Petition for Writ of Certiorari — Mills v. North Dakota

No. APR_19 1991

In The Peewee oF THE CLERK

Supreme Court of the United States

>_>

October Term, 1990

ANCHOR ESTATES, INC. and WILLIAM R. MILLS,

TRUSTEE,

Petitioners,

vs.

THE STATE OF NORTH DAKOTA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE NORTH DAKOTA SUPREME COURT

WILLIAM R. MILLS

Petitioner, Pro Se

2904 Langer Lane

R. R. 4 Box 200

Bismarck, North Dakota 58504

(701) 223-4643

274

tz * NJ (201) 257-6850+(800) 3 APPEAL *NY (212) 840-4640*MA (617) 542-1114

ters.ime. OC (202) 783-7288+PA (215) 925-6500*USA (800) 5 APPEAL

QUESTIONS PRESENTED FOR REVIEW

1. Did the State of North Dakota deny petitioner his

constituuiona! rights of due process and equal protection of the

law?

2. Did the State of North Dakota take petitioner’s private

property for public use without just compensation?

il

TABLE OF CONTENTS

Questions Presented for Review..................0..

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Constitutional Provisions Involved ..................

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Reasons for Granting the Writ... .. ccc cs ccccccceccs

I. Special and Important Reasons to Grant Writ. .

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A. The Land Petitioner Received............

B. The Land the State Received ............

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Contents

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TABLE OF CITATIONS

Cases Cited:

Erlenmeyer v. State Penitentiary et al., Burleigh County

EE ES Perea ee ee ee ee 6

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, California, 107 S. Ct. 2378

Furlong v. Sun Exploration, 423 N.W. 2d 130.......... 8

Kaiser Aetna v. United States, 100 S. Ct. 383 (1979) ...24, 28

Nollan v. California Coastal Commission, 107 S. Ct. 3141

Oberley v. Carpenter, 274 N.W. 504 .................. 6

oy ee a BR >” 8 6, 8, 18, 16

iv

Contents

Page

United States v. 11993.32 Acres, 116 F. Supp. 671 (Nov. 11,

ic eek Lae as ae a aAS CC eR ERS BAO SS 6

United States v. Richardson, 418 U.S. 166 (Sup. Ct. June

GD sus ves 646 dn oak de Cees USER EA ee <a 9

Statutes Cited:

ee es ous web bebe Sawa eka keune eee 2

Act of February 22, 1889, Ch. 180, 25 Stat. 676, Section 17

bude renee cava aed sian pAteee ees 13, 18, 19, 20

Act of May 22, 1963, c. 65, Title II, Section 3, 67 Stat. 30,

as EE EUG ox CSM RE UES e ke i oh 0 os ceeds 6

2 Stat. at L. 313, Chapt. 14, Rev. Stat. P. 2396, 43 U.S.C.A.

United States Constitution Cited:

Pe SE natn nes csy sdb anVewsi wehbe ec bd ean ade 2, 11

IIE ic 5 66 cic 0 SNA 6 WANS SN ced ek ob 2, 11

Rule Cited:

CT Cee ies eneubedaendeeasbedeues 9

Other Authorities Cited:

Ft ee eee ee eee ers Te ee ee Lees 26

Contents

Page

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Se IS acc wnclnaccnbeentes saeeeetes 27

Se IS cn Skok ssa RUs Ree Ruae weal 26

PVOIPIPY O oiS gs Shcehe e 26

Army Corps of Engineers Report of May 28, 1976...... 21

Black’s Law Dictionary, 4th Edition................... 23

North Dakota Constitution, Article 1, Sections 16...... 12, 14

PE GSE Ub nas ccbaescechodxxcuéseteureet 12

AEE Ge 4 i 6b 66 cccccanskcecenteseseves 12

North Dakota Water Commission Office Memo 27, October

APPENDIX

Appendix A — Order Denying Petition for Rehearing Entered

ES ND wa buh 5 0.465454 0b doen ed waster esees

vi

Contents

Page

Appendix B — Opinion of the North Dakota Supreme Court

. 4, fe Bere reer er ren Te 2a

Appendix C — Judgment of the State of North Dakota,

District Court of Burleigh County, South Central

Judicial District Filed May 25, 1990 ............... 9a

a

No.

In The

Supreme Court of the United States

October Term, 1990

ANCHOR ESTATES, INC. and WILLIAM R. MILLS,

TRUSTEE,

Petitioners,

vs.

THE STATE OF NORTH DAKOTA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE NORTH

DAKOTA SUPREME COURT

OPINION BELOW

The North Dakota Supreme Court rendered its opinion in

the case of Anchor Estates, Inc. v. State of North Dakota on

February 21, 1991. (It will be reported in Northwest 2nd, present

citation unknown.)

The order denying the petition for rehearing was entered

March 20, 1991.

STATEMENT OF JURISDICTION

Judgments against the State of North Dakota Quieting Title

on the subject land were entered August 13, 1931, and November

21, 1967. In 1964 the United States began flooding and washing

away the land without congressional authorization. In 1989 the

State of North Dakota enacted a statute conclusively transferring

the land to the State.

Petitioner brought the State into court by the statutorily

prescribed method of a court order to show cause why the State

should not be held in contempt of court for violating the standard

provision in a judgment quieting title which enjoined the State

from ever claiming such ownership again.

The trial court dismissed the order to show cause. The

Supreme Court affirmed the dismissal.

The decision of the North Dakota Supreme Court sought

to be reviewed was entered February 23, 1991, and petition for

rehearing denied March 20, 1991.

The statute believed to confer jurisdiction is 28 U.S.C.

§ 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the Fifth and

Fourteenth Amendments to the United States Constitution.

STATEMENT OF FACTS

A. Background

About February |, 1988, a matter of some importance was

3

brought to the attention of the United States Supreme Court and

ignored (Petition for Certiorari, Anchor Estates v. United States,

October Term, 1987).

The case was brought in 1981 for the taking by the Army

Corps of Engineers of land for which Congress had specifically

refused authorization. At that time actions against the sovereign

were handled by the United State: Court of Claims with review

directly by the United States Supreme Court.

Time passes. Things change.

The Court of Claims was eliminated. The Claims Court was

inaugurated and across the hall was installed the United States

Court of Appeals for the Federal Circuit to monitor decisions

against the Attorney Generai and his client, the Sovereign. Claims

court judges need to be re-blessed every fifteen years and the judges

for this new appellate court were carefully screened by Attorney

General Ed Meese.

The Attorney General persuaded the judge to order counsel

for Anchor Estates not to talk to his clients. Mailing a letter might

have been contempt, but I had someone else buy the stamp.

In 1984 the Army Corps of Engineers asked Congress for

authorization to buy 6,000 acres which was what they wanted

besides what they had already stolen. Congress asked for a

comprehensive report which was completed June 1985. Anchor

Estates demanded its production. The Justice Department ordered

its destruction.

The Army Corps of Engineers had mixed emotions. Congress

said stand and deliver. The Justice Department ordered

destruction. The Army attacked with a smart bomb, and all but

two copies were destroyed. These two were delivered to the North

Dakota State Engineer to hopefully satisfy Congressman Dorgan.

I stole one.

While repeated motions were made to have the court punish

the Justice Department for destruction of evidence, none were

allowed to be filed. The ritual process of filing Status Reports

was known so a Motion was incorporated there and became filed.

The Justice Department sought a hearing to suppress the

Corps’ confession. Anchor sought a hearing to find the Justice

Department in contempt. Ed Meese came up with a solution to

this problem.

Three things happened February 11, 1987:

That day Attorney General Ed Meese decided that even

though Congress voted overwhelmingly against the raise, the

congressman and justices would get it. That day Trial Judge Yock

got $10,000 extra a year.

That day Judge Yock threw out Anchor Estates’ claim and

held that therefore destruction of evidence was moot. (There is

no murder because the victim died.)

That day the United States Senate Environmental and Public

Works Committee held a hearing in Bismarck, ND. Mills testified.

The General Accounting Office was asked to investigate. Their

report, as well as the destroyed Army Corps of Engineers’ report,

completely supported Anchor Estates’ contentions in the suit.

The General Accounting Office, also observed in their report

of March 1988 (Page 3):

A property owner might make a claim against the

United States for bank erosion on the Missouri

River alleging a taking of property under the Fifth

Amendment of the U.S. Constitution or the

government’s negligence under the Federal Tort

Claims Act. On the basis of past court rulings,

we believe there is little chance of anyone obtaining

compensation for bank erosion in either instance.

The petition for certiorari in Anchor Estates v. United States

(October Term, 1987) should be reconsidered.

A number of years ago, Sheriff Pavelanko went to the federal

pen for allowing a mob to torture his Indian prisoner. The United

States Justice Department gave me a commendation for

prosecuting the only successful civil rights case in the nation that

year.

About that time the United States Supreme Court accepted

a message from Miranda. The Supreme Court decided that the

solution to rotten cops was to let rotten criminals go.

Time passes. Things change.

~ Because of the Los Angeles video, bad cops are again about

to be prosecuted. Because of the recent Supreme Court decision,

criminals are about to be denied the brass ring.

Time passes. Things change.

Maybe there is hope yet for a review of our situation.

B. Chronology

In 1931 North Dakota District Judge Fred Jansonius rendered

a judgment that settled the boundary between the State Farm and

Anchor Estates’ predecessor with a line ‘‘To an intersection with

the original meander line of the right bank of the Missouri River,

looking up stream.’’ (Erlenmeyer v. State Penitentiary et ai.,

Burleigh County District Court, Aug. 13, 1931).

In 1937 the North Dakota Supreme Court ruled that a riparian

landowner owned to the ordinary low water mark on the Missouri

(Oberley v. Carpenter, 274 N.W. 504).

In 1950 the Army Corps of Engineers said they needed the

subject land for the Oahe Reservoir.

In May 1953, Congress ‘‘reorganized, confirmed, established

and vested in *** the persons who were on June 5, 1950, entitled

thereto under the law and the respective States in which the land

is located ***.’’ (May 22, 1953, c. 65, Title II, Section 3, 67 Stat.

30) (Title 43, Section 1311).

In 1953 Federal Judge Charles Vogel ruled that accretions

do not belong to the United States, but to the adjacent landowner

[United States v. 11993.32 Acres, 116 F. Supp. 671 (Nov. 11,

19S3)}.

In 1954 U.S. Senator Milton Young got Congress to refuse

authorization to take the subject land.

In 1961 the Army Corps of Engineers put in writing that

Section Twenty-nine would not be required.

In 1964 the Army Corps of Engineers started flooding the

land each winter.

In 1965 the North Dakota Supreme Court held land with

fixed boundaries could be re-ciaimed after submersion because

its location could be ascertained (Perry v. Erling, 132 N.W. 2d

889).

In 1967 the Corps promised the state officials that Garrison

Diversion would be commenced in 1968 if the state officials did

not stop the revenues from winter power production accomplished

by winter flooding.

Severai things were obvious. The Army Corps of Engineers

was not about to obey the law. State officials were not about

to offend Santa Claus. Things were going to get a lot worse before

they ever got better. Perhaps protection by the judiciary would

survive.

A boundary agreement was made October 24, 1967, between

Anchor Estates and the State of North Dakota:

for the purpose of permanently locating and

establishing the lines and corners and permanently

fixing the boundaries of the land in Section

Twenty-nine, Township 138, Range 80, Burleigh

County, North Dakota, and to be enabled to

permanently improve the same.

(Emphasis added.)

The next day an Action to Quiet Title on ai// /and in Section

Twenty-nine was brought against the State. A judgment was

entered November 2, 1967, stating:

That any and all claims of the defendant (North

Dakota) to said real estate or any part thereof are

null and void *** that the defendant be forever

debarred and injoined from further asserting the

same.

Time passed. Things change.

In April 1988, the North Dakota Supreme Court ruled

‘*‘Whether North Dakota has limited its title to the area below

the low watermark has not been decided.’’ (Furlong v. Sun

Exploration, 423 N.W. 2d 130, 132, note 1).

In November 1988, Charles Carvell wrote an article for the

North Dakota Law Review setting aside Perry v. Erling and the

other cases and adapting note | of Furlong.

On July 12, 1989, the North Dakota law on Sovereign Land

Management became effective. ‘‘Sovereign lands means those beds,

islands, accretions, and relictions lying within the ordinary high

watermark of navigable lakes and streams.”’

On November 1, 1989, regulations became effective and were

innumerable restrictions on use and a requirement to make

application for use to be approved by many bureaucrats.

On February 28, 1990, the Russian Legislature enacted laws

permitting Russians to have exclusive occupancy of land for home

Or agriculture in Russia.

REASONS FOR GRANTING THE WRIT

I.

SPECIAL AND IMPORTANT REASONS TO GRANT WRIT

In North Dakota we have a bank robbery. Where do we go

to call a cop?

The State won’t help. they are getting the loot.

Congress won’t help. Their political contributors are getting

millions and millions of dollars of government largesse through

Our injury. ;

The courts won’t help. To support the ‘‘popular’’ position,

they distort the facts in the reported opinion so their decision

will not appear too weird (Anchor Estates v. North Dakota, N.D.

Feb. 21, 1991).

Or they disregard the affliction and order the opinion not

to be reported (Anchor Estates v. United States, No. 87-1290 (U.S.

Ct. App., Fed. Cir.)

Or they find the thirty-nine billion dollars of secret money

in the black bag of the Army Corps of Engineers’ parent

organization, the Pentagon, while unappropriated and tax money,

while clearly unconstitutional, must continue to be concealed. Only

those with ‘‘standing’’ are allowed to peek (United States v.

Richardson, 418 U.S. 166 (Sup. Ct. June 25, 1974).

To justify the granting of a writ of certiorari there must be

‘*special and important reasons’’ (Supreme Court Rule 17.1). I

am not black or pregnant or even arrested. I will have to go with

what I have.

In 1937 the United States started taking part of my earnings

for Social Security. I was informed by my government that if

I wanted more than Social Security when I retired, I should make

investments. It was explained to me that when [| retired and

liquidated my investments, they would not be taxed like I made

all that in one year.

Time passed. Things change.

Today the government is paying unwed mothers to produce

and farmers not to. For these grand national goals they have to

tax my retirement. But they don’t have to steal it!

When I returned from the war, I looked around for a suitable

10

‘*investment.’’ The United States was moving into flood control

and irrigation along the Missouri River. Some investors were

buying up bottom land to re-sell to the government. It occurred

to me that whatever was left after the government acquired their

needs and messed it up would be a good investment. | was right.

From the Bismarck-Mandan Memorial Bridge to the Nebraska

line (not South Dakota but Nebraska!) is 755 miles. On the

Bismarck side of the Missouri there is only five and a half miles

of privately owned waterfront in that 755-mile stretch. | wound

up with the upper two and a half miles. For forty years we

protected the forests and wildlife from fire and destruction. We

kept the Missouri from eroding the banks. We have more wild

deer and wild turkeys per acre than any government park in the

entire United States. And in this private park are many, many

homes.

Meanwhile, as expected, the government drowned out all their

trees and then lowered the reservoirs. All that land now looks

more like a scene from the Moon than Missouri River bottomland.

All over the nation public officials are seeking ways to deliver

waterfront land to the public, but ‘‘no new taxes.’’ Cunningly,

these officials have decided to ‘‘nationalize’’ the shoreline, not

condemn it.

Mark Russell got it right. ‘*Steal from the rich and give to

the poor. Otherwise the poor will have nothing to steal from each

other, and that wouldn’t be fair.’’

Il.

THE RIGHTS DENIED

The rights guaranteed by the United States Constitution and

violated by the State of North Dakota and by the United States

1]

of America, are as follows:

In the United States Constitution we find in the Fifth

Amendment that

No person shall *** be deprived of *** property,

without due process of law; nor shail private

property be taken for public use without just

compensation.

(Fifth Amendment, United States Constitution.)

Four score and seven years after our Constitution was enacted,

some of the States thought some people were more equal than

others. To dispel this notion a war was fought. At the cessation

of the hostilities a new amendment was added.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States, nor shall any state deprive any

person of life, liberty or property, without due

process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

(Fourteenth Amendment, United States Constitution, emphasis

added.)

The provisions of a state constitution are not generally

weighed and considered by the United States Supreme Court.

However, the provisions are inexorably woven into the fabric of

‘‘privileges’’ and ‘‘immunities’’ and ‘‘due process’’ and are integral

in ‘‘equal protection of the laws.’’

A hundred years ago North Dakota created its Constitution.

12

Private property shall not be taken or damaged

for public use without just compensation having

been first made to, or paid into court for the

owner, and no right of way shall be appropriated

to the use of any corporation, other than

municipal, until full compensation therefore be

first made in money or ascertained and paid into

court for the owner, irrespective of any benefit

from any improvement proposed by such

corporation, which compensation shall be

ascertained by a jury unless a jury be waived.

(Article I, Section 16, North Dakota Constitution, emphasis

added.)

Section 18. No bill of attainder, ex post facto law,

or /aw impairing the obligation of contracts shall

ever be passed.

(Article I, Section 18, North Dakota Constitution, emphasis

added.)

Then those citizens, like myself, who believed legislators and

judges might get out of line enacted another provision.

DECLARATION OF RIGHTS. Section 20. To

guard against transgressions of the high powers

which we have delegated, we declare that

everything in this article is excepted out of the

general powers of government and shail forever

remain inviolate.

(Articie I, Section 21, North Dakota Constitution, emphasis

added.)

13

Neither the Revolution, the Constitution, the Civil War, the

Fourteenth Amendment, the Enabling Act, nor the North Dakota

Constitution were conceived and dedicated to the proposition that

the State was supreme.

The Constitution is not a limitation on citizens. It is a

limitation on government.

North Dakota became a State in 1889. Congress passed the

Enabling Act and granted North Dakota 500,000 acres of land

and provided that North Dakota ‘‘shall not be entitled to any

further or other grants of land for any purpose.”’ (Act of February

22, 1889, Ch. 180, 25 Stat. 676, Section 17).

Congress enacted laws which granted land to the railroad.

The land involved in this case was patented to the railroad January

17, 1896. Petitioner is the successor in interest of the title. The

land was on an ancient island many miles long and miles wide.

In 1931 petitioner’s predecessor, Erlenmeyer, quieted title

against the State to establish where the boundary was in dividing

that ancient river bed making the land an island. In 1967

petitioner’s predecessor, Anchor Estates, quieted title against the

State to establish the south and west boundary. In 1989 the State

passed a law that all flooded land and all islands were soverign

lands belonging to the State. The State passed regulations that

trespassers could not be prohibited on petitioner’s land. The court

threw out the actions to quiet title of 1931 and 1967 because the

riparian concept of ‘‘sovereign land’’ in North Dakota had not

been raised in the quiet title actions.

While the ostensible purpose of Garrison Dam was flood

control, the hidden agenda was controlled flooding. Rural electric

power cooperatives and municipalities were offered cheap power.

In order to get on the gravy train, the investor owned utilities

14

formed their co-op and jumped aboard.

At the present time the Western Area Power Association,

alias United States, is buying a million dollars of power each week

from the power producers and selling it below cost to all these

votes.

In 1956 it was obvious that if power was to be produced

in the winter time, there would have to be winter flooding

somewhere. The area between Garrison Dam and south Bismarck

was selected for this honor. There the winter flows are 31,000

cubic feet a second under ice cover. The winter flows downstream

leaving the Dakotas is held at 10,000 cubic feet a second. A ‘‘right

of way’’ to flush this 31,000 cfs flow downstream was needed

in this privately owned segment of the Missouri.

Congress has refused condemnation. The North Dakota

Constitution said ‘**** no right of way shall be appropriated to

the use of any corporation *** until full compensation therefore

be first made in money ***.’’

So Article I, Section 16, was amended in 1956 to remove

the obligation to pay for the taking of a ‘‘right of way.’’ And

the State Constitution’s provision ‘‘to guard against

transgressions’’ that ‘‘shall forever remain inviolate’’ was not

longer operable.

The Corps then created ‘‘overflowed lands.’’ One of the

overflowees met with his Congressman and Senator and

complained. The Army Corps of Engineers promised Garrison

Diversion out of hydropower profits if they were not stopped

from taking overflowed lands where they had no right to flood.

So an action against the State of North Dakota to quiet title was

started that afternoon. The North Dakota Supreme Court held

that the defendant, State of North Dakota, was not bound by

15

the judgment. Divine right of Kings?

As was stated in Perry v. Erling, the area below the ordinary

high water mark is subject to a federal navigational servitude.

(Perry v. Erling, 132 N.W. 2d 889, 900 (N.D. 1965).

To provide navigation downstream nearly all the water in

Garrison Dam has been released. How do you make power without

‘“*head’’? You buy it from ‘‘friendlies.’’

Meanwhile, because of the dams there is no ‘‘navigation’’

in the Dakotas, only dams. There is ‘‘navigation’’ in Kansas which

provides their farmers the opportunity to send wheat to Portland,

Oregon, at greatly reduced rail rates, because of dubious

competition from barge rates. Yet on the entire Missouri in an

entire year there is less tonnage than goes through Fargo, North

Dakota, by rail every ten days.

In determining whether due process has been present, case

law supports the position that the electoral process may satisfy

the due process requirement in certain instances. Innumerable

decisions require due process from the courts.

In 1950 the Corps of Engineers asked Congress for authority

to condemn land for the Oahe Reservoir up to the Bismarck-

Mandan Memorial Bridge. In 1954 the riparian landowners,

pursuing their right to due process, sought out their Congressmen

and Senators who thereupon determined that only the land 11.2

miles or more downstream from the bridge would be taken. Due

process was had.

In October 1967, the riparian landowners, pursuing their right

to due process, met with Congressman Kleppe and Senator Burdick

at a meeting at Mandan and outlined how their land was being

flooded and wasted away by the outrageous releases of water from

16

Garrison Dam by the Corps. The Army Corps of Engineers’

representative admited the Corps was flooding land it had no right

to flood but stated they were doing so to make money from

producing power and would use some of the profits to start

Garrison Diversion in North Dakota the following year. To the

drought-terrorized farmers in North Dakota, Garrison Diversion

was the equivalent of manna from heaven. Congressman Kleppe

did not object and he became Secretary of Interior of the United

States. Senator Burdick did not object and he became Chairman

of the United States Senate Committee on Public Works.

There is a question of whether the guarantee of due process

becomes flawed when the guarantor gets a reward from the

perpetrator to look the other way.

The new tidelands oil doctrine became current and choice.

The ‘*bed’’ of the stream, and its oil, belonged to the States. The

‘**bed’’ used to be from ordinary low water mark to ordinary low

water mark (Perry v. Erling, supra, at 900).

Time passes. Things change.

The Corps of Engineers built dams and faucets on the

Missouri. As a result, according to the General Accounting Office

study, the Missouri in North Dakota became a wide, shallow river

with many sandbars. The United States admits that each year

seventy acres of high, dry land between Garrison Dam and

Bismarck is washed away.

The State of North Dakota announced a policy of claiming

ownership where the land had been. The State also claims

ownership where this eroded dirt deposits at the headwaters of

Oahe at Bismarck.

North Dakota has seized all land between the pre-dam

17

ordinary low water mark, a three foot stage, and the new level

that becomes adequately inundated to grow cattails, now a thirteen

foot stage.

The North Dakota Supreme Court in its opinion in this case

hold that Anchor Estates’ 1967 action to quiet title against the

State of North Dakota on ‘‘all land’’ in Section Twenty-nine south

and west of the boundary is no longer operable. The unanimous

decision holds that the issue of ‘‘Sovereign Rights’’ was not

considered. The failure of the State to raise the issue is disregarded.

Anyone but the ‘‘State’’ who failed to raise an issue, would receive

short shrift. But as Justice Levine stated at oral argument, ‘‘You

can’t find the ‘*State’’ guilty of contempt! How can the ‘‘State”’

be guilty of contempt?’’ My response that ‘‘King George is subject

to the law,”” seemed confusing. I was not referring to Governor

‘*George’’ Sinner or President ‘‘George’’ Bush. I was referring

to the absence of the Divine Right of Kings which we supposedly

abandoned in 1776.

Il.

THE LAND

The United States bought the subject land in the Louisiana

Purchase. A part of that land was transferred to North Dakota.

A part of that land was transferred to Northern Pacific Railroad

Company.

A. The Land Petitioner Received

Petitioner is the successor in interest to a United States Patent

issued January 17, 1896, to the Northern Pacific Railroad

Company, covering Lots Five (5) and Six (6) of Section Twenty-

nine (29) Township One Hundred Thirty Eight (138) Range Eighty

(80) West of the Fifth (Sth) Principal Meridian.

18

In the early 1800’s, we accomplished the Louisiana Purchase.

About 1849 we had the California gold rush. We had Texas

annexed. In any event, we (a broad ‘‘we’’ including our ancestors)

found ourselves with vast territory.

To develop America we offered homesteads. To get

transportation we made land grants to railroads. We gave bonus

of land script to veterans. The name of the game was to develop

America, and we did.

A contract existed between the United States and the Northern

Pacific Railway. The railroad was built and the United States

granted them the agreed patents. The rule on surveys was that

the riparian lot extended to ‘‘the water course ***.’’ (2 Stat. at

L. 313, Chap. 14, Rev. Stat. P. 2396, 43 U.S.C.A. § 752). The

present petitioner is a successor in interest to that contract.

B. The Land the State Received

The State of North Dakota exchanged its opportunity to

obtain ‘‘swamp and overflowed lands’’ from the United States

by accepting high dry land, ‘‘in all five hundred thousand acres.”’

[Section 17 of the Enabling Act of February 22, 1889, Ch. 180,

25 Stat. at L. 676)].

An examination of chronological statutes is needed.

On September 4, 1841, Congress passed ‘‘An Act to

appropriate the proceeds of the sales of public lands, and to grant

pre-emption rights.’’ Eight States, not North Dakota, were paid

10 per cent of land sales and each State given five-hundred

thousand acres of land for purposes of internal improvement

(Section 8).

On September 28, 1850, Congress passed **An Act to enable

19

the State of Arkansas and other States to reclaim the ‘swamp

lands’ within their limits.’’

*** the whole of those swamp and overflown

lands, made unfit thereby for cultivation, which

shall remain unsold at the passage of this act, shall

be, and the same are hereby granted to said State.

The Act also set out:

Sec. 4. And it be further enacted, That the

provisions of this act be extended to, and their

benefits be conferred upon, each of the other States

of the Union in which such swamp and overflowed

lands, known as designated as aforesaid, may be

situated. APPROVED, September 28, 1850.

On February 22, 1889, Congress passed ‘‘The Enabling Act”’

permitting North Dakota to become a State. Section 17 reads in

part as follows:

SEC. 17. That in lieu of the grant of land for

purposes of internal improvement made to new

States by the eighth section of the act of September

fourth, eighteen hundred and forty-one, which act

is hereby repealed as to the States provided for

by this act, (sic, North Dakota) and in lieu of any

claim or demand by the said States, or either of

them, under the act of September twenty-eight,

eighteen hundred and fifty and section twenty four

hundred and seventy-nine of the Revised Statutes,

making a grant of swamp and overflowed lands

to certain States, which grant it is hereby declared

is not extended to the States provided for in this

act and in lieu of any grant of saline lands to said

20

States, the following grants of land are hereby

made, to wit:

*** To the State of North Dakota a like quantity

of land as is in this section granted to the State

of South Dakota, and to be for like purposes, and

in like proportion as far as practicable.

*** That the States provided for in this act shall

not be entitled to any further or other grants of

land for any purpose than as expressly provided

in this act.

(Act of February 22, 1889, Ch. 180, 25 Stat. at L. 676, emphasis

added.)

IV.

EROSION AND FLOODING

Each year seventy acres of high bank ground is washed into

the river between Garrison Dam and Bismarck. The State claims

the title to the place it had been.

This dirt flows south and when the river flow diminishes at

the headwaters of Oahe, this dirt settles out on the bottom forming

sandbars. The State claims title to the place it landed.

Consequently, the high valley lands are giving way

to a continually widening belt of low sandbars and

river channels.

Waterlogging occurs when the groundwater table

rises tO a point where the usefulness of land,

whether for farming or human occupancy is

21

impaired. Three areas with this type of problem

have been identified. These are the Buford-Trenton

area in the headwaters area of Lake Sakakawea,

the Bismarck area in the headwaters of Lake Oahe,

and the general area below Fort Randall as far

downstream as Niobrara, Nebraska. All of the

problems in these areas can be traced to changes

in hydrologic characteristics of the river resulting

from operation of the main stem system.

(Corps Report of May 28, 1976, pp. 3, 4, emphasis added.)

In 1967 it became apparent that the Corps releases were going

to wash away land unless something was done. Expensive

improvements required financing and good title. Anchor Estates

and North Dakota executed an agreement.

NOW THEREFORE, for the purpose of

permanently locating and establishing the lines and

corners and permanently fixing the boundaries of

the land in Section Twenty-nine, Township 138,

Range 80, Burleigh County North Dakota, and to

be enabled to permanently improve the same, we

do hereby enter into this agreement, each of us

binding ourselves, our heirs, executors and

administrators and assigns to the conditions hereof,

and agree as follows.

(Emphasis added.)

On October 24, 1967, the Members of the Board of

Administration inspected the subject land and the Boundary

Agreement was executed.

On October 24, 1967, the same day that William R. Mills

22

appeared before the Board of Administration, he also appeared

at a meeting in the REA-RTA building at Mandan, North Dakota.

That meeting was with Senator Quentin N. Burdick; Congressman

Thomas S. Kleppe; Mylo W. Hoisveen, Chief Engineer, North

Dakota Water Commission; Colonel R. W. Love and J.O.

Ackerman of the Army Corps of Engineers.

The North Dakota State Water Commission, Office Memo

dated October 27, 1967, correctly reports what Mr. Mills said.

William R. Mills:

We have some land south of Bismarck and we

attempted to do our own revetment works.

Unfortunately we have not had too much success

due to the erratic flows of the Missouri River.

What I can’t understand is why these erratic flows

are only occurring between Garrison Dam and the

tailwaters (sic headwaters) of the Oahe Reservoir.

According to the Corps of Engineers, maximum

safe releases downstream from us is only 15,000

cfs and the Missouri River channel downstream

has a greater capacity for carrying flows. Below

Fort Peck Dam, the river channel is quite narrow

and maximum safe releases from Fort Peck

according to Corps of Engineers is 13,500 cfs.

During construction of the Interstate-94 bridge

across the Missouri River, maximum releases from ‘

Garrison Dam were held at 20,000 cfs, and

increased to 31,000 cfs to scour out material in

the channel above and below the new Interstate-94

bridge. This was reported by the Corps of

Engineers, so | am sure they are aware of the

effects of flows in the vicinity of 31,000 cfs.

ee

23

The erosion and flooding was being castigated. Colonel R.W.

Love of the Army Corps of Engineers stated in part:

The high releases made from Garrison Dam are

also necessitated to meet power demands. The

monies received for the production of this power

is used to finance such projects as Garrison

diversion which is planned to commence

construction in 1968.

(North Dakota Water Commission Office Memo 27, October 1967,

at 6.)

The next day, October 25, 1967, Anchor Estates, Inc. brought

an Action to Quiet Title. On October 28, 1967, the State made

its answer. On November 2, 1967, Judge Lynch executed Findings

of Fact, Conclusions of Law, and Order for Judgment. Judgment

was issued and recorded that day. What was the purpose of the

Action to Quiet Title brought October 25, 1967?

QUIET, v. To pacify, to render secure or

unassailable by the removal of disquieting causes

or disputes. This is the meaning of the word in

the phrase ‘‘action to quiet title,’’ which is a

proceeding to establish the plaintiff’s title to land

by bringing into court an adverse claimant and

there compelling him either to establish his claim

or be forever after estopped from asserting it.

Wright v. Mattison, 18 How. 56, 15 L. Ed. 280.

(Black’s Law Dictionary, 4th Edition.)

The erosion caused by the winter flooding is illegal. Congress

refused authorization to take the land.

24

For twenty-two years the State has failed to stop the illegal

flooding and erosion. When the Army Corps of Engineers asked

for all the land to the Memorial Bridge, Congress refused and

moved the taking line 11.2 miles downstream.

The State now claims it owns all those areas eroded away.

It now claims it owns all those areas flooded each winter with

31,000 cfs and the artificial 13.4 stage. And just in case they missed

something, it claims all islands regardless of elevation.

The State has decided ‘‘the owner has somehow lost one of

the most essential sticks in the bundle of rights that are commonly

characterized as property—the right to exclude others.’ [Kaiser

Aetna v. United States, 100 S. Ct. 383, 391 (1979)].

Vv.

THE CONTEMPT

The 1989 session passed ‘‘S.L. 1989, Ch. 552, Sec. 3’” which

reads in part:

‘*Sovereign lands’’ means those beds, islands,

accretions, and relictions lying within the ordinary

high watermark of navigable lakes and streams.

(61-33-01(3), emphasis added.)

Transfer to the State is ‘‘conclusively presumed.’’

All possessory interests now owned or that may

be acquired *** in the sovereign lands of the state

owned or controlled by the state or any of its

officers, departments, or the Bank of North

Dakota, together with any future increments, are

25

transferred to the state of North Dakota, acting

by and through the state engineer. *** These

transfers are self-executing. No evidence other than

the provisions of this chapter is required to

establish the fact of transfer of title to the state

of North Dakota, acting by and through the state

engineer and board of university and school lands.

Proper and sufficient delivery of all title documents

is conclusively presumed.

(61-33-03 NDCC, emphasis added.)

There are three types of land involved in this proceeding.

First, that land between the ordinary high water mark and

the pre-dam ordinary low water mark.

Second, that land between the pre-dam ordinary high water

mark, a 5.56 river stage, and the so-called permit line which was

created by the water trapped each winter by the massive releases

under ice cover, a 13-foot river stage.

Third, that land that is on an island in the Missouri.

Presumably this section represents the accrual of a title. Since

1877 the law has generally been and definitely is yet:

The State of North Dakota will not sue any person

for or in respect to any real property or the issues

or profits thereof by reason of the right or title

of the state to same, unless:

1. Such right or title shall have accrued within

forty years before any action or other proceeding

26

for the same shall be commenced ***.

(28-01-01 NDCC).

So that it would be clear that the property involved in ‘‘the

fact of transfer of title’’ included all land below a line where water

had prevented the growth of vegetation, provisions were inserted

in the ‘‘North Dakota Administrative Code.”’

‘*Navigable streams of water’’ means any waters

which were in fact navigable at the time of

statehood, including the Missouri River in its

entirety ***

‘*Permit line’’ means that line below which the

action of the water is frequent enough either to

prevent the growth of vegetation or to restrict its

growth to predominantly wetland species. /s/ands

in navigable streams and waters are considered to

be below the permit line in their entirety.

[89-10-01-03-(3)(4), emphasis added.]

The Administrative Code also announced that the public and

their offroad vehicles could not be prohibited from occupying

the property, except as provided by the Administrative Code

(89-10-01-12 and 89-10-01-13 NDAC).

VI.

THE GRAVEL

The Bismarck area is out of gravel that will pass specification

for concrete. Northern Improvement Company has been hauling

good gravel in many miles to mix with the local crud so they could

get it to pass inspection. Fifteen thousand years ago the Wisconsin

Glacier came down to the present site of the Missouri and left

glacial debris, part of which was gravel.

Prior to the Wisconsin Glacier, a river ran from Wyoming

and made a turn south just east of the Anchor Estate property.

During this period, in the bend in that ancient river, there was

deposited excellent gravel as well as titanium and precious metals.

Since 1955 assays have been made, recovery procedures designed,

test holes dug and corings taken by petitioner. In 1987 a lake

was begun on the property in which to place a hydraulic dredge.

Special methods were designed and special equipment arranged

for. The activity was closely monitored by Northern Improvement

Company and Fisher Sand and Gravel. Anchor Estates’ expert

died during the Thanksgiving holidays in 1987. The lake was

completed in 1988. Then in January of 1989 came the North

Dakota Legislature.

Anchor Estates’ expert calculated quality, quantity and

market and concluded that the sand and gravel alone are saleable

at $116,640,000 and the cost of extraction and sale are 9.89%.

The Administrative Rules provide that this island, surrounded

by a navigable stream at statehood, and now partially inundated

by the releases from Garrison Dam each winter, must comply

with Rule 89-10-01-09 NDAC in ‘‘mining of gravel, sand, or other

resources other than oil, gas and related hydrocarbons.”’

Mining must be completed in the shortest

practicable period of time and during the season

which will minimize the effects on the waterway

and biotic life in the waterway.

(89-10-01-09 (1) (a) NDAC).

28

The concept of mining and stockpiling gravel ‘‘in the shortest

practicable period’’ would require an expenditure of $11,535,696,

less that part of the 9.89% reserved for sales. Annual debt service

on eleven million dollars would be a million dollars a year.

Meanwhile, back at the pit, gravel and gold keep well, no spoilage,

and it’s perfectly happy in the ground.

Vil.

THE TAKING

In this Republic, the federal government is an entity with

**delegated’’ powers. All other powers are in the State or reserved

to the people. The United States can take land when legislation

is passed by Congress authorizing a taking. Not otherwise.

On the other hand, States can delegate authority to take

private property for public use. The caveat is, the property must

be paid for. Up to now.

Until a couple of years ago, big brother could go on a search

and destroy mission and the docile judges would label it ‘‘incidental

damage.’’ In the past couple of years the United States Supreme

Court decided there can be a permanent taking in a temporary

affliction.

We do not quarrel with the concept that anyone can be

empowered with state condemnation rights. We don’t like it, but

legally it floats.

The United States Supereme Court has ruled recently on

whether regulations are condemnation. A harbor in Hawaii could

be open to trespass right after the government paid for it (Kaiser

Aetna v. United States, 100 S. Ct. 3832).

29

The beach front of a California resident could not be extorted

via a building permit regulation (No/lan v. California Coastal

Commission, 107 S. Ct. 3141).

Denying a re-building permit (regulations) was a taking (First

English Evangelical Lutheran Church of Glenaale v. County of

Los Angeles, California, 107 S. Ct. 2378).

North Dakota made laws providing a judicial method of

quieting title. This method has been utilized. The State was made

a party. The title was quieted.

The question is not how such an action would come out today.

It is not whether we would ‘‘win’”’ or ‘‘lose’’ but whether we have

to play the game.

VI.

THE OPINION

The opinion does not reflect that all of Anchor’s land is on

an island. It pretends it is all ‘‘riverbed.”’

The opinion erroneously states the action was brought because

the state was ‘‘regulating activities below the ordinary high water

mark *** because that judgment gave Anchor title to the riverbed

***"’ (Emphasis added.)

Is an island that has been in continuous existence since before

statehood and forested with ancient trees mere ‘‘riverbed’’?

The procedural rules requiring contempt procedures to

adjudicate a violation of an injunction against claiming land on

which the title has been quieted does not change the court's

obligation to enforce the judgment and the injunction. It does

30

not require affirmance if the trial court did not behave like a

striped ape. In this case the trial judge behaved like a gentlemen

and a judge, which he is. He was in error and should have been

reversed.

CONCLUSION

The petition for a writ of certiorari in Anchor Estates Inc.

v. United States (October Term, 1987) should be reconsidered.

One attorney in a litigation changes the court and approves

the judges. Then that attorney helps create a ‘‘safe’’ appellate

court and selects its judges. Then that attorney overrules Congress

and gets all the judges a pay raise. Meanwhile, back at the raunch,

he conceals and destroys evidence and nothing is done about it.

In reporting facts involved in Anchor Estates v. United States

we do not mean to be beating a dead horse. But the absence of

due process and equal protection of the law is a cumulative

condition.

When does the absence of due process and equal protection

reach that capacity requiring judicial review by the United States

Supreme Court?

We respectfully submit that the scales of justice have been

adequately tipped.

Respectfully submitted,

WILLIAM R. MILLS

Petitioner, Pro Se

la

APPENDIX A — ORDER DENYING PETITION FOR

REHEARING ENTERED MARCH 20, 1991

STATE OF NORTH DAKOTA

SUPREME COURT

March 20, 1991

Mr. William R. Mills

2904 Langer Lane

Bismarck, ND 58504

RE: Anchor Estates, Inc. v. State of North Dakota

Supreme Court No. 900289

The Supreme Court has entered an order denying the petition

for rehearing in this case.

In accordance with Rule 41(a), NDRAppP, the mandate of

the Supreme Court will be forwarded to the Clerk of the District

Court after the expiration of seven days.

Sincerely yours,

s/ Luella Dunn

Luella Dunn

Clerk

North Dakota Supreme Court

LD:pm

cc: Mr. Charles M. Carvell, Asst. Attorney General

The Honorable Williain F. Hodny

2a

APPENDIX B — OPINION OF THE NORTH DAKOTA

SUPREME COURT FILED FEBRUARY 21, 1991

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Anchor Estates, Inc., Plaintiff and Appellant

State of North Dakota, Defendant and Appellee

Civil No. 900289

Appeal from the District Court for Burleigh County, South

Central Judiciai District, the Honorable William F. Hodny, Judge.

AFFIRMED.

Opinion of the Court by Gierke, Justice.

William R. Mills, 2904 Langer Lane, Bismarck, ND 58504.

Pro se.

Charles M. Carvell (argued), Assistant Attorney General,

Attorney General’s Office, 900 East Boulevard Avenue, Bismarck,

ND 58505, for defendant and appellee.

3a

Appendix B

Anchor Estates, Inc. v. State

Civil No. 900289

GIERKE, Justice.

Anchor Estates, Inc. appeals from a district court judgment

dismissing a contempt action against the State of North Dakota.

We affirm.

Anchotf’s contempt action involves disputed ownership of

the riverbed of the Missouri River in Section 29, Township 138

North, Range 80 West in Burleigh County. The plat of the original

survey of Section 29 in 1872 included six lots plus a 40-acre tract

of land:

4a

Appendix B

The State owned the land to the north and west of the old riverbed;

i.e., lots 1, 2, 3, 4 and the 40-acre tract. Anchor owned the land

to the east and south of the old riverbed; i.e., lots 5 and 6.

After the original survey, land began to accrete to Lots |

through 6 as the Missouri River moved to the southwest. In

October 1967, the State, through the State Board of

Administration, and Anchor entered into an agreement to establish

the boundary between their lands as:

‘*An imaginary line beginning at a point on

the East line of Section Twenty-nine,- Township

138 North, Range 80 West, in Burleigh County,

North Dakota, a distance of 1254 feet South of

the Northeast Corner of said Section, thence South

62'2° W. 570 feet, thence South 40° W. 640 feet,

thence South 37'2° W. 765 feet to an intersection

with the original meander line of the right bank

of the Missouri River, looking up stream, as shown

by the original field notes on file in the General

Land Office at Washington, D.C. and thence from

said point directly southwest to the south section

line of Section Twenty-nine, Township 138 North,

Range 80 West, in Burleigh County, North

Dakota.”’

The parties agreed that the State owned the land north and west

of the boundary in lots 1, 2, 3, 4, and the 40-acre tract, and that

Anchor owned the land south and east of the boundary in lots

5 and 6. ’

Anchor then commenced a “‘friendly’’ quiet title action

against the State. Judgment was entered on November 2, 1967,

Sa

Appendix B

in which the court determined that Anchor owned lots 5 and 6

which consisted of all land in Section 29 lying south or east of

the boundary and that the State owned the 40-acre tract and lots |,

2, 3, and 4 which consisted of all land in Section 29 lying north

or west of the boundary. The judgment enjoined each party from

asserting claims to the other’s property.

In 1989 the Legislature transferred primary jurisdiction over

the beds of navigable rivers, including the Missouri River, from

the Board of University and School Lands to the State Engineer

and defined sovereign lands as ‘‘beds, islands, accretions, and

relictions lying within the ordinary high watermark of navigable

lakes and streams.’’ 1989 N.D.Sess. Laws ch. 552, § 3. The State

Engineer adopted administrative rules regulating activities below

the ordinary high water mark of navigable lakes and rivers. N.D.

Admin. Code ch. 89-10-01.

Anchor then brought this contempt proceeding, alleging that

the legislation and administrative rules regulating activities below

the ordinary high water mark of navigable rivers violated the 1967

quiet title judgment because that judgment gave Anchor title to

the riverbed in lots 5 and 6 of Section 29. The State contended

that the 1967 quiet title judgment did not determine title to the

riverbed.

The district court determined that the 1967 judgment was

unclear about ownership of the riverbed in Section 29 and therefore

the State was not in contempt of that judgment. The court

dismissed the contempt proceeding.

On appeal Anchor contends that the 1967 judgment

permanently established title to all the land in Section 29, including

the riverbed. Anchor claims that the State’s sovereign land statutes

6a

Appendix B

and rules, which regulate activities below the high water mark

of navigable rivers, interferes with Anchor’s title and constitutes

contempt of the 1967 judgment.

The State responds that the 1967 litigation only defined the

boundary between the accreted land in Section 29 and that the

judgment did not decide ownership of the riverbed. It argues that

because of the uncertainty of title of the riverbed, the trial court

did not abuse its discretion in failing to find the State in contempt

of the 1967 judgment. We agree.

A complainant in a civil contempt proceeding must clearly

and satisfactorily show that the alleged contempt has been

committed. Buchmann v. Buchmann, 202 N.W.2d 677 (N.D.

1972). Civil contempt requires a willful and inexcusable intent

to violate a court order. Bergstrom v. Bergstrom, 320 N.W.2d

119 (N.D. 1982). A determination of whether or not a contempt

has been committed is within the sound discretion of the trial

court, and its determination will not be disturbed on appeal absent

an abuse of discretion. Fargo Women’s Health Organization v.

Larson, 391 N.W.2d 627 (N.D. 1986); Bergstrom v. Bergstrom,

320 N.W.2d 119 (N.D. 1982). An abuse of discretion occurs when

a trial court acts in an arbitrary, unconscionable, or unreasonable

manner. Fargo Women’s Health Organization v. Larson, supra.

In this case, the parties’ 1967 agreement defined the boundary

between the accreted land in lots | through 4 and lots 5 and 6

without reference to the riverbed or sovereign land. The quiet

title judgment refers to the accreted land and adopts the same

boundary line as in the boundary agreement. Although the

pleadings and judgment refer to ‘‘all land’’ in Section 29, the

context of the use of that phrase describes ownership of the land

in the particular lots on one side or the other of the agreed

7a

Appendix B

boundary line dividing the accretions. The riverbed and sovereign

lands are not specifically mentioned in the pleadings or judgment.

There is no indication that either party contemplated that the

riverbed was involved. At best the judgment is unclear about

ownership of the riverbed. Assuming that a contempt action could

lie against the State for the alleged conduct in this case, we cannot

say that under these circumstances the trial court acted arbitrarily,

capriciously, or unreasonably in refusing to find the State in

contempt of the 1967 judgment. Because the extent of ownership

of the riverbed is unclear and some type of ‘‘ownership”’ interest

is a prerequisite for an action for condemnation [see 27 Am.Jur.2d,

Eminent Domain, § 247 (1966)], we also do not believe that,

without a clear determination of ownership, Anchor may use this

contempt proceeding as a condemnation action.

Nothing in this opinion precludes Anchor from asserting a

condemnation claim if it chooses to do so [see Nollan v. California

Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d

677 (1987); First Lutheran Church v. Los Angeles County, 482

U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Kaiser Aetna

v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332

(1979)], and we express no opinion on Anchor’s argument that

before the 1989 legislation, the State owned land below the low

watermark of a navigable stream. Compare Perry v. Erling, 132

N.W.2d 889 (N.D. 1965) (Teigen, J., concurring) with J.P. Furlong

Enterprises, Inc. v. Sun Exploration and Production Co., 423

N.W.2d 130, 132 at n. 1 (N.D. 1988) and Carvell, North Dakota

Waterways: The Public’s Right of Recreation and Questions of

Title, 64 N.D.L.Rev. 7 (1988).

The district court judgment is affirmed.

9a

APPENDIX C — JUDGMENT OF THE STATE OF NORTH

DAKOTA, DISTRICT COURT OF BURLEIGH COUNTY,

SOUTH CENTRAL JUDICIAL DISTRICT

FILED MAY 25, 1990

STATE OF NORTH DAKOTA

DISTRICT COURT OF BURLEIGH COUNTY

SOUTH CENTRAL JUDICIAL DISTRICT

Civil No. 19923

ANCHOR ESTATES, INC.

Plaintiff,

STATE OF NORTH DAKOTA,

Defendant.

JUDGMENT

The Honorable William F. Hodny ordered the defendant,

State of North Dakota, to appear at the Burleigh County

Courthouse at Bismarck, North Dakota, on April 9, 1990, 9:30

a.m., and show cause why it should not be adjudged guilty of

contempt and punished accordingly. Judge Hodny ordered that

the contempt proceedings initiated be dismissed.

IT IS ORDERED AND ADJUDGED THAT:

The contempt proceedings initiated by the issuance of the

Order to Show Cause on the 15th of March, 1990, are hereby

dismissed without cost to either party.

10a

Appendix C

Dated this 25th day of May, 1990.

s/ Marian Barbie

Clerk of Court

By: Debra Huntley, deputy