# Opposition Brief — Mobil Oil Corp. v. Board of Trustees of the Internal Improvement Trust Fund of Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2378%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1065 ## Text 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. « . * . * >. > . . * * * . 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) . . 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 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.€é. $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 = 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2378%3A2. Public record. Not legal advice.