Opposition Brief — Mobil Oil Corp. v. Board of Trustees of the Internal Improvement Trust Fund of Florida
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NO. 86-823 | ae
IN THE SUPREME COURT OF THE: UNITED STATES
OCTOBER TERM, 1986
MOBIL OIL CORPORATION, Petitioner,
Vv.
BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND OF THE
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF FOR RESPONDENT IN OPPOSITION
Robert A. Butterworth PARKER D. THOMSON
Attorney General Counse ecord
The Capitol Cloyce L. Mangas,Jr.
Tallahassee, FL 32301 THOMSON ZEDER
BOHRER WERTH &
Lee R. Rohe RAZOOK
Acting Gen. Counsel 4900 Southeast
Florida Department Financial Center
of Natural Resources 200 South Biscayne
3900 Commonwealth Boulevard
Boulevard Miami, Florida
Tallahassee, FL 32303 33131-2363
(305) 350-7200
James R. Hubbard,P.A. Attorneys for
2900 S.W. 28 Ct. Respondent
Miami, FL 33133
QUESTIONS PRESENTED
All courts below assumed, for
purposes of ruling on summary judgment
and on three certified questions arising
therefrom, that the disputed lands in
this quiet title action were and are
sovereignty (equal footing) lands which
passed to the State at statehood.
La Whether determinations
as to the character of land under the
Swamp and Overflowed Lands Act of 1850,
43 U.S.C. § 982 et seg., are, as a matter
of federal law, conclusive against the
State and the State’s Trustees with re-
spect to its sovereignty lands in quiet
title actions brought by a private claim-
ant.
a Whether a State judicial
decision, which holds, as a matter of
state law, that the State’s Trustees’
swamp and overflowed lands deeds to pri-
adn
vate parties do not include the State’s
sovereignty lands below the high water
mark of navigable rivers, contravenes
the Due Process Clause of the Fourteenth
Amendment as an unconstitutional taking.
aiin
PARTIFS TO THE PROCEEDINGS
The parties to the proceedings
in the Supreme Court of Florida are
listed in the caption. Pet. ii. Peti-
tioner Mobil Oil Corporation is a subsi-
diary of Mobil Corporation. Id. Respon-
dent Board of Trustees of the Internal
Improvement Trust Fund of the State of
Florida, consists cf seven trustees
(the Governor, Secretary of State, Attor-
ney General, Comptroller, State Treasu-
rer, Commissioner of Education, and
Commissioner of Agriculture, and their
Successors in office). Fla. Stat.
§253.02(1) (1985). The State of Florida
and the Florida Department of Natural
Resources, named defendants in the trial
court, are real parties ininterest. Pet.
App. 42a. ee Filia. Stat. §253.001,
(1985). See generally App. D, infra, 66a
nel.
~iii-
“Coastal Petroleum was a defen-
dant in the Florida trial court but did
not perfect an appeal of the final judg-
ment in favor of Mobil Oil Corporation.”
Pet. iis
96"21
atgn
TABLE OF CONTENTS
TABLE OF AUTHORITIES .. .
OPINIONS FERIUW 2. s« 2 4+ s 8 8s
JURIGDICIION 2 « « « »
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED. .... .
yt vg oo) 8 y ir ier omer fee eee ne cena
REASONS FOR DENYING
‘eats Re 6 as 8 ae we re Se a ree
I.
PETITIONER’S ARGUMENTS ARE
WITHOUT MERIT, WHETHER OR
NOT THE DECISION BELOW WAS
CUE 6 ell ll hl lk
A. The Statutory
CAR EON vn 6 sa oes
B. The Constitutional
Ouestion .« « « «
ik» THE COURT BELOW FULLY
CONSIDERED AND CORRECTLY
DECIDED THE THREE CERTIFIED
QUESTIONS OF STATE LAW
per eee oe! sa Se ee ee
Ri The First Certified
ie a es a a eg
B. The Second Certified
SSC SB i eS aes
is The Third Certified
Ousetion. «< « « « «
Glen es 4 ee we Sl a el en ee
-V-
vii
a3
24
24
BL
41
46
mF
55
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
APPENDICES
Fila. Stat. § 197.228
(1981), renumbered,
Fla. Stat. § 253.141(2)
‘ee. iS OP ee ee © |
8: U.8.C. § 176703)... 2a
Mobil Oil Corp. v.
Coastal Petroleum Co.,
671 F.2d 419 (11th Cir.),
cert. denied, 459 U.S.
yi, We eee 3a
Coastal Petroleum Co.
v. International Min-
erals & Chemical Co.,
No. TCA 77-0946, TCA
77-0971, TCA 77-0972,
TCA 77-0973, TCA
77-0974, TCA 77-0975
(N.D. Fia. Jan. 10,
cs | rc nn
Coastal Petroleum Co.
v. U.S.S. Agrico-Chem-
icals, 695 F.2d 1314
LeR0m CLE. 2R82)s ss 63a
—
TABLE OF AUTHORITIES
Cases:
Askew _v. Sonson, 409 So.2d 7
(Fae, BES ss eo) eho
Block v. North Dakota ex
rel. Board of University
& School Lands, 461 U.S.
273 (1983), on remand sub
nom., North Dakota ex rel.
Board of University &
School Lands v. Andrus,
711 F.2d 118 (8th Cir.
1983), later appeal,
789 F.2d 1308 (8th Cir.
SPeeis 6° Soak es Go ae ee ee
Barney v. Keokuk, 94 U.S.
(4-OGeo) 324 (EST T). we ct | 6
Board of Trustees of
Internal Improvement
Trust Fund v. Mobil Oil
Corp., 455 So.2da 412
(Fla. 2d DCA 1984),
quashed and remanded sub
nom., Coastal Petroleum
Co. v. American Cyanamid
Co., 492 So.2d 339 (Fla.
1986), petition for cert.
filed sub nom. Mobil Oil
Corp. v. Board of Trustees
of Internal Improvement
Trust Fund, 55 U.S.L.W. 3412
(U.S. Nov. 20, 1986)
(BG. BOOS) 2. kk we Ke ee
Borax Consolidated, Ltd.
v. City of Los Angeles, 296
U.S. 10 (1935), reh’g denied,
296 U.S. 664 Ci.eeGrs «-% 43,. 26, 45
-vii-
Bouie v. City of Columbia,
376-08... 347 1190 se es Se
Broward v. Mabry, 58 Fla.
396, $0 Sa. 826 (13909) <.. . 43
California ex rel. State
Lands Comm’n v. United
States, 457 U.S. 273 (1982),
reh’g denied, 458 U.S. 1131
See eee eee et ee 30
Coastal Petroleum Co. v.
American Cyanamid Co.,
492 So.2d 339 (Fla. 1986),
petition for cert. filed sub
nom. Mobil Oil Corp. v. Board
of Trustees of Internal
Improvement Trust Fund, 55
U.S.L.W. 3412 (U.S. Nov.
20, 1986) (No. 86-823). .... 1, passim
Coastal Petroleum Co. v.
American Cyanamid Co.,
454 So.2da 6 (Fla. 2d
DCA 1984), quashed and
remanded, 492 So.2da 339
(Fla. 1986), petition
for cert. filed sub nom.
Mobil Oil Corp. v. Board
of Trustees of Internal
Improvement Trust Fund, 55
U.S.L.W. 3412 (U.S. Nov.
20, 1986) (No. 86-823). .... 2
Coastal Petroleum Co. v.
International Minerals &
Chemical Co., No. TCA 77-0971,
TCA 77-0972, TCA 77-0973,
TCA 77-0974, TCA 77-0975,
77-0946 N.D. Fla. Jan. 10,
0 Gi se See 5S OO, Si, Bes DB
-viii-
Coastal Petroleum Co. v.
U.S.S. Agrico-Chemicals,
695 ¥F.2G 1314 (Lith Cir.
1983) 4.96 2S}. + «68S6, 48; App.
Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975),
conformed, 234 Ga. 67, 214
Ssk.ae@ S30 (3578). . « ss ss 32
Demorest v. City Bank Co.,
1 Me RS ae gS ee.
Florida v. Charlotte Harbor
Phosphate Co., 74 F. 578
(SRR Cars 5008) 4 ee a Ss SF, 28,
French v. Fyan, 93 U.S. 169
Bk an ee ro ON RE
Georgia Railway & Power Co.
Vv. Town of Decatur, 262 U.S.
Sie (anaes see eS eee ee.
Heirs of Burat v. Board of
Levee Commissioners, 496
F.4G 1336 (Sth Cir. 1974),
cert. denied, 419 U.S. 1049
PAR a ite ke ts ee ee
lilinois Cent. R. R. Co. Vv.
Illinois, 146 U.S. 387 (1892). 44
Indiana ex rel. Anderson v.
Brand, 303 U.S. 95 (1938),
reh’g denied, 303 U.S. 667
(1938), conformed, 214 Ind.
347, 13 N.E.2da 955 @5 »} 3 eee 37
Martin v. Busch, 93 Fla.
535, 112 So. 274 (1927)
41, 42, 43, 44, 45, 47, 48, 49,
olive
E
|
Martin v. Lessee of Waddell,
41 U.S. (16 Pet.) 367 (1842) . 50
Mays v. Kirk, 414 F.2d 131
Toe: Ce eee ee eee
MacDonald, Sommer and Frates
v. Yolo County, re
91 L.Ed.2d@ 285, 106 S.Ct.
ry RS) er ee ee oe cee
Mobil Oil Corp. v. Coastal
Petroleum Co., 2 Fia.Supp.2d
2 (Fla. 10th Cir. Ct. 1982),
aff’d sub nom. Board of
ustees _ a
I oveme us und v.
Mobil Oil Corp., 455 So.2d
412 (Fla. 2d DCA 1984),
uashed and mand sub
nom. Coastal Petroleum Co.
v. American Cyanamid Co.,
429 So.2d 339 (Fla. 1986),
petition for cert. filed sub
nom. Mobi j Vv.
Board o ust ern
Improvement Trust Fund, 55
U.S.L.W. 3412 (U.S.
Nov. 20, 1986) (No. 86-823) .. 2
Mobil Oj orp. v. Coasta
Petroleum Co., 671 F.2d 419
(11th Cir.), cert. denied,
459 U.S. 970 (1982)
S, £2, 23, 24, 29; 32, 33, App.
-xX=—
Montana v. United States,
450 U.S. 544 (1981), reh’g
denied, 452 U.S. 911 (1981),
on remand, 657 F.2d 244
(9th Cir. 1981), later
appeal, 686 F.2d 766 (9th
Cie SOR cs x eae
Muhlker v. Harlem R.R. Co.,
197 U.S. 544 (1905). °
NAACP v. Alabama, 377 U.S.
288 (1964), on remand,
277 Ala. 39, 167 80.24
Rte SEeeee sk wee, oe oe
NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449
(1958), on remand, 268
Ala. 531, 109 So.2da 138
(1959), rev’d, 360 U.S.
240 (1959), reh’q denied,
363 0.8... O56. (289R. Gk
Odom v. a ¢ P
341 So.2d 977 (Fla. 1976)
7 . . * * * . * . . . 19,
Oregon ex rel. State Land
(e)} Vv
and Gravel Co., 429 U.S.
363 (1977), on remand,
283 Or. 147, 582 P.2d 1352
(1976). .6-7, 8, 23, 24, 25,
Pierce v. Warren, 47 So.2da
857 (Fla. 1950), cert.
denied, 341 U.S. 914 (1951)
-xi-
7,
52,
26,
42,
49
37
ae
37
54,
32,
43
2o
34
fe) a’ s 4 aga
44 U.S. (3 How.) 212
SS ao ee a eee :
Proprietors of Charles River
Bridge v. Proprietors of
Warren Bridge, 36 U.S.
(11 Pet.) 420 & oe ) pages
Robinson v. iyoshi, 753
F.2d 1468 (9th Cir. 1985),
vacated, U.S. a
L.Ed.2d 560, 106 S.Ct.
3269 (1986), later
proceedings, 796 F.2d 339
to. a ae eee
iveley v. wlby, 152
Ves 3 bo” 6 Pe aes
Shoshon ini Cc Vv
Rutter, 177 U.S. 505 (1900).
Vv iv
Phosphate Co., 32 Fla. 82,
13 So. 640 (1893) ....
¥
Gerbing, 56 Fla. 603,
47 So. 353 (1908) ‘ae ee
oa Vv Ss
Gravel Co., 283 or. 147, 582
P.2d 1352, 1356 (1978). .
Sum Vv. j ia,
466 U.S. 198 (1984), reh’g
denied, 467 U.S. 1231 (1984)
-xii-
6
50
38
24
29
43,
44,
56
44
46
United States v. Holt
State Bank, 270 U.S. 49
(1926) > . * . * >. > . . * * * . 24, 49
Uni Vv. on,
ape Weems 2 (23935) . . 1. sw wee 49, 50
d Vv. od nell,
wee Wems BOR (2938)... . 2 45
United States Trust Co. v.
New Jersey, 431 U.S. 1 (1977),
° j , 431 U.S. 975
(1977) . . . . . . . . . . . . 55-56
W Vv Vv » 253
OMe mM OMEMEED 5 5 6 5 tt ek 36
W. Vv bo
Commi j , 85 U.S. (18
mesae) S7 (2873) . . . 2 ee - 44
Wi Vv. . an 6.8.
(13 Pet.) 498 (1839) ... 78, 24, 32
wi , :
ppiiiamson-County Reaional
Bank, UVebe » 205 §.Ct.
PPMP eT SC “oe «¢ 4. See 38
Wi 4
Tribe, 442 U.S. 653 (1979),
On remand, 614 F.2d 1153
(8th Cir. 1980), cert.
denied, 449 U.S. 825, on
523
F.Supp. M54 (N.D. Iowa
1981), rev’d, 707 F.2a
304 (8th Cir. 1982), on
remand, 578 F.Supp. 1191
(N.D. Iowa 1984), cert.
Genied, 465 U.S. 1025
-xiii-
(1984), cert. denied,
465 U.S.. 1300 C004): 5c ss s [6
Wisconsin v. Baker, 698
F.2€ 1323 (7th Cir. 1983)
ee ee ee ee oe ee ee oe es ee te Bay) 29%. O28
Wright v. Roseberry,
352 U.e, O86 C3067) «ce 6328, 27, Fi
UNITED STATES CONSTITUTION:
U.S. Const. amend. VV... 20, 37-38
U.S. Const. amend. XIV,
Ss 2 & es « + BS 20) 23, J7738; 40
UNITED STATES STATUTES:
28 U.S.C. § 1257(3)
Sie A A aoe Pores Pete, © PE Fg |:
43 U.S.C. § 982, et seg.
(Swamp and Overflowed Lands
bet Gf 3080) 45-0 5. & soe se wr dy 3
5 Stat. 742 (1845)
(Act of Statehood for Iowa
Se TVIGFION) 666 ee we ee Se ES
9 Stat. 519 (1850),
codified as amended, 43
U.S.C. §§ 982-84 (Swamp
and Overflowed Lands Act
OP Sees sae er es « Be 2 Be
9 Stat. 519, §§ 1,4 (1850),
codified as amended, 43
ee OR oe > ere eee ce ee a ee a 8
9 Stat. 519, § 2 (1850),
Coat tiad, 43 U.8.C..§ 963 . « « 2 + 8
-xiv-
UNITED STATES TREATIES
Treaty of Amity, Settlement,
and Limits (between United
States and rastiehiesl 8 Stat.
nae ean as
SUPREME COURT RULES
S.C Mm. 31.4. 6.
FLORIDA CONSTITUTION:
Fla. Consett. art. ZX, § ii
(“Sovereignty Lands”).
LORIDA STATUTES, LAWS,
AND _ RULES:
Fla. Stat. § 197.228(2)
(1981), renumbered,
Fla. Stat. § 253.141(2)
P.O
Fla. Stat. § 253.03(1) (b)
Bie Ss Sa Se we
Filia. Stat. Ch. 712
(1985) (Marketable Record
TIGLG BEG) s « & ws -&) |6ES,
1851 Fla. Laws Ch. 332.
1854 Fla. Laws Ch. 610
(enacted Jan. 1855),
codified, Fla. Rev. Stat.
§§ 428-429 (1892), amended,
Fla. Laws Ch. 7304, (1917),
codified as amended, Fla.
Stat. § 253.01-.02 (1985).
1913 Fla. Laws Ch. 6451.
232
32,
31
44
10
43
1917 Fla. Laws Ch. 7304
codified, Fla. Stat.
$§ 253.12(1) (1906) . . <4.
1931 Fla. Laws Ch. 15642,
§ 1, codified as amended,
Fla. Stat. § 253.03(1) (b)
(2905)... ks eee eee
1953 Fla. Laws Ch. 28262,
§1, codified, §197.228(2),
Fla. Stat. (1981), renum-
bered, 253.141 (2), Fla.
Stat. (i9@S) « «<i «ss ae
1957 Fla. Laws Ch. 57-362. .
1967 Fla. Laws Ch. 67-393,
§ 1(2), codified, Fla. Stat.
§ 253.12(18), Filia. Stat.
(i985) sa 6 «Sree eee
1969 Fla. Laws Ch. 69-308
(1969), codified as
amended, Fla. Stat. § 253.12(1)
(i9G3) « « « 6's A ws @ Se
OTHER AUTHORITIES:
Answer Brief of Respondent
Mobil Oil Corporation, Board
of Trustees of Internal
Improvement Trust Fund v.
Mobil Oil Corp., consolidated
and decided sub nom. Coastal
Petroleum Co. v. American
Cyanamid Co., 429 So.2d 339
(Fis. F986) ca 6 eee eee
-xvi-
43
11
43
43
10
30
Brief in Opposition of
Respondent Mobil Oil Corp.,
Coastal Petroleum Co. v.
Mobil Oil Corp., cert.
denied, 459 U.S. 970
Lr
Brief of Plaintiff-Appellant
Mobil 0il Corporation, Mobil Oil
Corp. v. Coastal Petroleum
om, G7L F.20 419 (11th
ee Bc
Plaintiff Mobil Oil
Corporation’s Memorandum
in Support of its Motion
for Summary Judgment, Mobil
Oil Corp. v. Coastal Petro-
leum Co., 2 Fla.Supp. 2d
ieee, geen Cir.ct. 1962) ... 30
42 Fla.Jur.2d Public Lands
§ 60 (“Invalid Sales by
eo EO 3 a
-xvil-
NO. 86-823
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
MOBIL OIL CORPORATION, Petitioner,
We «
BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND OF THE STATE
OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF FOR RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the Florida Supreme
Court (Pet.App. la-20a) is reported sub
nom. Coastal Petroleum Co. v. American
Cyanamid Co. at 492 So.2d 339. The opin-
ion of the Florida District Court of
Appeal, Second District (Pet.App. 25a-
33a), styled Board of Trustees of Internal
Improvement Trust Fund v. Mobil Oil Corp.,
is reported at 455 So.2d 412 and adopts
by reference (at Pet.App. 33a) that
court’s opinion in a connected case,
Coastal Petroleum Co. v. American Cyanamid
Co., (Pet.App. 34a-41a) , which is reported
at 454 So.2d 6. The opinion of the
Florida Circuit Court for Polk County
on summary judgment (Pet.App. 42a-51la),
styled Mobil Oil Corp. v. Coastal Petro-
leum Co., is reported at 2 Fla.Supp.2d
at 12.1
JURISDICTION
The decision of the Florida
Supreme Court, remanding this case for
further proceedings in the lower Florida
1 Vacated in its entirety as to
State defendants in accordance with man-
date, but remains in force as to Coastal
Petroleum Co., No. GC-G-82-1089 (Fla.
10th Cir. Ct. Sep. 30, 1986). The case
is presently set for trial in March, 1987.
-2-
courts, wasS rendered on May 15, 1986,
and a motion for rehearing (Pet.App.
52a-64a) was denied on August 27, 1986
(Pet.App. 22a). The judgment of the
Florida Supreme Court was entered August
27, 1986 (Pet.App. 23a). The petition
for a writ of certiorari was filed on
November 20, 1986. 55 U.§.L.W. 3412.
This Court’s jurisdiction is purportedly
invoked under 28 U.S.C. §1257(3). See
Pet. 2, 15-25. For the reasons set forth
below, none of the requirements necessary
to invoke this Court’s jurisdiction under
28 U.S.C. §1257(3) is satisfied here.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The petition sets forth certain
provisions of the Swamp Lands Act of
1850, 43 U.S.C. §982 et seg. The petition
omits the 1845 Act of Statehood for Iowa
and Florida, which provides in pertinent
part:
That the States of Iowa and
Florida be .. . declared to
be States of the United States
of America, and are hereby
admitted to the Union on equal
footing with the original
states, in all respects what-
soever.
5 Stat. 742 (1845).
Section 197.228(2), Florida
Statutes (1981), is reproduced at App.
A, infra, la. This statute was quoted
and relied on in the trial court and
district court of appeal. See Pet. App.
6a, 37a, 47a. That section, originally
adopted in 1953, Ch. 28262, §1, Laws of
Florida (1953), is now renumbered Section
253.141(2), Florida Statutes (1985).
See, e.g., Pet. App. 6la.
Section 1257(3) of 28 U.S.
Code is reproduced at App. B, infra, 2a.
STATEMENT
The facts of this case (“Mobil
IV”) are generally set forth in the three
decisions’ below. Pet. App. la-5la.
For purposes of this Court’s jurisdic-
tional inquiry, the State accepts the
summary of the facts in the decision
below. Particular attention is drawn
e This case is one of a series
of connected cases spanning ten years
of litigation. “The present controversy
was provoked by litigation in 1976 ina
different Florida Circuit Court (for
Leon County) between petitioner and a
mineral lessee from the State, Coastal
Petroleum Company.” Pet. 9. As the
District Court of Appeal below noted,
"The title issues presented by Mobil’s
reply counterclaim in the Leon County
Circuit Court case [filed in 1979] are
the same as those involved in. .. [this]
Polk County Circuit Court action. ‘
-” Pet. App. 27a. See also Mobil Oil
Corp. v. Coastal Petroleum Co., 671 F.2d
419 (11th Cir.), cert, denied 459 U.S.
970 (1982). App. C, infra, 3a-6la ("Mobil
Dias o See generally Coastal Petroleum
Co. v. International Minerals & Chemical
Corp., TCA 77-0946, TCA 77-0971, TCA
77-0972, TCA 77-0973, TCA 77-0974, TCA
7i=O975 (0.0. Fila. Jan. 16, i979), ret.
in Trustees’ Br., Mobil IV, App. 9 (App.
D, infra, 34a-62a) ; Coastal Petroleum Co.
-5<
to the following.
i. Florida became part of
the public lands of the United States as
a result of the 1819 treaty with Spain
and territorial status followed in 1822.
In 1845 Florida was “admitted to the
Union on equal footing with the original
states, in all respects whatsoever.” 5
Stat. 742 (1845).
2. The 1845 Act of Statehood
reflects Congress’ recognition of the
constitutional equal-footing doctrine
announced that same year by this Court
in Pollard’s Lessee v. Hagan, 44 U.S.
(3 How.) 212 (1845), which case decided
that states, on admission, “acquire title
to the lands underlying navigable waters
within their boundaries.” Oregon ex
: Vv. Vv
and Gravel Co., 429 U.S. 363, 370 (1977)
v. U.S.S. Agri-Chemicals, 695 F.2d 1314
(llth Cir. 1983) (App. E, infra, 63a-84a).
-6-
(“Corvallis”). Such lands under navigable
waters are known in Florida as sovereignty
or equal-footing lands and the State
has title thereto defeasible only by
itself. Corvallis, supra, at 373-74.
State law governs how title to sovereignty
land passes. °?
3. Whether title to land ori-
ginally belonging to the United States
has passed to a State is a federal ques-
tion to be decided by federal law, but
once title so passes, state law governs. 4
3 “After a State enters the Union,
title to the land [under navigable waters]
is governed by state law.” Montana v.
United States, 450 U.S. 544, 551 (1981),
; Wj 4
v. Baker, 698 F.2d 1323, 1327 (7th Cir.
1983) (7th Circuit’s brackets).
4 We hold the true prin-
ciple to be this, that when-
ever the question in any court,
State or federal, is whether
a title to land which had once
been the property of the United
States has passed, that ques-
tion must be resolved by the
laws of the United States;
but that whenever according
oJ
~~ oO eee
4. Congress passed into law
the Swamp and Overflowed Lands Act on
September 28, 1850. 9 Stat. 519, codified
as amended, 43 U.S.C. §§ 982-84 (the
“Swamp Act”).2 The State received from
to those laws, the title shall
have passed, then that property,
like all other property in
the State, is subject to State
legislation, so far as that
legislation is consistent with
the admission that the title
passed and vested according
to the laws of the United
States.
Wi Vv. son, 38 U.S. (13 Pet.)
498, 517 (1839) (emphasis added), quoted
in Corvallis at 377.
° Its purpose, as stated in the
act, was to enable "the several states
, to construct the necessary levees
and drains, to reclaim the swamp and
overflowed lands therein....” 9 Stat.
519, §§ 1, 4, codified as amended, 43
U.S.C. § 982 (1984). All unsold swamp
and overflowed lands belonging to the
federal government as of September 28,
1850 were granted to the states as of
that date. Id.
The act vested with the Secre-
tary of the Interior the duty of making
accurate lists and plats of the lands
granted by the act. 9 Stat. 519, § 2,
codified, 43 U.S.C. § 983. The Secretary
cl ied
ee
the United States about 20 million acres,
or some two-thirds of the State, under
the Swamp Act. Pet. App. 4a. This in-
cluded all land abutting the navigable
portion of the Peace River.
5. The Florida legislature
responded to the passage of the Swamp
Act by passing on January 23, 1851 “an
act to secure the swamp and overflowed
lands lately granted to the states....”
Ch. 332, Laws of Fla. (1851). This act
authorized the Governor to classify the
lands under the Swamp Act and transmit
the plats of these lands to the state
register for sale. The legislature expan-
ded on this law in 1855 by creating the
Internal Improvement Fund, to which the
State’s internal improvement lands and
was then to transmit the lists and plats
to the governors of the states involved,
and, at the governors’ request, to then
cause patents to be issued to the states
for the lands. Id.
-9-
Swamp and overflowed lands were trans-
ferred that year. The Trustees of that
Fund, now known as the Internal Improve-
ment Trust Fund (the “Trustees”), were
authorized to fix the price of and sell
these lands. ®
6. Additional grants of
authority to the Trustees to dispose of
state-owned lands were made from time
to time by the Florida legislature.
E.g., Pet. App. 6a (Acts of 1919); 1917
Fla. Laws Ch. 7304 (tidal sovereignty
lands). The State did not specifically
transfer title to its freshwater sover-
eignty lands to the Trustees until 1969.
Fla. Laws Ch. 69-308, codified, as amended
6 1854 Fla. Laws Ch. 610, (enacted
January 1855) codified, Fla. Rev. Stat.
§§428-429 (1892), amended, 1917 Fla.
Laws Ch. 7304, codified as amended, Fla.
Stat. § 253.01-.02 (1985). E.G. Pet.
App. 35a.
-10-
Fla. Stat. § 253.12(1) (1985).?7 At
all times prior to that date, title to
Florida’s freshwater sovereignty lands
remained in the State itself and the
Trustees had no authority to alienate
them. Pet. 5a; App. D, infra, 54a.
7% In 1883 the Trustees, in
their name, conveyed a swamp and over-
flowed lands deed to petitioner’s prede-
cessor in interest. The Trustees’ deed
encompassed the Peace River lands in ques-
tion, but did not recite any express
reservation of rights or title of the
State in its sovereignty lands. Pet.
App. 42a-51la. Petitioner Mobil Oil Corpo-
ration (”Mobil”) alleges the deed from
the State, which its predecessor in
interest received in 1883, gave it title
7 See Trustees’ Br., Mobil IV,
App. 8, A.57-A.61. There was a general
transfer of sovereignty lands to the
Trustees in 1931. 1931 Fla. Laws Ch.
i86é42, 8 i. (Ex. Sess.), codified as
amended, Fla. Stat. § 253.03(1)(b) (1985).
-ll-
to the river bottom of the Peace River.
8. Incontestably, there is
not one sliver of land invoived in this
litigation which did not pass from the
United States to Florida, either by virtue
of Florida becoming a state in 1845 or,
five years later, under the Swamp Act.
This case involves no patent by the United
States (or Spain) to a private entity
or person either prior to the State ac-
quiring title to the land under the equal-
footing doctrine or by virtue of the Act.
9. The 11th Circuit in Mobil
I, supra note 2, see App. C, infra, 3a-
33a, summarizes the procedural history
of this litigation to 1982 and speaks
for itself.® The 11th Circuit’s decision
8 Mobil in its petition notes
the existence of that decision and the
federal court aspect of this litigation
(Pet. 9), but asserts that "there is no
inconsistency” between its petition and
the 11th Circuit’s remand order in Mobil
I. Pet. 15 n.11. Mobil does not advise
this Court as to the issues before the
-12-
is indispensable to an understanding of
the background of the present case.
Mobil so advised the Florida Supreme
Court in this case. ee Mobil’s Ans.
Brief at 1n.2, Mobil IV.
10. Mobil commenced this action
(Mobil IV) in April 1982 in Polk County
Circuit Court, one month after the 11th
Circuit’s decision in Mobil I. Mobil
received a summary judgment quieting
title in its favor. The state court,
relying in relevant part on Section
197.228(2), Florida Statutes (1981),
held that the State, through the Trustees,
state court and the federal courts in
Mobil I or the fact that Mobil took a
position to those courts (and to this
Court in its response to Coastal’s peti-
tion for certiorari) diametrically oppo-
Site to that taken in the petition. See
Brief of Plaintiff-Appellant Mobil Oil
Corporation (al 19-27), Mobil Oil Corp.
v. Coastal Petroleum Co., 671 F.2d 419
(llth Cir. 1982), followed in Brief in
Opposition of Respondent Mobil Oil Corp.
(at 4-7), Coastal Petroleum Co. v. Mobil
Oil Corp., cert. denied, 459 U.S. 970
(1982).
-13-
had conveyed the disputed lands to Mobil’s
predecessor in 1883 by the swamp and
overflow lands deed and the Trustees were
consequently legally estopped, asamatter
of Florida real property law, to rebut
a presumption of non-navigability in
such circumstances. Pet. App. 50a-5la.
That court expressly declined
to decide the question of navigability
in fact of the Peace River at Florida
Statehood in 1845. Pet. App. 48a; accord,
Pet. App. 49a (same). For purposes of
ruling on summary judgment, the trial
court expressly assumed the disputed
Peace River lands at statehood "were
sovereignty in character” (Pet. App.
48a) and still today “is sovereignty
land.” Pet. App. 49a.
11. The Florida District Court
of Appeal also “assume[d], arguendo,
that the lands were sovereignty as opposed
to swamp and overflowed lands. .. eso
-14-
Pet. App. 38a. That court affirmed on
the trial court’s grounds, and held that
jurisdiction rested in the Polk Circuit
Court, Pet. App. 25a-33a, but certified
three questions of Florida law to the
Florida Supreme Court for decision:
Le Do the 1883 swamp and
overflowed land deeds issued
by the trustees include sover-
eignty lands below the ordinary
high-water mark of navigable
rivers?
II. Does the doctrine of legal
estoppel or estoppel by deed
apply to 1883 swamp and over-
flowed deeds barring the trust-
ees’ assertion of title to
sovereignty lands?
III. Does the Marketable Record
Title Act, chapter 712, Florida
Statutes, operate to divest
the Trustees of title to sover-
eignty lands below the ordinary
high-water mark of navigable
rivers?
Pet. App. 2a; see Pet. App. 40a-4la.?
9 Mobil acknowledges in its peti-
tion that it has rewritten the first of
these questions in its petition, purpor-
tedly tor “clarity. Pet. i131. In fact
Mobil rewrote all the questions. Asimple
comparison of the real questions to those
-15-
12. Accepting for purposes
of decision that “"{wje are dealing with
navigable rivers not ‘’so-called lakes,
ponds, swamps or overflowed lands [the
operative words of Section 197.228(2),
Florida Statutes (1981)],’” (Pet. App.
6a), the Florida Supreme Court answered
each of these questions in the negative,
quashed the decision of the District
Court of Appeal (except as to the trial
court’s jurisdiction), and remanded to
the lower Florida courts for further
proceedings in this case. The issue of
the navigability in fact of the Peace
River in 1845 is the threshold fact ques-
tion to be decided at the forthcoming
trial on remand.
13. Thus Mobil now asks this
Court to decide, and asserts this Court
set forth in the petition shows that
“Clarity” was not the purpose of the
rewrite. See id.
-16-
presently has jurisdiction to decide,
whether, on the facts of this case, deter-
minations of the Secretary of Interior
as to the character of land under the
Swamp Act prior to its transfer to the
State are, as a matter of federal law,
conclusive against the State and the
State’s Trustees of its sovereignty lands
which passed to the State on Statehood
(the “statutory question”). This statu-
tory question was never raised below. 1°
14. Mobil further asks this
Court to decide, and asserts this Court
10 The statute and statutory ques-
tion Mobil actually argued to the courts
below were the applicability and effect
of Section 197.228(2), Florida Statutes
(1981). This statute is nowhere mentioned
in the petition, although that statute
was discussed by all the courts below,
and waS erroneously relied upon, at
Mobil’s instance, by the trial court
and the district court of appeal as a
basis of decision. See, e.g., Pet. App.
6a (Fla. $.Ct.)} Pet. App. 37a (Fla. 2d
DCA); Pet. App. 47a (trial court); Pet.
App. 6la. (motion for rehearing). See
also notes 18-20 infra.
alJ@<
presently has jurisdiction to decide,
whether, on the facts of this case, a
state judicial decision, which holds as
a matter of state law that the State’s
Trustees’ swamp and overflowed lands
deeds to private parties do not include
the State’s sovereignty lands below the
high water mark of navigable rivers,
contravenes the Due Process Clause of
the Fourteenth Amendment as an uncons-
titutional taking (the "constitutional
question”).
Mobil asserts as to the ”“consti-
tutional question,” ”“[I]}t is sufficient
that it was unambiguously presented to
the State Supreme Court by motion for
rehearing....” Pet. 16 (citing Pet. App.
63a-64a), in that “the right, title, or
immunity under federal law emerge[d]
only because ‘the highest state court
render[ed] an unexpected interpretation
of state law or reverse[d] its prior
-18-
interpretation. ’” Pet. 16 (citations
omitted). Mobil also asserts that "the
federal constitutional point was also
raised, albeit in a minor way, ina pre-
decisional brief in the Florida Supreme
Court.” Pet. 16.
These comments are contradictory
and curious, since Mobil repeatedly raised
the takings issue in the Florida Supreme
Court in its answer brief on the merits
prior to that court’s ostensibly unfore-
seeable decision.11 But Mobil, in the
at Thus Mobil began its brief in
that court with a quotation from a prior
decision of the Florida Supreme Court:
“If the State has conveyed property rights
which it now needs, these can be reac-
quired through eminent domain; otherwise,
legal estoppel is applicable and bars
the Trustees’ claim of ownership, subject
to the rights specifically reserved in
such conveyances.” Mobil Ans. Br. at
1, Mobil IV (quoting Odom v. Deltona
Corp., 341 So.2d 977, 989 (Fla. 1976)
(Bova, J.)).
See alsa: "The reason the
present Trustees have never sought to
reclassify the lands seems obvious; any
such official action [to "reclassify
-19-
same brief, explicitly and expressly
told that court it need not reach the
federal question it argued would arise
if the Trustees prevailed.12
15. Inits motion for rehearing
in the Florida Supreme Court (Pet. App.
the lands”}], a century after the lands
had been deeded into private ownership,
would constitute a taking of private
property without compensation in violation
of the state and federal constitutions.”
Mobil Ans. Br. at 4, Mobil IV.
12 Mobil told the Florida Supreme
Court, “Although this [Florida Supreme]
Court need not reach the federal cons-
titutional question that would arise if
the Trustees were correct in their argu-
ments, the point should be stated: for
the State of Florida to reclassify lands
a century after the conveyance into pri-
vate ownership would be a clear taking
of private property by the State without
due process of law in violation of the
Fifth Amendment to the United States
Constitution if the result is to impair
Mobil’s title.” Mobil Ans. Br. at 22,
Mobil IV (citing four decisions of this
Court) (emphasis added). Of course,
the sole issue to the trial court, to
be rendered at the forthcoming trial on
remand, is w s
impair. If it does have title, there
is no case pending which would impair
it.
-20-
52a-64a), Mobil noted in a footnote,
"Fifth Amendment federal protection under
the ‘taking’ clause, applicable to state
action through the Fourteenth Amendment,
is also involved in these cases.” Pet.
App. 53a n.3. As its sixth (and only
asserted federal) ground for rehearing,
Mobil contended,
The majority opinion construes
Florida law in a manner that
effectively takes Mobil’s pro-
perty in violation of the Fifth
Amendment to the United States
Constitution, as made appli-
cable to the State of Florida
by the Fourteenth Amendment.
The majority decision allows
the executive branch to reclas-
Sify lands a century after
their conveyance into private
ownership. 1
16. Thus did Mobil seek rehear-
ing of a federal constitutional question
13 Pet. App. 63a. Mobil asserted,
“As to the first point, the state classi-
fied the lands at issue as swamp and
overflowed lands under legislatively
directed procedures during the 1880s.”
Pet. App. 62a (emphasis added) ; but cf.
Pet. 4 (which asserts the Secretary of
Interior made this Classification).
-21-
never reached or decided by the Florida
Supreme Court or by any other Florida
court in this case (before or after re-
mand)--a constitutional question Mobil
had counseled the Florida Supreme Court
not to reach in deciding the three certi-
fied questions of Florida law before
it.
This question is nevertheless
ostensibly framed by Mobil in this Court
“as one[s] in which ‘reversal of the
state court on the federal issue would
be preclusive of any further liti-
gation.’”14 Mobil does not explain how
a court can be reversed on a federal
issue it was asked not to, and did not,
reach.
14 pet. 18 (emphasis added) (quot-
ing out of context Cox Broadcasting Corp.
v. Cohn, 420 U.S. 469, 482-83 (1975),
where the state court had reached the
new federal issue on rehearing).
-22-
REASONS FOR DENYING THE WRIT
In its present posture before
this Court, this is a state case to be
decided by state law in accordance with
this Court’s decision in Corvallis, supra.
This Court therefore is without jurisdic-
tion to decide it. But even if there
were urisdiction to review the decision
below, the petition is without merit for
the Florida Supreme Court correctly de-
cided the certified questions of state
law before it.
Here, as the 11th Circuit con-
Cluded in Mobil I, supra, “[{T]here is
no question in this case whether, in
the sense obviously intended by Corvallis,
title to the disputed land has passed
(from the United States}; the parties
agree that it has. The issue is whether,
under Florida law, the [1883] deed to
Mobil’s predecessor conveyed the dis-
-23-
puted property.”15 Florida law is for
Florida courts.
I. PETITIONER’S ARGUMENTS ARE WITHOUT
MERIT, WHETHER OR NOT THE DECISION
BELOW WAS CORRECT.
A. The Statutory Question.
Mobil contends for the first
time in this Court that determinations
as to the character of land under the
Swamp Act by the Secretary of the Inte-
15 Mobil I, 671 F.2d at 425 (11th
Cir.) (emphasis in original and brackets
added), cert. denied, 459 U.S. 970 (1982).
App. ¢, intra, 278. The 7th Circuit
recently reaffirmed this Court’s teach-
ing, applicable equally here, that state-
hood is: “a grant both of property rights
and of sovereign power” and ”“[w])hether
the State retains in trust for the public”
the title acquired at statehood is, ”"en-
tirely a matter of [state] law, subject
only to the exercise by the United States
of one of its constitutional powers.”
Wisconsin v. Baker, supra, 698 F.2d at
1327 (citing Montana v. United States,
supra; Corvallis, supra, United States
v. Holt State Bank, 270 U.S. 49, 54-55
(1926); Shiveley v. Bowlby, 152 U.S. 1,
40 (1894); Wilcox, supra, at 517; Mobil
I, supra; Heirs of Burat v. Board of
Levee Commissioners, 496 F.2d 1336 (5th
Gis. 3974)}.
-24-
ene
rior are conclusive, as a matter of
federal law, in a state’s subsequent
disposition of state-owned property.
This contention is not true and was dis-
posed of by this Court in Corvallis.
More immediately, this contention was
never raised below and this Court thus
has no jurisdiction to consider its accu-
racy.
The effect of determinations
by the Secretary of Interior was decided
by this Court a century ago in Wright
v. Roseberry, 121 U.S. 488 (1887). This
Court there held that the federal patents
issued pursuant to that Act were "conclu-
sive against any collateral attacks.”
Wright at 501 (emphasis added). This
holding is explained in this Court’s
decisions in Borax Consolidated, Ltd.
v. City of Los Angeles, 296 U.S. 10 (1935)
-25-
and Summa Corp. v. California, 466 U.S.
198 (1984) ,16
16 As explained in Summa, two
Situations are encountered in title bat-
tles between a state Claiming under the
equal footing doctrine, on the one hand,
and a person claiming under federal land
patents, on the other. See Summa, 466
U.S. at 205-06. In one situation (Borax),
the private claimant claims land as a
successor in interest to a_ federal
patentee. This Court held the federal
government had no power to transfer land
already owned by the state as sovereignty
land, Borax at 17-19, cited in Corvallis
at 376; in a second situation (Summa),
the federal government purports to trans-
fer land it has acquired from another
sovereign (Mexico) and has not yet passed
to a state. This case is similar to
the first situation explained in Corval-
lis. But whereas the defendant private
Claimant in Corvallis claimed under two
federal patents to riparian lands, see,
e.g., State ex 1. State Vv
Co lis Sand and ve » aes
Ore. 147, 582 P.2a 1352, 1356 n.10 (1978)
(On remand from this Court), for its
avulsion theory, no one here claims title
directly under any federal patent. The
title battle here is between a State
claiming under the equal footing doctrine,
on the one hand, and a successor to a
private grantee Claiming under a State’s
Trustees’ deed, on the other hand. A
fortiori, in this Situation, state law
controls.
-26-
Mobil is claiming title to
land pursuant to a State’s Trustees’
1883 deed, issued in turn, pursuant to
oe 1855 state statutory grant to the
Trustees of swamp land which was part
of the land covered by a federal patent
issued to Florida (effective 1850), after
Florida became a state and had thus al-
ready acquired title to riverbottoms
under the equal footing doctrine. While,
“in the absence of fraud the Secretary’s
determination of the status of the land,
one way or the other, is conclusive and
not subject to collateral attack and
relitigation in the Courts,” Mays_v.
Kirk, 414 F.2d 131, 135 (5th Cir. 1969)
(emphasis added) (citing French v. Fyan,
93 U.S. 169 (1876), and Wright, supra),
no substantial federal question appears
-27-
in a state’s treatment of its subsequent
disposition therecf. Mays at 132-35.17
That no federal question is
here involved has been acknowledged by
Mobil for ten years in this litigation
(prior to the petition). Thus, relying
on Mays, supra, Heirs of Burat, supra,
and Charlotte Harbor Phosphate, supra
(which also involved a title dispute
between phosphate interests and the Trus-
tees over the Peace River), Mobil has
heretofore repeatedly taken the posi-
tion that once it is conceded that title
has passed out of the United States,
state courts are the proper forum for
17 “Accordingly, although the
Swamps-and-overflowed determination might
in the abstract have provided a sufficient
jurisdictional base, we find that the
Supreme Court’s removal of that question
from the ambit of judicial review left
no unsettled construction of that sta-
tute.” Mays supra; at 136; see Heirs
of Burat, supra; Florida v. Charlotte
Harbor Phosphate Co., 74 F. 578 (5th
Cir. 1896).
-28-
resolution of state land titles under
state law.18 fThat position is correct
and the Florida Supreme Court is the
ultimate forum for such resolution.
The two fundamental omissions
in the petition’s presentation of the
putative statutory Question Presented
are:
1. .-Inthe courts below, Mobil
actually argued, "The law of Florida,
. effectively affirms and incorporates
the corresponding federal doctrine that
in the administration of the public land
18 See Brief of Plaintiff-Appel-
lant Mobil Oil Corp. at 19-27, Mobil
Oil Corp. v. Coastal Petroleum Co., 671
F.2d 419 (llth Cir. 1982), followed in
Brief in Opposition of Respondent Mobil
Oil Corp. at 4-7, Coastal Petroleum Co.
v. Mobil Oil Corp., cert. denied, 459
U.S. 970 (1982). "Were it otherwise,
anyone claiming title to real estate in
the Western United States could bring suit
in federal court since title to all lands
in those parts of the nation is traceable
to a federal grant or law.” Wisconsin
v. Baker, supra, at 1327 (citing Shoshone
Mining Co. v. Rutter, 177 U.S. 505, 507
(1900)).
-29-
system factual determinations of the
federal land department are final, includ-
ing factual determination as to the physi-
cal character of the lands being ’swamps
and overflowed lands.’”19
Thus, Mobil below argued that
Florida law controls;29 no federal law
or statute was argued by Mobil in the
courts below (except as Mobil argued
Florida had adopted, as its law, certain
federal doctrine) .21 Mobil cannot now
19 Mobil Ans. Br. at 12-13, Mobil
IV (emphasis added) ; accord Mobil’s Memo-
randum of Law in Support of its Motion
for Summary Judgment, Mobil IV (filed
May 17, 1982) (R.57=-104). See note 10
supra & App. A, infra, la.
20 Mobil also did so in the 11th
Circuit, which concluded Florida law
merely looks to federal law "as a crite-
rion by which to decide a state law [title
dispute] question.” Mil Oil Corp. v.
Coastal Petroleum Co., 671 F.2d 419,
426 (11th Cir. 1982) (App. Cc, infra,
32a), cert. denied, 459 U.S. 970 (1982).
21 The petition only points to
“citations” (by Mobil inthe courts below)
of decisions of this Court to support
its assertion it somehow raised the statu-
-30-
attempt to create in this Court a claim
of federal right never set up in the
courts below. See 28 U.S.C. § 1257(3);
$.Cte.R. 21. i10h).
ae Mobil makes no attempt
to explain what is meant by a “collateral
attack” in Wright. What appears to be
prohibited in Wright is a challenge to
the Secretary’s determination by third
parties. But this case, at least in
its present posture, involves neither a
direct nor a collateral attack by anyone
against the Secretary’s determination
(whatever that determination is deemed
or assumed to be), because all -- most
of all Mobil as movant on summary judgment
-- must accept, for purposes thereof,
that the Peace River was and is navigable.
tory Question Presented below (Pet. 16),
but omits the State statutory law context
in which those citations appeared in
Mobil’s briefs and memoranda in the courts
below. See generally note 10, supra.
-31-
All agree the navigability in
fact of the Peace River at Florida state-
hood (a federal question under Corvallis
and Wilcox, supra) has yet to be deter-
mined by the trial court. And the sig-
nificance of that determination, as the
llth Circuit (and Mobil) said in Mobil
I, is solely one of state law:
The sole significance in
this case of the navigability
of the Peace River in 1845 is
that the State of Florida elects
to denominate lands acquired
from the United States as sove-
reignty lands and to restrict
the alienability of those
lands. <4
For as this Court reaffirmed
in Wilson v. Omaha Indian Tribe, 442
U.S. 653, 669 (1979), “[T]his Court held
[in Corvallis] that, absent an overriding
federal interest [such as a treaty obli-
gation or interstate compact} the laws
22 Mobil I, 671 F.2d at 424 (11th
Cir. 1982) (emphasis added) (App. C,
tee Feet ee See also Wisconsin v.
Baker, supra, at 1327.
-32-
of the several states determine the owner-
ship of the banks and shores of water-
ways.” The only applicable claim of
federal right here is the equal-footing
origin of the State’s title.23 See
generally Wilson at 2539. No federal
interest is implicated in the Trustees’
title from the State. Neither is any
federal interest implicated in Mobil’s
predecessor’s deed from the Trustees.
Nor is any federal interest implicated
in any questions regarding the Trustees’
status and authority vel non as an inde-
pendent agency of the State. See general-
ly App. E, infra, at 66a n.1.
23 The Trustees do not understand,
and therefore do not accept, the 11th Cir-
cuit’s dictum in Mobil I that "neither
party asserts navigability as the basis
of a right arising under the Constitution
or laws of the United States.” 671 F.2d
at 426. (App. C, infra, 32a). Certain-
ly the Trustees did. 671 F.2d at 422 &
n. 6 (App. C, infra, 15a); accord, 695
F.2d at 1316 & n.2 (App. E, infra, 32a).
The decision below so recognized. Pet.
App. 3a (“uncontroverted legal proposition”).
-33-
To be sure, Corvallis itseif
recognized that federal law would continue
to apply if “there were present some
other principle of federal law requiring
State law to be displaced.”24 In this
case there is no federal principle requir-
ing such displacement; certainly, the
United States has no title clain. And
“(tjhe Corvallis rule -- that state law
governs -- applies where the dispute
over the legal effect of a shifting river-
bed does not involve claims of title by
a federal instrumentality.” California
-S. at 289 (Rehnquist, J., joined by
24 California ex rel. State Lands
Comm’n_v. United States, 457 U.S. 273,
281 (1982). And Wilson, supra, “made
clear that Corvallis also does not apply
‘where the (United States} government
has never parted with title and its in-
terest in the Property continues. ’”
California ex rel. State Lands Comm’n,
457 U.S. et 3262.
-34-
Stevens, J., and O’Connor, J., concur-
ring in the judgment).
B. The Constitutional Question.
Mobil’s constitutional conten-
tion -- that the decision below contra-
venes the Due Process Clause of the Four-
teenth Amendment as an unconstitutional
taking -- is without merit.
First, Mobil has denied the
record to assert that the constitutional
issue was not foreseeable until the
Florida Supreme Court ruled. This asser-
tion is inherently implausible in light
of questions certified to that court
for answer; in any case, the record con-
tradicts that explanation. See State-
ment, Supra, at 4414-16. Apparently Mobil
makes its “unforseeability” explanation
to hide the fact that Mobil asked the
Court below not to consider the issue.
This request was vise since the issue
-35-
was not then (and is not now) ripe for
consideration. A “taking” depends on a
title to “take” and the existence vel
non of title is to be resolved at the
forthcoming trial.
Second, as shown below (Argu-
ment II, infra), the Florida Supreme
Court’s decision was neither arbitrary
nor unpredictable, and the decisions of
this Court cited by Mobil to justify this
Court’s review of the decision below
are inapposite and readily distin-
guishable.25
25 Mobil asserts that this Court
has, “ina variety of contexts, [reviewed }
the decision of a state court... to
determine whether it has made such an
arbitrary or unpredictable declaration
of local law as to deny due process or
otherwise deprive the petitioner of a
federal right.” Pet. 24. None of the
cases Mobil relies on to Support this
proposition are on point. Five of the
cases cited involved a state court deci-
Sion, ostensibly based on independent
grounds of state law, that arbitrarily
deprived an insular group, usually a
racial minority, of a federal right.
see Ward v. Love County, 253 U.S. 17
-36-
Third, none of the procedural
hurdles to asserting and arguing a ripe
takings claim under the Fifth and Four-
(1920); Indiana ex rel. Anderson v. Brand,
303 U.S. 95 (1938); NAACP Vv. Alabama ex
rel. Patterson, 357 U.S. 449 (1958);
NAACP v. Alabama, 377 U.S. 288 (1964);
Vv i la, 378 U.S. 347
(1964). Two of the cases cited involved
the express reversal of precedent, neither
arbitrary nor unpredictable, in an un-
settled area of state law. See Demorest
v. City Bank Co., 321 U.S. 21 (1944) ;
» 197 U.S.
544 (1905). No Florida court has express-
ly overruled precedent in the instant
case, and Mobil’s suggestion that the
Florida Supreme Court has implicitly
“made new law” by “judicial reinterpreta-
tion,” Pet. 23, 24, even if true, is
not a basis for review in this Court
that finds support in any case law.
One case cited by Mobil, Georgia
Ww Vv Ww » 262
U.S. 432 (1923), held that a state con-
mission’s decision that a railway transit
company was contractually precluded from
raising its fares and charging for trans-
fers did not impair an obligation of
contract or deny equal protection of
the law. The case did not involve a
due process or takings claim and the
decision in the state court was not “arbi-
trary or unpredictable.” (Georgia Railway
was decided in this Court on writ of
error; a petition for writ of certiorari
was denied. 262 U.S. at 436, 440.)
-37-
yr
teenth Amendments has been met. See,e.g.,
Williamson County Regional Planning Com-
m’n _v. Hamilton Bank, ye ?
i105 S.Ct. 3108 (1985) (finality require-
ments in regulatory takings cases) ;
MacDonald, Sommer and Frates _v. Yolo
County, U.S. , £06. 8.CG. 2562
(1986) (same) .2© As noted, the factual
predicate for a determination of Mobil’s
title remains for the forthcoming trial.
Fourth, assuming the constitu-
tional question was properly presented
and preserved in the courts below (contra,
Statement, supra), it remains on remand.
The decision below did not decide the
threshold question (inany alleged takings
dispute) of title. The decision below
only recognizes the right of the Trustees
26 Williamson was the basis for
this Court vacating and remanding Robinson
v. Ariyoshi, 753 F.2d 1468 (9th Cir.
1985), relied upon by Mobil. See
U.S. , 205 S.CE. Q@t 3269.
-38-+
to establish title to those disputed lands
as sovereignty lands if they can. None
of the courts below has reached the ques-
tion of navigability in fact. Nor have
several of Mobil’s defenses to the Trus-
tee’s claim of title been reached. In
the event the Trustees prevail on all
those issues at trial, Mobil will have
ample opportunity to seek appellate review
thereof.27
Implicitly recognizing that
“title” remains for trial, Mobil also
argues that the decision below affects
its “security of title. . . that has
already been taken without compensation.”
27 The Trustees do not maintain
that a ripe takings question could never
arise if the Trustees were to prevail
on all title issues ‘n the Florida courts;
only that any such question may never
arise or, alternatively, may become moot
before it is ever reached. Contrary to
Mobil’s suggestion, no issue of judicial
or executive branch reclassification of
land is presented or intimated in the
decision below.
-39-
Se a
Pet. 17 This assertion is unsupported
by any authority in Mobil’s petition.
Further, this assertion is nothing more
than a contention that any time a court
fails to grant a summary judgment against
a sovereign regarding real property, the
property is “taken” because the require-
ment to go to trial impairs “security
of title” (which, presumably, imposes
on the court denying the summary judgment
an obligation to pay compensation). It
is hardly surprising Mobil can locate
no authority for such a contention.
If, despite the foregoing,
Mobil believes the decision below con-
travenes the Due Process Clause of the
Fourteenth Amendment, the Trustees submit
Mobil should present such arguments in
the courts below. This Court should
decline Mobil’s invitation to decide
them, in the first instance.
-40-
II. THE COURT BELOW FULLY CONSIDERED
AND CORRECTLY DECIDED THE THREE
CERTIFIED QUESTIONS OF STATE LAW
BEFORE IT.
The First Certified Question.
In answer to the first certified question,
the court below, relying on longstanding
Florida precedents, concluded the 1883
Trustees’ swamp and overflowed lands
deed to Mobil’s predecessor in interest
does not include sovereignty lands below
the ordinary high-water mark of navigable
rivers. As stated in the decision below:
We [the Florida Supreme Court]
answered the first certified
question in the negative when
we held in Martin [v. Busch,
oa Fae. Sao, S73, Liz So. 274,
286-87 (1927)] that: er
"The subsequent vesting of
title to sovereignty lands in
the Trustees for State purposes
under the Acts of 1919 or other
statutes does not make the
title to sovereignty land inure
to claimants under a previous
conveyance of swamp and over-
flowed lands by the State Trus-
tees who then had no authority
to convey such sovereignty
lands and did not attempt or
-41-
intend to convey sovereignty
lands.”28
The decision below followed
the axiomatic principle of Martin, supra,
and Pierce, supra, that as a matter of
Florida law those who took swamp and
overflowed lands deeds from the Trustees
granted prior to the vesting of title
of sovereignty lands in the Trustees
took with notice that the "grant did
not and could not include any sovereignty
28 Pet. App. 5a-6a (emphasis
added). Accord Pierce v. Warren, 47 So.2d
857, 858-59 (Fla. 1950), cert. denied,
341 U.S. 914 (1951) ("If the Trustees
of the Internal Improvement Fund actually
conveyed ‘sovereignty lands,’ believing
them to be ‘swamp and overflowed lands, ’
their mistake, however, innocent, would
not supply the power they lacked.”);
see Pierce at 858 (”[(T]he basic question
for us to determine is whether the trus-
tees attempted to convey ‘sovereignty
lands’ which they could not have done
before the enactment of Chapter 7304,
Laws of Florida, Act of 1917 [now Fla.
Stat. § 253.12(1) (1985)], or did deed
‘swamp and overflowed lands,’ which they
were empowered to do.”).
-42-
lana."29 This has been hornbook lawin
Florida for decades. 39
The question whether the State
qua the State, which held title to fresh-
29° pierce, supra, at 860. The
decision below thus made the same doc-
trinal distinction on state law grounds
recognized by Florida courts throughout
the Trustees’ history: "The title to
sovereignty lands at this point [i.e.,
in the 1850’s and at the time of the 1883
deeds] remained in the legislature as a
public trust.” Pet. App. 5a. See State
v. Black River Phosphate Co., 32 Fla.
82, 13 So. 640 (1893): State ex rel.
Ellis v. Gerbing, 56 Fla. 603, 608, 47
So. 353, 355 (1908); Broward v. Mabry,
58 Fia. 398, $0 So. 826 (1909).
30 Sas. @.@., 42 ¥Fia.d’ur.2¢
Public Lands § 60 (”Invalid Sales by
Trustees”) (1983). In 1967 the Florida
Legislature codified the distinction
taken in Martin and Pierce with respect
to conveyances by the Trustees after
vesting of title in the Trustees: “All
conveyances of sovereignty lands or fill
material heretofore made by the Board
of Trustees of the Internal Improvement
Trust Fund of Florida subsequent to the
enactment of Chapter 6451, Act of 1913,
Chapter 7304, Act of 1917, and Chapter
57-362, as amended, are hereby ratified,
confirmed, and validated inall respects.”
1967 Fla. Laws Ch. 67-393, § 1(2), now
codified, Fla. Stat. § 253.12(8) (1985)
(emphasis added).
-43-
water sovereignty lands in itself prior
to 1969, could ever convey freshwater
sovereignty lands held in trust to private
parties is not presented. See Fla. Const.
art. X, § 11 ("Sovereignty Lands”).
The first certified question asked only
whether the Trustees could do so in 1883.
The negative answer in the decision below
was wholly foreseeable. 31
The decision below, in analyzing
the first certified question, observed,
"It is important to recognize that Con-
31 All the foregoing Florida cases
recognize the special character of sover-
eignty lands under Florida law. All of
them trace their intellectual origins
to Black River Phosphate, supra, and
Gerbing, supra, which, in turn, followed
this Court’s equal footing principles
and the public trust doctrine with respect
to the state’s title to lands under navig-
able waters. See Black River Phosphate,
Supra, 13 So. at 644 (citing Pollard’s
Lessee, supra; Weber v. Board of Harbor
Comm"xs, 85 U.S. (18 Wall.) 57 (1873);
and Martin, supra,); accord Gerbing,
Supra, 47 So. at 355-56 (quoting 1845
Act of Statehood and citing Illinois
ens ss CO. Vs, Filineia. 346 U.S.
387 (1892)).
~44-
an
gress had no intent or power to convey
state sovereignty lands through such
[swamp and overflow lands] acts or patents
and that land surveys conducted in connec-
tion with these conveyances of swamp
and overflowed lands are not conclusive
against the state as to the meander boun-
daries of state sovereignty lands.”
Pet. App. 4a. 32
A fortiori, the Trustees could
not convey to private parties sovereignty
lands over which the Trustees had no
title or authority under Florida law
32 For this proposition the deci-
Sion below relied on Borax Consolidated,
Ltd. v. City of Los Angeles, 296 U.S.
10, i6 (1935), renh’a denied, 296 U.S.
664 (1936), and prior decisions of this
Court cited therein, as well as Martin,
Supra. This proposition is further sup-
ported by the explicit language of United
states vy. O’Donnell, 303 U.S. 501, 509
(1938), “The Swamp Lands Act of 1850
was effective to transfer an interest
in the lands described in the Act, only
so far as they were part of the public
domain of the United States and thus
Subject to the disposal of Congress.”
(Emphasis added). See note 40, infra.
As
-4>5->-
———————_———
(prior to 1969). The Florida Supreme
Court had explicitly so held at least as
early as 1908. Gerbing, supra,56 Fla.
at 612, 47 So. at 356.33
The Second Certified Question.
The decision below, in response to the
second certified question, held that
the doctrine of legal estoppel or estoppel
by deed does not apply to the 1883 swamp
and overflowed lands deed, and consequent-
ly does not bar the Trustees’ assertion
33 In 1979 the United States Dis-
trict Court for the Northern District of
Florida, inInternational Minerals, supra,
a diversity jurisdiction case, reached
the same conclusions as to the Trustees’
lack of title and authority prior to
1969. See text infra App. D, infra.
The Fifth Circuit had held,
at least as early as 1896, that title
disputes between private “laimants and
the Trustees over the Peace River belonged
in State court and must be decided by
State law. Florida v. Charlotte Harbor
Phosphate Co., supra.
-46-
of title to sovereignty lands in the lower
Florida courts. %4
Mobil asserts that the ”“funda-
mental doctrine of legal estoppel” ought
to apply here. Pet. 22. Mobil mistaken-
ly asserts, “[{T]here is no doubt these
principles were [previously] deemed fully
34 In so holding, the Court below
observed, "This question was-~ also
addressed and answered in Martin, as
the quotations above show.” Pet. App.
7a:
Not only is there no legal
estoppel to the Trustees’ claim
of ownership in sovereignty
lands, but the Trustees are pro-
hibited by case law from
surrendering state title to
sovereignty lands based on a
prior conveyance of swamp and
overflowed lands. .. . The
fact that a deed of swamp and
overflowed lands does not expli-
citly exempt sovereignty lands
from the conveyance does not
show that the Trustees intended
to convey sovereignty lands
encompassed within the swamp
and overflowed lands’ being
conveyed. .. . Martin, 93
Fila. at 569-73, ii2 &S6. at
285-87.
Pet... Apo. 7a: -agcord, App... 0; J2ptra,
54a-55a.
-47-
applicable by the Florida Supreme Court
against a claim that the conveyance erro-
neously included ‘sovereignty lands.’
Pet. 22 (brackets added and citations
omitted). The Florida estoppel cases
relied upon by Mobil in the petition
are all distinguishable on their facts,
as demonstrated in Coastal Petroleum
CO. v. International Minerals & Chemical
Corp., supra. 25
In 1927 the Florida Supreme
Court held in Martin that a Swamplands
grantee takes with Gouble notice, "The
grantee takes with notice that the convey-
35 Rpt. in Trustees’ Br.,
iV, App. 9 (App. D, infra, 34a-63a).
Mobil’s Florida counsel here represented
defendants in that case. Mobil’s counsel]
of record in this Court represented these
defendants in a Subsequent consolidated
appeal of a later injunction in that case.
see generally v
U. i- mi » 695 F.2d 1314,
1315, 1319 (llth Cir. 1983) (App. E,
infra, 63a-84a) (holding, inter alia,
that , Supra, con-
stituted a non-appealable interlocutory
Order).
-48-
iN
ance of swamp and overflowed land does
not in law cover any sovereignty lands,
and that the trustees of the Swamp and
overflowed lands as such have no authority
to convey sovereignty lands.” 93 Fla.
at 3570, 112 So. at 285-86 (emphasis
added).
The Secretary of the Interior
himself has never Claimed, and would
not claim, power to convey by patent to
a state sovereignty lands always owned,
ey definition, by that state. This Court
has always so held.36 tn holding that
36 “(B)jecause control over the
property underlying navigable waters is
So strongly identified with the sovereign
power of the government, United States
Vv. Oregon, [295 U.S. 1, 13 (1935)}, it
will not be held that the United States
has conveyed such land except because
of ‘some international duty or public
exigency.’” Vv P
450 U.S. 544, 552 (1981) (quoting United
Vv » 270 U.S. 49,
55 (1926)).
Indeed, "The State is probably
correct in stating that Congress could
not, without making provision for payment
Ol compensation, pass a law depriving a
-49-
the Trustees are not estopped to assert
and attempt to prove that the disputed
Peace River lands are in fact sovereignty
lands, the decision below does no more
than reflect the same concern for the
Sovereign rights of the State’s people
and the same rules of deed construction
that have been long recognized by this
Court, 37
State of land vested in it by the Con-
Stitution.” Vv
461 U.S. 273, 291 (1983).
37 See, e.g., United States v.
Oregon, supra, at 14 (strong presumption
against alienation of sovereignty lands) ;
; Ww s S2 8.
(16 Pet.) 367, 410-11 (1842) (principle
that people of each State in their sove-
reign character own all their navigable
waters dates j :
“subject only to their rights since sur-
rendered by the Constitution to the gen-
eral government”).
» 36 U.S. (11 Pet.)
420 (1837) (state charter grants must
be construed narrowly; no implied rights
of private grantees assumed; ambiguities
must be construed in favor of State).
-50-
In the procedural posture here,
as in the Northern District of Florida
in 1979 in International Minerals, supra,
at 9-10:
Unlike Odom, it has not yet
been determined whether the
lands in dispute are non-sover-
eign and therefore indisputably
capable of conveyance to private
parties. If sovereign, it is
evident that the Trustees were
wholly without authority to
alienate them until 1969, a date
subsequent to the conveyances
to defendants’ predecessors in
interest. The state may not
be estopped by the unauthorized
acts of its officers.
There is another, perhaps
even more compelling reason
why the Trustees’ deeds cannot
work an estoppel against the
State of Florida. The deeds
contain no indication that
the state intended to convey
title to sovereign lands. . .
- It is clear, however, that
under the public trust doctrine
the intent to alienate trust
property must be clearly stated.
, Supra. ...
Estoppel by deed is therefore
inapplicable.
(App. D, infra, 54a-55a) (some case cita-
tions omitted).
-5l-
The Third Certified Question.
“The final certified question is whether
the Marketable Record Title Act (MRTA),
Chapter 712, Florida Statutes, operates
to divest the state of title to sover-
eignty lands.” Pet. App. 7a-8a. The
court below answered this question in
the negative, "“conclud[{ing] that the
legislature did not intend to make MRTA
applicable to sovereignty lands.” Pet.
App. 9a, 38
38 The court below noted language
to the contrary in that court’s prior
decision in Odom v. Deltona Corp., 341
So.2d 977 (Fla. 1976), which had been
relied upon by Mobil and the lower Florida
courts in this case. The decision below
analyzed Odom, determined ” (tjhis reliance
[on Odom) is misplaced,” Pet. App. 8a,
concluding that Odom was entirely distin-
guishable on its facts (based on Odom’s
“factual determination that the small
lakes and ponds at issue were non-navig-
able, non-sovereignty lands”). Id. The
decision below explained, "The state-
ments [in Odom} concerning the effect
of MRTA on navigable waterbeds were dicta
and are non-binding in the instant case
inasmuch as there were no navigable water-
beds at issue in Odom.” Id. That court
also observed that its post-Odom decision
-52-
After examining (in response
to the first two certified questions)
“the well established law that prior
conveyances did not convey sovereignty
lands encompassed within Swamp and over-
flowed lands being conveyed,” Pet. App.
9a, the decision below “assume[d] that
the legislature knew this well-established
law when it enacted MRTA.” Id.
Mobil disputes the assumption
of the court below, but the decision
below affords ample support for its inter-
pretation of MRTA in light of the consti-
tutional codification of the public trust
doctrine in the Florida Constitution:
We are persuaded that had the
legislature intended to revoke
the public trust doctrine by
in Askew vy. Sonson, 409 So.2d 7 (Fla.
1981), nd lor to th n
this action, expressly “declined to rule
‘on the question whether the title to what
had been sovereignty lands could be per-
fected by MRTA prior to the effective
date of the 1978 amendment. ’ id. (Askew)
at 9.” Pet. App. 8a.
-53-
;
making MRTA applicableto sover-
eignty lands, it would have,
by special reference to sover-
eignty lands, given some indica-
tion that it recognized the
epochal nature of such restora-
tion. We see nothing, in the
act itself or the legislative
history presented to us sug-
gesting that the legislature
intended to casually dispose
of irreplaceable public assets.
The legislative Purpose of
Simplifying and facilitating
land title transactions does
not require that the title to
navigable waters be vested in
private interests.
Pet. App. 9a.
Mobil and amicus Florida Land
Title Association, Inc. (“FLTA”) argue,
in effect, that the court below overruled
its 1976 decision in Odom, Supra. This
is not correct as the decision below
explained, noting the specific reservation
of the issue in its 1981 decision in
Askew v. sonson, supra. Pet. App. 8a.
But even if one concluded the decision
below did overrule Odom, decided ten years
-54-
earlier, no rights of Mobil (Or FLTA)
are denied or impaired. 39
CONCLUSION
The Florida Supreme Court thus
correctly decided the three certified
questions of state law before £¢.*°
39 A trial on the issue of naviga-
bility vel non is hardly more difficult
in 1987 than it was in the late 1970s
when Mobil and other phosphate interests
litigated the same issues with the same
parties over the same Peace River in
Sundry state and federal courts.
Moreover Mobil did not act in
reliance on Odom. See also App. D, infra,
34a-62a. See generally, App. E., infra
82a. Mobil purchased the subject land
before Odom was decided and commenced
this action after the Florida Supreme
Court in Askew v. Sonson, supra, specially
declined to rule whether Odom applied
in light of its factual context (small
ponds and lakes) and the statute (Section
198.228(2), Florida Statutes (1975) )
which applied to that factual context.
40 This Court has long held “the
laws which subsist at the time and place
of the making of a contract, and where
it is to be performed, enter into and
form a part of it, as if they were ex-
Pressly referred to or incorporated in
its terms.” E.g., United States Trust
Co. v. New Jersey, 431 U.S. S¢. ae Tis 17
-55-
ae
Neither that court nor the lower Florida
courts consicered the putative federal
Questions Presented in the petition.
Nor should this Court consider them.
The ostensible statutory Question Pre-
sented is nothing more than a failed
attempt to recast Mobil’s tautological
argument under Section 197.228(2), Florida
Statutes (1981). Independently, the
petition, in its framing of the supposed
constitutional Question Presented, denies
the record, ignores both Florida precedent
(1977) (citing prior decisions of the
Court), reh’g denied, 431 U.S. 975 (1977).
Mobil’s predecessor had record and con-
structive notice of this Court’s decision
in Barney v. Keokuk, 94 U.S. (4 Otto 324)
(1877), which held that the state’s title
included the beds of all waters, which
upon admission to the union, were actually
navigable, whether or not they were
affected by the tide. Therefore Mobil’s
predecessor knew or should have known
in 1883 that no federal patent could
have conveyed sovereignty lands to the
State. see State ex rel. State Lana
Board v. Corvallis Sand and Gravel a
283 Or. 147, 582 P.2a 1352, 1356 (1978)
(On remand from this Court).
-56-
and the nature of this action, and suffers
from an erroneous major premise. Mobil
can claim no uncompensated taking has
occurred, in that, (i) Mobil has not
yet been, and indeed may never be, dives-
ted of title to the Peace River Property
on trial, and (ii) Mobil has not “sought
compensation [for a taking] through the
procedures the State has provided for
doing so. . ..” MacDonald at 3121.
For the foregoing reasons,
the petition for a writ of certiorari
should be denied.
Zs/_ PARKER D. THOMSON
PARKER D. THOMSON
Counsel of Record
Cloyce L. Mangas, Jr.
THOMSON ZEDER BOHRER WERTH
& RAZOOK
4900 Southeast Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2363
(305) 350-7200
Robert A. Butterworth
Attorney General
The Capitol
Tallahassee, FL 32301
-57<
|
Lee R. Rohe
Acting Gen. Counsel
Florida Department
of Natural Resources
3900 Commonwealth
Boulevard
Tallahassee, Florida 32303
James R. Hubbard, P.A
2900 S.W. 28 Court
Miami, Florida 33133
Attorneys for Respondent
Board of Trustees of the
Internal Improvement Trust
Fund of the State of
Florida
Dated: January 6, 1987
6867 .98-16
Appendix A
Navigable waters in this state shall
not be held to extend to any permanent
or transient waters in the form of so-
called lakes, ponds, Swamps or over-
flowed lands, lying over and upon areas
which have heretofore been conveyed to
private individuals by the United States
or by the state without reservation of
public rights in and to said waters.
ries Stat. -§ 197.228(z, (1981), renunm-
bered, Fla. Stat. § 253.141(2) (1985).
-la-
98-19
Appendix B
Final judgments or decrees rendered by
the highest court of a State in which a
decision could be had, may be reviewed
by the Supreme Court as follows:
3) By writ of certiorari, where
the validity of a treaty or statute of
the United States is drawn in question
or where the validity of a State statute
is drawn in question on the ground of
its being repugnant to the Constitution,
treaties or laws of the United States,
or where any title, right, privilege or
immunity is specially set up or claimed
under the Constitution, treaties or
statutes of, or commission held or
authority exercised under, the United
States.
28 U.S.C. § 1257(3) (emphasis added).
-2a-
98-18
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 81-5533. 81-5812
MOBIL OIL CORPORATION, )
@ New York Corporation,
Plaintiff-Appellant,
V.
COASTAL PETROLEUM COMPANY,
a Florida Corporation, )
Defendant-Appellee. )
MOBIL OIL CORPORATION, )
a New York Corporation,
Plaintiff-Appellant,
V.
COASTAL PETROLEUM COMPANY,
A Florida Corporation, and )
The State of Florida Depart-
ment of Natural Resources )
and The Board of Trustees
of the Internal Improvement )
Trust Fund of the State
of Florida, )
Defendants-Appellees. )
Appeals from the United States District
Court for the Northern District of
Florida
March 4, 1982
-3a-
Before MORGAN, TJOFLAT and JOHNSON,
Circuit Judges.
TJOFLAT, Circuit Judge:
These consolidated appeals
arise out of a lawsuit whose complex
procedural history we need only summar-
ize. On September 24, 1976, Mobil Oil
Corporation (Mobil) filed a complaint
in the Circuit Court for Leon County,
Florida, seeking a declaration of its
rights under an oil exploration agreement
with Coastal Petroleum Company (Coastal).
Coastal responded with five counterclaims,
the second of which alleged Mobil’s con-
version of phosphate from lands owned
by the State of Florida and leased by
Coastal. Coastal joined as a necessary
party to the second counterclaim the
Trustees of the Internal Improvement
-4a-
§ ee N0 eatin
Trust Fund of the State of Florida (the
Trustees), who hold title to state lands.
On November 20, 1979, Mobil
filed a counterclaim (the reply
counterclaim) against Coastal and the
Trustees, seeking a declaration of the
parties’ rights based on an 1862 deed
from the Trustees to Mobil’s predecessor
in interest encompassing eighty acres of
unmined land coursed by the Peace River.
On December 20, 1979, the Trustees and
Coastal (appellees) removed the case to
the district court, asserting that Mobil’s
reply counterclaim raised a substantial
federal question by challenging the
Trustees’ sovereignty claimto the subject
land. Mobil moved to remand the case to
the state court, but the district court
denied the motion.
In December of 1980, Coastal’s
fourth counterclaim was tried in the
district court, resulting in a final
-5a-
judgment on a jury verdict in favor of
Coastal. In No. 81-5533, Mobil appeals
that judgment, contending that’ the
district court lacked subject matter
jurisdiction of the reply counterclain,
and therefore of the case, and that the
district court committed error in the
conduct of the trial.}
On July 29, 1981, Coastal moved
the district court for an injunction to
prohibit Mobil from proceeding further
in a related state court quiet title
action. The district court entered an
: In addition to its jurisdic-
tional contention, Mobil argues that the
record contains no evidence to support
the jury’s assessment of compensatory
damages and that the district court erred
in ruling that the Mobil-Coastal oil
exploration agreement required Mobil to
furnish a geochemical report to Coastal;
in instructing the jury that it could
award more than nominal damages under
Count One of Coastal’s fourth counter-
claim; in submitting a misrepresentation
claim to the jury; and in submitting
Coastal’s request for punitive damages
to the jury.
-6a-
eee
order enjoining the parties from filing
or further litigating in any state or
federal court any lawsuit which would
require the determination of any legal
or factual issue forming the basis of
this lawsuit or necessarily relating
thereto. In No. 81-5812, Mobil appeals
the injunction, contending that it is
prohibited by the Anti-Injunction Act,
28 U.S.C. § 2283 (1976), and, again,
challenging the subject matter juris-
diction of the district court. Because
we conclude that the district court lacks
jurisdiction of this case, we reach none
of the other issues raised in these
consolidated appeals.
Il.
The federal removal statute,
28 U.S.C. § 1441 (1976), permits
defendants to remove state court civil
actions of which the federal courts have
-7a-
ee
original jurisdiction. ? The jurisdic-
tional question presented in this case
is whether Mobil’s reply counterclaim
arises under federal law within the mean-
ing of 28 U.S.C.A. § 1331(a) (West Supp.
“ 28U.S.C. § 1441 (1976) provides
in pertinent part:
(a) Except as otherwise
expressly provided by Act of
Congress, any civil action
brought in a State court of
which the district courts of
the United States have original
jurisdiction, may be removed
by the defendant or the defen-
dants, to the district court
of the United States for the
district and division embrac-
ing the place where such action
is pending.
(b) Any civil action of
which the district courts have
original jurisdiction founded
on a claim or right arising
under the Constitution, treaties
or laws of the United States
shall be removable without
regard to the citizenship or
residence of the _ parties.
Any other such action shall
be removable only if none of
the parties in interest properly
joined and served as defendants
is a.citizen of the State in
which such action is brought.
~8a-
1980)? so as to be removable.4 The reply
counterclaim alleges in relevant part:
ALLEGATIONS COMMON TO ALL COUNTS
This is an action for
declaratory judgment pursuant to Chapter
86, Florida Statutes. The subject matter
of the controversy exceeds $2,500 in
value.
as MOBIL owns, and is in
possession of the SE 1/4 of NW 1/4 and
i 28 U.S.C.A. § 1331(a) (West
Supp. 1980) provides: The district courts
shall have original jurisdiction of all
Civil actions arising under the Constitu-
tion, laws, or treaties of the United States.
4 No other claim in the case is
asserted to arise under federal law. The
Trustees correctly concede that the action
could not be removed on diversity grounds
because, assuming arguendo that the
Trustees are a citizen for purposes of
diversity, removal on diversity grounds
is permitted cnly if no defendant is a
resident of the state where the action
was brought. See 28 U.S.C. § 1441(b),
Supra, note 2. Coastal’s argument that
Mobil waived the right to challenge
removal on diversity grounds is meritless.
-9a-
SW 1/4 of NE 1/4 of Section 23, Township
31 South, Range 25 East, Polk County,
Florida. The Peace River courses a part
cf these lands and parts lie within the
Swamps that adjoin the river.
. MOBIL’s ownership is based
on a continuous chain of title which
began with a deed from the State of Flor-
ida to Henry S. Seward dated November
20, 1862. The deed ... does not mention
any rivers, waterbodies or watercourses
nor does it reserve any interest in STATE.
4. STATE and COASTAL have
asserted in this suit that MOBIL has
converted phosphate by having mined cer-
tain lands allegedly owned by STATE and
that are subject to a mineral lease be-
tween STATE and COASTAL. .. . The lands
described in paragraph 2, above, have
not been mined and, accordingly, are
not among the lands from which phosphate
has allegedly been converted.
-10a-
S. The conversion claims of
STATE and COASTAL are bottomed on the
contention that the lands from which the
phosphate was allegedly taken underlie
waterbodies or watercourses which were
navigable in fact when Florida became a
State on March 3, 1845, and, as such, ar
sovereignty lands.
* * * * * *
COUNT I
(Lands are not sovereignty in character)
10. The Peace River was not
“meandered” (which would have indicated
navigability) nor otherwise designated
as navigable, by the original government
surveyors or those who prepared the ori-
ginal township plats at any point north
of the dividing line between Townships
38 and 39.
11. The Peace River was not
navigable in fact on March 3, 1845, at
any point north of the dividing line
between Townships 38 and 39. Township
31 is north of that line.
12. Inasmuch as there were no
navigable waterbodies on the lands des-
cribed in paragraph 2, above, on March
3, 1845, no part of the lands are sover-
eignty lands.
The eight remaining counts of
the reply counterclaim involve, all part-
ies agree, only state law questions.
For a case to arise under fed-
eral law, a right or immunity created
by that law must be an essential element
of the plaintiff’s claim; the federal
right or immunity that forms the basis
of the claim must be such that the claim
will be supported if the federal law is
given one construction or effect and
defeated if it is given another. Maxwell
-l2a-
v. First Nat’l Bank of Monroeville, 638
F.2d 32, 35 (5th Cir. 1981);> In Re Car-
ter, 618 F.2d 1093, 1100 (5th Cir. 1980),
citing Gully v. First Nat’l Bank in Meri-
Sian, 299 0.8. 109, 112, 57 8.ێ. $6,
97, 81 L.Ed. 70 (1936). In order to
determine whether the claim arises under
the Constitution or laws of the United
States, we lcok to the complaint unaided
by anticipated defenses and with due
regard to the real nature of the claim.
Maxwell, 638 F.2d at 35; Gully, 299 U.S.
at 113, 57 $.Ct. at 98. “A suit te en-
force a right which takes its origin in
the laws of the United States is not
necessarily, or for that reason alone,
one arising under those laws, for a suit
5 The Eleventh Circuit has adopted
as binding precedent decisions rendered
by the former Court of Appeals for the
Fifth Circuit before the close of business
on September 30, 1981. Bonner v. City
of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc).
~i3a~
does not so arise unless it really and
substantially involves a dispute or
controversy respecting the validity,
construction or effect of such a law,
upon the determination of which the result
depends. This is especially so of a
suit involving rights to land acquired
under a law of the United States.” Heirs
of Burat v. Bd. of Levee Comm’rs, 496
F.2d 1336, 1342 (5th Cir.), cert. denied,
419 U.S. 1049, 95 S.Ct. 625, 42 L.Ed.2d
644 (1974), quoting Shulthis v. McDougal,
225 U.S. 5361, S69, 32 5.Ct. 704, 706,
$6 L.EG. 1205 (i912).
Acknowledging these precepts,
the parties differently characterize
Mobil’s pleading. Pointing to the reply
counterclaim’s challenge to Florida’s
acquisition of title to the disputed
lands as sovereignty lands, the Trustees
and Coastal argue that Mobil’s claim
turns on a federal question, namely,
-l4a-
the navigability of the Peace River on
March 3, 1845, the date Florida was ad-
mitted to the Union. If the Peace River
was navigable at that date, title to
the lands beneath the river passed from
the United States to the State of Florida
under the equal footing doctrine® and
were received by Florida as sovereign
lands. The passing of title under the
equal footing doctrine, the argument
continues, is a federally created right
which is governed by federal law; thus,
the navigability of the Peace River on
March 3, 1845, is a substantial federal
6 Under the equal footing doc-
trine, “the new States ... have the
same rights, sovereignty and jurisdic-
tion . . . as the original States possess
within their respective borders.” Mumford
v. Wardwell, 6 Wall. 423, 436, 18 L.Ed.
756 (1867). Pollard’s Lessee v. Hagan,
3 How. 212, 11 L.Ed. 565 (1845), held
that under the equal footing doctrine,
new states, upon their admission to the
Union, acquire title to the lands under-
lying navigable waters within their boundaries.
-15a-
ae
question supporting federal subject matter
jurisdiction.
Mobil maintains that its reply
counterclaim involves a mere title dispute
between Florida land claimants, each of
whom derives its claim from the State,
so that Florida law, and not federal law,
governs the controversy. While federal
law may determine the navigability of
waters for the limited purpose of ascer-
taining whether title to a riverbed passed
from the United States to Florida when
Florida became a state, once title has
passed, as the parties agree has occurred
here, Florida law governs any subsequent
claim to the property.
In its denial of Mobil’s motion
to remand, the district court embraced
the characterization advanced by the
Trustees and Coastal:
The navigability of the
waterbodies in issue in 1845
and the location of the ordinary
-16a-
high water line of the water-
bodies in 1845, if they were
navigable, are issues to be
determined by federal law.
Additionally, in this case
the determination of these
federal questions is a condition
precedent to a declaration of
Mobil’s rights of ownership
with respect to the lands which
it claims through various deeds
and patents. Mobil correctly
states that a determination
of whether the property in
question was transferred into
private ownership is a state
question, which must be deter-
mined in accordance with State
law, necessarily involving
the State test of navigability.
However, Mobil ignores’ the
essential and initial neces-
sity for a determination of
the federal questions raised
by its declaratory action before
the State questions may even
be reached.
Mobil’s “counterclaim” can
thus be seen to have brought
this action within the original
jurisdiction of this Court as
an action “arising under” fec-
eral law. Mobil’s declaratory
claim seeks fundamentally to
resolve whether the sovereignty
Claim of the Trustees and
Coastal, upon which the conver-
sion claim is based, is valid.
A determination of the validity
of the sovereignty claim depends
on the navigability of the
~./4a~
rivers in issue at statehood,
a federal question.
(citations omitted).
Clearly enough, Mobil does not
allege that the Peace River was not
navigable in fact on March 3, 1845, and
that the disputed property is therefore
not sovereignty land. The appellees cite
United States v. Oregon, 295 U.S. 1, 55
$.cCt. 610, 79 L.Ed. 1267 (1935), and
United States v. Utah, 283 U.S. 64, 51
S.Ct. 438, 75 L.Ed. 844 (1931), for the
proposition that the question whether a
river is navigable so that the submerged
lands pass to a state at statehood is a
federal question supporting federal
jurisdiction. Those cases were property
contests between the United States and
a state. We do not question that when
the United States and a state dispute
whether submerged land has passed to a
state under the equal footing doctrine
-18a-
or remains federal land, navigability
is a federal question. In order to ascer-
tain whether Mobil’s claim, with due
regard to its real nature, presents a
substantial controversy respecting the
validity, construction, or effect of
federal law, however, we must identify
the role which the asserted federal ques-
tion plays in the present controversy.
The disputed property was deeded
by the State of Florida to Mobil’s
predecessor in interest in 1862, and the
state held title to the property at the
time of the conveyance. Title had passed
to the state by one of two means: either
Florida acquired the lands under the equal
footing doctrine at statehood on March 3,
1845, because the Peace River was then
navigable, or Florida acquired the lands
in 1850 under the Swamp and Overflow Lands
Grant Act, 9 Stat. 520, now codified at
43 U.S.C.§ 982 (1976). If the state
-19a-
acquired the lands under the equal footing
doctrine in 1845, they were received as
sovereignty lands; otherwise, they were
not. Florida law treats sovereignty
lands differently than other lands:
sovereignty lands, unlike other lands,
are held by the state in public trust
and are subject to certain restrictions
on alienation.
The position of the Trustees
and Coastal is that the Peace River was
navigable on March 3, 1845, so that the
state received the disputed lands as
sovereignty lands and the 1862 deed did
not, under Florida law, convey the prop-
erty to Mobil’s predecessor in interest.
Mobil’s position is that the Peace River
was not navigable on March 3, 1845, so
that the state received the disputed
lands in 1850 as nonsovereignty lands,
and the 1862 deed, under Florida law,
-20a-
conveyed the property to Mobil’s pre-
decessor in interest.
The sole significance in this
case of the navigability of the Peace
River in 1845 is that the State of Florida
elects to denominate lands acquired from
the United States under the equal footing
doctrine as sovereign lands and to re-
strict the alienability of those lands.
The federal question relied on by the
appellees is a mere criterion which Flor-
ida chooses to adopt as the determinant
of a rule of state real property law.
In 1862, before the state deeded the
disputed property to Mobil’s predeces-
sor in interest, the state was at absolute
liberty, so far as federal law was con-
cerned, to treat the property as it
wished. If the property was subject to
restrictions on alienation, those
restrictions were imposed by state law.
That the state chose to look to the equal
-2la-
footing origin of the lands as fixing
forever their sovereign character is no
predicate for federal jurisdiction.
Properly viewed, then, the
question which is asserted to support the
jurisdiction of the district court is
incidental to Mobil’s claim and not at
its essence; nor does the fact that a
determination of navigability may resolve
the controversy alter our conclusion.
The whole foundation of the
duty is [state] law, which at
its sole will incorporated
the other law as it might incor-
porate a document. The other
law or document depends for
its relevance and effect not
on its own force but upon the
law that took it up, so ‘
the cause of action arises
wholly from the law of the
State. . . . The mere adoption
by a State law of a United
States law as a criterion or
test, when the law of the United
States has no force proprio
vigore, does not cause a case
under the State law to be also
a case under the law of the
United States. .. .
-22a-
ith v. Kansas Cit itle & Trust Co.,
255 U.S. 180, 214-15, 41 S.Ct. 243, 250,
65 L.Ed. 577 (1921) (Holmes, J.,
dissenting).
The decision of the Supreme
Court in Oregon ex rel State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S.
363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977),
strongly supports our holding. There,
the State of Oregon had brought a state
court ejectment action against an Oregon
corporation over the ownership of two
portions of land underlying the navigable
Willamette River. One portion had been
within the riverbed since Oregon’s admis-
sion to the Union, while the other had
only later become part of the riverbed
because of changes in the river’s course.
The Oregon courts took the view that
federal common law controlled the dispute
because the extent of a state’s sovereign
right under the equal footing doctrine
-23a-
was a federal question. On this basis,
they awarded the first portion to the
state and the second to the corporation.
On certiorari, the Supreme Court
vacated the judgment and remanded, holding
that ownership of the disputed lands
should be decided solely as a matter of
Oregon law and not federal common law,
because application of federal common
law was required neither by the equal
footing doctrine nor by any other
principle of federal law. So holding,
the Court overruled Bonelli Cattle Co. .
v. Ari ma, 414 U.S. 313, 94 S.Ct. 517,
38 L.Ed.2d 526 (1973), and repudiated
Bonelli’s holding that the nature of
the title conferred by the equal footing
doctrine is governed by federal common
law. 429 U.S. at 369-70, 97 S.Ct. at
586-587. ‘*”Although federal law may fix
the initial boundary line between fast
lands and the riverbeds at the time of
-24a-
a State’s admission to the Union, the
State’s title to the riverbed vests abso-
lutely as of the time of its admission
and is not subject to later defeasance
by operation of any doctrine of federal
common law.” Id. at 370-371, 97 S.Ct.
at 5687. Most significantly here, the
Court reaffirmed that:
[W]henever the question in
any Court, state or federal,
is, whether a title to land
which had once been the property
of the United States has passed,
that question must be resolved
by the laws of the United
States; but... whenever,
according to those laws, the
title shall have passed, then
that property, like all other
property in the state, is sub-
ject to state legislation; so
far as that legislation is
consistent with the admission
that the title passed and vested
according to the laws of the
United States.
Id. at 377, 97 S.Ct. at 590, quoting
Wilcox v. Jackson, 13 Pet. 498, 517, 10
L.Ed. 264 (1839) (emphasis in original).
-25a-
The Trustees and Coastal would
limit Corvallis to title disputes in which
the parties agree that the lands pre-
viously acquired by the state were ac-
quired as sovereignty lands. The Supreme
Court in Corvallis foreclosed this inter-
pretation of its decision. The Court
held that state law governs the disposi-
tion of property held by a state regard-
less of whether or not the state acquired
the property as sovereignty land under
the equal footing doctrine:
Thus, if the lands at
issue did pass under the equal-
footing doctrine, state title
is not subject to defeasance
and state law governs subsequent
dispositions.
* * * * * *
A similar result obtains
in the case of riparian lands
which did not pass under the
equal footing doctrine. This
Court has consistently held that
state law governs issues relat-
ing to this property, like
other real property, unless
some other principle of federal
law requires a different result.
-26a-
429 U.&. at 378, 97 $.Ct. at 591.
The appellees insist that the
pivotal issue in this case is indeed, as
Corvallis requires, "whether a title to
land which had once been the property of
the United States has passed,” because
the principal controversy is whether the
Trustees acquired title to the disputed
lands in 1845 under the equal footing
doctrine, or in 1850 as swamp and overflow
lands. But there is no question in this
case whether, in the sense obviously
intended by Corvallis, title to the dis-
puted land has passed; the parties agree
that it has. The issue is whether, under
Florida law, the 1862 deed to Mobil’s
predecessor conveyed the disputed cane
erty. That Florida chooses to answer
this question by inquiring by what means
it initially acquired title to the prop-
erty does not alter the fact that this
=27a°
is a case in which, title having passed
to the state, state law controls.
A case bearing more directly
on the collateral relationship between
the navigability of the Peace River in
1845 and the present controversy is Mil-
ler’s Executors v. Swann, 150 U.S. 132,
14 8.Ct. 52, 37 &.BG@. 1628 (e692). In
Swamn, Congress had granted public lands
to che State of Alabama to aid in the
construction of railroads. The Act grant-
ing the land provided explicit conditions
governing any further conveyance by the
State. The State conveyed the land to
a railroad company, retaining a mortgage
whose terms paralleled the conditions
imposed by Congress. Upon the bankruptcy
of the railroad, the State and a vendee
of the railroad both claimed a certain
parcel of land, disputing whether the
railroad had sufficiently complied with
the conditions of the Act of Congress
-28a-
(as incorporated in the mortgage) to
give it the power to convey to the third
party claimant. The Alabama Sunreme
Court determined that the conditions
had not been met, and that the State
was entitled to the land. On appeal to
the United States Supreme Court, the
Court concluded that it was without
jurisdiction to hear the matter for want
of a federal question:
Now, whether [the Supreme Court
of Alabama’s] was a correct
construction or not of the
act [conveying the land to
the railroad] and the reserva-
tion of the mortgage, is a
purely local question, and
involves nothing of a federal
character. The question is not
what rights passed to the state
under the acts of congress,
but what authority the railroad
company had under the statute
of the state. The construction
of such a statute is a matter
for the state court, and its
determination thereof is binding
on this court. The fact that
the state statute and the mort-
gage refer to certain acts of
congress as prescribing the rule
and measure of the rights grant-
ed by the state does not make
-29a-
the determination of such rights
a federal question. A_state
may prescribe the procedure
in the federal courts as the
rule of practice in i:s own
tribunals: it may authorize
the disposal of its own lands
in accordance with the provis-
ions for the sale of the public
lands of the United States;
and in such cases an examina-
tion may be necessary of the
acts of congress, the rules
of the federa courts
the practices of the land de-
partment, and yet the questions
for decision would not be of
a federal character. The in-
quiry along federal lines is
only incidental to a determi-
nation of the local question
of what the state has required
and prescribed. The matter
decided is one of state rule
and practice. The facts by
which that state rule and prac-
tice are determined may be of
a federal origin.
Id. at 136-37, 14 S.Ct. at 54 (emphasis
added).
We find nothing in the case law
since Swann that causes us to question
its currency, see, e.g., Moore v. Chesa-
peake & Ohio Ry. Co., 291 U.S. 205, 54
S.Ct. 402, 78 L.Ed. 755 (1934); Morris
v. Danna, 411 F.Supp. 1300 (D. Minn.
-30a-
1976), aff’d, 547 F.2d 436 (8th Cir.
1977), or its obvious applicability to
this case.
Our conclusion that the district
court has no jurisdiction of this case
comports with the fact that there is no
federal interest whatever in the resolu-
tion of this controversy. Federal law
is appropriately indifferent to Florida’s
invocation or application of a federal
test of navigability as a precondition
to determining a question of state law.
The appellees direct us to United States
v. Holt State Bank, 270 U.S. 49, 55-56,
46 S.Ct. 197, 199, 70 L.Ed. 465 (1926),
in which the Court held that "Navig-
ability, when asserted as the basis of
a right arising under the Constitution
of the United States, is necessarily a
question of federal law to be determined
according to the general rule recognized
and applied in the federal courts.
-3la-
To treat the question as turning on the
varying local rules would give the Con-
stitution a diversified operation where
uniformity was intended.” Here, not as
in Holt State Bank, neither party asserts
navigability as the basis of a right
arising under the Constitution or laws
of the United States. Moreover, no uni-
form interpretation of federal law is
intended or needed when the federal law
exerts no force proprio vigore but is
merely set up by the state as a criterion
by which to decide a state law question.
Pee
We hold, then, that the district
court lacks jurisdiction of this case.
The judgment appealed in No. 81-5533 is
vacated, and on receipt of the mandate
the district court shall remand the case
-32a-
to the state court. The injunction ap-
pealled in No. 81-5812 is dissolved.*
VACATED, with instructions.
6867-98.6
. We note that on October 15,
1981, the district court extended the
injunction in this case to apply to
American Cyanamid Company which is
involved in a similar lawsuit against
Coastal. American Cyanamid Company’s
appeal of that injunction is now pending
before this court in Case No. 81-6061.
-33a-
APPENDIX D
IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF FLORIDA
TALLAHASSEE DIVISION
COASTAL PETROLEUM )
COMPANY, et al.,
)
)
vs. TCA 77-0946
Plaintiffs,
INTERNATIONAL MINERALS
& CHEMICAL CORPORATION, )
Defendant. )
COASTAL PETROLEUM )
COMPANY, et al.,
Plaintiffs,
vs. TCA 77-0971
U.S.S. AGRI-
CHEMICALS, )
Defendant. )
-34a-
COASTAL PETROLEUM )
COMPANY, et al.,
Plaintiffs,
vs. )TCA 77-0972
SWIFT AGRICULTURAL )
CHEMICALS
CORPORATION, )
Defendant. )
COASTAL PETROLEUM )
COMPANY, et al.,
Plaintiffs,
vs. TCA 77-0973
AGRICO CHEMICAL
COMPANY, )
Defendant. )
COASTAL PETROLEUM )
COMPANY, et al.,
Plaintiffs,
Vs. TCA 77-0974
W. R. GRACE &
COMPANY, )
Defendant. )
-35a-
COASTAL PETROLEUM )
COMPANY, et al.,
Plaintiffs,
vs. TCA 77-0975
AMERICAN CYNAMID
=< a )
Defendant. )
MEMORANDUM OPINION AND _ ORDER
The above-styled cases were
brought by plaintiff Coastal Petroleum
Company seeking damages for alleged
conversion by the several defendants.
The State of Florida has been joined as
an involuntary plaintiff. Jurisdiction
is present under 28 U.S.C. §1332 because
of diversity of citizenship of the
parties.
Coastal holds a lease from
the State of Florida entitling it to
the mineral, oil and gas rights in state
sovereignty lands underlying the Myakka,
-36a-
Manatee, Little Manatee, Alafia, Caloosa-
hatchee, and Peace Rivers. Coastal and
the State of Florida (the "plaintiffs”)
contend that the defendants have wrong-
fully conducted phosphate mining opera-
tions on state-owned sovereignty lands
covered by the lease to Coastal and that
the defendants are therefore liable for
conversion. The defendants, in turn,
claim ownership of the disputed water
bottoms because the rivers flow through
lands conveyed to the defendants’ prede-
cessors in title by deeds from the Inter-
nal Improvement Trust Fund of the State
of Florida and patents from the federal
government. Apparently, none of the
conveyances from the state or the federal
government contains any specific reference
to submerged lands.
In the view of Coastal and
the State of Florida, resolution of the
issue of conversion will necessitate a
“37 7a°
factual inquiry into the ownership of
the lands mined by the defendants. The
plaintiffs assert that if a parcel of
land was submerged beneath a body of
water that was navigable when Florida was
admitted to the Union in 1845, then that
land has remained state sovereignty land
held in trust for the public and cannot
have been validly deeded away. The defen-
dants respond that as a consequence of
the decisions in Odom v. Deltona Corp.,
341 So.2d 977 (Fla. 1977), and Burns v.
Coastal Petroleum Co., 194 So.2d 71 (Fla.
1967), the complex factual inquiry sug-
gested by the plaintiffs is unnecessary.
By order uated September 15,
1978, this court directed the parties
to brief the legal questions involved
in Odom and Burns and their application
to the present cases. These issues are
-38a-
presently before the court for determina-
tion.
a% Odom v. Deltona Corp.
Odom involved a dispute between
the Deltona Corporation and the State
of Florida over ownership of certain
small, non-meandered lakes of less than
140 acres apiece. Deltona claimed owner-
ship because the lakes were wholly con-
tained within the bounds of properties
which Deltona owned “under various chains
of title originating either in U.S. Pat-
ents or deeds of the Trustees [of the
Internal Improvement Fund] of land acq-
uired by the state under the Swamp and
Overflow Lands Grant Act of September
a6, {1850).* No reservations of the
lakes to public use or ownership were
contained in the grants. The State con-
tended the lake beds were under navigable
waters and therefore were held by the
-33a-
state in trust for the public. The Sup-
reme Court of Florida affirmed the trial
court’s ruling that the lands in question
were owned by Deltona, not the state.
Defendants contend that “under
the several doctrines announced and reaf-
firmed in Odomv. Deltona,” consideration
of whether the lands contested here were
sovereign in character in 1845 is irrele-
vant. These “doctrines” are (1) certain
constitutional and statutory presumptions
described in the trial court’s opinion;
(2) legal estoppel; and (3) equitable
estoppel. Defendants expressly disavow
any reliance at the present time on a
fourth ground for decision in Odom--
the Florida Marketable Record Title Act,
Florida Statutes §712.01, et seq.
A. Constitutional and Statu-
tory Presumptions
-40a-
The trial court in Odom discus-
sed at length the provisions of Article
X, §11 of the Florida Constitution and
Florida Statutes §§197.228, 253.12(1),
and 253.151.1 All of these enactments
deal in some way with navigable waters
or sovereignty lands; excepted from their
scope are all lands previously alienated
or conveyed into private ownership.
Defendants here contend that the Florida
Constitution and the statutes discussed
in Odom recognize that once a conveyance
of land by deed has been made, the State
of Florida no longer has a claim to that
land on the basis of its sovereignty
status. Thus, the argument goes, the
lands at issue in the present cases have
been alienated into private ownership,
1 As the plaintiffs point out,
Florida Statutes §§197.228(2) and 253.151
have no application whatsoever to the
issues in the present litigation, because
they do not deal with rivers.
-4la-
as is shown by the deeds and patents to
defendants’ predecessors in title.
As the trial court in Odom
noted, the constitutional and statutory
provisions relied upon by defendants
“are not legislative conveyances of trust
properties.” 341 So.2d at 984. They
merely recognize that any submerged lands
that have been validly conveyed into
private ownership are not still to be
considered sovereignty lands. Id. None
of them provides a clue as to which sub-
merged lands in the state have been con-
veyed, and before they can come into
play in the present litigation, it first
would have to be demonstrated that the
contested properties have in fact been
deeded away by state or federal authori-
ties.
Although the deeds and patents
of record indicate that the uplands sur-
rounding the rivers involved here were
-42a-
conveyed to defendants’ predecessors in
interest, the so-called "public trust
doctrine” precludes the assumption that
the rivers also thereby passed into pri-
vate ownership. The public trust doctrine
derives from the common law of England,
which held that the Crown, as sovereign,
retained title to the beds of all navig-
able waters in trust for the benefit of
the public. Shively v. Bowlby, 152 U.S.
1 (1894); Broward v. Mabry, 50 So. 826
(Fla. 1909); Martin v. Busch, 112 So.
274 (Fla. 1927). The chief purpose of
the public trust doctrine is to ensure
that navigable waters and the lands be-
neath them will not be sold or otherwise
allowed to pass into private ownership,
thereby depriving the public of their
use for navigation, fishing and other
common purposes. Shively v. Bowlby,
supra; State v. Black River _Phosphate
Co., 13 So. 640 (Fla. 1893). All lands
-43a-
beneath navigable waters which are held
in trust are known as “sovereignty lands.”
See Martin v. Busch, supra.
Application of the doctrine
mandates that state sovereignty lands
"cannot be wholly alienated.” State ex
rel Ellis v. Gerbing, 47 So. 353, 356
(Fla. 1908). The Florida courts have
recognized, however, that, where the
public interest would be served, certain
conveyances of sovereign land can be
made. As expressed by the Florida Supreme
Court early in this century:
A state may make limited dispo-
sition of portions of [sover-
eign] lands, or of the use
thereof, in the interest of
the public welfare, where the
rights of the whole people of
the state as to navigation
and other uses of the waters
are not materially impaired.
The states cannot abdicate
general control over such lands
and the waters thereon, since
such abdication would be incon-
sistent with the implied legal
duty of the states to preserve
and control such lands and
the waters thereon and the
-44a-
use of them for the public
good.
State ex rel. Ellis v. Gerbing, supra,
at 355. See also Trustees of Internal
Improvement Fund v. Claughton, 86 So.2d
775, 786 (Fla. 1956).
The basic principles of the
public trust doctrine are now incorporated
inte the Florida Constitution:
The title to lands under navi-
gable waters, within the boun-
daries of the state, which have
not been alienated, 2 << ae
held by the state, by virtue
of its sovereignty, in trust
for all the people. Sale of
such lands may be authorized
by law, but only when in the
public interest. Private use
of portions of such lands may
be authorized by law, but only
when not contrary to the public
interest.
Florida Constitution, Art. 10, §11.
Concomitant to the public trust
doctrine is the rule of strict construc-
tion of governmental land grants and
deeds. ”[A] grant in derogation of sover-
eignty must be strictly construed in
-45a-
favor of the sovereign.” Trustees of
Internal Improvement Fund v. Claughton,
supra, at 786. See also State v. Black
River Phosphate Co., 13 So. 640, 650
(Fla. 1893). The right of a private
party to ownership of lands below the
high water mark “would be such an unusual
and extraordinary one that it should be
particularly shown and claimed when sought
to be made available ina suit.” Williams
v. Guthrie, 137 So. 682, 685 (Fla. 1931);
ic Vv. amm , 82 So. 221, 227-
28 (Fla. 1919); Martin v. Busch, supra,
at 284.
Additionally, a conveyance by
the sovereign of uplands does not include
a conveyance of lands below the line of
ordinary high water unless both the autho-
rity and the intent to convey such lands
is clear. Shively v. Bowlby, supra;
Martin v. Busch, supra. Thus, a grantee
of state-owned lands takes with notice
-46a-
that the conveyance extends only to the
high water mark and does not include
sovereignty lands. Odomv. Deltona Corp.,
supra, at 988; Martin v. Busch, supra,
at 285-86.
As noted previously, the deter-
mination of the sovereign or non-sovereign
character of any parcel of land depends
upon whether it lies under navigable
waters. The issue of navigability is
essentially a factual matter; as the
Florida Supreme Court explained in Odom
v. Deltona, supra, “{njavigability at
law is generally a question of navigabili-
ty in fact.” 341 So.2d at 988. See
also Bucki v. Cone, 6 So. 160, 161 (Fla.
1889). While there are several standards
of navigability, Florida has adopted
what is known as the “federal title test,”
Odom _v. Deltona, supra, at 988, which
holds “that whether a river is navigable
in fact is to be determined by inquiring
-47a-
whether it is used, or is susceptible
of being used, in its natural and ordinary
condition as a highway for commerce,
over which trade and travel are or may
be conducted in the customary modes of
trade and travel on water.” Baker v.
State, 87 So.2d 497, 498 (Fla. 1956).
Determination of whether a
body of water was meandered is helpful
in deciding the issue of navigability.
“In Florida, meandering is evidence of
navigability which creates a rebuttable
presumption thereof. The logical converse
of this proposition . . . is that non-~
meandered lakes and ponds are rebuttably
presumed non-navigable.” Odom, Supra,
at 988-99.
The foregoing discussion reveals
why the constitutional and statutory
provisions applied in Odom do not fore-
close the claims made here by Coastal
and the State of Florida. Unlike the
-48a-
lakes and ponds in Qdom, the rivers invol-
ved in the present cases have not been
determined to be non-navigable. Thus,
defendants’ title to the neighboring
uplands does not in itself give them
any claim to lands lying below the ordi-
nary high water mark; title to all sover-
eignty land is impliedly reserved to
the state, and the grantee of uplands
takes with notice that the conveyance
does not pass title to trust properties.
Martin v. Busch, supra. Thus, the factual
“ The concept of notice of
navigability was not utilized in Odom
because the lakes involved there were
so small as not to put the owner of
neighboring uplands on notice that they
might be navigable. Indeed, such lakes
would not commonly be used as "”highway[s]
for commerce,” Baker v. State, supra,
at 498, since it would in all probability
be easier to go around them than to go
across them. Rivers, on the other hand,
often extend long distances and are far
more likely to be used for commercial
purposes, because if they are sufficiently
broad and deep they provide natural
conduits for trade and transportation.
-49a-
question of navigability remains. Al-
though all parties appear in agreement
that the disputed rivers were meandered
only for relatively short distances near
the Gulf of Mexico, this circumstance
gives rise only to a rebuttable presump-
tion of non-navigability. Odom, supra.
Plaintiff and the State of Florida are
entitled to present evidence, as they
say they are prepared to do, showing
that the presumption is unwarranted and
that the rivers are navigable-in-fact.
The doctrine of legal estoppel,
or estoppel by deed, is also unavailing
to defendants. This doctrine is defined
in Florida in the following manner:
Legal estoppel or estoppel by
deed is defined as a bar which
precludes a party toa deed and
his privies from asserting as
against others and their privies
any right of title in derogation
of the deed, or from denying
the truth of any material fact
asserted therein. In other
-50a-
words, legal estoppel contem-
plates that if I execute a
deed purporting to convey an
estate or land which I do not
own or one that is larger than
I own and I later acquire such
estate or land, then the subse-
quently acquired land or estate ©
will by estoppel pass to my
grantee.
Legal estoppel or estoppel by
deed is determined by the inten-
tion of the parties as expressed
in the deed. Whether or not
legal estoppel may be applied
in a given case is dependent
entirely on the language used
in the deed or which appears
on the face of the instrument.
Trustees of [Internal Improvement Fund
v. Lobean, 127 So.2d 98, 102 (Fla. 1961).
Estoppel may be applied against the state
or its subdivisions where necessary to
prevent “manifest injustice” to private
persons. Lobean, at 102; Trustees of
Internal Improvement Fund v. Claughton,
86 So.2d 775 (Fla. 1956).
Lobean involved a Murphy Act
conveyance by the Trustees of submerged
tidal land in 1946. In 1956 the Trustees
-5la-
proposed to sell the property already
conveyed to Lobean. Suit was filed to
enjoin the Trustees from selling the land,
and the Trustees answered by alleging
the deed to Lobean was invalid because
the property was sovereignty land, the
title to which remained vested in the
Trustees. The Florida Supreme court
held the state was legally estopped to
deny the validity of its conveyance to
Lobean. Significantly, the court roted
that the sovereignty lands coverei by
the deed were lands which the Trustees
were statutorily authorized to sell. 127
So.2d at 103.
Legal estoppel was also applied
in Odom, the court stating, "If the state
has conveyed property rights whici it
now needs, these can be reacquired thmugh
eminent domain; otherwise, legal estapel
is applicable and bars the Trustees’
claim of ownership, subject to rijghts
~$2a-
specifically reserved in such convey-
ances.” 341 So.2d at 989. Crucial to
the application of legal estoppel in
Odom was the fact that the lakes in ques-
tion were non-navigable and that the
underlying lands thus were not sovereign
in character. Consequently, there was
no question of the authority of the Trust-
ees to convey them into private ownership,
the court more than once speaking of
"valid federal and state grants of title”
and “lawfully executed land conveyances.”
341 So.2d at 989. (emphasis supplied.)
The existence of lawful authori-
ty to convey plainly distinguishes Lobean
and Odom from the instant cases. Unlike
Odom, it has not yet been determined
whether the lands in dispute are non-
sovereign and therefore indisputably
capable of conveyance to private parties.
If sovereign, it is evident that the
-53a-
Trustees were wholly without authority
to alienate them until 1969, a date subse-
quent to the conveyances to defendants’
predecessors in interest. 3 The state
may not be estopped by the unauthorized
acts of its officers. Dade County v.
Bengis Associates, Inc., 257 So.2d 291
(Fla. 3d D.C.A. 1972); Greenhut Construc-
tion Co. v. Nenry A. Enott. ine., 247
$6.24 $17 (Fia. 166 D.C.A. i971).
There is another, perhaps even
more compelling reason why the Trustees’
deeds cannot work an estoppel against
the State of Florida. The deeds contain
no indication that the state intended
to convey title to sovereign lands.
Estoppel by deed, as indicated in Lobean,
“is determined by intention of the parties
3 See Florida laws Ch. 69-308
(1969), which for the first time vested
the title to navigable fresh water lakes,
rivers and streams in the Trustees of
the Internal Improvement Trust Fund.
~54a-
as expressed in the deed.” 127 So.2d
at 102. Here, the deeds are silent as
to whether a conveyance of sovereign
title is intended. It is clear, however,
that under the public trust doctrine
the intent to alienate trust property
must be clearly stated. Martin v. Busch,
supra. Consequently, the lack of any
reference to submerged lands in the deeds
fromthe state to defendants’ predecessors
in interest negates any possible inference
that these lands were meant to be con-
veyed. Estoppel by deed is therefore
inapplicable.
CG. Equitable Estoppel
The question of equitable estop-
pel requires little discussion at present.
Like legal estoppel, equitable estoppel
may be applied against the state. Lobean,
Supra. According to Lobean,
-55a-
Equitable estoppel as applied
to land titles is a different
thing (from estoppel by deed].
It depends on the conduct of
the parties for its efficacy.
It is not conversed with the
language of the instrument
and may actually deny the legal
effect of the deed. In Florida
Land Investment Co. v. Williams,
1928, 98 Fie. i258, i166 de.
642, 643, this court said:
“An equitable estoppel,
as affecting land titles, is
a doctrine by which a party
is prevented from setting up
his legal title because he
has through his acts, words
or Silence led another to take
a position in which the asser- -
tion of the legal title would
be contrary to equity and good
conscience.”
ii? S0.2¢4 @© i@¢2.
Since inquiry into the actions
of acquiescence of the party sought to
be estopped is essential to its applica-
tion, equitable estoppel cannot be imposed
as a matter of law. Whether a party is
estopped depends upon the facts and cir-
cumstances of the particular case. Ter-
rell v. Weymouth, 13 So. 429 (Fla. 1893).
-56a-
Accordingly, a ruling as to the applica-
bility of equitable estoppel is inappro-
priate at present and must be deferred
until such time as a full factual record
can be presented.
a Burns v. Coastal Petroleum Co.
The defendants contend that
the decision of the Florida First District
Court of Appeal in Burns v. Coastal Petro-
leum Co., 194 So.2d 549 (Fla. 1967),
cert. denied, 201 So.2d 549 (Fla. 1967),
cert. denied, 389 U.S. 913 (1967), bars
Coastal and the State of Florida from
claiming a lengthy portion of the Peace
River as sovereign land. Burns involved
a dispute between Coastal and the Florida
Trustees of the Internal Improvement
Fund over whether the water bottom of Lake
Hancock in central Florida fell within
the terms of Drilling Lease No. 224-B
as modified, the same lease from the
“9 7a>
Trustees to Coastal which forms the basis
for Coastal’s claim here. The issue
was solely one of construction of the
lease instrument. The court concluded
that, since Lake Hancock was not one of
the bodies cf water specifically named
in the lease, the submerged lands covered
by the lease did not include those lying
beneath Lake Hancock.
The following passage appears
in the Burns opinion:
It is admitted that Lake
Hancock is not mentioned in
any of the lease documents
but is a sovereign body of
navigable water meandered by
the government and within the
jurisdiction of the Trustees.
It is also admitted that Lake
Hancock is the headwater of
Peace River and flows through
natural channels into the Gulf
of Mexico. Lake Hancock does
not flow directly into Cohanzy
Creek which flows into Peach
Creek which empties into Peace
River. The southern portion
of Peace River, from its mouth
northward to the line between
Townships 38/39, is meandered
and within the jurisdiction of
the Trustees. However, Peace
-58a-
River north of Township 38/39
is not meandered and does not
belon to th State. That
ls, Peace River for a distance
of 40 miles south of Lake Han-
cock is _ in private ownership.
(emphasis supplied)
194 So.2d at 74. Defendants claim that
Since both plaintiff and the State of
Florida were parties to Burns, they should
be bound by the determination that the
Peace River north of the line between
Townships 38 and 39 is privately owned
and collaterally estopped to re-litigate
this question.
In a diversity action state
law governs the applicability of the
doctrine or collateral estoppel. See
Breeland v. Security Insurance Co., 421
F.2d 918 (5th Cir. 1969); Annotation,
State or Federal Law as Governing Applica-
bility of Doctrine of Res Judicata or
Collateral Estoppel in Federal Court
Action, 19 ALR Fed. 709, § 3(a), and cases
cited therein. The general ruies relating
-59a-
to collateral estoppel in Florida are
set out in Mobile Oil Corp. v. Shevin,
354 So.2d 372 (Fla. 1977):
Collateral estoppel, or estoppel
by judgment, is a judicial
doctrine which in general terms
prevents identical parties
from relitigating issues that
have previously been decided
between them. The essential
elements of the doctrine are
that the parties and issues
be identical, and that the
particular matter be fully
litigated and determined in a
contest which results in a
final decision of a court of
competent jurisdiction.
354 So.2d at 374.
For at least two reasons col-
lateral estoppel cannot be applied in
this case. First, the parties are not
identical to those in Burns. Although
both Coastal and State of Florida were
parties to Burns, the defendants were
not.
Second, it is clear that the
question of state ownership of the Peace
River north of Townships 38/39 was not
-60a-
an issue in Burns and thus was not “fully
litigated and determined.” As noted
above, the only question on appeal was
wheti.er Lake Hancock was included within
the terms of Coastal’s mineral lease.
Neither navigability nor sovereign owner-
ship of the river was directly presented
as an issue. The statement of the court
concerning private ownership of a portion
of the river was mere dicta, since it
was not necessary to the question of
construction of the lease.* State ex
rel. Biscayne Kennel Club v. Board of
Business Regulation, 276 So.2d 823, 826
(Fla. 1973).
ORDER
It is ORDERED AND ADJUDGED:
4 Additionally, it is now obvious,
after Odom, that the Burns court’s
conclusion was erroneous as a matter of
law. A lack of meandering creates a
rebuttable, not aconclusive, presumption
of non-navigability.
-6la-
1. The rulings made above
concerning Qdom v. Deltona Corp., 341
$0o.2a 977 (Fla. 1977), and Burns v. Coast-
al Petroleum Co., 194 So.2d 71 (Fla.
lst D.C.A. 1967), shall govern the further
course of this litigation.
2 On or before February l,
1979, counsel for all parties shall submit
proposed agenda for the conduct of further
discovery in these cases.
DONE AND ORDERED this 10th
day of January, 1979.
wi
WILLIAM STAFFORD
UNITED STATES DISTRICT JUDGE
103-1
-62a-
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 81-6083, 81-6094,
- - 4.
COASTAL PETROLEUM COM- )
PANY, a Florida Corpora-
tion, and The United )
States Army Corps of
Engineers, The State of )
Florida Department of
Natural Resources and )
The Board of Trustees
of the Internal Improve- )
ment Trust Fund of
the State of Florida, )
Plaintiffs-Appellees, )
Vv. )
U.S.S. AGRI-CHEMICALS, )
A DIVISION OF UNITED
STATES STEEL CORPORA- )
TION, a Delaware Cor-
poration authorized to )
do business in Florida,
Defendant-Appellant,
COASTAL PETROLEUM COM-
PANY and The State of )
Florida Department of
Natural Resources and )
The Board of Trustees
of the Internal Improve- )
ment Trust Fund of the
State of Florida, )
Plaintiffs-Appellees, )
-63a-
Vv.
INTERNATIONAL MINERALS
& CHEMICAL CORPORATION,
Defendant~-Appellant,
COASTAL PETROLEUM COM-
PANY, a Florida Corpora-
tion,
Plaintiff-Appellee,
The State of Florida,
Department of Natural
Resources, etc., et al.,
Involuntary
Plaintiffs-Appellees,
Vv.
W.R. GRACE & COMPANY,
a Florida Corporation,
Defendant-Appellant.
COASTAL PETROLEUM COM-
PANY, a Florida Corpora-
tion,
Plaintiff-Appellee,
The State of Florida
Department of Natural
Resources,
Involuntary
Plaintiffs,
-64a-
SWIFT AGRICULTURAL )
CHEMICALS CORP.,
a Delaware corporation, )
authorized to do busi-
ness in Florida, now )
Estech General Chemicals
Corporation, )
Defendant-Appellant. )
Appeals from the Ur.ited States District
Court for the Northern District of
Florida
Jan. 17, 1983
Before HILL and HENDERSON, Circuit
Judges, and GARZA, Senior Circuit Judge:
JAMES C. HILL, Circuit Judge:
This is a consolidated appeal
of four cases. Defendants are appealing
the propriety of an injunction issued by
the district court, and that court’s
conclusion that subject matter jurisdic-
tion existed. For the reasons stated
below we reverse.
-65a-
HISTORY
The basis of this case is a
title dispute involving a complex )roce-
dural history which we will only briefly
summarize. In 1976, Mobil Oil Corpo‘ation
[hereinafter Mobil] filed suit in aFlor-
ida State Court seeking a decla‘ation
of its rights under an oil explo’ation
agreement it had with Coastal Pet’oleum
Company [hereinafter Coastal}. oOastal
filed several counterclaims incuding
one alleging Mobil’s conversion of phos-
phate ore from certain rivers in Fbrida.
Coastal, was joined in its counterlain,
by the Board of Trustees of the Irnernal
Improvement Trust Fund of the Stite of
Florida and the Department of Mtural
Resources! {hereinafter collectively
1 The Board of Trustees wasmerged
into the Department of Natural Resources
in 1975 by Florida Statute, chapter 75-
22. Since then the legislature hs made
-66a-
referred to as Trustees].
Mobil filed a reply counterclaim
seeking a declaration of the parties’
rights based upon an 1862 deed granted
by the Trustees to. Mobil’s predecessor
in interest which raised the issue of the
navigability of certain waters in Florida
that were in dispute. Based upon Mobil’s
counterclaim, Coastal and the Trustees
removed the action to federal court as-
serting federal question jurisdiction.
Coastal’s and the Trustees’ allegation
of federal question jurisdiction is based
upon the contention that Mobil’s reply
counterclaim raised the issue of whether
the Peace River was a navigable body of
it clear that the Trustees are still a
viable independent agency, holding title
to certain lands and having the authority
to control those lands. Laws of Florida
Ch. 79-255 § 1 (1979). It is clear from
the legislative history that the merger
took nothing away from this agency and
was undoubtedly effectuated for admini-
strative convenience.
-67a-
water. Their position derives from the
State’s acquisition of Peace River and
the lands beneath it back in 1845 when
Florida was admitted to the Union. If,
at the time of the statehood, the Peace
River was navigable, then the lands passed
from the United States to Florida as
sovereign lands under the equal footing
doctrine.* If the state received these
lands as sovereign lands, then, according
to Coastal and the Trustees, the 1862
deed leasing these lands to Mobil’s prede-
cessors in interest was invalid. Whether
the Peace River was navigable on the
- The equal footing doctrine
states: “the new States .. . have the
same rights, sovereignty and jurisdiction
- .- - aS the original States possess
within their respective borders.” Mumford
v. W WwW , 6 Wald. C73 VU.G.) 423, 18
L.Ed. 756 (1867). According to Pollard’s
Lessee v. Hagan, 3 How. (44 U.S.), 212,
11 L.Ed. 565 (1845), under the equal
footing doctrine, upon admission to the
Union, new States acquire title to the
lands underlying navigable waters within
their boundaries.
-68a-
date Florida was admitted to the union,
according to Coastal and the Trustees,
presents a substantial federal question.
The appellees argue that the passing of
title is a federally created right which
should be governed by federal law.
Mobil, however, contends that
the Peace River was not navigable at
the time of statehood, and therefore,
the lands did not pass to Florida as
sovereignty lands. Mobil suggests that
Florida received the lands in 1850 under
the Swamp and Overflow Lands Grant Act,
9 Stat. 520, codified at 43 U.S.C. § 982
(1976). Accordingly, Mobil maintains
that its reply counterclaim does not
raise the issue of the navigability of
the Peace River, but rather a typical
title dispute between Florida land claim-
ants, each of whom derived its claim
from the State. Because this is only a
title dispute concerning Florida law,
-69a-
there should be no federal question juris-
diction.
Prior to any determination by
the district court as to the viability
of Coastal’s and the Trustees’ claim of
federal question jurisdiction, Coastal
filed suits, similar to its conversion
suit against Mobil, against five other
mining companies four of which were based
on both federal question? and diversity
of citizenship’? jurisdiction. The five
3 28 U.3.G. -§ SO9Rtes - FEES)
provides:
The district courts shall have
original jurisdiction of all
civil actions arising under
the Constitution, laws, or
treaties of the United States.
4 28. B.8:€. -§.4352(03— (2976)
provides in pertinent part:
The dist” .ct courts shall have
original jurisdiction of all
civil actions where the matter
in cuwntroversy exceeds the
sum or value of $10,000, exclu-
sive of interest and costs,
and is between--(1) citizens
of different states. ...
-70a-
mining companies were: American Cyanamid
Company, USS Agri-Chemicals, Estech Gen-
eral Chemical Corporation, International
Minerals and Chemical Corporation and
W.R. Grace and Company.
Coastal’s new contention of
diversity of citizenship was based on
its belief that the Trustees, although
an agency of the State, were sufficiently
independent from the state as to qualify
them as a citizen. If the Trustees are
a citizen of the state of Florida, then
complete diversity exists entitling them
to subject matter jurisdiction in the
federal court. Subsequent to Coastai’s
initiation of the suits in federal court,
four of the six mining companies initiated
quit title actions in the Florida state
court system. Coastal then sought and
obtained an injunction issued from the
district court which extended to all
six mining companies, enjoining all part-
“Fia@-
ies from instituting any lawsuit, in
state or federal court, involving any
of the issues to be considered in the
cenversion suits. Mobil and American
Cyanamid Company appealed the issuing
of the injunction to the Eleventh Circuit
and both companies have succeeded in
dissolving the injunction as it pertains
to them.°
The remaining four defendants
are challenging the propriety of the same
injunction issued by the district court
and are appealing that court’s conclusion
of the existence of subject matter juris-
diction.
FEDERAL QUESTION JURISDICTION
The @Gistrict court’s order
5 Mobil Oil Corp. v. Coastal
Petroleum, 671 F.2d 419 (llth Cir.),
cert... denied, U.S. , 163 §.Ct.
300, 74 L.Ed.2G 281 (1982) ; Coastal Petro-
leum v. American Cyanamid Co., 673 F.2d
1343 (llth Cir. 1982).
-72a-
concluding that federal question juris-
diction existed was issued prior to this
court’s opinion in Mobil Oil Corporation
v. Coastal Petroleum Company, 671 F.2d
419 (llth Cir. 1982). In Mobil, where
the identical title disputes were raised,
this court concluded that the “question
of title to land which depended upon
whether state land was subject to restric-
tions on alienation did not present a
federal question merely because the issue
of whether the river was navigable was
involved. ...” Id. at 424.
Because we have concluded that
federal question jurisdiction did not
exist in Mobil, we also conclude that
there is no federal question presented
as against the remaining four mining
companies. Although Coastal attempts
to assert other reasons upon which federal
question jurisdiction exists, we find
the arguments without merit.
-73a-
DIVERSITY JURISDICTION
For purposes of diversity juris-
diction a state is not a citizen of any
state. Postal Telegraph Cable Co. v.
Alabama, 155 U.S. 482, 15 S.Ct. 192, 39
L.Ed. 231 (1894); seeC. Wright, A. Miller
andE. Cooper, Federal Practice and Proce-
dure: Jurisdiction § 3602 n.13 (1975).
Whether the Trustees are considered a
"State” for purposes of diversity, or
whether they qualify as a separate and
independent agency is the threshold ques-
tion. If the Trustees are considered
part of the State so that they are not
a “citizen” within the meaning of § 1332,
then complete diversity would not exist.
See Strawbridge v. Curtis, 7 U.S.
(3 Cranch) 267, L.Ed. 435 (1806).
This court, in Aerojet-General
Corporation v. Askew, 453 F.2d 819 (5th
Cir. 1971), resolved the question of
-74a-
whether the Trustees qualify as being
sufficiently independent to be considered
a “citizen” for purposes of diversity
jurisdiction. In Aerojet, suit for spe-
cific performance was brought against
the Trustees and the Florida State Board
of Education. The court, after examining
Florida law, and in determining whether
the Board could rely on the eleventh
amendment state immunity doctrine, con-
cluded that “this suit does not constitute
an action against the State of Florida
and is, therefore, not barred by the
eleventh amendment to the United State
Constitution, as to either of the two
state boards in question.” Id. at 830,
see Farrugia v. Askew, 371 F.Supp. 736
(N.D. Florida 1973). Although the deter-
mination made by the court in Aerojet
concerned eleventh amendment immunity,
we conc ude that the analysis for deter-
mining the Board’s status as a “citizen”
-75a-
for the purposes of diversity is the
same. The court in Aerojet relied heavily
on the fact that the appropriate Florida
statutes had vested title to the land
in question with the Trustees. Similarly,
in the instant case, title of the land
in dispute has been vested with the Trust-
ees. ©
The district court used a multi-
factor analysis in holding that the Trust-
ees are sufficiently separate and indepen-
dent from the state so as to confer “citi-
zen” status upon then. These factors
have been approved by this circuit and
are as follows: (1) whether the agency
can be sued in its own name; (2) whether
the agency can implead and be impleaded
6 Florida Stat. § 253.12(1)
states: “Except submerged lands hereto-
fore conveyed by deed or statute, the
title to all sovereignty tidal and sub-
merged bottom lands .. . and all submer-
ged lanes owned by the state... is
vested in the Board of Trustees of the
Internal Improvement Fund.”
-76a-
in any competent court; (3) whether the
agency can contract in its own name;
(4) whether the agency can acquire, hold
title to, and dispose of property in
its own name; and (5) whether the agency
can be considered a "body corporate”
having the rights, powers and immunities
incident to corporations. See cC.H. Leav-
all_ and Co. v. Board of Commissions of
Port of New Orleans, 424 F.2d 764 (5th
Cir. 1970); Central Stikstof Verkoopkan-
tor, N.V. v. Alabama State Docks Depart-
ment, 415 F.2d 452 (5th Cir. 1969).
Because the state has vested title of
the land in the Trustees and because
the Trustees have acted and continue to
act aS a separate and distinct entity
from the state, we hold that the trustees
are a citizen within the meaning of diver-
Sity jurisdiction under 28 U.S.C. § 1332
(1976).
-77a-
THE INJUNCTION
Having established that juris-
diction exists, we turn to the merits
of this case, the issuance of an injunc-
tion. Under the anti-injunction statute:
“kh court of the United States may not
grant an injunction to stay proceedings
in a state court except as expressly
authorized by an Act of Congress, or
where necessary in aid of its jurisdic-
tions, or to protect to effectuate its
judgments.” 28 U.8.¢. § 22863 (i376).
The district in granting the injunction
stated:
At this stage of the litiga-
tion . . . it would be imprudent
to have the same issues litigat-
ed in state courts; the issue
should be tried one time by
one court in order to save
both time and expense and avoid
duplicitous litigation. No
party should be allowed to
circumvent this court’s rulings
by filing quiet title actions
in state court. The court
determines that an injunction
is necessary in aid of its
-78a-
jurisdiction.
The anti-injunction statute
has been interpreted very narrowly by
the Supreme Court. / According to the
Fifth Circuit, the phrase “where necessary
in aid of its jurisdiction” “should be
interpreted narrowly, in the direction
of federal non-interference with orderly
state proceedings.” T. Smith & Sons,
Inc. v. Williams, 275 F.2d 397, 407 (5th
Cir. 1960). This court has clearly stated
that an “action may be proved simultane-
ously in state and federal court and
the federal court cannot enjoin the state
even if the federal suit was filed first.”
Carter v. Ogden Corp., 524 F.2d 74, 76
(Sth Cir. 1975).
The district court, in issuing
7 See Mitchum v. Foster, 407
UeSe 240, 9a &.CC. 22391, 32 Le EG.24
(1972); Atlantic Coast Line R.R. Co. v.
Brotherhoo fe) ocomotive ngineers,
3938 U.S. 281, 90 §$.Ct. 1739, 26 L.Ed.2a
234 (1970).
-79a-
the injunction haa concluded that’ featral
question jurisdiction existed. Based
upon this conclusion, the court desired
not to have the same issues litigated
both in state and federal court particu-
larly when there was a substantial federal
questicn being raised. We have not con-
cluded that there is no federal question.
This case now comes into the federal
court based solely upon diversity of
citizenship. We, therefore, reverse
the district court’s issuing of the in-
junction.
The issues now remaining in
the Coastal suit involve questions depen-
dent entirely upon state law. Under
the Erie doctrine, when a federal court
is adjudicating rights created by the
state, based solely on diversity of citi-
zenship, the federal court, in effect,
becomes just another state court for the
purposes of determining the outcome of
-80a-
the case.® Accordingly, the district
court, in this instance, would now be
compelled to apply state law in the same
manner as the state court. Therefore,
there is no longer any compelling need
for federal jurisdiction and no compelling
need for the court to issue an injunction
to protect is jurisdiction. Whether
the injunction would have been proper
assuming federal question jurisdiction
existed is not an issue presently before
this court and therefore, we do not reach
the merits of this question.
Coastal and the trustees contend
that the district court also issued the
injunction to effect or protect its judg-
ment. The appellees argue that there
was a final judgment in this case in
need of protection. Their contention
8 see Guaranty Trust Co. v. York,
326 U.S. 99, 108, 65 S.Ct. 1464, 1469,
89 L.Ed. 2079 (1944); see also C. Wright,
Federal Courts § 55 256 (3d ed. 1976).
-8ia~
is based on the district court’s order
of January 10, 1979. This order resulted
from the appellant’s request that an
early ruling on special legal issues be
granted by the court. Appellants put
forth several defenses which they asserted
would resolve many of the issues, citing
Odom_v. Deltona Corp., 341 So.2d 977
(Fla. 1977) as precedent. The court
reviewed the briefs submitted by all
parties and concluded that several of
*he defenses raised by the appellants
were without merit. The court ordered
its ruling pertaining to these defenses
to govern the rest of the litigation.
This order is simply a non-
appealable interlocutory order. To fit
into the “protect and effectuate judgment”
exception, the order must be a final
judgment. See International Association
of Mechanics and Aerospace Workers v.
Nix, 512 F.2a€ 125, 129-33 (5th Cir. 1975).
-82a-
The word “judgment” is defined as “any
order from which an appeal lies.” Federal
Rule Civil Procedure 54. According to
Southern Methodist University Association
v. Wynne and Jaffe, 599 F.2d 707 (5th
Cir. 1979),
28 U.S.C. § 1291 empowers the
courts of appeal to hear “ap-
peals from all final decisions
of the district courts.” Gen-
erally, this means ”all decision
by the District Court that
‘ends the litigation on the
merits and leaves nothing for
the court to do but execute
the judgment.’” Southern Metho-
dist, 599 F.2d at 711 citing
Coopers and Lybrand v. Livesay,
437 U.S. 463, 98 S.Ct. 2454,
57 L.Ed.2d 351 (1978), quoting
Catlin v. United States, 324
U.S. 229, 233, 65 $.Ct. 631i,
633, 89 L.Ed. 911 (1945).
An early order given prior to
trial, eliminating certain defenses,
does not constitute a final judgment
within the meaning of § 2283. This order
has not eliminated the need for a trial
on the merits nor has it resolved many
of the remaining factual and legal ques-
-83a-
tions.
Because we find that the issuing
of the injunction does not fall within
any of the recognized exceptions to the
Anti-Injunction statute, we -conclude
the district court abused its discretion
and we reverse, dissolving the injunction.
REVERSED.
98-8
-84a-
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