# Appendix — Harvey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0139%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 833 ## Text Supreme Court of the Gnited States OcTOBER TERM, 1981 Iva May HARVEY, a widow, et al., Petitioners, v. 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 SS 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, v. 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 - 2a - 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. - 4a - 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 - 5a - 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 1 property since 1960." Three issues are - 10a - 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. I. 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 - lla - 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 - l2a - 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 - l3a - 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 - 15a - 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 3 - l6a - 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 be 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 - 18a - 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 - 19a - 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 - 20a - 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 : p , ’ - 22a - "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 . e - 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 - 29a - 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- A. 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 | ‘ - 33a - 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. B. {7} The special interrogatories - 35a - 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. - 38a - 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 b S - 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 i has et , a . : uh 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 a f 5 * 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. V 2/ 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 ae - 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 “ 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, ve 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 c= 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 a F. 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. ' 4 hy 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 ~ %) A - 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 é 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, 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. : = a 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)]. ee = oe il ESP Us SF . . ~ 3 : - 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 ~ —— s 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 s. 3 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. -” & » 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 AG ’ we Za a ; - 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, Ve 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. » —— rr J - 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. 4 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 Pe ae Ieee a ee ere S ra 9 ann eee ae eR Ue eee a re ae - l2la - UNITED STATES of America, Plaintiff-Appellee, v. 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 ' ; a | ~ 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 a 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: on ~ 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 4 4 ’ ‘ “> ‘ 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. I 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 4 \ - > ~ co dlakeel? ee Ne seam eae _— 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> ae = ty . . ~s - 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 aa ~- 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. II 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 ar 3 £ - 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 es 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 4 a ) 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. ao 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. i - 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 we nT ~~ 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, D ae “ F "eee ee se OO eS Le ee - “AW? Se, pe i ’ ¥ 3 ae “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: uf ; $ 2 - 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 | j F id - 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 5 ri 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 a é - 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 wg - 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.. eager PS diel oe “x 4 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 se — 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. 5 - 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 oo * - 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 7 - 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. a ; 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 ee eine ie . kel SU | ee Oe OL eS at 2 — a: Cra be cr? Gn Vy : f ears i: f ~ “ 3 ¥ 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. » PICs Foe b i ‘ * - 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 +8 | | | q ¥ a 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 oe - 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. Additionall [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0139%3A2. Public record. Not legal advice.