Petition — Harvey v. United States

(N THE

Supreme Court of the Gnited States

OcTOBER TERM, 1981

Iva May Harvey, a widow, et al.,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLoyp H. SHEBLEY WaLtace L. DuNcAN

19412 So. Henrici Road Caro. MAcKINNON

P.O. Box 346 DUNCAN, WEINBERG &

Oregon City, Oregon 97045 MiLLer, P.C.

(503) 631-7244 1775 Pennsylvania Avenue, N.W.

Suite 1200

Washington, D.C. 20006

(202) 467-6370

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

l. What body of law determines

ownership of land which (a) when con-

veyed by federal patent in 1914 was in

Arizona, (b) by 1930 was on the

California bank of the Colorado River,

the interstate boundary, but (c) re-

mained under the jurisdiction of Arizona

until 1966, when by an interstate boun-

dary compact Arizona relinquished con-

trol and transferred jurisdiction over

this parcel to California?

2. Assuming the court of appeals

was correct in choosing Arizona law to

determine ownership of this California

land, did it misinterpret the law of

Arizona?

» £8 «

3. Did the district judge err in

refusing to give a jury instruction

modeled after the then-controlling

federal doctrine of accretion.

4. Under what circumstances may

equitable defenses constitute a bar to

the United States asserting title to

lands which it claims are in the public

domain and defendants claim were

patented to their predecessors in

interest?

LIST OF PARTIES

This petition is submitted on

behalf of 162 individuals’ who have

i/ Their names are: Iva May Harvey;

Donald C. Allred and Bonnie L.

Allred; Barney Arntzen; Donna

Arntzen; Gaylord H. Arntzen; Willis

E. Baker and Georgia M. Baker;

Oscar J. Beem; Kenneth C. Bouck and

Dorothy B. Bouck; Donna J.

Brookins; George H. Brookins; Ralph

(Continued)

- iii -

been ejected from approximately 27 acres

W. Brookins and Blanche V.

Brookins; Robert R. Brookins and

Barbara I. Brookins; Robert Dean

Buckman; Wanda Lee Buckman;

Clarence H. Buzbee and Helen L.

Buzbee; Willard Dewey Calder;

Charlie Campbell and Mary Campbell;

James M. Carpenter and Helen M,

Carpenter; W.J. Carpenter and Naomi

R. Carpenter; Donald Carvalho and

Mabel Carvalho; Myron F. Cox and

Cecilia M. Cox; Evelyn H. Curry;

James ween Curry; Leo Denham and

Janice Denham; William de Yong and

Helen de Yong; Jack Diamond and

Frances Diamond; Don Dinsmore; Paul

J. Evans, Jr. and Ruth C. Evans;

Ray Allen Farmer and Lucille D.

Farmer; Charles W. Feemsteer and

Edna C. Feemsteer; Wilmer E. Foster

and La Rue Foster; Gerardine M.

George; Emil Matthew Haag and

Genevieve Haag; Joanne E. McLain;

Alice F. Harvey; Davonne F. Harvey;

Denzil P. Harvey; Donald G. Harvey

and Alice J. Harvey; Harvey,

Kindred E., the Estate of; Donald

E. Hausmann and Florence H.

Hausmann; Lloyd B. Henkel and Helen

C. Henkel; Ruby M. Holcomb; Ellis

Holcomb; Howell D. Holcomb and

Pauline E. Holcomb; Harvey J.

Howell and Beulah I. Howell;

Stewart Hubbard and Bonnie Dee

Hubbard; Lydia Hubbard; Thomas G.

(Continued)

- iv -

of land. Petitioners are defendants to

Hubbard; Harry J. Jacobsen and Myrl

Ann Jacobsen; Wallace M. Johnson

and Julia A. Johnson; Eugene Kaintz

and Sandy Kaintz; Leroy Kirkpatrick

and Mary E. Kirkpatrick; Phillip E.

Kirkpatrick and Josephine

Kirkpatrick; Clarence L. Knight,

Jr.; Lee Deane Products, Inc., a

California corporation; Frank E.

Lago and Ethel E. Lago; Donald C.

Lurk and Lavern C. Lurk; Karl

Richard Lust and Monte Jan Lust;

Steve J. McCoy; Jerome P.

McLaughlin and Joanne E.

McLaughlin; Verle W. McLaughlin and

Gwyneth McLaughlin; Penny Meredith;

Isla Mills; Harry E. Moore and

Wilma B. Moore; Lee Moore, Jr.;

Billy J. Nall; Chester H. Nall and

Laura V. Nall; Jennifer Nall;

Ernest H. Nelson and Gladys A.

Nelson; Doris Palmer; Charles P.

Patriquin and Florence A.

Patriquin; Cecile L. Patriquin;

Robert Hall; Gerald E. Patterson

and Judy D. Patterson; Anna L.

Peters; Paul G. Peterson and Elisa

E. Peterson; Anthony J. Polanis and

Helen L. Polanis; Michael F.

Rhoades; Mary Evelyn Rhodes; Peggy

Rhodes; Virgil Rhodes; William Earl

Rhodes; William P. Rhodes; Ami L.

Richardson and Velma Richardson;

Paul E. Richardson and Norma T.

Richardson; J. Linn Rodgers; Ralph

(Continued)

this action brought by the United States

of America.

R. Ross and Anna Mae Ross; Ronnie

Ruhs and Ruth Ruhs; Paula Rose

Schaller; Joseph L. Smith and

Dorothy B. Smith; Emma N. Snelling;

Donald F. Stafford and Frances S.

Stafford; Virgil D. Stiller and

Elizabeth A. Stiller; Parker E.

Stoner; James S. Thomas and Hilma

M. Thomas; James Trulove and Helen

E. Trulove; Robert W. Trulove and

Beverly J. Trulove; Joseph S. Ward;

Robert S. Ward and Marie E. Ward;

Dennis L. Warn; Buddy D. Wayman and

Frances M. Wayman; Henry E. West

and Carolyn K. West; Frank Whichter

and Mary Whitcher; Resil C.

Williams and Helen F. Williams;

Gaylerd Wiltfang and Collette

Wiltfang; Loretta Wiltfang; Robert

R. Worley and Shirley Worley;

Lester Wright and Jean L. Wright.

Names joined by the conjunction

"and" are persons sued as husband

and wife.

- vi -

TABLE OF CONTENTS

QUESTIONS PRESENTED.....+++++e+%

LIST OF PARTIES... -eeeeeeeeceees

TABLE OF CONTENTS....-eeeeeseees

TABLE OF AUTHORITIES.....-+eeee0>

REPORTED DECISIONS BELOW........

JURISDICTION... cecececeeeeeecees

STATUTES INVOLVED...--eeeeeeeees

STATEMENT OF THE CASE....+++++++

REASONS THAT A WRIT OF

CERTIORARI SHOULD ISSUE.......

I. THIS COURT SHOULD

RECTIFY THE APPLICATION

OF IMPROPER LEGAL STAN-

DARDS TO RESOLVE THE

QUESTION OF TITLE TO

THE PROPERTY... ..cccccccecsecs

A. ye Court's decision

n Wilson vs onane

ndian Tribe, -S.

555 (1979), does not

compel application

19

23

- vii -

of Arizona law in

this controversy...... 26

B. The circuit court's

interpretation of

Arizona law is con-

trary to the deci-

sions of the Arizona

Supreme Court.......+. 34

CG. The district court

did not instruct the

jury in accordance

with full federal

BM oceeesbesecséoeetoe 41

II. THE CONSIDERATIONS

SUPPORTING AN EQUITABLE

BAR TO AN EJECTMENT ACTION

BY THE UNITED STATES,

CONSTITUTE AN IMPORTANT

QUESTION WHICH HAS NOT

BEEN, AND SHOULD BE,

ADDRESSED BY THIS COURT,

PARTICULARLY WHERE THE

PERTINENT LEGAL PRINCIPLES

EVOLVING IN THE CIRCUIT

COURTS ARE CONTRARY TO

CONGRESSIONAL POLICY AND

SOUND PRINCIPLES OF

EQUITY, AND WHERE THE

UNGUIDED DECISION OF THE

COURT OF APPEALS RESULTS

IN MANIFEST INJUSTICE

TO INNOCENT PARTIES....ese% 46

Gees coeccececeosoesedeeee 64

- viii -

TABLE OF AUTHORITIES

Page

Federal Cases

Arkansas v. Tennessee, 246

U.S. 158 i <tadédaette 28, 32, 40

eaver v nited States,

356 F. 2a 4 (9th Cir. 1965),

cert. denied, 383 U.S. 937

‘Waidadssatvetececesscons Bp OC @

lli Cattle Co. v. Arizona,

reh. denied,

434 U. S. 1090 meets cccentiece passim

Federal Cr Insurance Corp.

Vv. Meret 332 U.S.

( dys thier an 62

Michigan Wisconsin Pipeline v.

Wiltians-NcWili lame 551 F.2d

945 (5th Cir. eS 48

Nebraska v. Iowa, 406 U.S.

7 ( Deabococccccesooososes 28, 29, 40

Oki v. : , 598 F.2d 1160

t * ly, PPPTrrTer+rrT+r+eTNse. 48

Oregon ex rel. state Land Board

v. Corva s Sa ravel Co.

. _ see eeeeeeee passim

Schroeder v. ty of New York,

7 . se ee eeeeeeee 62

- ix -

Schweiker v. Hansen, 450 U.S.

785, (per curies) reh. denied,

U.S. —, lol 5. Ct. 3023

i ctcntdectesensecsiens ee 47, 50

Semaan v. Mumford, 118 U.S.

App. D.C. 282, 335 F.2d

704 C29SSE) cccccecceceeseeoeces 50

United states v. Aranson, No.

- Pp Op., Cir.

March 30, "i981, withdrawn

April 17, yeas - 34, 39

United States v. Chandler-

Dunbar Water Power Co.,

209 U.S. 447 ee ao 53, 54

United States v. Diamond Coal

WOT once cececccee 36

United States v. Fox Lake

Ser Bank, 366 F.2d 962

r. SSS ccccescoceceose 50

United States Vv. eee

Pac c Co., F.

t Ee Cy) rr 57

United States v. Harvey, 661

F.2d 767 (9th Cir. co passim

United States v. Harvey, No.

77-2279, (9th Cir. March 10,

1982) (order denying

rehearing) ..ccecccsccccccesess 1

United States v. Lazy FC

Ranch, 481 F.2d 985 (9th

Cir. BOTED cocceeesoeesceoocoeoes 48, 57

United States v. Lucienne

D'Hotelle de Benitez

exach, ° (lst

Ee 1977) cccccccceccceeses 48

United States v. Moser,

U.S. ( Deccececeoees 49, 63

United States v. Ren Co.,

r.

° t

1978), cert. denied, 442

U.S. 917 th a tee ae seece 47, 48

United States v. Southern

acific Transportation Co.,

i F.20 1059 (Sth Cir.

ly, FPRPPTTTITITirrrer+es fT TTrresee 32, 33

United States v. Wharton,

514 F.2d 406 (9th Cir.

BOTS) cocceccceceeeseeeoceeeese 57, 58

United States v. Winona &

St. Peter Railroad Co.,

. . TTT. OT 52, 53

Wilson v. Omaha Indian

Tribe, 442 U.S. 653 (1979).... passim

- xi -

State Cases

City of Long Beach v. Mansell,

3 Cal. 3d 462, 91 Cal. Rptr.

23, 476 P.2d 423 (1970)....... 24

City of Los Angeles v.

ey 50e Cal. 662,

7 89 (1929) . cc ceccecccces 24

u O., a .

530, 5 Cal. Rptr. 618

CROSS ccocceseeceececeeseeeese 39

State v. Bonelli Cattle Co

(1971) "att a’ OL ha

, a on reharing,

108 Ariz. 258, 495 P.2a 1312

(1972), rev'd, 414 U.S. 313

0) ) RS -35, 36, 37, 38

State v. Gunther & Shirle

Co., 5 Ariz. App. 77, 133

P.2a 352 CASS re Pecececeeeeeeececs 35

State v. Jacob, 93 Ariz.

, a a 998 (1963) ...66- 35

State v. Superior Court

(Fogerty). 29 Cal. 3d 240,

al. Rptr. 713, 625 P.2d

256, cert. denied, 50

U.S.L.W. 3248, reh.

denied, 50 U.S.L.W. 3448

T1981)

eee eeeeeeeeeeeeeeeeeeeee 24

- xii -

Federal Laws

U.S. CONST. art. IV, § 3,

cl. Becccccceeeeeceeeeseseeese

28 U.S.C. § 1254(1) (1976)......

28 U.S.C. § 1345 (1976)...-eeee

28 U.S.C. § 2409a (1972)...-000.

43 U.S.C. § 772 (1976) ...eeeeees

43 U.S.C. § 1068 (1976).....+4-

43 U.S.C. § 1166 (1976)....ee0e-

Interstate Compact Defining

the Boundary Between the

States of Arizona and

California, Pub. L. No.

89-531, art. I, 80 Stat. 340

CBOE P ooceseecesooeeeseeseeese

Act of Oct. 23, 1970, Pub.

L. No. 91-505, 84 Stat.

BBOSe cocesoeceeeeseeseececeeee

State Laws

ARIZ. REV. STAT. ANN.

§§ 41-522 (West 1974) wc cccccce

1963 Ariz. Sess. Laws, ch.

77, § Bocecoceeseocceesesoeeees

GB Sceoccoseeseececeeeeeeese

passim

4, 30

- xiii -

1963 Cai. Stat., ch. 859

§ PPT TT TTT Terri rTrrirrrreTTe 3

i PPPTeUrrreseeeerresterrrir?ree 4, 30

CAL. CIV. CODE § 1014

(Deering BOT ad ccececoececcceces 4, 34

CAL. GOV'T CODE (Deering 1973)

© Bemeetbeodsess ebb doetoceseecese 4

§ >, MPT TTTTrrerrrrrrrrrrere 3

Other Authority

RESTATEMENT (SECOND) CONFLICT

OF LAWS § 6 CASTE cocececesese 34

sii«

REPORTED DECISIONS BELOW

The opinion of the court of appeals

is reported at 661 F.2d 767. The deci-

sions of the district court are unre-

ported.

JURISD..CTION

The decision of the court of ap-

peals was rendered on November 16,

1981. Petitioners timely sought re-

hearing; relief was denied by order

entered March 10, 1982. The jurisdic-

tion of this Court is invoked pursuant

to 28 U.S.C. § 1254(1) (1976).

STATUTES INVOLVED

The case involves the following

federal and state statutes:

(1) Real property quiet title

actions

(a) The United States

may be named as a party defen-

dant in a civil action under

this section to adjudicate a

disputed title to real proper-

ty in which the United States

claims an interest, other than

a security interest or water

rights. This section does not

apply to trust or restricted

Indian lands, nor does it

apply to or affect actions

which may be or could have

been brought under sections

1346, 1347, 1491, or 2410 or

this title, sections 7424,

7425, or 7426 of the Internal

Revenue Code of 1954, as

amended (26 U.S.C. 7424, 7425,

and 7426), or section 208 of

the Act of July 10, 1952 (43

U.S.C. 666).

28 U.S.C. § 2409a, Pub. L. No. 92-

562, § 3(a), 86 Stat. 1176 (1972).

(2)

PURPOSE

The boundary between the

States of Arizona and

California on the Colorado

River has become indefinite

and uncertain because of

meanderings in the main chan-

nel of the Colorado River with

the result that a state of

confusion exists as to the

true and correct location of

the boundary, and the enforce-

ment and administration of the

laws of the two states and of

the United States have been

rendered difficult.

The purpose of this compact is

to fix... the bovrndary line

between Arizona and California

on the Colorado River. ...

Interstate Compact Defining the Boundary

Between the States of Arizona and

California, Pub. L. No. 89-531, art. I,

80 Stat. 340 (1966); 1963 Ariz. Sess.

Laws, ch. 77 § 2; 1963 Cal. Stat. ch.

659 § 1 (codified at CAL. GOV'T CODE §

176 (Deering 1973).

(3) Preservation of Rights.

Nothing contained in the pro-

visions of this act, or any

operation thereof, shall prej-

udice the titles, rights or

Claims of any person, public or

private, natural or artificial,

to any of the lands herein

involved, whether such titles,

rights or claims arise or exist

upon the basis that the lands

affected by the designation of

boundary as set forth in the

compact and in this act were

previously a part of the State

of Arizona and have now become

a part of the State of

California, or were previously

a party of the State of

California and have now become

a party of the state of

Arizona, or otherwise; and no

person shall be prejudiced in

the water rights which he now

has by reason of anything

contained in this act.

Ariz. Sess. Laws ch. 77 § 5 (set out as

note to ARIZ. REV. STAT. ANN. § 41-522

(West 1974)); 1963 Cal. Stat., ch. 859 §

4 (set out as note to CAL. GOV'T CODE §§ |

175 (Deering 1973)).

(4) Alluvion

Where, from natural causes,

land forms by imperceptible

degrees on the bank of a river

Or stream, navigable or not

navigable, either by accumula-

tion of material or by the re-

cession of the stream, such

land belongs to the owner of

the bank, subject to any ex-

isting right of way over the

bank.

CAL. CIV. CODE § 1014 (Deering 1971).

STATEMENT OF THE CASE

This litigation involves 27 acres

of land subdivided into 96 lots known as

"Harvey's Fishing Hole". The acreage is

located in the Cibola Valley, on the

California bank of the Colorado River,

approximately 17 miles below Blythe,

California.

This property is part of a larger

area surveyed by the United States in

1902 and described by reference to the

. Gila and Salt River Meridian. In 1960,

the area was resurveyed; as then the

River lay to the south and not to the

north of the parcel, it has since been

described by reference to the San

Bernadino Meridian.

By federal patent dated January 13,

1914, President Woodrow Wilson conveyed

this and other lands to Mr. Cherry S.E.

Carlin. The parties stipulated to the

direct unbroken chain of title from Mr.

Carlin to Kindred and Iva May Harvey.

The Harveys purchased the disputed

acreage on November 10, 1952 from

Richard F. and Lillian M. Goulette, who

had hac title quieted in them by the

Arizona state courts.

The Cibola Valley is a broad

alluvial floodplain through which the

Colorado River has meandered for cen-

turies. Until closure of Hoover Dam in

1935, the River was wild and unpredict-

able. Devastating floods and rapid

channel changes were not uncommon.

Although in 1914 these 27 acres lay

south of the Colorado River, by 1935 the

River's course had changed so that the

land then lay north of the river. The

movement was substantially completed by

1930. The 1930 channel was approxi-

mately 1,000 feet south of that of 1924.

Between 1909 and 1930, many

attempts were made to contain the

River. In 1909 Laguna Dam, a federal

reclamation project near Yuma, Arizona,

was closed, causing an aggradation of

the riverbed in this area. Later, a 3l-

mile long levee was constructed nearby.

The local irrigation district operated

dredges, fresnos and similar equipment

in and near the River to maintain this

levee, particularly in connection with

the severe floods of 1921, 1922 and

1924.

Also, prior to 1930, many efforts

were made to alter the River's course.

Field tripods connected by cables were

placed in it so that when the River rose

trees and other water-born debris would

be trapped, block the channel and, with

luck, force the River into a new chan-

nel. During the same period, at least

seven man-made cuts were constructed

near Harvey's Fishing Hole in order to

straighten the River's channel and

eliminate several miles of its length.

These cuts caused an extreme increase in

the velocity of the River and a corres-

ponding increase in erosion of its silty

banks. As explained by government wit-

ness Mr. John McKwen, the cuts also

caused a resurgent tendency for the

River to meander and extend its bends in

this area. No significant River

movements have occurred in the area

since 1930.

When the Harvey's purchased this

parcel in 1952, it was completely over-

grown. During 1956 and 1957 the proper-

ty was cleared for the development of a

residential and recreational community.

The parties stipulated that “the clear-

ing and preparation of said lands for

development was done openly and was

observable by representatives of the

United States, including representatives

of the U.S. Bureau of Reclamation."

App. at 87a.

At this same time, the Harvevs

obtained permission from the State of

Arizona to subdivide this parcel. The

State of California authorized them to

advertise the lots in that state.

@ 16 «

In 1958 the Harveys began selling

lots, eighty of which had been sold by

the time of the trial. Homes, boat

docks, cabanas and other permanent im-

provements were built. Sales of lots

and construction began with the know-

ledge of officials of the United States.

In the late 1950's, the Bureau of

Reclamation, Office of River Control,

began to review whether certain lands

along the Colorado River were formed by

accretion. At this time that office's

hydrologist, Mr. McEwan, formed his

opinion that Harvey's Fishing Hole was

formed by accretion. He promptly in-

formed the Solicitor's Office of his

findings. Thereafter, he continued to

visit Harvey's Fishing Hole, to talk

with its occupants, and to observe them

e ii «

build homes and make other permanent

improvements. He did not tell peti-

tioners to stop construction or inform

them that, in his opinion, the land was

formed by accretion and that they were

trespassing.

In October 1960, the United States

commenced a condemnation suit to take

for a public purpose a parcel immediate-

ly downstream from Harvey's Fishing

Hole. That suit involved 11.8 acres of

land owned by R.A. and J.F. Beaver. The

Harvey's, adjoining landowners, were

named and served. Assured by the Beaver

brothers they need not participate, the

Harveys initially did not do so.

On May 8, 1961, Kindred Harvey and

his son Donald attended a meeting held

to explain the Interior Department's new

= 12 -

lower Colorado River land use permit

program. The meeting was chaired by Mr.

Graham Hollister, Special Assistant to

the Secretary. He announced the govern-

ment's goal of owning a 200-foot strip

on either side of the Colorado River and

stated that some private land might have

to be acquired to accomplish this goal.

At the conclusion of this meeting, the

Harvey's inquired of Mr. Hollister if

the United States intended to condemn

the subdivision. Mr. Hollister, who

advised the Harvey's he had not heard of

the subdivision, answered "no."

Later in 1961, the Lower Colorado

River Land Use Office began interviewing

occupants with riverfront land pursuant

to the new permit program. A government

employee participating in this process,

= 13 «

Mrs. Ferne Blair, testified that when it

came time to interview the occupants of

Harvey's Fishing Hole, the office

decided to defer speaking with them

pending the outcome of the condemnation

case against the Beavers.

Between 1961 and 1967, the govern-

ment employed a Surveillance Specialist

at the Land Use Office. He observed the

development of Harvey's Fishing Hole and

several times reported the occupants’

progress and improvements to his super-

iors. In all other situations involving

Colorado riverfront land, the Surveil-

lance Specialist posted signs on any

improvements built on land, and ordered

the occupants to cease construction and

occupancy until they received a use

permit from the government. No signs

‘

= 14 <-

were posted at and no warnings were

given to the occupants of Harvey's

Fishing Hole.

In January 1963, the Harveys met

with Melvin Crosby, Assistant Adminis-

trator of the Lower Colorado River Land

Use Office, to discuss the occupany of

another parcel of riverfront land. In

his letter requesting this meeting, Mr.

Crosby indicated that there was a "a

question as to the status of the area

you occupy in Sportsmen's Paradise

{Harvey's Fishing Hole] area, and dis-

cussion of this area nust be deferred to

a later date." Ex. 92. At this meet-

ing, Mr. Crosby was shown copies of the

1914 patent and of the Harvey's chain of

title. After examining these documents

he stated: “you could find no better

@ 18 «

title in the United States. ..." RT

792.

Later in 1963, the Harvey's became

concerned that the Beavers were not dis-

posed to fully defend the condemnation

case. Accordingly, they filed an

answer. The government moved to strike

contending, inter alia, that the

Harvey's “claims of interest in and to

land adjoining the property and premises

condemned herein are totally irrelevant

and immaterial to the issues of the in-

stant action." Ex. N at 8. In response

to this motion and pursuant to a stipu-

lation, the Harvey's agreed to withdraw

their answer without prejudice. Based

upon the government's representation

that the result of that case was

irrelevant, the Harvey's believed that

- 16 «

the Beavers' case would not affect their

title to Harvey's Fishing Hole and they

continued to sell lots.

The United States later was not

required to compensate the Beavers

because the district court concluded

that the 11.8 acres were formed by

accretion. The Ninth Circuit affirmed.

Beaver v. United States, 350 F.2d 4

(1965), cert. denied, 383 U.S. 9337

(1966) (hereinafter Beaver).

In 1966, the interstate compact

redefining the boundary between Arizona

and California was enacted to forever

settle the confusion about which state

had jurisdiction over land located in

the floodplain of the Colorado River.

Before then, some land located on the

Arizona side of the river was claimed by

- 179 «-

California and some land on the

California side was claimed by Arizona.

Prior to 1966, Harvey's Fishing

Hole was claimed by Arizona. The resi-

dents of Harvey's Fishing Hole paid real

property taxes to Yuma County, Arizona.

Yuma County reimbursed Imperial County,

California, for the education of the

children of the community. Yuma County

appointed a Deputy Sheriff to keep the

peace. Arizona regulated the subdivi-

sion's waterworks and the restaurant and

lounge located there. Since ratifica-

tion of the interstate compact,

California has exercised jurisdiction

over Harvey's Fishing Hole.

In January 1967, Mr. Crosby, on

official business, met with Kindred

Harvey at the subdivision. After a

@ 18 «

personal inspection he stated "this

parcel could not be accretion land." RT

649.

In April and May of 1967, the Lower

Colorado River Land Use Office sent

letters to each of the occupants of

Harvey's Fishing Hole advising them that

"we are now accepting applications for

temporary use of land from occupants of

Harvey's Fishing Hole subdivison (a.k.a.

Sportmen's Paradise) who have been

occupying land of the United States on

or before August 24, 1965." Ex. AE.

None of the occupants of Harvey's

Fishing Hole made application. On July

17, 1972 the United States commenced

this action pursuant to 28 U.S.C. § 1345

(1976) to eject petitioners from their

lots and recover rent.

- 19 ~

REASONS THAT A WRIT OF CERTIORARI

SHOULD ISSUE

There are many important reasons

for granting certiorari here.

First, the decision below misap-

plies the principles enunciated in

Wilson v. Omaha Indian Tribe, 442 U.S.

653 (1979) (hereinafter Wilson), and

disregards the rulings of Oregon ex rel.

State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) (herein-

after Corvallis Sand), Nebraska v. Iowa,

406 U.S. 117 (1972), and Arkansas v.

Tennessee, 246 U.S. 158 (1918). This

long line of authority directs the

application of California, not Arizona,

law to resolve this dispute.

Second, the decision below contra-

dicts two other relatively contempor-

aneous opinions of the same circuit

- 20 -

court which correctly apply the rulings

of the aforementioned precedents. One

of those decisions contradicts the

selection of law made here and applies

California law under similar circum-

stances. The other contradicts the

substantive determination made here chat

the Arizona doctrine of accretion is

different from that of California. The

correct legal standard is one expressly

mandated by the highest courts of both

California and Arizona and previously

acknowledged by this Court. Principles

which determine questions of title to

land must be consistent and definite,

particularly where a boundary stream is

involved.

Third, as this case involves con-

struction of an interstate compact, this

= 21 -

Court's plenary review is especially

warranted. Petitioners submit that the

court of appeals' construction of this

compact is contrary to its terms and is

in discord with its purposes.

Fourth, this case raises several

important questions of law which have

not been, but should be, settled by this

Court. These questions pertain to the

assertion of equitable defenses against

the United States in disputes over title

to real property. Moreover, the equita-

ble standards which were applied by the

court below directly conflict with prin-

ciples previously enunciated by this

Court.

Fifth, the court of appeals' disre-

gard of many applicable precedents is

such a radical departure from the

accepted and usual course of judicial

proceedings as to call for this Court's

supervision. Also, the court of ap-

peals' failure to exercise its equitable

powers to correct the miscarriage of

justice effected below (by inter alia,

not voiding the award of back rent to

the Government, see United States v.

Harvey, 661 F.2d 767, 769, n.1 (9th Cir.

1981) (hereinafter Harvey)) is yet

another reason that this Court should

assume jurisdiction.

The foregoing considerations are

discussed in two substantive sections.

The first pertains to the choice of law

issue. The second pertains to the

petitioners' assertion of equitable

defenses against the United States.

- .3-

I. THIS COURT SHOULD RECTIFY THE

APPLICATION OF IMPROPER LEGAL

STANDARDS TO RESOLVE THE QUESTION

OF TITLE TO THE PROPERTY.

At the time of trial, this Court

had recently ruled that federal common

law was to be applied in determining

title to lands located along the

Colorado River. Bonelli Cattle Co. v.

Arizona, 414 U.S. 313 (1973), reh.

denied, 434 U.S. 1090 (1978) (herein-

after Bonelli). 2/ significantly, it

was held that under federal law "(t]he

doctrine of accretion applies to changes

in the river course due to artificial as

well as natural causes." Id. at 327.

2/ Petitioners respectively submit

that the short-lived doctrine

promulgated by this Court in

Bonelli is responsible for the

Tength and complexity of this

litigation.

- 24 <-

As correctly noted by the Ninth Circuit,

California law differs. "California

Civil Code § 1014 recognizes a boundary

shift only if it is precipitated by

‘natural’ as opposed to artificial

accretion. The instruction advanced by

the trial court made no reference to the

cause of the accretion because it was

modeled upon federal law." Harvey, 661

F.2d at 770. See State v. Superior

Court (Fogerty), 29 Cal. 3d 240, 172

Cal. Rptr. 713, 625 P.2d 256, cert.

denied, 50 U.S.L.W. 3248, reh. denied,

50 U.S.L.W. 3448 (1981); City of Long

Beach v. Mansell, 3 Cal. 34 462, 91 Cal.

Rptr. 23, 476 P.2d 423 (1970); City of

Los Angeles v. Anderson, 206 Cal. 662,

275 P. 789 (1929).

- 25 -

Fhortly after trial, Bonelli was

overturned by this Court's decision in

Corvallis Sand, supra. That case

involved land located in the channel of

the Willamette River, a navigable

stream. Speaking for the majority

Justice Rehnquist stated:

Under our federal system,

aes ownership is not

govern by general federal

law, but rather by the laws of

the several states. ‘The great

body of law in this country

which controls acquisition,

transmission, and transfer of

property, and defines the

rights of its owners in rela-

tion to the state or to private

parties, is found in the

statutes and decisions of the

state.' [Citation omitted. ]

This is particuarly true with

respect to real property, for

even when federal common law

was in its heyday under the

teachings of Swift v. Tyson, 16

Pet. 1 (1842), an exception was

carved out for the local law of

real property. [Citations

omitted. ]

- 26 -

This principle applies to

the banks and shores of water-

ways, and we have consistently

so held. [Citations omitted. ]

429 U.S. at 378-79.

On appeal, the Ninth Circuit agreed

with petitioners that state law

controlled. However, it determined that

Arizona law and not California law was

applicable. Further, it held that the

district judge committed harmless error

in instructing the jury under the

federal standard because Arizona law is

the same as federal law.

A. This Court's decision in

Wilson, supra, does not compel

application of Arizona law in

this controversy.

The Ninth Circuit erroneously

reasoned that “the principles estab-

lished in Wilson are equally relevant

here.” Harvey, 661 F.2d at 771. It

- 279

then compounded the error by holding

that the "preservation of rights" clause

contained in Arizona and California

statutes enacting the Interstate

Boundary Compact, supra, requires appli-

cation of Arizona law. Id. at 770-71.

Wilson simply does not apply.

There, an exception to Corvallis Sand,

Supra, was created where the dispute is

over land to which the United States

"has never yielded title or terminated

its interests. ..." 442 U.S. at 670.

In such cases federal law controls.

Here, on the other hand, the government

had parted with title to the land which

it, as upland owner, now claims accreted

to its land. Thus, Corvallis Sand, not

Wilson, controls.

- 28 -

Application of California law here

is in accord with a long line of Supreme

Court precedent. E.g., Nebraska v.

Iowa, supra; Arkansas v. Tennessee,

Supra. As explained by this Court in

Arkansas v. Tennessee, and reiterated in

Corvallis Sand and Nebraska v. Iowa:

How the land that emerges

on either side of an interstate

boundary stream shall be dis-

posed of as between public and

private ownership is a matter

to be determined according to

the law of each state, under

the familiar doctrine that it

is for the states to establish

for themselves such rules of

property as they deem expedient

with respect to the navigable

waters within their borders and

the riparian lands adjacent to

them. ... But these disposi-

tions are in each case limited

by the interstate boundary, and

Cannot be rmitted to press

back the Beandat line from

where otherwise tt Should be

Se eee

ocated,

- 29 -

246 U.S. at 175-176 (emphasis added).

The Ninth Circuit was not free to select

the law of a jurisdiction other than

California.

Even assuming Wilson applies here,

the Ninth Circuit should have fashioned

its rule of decision after California

law. In Wilson, it was held that

federal law "borrows" state law to

resolve questions of ownership. There,

Nebraska law was followed because the

boundary compact between Nebraska and

Iowa contained a provision requiring

that:

Title, mortgage, and other

liens good in Nebraska shall be

good in Iowa as to any lands

Nebraska may cede to Iowa and

any pending suits or actions

concerning said lands may be

prosecuted to final judgment in

Nebraska and such judgments

shall be accorded full force in

- 30 -

Iowa. Act of July 12, 1943,

ch. 220, 57 Stat. 495.

442 U.S. at 678.

The “preservation of rights" clause

enacted by California and Arizona is

quite different. It simply provides, in

pertinent part, that:

Nothing contained in the

provisions of this act...

shall prejudice the titles,

rights or claims of any person

- « « to any lands herein

involved... .

See 1963 Ariz. Sess. Laws, ch. 77, § 5;

1963 Cal. Stat., ch. 859, § 4. This

provision only requires reference to

Arizona law where use of California law

would prejudice a litigant. Another

recent Ninth Circuit decision, subse-

quently withdrawn for unrelated reasons,

has so held. United States v. Aranson,

No. 77-2295, slip op., (9th Cir. March

- 31 -

30, 1981, withdrawn April 17, 1981)

(hereinafter Aranson) (App. at 121a).

Any other construction would frustrate

one of the express purposes of the

Arizona-California Boundary Compact,

which is to eliminate the confusion and

difficulty in “the enforcement and

administration of the laws of the two

states and of the United States” caused

by uncertainty over the location of the

interstate boundary. Pub. L. No. 89-

531, 80 Stat. 340 (1966).

The United States, as owner of land

in California, cannot seriously contend

it will be prejudiced by application of

California law. Moreover, it could not

have reasonably expected that title to

accumulations to its California holdings

- 32 -

would be determined by Arizona law.

See, e.g., Arkansas v. Tennessee, supra.

Another recent Ninth Circuit deci-

sion also is at odds with this case.

United States v. Southern Pacific

Transportation Co., 601 F.2d 1059

(1979), was a dispute over accretion to

lands held by the government in trust

for the Quechan Indians. Just as in

this case, the upland was owned by the

United States and was located in

California; also the land found to have

been eroded was in Arizona. Notwith-

standing its reliance on Wilson, the

court did not find, as it now does, that

the “preservation of rights" clause

compels application of Arizona law.

Rather, the district court had correctly

applied California law:

@ 33 -

Federal law borrows state law

in determining title to avul-

sive or accretive lands affect-

ing riparian land owned or pos-

sessed - Any — oy or

by an I an Tr ° Bit son

Omaha Indian Tribe, [citation

omitted]). Under California

law, the accreted land belongs

to the Government, as owner of

the riparian uplands. (Cal.

Civ. Code § 1014... .).

United States v. Southern Pacific

Transportation Co., 601 F.2d at 1066.

California, as the situs of the

upland since statehood and of Harvey's

Fishing Hole since 1966, and as domicile

of the petitioners for several years

prior to the commencement of this liti-

gation, has vital interests in the out-

come of this controversy (e.g., the

welfare of its potentially homeless

citizens, its ability to assess and

collect property taxes). Arizona has no

- 34 -

such interest. See RESTATEMENT (SECOND)

CONFLICT OF LAWS § 6 (1971).

Further, neither the government nor

the petitioners had any reasonable

expectation that Arizona law would be

applied. By signing the Interstate

Compact, Arizona relinquished any

interest it had in this parcel. See

Aranson, App. at 200a. No one contests

California's jurisdiction over this

small community. The Ninth Circuit

committed reversible error in failing to

apply CAL. CIV. CODE § 1014 (Deering

1971).

B. The circuit court's interpre-

tation of Arizona law is con-

trary to the decisions of the

Arizona Supreme Court.

The Ninth Circuit found that the

district court committed harmless error

in applying federal law since it found

- 35 -

Arizona law to be identical. Harvey,

661 F.2d at 771.

Three cases were relied upon in

support of the conclusion that accre-

tion, by Arizona definition, is simply

"a ‘gradual and imperceptible’ move-

ment.” Id. Only one of those cases,

State v. Bonelli Cattle Co., 107 Ariz.

465, 489 P.2d 699 (1971), aff'd on

rehearing, 108 Ariz. 258, 495 P.2d 1312

(1972), rev'd, 414 U.S. 313 (1973),

deals with the cause of the accretion,

the critical inquiry here. The other

two cases (State v. Jacob, 93 Ariz. 336,

380 P.2d 998, 1000 (1963), and State v.

Gunther & Shirley Co., 5 Ariz. App. 77,

423 P.2d 352, 356-57 (1967)), pre-date

Bonelli and, like most accretion cases,

- 36 -

do not involve any artificial or man-

made changes to a river's channel.

In Bonelli the Arizona Supreme

Court had held that the state owned the

disputed parcel. It reasoned that:

Where a river shifts to a

new location as a result of

unnatural forces, the state

does not lose title to the bed

of the stream in the old loca-

tion. People ex rel. Dept. of

Public Works Vv. Shasta Pipe 5

Su v Co., al. App. ’

eg 70 Cal. Rptr. 618. ...

Id., 107 Ariz. at 469, 489 P.2d at 703.

The Ninth Circuit acknowledged this pas-

sage from the Arizona Supreme Court's

decision but attempted to distinguish it

by simply saying: “Bonelli did not in-

volve an upland private claimant." 3/

3/ This, of course, is not correct.

The upland owner in that case was

Bonelli Cattle Co. and not the

State of Arizona, which owned the

(Continued)

- 37 -

Harvey, 661 F.2d at 772, n. 7. But no

distinction between public and private

claimants was created by the Arizona

Supreme Court. And such a limitation is

illogical and inconsistent with the

Arizona court's later decision in

Bonelli. There it was held that the:

artificial control of the river

could not deprive Arizona of

property rights in the bed

which were constitutionally

vested prior to completion of

the Hoover Dam in 1938 and the

later rechannelization by

dredging. The condition of the

Colorado River at or immediate-

ly petor to its control by

art

108 Ariz. at 260, 495 P.2d at 1314

(emphasis added).

bed of the stream. See Bonelli,

supra.

- 38 -

It is unlikely that the Arizona

Supreme Court intended to confine this

doctrine to the State, or that it would

permit the “constitutionally vested"

rights of others to be defeated by

subsequent artificial control and

rechannelization of the same river.

Moreover, it is noteworthy that the

Arizona court relied on a California

case in deciding that title to river-

fron. property is not affected by

“unnatural forces." Bonelli, 107 Ariz.

at 469, 489 P.2d at 703. In the

California case it was held that where

the channel of a navigable stream was

altered by mining and dredging opera-

tions, the State retained title to the

old riverbed and did not acquire owner-

ship of the bed of the new channel.

- 39 -

People ex rel. Dept. of Public Works v.

Shasta Pipe & Supply Co., 264 Cal. App.

24 520, 535, 70 Cal. Rptr. 618 (1968).

Finally, this Court has recognized

that under Arizona law, artificial ac-

cretion does not affect ownership. 4/

Discussing the state court decision in

Bonelli, this Court stated:

The Arizona Supreme Court held

that because the rechanneling of

the Colorado River was an

‘engineering relocation of the

waters of the river by artifi-

The Ninth Circuit also recently

reached a similar conclusion in

another Colorado River accretion

case. “Although Arizona case law

relevant to this issue is scant,

the leading case, State v. Bonelli

Cattle Co., [citation omitt

cites the California law on artifi-

cial accretion with approval.

Because our resolution of the rele-

vant issue employs the same law, it

is unlikely that application of

Arizona law would alter our

result." Aranson, App. at 15la.

- 40 -

cial means,' it was, under state

law, an avulsion and did not

divest the State of title. ...

414 U.S. at 328. Indeed, this interpre-

tation of Arizona law must be adhered to

for, under principles previously laid

down by this Court, if Arizona and

California law of accretion differ, then

California law must be applied if the

River moved by accretion, and Arizona

law must be applied if the River moved

by avulsion. Arkansas v. Tennessee,

supra, and Nebraska v. Iowa, supra.

Such vagaries cannot be tolerated where

title to real estate is concerned and

are particularly disturbing where

interstate boundaries are involved.

Thus, even if Arizona law applies,

this Court should remand this case for a

@ @1 «-

new trial. >’

Cc. The district court did not

instruct the jury in

accordance with full federal

law.

When this case was tried, this

Court's decision in Bonelli con-

trolled. Bonelli contained the

following analysis of the federal

doctrines of accretion and avulsion:

{[F]ederal law must be applied

with a view toward the limited

nature of the sovereign's

rights in the riverbed, and an

Petitioners should be allowed an

opportunity to develop the impact

of the man-made alterations to the

River's course and to allow the

jury to be instructed on the rele-

vance of causation. In concluding

that there is no need to further

develop evidence of artificial

accretion, the Ninth Circuit

erroneously assumes petitioners

contended below that the United

States caused the accretions. 661]

F.2d at 772, n.7. This is not

so. See pp. 7 to 8, supra.

- 42 -

analysis of the interests of

the State and Bonelli, in light

of the rationale for the

federal common-law doctrines of

accretion ard avulsion, compels

the conclusion that, as between

the state, as owner of the

riverbed, and Bonelli, as

riparian owner, the surfacing

of the subject land should be

treated as accretion. ...

The rationale for the

application of the doctrine of

avulsion is not applicable to

this dispute because of the

limited interests of the State

in the subject property. ..

The State's acquisition of the

exposed land here could only be

a windfall, since unnecessary

to the State's purpose in

holding title to the beds of

the navigable streams within

its borders. Accordingly, the

narrowing of the river and

vesting of title to the sur-

faced land in riparian owners

does not detract from the

State's legitimate interest in

title to the riverbed, so as to

require mitigation of the ac-

cretion principle by applica-

tion of the doctrine of

avulsion.

Id., 414 U.S. 328-29.

- 43 -

Bonelli also contains the following

observations:

Finally, recognition of

the State's claim to the sub-

ject land would raise a serious

constitutional issue as to

whether the State's assertion

of title is a taking without

compensation, a question which

we find unnecessary to decide

on our view of the case. ...

* * *

But there is no claim here by

the State that depriving

Bonelli of the subject land is

necessary to any navigational

or related purpose. [Citations

omitted.] Moreover, what is

involved in this case is not

just a diminution or elimina-

tion of riparian rights, but

the State's attempt to com-

pletely divest all of Bonelli's

title and interest in the

subject land.

Id. at 331-32. Petitioners submitted a

proposed jury instruction (Requested

Jury Instruction No. 15) modeled after

these portions of the Bonelli opinion

@- 44 -

which require a balancing of the inter-

ests of the respective land claimants in

applying the federal common law of ac-

cretion. The district court refused to

give this instruction, a reversible

error. The Ninth Circuit did not

address this issue.

Defendants' Proposed Jury

Instruction N: 15 stated:

In deciding whether the

Colorado River moved by the

process of accretion or avul-

sion, you should consider the

respective interests of the

parties in the land and whether

a finding of accretion will

result in a windfall to the

U.S. government or a taking of

the land from the defendants

without compensation. Unless

you find the land is necessary

for navigational or some re-

lated purpose, you should not

divest defendants of their title

to “Harvey's Fishing Hole" by

me the Ragen of accre-

That is, you should

consider the fairness of the end

- 45 -

result before you make a finding

of accretion or avulsion.

Obviously, under Corvallis Sand,

state law now applies and Bonelli's

analysis of the federal doctrines of

accretion and avulsion need not be the

ratio decidendi of this case. But

Bonelli was the law when this case was

tried and the district court did not

properly instruct the jury. And when

asked for a new trial under state law

because of Bonelli's reversal, the dis-

trict court refused, stating that

California law was no different than

federal law! RT 1051.

Fundamental fairness demands that

petitioners be allowed to try this case

either under state law, or under the

full federal doctrine of accretion, as

- 46 -

articulated by this Court in Bonelli.

So far they have been allowed to do

neither.

II. THE CONSIDERATIONS SUPPORTING AN

EQUITABLE BAR TO AN EJECTMENT

ACTION BY THE UNITED STATES,

CONSTITUTE AN IMPORTANT QUESTION

WHICH HAS NOT BEEN, AND SHOULD BE,

ADDRESSED BY THIS COURT,

PARTICULARLY WHERE THE PERTINENT

LEGAL PRINCIPLES EVOLVING IN THE

CIRCUIT COURTS ARE CONTRARY TO

CONGRESSIONAL POLICY AND SOUND

PRINCIPLES OF EQUITY, AND WHERE THE

UNGUIDED DECISION OF THE COURT OF

APPEALS RESULTS IN MANIFEST

INJUSTICE TO INNOCENT PARTIES.

As recently noted, this Court has

not clearly defined the circumstances

under which the United States might be

estopped by the conduct of its agents.

Schweiker v. Hansen, 450 U.S. 785, (per

curiam), reh. denied, U.S. , 101

S. Ct. 3023 (1981). Indeed the question

of when "[t]he Government may be equita-

- 47 -

bly estopped . .. has been the subject

of considerable ferment." Id. at 785

(Marshall, Brennan JJ. dissenting).

Plenary consideration is overdue and

sorely needed to provide adequate

guidance to the lower courts. Id. at

792.

That the Supreme Court “will know

an estoppel when [it] see[s] one pro-

vides" scant guidance for evaluating if

the government should be estopped. Id.

Indeed, this Court's history of virtua).

abstention from this area appears to be

contributing to the development of a

rigid, talismanic approach to estoppel

and that doctrine is “being stripped of

its equitable underpinnings." United

States v. Ruby, 588 F.2d 697 (9th Cir.

1978) (Ely, J. dissenting), cert.

- 48 -

denied, 442 U.S. 917 (1979). Over the

past decade, appellate analysis of

estoppel claims has transformed from the

judicious approach of "the estoppel

doctrine is applicable to the United

States where justice and fair play

require itn, &/ to an incantation that

five specific elements must be satis-

fiea, 2/ and now to a formula embracing

the further criterion that “an addi-

tional balancing test" is necessary

6/ United States v. Lazy FC Ranch, 481

F.2d 985 (9th Cir. 1973); United

States v. Lucienne D'Hotelle de

Benitez Rexach, 558 F.2d 37 (lst

Cir. 1977) (estoppel granted where

it would be unconscionable to allow

the United States to reverse an

earlier position); cf. Michigan

Wisconsin Pipeline v. Williams-

— 551 F.2d 945 (Sth Cir.

7/ E.g., Oki v. INS, 598 F.24 1160,

62 (9th Cir. 1979).

- 49 -

where “the United States [acting as]

trustee of public lands” is concerned.

Harvey, 661 F.2d at 773.

This transformation of an equitable

doctrine to a hard and fast iegal stan-

dard is contrary to decisions of this

Court in cases such as United States v.

Moser, 341 U.S. 41 (1951), and United

States v. Winona & St. Peter Railroad

Co., 165 U.S. 463, 475 (1897) ("[slurely

after such a lapse of time, and after so

many transactions in and with respect to

these lands, the appellees are justified

in saying that they have large claims

upon the equitable consideration of the

courts"). The broad equitable powers of

courts should not be subverted by rigid

adherence to frozen criteria which are

- §0 -

not required by either the Constitution

or traditional notions of fairness.

In the case at bar, the court of

appeals separately reviewed seriatim

"several instances of alleged government

misconduct," but completely disregarded

the fact that an estoppel can be worked

by a course of conduct persisting over a

period of time. E.g., Semaan v.

Mumford, 118 U.S. App. D.C. 282, 335

F.2d 704 (1964); United States v. Fox

Lake State Bank, 366 F.2d 962 (7th Cir.

1966) (noted in Schweiker v. Hansen,

Supra, at n. 4).

Furthermore, no special, extra

balancing test nor generally restrictive

approach has ever been required by this

Court in land title disputes between

citizens and the United States. Indeed,

e $1 «

just the contrary is evidenced by this

Court's decisions, and the imposition of

such a requirement is contrary to

congressional policy discernable in many

federal statutes.

For example, 43 U.S.C. § 1166

(1976) imposes a 6-year statute of limi-

tations to actions by the United States

to challenge the validity of a land

patent. In an early case construing

this statute of limitations, this Court

would not allow the United States to

belatedly challenge a patent issued as a

result of a mistake. Rather, it found

that:

Congress evidently recog-

nized the fact that notwith-

standing any error in certifi-

cation or patent there might

be rights which equitably

deserved protection, and it

would not be fitting for the

government to insist upon the

- §2 -

letter of the law in disregard

of such equitable rights. In

the first place, it has dis-

tinctly recognized the fact

that when there are no adverse

individual rights, and only

claims of the Government and

of the present holder of the

title to be considered, it is

fitting that a time should

come when no mere errors or

irregularities on the part of

the officers of the land

department should be open for

consideration. In other

words, it has + a that,

as against itself in respect

to these land transactions, it

is right that there should be

a statute of limitations. ...

United States v. Winona, 165 U.S. at

475-476. ~

2/

Among the equities favoring the

private litigants, were that the

railroad had given value for the

land received, that no individual

was wronged by allowing the certi-

fication to stand, and that no

fraud or wrong was imputable to the

railroad. The Court went on to

state: “Many years have passed

since the certification, and since

the company, in reliance upon the

(Continued)

= §3 -

The Supreme Court further elabor-

ated upon congressional policy evidenced

by 43 U.S.C. § 1166 in United States v.

Chandler-Dunbar Water Power Co., 209

U.S. 447 (1908):

The patent had been issued in

1883 by the President in due

form and in the regular way.

Whether or not he had auth-

ority to make it, the United

States had power to make it or

to validate it when made,

since the interest of the

United States was the only one

concerned. We can see no

reason for doubting that the

Statute, which is the voice of

title it believed it had acquired,

has disposed of the lands, and

other parties have become inter-

ested in and have dealt with the

lands as private property. Con-

tracts have been entered into,

suits maintained . .. and decrees

and judgments entered and rendered

in full reliance upon the title

supposed to have been conveyed."

Id. at 475. The relevance of these

equities to this case is manifest.

- 54 -

the United States, had that

Seat iaea to sahab eanmete 4

would be almost or quite

without use.

Id. at 450 (citation omitted; emphasis

added).

Congress ias subsequently spoken

several times in this area of allowing

public lands to conclusively pass into

private ownership. The Color of Title

Act, 43 U.S.C. § 1068 (1976), authorizes

administrative actions to acquire title

to public land by adverse possession.

43 U.S.C. § 772 (1976) forbids any

resurvey of public lands to jeopardize

rights accrued pursuant to a previous

Survey. More recently, Congress enacted

28 U.S.C. § 2409a (1972), to allow quiet

- 55 -

title actions to be maintained against

the United states. +2/

In this case, the court of appeals

remarked that the “property clause",

U.S. CONST. art. IV, § 3, cl. 2, is

"directly implicated when equitable

estoppel is sought to be applied against

a federal claim to title in land" and

determined that “when Congress has not

authorized a disposition of federal

lands, the application of a remedy such

as equitable estoppel against the

federal claim or defense tends to frus-

10/ Additionally, in 1970, Congress

enacted a public law which allowed

similarly situated landowners a

short distance upriver from these

petitioners the opportunity to

prove the merits of their claims to

have title to certain accretion

lands quieted in them. See Pub. L.

No. 91-505, 84 Stat. 1106 (1970).

So

- 56 -

trate the intent of a specific consti-

tutional provision.” Harvey, 661 F.2d

at 773, n.8. This is in manifest dis-

regard for congressional policy, partic-

ularly as evidenced by 43 U.S.C. §

1068(a) and 28 U.S.C. § 2409a (1972).

That public lands which have been

held as private property do not require

any especially restrictive protection

also is supported by sound judicial

precedent. In United States v. Diamond

Coal & Coke Co., 255 U.S. 323 (1921),

this Court held that the United States

could be precluded by laches from

challenging even a patent procured

through fraud, if the evidence showed

that the United States was or should

have been put upon inquiry by the facts

of which it had knowledge.

= §7 -

Similarly instructive is United

States v. Wharton, 514 F.2d 406 (9th

Cir. 1975). There, the court found the

United States was estopped from

retaining title to certain lands. In

addition to finding the elements of

estoppel outlined in United States v.

Georgia-Pacific Co., 421 F.2d 92 (9th

Cir. 1970), were satisfied, the court

noted it was equally clear that the

"fundamental fairness" standard of

United States v. Lazy FC Ranch, supra,

was met. The court explained:

Governmental conduct would work

a serious injustice if this

family were divested of the

home in which they have in-

vested so much of themselves.

The interest of the

public would not be unduly

threatened or damaged by

invoking estoppel against the

government and granting the

occupants an opportunity to

- 58 -

obtain this small tract of

desert land. The public will

be damaged to no greater ex-

tent now than it would have

been had the original entry

been completed. To the con-

trary, the public interest

will be served by the addition

of the land to the tax rolls

once the Whartons have gained

title. And, perhaps more inm-

portantly, the public has an

interest in seeing its govern-

ment deal carefully, honestly

and fairly with its citizens.

United States v. Wharton, 514 F.2d at

412-413.

In this case, the court disregarded

decisions such as these. Instead, it

employed a piecemeal and myopic analysis

which failed to weigh considerations

such as laches on the part of the United

States, notwithstanding the fact that

the Government failed to make a claim to

the land for over forty years after it

was allegedly formed and for over twenty

years after the Harvey's began clearing

it with the knowledge of government

officials.

In its serial review of several of

the many instances of government miscon-

duct briefed by appellants, the court of

appeals held that Mr. Crosby's statement

that the Harvey's "title was good” was

irrelevant to whether the government was

asserting title to the subject land.

Similarly, it concluded that whether or

not the government planned to condemn

Harvey's Fishing Hole was irrelevant to

whether the United States planned to

assert title. These conclusions can

only be described as incredible.

The Harvey's are laypersons. They

scught information from the officials

charged with responsibility for admin-

istering these lands and were told the

government had no plans to condemn them

and that their title was good. Indeed,

Mr. Crosby testified that action on the

Surveillance Specialist's reports which

noted improvements and changes in owner-

ship at Harvey's Fishing ole was inten-

tioselly held in abeyance pending reso-

lution of the Beaver case. RT 616, 636.

Also, Mrs. Blair testified that Harvey's

Fishing Hole was intentionally skipped

over in the land use application and

permit procedures adopted by the Land

Use Office and that notification of the

United States' claim was intentionally

postponed until after resolution of the

Beaver case. RT 572-573. Obviously,

the court's holding that appellants have

not alleged facts establishing an active

= 6] -

or intentional concealment is plainly

incorrect, 21/

Similarly, footnote 12 of the

court's opinion demonstrates a misappre-

hension of law and fact. Record owners

1l/ The court of appeals specifically

found that the government's conduct

with respect to the Beaver case

does not support an estoppel be-

cause the dismissal was without

prejudice and “consequently...

‘did not cause [appellants] to take

action or fail to take action that

[appellants] could not correct at

any time.' Schweiker v. Hansen",

supra. Quite to the contrary,

pe ioners were severely prej-

udiced by the government's success-

ful efforts opposing their partici-

pation in the Beaver case. Several

key witnesses died In the interim

and the Harvey's continued to sell

lots believing that the issues of

Beaver were irrelevant and imma-~-

terial to their concerns and did

not affect them. Petitioners were

further prejudiced by government

counsel's references to the jury in

this case about the Beaver holding

that the adjoining lands were

accretion lands (RT 86, 8(7-808).

= 62 -

of lands potentially affected by a

government claim are entitled to more

than constructive notice of the claim.

Schroeder v. City of New York, 371 U.S.

208 (1962). Also, the 1960 resurvey

merely changed the legal description

applicable to these acres and could not

jeopardize petitioners’ title. See 43

U.S.C. § 772 (1976); cf. RT 206-208.

Application of a full panoply of

equitable considerations in this case

will be consistent with “the duty of all

courts to observe the conditions defined

by Congress [as to a matter within its

exclusive domain]." Federal Crop

Insurance Corp. v. Merrill, 332 U.S.

380, 385 (1947). It also will avoid an

egregious contravention of notions of

“elementary fairness", United States v.

- 63 -

Moser, 341 U.S. at 47, which has been

sanctioned by the appellate court.

In sum, for this Court to assume a

supervisory role would be most appro-

priate here. The misguided analysis

below has caused a miscarriage of

justice. The decision of the court of

appeals contravenes congressional policy

with respect to claims against public

lanés and denigrates the appropriate

equitable considerations to ensure that

justice is achieved. It embraces a

rigid test for applying estoppel, which

test is a further retrenchment of an

important and rapidly developing area

which this Court has hitherto declined

to affirmatively assist in shaping.

- 64 -

CONCLUSION

For all the reasons stated above,

petitioners respectfully request that a

writ of certiorari issue to the United

States Court of Appeals for the Ninth

Circuit.

fully submitted,

allace L. Duncan

Carol MacKinnon

DUNCAN, WEINBERG &

MILLER, P.C.

1775 Pennslyvania Avenue,

N.W.

Suite 1200

Washington, D.C. 20006

(202) 467-6370

Floyd H. Shebley

19412 So. Henrici Road

P.O. Box 346

Oregon City, Oregon 97045

(503) 631-7244

June 7, 1982

- 65 -

CERTIFICATE OF SERVICE

I, Carol MacKinnon, an attorney for

petitioners and a member of the Bar of

this Court, certify that on this 7th day

of June, 1982, the foregoing Petition

for Certiorari and Appendix thereto,

consisting of two volumes, was served

upon respondents by mailing three copies

thereof to each of the following:

Solicitor General

Department of Justice

Washington, D.C. 20530

Ronald L. Styn, Esquire

Marinos & Styn

111 Elm Street

San Diego, CA 92101

I further certify that all parties

required to be served have been served.