered
its judgment on remand on January 15, 1980. A timely
petition for rehearing en banc was denied on February
8, 1980. This petition for certiorari is being filed within
ninety days of that date. This Court has jurisdiction
under 28 U.S.C. $1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the decision of the Court of Appeals is
inconsistent with the mandate of this Court in Wilson v.
Omaha Indian Tribe, 442 U. S. 653 (1979), that the gov-
erning rule of decision in this case is Nebraska law.

2. Whether the Court of Appeals erred in deter-
mining that Nebraska’s common law rules of property
differ from those pronounced by the Nebraska Supreme
Court.

This question includes the following specific ques-
tions:

(a) Whether a federal court may, when determin-
ing state property law, reject state court precedent de-
fining accretion and avulsion not because of subsequent
events providing persuasive evidence that the state court
would modify its decision but because all parties there
seeking to quiet title claimed ownership by accretion.

(b) Whether a federal court may predict a change
in state law without stating reasons for finding subse-
quent clear and persuasive indication that earlier pro-
nouncements would be modified by the state’s highest
court.

(c) Whether a federal court may exercise its inde-
pendent judgment on a question of state property law
without first finding that there are no relevant state
policies or state methodologies to guide the court in pre-
dicting the result in the state’s highest court.

(d) Whether a federal court may predict that a
state court would significantly alter vested property rights

4

and require additional elements of proof to establish such
property rights.

(e) Whether a federal court may predict that a
state court will rely on certain federal decisions to de-
velop common law principles contrary to decisions of the
United States Supreme Court.

3. Whether the Court of Appeals relied on an er-
roneous view of the federal and common law of accre-
tion and avulsion as the basis for determining Nebraska
law.

4. Whether the Court of Appeals erred in giving
Petitioners inadequate opportunity to present their views
on remand from this Court.

£).
Vv

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Amendment V of the Constitution of the United
States provides, in pertinent part:

“No person shall . . . be deprived of life, liberty,
or property, without due process of law...”

ra’
7 ae

STATEMENT OF THE CASE

The State of Iowa and the State Conservation Com-
mission seek review of a decision of the Eighth Circuit
Court of Appeals issued on remand from this Court. This
decision again reversed a judgment of the District Court
quieting title in the State and other defendants to 2900

acres of Iowa land claimed by the Omaha Indian Tribe
and the United States as Trustee for the Tribe. The
Court of Appeals panel concluded that the District Court
had erroneously determined the Nebraska law defining
accretion and avulsion.

The Tribe claims title to some 6000 acres on the Iowa
side of the Missouri River in the Blackbird Bend area
and about 5000 additional acres on other bends to the
north of Blackbird Bend on the theory that such land was
cut off from the reservation by avulsive movements of
the river from 1875 on. The Tribe also seeks damages
of $50,000,000 for trespass (App. B 7-8). The complaints
of the Tribe and the United States invoked the jurisdic-
tion of the District Court under 28 U.S.C. §§ 1331, 1345,
and 1362. The issues relating to ownership of this 2900-
acre tract of land within the 1867 Barrett Survey were
separated for trial! The other claims remain to be
tried after resolution of this action.

The Tribe had not been in possession of this land
since at least 1912 (App. B 48). By summary judgment
defendants were precluded from raising affirmative de-
fenses such as adverse possession or statutes of limita-
tions (App. B 9). The Tribe seized possession of the
land in 1975 and has been allowed to remain in posses-
sion pending the outcome of the suit (App. B 4-5).

The Tribe basically claims that whenever the river
moved away from the reservation teward the easterly

'The Barrett Survey line is not the original location of the
river boundary established by the Treaty of 1854 since the riv-
er moved eastward between 1854 and 1867. (App. B 8)

6

and northerly high banks it moved by erosion, thus caus-
ing the Tribe to gain as accretion approximately 8000
acres, but that whenever the river moved to the west or
south, it did so by jumping from one channel to another
(App. B 42). The Tribe claimed that these alleged
“jumps” of the channel were avulsions which do not af-
fect boundaries.

After 21 days of trial, the District Court, applying
Nebraska law, quieted title in the defendants. The Dis-
trict Court not only found no substantial evidence of
identifiable land to support the claimed avulsions (App.
B 49-50) but also found that defendants had proved by
a preponderance of the evidence that the lands formerly
in the Barrett Survey had washed away during the crit-
ical periods and that sediment was deposited as accretion
to the Iowa shore (App. B 52-53).

On appeal the Eighth Circuit Court of Appeals de-
termined that federal law should apply and concluded
that under federal law the sudden shift of a channel over
submerged lan in the river bed constituted an avulsion
even though the land was not identifiable after the change.
The Court of Appeals also determined that 25 U.S.C.
§194 imposed the burden of proof on all the defendants
as “white persons” in a quiet title dispute with an Indian
Tribe. The Court of Appeals concluded that the Iowa
landowners had failed to meet this burden of proof given
the broader definition of avulsion under federal law (App.
A 65).

This Court granted certiorari and, noting serious
disagreement with the Court of Appeals, vacated its judg-
ment on two grounds. First, this Court held that the

federal court should borrow Nebraska law to protect the
significant local interests involved. Second, this Court
determined that, although 25 U.S.C. ¢ 194 imposed the
burden of persuasion on the individual Iowa claimants,
it was inapplicable to the State of Iowa. The cause was
remanded to the Court of Appeals to determine whether
the District Court correctly interpreted Nebraska law and
whether the District Court had properly applied that law
to the facts (App. 28).

Following remand, the Court of Appeals limited all
supplemental briefs to ten pages, required that all briefs
be simultaneously filed, and expressly precluded the filing
of responsive briefs. The Defendants’ motion for addi-
tional briefing and argument was overruled.

The Court of Appeals concluded that Nebraska law
follows the principles perceived by it in its first opinion
(App. 36) and held that the District Court erred in con-
cluding that a sudden movement of a channel without
evidence of identifiable land in place was accretive (App.
42). The Court rejected the contrary holding in Conkey
v. Knudsen, 143 Neb. 5, 8 N. W. 2d 588 (1943), relied on
by the District Court, by explaining “. .. the decision
does not, we feel, represent a departure from the basic
common law definitions. It may be better explained by
the fact that no party pleaded avulsion. ...” (App. 42,
n. 7).

The Nebraska cases indicate Nebraska follows the
basic common law principle: avulsion occurs when
there is a sudden and rapid change of the channel,
within or without the bed of a stream, whether or
not intervening land is submerged during a sudden
flood.

(App. 41). The Court of Appeals also held that Nebraska
law requires for accretion affirmative proof that the land
between the old and new channels “be completely disinte-
grated” and that the deposit of soil be gradual and im-
perceptible (App. 39).

Even if the District Court’s view of Nebraska law
were applied, the Court of Appeals held that the individ-
ual landowners failed to meet the burden of proof im-
posed by 25 U.S.C. $194 since there was evidence the
land in question “could be” the same land described by
Barrett in 1867. The Court recognized that the evidence
of avulsive change “does not equally balance defendants’
proof, but rather points to the speculative and conjec-
tural nature of any conclusions drawn from the evidence.”
(App. 46-47). The Court quieted title in the Tribe as
against the individual Iowa titleholders.

The Court decided that, since the State of Iowa was
not subject to the burden of proof imposed by 25 U.S.C.
§ 194, its ease was remanded to the District Court to allow
the Tribe an opportunity to point out the evidence it re-
lied upon to show avulsion on the land claimed by the
State (App. 47-48).

Petitioners and the other Iowa landowners filed pe-
titions for rehearing en banc, all of which were denied.

2

REASONS FOR GRANTING THE WRIT

I. The decision of the Court of Appeals on remand
is inconsistent with the mandate of this court in Wilson v.
Omaha Indian Tribe, 442 U. S. 653 (1979).

The decision of the Court of Appeals is inconsistent
with the mandate of this Court in Wilson v. Omaha Indian
Tribe (App. 19-24) that state property law should pro-
vide the governing principles in this case. The Court of
Appeals used the same method of analysis rejected by
this Court in Wilson; it assumed that “basic common law
principles” should be followed. The Court ignored con-
trary precedent, the stated policies, and the judicial meth-
odology of Nebraska in defining that state’s property law.
The result was that it used the same federal cases to
reach the same result as in its previous decision reversed
by this Court.

If the Court of Appeals is free to redefine state
property law, this Court’s decision in Wilson becomes an
empty gesture. The failure to follow state law defeats
the states’ significant interest in application of their
real property law as surely as does application of fed-
eral law; such failure also defeats the states’ interest in
preserving the authority of state courts to finally deter-
mine state law and also unsettles the laws of the states.

This Court has plenary power to review the decisions
of lower courts to determine whether such are consistent
with its mandate. See, Cascade Natural Gas Corporation
v. El Paso Natural Gas Co., 386 U. 8. 129 (1967); Conti-
nental Insurance Co. v. United States, 259 U. S. 156, 166
(1922). That power should be exercised in this case.

10

II. The Court of Appeals’ construction of federal law
as a source of state law is inconsistent with decisions of
this court and of the Ninth Circuit.

In its first decision, the Court of Appeals held that
the federal common law of accretion and avulsion was
broader than the Nebraska law applied by the District
Court. The Court primarily relied on two federal de-
cisions involving interstate boundaries, Veatch v. White,
23 F. 2d 69 (9 Cir. 1927), and Uhlhorn v. U. S. Gypsum
Co., 366 F. 2d 211 (8 Cir. 1966), cert. denied, 385 U. S.
1026 (1967), in concluding that “the sudden, perceptible
change of the channel, whether within or without the riv-
és original bed, is a critical factor in defining an avul-
sion.” (App. A 38). This Court denied certiorari on the
question whether the Court of Appeals had erroneously
determined federal law but reversed the Court of Appeals
by holding that Nebraska property law should be bor-
rowed as the rule of decision. On remand, the Court of
Appeals adopted the view that Nebraska law was iden-
tical to the federal rule previously pronounced? (App. 36).

The basic analysis used by the Court of Appeals on
remand was that Nebraska courts had primarily relied
on federal cases to ascertain the basic common law prin-
ciples of accretion and avulsion (App. 36-38). The cases
previously used to determine the federal common law
are the only holdings cited to establish the “basic com-
mon law principles” that a sudden change of channel
within a bed is an avulsion even absent identifiable land
(App. 42-43, n. 8; App. A 32-34). The Court of Appeals’

2The Government’s theory in the original appeal was that
this “thalweg rule” applied to sovereign boundaries and dif-
fered from either avulsion or the island rule. (Brief on Appeal
to Eighth Circuit Court of Appeals, p. 9)

11

construction of Nebraska law is based on a view of
tederal law which is contrary to the prior pronounce-
ments of this Court and is therefore unlikely to be fol-
lowed by the Nebraska Supreme Court.

The Court of Appeals rejected the District ‘Court’s
conclusion that avulsion occurs only when a sudden shift
in the river channel cuts off land “so that after the shift
it remains identifiable as land which existed before the
change of the channel and which never became a part
of the river bed” (App. B 14). Instead, the Court of
Appeals held that the avulsion rule encompassed broader
parameters and principally decided that avulsion could
occur within the bed of a river without any identifiable
land remaining in place, thereby eliminating the only
clear criteria of avulsion—that it be visible, perceptible,
and arise from a known cause.

The expansion of the avulsion rule in this manner
was expressly rejected by this Court in Louisiana v. Mis-
sissippi as the Report of the Special Master, affirmed
in all particulars by this Court, 384 U.S. 24 (1966), states
at page 20:

- we have been unable to find any case, with
facts similar to the instant case, in which an avul-
sion has been found by the Court where the river
remains in the same bed of the stream. In all such
cases the new channel was formed when the river
“suddenly leaves its old bed and forms a new one.
‘ ” Arkansas v. Tennessee, 246 U.S. 158, 173.
Unless suddenness and perceptibility are not then
clearly established, the general rule [accretion] must
be applied.

The Court of Appeals’ decision that avulsion re-
quires only the showing of a sudden change in the river

12

channel (App. 41) was rejected by this Court in Nebraska
v. Iowa, 143 U.S. 359 (1892), which has been consistently
followed by Nebraska courts. This Court there held
that the rapidity of change on the Missouri River did
not affect the applicability of the principle of accretion.
143 U.S. at 368-369. In discussing why, the Court em-
phasized that such changes did not leave identifiable land
in place:

Notwithstanding this, two things must be borne in
mind... that, while there may be an instantane-
ous and obvious dropping into the river of quite a
portion of its banks, such portion is not carried down
the stream as a solid and compact mass, but dis-
integrates and separates into particles of earth borne
onward by the flowing water, and giving to the
stream that color which, in the history of the country,
has made it known as the “muddy” Missouri; and,
also, that while the disappearance, by reason of this
process, of a mass of bank may be sudden and ob-
vious, there is no transfer of such a solid body of
earth to the opposite shore, or anything like an in-
stantaneous and visible creation of a bank on that
shore.

143 U.S. at 369. The definition of avulsion provided
by Nebraska v. Iowa also emphasizes identifiable land:

. in the very uncommon case called avulsion,
when the violence of the stream separates a con-
siderable part from one piece of land and joins it
to another, but in such manner that it can still be
identified, the property of the soil so removed natu-
rally continues vested in its former owner.

143 U.S. at 366 (quoting Vattel).

The Court of Appeals’ decision totally ignores the
geological characteristics and history of movement of the
Missouri River which were of great importance to this

13

Court in Nebraska v. Iowa and in essence makes avulsion
the controlling rule on navigable rivers rather than an
exception to the general rule of accretion. Its conclusion
that persons claiming accretion must affirmatively prove
that sedimentation is gradual ignores this Court’s find-
ing in Nebraska v. Iowa 143 U.S. at 369, that, on the
Missouri River, “There is, no matter how rapid the
process of subtraction or addition, no detachment of
earth from one side and deposit of the same upon other.”

The Eighth Circuit’s definition of avulsion conflicts
in principle with the position of the Ninth Circuit Court
of Appeals. This conflict is most clearly shown by Peter-
son v. Morton, 465 F.Supp. 986 (D. Nev. 1979), applying
Beaver v. United States, 350 F.2d 4, 6-7, 10-12 (9 Cir.
1965), which emphasizes the importance of identifiable
land. In Peterson, the United States claimed as accre-
tion land which had been submerged. 465 F. Supp. at 988.
The Court found that the Colorado River had annually
and repeatedly cut new channels within the bed, 465
F.Supp. at 992, but held, “This Court excludes as not
significant any and all avulsive movements of the river
that may have occurred within the river’s modern ordi-
nary high water marks, that is, within the bed of the
river itself.” 465 F.Supp. at 995. The Peterson case
not only reveals that the Court of Appeals’ views are not
settled “basic common law principles”, but it also graphi-
cally illustrates the practical difficulty of these views.
Within the bends of many rivers, like the Colorado or
the Missouri, there may have been frequent sudden shifts
of channel, combined with many slower movements of
the channel. Deletion of the traditional criteria of avul-
sion (identifiable land, perceptible change, seeking of a

14

new bed) would make the determination of river bound-
aries almost impossible.’

III. The Court of Appeals decided the Nebraska law
of accretion and avulsion, which involve important state
questions, in conflict with Nebraska law.

IV. The method used by the Court of Appeals to
predict Nebraska law violates the authority of state courts
and is inconsistent with decisions of this court and other
circuit courts.

The Court of Appeals wrongly rejected binding state
precedent when it refused to follow Conkey v. Knudsen,
143 Neb. 5, 8 N. W. 2d 538 (1948), vacating 141 Neb. 517,
4 N.W. 2d 290 (1942), although the Court of Appeals
recognized this case “held movement which occurred dur-
ing a single high water period caused by an ice jam was
accretive ...” (App. 42, n. 7). Conkey II is squarely
contrary since it held that a sudden one-mile movement
of the Missouri River channel, absent proof of identifi-
able land in place, was accretive and not avulsive. Al-
though one seeking to quiet title must prove the strength
of his own title, the Court of Appeals refused to apply
this Nebraska Supreme Court holding on point, stating:

. . . the decision does not, we feel, represent a de-

parture from the basic common law definitions. It

may be better explained by the fact that no party

pleaded avulsion, as none had title to the land in
question if the old channel remained as the bound-

ary.
(App. 42, n. 7).

5The Court of Appeals’ conclusion in this case that all of the
evidence presented at trial (expert and lay testimony and al-
most 500 exhibits) was speculative and conjectural graphically
illustrates the difficulties created by broadening the traditional
definition of avulsion. (App. 45-46)

15

The Court of Appeals totally ignored other contrary
Nebraska cases relied upon by the District Court and
cited by Petitioners, such as Wiltse v. Bolton, 132 Neb.
354, 272 N. W. 197 (1937), which held “... the action of
the river in the spring of 1908 was not an avulsion, but
the shifting of the main channel from the east to the
west side of the river bed...” Although the Court
recognized that Nebraska cases emphasize identifiable
land in place in defining avulsion, the Court of Appeals
determined that identifiable land was not a necessary
element of avulsion under Nebraska law (App. 42-43, n.
8; App. A 31, n. 30).

The ultimate authority of state courts on questions
of state law prevents federal courts from questioning the
bases of their decisions.* Mullaney v. Wilbur, 421 U.S.
684, 691-692 (1975); Moore v. Illinois Central Railroad
Co., 312 U.S. 630, 633 (1941). Federal courts may refuse
to apply state precedent only where subsequent state
decisions or legislative action provide clear and persua-
sive evidence that the state itself is changing its view.
Bernhardt v. Polygraphic Company of America, 350 U.S.
198, 204-205 (1956); Nolan v. Transocean Air Lines, 365
U.S. 293 (1961); West v. American Tel. & Tel. Co., 311
U.S. 223, 236 (1940).

Although other Circuit cases have held that a state
supreme court decision need not be expressly overruled
to lose its binding authority as defining state law, those
holdings are based on findings of persuasive intrastate
evidence that the state court is prepared to reconsider

‘Nor is a federal court free to reject considered dictum of
state courts. Hawks v. Hamill, 288 U. S. 52, 59 (1933).

16

the question. Such cases examine the law of other juris-
dictions to find evidence of a subsequent significant trend
in the law. See, e.g., Mason v. American Emery Wheel
Works, 241 F. 2d 906 (1 Cir. 1957) (predicting overrul-
ing of 1928 Mississippi Supreme Court decision that a
manufacturer owed no duty absent privity of contract).
This prediction method respects the dual sovereignty of
state and federal courts by requiring persuasive evidence
of subsequent change from intrastate sources while still
allowing federal courts to avoid blind adherence to
ancient, subsequently discredited precedent. See, Ideal
Structures Corp. v. Levine Huntsville Develop. Corp., 396
F’, 2d 917, 921-924 (5 Cir. 1968).

In explaining away Conkey v. Knudsen as merely an
explainable departure from basic common law principles,
the Court of Appeals has implicitly held that it may
weigh the degree of authority to be given to a state su-
preme court decision. This is contrary to Mullaney v.
Wilbur, 421 U.S. 684, 690-691 (1975), in which this Court
felt itself bound by a Maine Supreme Court decision
despite the argument that the state law determination
was a mere subterfuge to avoid federal constitutional
issues.

Almost all of the “submerged land” cases relied upon
by the Court of Appeals to establish that identifiable land
in place is not required for avulsion were decided prior
to Conkey II (1942) and Wiltse v. Bolton (1937) (App.
A 32-33, n. 32, incorporated at App. 42-43, n. 8). Only
Uhlhorn v. United States Gypsum Co., 366 F. 2d 211 (8
Cir. 1966), cert. denied, 385 U.S. 1026 (1967), was de-
cided after Conkey II, and Uhihorn specifically found that
the submerged land was identifiable. 366 F. 2d at 219-

17

220. The Court of Appeals could not properly use ex-
trastate sources to predict a change where there is not
an overwhelming trend in the law in that direction. Com-
pare Ideal Structures, supra, 396 F. 2d at 924, with Put-
nam v. Erie City Manufacturing Company, 338 F. 2d 911,
919 (5 Cir. 1964). No such trend supports the predic-
tions of Nebraska law made by the Court of Appeals.
Louisiana v. Mississippi and Peterson v. Morton, dis-
cussed at pp. 11-14, supra, graphically illustrate that the
concept that avulsion can occur within the river bed is
not a “basic common law principle.”

There are no subsequent indications by the Nebraska
courts which call Conkey IJ and Wiltse into question.
State v. Ecklund, 147 Neb. 508, 23 N.W. 2d 782, 789
(1946), the case primarily relied on by the Court of Ap-
peals as showing that avulsion can occur within the river
bed (App. 39), is clearly an application of the “island
rule”* rather than the definition of avulsion. Not only
did that case involve land which had “relicted” or become
fast land prior to the shift of the main current around
intervening Ware Island but also the court cites its defi-
nition of the island rule as the basis of decision. If
Ecklund were not an island rule case, its finding that
the boundary remained the same despite the gradual
change in channel would mean that suddenness, the pri-
mary criterion for avulsion according to the Court of
Appeals, was also not required for avulsion.

The Court of Appeals cites Wiggenhorn v. Kountz, 23
Neb. 690, 37 N. W. 603 (1888), decided long before Conkey

5This ‘so-called exception to accretion” is described in Ore-
gon v. Corvallis Sand and Gravel Company, 429 U. S. 363, 367,
n. 2 (1977), and is a different theory than avulsion. /d.

18

II and Wiltse, for the proposition that erosion is not
sufficient to establish accretion if land is suddenly formed
(App. 39-40, n. 5). This case assumed as a matter of
fact that traceable land was washed from one end of
an island to the other and held that such would consti-
tute an avulsion. Wiggenhorn was decided before Ne-
braska v. Iowa; subsequently rapidity of change was
expressly denied as the criterion for avulsion in Bouvier
v. Stricklett, 40 Neb. 792, 59 N. W. 550, 552-554 (1894).
Additionally, Wiggenhorn held such soil belonged to its
original owner only if it had not remained “until it ce-
ments and coalesces with the soil of the second owner,
in which case the property in the soil will be changed,
and no right to reclaim it remains.” 37 N.W. at 605.
Since the claimed avulsions here occurred from 1875 to
1923, Wiggenhorn would preclude recovery by the Tribe
today.

The Nebraska court has never, in its many river
boundary cases, decided that avulsion can occur within
the bed, that avulsion can occur without proof of identi-
fiable land, that an avulsion can occur where sand bars
are submerged during a channel change in a sudden flood,
or that one claiming accretion must prove that the land
be totally destroyed. Nor does any Nebraska case sup-
port the Court of Appeals’ determination that the District
Court could not properly find accretion on the basis of
the extensive evidence presented by the Iowa claimants.

These drastic alterations of riparian rights are be-
yond the power of a federal court even absent contrary
binding precedent. It is for state courts, not federal
courts, to determine whether to modify rules of prop-
erty. See, Oregon v. Corvallis Sand and Gravel Company,

19

429 U. S. 363, 378-381 (1977). Even if Nebraska law were
uncertain there must be persuasive evidence that the
Nebraska court would reach the same result; otherwise,
litigants will obtain different results in federal courts
than in state courts. See, Erie R. R. v. Tompkins, 304 U.
S. 64 (1938); Guaranty Trust Co. v. York, 326 U. S. 99
(1945).

In case of uncertainty as to Nebraska law, other cir-
cuits require the federal court to look to related Nebraska
cases which provide state policy preferences, Becker v.
Interstate Properties, 569 F. 2d 1203, 1205-1206 (3 Cir.
1977), and which illustrate the judicial methodology of
the Nebraska Supreme Court. First National Infe Ins.
Co. v. Fid. & Dep. Co. of Md., 525 F. 2d 966, 968 (5 Cir.
1976). In its first opinion, the Cireuit Court concluded
that federal interests required application of federal law
and then stated:

When weighed with the significant policy considera-
tions involved, we hold that, under governing prin-
ciples, the critical determinant of avulsion is a sud-
den perceptible shift of the channel.
(App. A 38). After this Court determined on appeal
that federal interests did not outweigh the interests em-
bodied in state law, the Court of Appeals made no eifort
to determine the state policies involved.

The Nebraska Supreme Court has held that the ri-
parian right to alluvion is a vested right which rests on
natural law principles. Gill v. Lydick, 40 Neb. 508, 59
N. W. 104, 105 (1894).

No other rule can be applied on just principles. Ev-
ery proprietor whose land is thus bounded is subject
to loss by the same means which may add to his ter-

20

ritory; and, as he is without remedy for his loss in
this way, he cannot be held accountable for his gain.°

Frank v. Smith, 138 Neb. 382, 293 N. W. 329, 335 (1940),
quoting New Orleans v. United States, 35 U. S. (10 Pet.)
662, 717 (1836).

The Circuit Court apparently determined that con-
tinued ownership of an area “under the sky” or as de-
fined by metes and bounds outweighs riparian claims to
alluvion and access to the river. Nebraska law, to the
contrary, prefers riparian rights as shown by its rejec-
tion of the doctrine of re-emergence; in Nebraska, owner-
ship of land is lost if it is submerged so that another’s
land becomes riparian. Winkle v. Mitera, 195 Neb. 821,
241 N. W. 2d 329, 332 (1976). Nebraska’s preference for
riparian ownership as opposed to title prior to submerg-
ence militates a contrary result on the issues of state law
in this case.

This Court held in Day & Zimmoner, Inc. v. Challon-
er, 423 U. S. 3, 45 (1975) (per curiam), that a federal
court could not create new exceptions to state conflicts
rules:

. A federal court in a diversity case is not free
to engraft onto those state rules exceptions or mod-
ifications which may commend themselves to the fed-

eral zourt, but which have not commended themselves
to the State in which the federal court sits.

Surely this principle of federal restraint in modifying
state conflicts rules should apply equally to state defini-

6In the cause remaining to be tried, plaintiffs seek to gain
8,000 acres by movement of the river as well as to claim this
area as land lost. It is unlikely that successors of the lowa
riparian owners could today recover lands gained by the Tribe
during those early years. The expansion of the avulsion rule
in this case thus results in a windfall to the plaintiffs.

21

tions of property rights, which are “particularly subject
to the principle of stare decisis”. Oregon v. Corvallis
Sand and Gravel Co., 429 U. S. 363, 381 (1977).

V. This court should exercise its supervisory juris-
diction over lower federal courts to prevent abuse of the
authority to decide questions of state law.

The viability of the power of federal courts to pre-
dict state law depends upon the use of proper analytical
methods which require the federal court to closely follow
state law. Otherwise there is great danger that courts
may manipulate sources to achieve a desired result. The
exercise of unfettered discretion interferes with the legiti-
mate interests of states in developing law suited to their
own unique circumstances and increases the danger of
unfair results to litigants sued in federal court.

Petitioners believe this decision illustrates the need
for this Court to exercise its supervisory jurisdiction over
the federal court system and provide guidance as to the
circumstances in which a federal court may look beyond
state authorities and independently define state property
law.

Although the Eighth Circuit has stated that a federal
court must apply the rule the state court would apply
even if no controlling state precedent exists, Soo Line R.
Co. v. Fruehauf Corp., 547 F. 2d 1365, 1373 (8 Cir. 1977),
the opinion in this case apparently follows those cases
which have held that, absent “binding precedent” or “con-
trolling state court decisions”, it may be guided by that
view of the law which in its opinion “provides the most
just and reasoned analysis”. Garrard v. Larsen, 517 F.
2d 1127, 1132 (8 Cir. 1975); Passwaters v. General Motors

22

Corp., 454 F. 2d 1270 (8 Cir. 1972); Holcomb Const. Co.,
Inc. v. Armstrong, 590 F. 2d 811, 813 (9 Cir. 1979). If
a federal court may also look behind state decisions to
reject them as “binding precedent”, it has almost unlimit-
ed discretion to independently decide issues of state law.

The failure to articulate and follow state authority
on questions of state law appears to be widespread. One
study of all appellate diversity opinions published dur-
ing 1972 concluded that twenty-three percent of all de-
cisions failed to properly articulate the state law basis
for decision. Thomas, The Erosion of Erie in the Federal
Courts: Is State Law Losing Ground?, 1977 Brigham
Young U. L. Rev. 1, 13 (1977). See also, Note, Federal
Interpretation of State Law—An Argument for Expanded
Scope of Inquiry, 53 Minn. L. Rev. 806, 819-820 (1969)
(study of Eighth Circuit); Note, The Ascertainment of
State Law in a Federal Diversity Case, 40 Ind. L. J. 541,
555-560 (1965).

The usual grounds for deference to lower courts’ de-
terminations of state law are not present. The under-
lying source of law is federal or common law. See, Car-
roll v. United States, 354 U.S. 394, 414, n. 34 (1957).
The District Judge reached a contrary result by relying
on Nebraska cases never distinguished by the Court of
Appeals panel. Furthermore, petitioners were never given
an adequate opportunity to respond to the novel con-
struction of Nebraska cases asserted by the United States
on remand.

The recognition by this Court in Bernhardt v. Poly-
graphic Company of America, 350 U.S. 198, 204-205
(1956), that federal courts have the ability to predict

23

changes in state law does not justify allowing federal
courts to substitute their view of the common law for
state court precedent defining that state’s property law.
The state law issues are of national significance since
many states have relied on Nebraska v. Iowa, supra. The
questions presented raise a number of interrelated issues
concerning the permissibility of the method of analysis
used by the Eighth Circuit panel to redefine Nebraska
property law. Since this Court does not have the re-
sources nor desire to engage in case-by-case analysis of
federal courts’ determination of state law, it is important
for this Court to establish parameters to limit the vast
discretion federal courts exercise on state law questions.
This ease is an appropriate vehicle for establishing such
parameters since grounds for deference do not exist, the
underlying basis for the decision is an erroneous view
of federal law with which this Court is familiar, and
methodological errors appear on the face of the opinion.
Furthermore, review of this case would allow this Court
to examine the method of determination of state prop-
erty law without fettering the ability of federal courts
to predict state law in those dynamic areas in which the
law is changing in response to changing social conditions.

VI. The decision of the Court of Appeals will have
significant adverse effect by unsettling land titles, en-
couraging forum shopping, and confusing application of
the Nebraska-Iowa boundary compact.

Since federal law was the primary source of the prin-
ciples adopted by the Court of Appeals, courts may re-
gard the case as defining the federal law, especially since
the Special Master’s Report in Louisiana v. Mississippi,
supra, is not generally reported. The case undermines

24

the status quo of riparian ownership as it is more likely,
as in this case, that the riparian owner will have used
and improved alluvial land than will have the landowner
across the river. Comment, Land Accretion and Avulsion:
The Battle of Blackbird Bend, 56 Neb. L. Rev. 814, 829-
830 (1977). The rules adopted will be difficult to apply
and will unsettle the law of those states following Ne-
braska v. Iowa, supra. Those claiming avulsion will liti-
gate these issues in federal court wherever possible. By
removing objective criteria for perceptibility of avulsion,
there remains little guidance for assessing whether a
river movement was accretive or avulsive. If identifiable
land is not required for avulsion, can one claim owner-
ship by avulsion to small strips of land on the opposing
shore, thus defeating the riparian landowner’s claim to
further accretion as well as to river access? When is
intervening land “completely disintegrated” so as to allow
a finding of accretion? Such questions will encourage
further litigation and appeals.

This decision immediately affects ownership of 2900
acres by the State of Iowa and Iowa landowners who
have farmed the lands in question for many years and
also substantially prejudices the pending damages claim
and the continued ownership of 8000 acres not located
within the original bounds of the reservation “under the
sky”. (The Tribe’s claim to some 3,000 acres within the
Blackbird Bend area will apparently be based on the
very same river movements involved in this case.) Where
the deprivation of such significant property interests is
based on the conjecture that the river may have suddenly
moved west in the bed of the river one hundred years
ago, due process surely requires at a minimum that the

25

parties have had full and complete opportunity to be
heard on the questions of law involved and that the de-
cision of the fact finder be accorded substantial weight.
These losses are particularly grievous when the Iowa land-
Owners were not only forced to defend difficult factual
issues regarding river movements of 100 years ago but
were also deprived of their property by laws never be-
fore applied to determine such disputes.

The effect of the decision on the State of Iowa
transcends its potential loss of wildlife habitat and recre-
ational areas and the loss of its citizens’ property. A
difficult dilemma is also presented by the State’s duty
to respect title good in Nebraska on the ceding date to
lands ceded by Nebraska under the N ebraska-Iowa Bound-
ary Compact of 1943. See Nebraska v. Iowa, 406 U.S.
117 (1972). The Iowa courts do not have the freedom
of the Nebraska courts to independently determine Ne-
braska law nor does Nebraska have a statutory procedure
to certify questions of state law. Litigants will assert
that Iowa’s courts must follow this decision as the most
recent statement of Nebraska law.

In conclusion, this case, although it ostensibly in-
volves only a question of state law, raises issues of great
significance. Expectations of property ownership through-
out the country are adversely affected both by the asser-
tion of federal authority to significantly alter state prop-
erty law and by the substantive determination which re-
defines the law developed in reliance on Nebraska v. I owa,
143 U.S. 359 (1892).

fo)

26

CONCLUSION

For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

THomas J. MILLER
Attorney General of Iowa

ELIzABETH M. OSENBAUGH
Assistant Attorney General

JoHN Patrick SAaRCONE
Assistant Attorney General

Counsel for Petitioners, State of
Iowa and State Conservation
Commission of the State of Iowa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2362%3A1. Public record. Not legal advice.