# Petition — Harvey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0139%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 833 ## Text (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 , 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 ’ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0139%3A1. Public record. Not legal advice.