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-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Opposition Brief — Mobil Oil Corp. v. Board of Trustees of the Internal Improvement Trust Fund of Florida · 479 U.S. 1065 | Frix