Appendix — Harvey v. United States

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Supreme Court of the Gnited States

OcTOBER TERM, 1981

Iva May HARVEY, a widow, et al.,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondent.

Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

APPENDIX TO PETITION TO WRIT

F.Loyp H. SHEBLEY WaLLace L. DuNCAN

19412 So. Henrici Road CaroL MacKINNoN

P.O. Box 346 DUNCAN, WEINBERG &

Oregon City, Oregon 97045 Mu.uer, P.C.

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

Suite 1200

Washington, D. >. 20006

(202) 467-6370

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

TABLE OF CONTENTS

nion sough view

n St v. Har

O- t .

Nov. 16, ("po ie la

Other opinions and orders below

Oct. 15, 1974) (Order

denying motions for

summary Judgment) wscccscccsces 5la

n d s v. Harvey,

O- - eL el ale

March l, 1976) (Pre-trial

Conference Order) ecccesscseces Jla

United ae Ve Harvey.

No. ms -T (S.C.Ca °

Jan. 14, 1977) (Memorandum

and order denying motions

for judgment n.o.v. and

for new trial) cosccccccccoccs 89a

United states Ls Harvey,

No. = -T eVe al.

Jan. 18, 1977)(Order re

COUNtErClaiM) eeccccccecececese 105a

United ee La Haried

No. nt -T S.D. al.

May 27, 1974)(Oral order

denying motion for new

trial) cccccccccsecccesessesess ll3a

Judgmen n n R

n Vv x P

No. t

March 10, 1982) (Order

denying rehearing) .cccsseceeee Ll6a

v. Harv

OS TTD OT

Jan. 21, 1977) (Amended

Judgment on Jury Verdict)... 117a-l

n ds v. Harv

No. ae S.D. Ca .

Nov. 23, 1976)(Jury

Verdict) cocccccsccccsseseseesese 118a

Other materials

Map showing location of Harvey's

Fishing Hole in 1914 (for pur-

poses Of illustration) .csceses 119a

Map showing location of Harvey's

Fishing Hole in 1972 (for pur-

poses of illustration) (photo-

copy Of part Of Ex. 26)eceseeese 120a

United St v. Aranson,

No. - t Ce

March 30, 1981) ecccccccccceces l2la

-la -

UNITED STATES v. HARVEY

United States of America,

Plaintiff-Appellee,

Iva May Harvey, a widow, et al.,

Defendants-Appellants.

No. 77-2279.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted Nov. 6, 1980.

Decided Nov. 16, 1981.

The United States brought action

seeking ejectment and seeking rental

value damages for use of property. The

United States District Court for the

Southern District of California, Howard

B. Turrentine, J., entered judgment on

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jury verdict, and defendants appealed.

The Court of Appeals, Tang, Circuit

judge, held that: (1) district court

was obligated to apply Arizona law in

formulating accretion jury instruction,

even though change in course of river

resulted in parcel being located in

California; (2) no reversible error

occurred in giving accretion instruction

based upon federal common law rather

than Arizona law where instruction

modeled on Arizona law would have

contained same language defining

accretion as "gradual and imperceptible"

movement as was given; (3) evidence that

parcel of land was created through

accretion rather than by avulsion, which

would not have divested defendants of

- Ja -

title, was sufficient to support jury

verdict in favor of United States; (4)

affirmative misconduct was necessary

element of equitable estoppel asserted

against United States; and (5)

substantial evidence supported findings

by jury that defendants were not

ignorant of facts allegedly giving rise

to equitable estoppel of claim asserted

by United States, that defendants did

not rely on alleged affirmative

misconduct, and that no actionable

affirmative misconduct by the United

States occurred, thus precluding

successful assertion of equitable

estoppel against the United States.

Affirmed.

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1. States -- 6

District court was obligated to

apply Arizona law in formulating

accretion jury instruction in ejectment

action brought by United States, even

though change in course of river

resulted in parcel being located in

California, where Arizona and California

had entered into boundary pact covering

land in issue, and such pact included

“preservation of rights" provision

requiring that an acquiring state

respect title in any ceded land if such

title was valid in ceding state. A.R.S.

§ 41-522 note; West's Ann. Gov. Code §

175 note.

2. Federal Court -- 908

In action United States brought

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seeking ejectment and seeking rental

value damages for use of property, no

reversible error occurred in giving

accretion instruction based upon federal

common law rather than Arizona law where

instruction modeled on Arizona law would

have contained same language defining

accretion as “gradual and imperceptible"

movement as was given.

3. Navigable Waters -- 44(1)

In action United States brought

seeking ejectment and seeking rental

value damages for use of property,

evidence that parcel of land was created

through accretion rather than by

avulsion, which would not have divested

defendants of title, was sufficient to

support jury verdict in favor of United

States.

4. Estoppel -- 62.2(4)

Litigants seeking to preclude

Government interest in iand had to prove

more than technical elements of

equitable estoppel in order to

successfully assert it against the

United States; in addition, litigants

had to establish equities that, on

balance, outweighed inherent equitable

considerations which Government asserts

as constitutional trustee on behalf of

all people. U.S.C.A. Const. Art. 4, §

3, cl. 2.

5. Estoppel -- 62.2(4)

Affirmative misconduct was

necessary element of equitable estoppel

- Ja-

asserted against United States in action

it brought seeking ejectment and rental

value damages for use of property.

U.S.C.A. Const. Art. 4, § 3, cl. 2.

6. Estoppel -- 62.2(4)

Elements of equitable estoppel that

must be proved when estoppel is asserted

against United States to preclude its

interest in land are: whether United

States knew facts; whether United States

intended or could justifiably be

perceived as intending its conduct to

induce reliance; whether party asserting

estoppel was ignorant of facts; whether

party asserting estoppel relied upon

United States' conduct; and whether

United States engaged in affirmative

misconduct. U.S.C.A. Const. Art. 4, §

3, cl. 2.

7. Estoppel -- 118

In action United States brought

seeking ejectment and seeking rental

value damages for use of property,

substantial evidence supported findings

by jury that defendants were not

ignorant of facts allegedly giving rise

to equitable estoppel of claim asserted

by United States, that defendants did

not rely on alleged affirmative

misconduct, and that no actionable

affirmative misconduct by the United

States occurred, thus precluding

successful assertion of equitable

estoppel against the United States. 28

U.S.C.A. § 2409a.

8. Estoppel -- 62.1

Mere negligence on part of

Government will not suffice to establish

equitable estoppel.

Appeal from the United States

District Court for the Southern District

of California.

Before KENNEDY and TANG, Circuit

Judges and LARSON*, District Judge.

TANG, Circuit Judge:

This is an appeal by 162

individuals from a judgment ejecting

them from approximtely 27 acres of real

property, Harvey's Fishing Hole, and

awarding the government rental value

damages for use and occupancy of this

property since 1960." Three issues are

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before us: 1) whether state rather than

federal law should have been applied in

the jury instruction on the question of

accretion; 2) whether substantial

evidence supported the jury verdict that.

darvey's Fishing Hole was formed by

accretion rather than avulsion; 3)

whether the United States was estopped

from asserting its claim to Harvey's

Fishing Hole. We affirm the judgment

below on all three issues.

This is a dispute between the

United States and appellants over title

to 27 acres of real property located

along the Colorado River in Imperial

County, California. The controversy

over Harvey's Fishing Hole stems from

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the southerly shift of the Colorado

River channel. In 1914, the United

States conveyed the parcel now known as

Harvey's Fishing Hole by patent deed to

Cherry Carlin. Title can be traced from

Carlin to Kindred and Iva May Harvey.

According to the 1914 deed, the land lay

south of the Colorado River in Yuma,

Arizona. Between 1914 and 1935,

however, the Colorado River moved in a

southerly direction, passing through

Harvey's Fishing Hole until it

established a channel in its present

location. In other words, although the

property now known as Harvey's Fishing

Hole lay south of the Colorado River in

1914, by 1935 it was located north of

the river. The Harvey's purchased the

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land in question in 1952. Harvey's

deed, like Carlin's, described the

property as located in Yuma, Arizona.

In 1952, however, the property in fact

lay north of the river.

Between 1956 and 1958, the Harvey's

cleared the property in preparation for

development, obtained a sub-division

permit and sold lots to third parties.

By the time of trial, approximately 80

of the 96 lots had been sold to the

other appellants.

In 1960, the United States

resurveyed the property. The land was

in the same geographical and physical

location as that described in the 1914

patent. In 1960, however, it was

described as located in California

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rather than Arizona. In 1967, the

government notified the occupants cf

Harvey's Fishing Hole that it claimed

title to the land, and in 1972, filed a

suit for ejectment and damages.

There were three major issues

presented below. The first involves the

propriety of the lower court's jury

instructions. The government argued

that the river moved by the process of

erosion and accretion. It contended

that, as the river migrated southward,

it eroded the land on thr southern bank

(what is now Harvey's Fishing Hole), and

deposited alluvion on the northern bank

in the process. Although the jury

verdict supported the government's

position, appellants moved for judqment

- l4éa -

nothwithstanding verdict and for a new

trial claiming that the district court

erred in defining accretion in its jury

instruction. Appellants appeal the

denial of these motions. The second

issue centers on the jury verdict of

accretion. Appellants argue that

Harvey's Fishing Hole was not formed by

accretion. They contend that the river

moved southward by avulsion, a process

through which the river violently or

rapidly leaves its original channel.

Were this the case, owners of the land

Originally situated south of the river,

the appellants, would not have been

divested of title. The third issue is

whether the government was estopped from

ejecting the appellants from Harvey's

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Fishing Hole. The jury returned a

verdict in favor of the government.

It.

As was then required by the Supreme

Court's decision in Bonelli Cattle Co.

v. Arizona, 414 U.S. 313, 94 S. Ct. 517,

38 L.Ed.24 526 (1973), the trial court

fashioned its jury instruction on

federal common law definitions of

accretion and avulsion. Two days before

the court had ruled on Harvey's motions

for judgment notwithstanding verdict and

for new trial, however, the Suprerie

Court in Oregon ex rel. State Land Board

v, Corvallis Sand & Gravel Co., 429 U.S.

363, 97 S. Ct. 582, 50 L.Ed.2d 550

(1977), overturned Bonelli and held

that, absent an independent basis for

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the invocation of federal common law,

state law controlled riparian ownership

questions. Id. at 376-78, 97 S. Ct. at

589-90. Appellants moved for

reconsideration of judgment shortly

after the court entered judgment,

arguing that, under Corvallis Sand,

California law should have controlled

the formulation of the jury

instruction. The trial court denied the

requested relief and appellants have

renewed this claim on appeal.

According to appellants, an

instruction based on California law

would have resulted in a jury verdict

against the government because

California law differs from federal

common law on the question of

fe .

he pe

- l7jJa -

accretion. 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. Appellants claim that,

because at least some of the accretion

must be attributed to non-natural

causes, an instruction fashioned under

California's accretion definition was

required,

Our review of the law, however,

convinces us that the court should have

applied Arizona rather than California

law. Because Arizona law parallels the

federal common law rule employed by the

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court below, we affirm the judgment.

In Wilson v. Omaha Indian Tribe,

442 U.S. 653, 99 S. Ct. 2529, 61 L.Ed.2d

153 (1979), the United States, as

trustee for the Omaha Tribe, sued

several individuals over land that had

originally been on the Nebraska side of

the Missouri River, as part of the

Tribe's reservation. Because the river

gradually shifted, this land eventually

became situated in Iowa. In resolving a

choice of law issue on the accretion

question, the Court distinguished its

earlier decision in Corvallis Sand and

found that federal common law, not state

law, controlled the determination of the

applicable law:

[T)}he general rule recognized by

wae vw

‘ fe. aa ~

OT eS ee ae Tw Eh geee CR ro ce ae ewe OF eg. Oe Pe

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Corvallis does not oust federal law in

this case. Here we are not dealing with

land titles merely derived from a

federal grant, but with land with

respect to which the United States has

never yielded title or terminated its

interest....

In these circumstances, where the

Government has never parted with title

and its interest in the property

continues, the Indian right to the

property depends on federal law ...

{Tihis is not a case where the United

States has patented or otherwise granted

lands to private owners in a manner that

terminates its interest and subjects the

grantee's incidents of ownership to

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determination by the applicable state

law.

Wilson, 442 U.S. at 670-71, 99 S. Ct. at

2539.

Although the Court found federal

common law controlling, it refused to

promulgate a general federal common law

rule of accretion and avulsion.

Instead, the Court held that it would

borrow state law in fashioning the

federal rule of decision. Wilson, 442

U.S. at 671-76, 99 S. Ct. at 2540-42.

In Wilson, application of Nebraska law

was mandated because an interstate

compact between Nebraska and Iowa

required each state to respect titles,

mortgages, and other liens that

originally arose under the laws of the

- 2la -

ceding state. Wilson, 442 U.S. at 678,

99 S. Ct. at 2542. See United States v.

Southern Pacific Transportation, 601

F.2d 1059, 1066 (9th Cir. 1979).

Consequently, even though the disputed

land was ultimately situated in Iowa,

the Court held that Nebraska law

applied.

{1, 2] Because Arizona and

California have entered into a boundary

pact covering the land in issue the

principles established in Wilson are

equally relevant here. Although the

Arizona-California Boundary Pact

dictates no choice as to what law shall

govern disputes over land,” in ratifying

the pact, each state adopted a

’

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"preservation of rights” provision that

declared:

Nothing contained in the

provisions of this act ..

shall prejudice 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 part of the State of

California and have now become

a part of the State of Arizona

or otherwise....

1963 Ariz. Sess. Laws ch. 77, § 5,

reprinted in annotation to Ariz. Rev.

Stat. Ann. § 41-522 (West 1974); 1963

Cal. Stats. ch. 859, § 4, reprinted in

annotation to Cal. Gov't Code § 175

x Le —

- 238 -

(West 1980). This language has the same

effect as the compact language reviewed

in Wilson. * The acquiring state, here

California, must respect title in any

ceded land if that title was valid in

the ceding state, here Arizona. Under

the Wilson holding, therefore, the

district court was obligated to apply

Arizona law in formulating its jury

instruction. Accordingly, we reject the

appellant's contention that the district

court should have modeled its

instruction after California law.

Although the lower court employed

federal common law rather than the

Arizona rule, we find no reversible

error in its instruction that defined

accretion as a “gradual and

. . . : z , st L, Wi, aed 2 . 5 mes

ro SS a oe aa we MPa Oe - ae ge ame.

imperceptible" movement. An instruction

modeled on Arizona law” would contain

the same language. ° See State v.

Jacobs, 93 Ariz. 336, 338-40, 380 P.2d

998, 1000-01, cert denied and appeal

dismissed, Jacobs v. Arizona, 375 U.S.

(1963); Lusting State v. Bonelli Cattle

Co., 107 Ariz. 465, 469, 489 P.2d 699,

703, supplemented, 108 Ariz. 258, 495

P.2d 1312 (1972), rev'd, 414 U.S. 313,

94 S. Ct. 517, 38 L.Ed.2d 526 (1973);

State v. Gunther & Shirley Co., 5 Ariz.

App. 77, 81, 423 P.2d 352, 356 (1967).

III.

{3} Appellants also contend that

the evidence of accretion was

insufficient to support a jury verdict

=—See ecg Slit Be alas as |

- 254 =

and that the district court erred in

denying their motion for judgment

notwithstanding the verdict. We

disagree. Because substantial evidence

supported the verdict of accretion, the

lower court did not err in denying

appellants’ motion.

In considering the propriety of a

district court's denial of a motion for

judgment notwithstanding verdict, the

standard is whether, when viewing the

evidence as a whole, there is

substantial evidence present that could

support a finding, by reasonable jurors,

for the nonmoving party. Chisholm Bros.

Farm Equipment Co. v. International

Harvestor Co., 498 F.2d 1137, 1140 (9th

Cir.}-e cert denied, 419 U.S. 1023, 95 s.

gail _*

rok ee et

a .

Ct. 500, 42 L.Ed.2a 298 (1974).

Substantial evidence is more than a mere

scintilla. Chisholm, 498 F.2d at

1140. It must be evidence that a

reasonable mind could accept as adequate

to support a conclusion. California

Computer Products v. International

Business Machines, 613 F.2d 727, 733-34

(9th Cir. 1979). This evidence,

however, must be examined in a light

most favorable to the prevailing

party. Kaplan v. Burroughs Corp., 611

F.2d 286, 290 (9th Cir. 1979), cert

denied, 447 U.S. 924, 100 S. Ct. 3016,

65 L.Ed.2d 1116 (1980); Chisholm, 498

F.2d at 1140. Neither the district

court nor the court of appeals may weigh

the evidence. Chisholm, 498 F.2d at

=e -

- 27a -

1140. Our task on appeal, therefore, is

the same as it was for the district

court. We must determine whether

government introduced substantial

evidence. Kaplan, 611 F.2d at 290.

In support of its argument that the

river moved by accretion, the government

presented expert testimony from an

hydrologist who had designed the channel

work for the Colorado River and from a

geologist-hydro. .gist who specialized in

the history of shifting streams. Their

testimony included aerial photographs

and a series of maps that demonstrate

the gradual southerly movement of the

river between 1879 and 1972. The

hydrologist also testified to the

hydrologic impossibility of a river

lengthening its channel by an avulsive

movement. According to the government,

from this evidence the jury could

reasonably conclude that, in meandering,

the river moved gradually by erosion and

accretion.

Appellants, on the other hand,

argued that the maps were «reliable and

that the photographs were misleading.

To support their theory of avulsion,

appellants called eye-witnesses who

testified to the violent and rapid

changes in the river's course during the

1920's. Appellants also pointed to the

repeated flooding of the river before

Hoover Dam was built in 1935, claiming

that uncontrollable flooding is

inconsistent with the gradual process of

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accretion. Finally, they relied on the

testimony of expert witnesses who

conducted geological surveys and found

an abandoned channel that the witnesses

Claimed could not have existed if the

river had moved slowly by accretion.

In short, the jury heard expert

testimony in support of both accretion

and avulsion theories. Evidence was

presented on both sides and both sides

were contradicted on cross-

examination. Nevertheless, only

substantial evidence is required to

uphold the jury's verdict. The evidence

presented by the government meets that

standard. We, therefore, affirm the

trial court's denial of appellants’

coe

ee. ;

- 30a -

motion for judgment notwithstanding the

verdict.

IV.

At trial, appellants contended that

the doctrine of equitable estoppel

barred the government from asserting a

Claim to Harvey's Fishing Hole. During

the proceedings below questions of law

and fact were generated on this issue

and the jury returned a verdict in favor

of the United States. Appellants

challenge the court's instructions and

the jury's verdict.

We conclude that the trial court

correctly instructed the jury on

equitable estoppel and that substantial

evidence supported the jury's verdict.

We, therefore, affirm.

-~ 3la-

Two legal questions are raised

concerning equitable estoppel. First,

the government claims that because

public lands are held in trust by the

federal government for the people, see

U.S. Const. Art. IV, § 3, appellants

cannot assert the doctrine of equitable

estoppel against the government's

interest in Harvey's Fishing Hole.

have observed on several occasions,

however, that in a proper case equitable

estoppel will lie against a government

claim to title in real property. See

United States v. Ruby, 588 F.2d 697,

703-05 (9th Cir. 1978), cert denied, 442

U.S. 917, 99 S. Ct. 2838, 61 L.Ed.2d 284

(1979); Skokmish Indian Tribe v. General

~- 32a -

Services Administration, 587 F.2d 428,

433 (9th Cir. 1978); United States v.

Wharton, 514 F.2d 406, 409-12 (9th Cir.

1975); United States v. Lazy FC Ranch,

481 F.2d 985, 989 (9th Cir. 1973).

[4] Nevertheless, because the

United States is trustee of public lands

for the benefit of the general public,

we have required an additional balancing

test not necessary when reviewing an

ordinary equitable estoppel claim. A

litigant seeking to preclude a

government interest in land must prove

more than the technical elements of

equitable estoppel: The litigants must

establish equities that, on balance,

outweigh the "inherent equitable

considerations which the government

VY toe i a eve: ll 5 -e | ‘

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asserts as the constitutional trustee on

behalf of all the people." Ruby, 588

F.2d at 705.7

{5, 6] The second question

concerns the elements of equitable

estoppel. Appellants argue that

affirmative misconduct is not a

necessary element of equitable estoppel

when asserted against the federal

government and the district court erred

in requiring proof of such conduct.

This contention is meritless, for we

have long held that affirmative

government misconduct must be proven

against the government. See Oki v. INS,

598 F.2d 1160, 1162 (9th Cir. 1979);

Lake Berryessa Tenants' Council v.

United States, 588 F.2d 267, 270-71 (9th

4 " tlt

p vi M A . i y , : > 7 od #

eee ae ek. eh ek ee ys AP gn me oS ne St ae Se ~ es * wey 7 ict, BER ZY

- 34a -

Cir. 1978); Ruby, 588 F.2d at 703-04;

Wharton, 514 F.2d at 409-11./° hus,

the district court correctly instructed

the jury that it must return findings on

five, rather than four, elements: (1)

whether the party to be estopped knew

the facts; (2) whether the party to be

estopped intended or could justifiably

be perceived as intending its conduct to

induce reliance; (3) whether the party

asserting the estoppel was ignorant of

the facts; (4) whether the party

asserting estoppel relied upon the

government's conduct; and (5) whether

the government engaged in affirmative

misconduct.

{7} The special interrogatories

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returned by the jury indicated that the

appellants failed to prove: 1)

ignorance of the facts; 2) reliance upon

the government's conduct; and 3)

government misconduct. Appellants

dispute these findings.

Pointing to several instances of

alleged government misconduct,

appellants assert that the jury's

finding that the government was not

guilty of affirmative misconduct is not

supported by substantial evidence.

First, the appellants allege that

Kindred and Donald Harvey were informed

by Graham Hollister, Special Assistant

to the Secretary of the Interior, at a

meeting on May 8, 1961, that the

government did not intend to condemn

PRO SEN ea

~- 36a -

Harvey's Fishing Hole. This conduct,

however, is inactionable. Whether or

hot the government planned to condemn

Harvey's Fishing Hole is irrelevant

because the issue was whether the

government planned to assert title to

the land. Condemnation and assertion of

title are not the same. Moreover,

Hollister did advise the people at the

May 8, 1961 meeting that the government

planned to claim title to all land along

the Colorado River.

The second ground of alleged

affirmative misconduct involved a

meeting in January 1963 between the

Harveys and Melvin Crosby, then

Assistant Administrator of the Lower

Colorado Land Use Office. The letter

-~ 37a -

that provided notice of the meeting

advised appellants there was "a question

as to the status of the area you occupy

in the Sportsmen's Paradise [Harvey's

Fishing Hole] area, and discussion of

this area must be deferred until a later

date." Nevertheless, the issue was

raised and Crosby informed the Harvey's

that Harvey's Fishing Hole was being

claimed as accreted land by the

government. Donald Harvey testified,

however, that Crosby was shown a copy of

the Harvey title and that Crosby stated

that the title war good. Appellants

contend that Crosby's statement

concerning the status of their title wae

inconsistent with the government's

earlier claim to the accreted lands.

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The fact that the Harveys had good

title, however, is irrelevant to the

question whether the government was

asserting title to the subject land.

The relevant issue was whether accretion

or avulsion occurred and which title,

the Harveys’ or the government's,

applied to the land in question.

Appellants next contend that the

Harveys attempted to enter the

litigation instituted by the government

against different parties in Beaver v.

United States, 350 F.2d 4 (9th Cir.

1965), cert denied, 383 U.S. 937, 86 S.

Ct. 1067, 15 L.Ed.2d 854 (1966), a case

involving a government claim to nearby

land. After trial but before decision,

the Harveys answered the government's

~ 39a -

complaint in Beaver, alleging that the

issues in Beaver were similar to the

facts and issues affecting their

interest in Harvey's Fishing Hole. The

government responded by filing a motion

to strike the answer, claiming that the

Harveys’ claim of interest "in and to

the lands adjoining the [Beaver]

property and premises condemned herein

are totally irrelevant and immaterial to

the issues of the instant action.” In

response to this motion and pursuant to

a stipulation, the Harveys agreed to

withdraw their answer without

prejudice. Subsequently, the Hagveys

continued to sell lots, allegedly

relying on the substance of the

government's motion to strike.

x A AWeae ge a ey es wae ee yee Oe __*

- 40a -

We do not find the government's

conduct in the Beaver case pertinent to

the appellants' claimed reliance in this

case. The government's position that

the Harvey's claims were irrelevant in

Beaver, an entirely different cause of

action, in no way suggests that it would

relinquish its claim to Harvey's Fishing

Hole. Even if appellants were proper

parties in the Beaver litigation, they

withdrew their answer without prejudice

pursuant to a stipulation.

Consequently, the government's conduct

was insufficient to warrant estoppel,

because it "did not cause [appellants]

to take action or fail to take action

that [appellants] could not correct at

any time." Schweiker v. Hansen,

ie “-" pee, : ; cao

Me Ce Te Ee ae? Se et eae ee a ee

- 4la-

U.S. ’ o 101 s. ct. 1468, 1471-

72, 67 L.Ed.24 685 (1981) (per curiam).

Appellants also argue that Crosby

visited Harvey's Fishing Hole on

official business in 1967 and agreed

with them that the property was not

accreted land. Although the record

indicates that Kindred Harvey did elicit

this concession from Crosby, appellants

also concede, and the record indicates,

that official government notification of

its claim to Harvey's Fishing Hole was

received shortly thereafter. This

notice renders spurious any contention

that appellants relied on Crosby's

opinion. Because appellants cannot

establish the requisite reliance, we

need not reach the question whether

has et ,

a . :

Ss seal |

* ; tite bi de * - i, . ry

Pipkin) nad BY eS MS ee ee 8 ee oe ee reek oP 2 Des 0" et Sy Se aa

. - .

PA Dae OPT a eae ian OS Pn a a

- 42a -

Crosby's statement of opinion could

constitute affirmative misconduct. ">

{8} Appellants also claim that the

government's failure to notify them of

its claim to Harvey's Fishir~ Hole until

1967 establishes equitable estoppel.

This assertion fails for two reasons.

First, because appellants knew of the

prospective government claim prior to

1967, they cannot establish reliance on

the government's alleged failure to

notify. =? Second, the government's

failure to notify, even if true, could

not constitute affirmative misconduct

because appellants have not alleged

facts establishing an active or

intentional concealment. Mere

negligence will not suffice.*?

See TR,

a, nN ’ :

- 43a -

Inc. v. F.T.C., 647 F.2d 942, 950-51

(9th Cir. 1981); Lavin v. Marsh, 644

F.2d 1378, 1383 (9th Cir. 1981); Simon

v. Califano, 593 F.2d 121, 123 (9th Cir.

1979); Santiago Vv. I.N.S., 526 F.2d 488,

493 (9th Cir. 1975), cert denied, 425

U.S. 971, 96 S. Ct. 2167, 48 L.Ed.2d 794

(1976).

Appellants have failed to prove the

necessary elements of estoppel. Because

there has been an inadequate showing of

equitable estoppel, we need not consider

the additional balancing test required

when equitable estoppel is asserted

against the government.

AFFIRMED.

bay

vt :

4 Yi

4 .

a . P Var

' am « . Ww,» BA ,. ha, a0 a sp. : me +4.

» en aa ee de le a NS palin de uM Ais ‘Wen Fee ee wailed Pe i." — €ea OO!

~- 44a -

*Honorable Earl R. Larson, United States

District J e for the District of

Minnesota, sitting by designation.

Appeilants do not contest the lower

court's damages assessment. They

argue, instead, that they were not

liable.

Section 1014 provides:

Where, from natural causes, land

forms by imperceptable degrees on

the bank of a river, navigable or

not navigable, either by

accumulation of material or by the

recession of the stream, such land

belongs to the owner of the bank

subject to any right of way over

the bank.

Cal. Civ. Code § 1014 (West 1954)

(emphasis added).

See Interstate Boundary Compact

Defining The Boundary Between the

States of Arizona and California,

Pub. L. 89-531, 80 Stat. 340

(1966).

The Iowa-Nebraska compact provides:

Sec. 2. The State of Iowa hereby

cedes to the State of Nebraska and

relinquishes jurisdiction over all

lands now in Iowa but lying

- 45a -

westerly of said boundary line and

continguous to lands in Nebraska.

Sec. 3. Titles, mortgages, 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 and effect in Iowa.

See Act of July 12, 1943, ch. 220,

57 Stat. 494.

Unlike Cal. Civ. Code § 1014, the

Arizona common law definition does

not expressiy focus upon

"natural"causation. See generall

State v. Bonelli Cattle Co., 107

Ariz. 465, 467, 489 P.2a 699, 701,

su lemented 108 Ariz. 258, 495

“<a 1312 (1972), cert ranted, 410

U.S. 908, 93 S.Ct. 837,38 LE. 4.24

269, rev'd on other grounds, 414

U.S. 313, 947 5.Ct. sty 38 L.Ed. 24

526 rehearin denied, 434 U.S.

1090, 98 S. Ct, 1290, 55 L.Ed.2d 797

(1973); State v. Jacobs, 93 Ariz.

336, 338, 380 P.2d 998, 1000-1001,

cert. denied and a al dismissed

108 (1963); State v. Gunther &

a Ol

- 46a -

Shirley Co., 5 Ariz.App. 77, 81,

423 > sa 352, 356 (1967).

Even though the district court "did

the right thing for the wrong

reason", we must affirm its

judgment. We must affirm if the

result is correct. Helvering v.

Gowran, 302 U.S. 238, 245, Se S.ct.

58, 82 L.Ed. 224 (1937);

United States v. Best, 573 F.2d

t r. 1978);

United States v. Stevens, 548 F.2d

1360, 1363 n.9 (9th Cir. ), cert.

denied, 430 "0. S. 975, 97 S.Ct.

1666, 52 L.Ed.2d 369 (1977).

Appellants contend that accretion

ah ye i is cone tees to

natura accretion. one

however, only held that “[Twjhere a

river shifts to a new location as a

result of unnatural forces, the

state does not lose title to the

of the stream in the old

location." Bonelli, 107 Ariz. at

469, 489 P.2d at 703 (emphasis

added). Bonelli did not involve an

upland private Claimant. Moreover,

even the federal common law,

consistent with the majority common

law rule, recognized the rule that

an upland owner could not benefit

from self-employed intentional

accretions. Bonelli 414 U.S. at

323, 94 S. Ct. at 524-25. See

;

Fate

Fr, | -. ae

- 47a -

chaffer v. hnabel, 494 P.2d 802,

‘a7 (Alaska i972); rd of

ustees v

Inc., 272 So. (Fla. App.

1973); Brundage. v. Knox, 279 Ill.

450, 452, , 125 (1917);

State by McKay v. “Sause, 217 Or.

52, , 342 P. 06 (1959).

Consequently, appellants’

contention that a new trial is

necessary in order to present a

fuller demonstration of artificial

accretion is meritless. Under

Bonelli, such evidence was

relevant. Indeed as appellants

admit, they expended much aoeeey at

trial on the issue of artificia

causation.

Because the Constitution explicitly

entrusts to Congress the “power to

dispose of and make all Rules and

Regulations respecting the

Territory and other property

belonging to the United States",

U.S. Const. Art. IV, § 3, cl. 2,

the principle of separation of

powers is directly implicated when

equitable estoppel is sought to be

applied against a federal claim to

title in land. Although Congress

may delegate administrative

responsibilities to executive

agencies, United States v.

Cassiagrol, PF. » 876-77

(4th ete)

, cert denied, 397 U.S.

- 48a -

1044, 90 S. Ct. 1364, 25 L.Ed.24

654 (1970), the property clause has

been interpreted as exclusive and

"without limitations". United

tates ounty of San

Francisco, De ’ ’

° , 756, 84 L.Ed. 1050

(1940). Consequently, when

Congress has not authorized a

disposition of federal lands, the

application of a remedy such as

equitable estoppel against a

federal claim or defense tends to

frustrate the intent of a specific

constitutional provision.

The United States contends that

appellants cannot rely on 28 U.S.C.

§ 2409a (1976) in asserting that

the United States is estopped from

claiming title to the disputed

accretions. Because we held in

Ruby that, under common law

principles, offensive and defensive

use of equitable estoppel against

the United States in quiet title

actions may be appropriate, we need

not decide the statutory

question. See Ruby, 588 F.2d at

700, 703 (in quiet title action by

government, defendant's estoppel

counterclaim could succeed if

affirmative misconduct

established).

5 ae a

- 49a ~-

The Supreme Court recently observed

that it has never decided what type

of conduct by a government official

would estop the goverment, or

“whether even ‘affirmative

misconduct' would estop the

government." Schweiker v.

Hansen, U.S. ’ S. Ct.

savas Sete I 67 L.Bd.2d 685

(1981).

See Schweiker, U.S. at 9

101 8. Ct. at 1470-71 (negligent

misstatement will not support

equitable estoppel against

government) ; pavis v. Marsh, 644

F.2d 1378, 13 r. 1981)

(citing Federal Cr Insurance

Corp. v. Merrill, 353 U.S. 380,

ar. , Ss. . 1, 3-4, 92 L.Ed.

10 (1947)) (persons dealing with

government must assume that

government agents may exceed their

authority and provide

misinformation).

The Harveys' contention that they

were ignorant of the government's

claim is frivolous. In 1960, they

were served with a complrint in the

Beaver litigation and in 1963, they

ed a belated answer in the same

action. Furthermore, the Harveys

concede that a meeti on May 8,

1961, the Special Assistant to the

Secretary of Interior had informed

13/

them that the government might

Claim land along the lower Colorado

River.

Nor can those who purchased from

the Harveys claim ignorance. On

September 5, 1961, the federal

survey of the disputed land was

recorded in the public land office

record and, on August 25, 1961, in

the Federal Register. These

purchasers had constructive notice

of the government's claim. See

poder SESB jpaurance Corp. Vv.

rr . 68

S. Ct. 1, 2-4, 92 L.Ed. 10 (1947);

Lavin v. rsh, 644 F.2d a —

(9th Cir. 1581);

Consolidated Mines

> . r. ;

Gaylore v. we 153 F.24 408, 416

r. ).

Appellants contend that the jury's

verdict is internally inconsistent

because it found the absence of

affirmative governmerit misconduct,

yet it also found thet the federal

officials intended to induce

reliance. We disagree. An absence

of affirmative misconduct and the

presence of an intent to induce

reliance are not inconsistent if

the conduct intended to be relied

upon were negligent misconduct.

. - 5la-

( ENTERED/FILED )

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

( October 15, 1974 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 72-277-T

UNITED STATES OF AMERICA,

Plaintiff,

IVA MAY HARVEY, Widow, et al.,

Defendants.

ORDER DENYING DEFENDANTS '

AND PLAINTIFF'S MOTIONS

—FOR SUMMARY JUDGMENT __.

BACKGROUND

The United States brought an

action to eject against approximately

150 defendants who claim ownership to

land in a twenty-seven acre subdivision

known as “Harvey's Fishing Hole,"

located on the California side of the

Colorado River two miles south of

Gee

- "i=

Blythe. The defendants counterclaimed

with a suit to quiet title.

All except four of the defendants

are the successors in interest of

Kindred E. Harvey, now deceased, who in

turn claimed ownership through a chain

of title originating in a patent deed of

1914.

In 1914 the land in question was

located south of the Colorado River in

Arizona. The United States owned the

northern bank on the California side of

the river. Sometime prior to 1935 the

course of the river shifted to the south.

As a result, the land in question is now

north rather than south of the river.

Ownership of the land depends on

whether it became part of the northern

bank by process of accretion or avul-

sion. If form by accretion, it probably

a aie |

vay Ee A

— °° Ss. es -,” *

- 53a -

belongs to the United States, who has

always owned the northe:.. bank. If

formed by avulsion, it more likely

belongs to the defendants.

Property directly adjoining

Harvey's Fishing Hole and occupying the

same bend in the river was the subject

of a government condemnation action

which commenced in 1960. In Beaver v.

United States, 350 F.2d 4 (9th Cir.

1965), the Ninth Circuit affirmed Judge

Kunzel's determination that the adjoin-

ing property was formed by process of

accretion and belonged to the United

States.

MOTIONS p

Both the United States and the

defendants have moved for summary judg-

ment and the matter came on for hearing

- 54a -

on October 7, 1974. Having heard argu-

ment and reviewed the extensive memoranda

and affidavits submitted by the parties,

the court makes the following orders:

1. Defendants’ motion for summary

iudgment on the basis of the affidavits

of Lewis G. Castner, Jack R» Rodges, Iva

Mae Harvey and Donald Harvey. These

affidavits support the so-called “cotton-

wood tree” argument. They indicate that

the studies of an arborist and a radio-

logist show that certain trees located

on Harvey's Fishing Hole existed prior

to the 1914 patent deed. The inference

to be drawn is that these trees would

have been eroded away during an accre-

tive process; their survival proves the

change in the course of the river was

avulsive.

’ - vs .

os, Dek le te eh Pee oe ee) oe A. TY

ee | a. eee ; foal

The Court finds the argument intri-~

guing but not conclusive. In direct con-

flict is the affidavit of John S. Ewan, a

hydraulic engineer employed by the United

States Department of Interior. He states

the river bend was formed by process of

accretion. Whether the court should

credit the view of the arborist or the

hydrologist can be determined only by

trial. This motion for summary judgment

is denied.

2. Defendants' motion for summary

diudgment under the Color of Title Act

{43 U.S.C. 1068, et seq.). Since the

court cannot determine whether the land

was formed by accretion or avulsion, it

cannot determine whether the defendants

are entitled to a patent under the Color

of Title Act. As indicated in Beaver v.

United States, 350 F.2d 4, 10 (9th Cir.

en) aR

a a - ote : 4

an Sn Seeee ele Oe ae oe eae os.

wT - - Pe ee da ‘ , 4 = fen 4 a8 aie a rt

- 56a - :

1965), the government property on the

northern side of the river was withdrawn

from entry in 1902 and therefore is not

subject to the Color of Title Act. If

Harvey's Fishing Hole is part of the

government property by virtue of accre-

tion, the Color or Title Act cannot

apply to it. It is difficult to see a

claim under the Color of Title Act can

benefit the defendan*'s in any event.

If there was accretion, they cannot

assert the claim; if there was avulsion,

they probably own the land without

asserting a claim under the Act. This

motion for summary judgment is denied.

3. Defendants’ motion for summary

iudgment on the basis of estoppel. The ;

defendants assert thie theory as a

defense to the government's suit to eject

Pie

Mes

s ae:

[4 We ‘

De : a ‘

y 4aee B . - ‘| ¥ we %

Ls ee m “> » - 4 Svat ; ee.) / fn eR nee oe” «fie ie <a

- 57a -

and as an affirmative ground in their

counterclaim to quiet title.

The defendants argue that, regard-

less of whether the land was formed by

accretion or avulsion, the government

is estopped to deny their ownership of

the land because they have occupied and

improved it in reliance on statements

by various government representatives

in the Bureau of Land Management, the

Army Corps of Engineers, and the

United States Attorney's Office. For

instance, it is alleged that the U.S.

Attorney assured the Harveys in 1963

that the Beaver litigation would not

affect them, and, inferentially, that

the government recognized title in the

Harveys. Furthermore, it is alleged

that:

{P]rior to 1967, the right,

title and interests of the

-y Sov ee are

[Harveys]...to the lands

involved in the present

contrsversy, were readily

and consistently recog-

nized, acknowledged and

conceded by representa-

tives of the United States.

Sosa pao of Iva Mae Harvey,

Pe 5)

Generally equitable estoppel is

not available against the United States.

Utah Light and Power Co. v. United

States, 243 U.S. 389 (1917). But in

recent years an exception has developed

where (1) the government is acting in

its proprietary rather than sovereign

capacity, and (2) if its representative

has been acting within the scope of its

authority. United States v. Georgia-

Pacific, 421 F.2d 92 (9th Cir. 1970);

Brandt v. Hickel, 427 F.2d 53 (9th Cir.

1970); United States v. Lazy FC Ranch,

481 F.2d 985 (9th Cir. 1973); Oil-Shale

Corporation v. Morton, 370 F.Supp. 108

(D.C. Colo. 1973). There is no showing

that either of these threshold require-

ments are fulfilled.

However, the court finds that it

is unnecessary to meet these threshold

requirements in this case because of the

enactment of 28 U.S.C. 2409a (Real

Property Quiet Title Actions), which

provides, in pertinent part:

(a) The United States may

be named as a party in a

civil action under this

section to adjudicate a

disputed title to reai

property in which the

United States claims an

interest. . « «

(f) Any civil action under

this section shall be

barred unless it is com-

menced within twelve

years of the date upon

which it accrued. Such

action shall be deemed

to have accrued on the

date the plaintiff or

his predecessor in

interest knew or should

have known of the claim

of the United States.

(g) Nothing in this

section shall be con-

strued to permit suits

against the United

States based on adverse

possession.

As stated in Beaver, supra, p. 7,

the general rule that equitable estoppel

does not apply against the United States

does not attain where the United States

has consented to be sued in quiet title

actions by virtue of § 2409a.

The government contends that the

defendants cannot assert § 2409a because,

by expressly excluding adverse posses-

sion, Congress also excluded equitable

estoppel. The legislative history on

this point is inconclusive. However,

the court notes that the two theories,

- 6la -

though similar, are distinct; the court

concludes that the express exclusion of

adverse possession indicates an intent

to include all other theories of action,

including equitable estoppel to the

extent it is available in any suit to

quiet title. Expressio unius est

exclusio alterius.

The defendants may properly assert

estoppel in their answer and counter-

Claim. However, the defendants have not

met the burden of showing the absence of

any issue as to all the material facts,

which, under the applicable principles of

substantive law, entitle them to judgment

as a matter of law. The substantive law

of estoppel has been defined by the

Ninth Circuit as follows:

"Four elements must be

present to establish the

- 62a -

defense of estoppel:

(1) The party to be

estopped must know the

facts; (2) he must

intend that his conduct

shall be acted on or

must so act that the

party asserting the

estoppel has a right

to believe it is so

intended; (3) the

latter must be ignor-

ant of the true facts;

and (4) he must rely

on the former's con-

duct to his injury.

—

This court thinks that there are material

issues of fact as to all of these ele-

ments, and directs the attention of

counsel especially the second and third

elements. As to the third, the defen-

dants may have known the fact that

their title was controverted because of

- 63a -

the existence of the Beaver litigation,

which affected the property next door.

It may well develop, as argued by defen-

dants, that contemporaneous and subse-

quent representations by government

officials had the effect of assuring the

defendants that Beaver was of no signi-

ficance. This argument would involve the

proof of the second element of estoppel,

namely, that the government representa-

tives acted in a way that justified

reliance by the defendants. The defen-

dants have not clearly shown what the

truth is in this regard. The affidavit

of Iva Mae Harvey contains many conclu-

sory statements such as the one quoted

above. This kind of information does

not help the court determine exactly

what was said, by whom, to justify the

reliance of the defendants. The alleged

er “— se No ee

;

- 64a -

assurance from the U.S. Attorney to the

Harveys’ lawyer that the Beaver case

would not affect the Harvey land is

similarly vague. Even if it is accepted

that the 0.S. Attorney stated that "Their

respective rights would not be prejudiced

in any way the ultimate decree in the

Beaver case” (Affidavit of Iva Mae

Harvey, p. 12), the meaning of this

statement is wholly unclear in the con-

text of the affidavits now before the

court. It could mean that the United

States would never challenge the Harveys’

title, or merely that the Beaver deci-

sion of itself would not affect the

Harveys’ title. Furthermore, much of

the Iva Mae Harvey affidavit pertaining

to the discussions with the U.S. Attorney

and other government representatives

contains hearsay which is improper under

~ 65a -

Fed.R.Civ.P. 56(e). The Court has

reviewed all the affidavits including

those of Beverly Truelove, Ralph

Brookings, Neil John, and Donald

Harvey, and finds that they do not

adequately show that the government

induced reliance. This motion for

summary judgment is denied.

4. nd . n for

Summary judgment on the basis of P.L.

91-505. This legislation permits cer-

tain claimants to Colorado River pro-

perties in Riverside County to assert

all legal and equitable defenses against

the government in ejectment actions.

The defendants argue that this law

unfairly discriminates against them

and that the court should excise cer-

tain words from the statute which limit

its application to Riverside County,

-. - ys | «

al |

and thereby extend its benefits to all

Claimants of Colorado River lands. The

court denies the motion because striking

the relevant language would defeat the

legislative intent. A similar bill

lacking the restrictive language was

previously vetoed by the President; its

proponents did not muster the necessary

two-thirds vote to override the veto.

The defendants cannot expect the court

to override the President's veto where

Congress has failed to do so.

S. Vv nt's ion r

cr ud nt b s i Beaver

s round r col er sto .

The U.S. Attorney cites the following

standard for collateral estoppel:

(1) Was the issue decided in the prior

adjudication identical with the one

- 67a -

presented here? (2) Was there a judg-

ment on the merits? (3) Was the party

against whom the plea is asserted a

party or in privity with a party to

the prior adjudication? (4) Was the

party given an opportunity to be heard?

Bernhard v. Bank of America, 19 Cal.2d

807 (1942); State of Maryland v. Capitol

Airlines, Inc., 267 F.Supp. 298,304

(D Md. 1967). |

The third and fourth elements

have not been satisfied. Kindred Harvey,

the predecessor in interest to all but

four of the defendants, was not in pri-

vity with any of the defendants in the

Beaver litigation. Nor was he a party

who had the opportunity to be heard.

Although named and served in the Beaver

action, his property was not within the

pale of the 11.8 acres condemned in that

~~ Ce Se! | ir .. a ee e!

;

- 68a -

action. When Harvey filed a belated

answer, the U.S. Attorney moved to strike

on a number of grounds, one of which was

that the Harveys’ claims of an interest

in adjoining lands was immaterial. Sub-

sequently the Harveys’ answer was with-

drawn without prejudice by stipulation

and order. On the present record, the

court can only conclude that, although

named in the complaint, the Harveys were

not proper defendants to the action, and

that the decision in the Beaver case can-

not now be raised against the Harveys and

their successors in interest. This

motion for summary judgment is denied.

6. Gov 2 n_ for

ls nt on th °

h claim und 9a i r b

h v m :

Kindred E. Harvey was served with notice

\ eee oe

of the government's claim in the Beaver

case on October 14, 1960. The defen-

dants' counterclaims were filed more

than twelve years later; therefore the

government argues that the defendants

should be barred by the twelve year

statute of limitations in § 2409a(f).

However, whether or not the Harveys and

other defendants “should have known of

the claim of the United States” may be

determined, in part, by the alleged

representations to the Harveys by

government officials as late as 1967.

Also, it is not clear that the notice

of the condemnation suit involving

neighboring property adequately put

the Harveys on notice that their own

+ Yel

eet et N ran Pa age i

DATED: October 11, 1974

“AY

- Tla-

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

(LODGED - February i7, 1976 )

(FILED - March 1, 1976 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

No. Civil 72-277-T

UNITED STATES OF AMERICA,

Plaintiff,

vs.

IVA MAY HARVEZ, a widow, et al.,

Defendants.

PRE-TRIAL CONFERENCE ORDER

Following pre-trial proceedings

pursuant to Rule 16 of the Federal Rules

of Civil Procedure and Local Rule 9 of

this Court, IT IS ORDERED:

1. This is a civil action

brought by the United States against

approximately 150 defendants for dam-

ages and seeking to eject them from

= e nF “

bo Ft a

ev ee! eee

at. a, *

- 72a -

certain real property located near

Blythe, California, and described by

plaintiff in its Complaint as follows:

Section 9, Township 9

South, Range 22 East,

San Bernardino Meridian,

Portions of Lots l, 2,

5 and 6.

The defendants have counter-

claimed against the United States to

quiet and extinguish all right, title

or interest which the United States may

Claim in the property. The issues in

the action are raised by the Complaint,

defendants’ Answers and Counterclaims,

and plaintiff's Replies to Counterclaims.

2. Jurisdiction and venue of

the Court is invoked under the provi-

sions of Title 28 U.S.C., Sections 1345,

1346(f), and 1402(d).

3. The facts described in

Appendix "A", attached hereto, are

~- 73a -

admitted and require no proof at

trial.

4. The following issues of

fact, and no other, remain to be liti-

gated at the trial:

a. Whether the real

property described by

plaintiff in the Complaint

as:

Township 9 South, Range

22 East, San Bernardino

Meridian, Section 9:

Portions of Lots l, 2,

5 and 6 was formed by

the process of accretion

or by avulsive movements

of the Colorado River.

b. What damages if any is

the United States entitled to

if it prevails. <

c. Whether the United

States is estopped or barred

Se a ere ML .

Site ot ha ©

ace *

~~ Ss

7 .

- 74a -

to deny the defendants’ owner-

ship of the property in issue

here.

The exhibits to be offered

at the trial, together with a statement

of all admissions by and all issues

between the parties with respect thereto,

are described in Appendix "B" attached

hereto.

The plaintiff may call the

following witnesses at trial:

Dr. C. W. Ferguson

Dr. Hans Suess

Ernest Pemberton

John A. McEwan

Stanley Wagner

Richard Hadley

Albert Romeo

Melvin S. Crosby

Fern Blair

co oe 7

- 75a -

j.- All defendants

ke Damage witness

l. Richard F. Goulette

m. Lillian M. Goulette

The defendants may call the

following witnesses at trial:

Jack R. Rogers

Dr. Ranier Berger

Dr. Roy J. Shlemon

Dr. Eugene Begg

Employee of Teledyne

Geotronics

Louis Caster

Manuel Lopez

Iva May Harvey

Donald G. Harvey

Albert Romeo

Melvin S. Crosby

Other defendants.

~—s*. 3

iat |

[~™

- 76a -

7. The following issues of law,

and no others, remain to be litigated

upon the trial:

a. Whether estoppel and all

other rights, remedies, and

defenses, except adverse posses-

sion, are available to the

defendants and counter-claimants

herein.

b. Whether there is a

presumption of accretion and, if

so, how is it established.

ce. The legal standards for

proving accretion or avulsion.

ad. Whether the United States

is entitled to damages if it pre-

vails and the measure thereof.

e. Was the center of the

Colorado River the boundary

- 77a -

between Arizona and California

at all times pertinent herein.

f. Whether a withdrawal of

public lands by the Secretary of

the Interior precludes private

rights from being perfected on

said lands by estoppel or other

rights and remedies.

8. The foregoing admissions

having been made by the parties, and the

parties having specified the foregoing

issues of fact and law remaining to be

litigated, the order shall supplement

the pleadings and govern the course of

the trial of the cause, unless modi-~

fied to prevent manifest injustice.

DATED: 3/1/76

sf poaetd - Futreste

Approved as to form and content.

ifchacl f--Galetons AasTatant

U.S. Attorney, Attorney for Plaintiff

MARINOS & STYN

r meys gun

Hoya ie Shebley

DUNCAN, BROWN, WEINBERG & PALMER

ore #4 i. gett}

Attorneys for Defendants

The following facts are stipu-

lated and require no proof at trial:

(1) This is a civil action

brought by the United States of America

against approximately 150 defendants

seeking to eject and remove them from

certain real property (hereinafter

referred to as the property) located

near Blythe, California, and described

by plaintiff in its Complaint as follows:

Township 9 South, Range

22 West, San Bernardino

Meridian, Section 9:

Portions of Lots l, 2,

5 and 6.

In a@dition, if the Court should

find the government to be the owner of

the property in issue here, then the

- 80a -

United States seeks to recover damages

against each of the defendants in the

amount of the reasonable yearly rental

value of the property from the date the

defendants have had possession of the

property to and until the time the Court

should award the United States exclusive

possession of the property.

(2) The defendants have counter-

Claimed against the United States to

quiet and extinguish any right, title

or interest which the United States may

Claim in the property.

(3) The property in issue here

is known as “Harvey's Fishing Hole” or

alternatively as “Sportsmen's Paradise."

(4) In 1902 certain land was

surveyed by the United States and

legally described as:

z _— ~ “god % OW ot See, pk ee ek » of =e) +» Soe er

Er LL SC dpi. ey

we : ¥

- Bla -

SW1/4 NW1/4 Section 21

Township 1 North, Range

23 West, Gila and Salt

River Meridian, Yuma

County, Arizona.

These lands were then located near the

Arizona side of the Colorado River which

was South of the river channel as it

existed in 1902.

(5) On January 13, 1914, the

United States conveyed the land described

in paragraph (4) above to Cherry S.E.

Carlin by Patent No. 381486. The patent

was recorded in the County of Yuma, State

of Arizona, in Docket 66, page 293. The

lands were described in the patent as

follows:

SE1/4 of the NE1/4 and the

NE1/4 of the SE1/4 of Section

20 and the SW1/4 of the NW1/4

;

’

be.

wie i iM ee <= ait —~ ms ;

Se ee ee ee ee ee ae ee” oe oe i atlas Bed

and the NW1/4 of the SW1/4 of

Section 21 in Township One

north Range 23 west of the

Gila and Salt River Meridian,

Arizona, containing 160 acres.

(6) The chain of title on the

land described in paragraph (4) from the

January 13, 1914 patent from the United

States to Cherry S.E. Carlin is as

follows:

a. Deed from Cherry S.E.

Carlin, a single man, to W.A.

Carlin, recorded in Book 37

of Deeds, page 307.

b. Deed from W.A. Carlin

and Grace Carlin, his wife, to

Sam Thompson, recorded in Book

61 of Deeds, page 473.

- 83a -

c. Deed from John Garfield

Eckles to Fred Wardle, recorded

in Book 74 of Deeds, page 295.

d. Treasurers Deed to the

State of Arizona, recorded in

Book 98 of Deeds, page 261.

e. Deed from the Board of

Supervisors of Yuma County, to

Richard F. Goulette and Lillian

M. Goulette, his wife, recorded

in Book 109 of Deeds, page 465.

f. Judgment quieting title

in Richard F. Goulette and

Lillian M. Goulette, his wife,

recorded in Docket 66, page 294.

(7) On November 10, 1952, the

era

land described in paragraph (4) was con-

veyed to Kindred E. and Iva May Harvey

by Richard F. and Lillian M. Goulett

Le bap

, = ie t +y ’ 5 i

eo See). Se ee’ ae : : a ye mT

- 84a -

At that time the deed described the land

Southwest Quarter (SW)/4)

of Northwest Quarter (NW1/4) a

of Section 21, Township 1 3

North, Range 23 West, con-

sisting of approximately 40

acres, Gila and Salt River

Base and Meridian, Yuma

County.

(8) On January 13, 1914, when

the Patent was issued by the United

States of America to Cherry S.E. Carlin,

the land was located south of the

Colorado River in the State of Arizona.

Between 1914 and 1935, the channel of

the Colorado River moved in a southerly

direction until it established the

channel approximately in its present

location.

(9) In 1960, the United States

surveyed the property in issue here which

is in the same geographical and physical

location as the land described in para-

graph (4) above and described it as a

portion of Section 9, Township 9 South,

Range 22 West San Bernardino Meridian,

State of California.

(10) Portions of Lots 1, 2, 5 and

6, Section 9, Township 9 South, Range 22

East, San Bernardino Meridian, which is

the property in issue here occupies the

same geographical and physical location

at the SW1/4 NW1/4 of Section 21 Township

1 North, Range 23 West, Gila and Salt

River Meridian, Yuma County, Arizona,

which was the land conveyed to Kindred E.

and Iva May Harvey on November 10, 1954.

(11) Following the acquisition by

Kindred E. and Iva May Harvey of a deed

to the land described in paragraph (4),

property taxes were paid to Yuma County,

Arizona. In this regard, the land des-

cribed in pargaraph (4) here was on the

tax rolls of the County of Yuma, State

of Arizona, until 1966, when the Congress

of the United States formally ratified

the Colorado River Boundary Compact

between the states of Arizona and

California (See Public Law 89-531 and

California Government Code, Section 175

et seq.). Until the effective date of

Said Compact, property taxes were

assessed by the County of Yuma and

paid by the defendants on the land

described in paragraph (4*‘ above.

(12) Beginning in 1956, Kindred E.

Harvey began the planning and development

of a recreation - residential community

consisting of some ninety~six (96) lots

- 87a -

to be located on the property in issue

here.

(13) During the period of 1956

and 1957, a large portion of the property

in issue here was cleared of natural

vegetation in preparation for the deve-

lopment of a receational and residential

community. The clearing and preparation

of said lands for development was done

openly and was observable by representa-

tives of the United States, including

representatives of the U.S. Pureau of

Reclamation.

(14) In 1956, Kindred E. Harvey

applied to the State of California for

a permit to sell within the State of

California lots on the property which

is the subject of these proceedings. In

1956 after reviewing the aforesaid appli-

cation for a subdivision permit, the

State of California issued a subdivision

permit to Kindred E. Harvey and furnished

to him a subdivision report. Thereafter,

final development of the property in

issue was commenced.

(15) In 1958 as development of

the subdivision commenced, Kindred E.

and Iva May Harvey commenced the sale

of lots to a third parties, many of whom

are named as co-defendants in the above

mentioned proceedings. To date, approxi-

mately eighty (80) lots have been sold by

Kindred E. and Iva May Harvey, to third

parties, all of whom have at various

times occupied said lots and many of

whom have placed improvements on said

lots.

Appendix "A"

( FPILED/ENTERED )

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

( January 14, 1977 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 72-277-T

UNITED STATES OF AMER™ 7A,

Plaintiff,

IVA MAY HARVEY, a widow, et al.,

Defendants.

MEMORANDUM AND ORDER DENYING

MOTIONS FOR JUDGMENT NOTWITH-

STANDING VERDICT AND FOR NEW

TRIAL

Defendants’ motions for judgment

notwithstanding verdict, and for ne"

trial came on for hearing January 10,

1977. The court, having considered the

evidence adduced at trial, the memoranda

submitted in support of the motions,

and the argument of counsel, concludes

ins cal ob (a >

that all motions must be denied in all

respects.

On November 23, 1976, the jury

returned a general verdict for the

United States of America, along with

answers to nine special interrogatories.

The vercict and the answers to the

interrogatories reflect the jury's

conclusions that the described land,

known as Harvey's Fishing Hole, was

formed by the process of accretion

and thus entitling the United States

to possession of such accreted land;

that the government was not estopped

from asserting its right to posses-

sion; and, that the government should

be compensated in an amount equal to

the reasonable rental value of the

respective parcels occupied by the

defendants.

AS > a + ~e il

- S9la-

In the motions pending,

defendants raise evidenciary and

instructional errors. In addition

they challenge the sufficiency of

the evidence to support the jury's

findings on the questions of

accretion-avulsion, estoppel, and

damages.

When deciding a motion for

judgment n.o.v., the court must view

the evidence in a light most favor-

able to the prevailing party. The

court may not weigh or evaluate cre-

dibility. So viewed, to grant such

a motion, the court must be able to

conclude the evidence presented by the

prevailing party is insufficient to

support the verdict as a matter of law.

The presence of substantial evidence is

sufficient to withstand the motion.

: =

SA Moore, Fed. Practice #50,07[2]; 9

Wright, Miller & Cooper, Fed. Practice

& Procedure §§2524-2529, 2537; F.R.

Civ.P., Rule 50. Defendants have met

all prerequisites required by Rule

50(b) enabling the court to hear the

motion.

Rule 59(a), F.R.Civ.P., author-

izes a motion for new trial. Of such a

motion, the Supreme Court states:

The motion for a new trial

may invoke the discretion

of the court in so far as

it is bottomed on the claim

that the verdict is against

the weight of the evidence,

that the damages are exces-

sive, or that, for other

reasons, the trial was not

fair to the party moving; and

- 93a -

may raise questions of law

arising out of alleged sub-

stantial errors in admission

or rejection of evidence or

instructions to the jury.

Montgomery Ward & Co. v. Duncan, 311 U.S.

243, 251 (1940).

In deciding whether the weight

of the evidence is against the verdict,

the court is not required to view the

evidence most favorably to the pre-

vailing party. Instead, the court may

weigh the evidence, giving full respect

to the findings of the jury. If from

the entire evidence, the court is left

with the firm conviction a mistake has

occurred, it may, in its discretion,

grant a new trial. The court, however,

cannot set aside a verdict simply because

- 94a ~-

it might have reached a conclusion dif-

ferent from that of the jury on the same

evidence; more must appear. Beveridge

Distributors, Inc. v- Olympic Brewing

Co., 440 F.2d 21 (9th Cir. 1971), cert.

denied, 403 U.S. 906 (1971); see

generally 6A Moore, Fed. Practice

759.08(5]; 9 Wright, Miller & Cooper,

Fed. Practice & Procedure $2806.

Similarly, the question of

whether a jury's assessment of damages

is excessive, is a matter addressed to

the sound discretion of the court.

Again, the court is to avoid substi-

tuting its judgment for that of the

jury, unless it appears the particular

award of damages is unconscionable or

grossly excessive. 6A Moore, Fed.

Practice 459.08(6)].

= oe

il ESP Us SF

- 95a -

}

Initially, defendants challenge

the sufficiency of evidence to support

the jury's finding that the land known

as Harvey's Fishing Hole was formed by

the process of accretion. Suffice it

to say that both plaintiff and defendants

offered extensive, sharply contradicting

expert testimony on the question of avul-

sion and accretion. Plaintiff's wit-

nesses all testified Harvey's Fishing

Hole was formed by the process of accre-

tion; defendants’ witnesses testified to

the contrary. The court concludes sub-

stantial evidence for the jury's finding

is present, and denies the motion for

judgment n.o.v. On this ground. The

evidence was evenly balanced, clearly

presenting a question for the jury; the

weight evidence does not preponderate

in favor of defendants.

Secondly, defendants challenge

the sufficiency of the evidence to sup-

port the jury's negative answers to

Special interrogatories numbered 3, 6,

and 7, each of which relate to one of

the five elements of estoppel. To have

prevailed on the affirmative defense of

equitable estoppel, the defendants had

the burden of proving all five elements,

which in turn required affirmative

answers to Special Interrogatories

numbers 2, 4, 5, 6, and 7.

Special Interrogatory No. 3

sought a finding whether the government

engaged in affirmative conduct which

amounted to a representation of mater-

ial facts. The jury answered in the

negative. The defendants contend the

uncontradicted evidence showed that the

government, through its agents, made

~ ——

er. |

- 97a -

certain representations to the effect

that it had no intention of claiming

Harvey's Fishing fiole. The record does

not support the contention. As an

example, it appears from the testimony

of Melvin Crosby, Special Assistant to

the District Manager of the Lower

Colorado River Land Use Office,

Department of Interior, that defendants

were generally advised of the govern-

ment's claims to the land as early as

1962. It also appears from his testi-

mony that Iva May, Kindred and Don

Harvey were told by Crosby that the

government intended to claim the land

under the doctrine of accretion in

January 1963. Crosby's testimony alone

is substantial evidence supporting the

jury's finding. Whiie it is true that

Boek

Sei us

‘wa

Crosby's testimony may be deemed con-

tradictory in some respects, the fact

remains, his testimony, if believed by

the jury, supports the finding.

Specia) Interrogatory No. 6

sought a finding whether defendants

were ignorant of the true facts con-

cerning the government's claim to

Harvey's Fishing Hole. The jury

answered in the negative, finding that

the defendants were not in fact ignorant

of the government's claims. There is

ample evidence to support this finding.

Again, using Crosby's testimony as an

example, it is clear that the Harveys,

who subdivided and marketed the land,

had knowledge that the government dis-

puted title to the land, and that it

intended co claim it under an accretion

theory. It is also clear that defendants

ee a EE) ket Agee Oe haeere RT e

F at; ,

were aware that the Colorado River had

moved or changed its course at various

times antedating defendants’ occupation

of Harvey's Fishing Hole. The jury's

finding is supported by substantial

evidence.

Special Interrogatory No. 7

sought a finding whether the defendants

relied upon the conduct of the govern-

ment to their injury. The jury answered

in the negative. Defendants’ contention

on this point is premised on the court's

acceptance of their argument as to

Special Interrogatories numbered 3 and 6.

Since the court has rejected those argu-

ments, and no additional arguments are

made, defendants’ position as to Special

Interrogatory No. 7 is untenable.

-” & » <dZ_

- 100a -

Thus, it appears each of the

contested findings is supported by sub-

Stantial evidence. While on some points

the evidence might be deemed less than

overwhelming, the court is not convinced

the conclusions reached by the jury are

such that warrant the granting of a new

trial. The court is not convinced a

mistake has occurred, and accordingly

declines to exercise its discretion in

favor of granting a new trial.

Thirdly, defendants seek a new

trial on the issue of damages. The

jury, in Special Interrogatories num-

bered 8 and 9, concluded the government

was entitled to an award of damages. The

jury specified the exact sum attributable

to each defendant. Defendants first con-

tend that since the government did not

formally claim the land known as Harvey's

- 10la -

Fishing Hole until 1967, it is uncon-

scionable that any award for damages for

the period of 1960 to 1967 be allowed to

stand. While the government's evidence

did reflect calculations dating from

1960, the jury awarded an amount far

less than that claimed by the government.

Thus, it is possible that the jury took

into account the factors argued by

defendants. In any event, the evidence

on the issue of damages introduced by the

government was virtually uncontradicted.

It cannot, therefore, be said that the

weight of the evidence preponderates in

favor of the defendants.

The second point raised by

defendants on this issue, is that the

sum of the individual itemized damages

listed in Special Interrogatory No. 9,

does not equal the amount entered in the

‘

ALP i

ey . te +e

ae ee. ee 2 ee ee! OT eS ee ie Wet S 4 _ onde hl’

- 102a -

general verdict. That is, the sum of

the items listed on Special Interrogatory

No. 9 is $41,842.85, whereas the amount

entered on the general verdict is

$42,451.04, or a discrepancy of $608.19.

Defendants contend this requires the

granting of a new trial. The contention

is not well taken for two reasons. First,

the jury was told by the court it was to

itemize damages as to each defendant, if

they reached the issue, in the answer to

Special Interrogatory No. 9. The jury

was then told it need not total the

itemizations, and that it could leave the

general damages portion of the general

verdict in favor of plaintiff blank. The

reason for the instruction was simply to

avoid what has occurred: a mathematical

computation error. In any event, indi-

vidual judgments have been issued upon

aie eee ite Kee | Oe Le eee eS e oa eee

oe Oe

veg ‘ Sr ‘

ES:

- 103a -

the amounts set out in Special Interroga-

tory No. 9.

Secondly, the court may in its

discretion elect to follow the more

specific answers of a jury which are

contained in special interrogatories,

6A Moore, Fed. Practice 159.08[4], at

59-141, where the latter are inconsis-

tent with the jury's general verdict.

Here, in light of the court's instruc-

tions to the jury, the court elects to

authorize judgments for the amounts

itemized in the Special Interrogatory

No. 9. Accordingly, defendants’

motions as to the questions of damages

are denied.

Lastly, wholly apart from the

sufficiency of evidence contentions,

defendants advance arguments that

Ge “Ie 7m

e m a ss gg Bide

‘

AL «

- 104a -

various evidenciary rulings and instruc-

tional errors require the court to grant

a new trial. The court has reviewed

these contentions and concludes none of

the contentions requires the granting

of a new trial.

Accordingly, for the foregoing

reasons,

IT IS ORDERED that defendants’

motions for judgment n.o.v. and for new

trial be and the same are hereby denied

in all respects.

DATED: January 14, 1977.

s/ Howard B. Turr in

Unite tates strict Judge

COPY TO:

ALL COUNSEL

- 105a -

( ENTERED )

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

( January 18, 1977 )

TERRY J. KNOEPP

United States Attorney

MICHAEL E. QUINTON

Assistant U. S. Attorney

United States Courthouse

940 Front Street, Rm. 5-N-19

San Diego, California 92189

Telephone: (714) 293-5665

Attorneys for Plaintiff

United States of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 72-277-T

UNITED STATES OF AMERICA,

Plaintiff,

IVA MAY HARVEY, a widow, et al.,

Defendants.

9) R_ RE LA

The above-entitled matter came on

regularly for trial on the defendants’

its a ‘

~6 Ae a Fs s 5

ae eee ee a 2 r ; .

ee 0 Eo) ee ae a. “ae aa ee +

el ee Ee > ep erg —

~ 106a -

counterclaims on November 9, 1976.

Trial on the counterclaims was con-

ducted to the court on November 9, 10,

ll, 12, 16, 17 and 18, 1976. The

court, having heard the evidence

offered by the plaintiff and by the

counterclaimants and having considered

the pleadings, memoranda and arguments

of counsel, and being fully advised in

the premises, hereby makes the following:

FINDINGS OF FACT

1. The land which is the subject

of this action described as

Township 9 South, Range 22 East,

San Bernardino Meridian, Section

9: Portions of Lots 1, 2, 5 and

6, also known as Harvey's Fishing

Hole and Sportmen's Paradise,

was formed by the process of accretion.

» -

a ee ee a Lae ee! METAS — SS ee

Pa ee a ee ae Ne ae ee

- 107a -

2. The above-described real

property which is the subject of this

action, did not arrive in its present

position by the process of avulsion.

3. When the above-described land

was formed as accretion land, it was

formed as accretion to lands owned by

the plaintiff, United States of America.

4. Between November 10, 1952, the

date on which the Southwest Quarter of

the Northwest Quarter (SW 1/4 NW 1/4),

of Section 21, Township 1 North, Range

23 West, Gila and Salt River Base and

Meridian, Yuma County, Arizona, was con-

veyed to Kindred E. and Iva May Harvey,

and July 17, 1972, the date of the filing

of the complaint in this action, agents

of the plaintiff, United States of

America, communicated with several of

the counterclaimants relative to the

———— CO “Pp Ok Se

- 108a -

claim of the United States to title to

the land which is the subject of this

action.

5. At no time did any agent of

the plaintiff, United States of America,

engage in affirmative conduct which

amounted to either a misrepresentation

of facts or a concealment of material

facts relating to the claim of the

United States to title to the land

which is the subject of this action.

6. All of the defendants and

counterclaimants have, from time to time,

occupied a part of the land which is the

subject of this action.

7. At the time the defendants

entered and began occupancy of the land

which is the subject of this action,

described in paragraph 1 hereof, the

- 109a -

counterclaimants knew that the plain-

tiff, United States of America, claimed

that title to the said lands was in the

United States.

" 8. At no time did any of the

defendants and counterclaimants rely

upon the conduct of agents of the

plaintiff, United States of America,

to their detriment.

WHEREFORE, the court makes the

following:

CONCLUSIONS OF LAW

A. The plaintiff, United States

of America, is not estopped from

asserting its right to,exclusive

possession of the real property which

is the subject of this action.

B. Based upon the finding that

the subject land was formed by accretion

and not by avulsion and upon the finding

,; hope ae * tt Fs, 1b) 4. De Tee OE ive Ms elm 7 Poy, 4 sits § 7 ee oy al > Sy “39

+ 4 x ‘ . * eed . ab ae "64 A

- 1l0a -

that the subject land was formed as

accretion to lands owned by the plain-

; tiff, United States of America, the

% plaintiff, United States of America is,

and, at all times pertinent hereto, was,

the sole fee owner of the subject land

and thus defendants were not and are not

now entitled to have title quieted in

them.

C. Based upon the finding that

the subject land was formed by the pro-

cess of accretion, the center of the

main channel of the Colorado River has,

at all times pertinent herein, been the

: boundary between the states of Arizona

: and California in the vicinity of the

| subject land.

D. The claim of the counter-

claimants to lands described as the

Southwest Quarter of the Northwest

’

;

- llla-

Quarter (SW 1/4 NW 1/4), Section 21,

Township 1 North, Range 23 West, Gila

and Salt River Base and Meridian, Yuma

County, Arizona, arising out of United

States Homestead patent 381486 does not

give the counterclaimants any claim to

right, title or interest in and to the

land which is the subject of this actio

E. The plaintiff, United States

of America, has not engaged in conduct

amounting to laches.

F. Therefore, the counterclaims

of the defendants and counterclaimants

and each of them are denied in their

entirety.

DATED: 1-15-77

n tates rict ge

PRESENTED BY:

TERRY J. KNOEPP

United States Attorney

- ll3a -

( FILED )

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

( May 27, 1977 )

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

HONORABLE HOWARD B. TURRENTINE,

JUDGE PRESIDING

Civil - Case No. 72-277-T

UNITED STATES OF AMERICA,

Plaintiff,

IVA MAY HARVEY, et al.,

Defendants.

REPORTER'S TRANSCRIPT OF PROCEEDINGS

FUR PURPOSES OF APPEAL

VOLUME VII - Pgs. 1050-51

THE COURT: Anything further?

Counsel, I think there's no

question of equal footing of State

sovereign rights in this case. The

United States had the property since

age ae

2 , ee >

- ll4a -

Hidalgo, by treaty, The only question

to be decided here was whether the

land was created by accretion or avul-

sion. Whether you have the Federal

common law, or you have applied the

law of the State of California, if

you read the Code Section 1014 of the

Civil Code, the only difference in that

sense, as accretion is defined by the

State in the instruction given by the

Court, was that term naturally was used.

And I think my instruction, whether you

apply the Federal common law or whether

you apply the State law, is the instruc-

tion that I gave, which was taken from

BONELLI, generally speaking, with some

additions, is a proper one. The case

was tried by the Plaintiff on the theory

of accretion. It was tried by you,

gentlemen, on the theory of avulsion,

- 115a -

and the jury accepted the accretion

theory. You don't tell the jury whether

this is tried on Federal common law or

whether it's on the State law, you

instruct the jury on the law, and I

think the instruction, as given by the

Court, was proper under any theory.

And the motion for a new trial, so

forth, will be denied.

——

- ll6éa -

( PILED )

(CLERK, U.S. COURT OF APPEALS)

( March 10, 1982 )

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 77-2279

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

IVA MAY HARVEY, a widow, et al.,

Defendants-Appellants.

Before: KENNEDY and TANG, Circuit

Judges, and LARSON*

District Judge

ORDER

The panel as constituted above

has voted to deny the petition for

rehearing and to reject the sugges-

tion for rehearing en banc.

*The Honorable Earl R. Larson, United

States District Judge for the District

of Minnesota, sitting by designation.

ee oS ea ee

- 1l7a -

The full court has been advised

of the suggestion for rehearing en banc,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for rehear-

ing en banc is rejected.

ek -

-117a-1-

JUDGMENT ON JURY VERDICT

x ENTERED

LODGED

RECEIVED

JANUARY 21, 1977

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BY [illegible] DEPUTY

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF CALIFORNIA

CIVIL ACTION FILE NO. 72-277-T

UNITED STATES OF AMERICA AMENDED

JUDGMENT ON

vs. JURY VERDICT

[separate judgments entered

as to each defendant }

)

This action came on for trial

before the Court and a jury, Honorable

Howard B. Turrentine, United States

District Judge, presiding and the issues

having been duly tried and the jury

having duly rendered its verdict,

q wih 5

Eos.

-117a-2-

It is Ordered and Adjudged:

l. That the plaintiff, United States of

America, have and recover of and from

the defendant the possession of the

premises situated in the County of

Imperial, State of California, and

described as Township 9 South, Range 22

East, San Bernardino Meridian, Section

9: Portions of Lots l, 2, 5, and 6, also

known as “Harvey's Fishing Hole."

2. That the Clerk of the United States

District Court for the Southern District

of California be and is hereby directed

to issue the appropriate writ pursuant

to Rule 70, Federal Rules of Civil

Procedure, directing the United States

Marshal to remove defendant, and those

Claiming by and through or under

defendant from the above-described

-117a-3-

premises, and to place plaintiff in

possession of the said premises.

3. That the plaintiff, United States of

America, have and recover from defendant

damages in the sum of $ [varies per

defendant).

4. That each party is to bear his own

costs.

Dated at San Diego, California this 2lst

day of Janury, 1977.

wictiam a. wads

erk o urt

APPROVED:

Howard rent

nit ates stric ge

BY: /s/ Ricahrd i. Bellman, Deputy

bp 5 Z

- *

" AP 5 at i Mla 4 it

7 ae eee ee, Ne ee wh = Let oe

- 118a -

( PILED )

( CLERK, U.S. DISTRICT COURT )

(SOUTHERN DISTRICT OF CALIFORNIA)

(BY DEPUTY )

November 23, 1976 )

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Civil No. 72-277

UNITED STATES OF AMERICA,

vs.

IVA MAY HARVEY, a widow, et al

VERDIC#

We, the Jury in the above entitled

matter, find in favor of the Plaintiff,

United States of America, and damages

are assessed in the amount of

$42,451.04.

Dated: NOVEMBER 23, 1976

San Diego, California

"RAE Et BP re

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- l2la -

UNITED STATES of America,

Plaintiff-Appellee,

Gerald ARANSON et al.,

Defendants-Appellants.

No. 77-2295

United States Court of Appeals,

Ninth Circuit.

Argued Dec. 5, 1979.

Submitted Jan. 2, 1980.

Decided March 30, 1981.

The United States, in its capacity

as trustee for Colorado River Indians,

sued to quiet title to those lands

situated on the California side of the

present channel of the Colorado River

and east of the median line of the 1919

channel, The United States District

Court for the Central District of

California, Manuel L. Real, J., adjudged

certain lands to the property of the

“ at : A oat

> - ; hades

“4. pe gies he. i - tas

LAVA?

- 122a -

United States and ordered defendants to

pay damages for wrongful occupation, and

defendants appealed. The Court of

Appeals, Sneed, Circuit Judge, held

that: (1) federal law was decisive as to

whether statute creating the reservation

and related executive orders conveyed

title to riverbed, while state law

served as rule of decision in deter-

mining effect of subsequent changes in

the river's course, and (2) although

construction of dam allegedly caused a

change in course, California courts

would not apply the “last natural

channe)" exception to common law of

accretion. In a separate concurrence

the Court, Trask, Circuit Judge, held

that the Government intended to convey

the eastern half of the riverbed when it

- 123a -

formed the reservation and, hence,

boundary extended to mid-point of the

1919 abandoned westerly channel.

Affirmed.

Sneed, Circuit Judge, filed opinion

dissenting from Parts III and IV of the

Court's opinion.

1. Indians -- 10

Substantive rule of decision in

action by United States, as trustee for

Colorado River Indians, to quiet title

to those lands situated on California

side of the present channel of Colorado

River and east of the median line of the

1919 channel, specifically, issues

arising from changes in course of the

River, was to be ascertained by incor-

porating state law to give content to

the federal law which controlled the

- 124a -

controversy. Act March 3, 1865, 13

Stat. 541.

2. Federal Courts -- 433

Federal law determined whether

statute creating Colorado River Indian

Reservation and executive orders modi-

fying or redefining the boundaries con-

veyed to the Indians the title to the

bed of the Colorado River, i.e., the

western boundary, while state law deter-

mined effect of subsequent changes in

the river's course. Act March 3, 1865,

13 Stat. 541.

3. Federal Courts -- 761

Although substantive law of deci-

sion with respect to issues arising from

changes in course of Colorado River and

its effect on boundary of Colorado River

Indian Reservation was to be ascertained

;

~ 125a -

by incorporating state law to give

content to federal law, such did not

require reversal of district court

judgment based entirely on federal law

if no different result would be had

under the proper standard, as a proper

judgment, though based on the wrong

grounds, should nonetheless be affirmed.

Act March 3, 1865, 13 Stat. 541.

4. Navigable Waters -- 44(1)

Where land in dispute in quiet

title action involving westerly boundary

of Coloardo River Indian Reservation was

presently within the state of

California, California, rather than

Arizona, law furnished rule of decision

as to effect to changes of courses of

the Colorado river, one of the

Reservation boundaries, and such result

ee ee (Oot a RS! FA * pie

a > Fee) (Oe ORE ee ie ae ee 4 etx *, ee eee oe ere a 74 . ae

- 126a -

was not changed by Arizona-California

Boundary Pact of 1966, which dictated no

choice of law as regards land titles,

and for purposes of preservation of

pact's rights provision the lands were

part of California before adoption of

pact and, also, Indian claims would not

be prejudiced by application of

California law. Act March 3, 1865, 13

Stat. 541; Act August 11, 1966, 80 Stat.

340; West's Ann.Cal.Gov.Code, § 175;

West's Ann.Cal.Water Code App. §§ 33-2,

33-28; A.R.S. § 41-522.

5. Common Law -- 1l

California courts are required to

follow common-law rules unless those

rules conflict with state law or the

Federal Constitution. West's

Ann.Cal.Civ.Code, § 22.2

‘otek ‘ “

- 127a -

6. Navigable Waters -- 44(3)

Under the federal and common-law

rule, land formed by a process of accre-—

tion, or gradual deposition of soil on

the shore of an upland bounded by water

belongs to the upland owner and, hence,

if a river forming the boundary between

property of two upland owners changes

its course by a gradual process of ero-

sion from one bank and accretion to the

other, the boundary moves with the

river, while sudden or “avulsive”

changes in a river's course do not alter

the boundaries, which remain in the

abandoned riverbed.

7. Navigable Waters -- 44(1)

California courts have expressed

approval of the common-law doctrine of

accretion; however, a limited exception

~- 128a -

exists in that a distinction is made

between accretion which is naturally

caused and accretion which results from

artificial causes, such as man-made dams

or other structures which may obstruct

the natural movements of a body of

water, i.e., a “last natural channel"

rule. West's Ann.Cal.Civ.Code, § 22.2;

West's Ann.Cal.Const. Art. 15, § 3

(Repealed).

8. Navigable Waters -- 44(3)

California's “last natural channel”

exception to common-law rule of accre-

tion was not applicable to dispute as to

boundary of Colorado River Indian

Reservation in Palo Verde Valley, not-

withstanding completion in 1909 of the

Laguna Dam downstream of disputed tract,

as such exception applies only to state

aE Oe ME I eae ae

~ 129a -

sovereign lands. Act March 3, 1865, 13

Stat. 541; West's Ann.Cal.Civ.Code, §

22.2; West's Ann.Cal.Const. Art. 15, § 3

(Repealed).

9. Navigable Waters -- 44(1)

California's “last natural channel"

exception to common-law rule cf accre-

tion appears to be based, first, on the

state's control over obstructions

erected in waterways and, second, on the

statutory or constitutional inalien-

ability of particular state lands,

especially tidelands and such exception,

created to protect sovereign lands of

the state, is not to be extended to

private landowners. West's

Ann.Cal.Civ.Code, § 22.2; West's

Ann.Cal.Const. Art. 15, § 3 (Repealed).

“* or 2 Rie = rane «x a. see

Pe ea 4 7

~ 130a -

10. Judgment -- 747(5)

Where California did not claim

title to 1908 bed of Colorado River in

Palo Verde Valley but claimed westerly

half of abandoned course followed by

river before the Olive Lake Cut in 1920,

with westward movement of channel prior

to construction of the cut allegedly

caused by 1909 construction Laguna Dam,

and such claim was approved by district

court in Government's action to quiet

title on behalf of reservation Indians

to land on California side of present

channel and east of median line of 1919

channel and California did not appeal,

the judgment was res judicata and,

hence, occupants of subject tract could

noi invoke California's artificial

accretion exception to common-law rule

. a) 4° ere oe eee

Bie:

~ l3la -

of accretion, i.e., that California

retained title to 1908 channel with

result that reservation could not expand

westward. Act March 3, 1865, 13 Stat.

541; West's Ann.Cal.Civ.Code, § 22.2;

West's Ann.Cal.Const. Art. 15, § 3

(Repealed).

ll. Indians -~ 12

In determining whether executive

orders establishing the Colorado River

Indian Reservation conveyed to the

Indians title to the easterly half of

the bed of the Colorado River and,

therefore, title to lands east of the

median line of the abandoned westerly

channel the court was required to

resolve all ambiguities in favor of the

Indians. Act March 3, 1865, 13 Stat.

541.

i ihe ea Ba

~ 132a -

12. Indians -- 12

The extent to which Indian tribe

was displaced, or the degree to which a

treaty speaks of establishing a

permanent location for a reservation,

has no direct bearing per se on whether

the government intended to convey the

riverbed in any particular reservation

case where one of the boundaries is a

river. Act march 3, 1865, 13 Stat. 541.

13. Indians -- 12

Executive orders establishing

Colorado River Indian Reservation

conveyed title to easterly half of the

bed of the Colorado River and,

therefore, title to lands east of the

~~~ median line of the abandoned westerly

channel where although 1873 order

established the western boundary only

+ > er ¥

é r |

~ 133a -

vaguely, i.e., “bounded on the west of

the Colorado River," order of May 15,

1876 established metes and bounds of the

entire reservation referring to "west"

of the river, notwithstanding that the

Government did not own the western half

of the river at time the reservation was

created, in that such half had passed to

California under the equalfooting doc-

trine. Act March 3, 1865, 13 Stat. 541.

14. United States -- 58(1)

Conveyances by the United States

during a state's territorial period are

not lightly to be inferred; however, it

was within the power of the United

States to make such conveyances if it so

desired.

Appeal from the United States

’

‘

“>

‘

7 ete

- 134a -

District Court for the Central District

of California.

Before TRASK and SNEED, Circuit

Judges, and EAST,* District Judge.

SNEED, Circuit Judge:

The proper resolution of this

appeal has proved as difficult to divine

as determining the course of the

Colorado River in the Palo Verde Valley

Guring the period of time with which

this case is concerned. Both have

proved elusive, and, even now, some

doubt with respect to both remains. The

appeal is from the decision of the

district court adjudging certain lands

in what is referred to as the Olive Lake

region of the Palo Verde Valley to be

the property of the United States,

acting as trustee for the Colorado River

- 135a -

Indians, and ordering appellants to pay

damages because of their wrongful

occupation of those lands. Appellants

maintain that the district court should

have granted their motion for a new

trial because of a change in the appli-

cable law. Appellants also contend that

the district court erred in concluding

that the Colorado River Indian Reserva-

tion included the easterly half of the

bed of the Colorado River. We affirm.

In 1865, Congress created the

Colorado River Indian Reservation by

setting apart certain lands within what

was then the Territory of Arizona. Act

of Mar. 3, 1865, ch. 127, 13 Stat. 541,

559. The boundaries of the Reservation

were modified or redefined by executive

4 \ - > ~

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_— 5 + aa > ba Yr ——~ | ae. “yen? wae /

- 136a -

orders issued on November 22, 1873;

November 22, 1915. See Executive Orders

Relating to Indian Reservations, 1855-

1922, pt. I, at 6, 7; pt. Ii, at 5, 6

(1975).

The Reservation extended westward

to, and in some places beyond, the

Colorado River, which formed the

boundary between California and

Arizona. The river, however, did not

maintain a constant course. Over the

years it carved out various channels

through the Palo Verde Valley. Three of

those channels are critical to this

case. For our purposes, the 1908

channel refers to the course followed by

the river before the completion in 1909

of the Laguna Dam, which is located

jing

- 137a -

downstream from the Palo Verde Valley.

It appears in Appendix A to this

opinion. In the decade following

completion of the dam, the river moved

gradually westward, as soil was eroded

from the California bank and deposited

on the Arizona side. By 1915 its loca-

tion was as depicted by Appendix B, and

by 1919 the course of the river had

formed a bend or loop known as the

"Olive Lake Bend" which Appendices C and

D reflect. We shall refer to the

river's course at this time as the 1919

channel. In 1920, the Palo Verde Mutual

Water Company, with the authorization of

the United States Department of the

Interior, constructed a cut-off channel

across the neck of this bend. Appendix

E shows the location of the cut-off as

~ 138a -

proposed. By 1921, the entire river had

moved into this cut-off channel,

described as the Olive Lake Cut, and was

following a course to the east of both

the 1908 channel and the westerly, 1919

channel. We shall refer to this last

course as the 1921 channel. The record

contains no drawing of the 1921 channel

although Appendix F fixes the channel as

of April 1925 somewhat east of the

present course of the river. Obviously

the 1921 channel was also east of the

present river >/

Uncertainty over the shifting state

border led California and Arizona to fix

the line in a Boundary Pact which was

approved by Congress in 1966. Act of

Aug. 11, 1966, Pub.L.No.89-531, 80 Stat.

340. The Pact did not affect property

- 139a -

claims or titles, and the states’ rati-

fying statutes provided that titles,

rights, or claims would not be

prejudiced by the Pact's designation

of the state boundary line. 1963

Ariz.Sess.Laws ch. 77, § 5, reprinted in

annotation to Ariz.Rev.Stat. Ann. § 4l-

522 (West 1974); 1963 Cal. Stats. ch.

859, § 4, reprinted in annotation to

Cal.Gov't Code § 175 (West 1980).

On July 17, 1972, the United States

in its capacity as trustee for the

Indians commenced this action seeking to

quiet title to those lands situated on

the California side of the present

channel and east of the median line of

the 1919 channel. Various individuals

and corporations, as well as the Palo

Verde Irrigation District and the State

- 140a -

of California, were named as defendants.

The private defendants had acquired

lands in the Olive Lake Region, appar-

ently from previous occupants, some

years after the construction of the

Olive Lake Cut but before the adoption

of the Arizona-California Boundary Pact.

The Palo Verde Irrigation District, a

public district of the State of

California, claims lands in the Olive

Lake region and regulates water usage in

the vicinity. The Indians contended,

however, that the Colorado River Indian

Reservation extended to the median line

of the 1919 channel and that, because

the Olive Lake Cut had effected an

avulsive change in the course of the

river, their title to this land was

never lost. They therefore asked that

a> Page>

- lé4la -

the defendants be required to remove

themselves and their personal beiongings

from the land and to pay damages for

wrongful possession.

At trial, the dispute focused on

the issue of whether the change in the

river's course from the 1919 channel to

the 1921 channel was the result of

avulsion or accretion. The district

court found that the change had been

avulsive and concluded that title to the

lands had remained in the Indians. The

district court also found that the

Reservation included the eastern half of

the bed of the river. Thus, the court

held that the Indians presently hold

title to the lands east of the median

line of the 1919 channel, and that the

State of California owns the bed west of

Bye.

| ae

- 142a -

that median ‘ine. The court also

ordered the defendants, except the State

of California, to pay damages for

wrongful possession.

Although the district court

announced its decision on November 17,

1976, the court's findings of fact,

conclusions of law, and tudgment were

not filed until February 11, 1977. In

the intervening period, the Supreme

Court rendered its decision in Oregon ex

rel. State Land Board v. Corvallis Sand

& Gravel Co., 429 U.S. 363, 97 S.Ct.

582, 50 L.Ed.2d 550 (1977), in which

the Court overruled its previous

decision in Bonelli Cattle Co. v.

Arizona, 414 U.S. 313, 94 S.Ct. 517, 38

L.E..2d 526 (1973). Arguing that the

district court had relied on federal law

~- 143a -

and that under Corvallis the case should

be resolved under state rather than

federal law, the defendants, except the

State of California, moved for a new

trial. The motion was denied, and

defendants, again save for the State of

California appealed.

Appellants raise two issues. They

contend that the property dispute is

governed by California law, not federal

law. Under California law, in appel-

lants' view, the Indians would not have

obtained title to any accretions which

were artificially caused. Hence, appel-

lants request a new trial in order to

prove that the lands in question were

deposited on the Arizona side of the

river as a result of artificial accre-

tions caused by the construction of the

On f . ~? teh 2

— ee = ~ .. * ‘ (yrs Om -se, (ad ae we AO

Wn a

- 144a -

Laguna Dam in 1909. Appellants also

contend that the Indian Reservation did

not include the eastern half of the

riverbed and that the district court's

determination of the Reservation's

western boundary was thus incorrect. We

shall address these issues separately.

In Bonelli Cattle Co. v. Arizona,

Supra, the Supreme Court held that a

dispute between a private claimant and

the State of Arizona over title to land

within the abandoned bed of the Colorado

River was governed by federal law.

Consistent with Bonelli, the district

court decided this case on the basis of

federal law. The overruling of Bonelli

by Corvallis enables the appellants to

argue that this case must be decided

-~ 145a -

according to state, not federal law, and

that the district court should thus have

granted their motion for a new trial.

The appellee contends that Corvallis is

inapplicable here because, unlike the

Willamette River, which was the source

of the controversy in Corvallis, the

Colorado River until 1966 formed the

boundary between two states.

[1-3] We believe this dispute

concerning the proper application of

Corvallis was resolved by the Supreme

Court's recent decision in Wilson v.

Omaha Indian Tribe, 442 U.S. 653, 99

S.Ct. 2529, 61 L.Ed.2d 153 (1979). The

Claimant in Wilson was a tribe of

Indians whose reservation, located in

Nebraska, was bounded on the east by the

Missouri River. Prior to a compact made

fa om : de 4 ¥s i . 3

Ph AP ep ae ae | Z wes, ie RY Pe ee ey ee a oe

- 146a -

in 1943, the river had also marked the

state boundary between Nebraska and

Iowa. The tribe claimed lands that had

once been part of the reservation but

which, due to changes in the river's

course, had passed to the Iowa side of

the river. The Supreme Court held that

the Indians’ claim was governed by

federal law but that state law should be

adopted as the rule of decision. Id. at

669-76, 99 S.Ct. at 2539-42. This

holding governs this case. It follows

that the substantive rule of decision in

this case with respect to issues arising

from changes in the course of the

Colorado River must be ascertained by

incorporating state law to give content

to the federal law which controls this

controversy .2/ This conclusion,

eee IS Tiga

- 147a -

however, does not require reversal of

the judgment of the district court if

its application leads to no different

result. A proper judgment, thoujh

based on the wrong grounds, should

nonetheless be affirmed. United States

ve Best, 573 F.2d 1095, 1100-01 (9th Cir.

1978).

[4] To ascertain whether state law

would alter the result reached below we

must determine which state's law should

provide the rule of decision. The

appellants assert that California law

governs, while the appellee maintains

that, assuming state law is to be _

employed, it must be that of Arizona.

We agree with the appellants. The land

in dispute presently is within the State

of California. That is controlling

uniess the Arizona-California Boundary

- 148a -

. aa

Pact dictates a different conclusion.

The Pact itself dictates no choice as

to what law shall govern disputes over

land titles. However, in ratifying the

Pact, each state adopted a “preservation

of rights” provision, which ‘*eclared:

Nothing contained in the

provisions of this act ...

shall prejudice 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 pre-

viously a part of the State

of Arizona and have now

become a part of the State

of California, or were pre-

viously a part of the State

of California and have now

become a part of the State

of Arizona or otherwise;. . .

1963 Ariz.Sess.Laws ch. 77, § 5,

reprinted in annotation to Ariz.Rev.

Stat.Ann. § 41-522 (West 1974); 1963

€

~- 149a -

Cal.Stats. ch. 859, § 4, reprinted in

annotation to Cal.Gov't Code § 175

(West 1980). This provision, as we

read it, alters the normal assumption

that property located in California is

subject to California law only if the

lands in dispute were part of Arizona

before the adoption of the Pact and if

the Indians’ claims would be prejudiced

by the application of California law.

Neither condition exists, however.

The record, as demonstrated by

Appendix F, supports appellants’ con-

tention that these lands were part of

California, not Arizona, before the

adoption of the Pact. Appellants, who

claim title under the laws of California,

have been in possession of the land since

well before the Pact; indeed, their pos-

session of the lands is not only conceded

i +. s ote 7 -

dt? eh Be sx: Ss gt x) At

- 150a -

but is the basis of the claim for damages

against them. In addition, one of the

appellants, the Palo Verde Irrigation

District, is a public district organized

under the laws of California. The

District, which was created by statute

in 1923, Cal.Water Code. App. § 33-2

(West 1968), has authority over water

usage in the Palo Verde Valley; the

District is empowered to levy taxes for

this purpose, id. § 33-28, and holds

liens for unpaid taxes and water tolls

on the lands in issue, id. § 33-28f.

See Clerk's Record, vol. I., at 26. In

view of these facts, it is clear that

the area was within the jurisdiction

of California prior to adoption of the

Boundary Pact.

Moreover, the claim of the Indians

is not prejudiced by application of

)

ee a

TF Sa i>

~- 15la -

California law. Although Arizona case

law relevant to this issue is scant, the

leading case, State v. Bonelli Cattle

Co., 107 Ariz. 465, 469, 489 P.2d 699

(1971), rev'd on other grounds, 414

U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526

(1973), cites the California law on

artificial accretion with approval.

Because our resolution of the relevant

issue employs the same law, it is

unlikely that application of Arizona

law would alter our result. Thus, our

choice of law does not prejudice the

Indians.

Having concluded that the law of

California should be adopted as the

federal rule of decision in this case,

we now must decide whether a new trial

is necessary. Our approach is first to

review the content of the applicable

sill .

~ 152a -

federal common law, then to examine

California law to determine whether

it differs and, if so, whether that

difference requires a new trial.

{5] In examining California law,

we shall be mindful that California

courts are required by statute to follow

common law rules unless those rules con-

flict with state law or the federal

constitution. Cal.Civ.Code § 22.2

(West 1954).

[6] Under the federal and common

law rule, land formed by a process of

accretion, or gradual deposition of soil

upon the shore of an upland bounded by

water, belongs to the upland owner.

Hence, if a river forming the boundary

between the property of two upland

owners changes its course by a gradual

process of erosion from one bank and

~- 153a -

accretion to the other, the boundary

moves with the river. However, sudden

or “avulsive" changes in a river's course

do not alter the boundaries, which remain

in the abandoned riverbed. See County of

St. Clair v. Lovingston, 99 U.S. (23

Wall.) 46, 23 L.Ed. 59 (1874); 5A

Thompson on Real Property §§ 2560, 2561

(repl. 1978).

The district court in this case

applied federal law and concluded that

as the Colorado River moved slowly west-

ward between 1909 and 1920, the western

boundary of the Reservation moved with

it. However, the Olive Lake Cut, which

diverted the river eastward to its 1921

channel, effected an avulsive change and

thus left the Reservation's boundary

unaltered. The boundary thus remained

at the abandoned westerly channel.

eo or

- 154a -

Appellants do not deny that the district

court's judgment is correct as a matter

of federal law. As indicated above, the

common law does not differ.

{7} California courts have

expressed approval of the common law

doctrine of accretion. See, e.g.,

F v. County o Cruz, 24

Cal.App. 193, 199-200, 140 P. 1092

(1914). However, certain California

cases have created a limited exception

to the common law rules by distinguishing

between accretion which is naturally

caused and accretion which results from

artificial causes, such as manmade dams

or other structures which may obstruct

the natural movements of a body of

water. It is this exception to which

appellants pin their hopes. They main-

tain that these cases establish a “last

a A 5 Ss" ae

ae :

=T RT

rv.

- 155a -

natural channel" rule under which arti-

ficially caused accretion leaves property

boundaries unchanged. A new trial is

necessary, they assert, to enable them

to prove that the river's westward

movement before 1920 was artifically

caused by the construction of the

Laguna Dam in 1909. From this it

would follow, the appellants continue,

that the western boundary of the

Reservation should thus be determined

not by the river's westerly, 1919

channel, as the district court held,

but rather by the 1908 channel which

the river followed before the closure

of the dam.

[8] We do not believe that

California courts would apply the

"last natural channel" rule to the

facts of this case. The State of

uo “ae rt ate

- 156a -

California so asserts in an amicus

curiae brief which points out that

California's exception for artificial

accretions applies only to state

sovereign lands. Our review of the

California decisions from which the

artificial accretion exception is

derived convinces us that the State

of California's position is correct.

California courts have consistently

viewed the exception as a doctrine

designed to protect state sovereign

lands. Thus, in Carpenter v. City of

Santa Monica, 63 Cal.App.2d 772, 787,

147 P.2d 964 (1944), the court stated:

There are no doubt many

federal cases, following

the leading case of County

7 ots at2H Vs Lovingseor

@ili-e

L.Ed. 59], relied —o by

appellant, which hold that

as between competing upland

owners, or as between upland

- 157a -

owners and others not claiming

tidelands as successors of the

state, artificial accretions

ey to the upland owner.

This is the general common

law rule and probably the rule

in this state. . (Forgeus Ve

P al.

App. P. 2).) An

entirely different rule may

apply, however, where the

upland owner attempts to

assert title to lands formed

by artificial accretions

against the claim of the

state, or its successor in

interest, that such lands are

tidelands. eee

When the California cases

are considered there can be no

reasonable doubt but that the

rule in this state is that in a

controversy between the state,

or its grantees, and the upland

owner, artificial accretions

belong to the state....

Later, in People v. Hecker, 179 Cal.App.

2d 823, 837, 4 Cal.Rptr. 334 (1960), the

court declared:

Relying upon the federal

and common-law rule that accre-

tion accrues to the upland

owner even though assisted

by artificial means, appellant

- 158a -

submits that under section

22.2, Civil Code, it shall

be the rule of decision in

California courts. The law of

this state does not support

= a 2 aay yagg he with

(Emphasis added.) These pronouncements

indicate that the artificial accretion

doctrine is a narrow exception intended

only to protect the state's title to its

sovereign lands.

This interpretation is consistent

with the reasons which underline the

artificial accretion exception. Although

the purposes of the exception are admit-

tedly obscure, two reasons for distin-

guishing between natural and artificial

accretion are discernible. The first is

reflected by the earliest case to distin-

guish between artificial and natural

accretion, Dana v. Jackson Street Wharf

he oe

ele

“tg ae. ek |

, » et)

7 *

- 159a -

Co., 31 Cal. 118 (1866), which emphasized

that since upland owners have no right to

create obstructions to the natural flow

of waterways, such obstructions therefore

are within the control of the state. “By

the common law any erection below high

water mark, without license, is regarded

as an encroachment and intrusion on the

King’s soil, which the King may demolish,

seize or arrent at his pleasure.” Id,

at 120. The court then appears to have

reasoned that since in [sic] artificia}

obstruction in a body of water is

in a sense within the state's control,

the state may also claim any accretion

caused by such an obstruction. Thus,

in v Cruz,

supra, 24 Cal.App. at 200, 140 P. 1092,

after upholding the claim of an upland

owner to accretions allegedly caused

- 160a -

by the construction on the owner's land

of a county roadway, the court added:

"Clearly, there is a distinction between

this case and that where a structure is

erected, by the state or municipality,

on land below the line of ordinary high

water. In the latter case the deposit

of alluvion caused by such structure

would not inure to the benefit of the

riparian owner."

A more important reason for the

artificial accretion exception was also

suggested in Dana. The court, observing

that the boundaries of the San Francisco

waterfront upon which the plaintiff's

property was situated were statutorily

defined, concluded that to permit a

landowner to acquire artificial accre-

tions would alter waterfront boundaries

in contravention of that statute. Dana,

2...”

~~ ae

- 16la -

Supra, 31 Cal. at 121. Similarly, cases

which have denied the claims of upland

owners to land formed by artificially

caused deposits upon a seashore appear

to be based on a provision of the

California Constitution which forbids

alienation of tidelands located within

two miles of an incorporated city or

town. Cal.Const. art. 15, § 3 (repealed

1976; current version at art. 10, § 3).

Thus, in Patton v. City of Los Angeles,

169 Cal. 521, 525, 147 P. 141 (1915),

the California Supreme Court declared

that tideland which had been filled in

by accretion .

was once tideland, and ...

this being so, it was

reserved from sale, and

was not alienable by any

state officer under any

law, «+. and, therefore,

no artificial embankment,

made by third persons, or

made or suffered by state

UI a ge ME ite Oe i ke Rd CRS eR

- 162a -

officers or agents, nor

accretion to the

adjacent upland caused

thereby, could operate

to divest the state of

* its title to the tideland

so reserved.

The court did not explain why its

reasoning would not be equally applic-

able to instances of natural accretion.

Possibly it is because artificial

accretion more resembles the inten-

tional alienation of state lands,

which the California Constitution

forbids, than does the process of

natural accretion. In any event,

nearly all the artificial accretion

cases involved tidelands.

{9] Hence, we conclude that

California's artificial accretion

exception appears to be based, first,

on the state's control over obstruc-

tions erected in waterways and, second,

“

"eee ee se OO eS Le ee - “AW? Se, pe i

’

“s

- 163a - 4

on the statutory or constitutional

inalienability of particular state

lands, especially tidelands. It was

created to protect the sovereign lands

of the state. This purpose indicates

that the exception need not be extended

to private landowners. Support for this

view is provided by the fact that the

exception has never been applied

directly to benefit a landowner other

than the state or its assignee.

The case most helpful to appellants

is P l nt P

Works v. Shasta Pipe & Supply Co., 264

Cal.App.2d 520, 70 Cal.Rptr. 618 (1968).

The controversy in that case was caused

by the movement of the Feather River,

which in the disputed area ran from east

to west. Because of mining and dredging

operations, the river's corse had moved

i, eee

t wee

;

oe ee Se ey ae ee SS 2 on a

RB:

;

- 164a -

southward in the century before 1960,

and when the state acted in 1961 to cot-

demn lands in the area, the owner of the

land to the north of the original channel

Claimed title to the lands lying between

the old and new channels under the doc-

trines of accretion, adverse possession,

and occupancy. After this claim was

rejected in the superior court, the

court of appeals remanded for trial on

the issues of adverse possession and

occupancy but apparently agreed that

the landowner could not claim the lunds

in question on the basis of accretion.

Though the opinion discusses the accre-

tion doctrine only briefly, the court

seems to have reasoned that because the

change in the river's course was caused

by human interference, the state had

retained title to the original bed

- 165a -

rather than acquiring title to the new

bed. Id. at 535. The property of the

upland owner on the north, therefore,

could not be extended southward by

accretion because it was blocked on

the south by a strip of land, the

river's abandoned bed, which belonged

to the state. As a consequence, per-

haps the owner of land lying south of

the original bed was an incidental

beneficiary of the artificial accre-

tion doctrine. By preserving the

state's title to the abandoned bed,

owners south of the original bed may

have had their property preserved

against an accretion loss.

[10] Using this reasoning,

appellants argue that if the westward

movement of the Colorado River prior

to construction of the Olive Lake Cut

enw

Rye

:' . a wy ‘a i - 7, > Vad N

* WTP <> bd - . * » al 3 2 ae 4 = Dy

ee ee ge ee Fee ee Oe 4a ae a to sted at EN aie Ve Ta et, Pee

- 166a -

was caused by the erection of the Laguna

Dam in 1909, then California retained

title to the 1908 channel with the

result that the Reservation could not

expand westward. The difficulty that

the appellants encounter is that

California has not claimed title to

the 1908 bed. Rather, it has claimed

the westerly half of the abandoned course

followed by the river before the Olive

Lake Cut was made in 1920. Moreover,

this claim has been approved by the

district ome California has not

appealed from the district court's

judgment; it is res judicata and

unreviewable by us. International

Manufacturing Co. v. Landon, Inc., 327

F.2d 824 (9th Cir. 1964). Hence,

appellants cannot assert that their

- 167a -

property boundaries were fixed by a

protective barrier of state tend”

We conclude that appellants cannot

invoke California's artificial accre-

tion exception. It follows that the

California rule of decision would thus

be identical to the federal law doctrine

applied by the district court. There-

fore, the change in applicable law

effected by the Supreme Court's deci-

sions in Corvallis and Wilson would not

alter the outcome in this case. The

district court properly denied appel-

lants' motion for a new trial.

II!

TRASK, Circuit Judge (with whom

EAST, District Judge, concurs):

{11-13} Appellants challenge the

district court's determination that the

excutive orders which established the

é . "

oe Ree”) PLS Sl eee oA ee ee a ae Ls ee rk Ne a cinta

- 168a -

Reservation conveyed to the Indians

title to the easterly half of the bed

of the Colorado River, and, therefore,

title to lands east of the median line

of the abandoned westerly channel. Here,

as in Choctaw Nation v. Oklahoma, 397

U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615

(1970), “the question is whether the

United States intended to convey title

to the riverbed to [the Indians)." Id.

at 633, 90 S.Ct. at 1998." In ascer-

taining such intent, this court must

resolve all ambiguities in the orders

in favor of the Indians. See, e.g.,

Squire v. Capoeman, 351 U.S. 1, 6-7,

76 S.Ct. 611, 614-615, 100 L.Ed. 883

(1956) (quoting Carpenter v. Shaw, 280

U.S. 363, 367, 50 S.Ct. 121, 122, 74

L.Ed. 478 (1930); Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483

is.

Ss. A

~ 169a -

(1832)); Navajo Tribal Utility Authority

Ye Arizona Dept. of Revenue, 608 F.2d

1228, 1233 (9th Cir. 1979). As the

Supreme Court has stated:

The construction [of laws

governing the Indians],

instead of being strict, is

liberal; doubtful expressions,

instead of bei resolved in

favor of the United States,

are to be resolved in favor

of a weak and defenseless

people, who are wards of the

nation, and dependent wholly

upon its protection and good

faith. This rule of construc-

tion has been recognized,

without exception, for more

than a hundred years.

Choate v. Trapp, 224 U.S. 665, 675, 32

S.Ct. 565, 569, 56 L.Ed. 941 (1912),

quoted with approval in Antoine v.

Washington, 420 U.S. 194, 212, 95 S.Ct.

944, 954, 43 L.Ed.2d 129 (1975) (Douglas,

J., concurring). See also Haley v.

Seaton, 281 F.2d 620, 623 (D.C.Cir.

1960); 1 American Indian Policy Review

- 170a -

Comm'n, Final Report 109-11 (1977).

Applying this rule of construction to

the executive orders establishing and

defining the Reservation, especially

the order of May 15, 1876, we conclude

that the federal government intended

to convey the eastern half of the

Colorado River bed to the Indians as

part of the Reservation.

The first executive order deJin-

eating che bounds of the Reservation,

that of 1873, appears ambiguous. It

established the western boundary of the

Reservation only vaguely~~-"bounded on

the west by the Colorado sie: o” pater

lution of this ambiguity, if indeed

there is i a favor of the Indians

results in their receiving title to

the eastern half of the riverbed by

a lie el oe A

tig

- ljla-

virtue of this order alone. Brewer-

Elliott Oil & Gas Co. v. United States,

260 U.S. 77, 80-83, 86-87, 43 S.Ct. 60,

61-62, 63-64, 67 L.Ed. 140 (1922).

Nevertheless, the order of May 15,

1876, also indicates the government's

intent to convey the eastern half of

the riverbed. In establishing the

metes and bounds of the entire

Reservation, this order set as part

of the western boundary "a direct

line toward the place of beginning

to the west bank of the Colorado

River; thence down said west bank

to a point opposite the place of

beginning; thence to the place of

beginning.” (Emphasis added.)

Although the government did not own

the western half of the riverbed at

the time the Reservation was created

~ 172a -

(that half having already passed to

California under the equal-footing

doctrine), it is surely a fair infer-

ence that in the uncertain legal-

boundary atmosphere of the time the

government believed that establishing

the boundary at the west bank would

Operate to convey that portion of the

10/

bed to which it still had title.

That the government intended to

convey the riverbed is further sup-

ported by the circumstance of the

Indians’ dependence on the river. In

determining whether the government

intended that the bed of a body of water

be contained within an indian reserva-

tion, courts have frequently examined

the history and lifestyle of the reser-

vation tribes. For example, in Alaska

Pacific Fisheries v. United States, 248

_ - : . |

~ 173a -

U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138

(1918), the Supreme Court concluded that

an Indian reservation established as “the

body of lands known as Annette Islands”

included the adjacent waters and sub-

merged lands as well as the upland

islands. Id. at 89, 39 S.Ct. at 41.

The Court based this conclusion upon

its determination that the Indians of

the reservation could not have sustained

themselves on the upland alone. Id. In

Skokomish Indian Tribe v. France, 320

F.2d 205 (9th Cir. 1963), cert, denied,

376 U.S. 943, 84 S.Ct. 797, 11 L.Bd.24

767 (1964), this court affirmed findings

of the district court which examined the

Indian's lifestyle and concluded that the

tidelands adjacent to the reservation

were not intended as part of the reserva-

tion. Id, at 210. Because the Indian

: ‘, ‘7 -

a ee CLEP on Ra Sheer a i ts

— ae ee ere! ae eee 2 ee eee eS ey le Bi eee ees ee Yh eh

~ l74a -

lifestyle was oriented toward river

fishing, the ocean waters were not a

necessry food source. Id. at 210-12.

See aiso United States v- Holt State

Bank, 270 U.S. 49, 58-59, 46 S.Ct. 197,

200, 70 L.Ed. 465 (1926); United States

vs Finch, 548 F.2d 822, 832 (9th Cir.

1976), vacated on other grounds, 433 U.S.

676, 97 S.Ct. 2909, 53 L.EBd.2d 1048

(1977); Moore v. United States, 157

F.2d 760, 762-64 (9th Cir. 1946), cert.

denied, 330 U.S. 827, 67 S.Ct. 867, 91

L.Ed. 1277 (1947). In United States v.

Finch, supra, this court noted that

"(those cases in which] an examination

of the lifestyles of the Indian tribes

was considered particularly important,

involved controversies over the location

of the exterior boundaries of lands set

aside for the Indians.” 548 F.2d at 832

- 175a -

n.19. This is precisely the situation

in the case at hand. Examintion of the

history and lifestyle of the Mohave

Indians, the principal tribe on the

Reservation, suggests that the govern-

ment intended to convey the riverbed

as part of the Reservation. At the

time the Reservation was created,

Congress was aware that the Mohaves

were heavily dependent upon the Colorado

River; having been restricted to their

reservation and cut off from traditional

hunting grounds, the Indians risked fre-

quent famine without the ability to

divert the river and alter its course

for irrigation purposes. See 5 House

Ex.Doc. No. 1, 38th Cong., 2d Sess. 300-

301 (1865); Senate Misc.Doc. No. 79,

37th Cong., 2d Sess. 12-14 (1862). See

also Cong. Globe, 38th Cong. 2d Sess.

- 176a -

1320-22 (1865)(remarks of Arizona

Territorial Representative Poston).

More telling, however, is a Memorial of

the Legislature of Arizona, House Misc.

Doc. No. 16, 38th Cong., 2d Sess. (1865)

(resolution passed by Arizona Territorial

Legislature), which was presented to

Congress, see Cong. Globe, supra, at

1320, and which states in part: “(T]he

late superintendent of Indian affairs

of the Territory, Honorable Charles D.

Poston, in view of [the Colorado River

Indian Tribes'] scattered and destitute

condition, selected and caused to be

laid off, on th bank bottom

of the Colorado river a reservation...."

(Emphasis added.) This language clearly

suggests that the Territorial Legislature

understood the Reservation to include the

iy/

riverbeg. Construing these documents in

rar ee

- 177a -

favor of the Indians, we find it probable

that those involved with the establish-

ment of the Colorado River Indian

Reservation understood it to include

the riverbed.

Finally, support for our conclusion

that Congress intended to convey the

riverbed is suggested by language in

Choctaw Nation, supra: “(T]he United

States seems to have had no present

interest in retaining title to the river-

bed at all; it had all it was concerned

with in its navigational easement via

the constitutional power over commerce.”

397 U.S. at 635, 90 S.Ct. at 1336.

Similarly, in this case, a holding that

the United States did not intend to

convey the riverbed to itself in trust

for the Reservation would mean that, at

the time the Reservation was for..<d,

. eae

- 178a -

California owned the land on one side

of the river, and the west half of the

riverbed, the Reservation owned the

land on the other side of the river,

and the government owned the narrow

strip of riverbed between the two.

Such ownership would have served no

governmental interest existing at the

time of the conveyance.

We do not view United States v.

Holt State Bank, 270 U.S. 49, 46 S.Ct.

197, 70 L.Ed. 465. (1926), as controlling

i2/

authority in ti.is case, as urged by

appellants and argued by the dissent.

In Holt State Bank, as in this case.

the Indian's title was merely abori-

ginal, not in fee simple as the title

was in Choctaw Nation. In Holt State

Bank, however, the Court refused to

find government intent to convey to

- 179a -

the Indians the bed of an interior

lake primarily because there was never

a treaty, executive order, or any other

document establishing the Indian reser-

vation from which such intent could

have been inferred. 270 U.S. at 58-59,

46 S.Ct. at 200. The reservation was

merely tht which was left over after

the government, by treaty and other

action, appropriated the surrounding

lands. Consequently, the only possible

basis for Indian ownership of the reser-

vation was aboriginal title, Id. In

Choctaw Nation, on the other hand, the

Indians were moved from their aboriginal

lands to a new location, where the treaty

conveyed the land to them in fee simple -

397 U.S. at 622-26, 90 S.Ct. at 1330-32.

In a concurring opinion, Justice Douglas

contrasts this basis of ownership with

- 180a -

that of the tribes in Holt State Bank,

in order to distinguish Choctaw Nation

from the former decision. 397 U.S. at

638-39, 90 S.Ct. at 1338 (Douglas, J.,

concurring).

The present case can likewise be

distinguished from Holt State Bank. The

Indian tribes of the Colorado River

Indian Reservation (predominately the

Mohaves) had been citizens of Mexico,

from which nation the United States

obtained the lands in question. As

prior Mexican citizens, the Indians

were deemed not to have any aboriginal

title; thus, no treaties ceding such

title to the government would have been

recognized. See Cong. Globe, 38th Cong.,

2d Sess. 1320 (1865). The bases for

Indian title to the Reservation are

the executive orders establishing the

- 18la -

Reservation in trust for the tribes and

the more recent Act of Congress fixing

beneficial ownership of the Reservation

in the Tribes, see Act of April 30, 1964,

Pub.L.No.88-302, 78 Stat. 188. In this

case, therefore, unlike Holt State Bank,

there exist affirmative governmental

acts from which intention to grant the

bed of the Colorado River can reasonably

be interred.

{[14) Although it is true that

conveyances by the United States during

a state's territorial period are not

lightly to be inferred, United States

v. Holt State Bank, 270 U.S. 49, 55,

46 S.Ct. 197, 199, 70 L.Ed. 465 (1926),

it is nevertheless within the power of

the United States to make such convey-

ances if it so desires, Shively v.

Be el ne ee eee Ge,

~ 182a -

Bowlby, 152 U.S. 1, 48, 14 S.Ct. 548,

566, 38 L.Ed. 331 (1894). We find the

evidence in this case sufficient to

enable us to conclude that the government

intended to convey the eastern half of

the riverbed to the Indians when it

formed the Reservation. Accordingly,

we hold that the boundary of the

Reservation extends to the midpoint

of the 1919 abandoned westerly channel

of the Colorado River, and that the

eastern half of the river bed was con-

- veyed by the government to the Indians

as part of the Reservation.

The judgment of the district court

is affirmed.

SNEED, Circuit Judge, dissenting

from Parts III and IV of the court's

opinion:

oe a ry on nl ”“ ra

he 08 i he Pj Pel? ae Oe Sel or Oo

- 183a -

I respectfully dissent from Parts

III and IV of this opinion and would hold

that the pertinent statute and executive

orders did not convey to the Indians

title to the easterly half of the bed

of the Colorado River.

A. ee of the 1876 Executive

rder

My starting point is that a grant

establishing an Indian reservation does

not always impart title to the bed of

boundary rivers or even to bodies of

water that are wholly within the reser-

vation. United States v. Holt State

Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed.

465 (1926). To determine the scope of

the grant one should determine whether

Congress and the President, in estab-

lishing the Reservation, manifested a

a ae Te a eet ee Pa ee ee eee eee ee * ee te | ge ee? ee

ope. s a ; .

- 184a -

definite intention to convey title to

the riverbed.

The requirement of a definite

intention to transfer title to the bed

derives from long-established principles

of law with respect to navigable waters

in territories of the United States.

Early in our history, the Supreme Court

declared that the United States holds

such waters in trust for the future

States and that under the "equal

footing" doctrine a state acquires

title to the beds of such waters upon

entering the Union. Pollard's Lessee

v. Hagen, 44 U.S. (3 How.) 212, 221-22,

1l L.Ed. 565 (1845). Although Congress

may make grants of the lands underlying

navigable waters in the territories, it

has generally not done so:

The Congress of the United

States, in disposing of the

es Fi

- 185a -

public lands, has constantly

acted upon the theory that ...

the navigable waters and the

soils under them ... shall

not be ary away during

the period of territorial

government; but, unless in

case of some international

no oe, or public exigency,

shall be held by the United

States in trust for the

future states ....

Shively Ve Bowlby, 152 U.S. l, 49-50, 14

S.Ct. 548, 566, 38 L.Ed. 331 (1894).

In Holt Bank, supra, the Supreme

Court applied these principles to the

Chippewa Indians’ claim to the bed of

a drained lake. From its earlier deci-

sions, the Court declared, "(i]t fol-

lows ... that disposals by the United

States during the territorial period

are not lightly to be inferred, and

should not be regarded as intended

unless the intention was definitely

declared or otherwise made very plain."

270 U.S. at 55, 46 S.Ct. at 199. The

Pa eae ae eee te 4

”, ~t, ‘ '

- 186a -

Court observed that the treaty between

the United States and the Chippewas

NO ee a

reserved lands in a general way for

occupation by the Indians but did not

affirmatively define the rights of the

Indians in reservation lands or exlude

others from the use of navigable waters

within the reservation. Id. at 58, 46

S.Ct. at 200. Hence, the Court con-

cluded, the treaty had not given the

Indians title to the lake bed, even

though the lake had been within the

boundaries of the reservation.

A different result was reached

in Choctaw Nation v. Oklahoma, 397 U.S.

| 620, 90 S.Ct. 1328, 25 L.Ed.2d 615

: (1970). There the Supreme Court held

that the Choctaw and Cherokee Nations

had acquired sections of the riverbed

: of the Arkansas River in the State of

> eager PS diel oe

“x

a rs

- 187a -

Oklahoma under treaties made between

those Indian tribes and the United

States. The opinion of the Court and

the concurring opinion of Justice

Douglas dwelt at some length on the

history of relations between those

tribes and the federal government,

noting that the Indians had been

forced, in consequence of repeated

violations of promises made by the

government, to leave their homelands

in the southeastern part of the United

States and move first to lands in the

Arkansas Territory and then to lands

west of the Arkansas Territory, pre-

sently located in Oklahoma. Id. at

622-28, 90 S.Ct. at 1330-33 (majority

Opinion); 637-38 nn. 2, 3, 90 S.Ct.

1337-38 nn. 2, 3 (Douglas, J., con-

curring). The Court also emphasized

— a ~ a ~~

- 188a -

q that the treaties creating the reser-

vation gave the Indians fee simple

title to the lands and promised that

"*no part of the land granted to them

shall ever be embraced in any Territory

or State.'" Id. at 634-35, 90 S.Ct. at

_..* The Indians agreed to move to

this reservation in return for "'a

permanent home ... which shall, under

the most solemn guarantee of the United

States, be, and remain, theirs forever.’

Id. at 624, 90 S.Ct. at 1336 (emphasis

in original). From the language of the

treaties as well as from the historical

circumstances under which the Indians

entered into the treaties, the Court

inferred a congressional intention to

convey to the Indians title to the bed

of the Arkansas River, which was within

the boundaries of the reservation.

(eA Meso” | oS

es) oes

coe.

- 189a -

The present case seems to me to be

more similar to Holt Bank than to Choctaw

Nation. The record reveals no history of

broken promises or oppression by the

government against the Colorado River

Indians. The Indians have not been

forced to settle hundreds of miles from

their aboriginal homelands. More impor-

tantly, the act of Congress which created

the Reservation used none of the language

which the Court found determinative in

Choctaw Nation. The act did not give the

Indians fee simple title to reservation

lands, nor did it promise that the reser-

vation would be a “permanent home" or

would be independent of any territory

or state. The act gave the Indians the

same unspecified rights of occupation

which the Court in Holt Bank found

insufficient to convey title to the

- 190a -

lake bed. Holt Bank, supra, 270 U.S.

Nation, supra, 397 U.S. at 638-39, 90

S.Ct. at 1338 (Douglas, J., concurring).

Thus, I would hold that the

establishment of the Colorado Indian

Reservation did not give title to the

easterly half of the riverbed. That

title was held by the United States

until Arizona became a state, at which

time Arizona acquired title to the

easterly half of the bed under the

"equal footing” doctrine.

The majority in support of its

holding that title to the easterly half

* of the riverbed passed to the Indians

| relies on the lang.age of the 1876

é Executive Order which fixed the boundary

of the Reservation on the west bank of

the river. I cannot accord that language

- 19la -

half, is to fird sophisticated convey-

ancing where only the equivalent of a

surveyor’s imprecise calls with respect

to the western boundary exist.

Reliance by the majority on the

lifestyle of the Indians establishes at

best only a reason for fixing the west-

erly boundary of the reservation so as

to include the river. Access to fishing,

which was needed, was thus assured. The

Executive Order could not, to repeat,

have been intended to convey title to

one part of the stream bed. Why should

it have intended to convey title to the

other part in derogation of the respon-

sibility of the United States to the

future state of Arizona?

The Memorial of the Arizona

Territorial Legislature to which the

majority refers to support its position

ite

- 192a -

the weight given it by the majority

because it could not have been intended

to convey legal title to the entire bed

of the river inasmuch as California

already owned ite westerly half. It

escapes me why the Order should be

understood to convey that half which

the United States ordinarily would hold

in trust for a future state. How, it

must be asked. could the future State

of Arizona come into the Union on an

"equal footing” with California if the

title to the easterly half of the river

were to be given to the Indians in 18767?

What the majority overlooks is the rea-

sonable probability that the Executive

Order merely fixed the western boundary

of the Reservation. To construe it as

a conveyance of title to the easterly

half of the bed, but not to the westerly

- 193a -

does not, as the majority suggests,

"unequivocally" do so. To establish a

reservation “on the east bank and bottom

of the Colorado River" reasonably could

be understood to refer to lands lying

alongside the east bank of the river. A

not unusual meaning of the word “bottom”

when used as a noun is to designate the

relatively level and sometimes grassy

land lying sajeckar to a river. This

appears to me a much more probable

meaning of the word as used in the

Memorial than the assumption of the

majority that it refers to the bed

of the Colorado River.

The majority, of course, relies

upon the canon that requires all ambi-

guities with respect to the intent of

the United States to be resolved in

favor of the Indians. Inasmuch as the

- 194a -

United States brought this suit on behaif

of the Indians its use here may be ques-

tioned. As trustee of the Indians the

United States must infuse its own action

as the supreme sovereign, burdened with

fiduciary duties owing to future states,

with ambiguity in order to discharge

properly its fiduciary duty to the

Indians. That its duty to the Indians

is superior to all others within the

context of this case is beyond dispute;

however, it does not flow automatically

from this proposition that the courts

should permit an ambiguity always to be

resolved in favor of the Indians. A

more nearly neutral approach to intent

under such circumstances as are pre-

sented by this case strikes me as

preferable.

; wee

= 1954 -

Another difficulty with the canon's

use is that it almost invariably means

less than it appears to. Inasmuch as an

ambiguity in the statute and executive

orders clearly exists here, its use might

be expected to be enough without more to

decide the case. That this is not so is

revealed by the supporting reasons the

majority marshalls. However, how much

less it means is never made clear. At

its weakest it is but a makeweight. In

the present case it should function no

more strongly.

B. ce of Easterly Half of

River

I acknowledge that a holding that

title to the bed of the Colorado River

did not pass to the Indians when the

Colorado River Indian Reservation was

established would present a difficult

eine ie . kel SU | ee Oe OL eS at 2 — a: Cra be cr? Gn Vy

: f

ears

i: f

“

ate, stdie ae :

- 196a -

problem. It would require the fixing of

the location of the easterly half of the

riverbed of the Colorado River prior to

the construction of the cut-off channel

by the Palo Verde Mutual Water Company.

This problem could not be solved by

adopting the median line of the 1919

channel as the district court did. Adop-

tion of this line rested on the district

court's holding that the eastern half of

the riverbed belonged to the Indians, a

position I rejEct. Nor can it be solved

by the district court's finding of fact

number 11 which reads:

ll. Immediately prior to

said avulsive change, the

course and bed of the

Colorado River was the

westernmost of the two

channels shown on the Engle

maps, Exhibits 25 and 27

la app C and D), which

posit

ion of the river is

supported by the Yost

- 197a -

sketch map, Exhibit 28,

labeled “Colorado River 1920."

This finding does not fix the eastern

limit of the riverbed of the Colorado

river. It is to that point, and not

beyond, that I would hold the Indians

own.

The appellants argue that the

eastern limit of the riverbed is fixed

by the easternmost channel of the

Colorado River as reflected in Appen-

dices C and D. This may not be so.

Appendices C and D indicate that an

island or sand bar existed between

the two channels prior to the con-

struction of the cut-off. Under

California law, which appears to be

applicable, an island which forms in

the bed of a navigable stream belongs

to the state. Cal.Civ.Code § 1016

- 198a -

(West 1954). However, an island which

is created when a river divides to form

two channels belongs to the original

owner. Id. § 1018. Thus, an island,

if such there was immediately prior

to the cut-off's construction, may

have been part of the Reservation and

thus continues to belong to the Indians.

The present record simply does not

permit fixing with any certainty the

location of the eastern half of the

riverbed. Therefore, I would remand

to the district court for further

proceedings.

, e

woot te : Sa. » <4, Poss Pe Fee. a > PICs Foe

‘

- 199a -

FOOTNOTES

Honorable William G. East, Senior

United States District Judge for

the District of Oregon, sitting by

designation.

The covrse of the river now appears

to be somewhat to the west of the

Olive Lake Cut. In resolving the

issues of this case, however, we

need not consider changes occurring

after 1921.

Our conclusion that this contro-

versy should be decided in ac-

cordance with state law is not

inconsistent ith our recent deci-

sion in United States v. Montana,

$4 F.2d ’ 4. { t r.

979), cert. granted, 445 U.S. 960,

100 S.Ct. teat 64 L.Ed.2d 234

(198C), in which we reaffirmed our

earlier ruling in United States v.

Finch, 548 F.2d 822 (9th Cir.

1976), vacated on other grounds,

433 U.S. 676, 97 S.Ct. 3305, 53

’

L.Ed.2d 1048 (1977), and declined

to apply Montana law in determining

the title of the Crow Tribe into

the bed and banks of the Big Horn

River. In Finch and Montana, the

question was whether the treaties

creating the Crow Reservation had

conferred title to the riverbed on

the Indians, thus precluding

Montana from acquiring title to the

bed upon its admission to the

Union. The case did not raise any

issue involving subsequent changes

in title or deviations in the

river's course. Hence, our inquiry

began and ended with the construc-

tion of the Crow Indian Treaties as

applied to a river within the Crow

Reservation. This was purely a

matter of federal law. In this

case, similarly, we must apply

federal law to decide whether the

statute and executive orders which

established the Reservation con-

veyed to the Indians the title to

the riverbed. In determining the

effect of subsequent changes in the

river's course, however, Wilson

requires, that state law serve as

the rule of decision. Cf.

Corvallis, supra, 429 U.S. at 371,

’ Ct. 2, 590, 50 L.Ed.2d

550.

In arguing that these lands were

part of Arizona, the Indians may be

suggesting that before the Pact,

Arizona was rightfuly entitled to

these lands even though California

in fact exercised jurisdiction over

them. We do not believe, however,

that the Boundary Pact or the rati-

fying statutes require us to deter-

mine whether Arizona could right-

fully have claimed sovereignty over

these lands, since the Pact was

adopted precisely for the purpose

~- 20la -

of serene such controver-

ae + ghana v5 jowa. 406

U.S. 379,

iaes-es. "31 L.Ed.2d 733 (1972).

The Indians are not entitled to

make for Arizona a claim which

Arizona has relinquished.

It is true that in “tat of ong

Beach v. Mansethe : , 469

. 476 P.2d 423

11970), the ‘California Supreme

Court referred to the artificial

accretion exception without stating

that the exception applied only to

state sovereign lands. This state-

ment occurred in a footnote as part

of a two sentence summary of the

rules governing accretion and avul-

sion. The footnote was only peri-

pherally related to the issues in

the case. Nothing in the footnote

suggested, and we think it un-

likely, that the court intended by

this cursory description of the law

to alter the rules a. accre-

tion as more fully explaine

earlier decisions.

There has been some uncertainty

over which bed was awarded to the

State of California in the proceed-

ings below. At oral argument,

counsel for the United States,

representing the Indians, admitted

that he did not know which bed the

state had received in the judgment.

In a Supplemental Memorandum,

- 202a -

appellants declare that the State

of California was awarded the bed

west of “the midstream of the

Colorado River ts avul-

sive change. .. asis

), thus referring to the 1919

channel; later in the same

memorandum, however, appellants

suggest that California owns the

western half of the 1908 riverbed.

Because of this confusion, we quote

findings 14 and 15 from the

district court's findings of fact:

14. With respect to the

lands shown on said Exhibit 9,

as lying between the Colorado

River as shown on Exhibit 9

and the median line as shown

and described on Exhibit 9

{the median line of the

westerly, 1919 bed is indi-

cated on Exhibit 9], said

lands, comprising about 1912

acres, are owned the United

States of America in trust for

the benefit of the Colorado

River Tribes. No part of said

lands have ever been disposed

of by the United States of

America by patent or

otherwise.

15. All that part of the

abandoned bed of the Colorado

River lying westerly of the

median line described on

Exhibit 9, as of the time the

eee ‘ 3 » “ro? E , eo = eet — ey - 2 ae ee a

ror lis

river commenced flowing

through the cut-off con-

structed by the Palo Verde

4 Mutual Water Co. is owned by

| the State of California.

6/ Although we need not determine

whether, but for the judgment

below, and*assuming that the

river's westward movement was

artificially-caused, California

would rightfully be entitled to the

1908 bed rather than to the

westerly bed, we do note that

apellants' position on this issue

is open to dispute. In the first

place, it is not clear whether this

issue, which would involve a deter-

mination cf the ee pena | between

California and Arizone during the

period in question, would be

governed by state or federal law.

Under federal law, as we have

observed, appellants’ contention

that the westward movement of the

riveft was artificially-caused would

be irrelevant. But even under

state law, the issue is uncertain.

To be sure, the court in

indicated that the state retained

title to the original riverbed and

did not own the new bed after the

Peather River changed its course as

a result of artificial causes. In

that case, however, the court noted

that “the state does not claim the

y bed of the river in its present

location." Shasta, supra, 264

- 204a -

Cal.App.2d at 535, 70 Cal.App.2d

618. If, on the other hand, the

state were to relinquish its claim

to the old bed and assert ownership

over the newly-formed bed, thus

declining to invoke the artificial

accretion exception, as the state

did in this case, it is not clear

that a court epplying California

law would be requir to reach the

Same result arrived at in Shasta.

The dissent emphasizes language in

Choctaw Nation that discusses the

degree to which an Indian tribe is

displaced, or the degree to which

the granting language speaks of

establishing a “permanent home" for

the tribe, in deciding whether a

riverbed was conveyed as part of

the tribe's reservation. This

inguiry was not utilized as a

touchstone for decision in Choctaw

Nation, however, but rather as a

non-exclusive factor properly con-

sidered in determining governmental

intent. Thus, the extent to which

an Indian tribe was displaced, or

the degree to which a treaty speaks

of establishing a permanent loca-

tion for a reservation, has no

direct Bearing per Se on whether

the government [ntende@ to convey

the riverbed in any particular

case. For example, because the

history of the treaty involved in

Chgctaw Nation indicated that the

T ans were granted “complete

~ 205a -

sovereignty” over theic new lands,

the Court concluded that all lands

within the metes and bounds of the

Reservation, including the river-

bed, were conveyed, so that the

Indians might maintain dominion and

control over their new home. 397

U.S. at 634-35, 90 §.Ct. at 1336.

The Court noted that:

{als a practical matter,

reservation of the river bed

{from the granted land] would

have meant that petitioners

were not entitled to enter

upon and take sand and gravel

or other minerals from the

shallow perts of the river or

islands formed when the water

was low. In many respects

however, the Indians were

promised virtually complete

sovereignty over their new

lands .... We do not

believe that petitioners would

have considered that they

could have been precluded from

exercising these basic owner-

ship rights to the river bed,

and we think it very unlikely

that the United States in-

tended otherwise.

397 U.S. at 635, 90 S.Ct. at 1336

(citations omitted). Thus, the

Court looked to the history of the

dealings between the Indians and

the government and to the perman-

. * a eee

eo ta - ‘ ite le tit aad eo fatie! o Sot eh i age a

ency expressed in the granting

instrument, not as touchstones for

decision (as impled by the dis-

sent's analysis), but as indicia of

intent.

Similarly, this court's decision

in United States y. Finch, 548 F.2d

822 (Sth Cir. 1576}; vasated on

other grounds. 433 U.S. 676, 97

. . ’ 3 L.Ed. 24 1048 (1977),

relied upon the fact that the

reservation was expressly estab-

lished as a “permanent home." The

court, however, was again concerned

with the permanency of the ree¢rva-

tion only as evidence of the

government's intent. See 548 F.2d

at 832. As in Choctaw Nation, the

permanency of the language Of con-

veyance in Finch was merely a

source from which, in the absence

of anything more probative, the

government's intent to convey dis-

puted property could be inferred.

We need not conclude that such

intent was absent in the present

case merely because it was neither

manifested by language of “perman-

ency" nor inferable from prior

government dealings with the

tribe. We look instead to other

sources to find indications of the

government's intent.

The order of 1874 clarified these

boundaries somewhat by setting

forth specific mountain peaks to be

- 207a -

used as monuments.

Similary vague language has been

held clearly to convey a riverbed

as part of the reservation being

established. See Brewer-Elliott

Oil & Gas Go. Vv. United states, 260

67 L.Ed. 140 (1922) (reservation

held to include half of riverbed

where boundary was “the main

channel of the Arkansas River").

The dissent argues that to draw

such an inference is “to find

sophisticated conveyancing where

only the equivalent of a surveyor's

imprecise calls" is in evidence,

and that the intent of this order

was only to fix in a general way

the western boundary of the

Reservation. We do not find it

inconsequential, however, that the

boundary was fixed by reference to

the west bank instead of the east

bank. Even if the intent of the

order was as the dissent describes

it, this does not explain why the

boundary was set by the west bank;

additional surveying complexities

would have been avoided by adopting

either as the boundary, and, absent

an intent to convey the riverbed,

the logical boundary choice would

have been the nearer east bank.

Additionally, the dissent ignores

that the standard of review in this

case requires us to resolve

—;. ——*,

- 208a -

ambiguities in the language of the

order in favor of the Indians.

The dissent suggests that this

language is ambiguous, in that

"bottom" may refer only to the

lowlands that lie alongside the

river, and not to the land under-

neath the river itself. Such low-

lands, however, fall within the

description “east bank." Thus, if

"bottom" is to have any independent

meaning, it must refer to the sub-

merged bed of the river. Again,

even if an ambiguity were present,

the standard of review requires its

resolution in favor of the Indians.

Holt State Bank has not been over-

ruled. It is, however, an aberra-

tional case, and we believe that it

was not only distinguished, but

also limited by the Supreme Court's

decision in Choctaw Nation,

Supra. Holt State Bank relies

excessively upon the presumption

against conveyances created in

reliance on the equal footing doc-

trine by Shively v. Bowlby, 152

U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331

(1894). See 270 U.S. at 54-55, 46

S.Ct. at 198-199. This presumption

had not yet been judicially

articulated at the time the con-

veyance presently concerning us

occurred, was not found significant

by the Court in Choctaw Nation, see

397 U.S. at 634, 90 S.Ct. at 1336,

1 iad

wax

~- 209a -

and very possibly is not properly

applicable in a case such as this

one, where the land in question was

pene 4 by the ernment to

itself in trust for an Indian tribe

(a fact notably absent in Holt

State Bank). See generall ote,

Indian Rights to == nderlyi

tat S

74 (1979).

- 210a -

UNITED STATES vy. ARANSON

APPENDIX A

Channel of the Coloredo River

an 1908

——s . eee ee ee

‘*. 4

a :

-o- oe

- : ' a ; “ ‘

e —we- nfo >p— &- ~

° ae - » OF .«

ul ivi 1 eet

1 Caw ot VERDE Ceanot vance | Pe

an 1

tak q - !

Se ae

’ rin tei “te

- 2lla -

UNITED STATES v. ARANSON

Channel of the Coloredo River

in 1915

fine 2t TYAS sPRy 1915.

“ji.

- 2l12a -

UNITED STATES v. ARANSON

APPENDIZ C

Channel of the Coloredo River

in 1919

| viet he

- ~~) >

Y Te elk Al abiinm Antik de cine aes ‘ ies,

a > em 3

‘ 4 ; tot je’ , ‘

Pe eS oe ee ; oie a)

- 2l3a -

UNITED STATES v. ARANSON

APPENDIX ©

Channel of the Coloredo River

in 1919-1920

j : _ oy ae Se PY

, La * - - ‘ ’ i :

° : net ¥ .- yell es

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