Petition for Writ of Certiorari — United States v. Koch

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Iu the Supreme Court of the United States

OCTOBER TERM, 1945

UNITED STATES OF AMERICA, ET AL., PETITIONERS

Vv.

EDWARD H. KOCH, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DrEw S. Days, III

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

JOHN D, : ESHY DAVID C. SHILTON

Solicit: « GERALD §. FISH

LYLE K. s1SING JACQUES B. GELIN

Lor! R.¥. MONROE Attorneys

Attorneys Department of Justice

Department of the Interior Washington, D.C. 20530

Washington, D.C. 20240 (202) 514-2217

QUESTION PRESENTED

Whether a land patent from the Unite? States

granting title to surveyed riparian land alss vrants

title to unsurveyer islands in the adjacent stream.

(I)

PARTIES TO THE PROCEEDING

The petitioners are the United States of America,

the Department of the Interior, the Interior Board of

Land Appeals, and the Bureau of Land Management.

The respondents are Edward H. Koch, Walter B.

Lemon, Roberta A. Lemon, Edward N. Juhan, and

Anthony F. Zarlengo.

Opinions below

Jurisdiction

TABLE OF CONTENTS

Constitutional and statutory provisions involved

Statement

Reasons for granting the petition

Conclusion

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Cases:

Andrus V. Charlestone Stone Prods. Co., 436 U.S.

TABLE OF AUTHORITIES

Arizona V. California, 460 U.S. 605 (1983) ..

Blask v. Sowl, 309 F. Supp. 909 (W.D. Wis. 1967)

Block Vv. North Dakota, 461 U.S. 273 (1983)

Bode V. Rollwitz, 199 P. 688 (Mont. 1921)

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973)

Bourgeois V. United States, 545 F.2d 727 (Ct. Cl.

1976)

Brown’s Lessee Vv.

650 (1845)

Bryant v. Yellen, 447 U.S. 352 (1980)

Buxton Vv. Traver, 130 U.S. 232 (1889)

Clements, 44 U.S.

Page

16, 19, 20

(3 How.)

Caldwell v. United States, 250 U.S. 14 (1919)

California Coastal Comm’n v. Granite Rock Co..

480 U.S.

572 (1987)

(III)

Cases—Continued: Page

California Vv. United States, 457 U.S. 273 (1982) .. 23

Chotard v. Pope, 25 U.S. (12 Wheat.) 586 (1827)... 24

Coe -¥. Tiart BES UB. GE GRID hevccecosseccensndsnciveeen 25

Easton v. Salisbury, 62 U.S. (21 How.) 426

CIE icxcacmlecsexceseteteneneess 23

Eldred v. Sexton, 86 U.S mats Wall. ) 189 (1873). 24

Gibson V. Chouteau, 80 US. (13 Wall.) 92 (1871). 23

Grand Rapids & I. R.R. v. Butler, 159 U.S. 87

ID sia s i iecasicorrg naked aac eaaeeceeneatiadbunsecnicrni mais 15

Great N. Ry. v. United States, 315 U.S. 262

Re hd on ae eae beeameaeerre cena 10

Hardin Vv. Jordan, 140 U.S. 371 (1891) -..........-.......- 20

Horne v. Smith, 159 U.S. 40 (1895) ........................ 25

Hughes v. Washington, 389 U.S. 290 (1967) ure. 23

Lattig v. Scott, 17 Idaho 506 (1910) ...................... 14

Lee Wilson & Co. Vv. United States, 245 US. 24

9: t acne eae aS ee a hae 23

R.A. Mikelson, 26 I. B. a A. 1 (1976). fos heaspat hee ote ts 11

Mission Rock Co. v. United States, 109 F. 763 (9th

Cir. 1901), aff’d, 189 U.S. 391 (1903) 0.0. 16

Moss Vv. Ramey, 239 U.S. 538 (1916) —.........11, 13, 15, 16,

20, 29

Niles v. Cedar Point Club, 175 U.S. 300 (1899)...... 25

Northern Pac. R.R. v. Soderberg, 188 U.S. 526

(1903) ..... ETE a OT LS LAE HN PEON A Rts Mee BENET Aree 26

Oklahoma Vv. Texas, 258 U.S. 574 (1922) ............... 19, 20

Oregon V. Corvallis Sand & Gravel Co., 429 U.S.

Be aoe esaeocesiecercoveeess cee scdaesenaaasnaies 11

Papasan V. Allain, 478 U.S. 265 (1986) ae 4

Emma S. Peterson, 39 Pub. Lands Dec. 566 (1911).. 11, 27

Railroad Co. v. Schurmeir, 74 U.S. (7 Wall.) 272

COD ciceiecedeseties = . 14,18

Ritter v. Morton, 513 F.2d 942 (9th Cir), ‘eatt.

denied, 423 U.S. 947 (1975) —............. aaa eee 16, 18

Scott v. Lattig, 227 U.S. 229 (1913) ..... Ui, 13, 14, 15, 18,

20, 25, 28, 29

State v. Nolegs, 139 P. 943 (Okla. 1914) —.......-...... 16

Steinbuchel v. Lane, 51 P. 886 (Kan. 1898) .|........... 16

Texas V. Louisiana, 410 U.S. 702 (1973) _.............. 16, 28

United States v. Arredondo, 31 U.S. (6 Pet.) 691

|. | Seer Pate aerusasuaeaeea nei ener datemeae aia 26

Cases—Continued: | Page

United States v. Boyd, 458 F.2d 1252 (6th Cir.

WIM ‘clisadoshuasccistcetcacedenttintabb aetna te ee One 21

United States v. Chandler -Dunber Water Power

Co., 209 U.S. 447 (1908) ........0000000 15

United States v. Lemon, 632 F. Supp. 431 (D.

Rh MP olieiorencns aces nn rere ena) hate 8

U nited States v. Montana Lumber & Mfg. Co., 196

ee Be | eae enna Teen eS 24

United States v. Morrison, 240 U.S. 192 (1916)... 24

United States v. Northern Pac. R.R., 311 U.S. 317

GRUNT corccielcecndstecet ee ee ee ere ee 24

United States v. Oregon, | 295 U.S. 1 (1985) ............ 23

United States v. Severson, 447 F.2d 631 (7th Cir.

1971), cert. denied, 404 U.S. 1039 (1972) _........ . 16,17

United States v. Union Pac. R.R., 353 U.S. 112

ERNE Sissi lacicatomedcet cee eee eee 26

United States v. Wyoming, 331 U.S. 440 (1947)... 24

Utah Div. of State Lands v. United States, 482 U.S.

SE GID sect re see eeeetae vee tent one 22, 28

Watt v. Western Nuclear, Inc., 462 U.S 36 (1983) .. 26, 27

Whitaker v. McBride, 197 U.S. 510 (1905) ........... 15, 20

Wilcox Vv. Jackson, 38 U.S. (13 Pet.) 498 (1839) .... 23

Wolff v. United States, 770 F. Supp. 1205 (W.D.

Mich. 1991), aff’d, 967 F.2d 222, reh’g denied,

974 F.2d 702 (6th Cir. 1992) atdesivistecvaas ae ae

Constitution, statutes and regulations:

U.S. Const. Art. IV TET AM 8 BY 2, Zs

§ 3, Cl. inculeuaeceuc ceeeonee ana

Act of May 18, 1796, ch. 29, 1 Stat. 464 . . ape 5

Gy 3 is BO cect cccren ek ee ee ; 24

Act of May 10, 1800, ch. 55, 2 Stat. 73 ................0.... 5

Act of Mar. 26, 1804, ch. 35, 2 Stat. 277... 5

Act of Apr. 24, 1820, ch. 51, § 1,3 Stat. 566 6, 7, 24

Act of Sept. 4, 1841, ch. 16, § 10,5 Stat. 455... 24

Act of Mar. 3, 1853, ch. 145, § 3,10 Stat.245.. S46, 24

Act of May 20, 1862 (Homestead Act), ch. 75, § 1,

i t. RREaC on Uc ceseie’ ee ee

Act of Mar. 3, 1891, ch. 561, § 13, 26 Stat, 1100 . 24

Statutes and regulations—Continued: Page

Federal Land Policy and Management Act of 1976,

gE SR BF SAIS RRA Seater e ee sso e a ee ee A e 7,12

POCO), SS UG. STR OD cccecvcectctecsicctscors BROaRE 16

Silas MEET atts TT ATL sscssnacdinnianeedsessicetieuwstemeneiescdiddons 7,

Ue SEE A PeICERY I UUEEE cncvcncceusioneckcccsdeasicasnidediesmacieuth 12, 29

Michigan Public Lands Improvement Act of 1988,

Pub. L. No. 100-537, 102 Stat. 2711 ...................... 12

Minnesota Public Lands Improvement Act of 1990,

Pub. L. No. 101-442, 104 Stat. 1020 .......020.00000.. 12

Quiet Title Act of 1972, 28 U.S.C. 2409a .....000000.. 9

Se ais PPORGOOD occncwscceceececsneverecoceceverecenvptvesses 9

Be Sts MIEOED conticevacsdsesecocssceuceececosmciomecbares 9

Is I oa 9

Submerged Lands Act of 19538, 43 U.S.C. 1301 et

SERIES RROD aM RPA LIE NOS AEE ELC BT. f 28

Rev. Stat. $§ 2353 et seq. (1875 ed.) ........................ 2,7, 83a

PA, Tee BE CRO Cle vnvevsesoesevensecesceswncccessiesnes 7, 26, 84a

Rev. Stat. Supp. I (2d ed. 1874-1891) 000. 2, 7

Rev. Stat. Supp. IT (1892-1901) ..........0000.00. iy |

I, een PEPE RS TACT AER CLIED | 9

42 U.S.C. 671 et seq. ......... cee babapnatnebieaaiatnamamacsamails 2

GB UAC. TOL C6 BOG, ..2<cccecevccnreevesexs NERY eRe Pr 4,5

43 C.F.R.:

Pt. 4:

BOCCIONS 4.1 CF BOG, ......cceeccewceewencecererevevouscesee

Pt. 9180 ....... RRS ROME TEN «Bee NASBA AEP AS. 7

Pt. 9185:

Section 9185.2-3 ...................... FD ae aT! ; 12

Miscellaneous:

BLM, Manual of Surveying Instructions (1973)... 6,11,

13, 27

P.W. Gates & R.W. Swenson, History of Public

Land Law Development (1968) .............. 6

B.H. Hibbard, A History of the Public Lend Poli-

ctes (1989) ........... won HS

18 J. Continental Cong. 915 ) (1780) ee neo in aod 22

VII

Miscellaneous—Continued: Page

26 J. Continental Cong. (1784):

oy ' 22

pp. 324-330 4

28 J. Continental Cong. (1785):

p. 114 4

p. 264 4

pp. 298-302 4

pp. 375-381 4

Report of a Committee to Establish a Land Office

(Apr. 30, 1784) Re = 4

R.M. Robbins, Our Landed Heritage (2d ed. 1976) 3,4

3 J. Story, Commentaries on the Constitution

(1833) sola ae 3

The Papers of Thomas Jefferson (J.P. Boyd ed.

1953):

Vol. 2 1

Vol. 6 4

Vol. 7 3-4

C.A. White, A History of the Rectangular Survey

System (1983) 3, 4, 5, 6, 25. 27

In the Supreme Court of the United States

OCTOBER TERM, 1995

No.

UNITED STATES OF AMERICA, ET AL., PETITIONERS

Uv.

EDWARD H. KOCH, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-14a) is reported at 47 F.3d 1015. The opinion

of the district court (App., infra, 68a-80a) is reported

at 814 F. Supp. 996. The opinion of the Interior

Board of Land Appeals (App., infra, 39a-67a) is re-

ported at 118 I.B.L.A. 38. The opinion of the admin-

istrative law judge (App., infra, 18a-38a) is un-

reported.

JURISDICTION

The judgment of the court of appeals was entered

on January 31, 1995. A petition for rehearing was

denied on April 13, 1995 (App., infra, 81a-82a). On

(1)

July 6, 1995, Justice Breyer extended the time for

filing a petition for a writ of certiorari to and in-

cluding August 11, 1995. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Article IV, Section 8, Clause 2, of the United

States Constitution provides in relevant part:

The Congress shall have Power to dispose of

and make all needful Rules and Regulations re-

specting the Territory or other Property belong-

ing to the United States;

The statutory provisions governing the land pat-

ents at issue in this case are set out in the Revised

Statutes of 1873, as amended. See Rev. Stat. §§ 2353

et seq. (1875 ed.); Rev. Stat. Supp. I (2d ed. 1874-

1891); Rev. Stat. Supp. II (1892-1901)). Those pro-

visions were later codified in Title 43 of the United

States Code, but repealed by various enactments. See

43 U.S.C. 671 et seq. Relevant provisions are set out

in the appendix to this petition. See App., infra,

83a-84a.

STATEMENT

In 1982, the Department of the Interior’s Bureau

of Land Management (BLM) conducted an investiga-

tion of certain land masses in a stretch of the Colo-

rado River in the State of Colorado and concluded

that some of those land masses constituted previously

unsurveyed islands that are part of the public do-

main. Respondents, who own land bordering the

Colorado River, challenged the BLM’s determination,

claiming that the federal patents that had originally

conveyed the riparian land into private ownership

had also conveyed the disputed acreage. See PP.»

nfra, 15a-17a, 18a-38a. The Interior Board of Land

Appeals (IBLA) rejected respondents’ claims, mer

ing that the previously unsurve yed islands at issue

remain under federal ownership. Jd. at 39a-67a. The

United States District Court for the District of Colo-

rado affirmed the IBLA’s factual determinations, but

concluded as a matter of law that the federal] patents

granting title to surveyed riparian lands also granted

title to unsurveyed islands within the river. Id. at

68a-80a. The United States Court of Appeals for the

Tenth Circuit affirmed the district court’s decision.

ld. at la-14a.

1. Since the formation of the Union. our Nation

has faced important questions concerning the acquisi-

tion, measure, and disposition of the public domain.

After the Declaration of Independence, the newly de-

clared States asserted competing claims to the ‘‘West-

ern Territory,” and they were able to ratify the

Articles of Confederation only after New York, Con-

necticut, and Virginia agreed to cede most of their

western land claims. See B.H. Hibbard. A History

of the Public Land Policies 7-11 (1939). The Con-

tinental Congress recognized that ceded lands com-

prised its chief asset and that the national interest

would be advanced if those lands were settled. See

id. at 32-55. See also, e.g., C.A. White, A History

of the Rectanqular Surv y System 9-15 (1983): R.M.

Robt bins, Our Landed Heritage S-l1l1 (2d ed. 1976):

- a. Story, Commentaries on the ( ‘onstitution S 1310

(1833).

In 1784, the Continental Congress appointed a com-

mittee led by Thomas Jefferson to examine how the

ceded western lands should be administered. See 7

The Papers of Thomas Jefferson 147 (J.P. Boyd

1953) [hereinafter Jefferson Papers]. Jefferson had

prior experience in the development of a Land Office

for the Commonwealth of Virg:nia, see 2 Jefferson

Papers 133-154, and he was deej'y interested in the

future of western lands, see 6 Jefferson Papers 581-

617. The Jefferson committee proposed that the pub-

lice land be surveyed and divided into contiguous

rectangles, and then subdivided and made available

for public purchase and settlement. See Report of a

Committee to Establish a Land Office (Apr. 30, 1784)

(reprinted in 7 Jefferson Papers 140-147); see also

26 J. Continental Cong. 324-330 (1784). The com-

mittee recognized that survey before sale would re-

duce the prospect of overlapping claims, simplify land

records, and provide a fair system of disposition.

See C.A. White, supra, at 11.

Soon after the Jefferson committee issued its re-

port, Jefferson left on a diplomatic mission to Eu-

rope (7 Jefferson Papers 2), and the Continental

Congress considered the committee’s recommendations

in his absence. See 28 J. Continental Cong. 114, 264,

298-302 (1785). The Congress ultimately adopted

“An Ordinance for ascertaining the mode of dis-

posing of Lands in the Western Territory.” Jd. at

375-381. The so-called Land Ordinance of 1785

adopted the Jefferson committee’s basic concept of a

rectangular survey system, which has since provided

the basic framework for determining the boundaries

of the public domain and remains largely in place

today. See C.A. White, supra, at 11-15; R.M. Rob-

bins, supra, at 7-8; B.H. Hibbard, supra, at 37-41;

see also Papasan vy. Allain, 478 U.S. 265, 268-269 &

n.3 (1986) ; 43 U.S.C. 751 et seq.’

‘The Land Ordinance of 1785 provided that the Geogra-

pher of the United States would direct surveyors to establish

The Constitution of the United States, which was

proposed by the constitutional convention two year’s

later, vested in Congress the power “to dispose of

and make all needful Rules and Regulations 1 respect

ing the Territory or other Property merenging to the

United States.” U.S. Const. Art. IV, $3, Cl. 2. Fol-

lowing ratification of the Constitution, rene con-

tinued the practice of disposing of public land by

clearing Indian title, identifying and dividing the

land through rectangular survey, and offering it for

public sale. See, e.g., Act of May 18, 1796, ch. 29,

1 Stat. 464; Act of May 10, 1800, ch. : 2 Stat. 73;

Act of Mar. 26, 1804, ch. 35, 2 Stat. 27

The Jefferson committee’s innovative » concept of a

cadastral survey system became a monumental un-

dertaking during the nineteenth century. Congress

extended the boundaries of the United States through

various means, including the Louisiana Purchase. the

Florida Purchase, the annexation of Texas, the ac-

quisition of the Oregon Territory, the Mexican ces-

sion and sale of territory, and the Alaska Purchase.

see B.H. Hibbard, supra, at 14-31, which led to a

a system of rectangular boundaries for all public land that

was no longer subject to Indian claims. seginning at the

Ohio River, the surveyors would divide and mark the public

land into contiguous six-square-mile townships, unless aquatic

bodies or Indian boundaries required the creation of frac-

tional townships. The Geographer would prepare plats that

would depict the township boundaries and divide them by

protraction into 36 one-square-mile lots (except where frac-

tional lots were necessary). The lots (now known as se tions)

would then be offered for public sale at a price of not less

than one dollar per acre plus survey costs. The United States

would retain four lots out of every township and the right

to one-third of all minerals. In addition, one central lot in

every township would be set aside for public schools. See C.A.

White, supra, at 11-15. Compare 43 U.S.C. 751 et seq.

six-fold increase in the size of the public domain,

see P.W. Gates & R.W. Swenson, History of Public

Land Law Development 86 (1968). Congress di-

rected that those lands should be included in the

rectangular survey system, see e.g., C.A. White,

supra, at 51-57, and it provided through various laws

that the land, once surveyed, would be available for

purchase or other means of acquisition, see, e.g., Act

of Apr. 24, 1820, ch. 51, 3 Stat. 566.

2. From 1797 to 1910, a period that embraced the

most significant part of the western migration, the

federal government relied on contract surveyors, who

were paid by the mile surveyed, to identify and sur-

vey the public domain in preparation for disposition

and settlement. See C.A. White, supra, at 34, 186,

231. As the undertaking progressed, the federal gov-

ernment refined surveying practices through formal

and informal announcements and through the issu-

ance of a Manual of Surveying Instructions, which

was published in 1855 and has been revised period-

ically since that time. See BLM, Manual of Survey-

ng Instructions (1973); C.A. White, supra, at y+. 9 F

764 (reproducing surveying instructions from 1804

through 1910).

Despite that guidance, the surveying practices

were not always certain or uniform, and surveyors

did not always understand or fastidiously follow the

guidance given them. See, e.g., C.A. White, supra,

at 100-101, 119-126. In addition, lands that were

not likely to be purchased (such as mountain peaks,

small islands, and other lands unsuitable for cultiva-

tion) were typically not surveyed, particularly if the

survey would entail great cost. See, e.g., 7d. at 8&1,

126-127, 134-135, 154: see also Act of Mar. 3, 1853,

ch. 145, § 3, 10 Stat. 245 (directing that sections in

California that are “unfit for cultivation” should not

be surveyed). For those and other reasons, the pub-

lic domain is not completely surveyed, and the BLM

continues to conduct original surveys, as well as re-

surveys, of public lands. The Federal Land Policy

and Management Act of 1976 (FLPMA), 43 U.S.C.

1701 et seq., directs the Secretary of the Interior to

complete the surveying process “[a]s funds and man-

power are made available.” FLPMA § 201, 43

U.S.C. 1711; see 43 C.F.R. Pt. 9180.

3. This case concerns a dispute over six islands in

a 15-mile, non-navigable stretch of the Colorado

River between Glenwood Springs and Grand Junc-

tion, Colorado. The government conducted its first

surveys in the general vicinity between 1883 and

1887, but the area immediately surrounding the spe-

cific parcels in question was not surveyed until 1889

and 1891. The surveyors meandered the riparian

upland, but they did not meander the islands in the

adjacent river. Hence, the islands were not surveyed.

They were mentioned, however, in the surveyors’ field

notes and sketched onto the accompanying plat,

which created a reference for future survey and

disposition. See App., infra, 40a-41a.

Between 1892 and 1894, various private parties

purchased the fractional riparian lots that are rele-

vant to this dispute. The United States sold the land

under the Act of Apr. 24, 1820, as amended. See

Rev. Stat. §$ 2353 et seg. (1875 ed.); Rev. Stat.

Supp. I (2d ed. 1874-1891); Rev. Stat. Supp. II

(1892-1901). The law in effect at the time of sale

set a minimum purchase price of $1.25 per acre.

Rev. Stat. § 2357 (1875 ed.). The federal patents

that conveyed the land identified the purchased prop-

erty by reference to the fractional lot descriptions

contained in the official plat, which was created

through the 1889 and 1891 surveys. The patents

specified the number of acres contained in each pur-

chased lot, measured to one-hundredth of an acre.

The patents did not include unsurveyed islands

within that acreage specification. See App., infra,

40a-4la (noting that the islands were not meandered

by the original surveyors).

4. In 1982, the BLM commenced an investigation

to review the results of the 1889 and 1891 surveys

and to determine ownership of 22 land masses in

that reach of the Colorado River. The investigation

was prompted by inquiries from local landowners and

others who were interested in developing mineral re-

sources (including sand, gravel, and natural gas) in

the area. The BLM reviewed the original survey rec-

ords and other sources, conducted a thorough field

examination, and determined that nine of the land

masses, which had not been meandered in the orig-

inal surveys, were islands that have been in con-

tinuous existence since that time. The BLM surveyed

the islands, announced its intention to file plats iden-

tifying those islands as unconveyed public lands, and

denied protests from the owners of adjacent riparian

tracts. See App., infra, 15a-17a, 41a-42a; see also

United States v. Lemon, 632 F. Supp. 431 (D. Colo.

1986) (allowing government surveyors entry to con-

duct surveys).

Yespondents, who own riparian land as successors

of the nineteenth century patentees, sought adminis-

trative review of the BLM’s decision. See 43 C.F.R.

4.1 et seg. The IBLA referred the matter to an ad-

ministrative law judge (ALJ), who ruled that the

six land masses that respondents had placed in issue

were not islands at the time of the original survey,

but rather were impermanent parts of the non-

navigable stream’s bed. The ALJ concluded that the

patents gave the riparian owners title to those por-

tions of the agent to the mid-point of river. See

App., infra, 18a-38a. The IBLA reversed the ALJ’s

decision. Jd. at 39a-67a, The IBLA examined the

record, including a stipulation by the parties, and

concluded that the parcels, which ranged in size from

7 to 67 acres, id. at 40a n.1, “were islands, not mere

topographic features, at the time of the original sur-

veys,” id. at 65a. It continued:

A consequence of that holding is that the failure

of the original surveyors to survey the islands

in question must either have been the result of

an error or simply the consequence of an official

or unofficial Government policy not to survey

islands unsuitable for cultivation. In either case,

their failure to survey the islands did not divest

the United States of title to those islands.

Id. at 65a-66a (footnotes omitted). The IBLA ac-

cordingly rejected the riparian owners’ challenge to

the BLM’s survey. /d. at 66a-67a.

5. The riparian landowners sought judicial review

of the IBLA’s decision.?. The district court ruled tha

2 The district court determined that it had jurisdiction

under 28 U.S.C. 1331. App., infra, 69a. Because the plain-

tiffs’ suit challenged the United States’ title to the islands

in dispute, the district court should have also relied on the

Quiet Title Act of 1972 (QTA), 28 U.S.C. 2409a, as a basis

for jurisdiction. The QTA provides “the exclusive means by

which adverse claimants [can] challenge the United States’

title to real property.” Block v. North Dakota, 461 U.S. 273.

286 (1983). Although the plaintiffs failed to invoke the

QTA, their suit satisfied the pertinent requirements of the

statute. It properly named the United States as a party, 28

U.S.C. 2409a(a), was sufficiently specific with respect to the

lands in question, 28 U.S.C. 2409a(d), and was filed withi)

the QTA’s limitations period, 28 U.S.C. 2409a(g). The dis

trict court was therefore lawfully vested with jurisdiction

over the plaintiffs’ suit.

“the IBLA’s decision that the land masses in question

were ‘islands’ at the time of the original survey is

undoubtedly supported by substantial evidence in the

record.” App., infra, 74a. The court nevertheless

concluded that the riparian landowners held title to

the islands. It reasoned that, “if the government

conveys riparian land along non-navigable waters and

there is an absence of evidence whether the govern-

ment also intended to convey title to islands located

within the river, title to the islands passes according

to the law of the state in which the property is

located.’” Id. at 75a-76a.

The court found “no clear evidence that the gov-

ernment intended to reserve the islands when it con-

veyed the riparian land,” and it concluded that, as a

result, ‘ownership of the islands must be determined

in accordance with Colorado law.” App., infra, 79a.

The court acknowledged that Colorado law does not

squarely address the issue. The court nevertheless

held that “it is reasonable to conclude” that Colorado

would follow what the court understood to be the

“common law rule” that “grants of land on a non-

navigable river entitle the grantee to all islands lying

between the mainland and the thread of the stream.”

Id. at 79a-80a.

The court of appeals affirmed. App., infra, la-14a.

It concluded that “[n]othing in the record clearly

reveals the government’s intent with respect to pat-

ents affecting the islands at issue.” Jd. at 8a. The

court acknowledged that the extent of a federal grant

“is necessarily a federal question,” id. at 9a (quoting

Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 320

(1973)), and that normally “any ambiguity in a

grant is to be resolved favorably to a _ sovereign

grantor,” App., infra, 8a-9a (quoting Great N. Ry.

v. United States, 315 U.S. 262, 272 (1942)). The

1 |

court nevertheless concluded that those principles do

not control the issue here.

The court of appeals instead ruled that in the

“select area of cases” involving riparian land, ‘fed-

eral law directs a court to look to state law to resolve

the dispute.” App., infra, 9a (citing Oregon v.

Corvallis Sand & Gravel Co., 429 U.S. 368, 378

(1977)). The court of appeals accordingly deter-

mined that it should “look to Colorado state law to

ascribe rights in the property at issue here.” App.,

infra, lla. It agreed with the district court that the

Colorado legislature and courts had not addressed the

issue. It nevertheless concluded that Colorado would

recognize the riparian landowners, rather than the

United States, as owners of the islands. Ibid.

REASONS FOR GRANTING THE PETITION

This case presents an important question of public

land law that has generated a serious and irreconcil-

able conflict among the courts of appeals. The Con-

stitution vests Congress alone with the power to dis-

pose of the public domain. Congress has consistently

elected to provide for the survey of public lands, in-

cluding islands, before placing them in private hands.

Until recently, it was clear under federal law govern-

ing surveys of public land that the United States

retained ownership of unsurveyed islands. See Moss

v. Ramey, 239 U.S. 588 (1916); Scott v. Lattig, 227

U.S. 229 (1918); R.A. Mikelson, 26 I.B.L.A. 1

(1976); Emma S. Peterson, 39 Pub. Lands Dec. 566

(1911); BLM, Manual of Surveying Instructions

§ 3-122 (1973). A series of court of appeals deci-

sions, culminating in this case, has called that prin-

ciple into question. Those decisions divest the United

States of public land that the government did not

sell, and they grant title to private parties who did

not pay for its purchase.

1. The court of appeals’ decision raises an impor-

tant issue of federal land management that wiil af-

fect the government’s oversight of the public domain.

Congress recognized in the Federal Land Policy and

Management Act of 1976 (FLPMA) that existing

surveys have not identified all of the government’s

land holdings, and it directed the Secretary of the

Interior to locate and establish the boundaries of

public lands, such as small islands, that remain

unsurveyed. FLPMA § 201, 48 U.S.C. 1711. Con-

gress instructed the Secretary to undertake those

surveys because it understood that unsurveyed lands

are a component of the public domain that remain

subject to Congress’s control.” If Congress is mis-

taken, then it should know now, before it takes

further action with respect to the retention or dis-

position of the affected lands.*

The uncertainty resulting from the court of ap-

peals’ decision also is likely to have significant prac-

tical consequences with respect to land-title litigation,

where the law should be certain. See Arizona v. Cali-

fornia, 460 U.S. 605, 620 (1983). The Department

of the Interior estimates that the contiguous States

*See FLPMA § 211, 43 U.S.C. 1721 (authorizing the Seere-

tary of the Interior to convey unsurveyed islands to the

States and their political subdivisions). See also 43 C.F.R.

9185,2-3,

* See, e.g., Minnesota Public Lands Improvement Act of

1990, Pub. L. No. 101-442, 104 Stat. 1020 (conveying origi-

nally unsurveyed lands, including unsurveyed islands, to the

State of Minnesota); Michigan Public Lands Improvement

Act of 1988, Pub. L. No. 100-537, 102 Stat. 2711 (conveying

originally unsurveyed lands, including unsurveyed islands,

to the State of Michigan).

(excepting Texas and the States that comprised the

original thirteen colonies) contain approximately

11,000 unsurveyed islands that, from the United

States’ perspective, continue to remain within the

public domain. As this case demonstrates, many of

those islands, which were once considered worthless

as agricultural land, are now recognized as valuable

for purposes of mineral development, recreation

wildlife propagation.

The United States has consiste?

chat it owns unsurveyed publie lands, including un-

irveyed islands. see, Patten BLM, Vi nual of Surive y-

ln«¢g Tn. tructions . 3-122 ( 1973). The court of

1 ,

s’ decision casts a cloud on the United States’

}

itly maintained

appea

title in the western States, and it will encourage

riparian owners—including private parties, States,

and Indian Tribes—to claim ownership of those

slands and to attempt to exclude the federal] govern-

ment or its successors from those lands. Conse-

( lently, disputes like the one here can be expected

to arise with greater frequency. Given the need for

certainty and predictability in questions of property

ownership, it is especially appropriate for the Court

to resolve the issue now.

The question presented here j; ripe for thi

Court’s resolution because it has generated a square

conflict among the circuits that has unsettled the

Court’s own precedents. Until recently, this Court’s

decisions in Scott y. Lattig, supra, and Moss vy.

Kamey, supra, had controlled the question of owner

ship of unsurveyed islands. The court of appeals’

decision erroneously puts the vitality of those prece-

dents into doubt.

In Scott vy. Lattig, a riparian landowner named

Lattig brought suit in an Idaho state district court

+ 6919 As ) ] ‘ ° P . : - . ]

ae quiet tie TO Poo i and. a 138-acre iInsurveved

island located in a navigable portion of the Snake

River.” The Idaho district court ruled that Lattig

owned the island by virtue of his patent-to riparian

land, and the Idaho Supreme Court affirmed. 17

Idaho 506 (1910). This Court reversed. The Court

stated that “it is manifest that the island, if in ex-

istence at the time of the survey in 1868, was then

public land of the United States.” 227 U.S. at 241.

The Court then ruled that the United States’ patent

of surveyed riparian land on the banks of the river

did not convey the unsurveyed island. /d. at 241-

244,°

The Court distinguished prior cases vesting

riparian owners with title to certain offshore forma-

tions. It explained that those cases involving ‘“so-

*The riparian lands were surveyed in 1868, but the island

was neither surveyed nor mentioned in the field notes or plat.

Lattig acquired his riparian land by succession to an 1894

patent. The defendant, Scott, settled on the island in 1904,

and when the island was surveyed in 1906, he filed an applica-

tion for a homestead. 227 U.S. at 239-241.

* The Court first ruled that the surveyor’s apparent error

in omitting the island from the 1868 survey “did not divest

the United States of the title or interpose any obstacle to

surveying it at a later time.” 227 U.S. at 241-242. The Court

next ruled that Idaho’s admission as a State in 1890 also had

no effect on the United States’ title, explaining that, while the

beds of navigable rivers pass to the State upon admission,

id, at 242-243, the island “was not part of the bed” and

“therefore remained the property of the United States and

subject to disposal under its laws,” id. at 244. Finally the

Court recognized that the disposal of the riparian land did

not alter the United States’ title, citing the established rule

that “proprietors of lands bordering on navigable rivers,

under titles derived from the United States, hold only to the

stream.” Ibid. (quoting Railroad Co. v. Schurmeir, 74 U.S.

(7 Wall.) 272, 287 (1868)).

called islands” were limited to offshore land masses

that did not actually qualify as islands. See 227 U.S.

at 244." The Court quoted with approval a passage

from Whitaker v. McBride, 197 U.S. 210, 515 (1905)

—which, the Court noted, involved “a small island.

in a non-navigable river,” 227 U.S. at 245—stating

that

the Government, as original proprietor, has the

right to survey and sell any lands, including

islands in a river or other body of water; that if

it omits to survey an island in a stream and re-

fuses, when its attention is called to the matter,

to make any survey thereof, no citizen can over-

rule the action of the Department, assume that

the island ought to have been surveyed, and pro-

ceed to occupy it for the purposes of homestead

or preemption entry.

22? U.S. at 245.

Three years later, the Court applied its rationale

in Scott v. Lattig to a virtually identical situation in

Moss v. Ramey, supra. Moss involved a question of

ownership of a 120-acre island in the Snake River.

The Court explained that “(t]he descriptive terms in

the patents embraced the lots abutting on the river,

as shown on the plat, but not. this [unsurveyed ]

island lying between the lots and the thread of the

Stream.” 2389 U.S. at 546. The Court distinguished

’ The Court distinguished Grand Rapids & 1. R.R. v. Butler,

159 U.S. 87 (1895), on the ground that “the so-called island”

in question appeared to be “a low sand bar” that was in fact

submerged land, and _ it distinguished United States V.

Chandler-Dunbar Water Power Co., 209 U.S. 447 (1908), on

the ground that the islands in question were “little more than

rocks rising very slightly above the level of the water” that

Nor"

were treated as part of the streambed. See Scott, 227 U.S.

at 244,

Moss from situations involving submerged lands,

noting that the island was of “stable formation.”

Ibid. Accord Texas vy. Lowisiana, 410 U.S. 702, 7138

(1973); Mission Rock Co. v. United States, 109 F.

768, 769-770 (9th Cir. 1901), aff'd, 189 U.S. 391

(1903).

The Court’s decisions in Moss v. Ramey and Scott

v. Lattig laid down a clear and certain rule: A fed-

eral patent conveying surveyed riparian lands does

not convey unsurveyed islands in the adjacent stream."

In more modern times, two federal courts of appeals

have followed those decisions and held that a federal

patent of riparian land does not convey unsurveyed

islands. See Ritter v. Morton, 513 F.2d 942 (9th

Cir.), cert. denied, 423 U.S. 947 (1975); United

States v. Severson, 447 F.2d 631 (7th Cir. 1971),

cert. denied, 404 U.S. 1089 (1972). However, two

other courts of appeals (in addition to the Tenth

Circuit) have ruled that Scott is not controlling and

have reached a contrary result. See Wolff v. United

States, 967 F.2d 222, reh’g denied, 974 F.2d 702

(6th Cir. 1992); Bourgeois v. United States, 545

I’.2d 727 (Ct. Cl. 1976).

The conflict is a serious one because it places in

opposition the two courts of appeals—the Ninth Cir-

cuit and the Tenth Cirecuit—that embrace the “eleven

contiguous Western States” (FLPMA §$103(0), 43

U.S.C. 1702(0)) and that most commonly face ques-

tions of public land law. Moreover, the various

courts have addressed the issue in fundamentally

different ways:

30th before and after this Court’s decisions, state supreme

courts followed the rule set out in those cases. See Pode Vv.

Rollwitz, 199 P. 688 (Mont. 1921); State v. Nolegs, 139 P.

943 (Okla. 1914); Steinbuchel v. Lane, 51 P. 886 (Kan. 1898).

a. In the first of the appellate decisions cited

above, United States vy. Severson, the United States

brought suit to quiet title to portions of an island

and a former island, comprising about 275 acres, in

the Wisconsin reach of the Mississippi River. The

defendants claimed that they had received title to

those unsurveyed islands as a consequence of the

grant of riparian land. The district court ruled that

the United States owned the islands, 309 F. Supp.

915 (W.D. Wis. 1970), and the Seventh Circuit af-

firmed, 447 F.2d 631 (1971).

The Seventh Circuit agreed with the district court’s

determination that the islands were in existence at

the time the patent was issued and that the scope

of the patent’s conveyance presented a question of

federal law. 447 F.2d at 633-634. The Seventh Cir-

cuit concluded that the controlling legal principles

were set out in this Court’s decision in Scott, see 447

I'.2d at 635, stating:

Applying the explanations in Scott v. Lattig

to our present case, the unsurveyed islands, exist-

ing at the time of statehood, remained the prop-

erty of the United States, and although at the

time of the patents, Wisconsin law operated to

pass title to the riverbed to the patentees, Wis-

consin law could not and the patents did not

convey to the patentees the unsurveyed islands.

Ibid. See also Blask vy. Sowl, 309 F. Supp. 909

(W.D. Wis. 1967) (ejectment action involving the

same property).

b. In the next case, Ritter v. Morton, an owner

of land along the Idaho reach of the Snake River

claimed ownership of three unsurveyed islands rat

ing in size from .84 to 8.99 acres. The district

ruled that the riparian owner was entitled

islands because they were “east of the water course

of the Snake River, which constitutes the actual

boundary of the land conveyed by the patent.” See

513 F.2d at 945. The Ninth Circuit reversed that

ruling. Jd. at 949-951.

The Ninth Circuit held that federal law governed

the issue, 513 F.2d at 946, and it concluded that this

Court’s decision in Scott v. Lattig was “directly

applicable to our case, both for its legal statements

and for its factual similarity,” 27d. at 948. The Ninth

Circuit ultimately concluded, based on the “totality”

of the factual record, that the United States held

title to the islands.’

® Although the Ninth Circuit reached the correct result, it

misunderstood Scott’s holding. The court correctly recognized

at the outset of its discussion that the water course itself,

rather than the surveyor’s meander lines, normally defines

the riparian boundary of a fractional lot. 513 F.2d at 946.

See, e.g., Schurmeir, 74 U.S. (7 Wall.) at 286-287. As the

Ninth Circuit noted, sometimes “special circumstances” dic-

tate treating meander lines as a boundary. It concluded that

Scott had invoked that principle and treated a meander line

as a “strict boundary” that excluded islands between that

line and the thread of the river. 513 F.2d at 948. Applying

that interpretation of Scott, the Ninth Circuit evaluated the

riparian owner’s claim in terms of the location of the meander

line and concluded, based on the “‘totality” of the record, that

the United States held title to the islands. Jd. at 949-951.

Scott, however, did not treat meander lines as a “strict

boundary” in deciding that the unsurveyed islands were pub-

lic lands. See 227 U.S. at 244 (noting that the riparian

owner holds title “to the stream’). It rested on the more

straightforward principle that the government had not sur-

veyed the island and therefore could not be deemed to have

conveyed it. Jd. at 241-242 (“the error in omitting it from

the survey did not divest the United States of the title or

interpose any obstacle to surveying it at a later time’’); id.

at 245 (a citizen cannot “assume that the island ought to

c. The third case, Bourgeois y. United States, in-

volved title to a 6.76-acre island in Michigan’s non-

navigable Jewel Lake. The United States surveyed

the land around Jewel Lake in 1846, and it patented

that land in 1866. The plaintiff purchased a littoral

lot in 1939 as a successor to one of the original pat-

entees. The government surveyed the island in 1958.

It thereafter posted the island as public land, and

the plaintiff brought suit seeking compensation for

a taking by the government, claiming that she re-

ceived the island as a successor to the 1866 patent.

On cross-motions for summary judgment, the Court

of Claims ruled that she was entitled to recover. 545

F.2d at 728-729.

The Court of Claims recognized that the scope of

the 1866 patent presented a federal question and that

this Court held in Scott v. Lattig that the United

States retained title to an unsurveyed island. The

Court of Claims distinguished Scott, however, on the

ground that it involved a navigable river. The court

stated that when disputes arise over the beds of non-

navigable waterways, “federal law looks to the law

of the state in which the land lies.” 545 F.2d at 730

(citing Oklahoma vy. Texas, 258 U.S. 574, 594-595

(1922)). The court concluded:

Given the choice between the navigable water

island cases [e.g., Scott] and the non-navigable

water bed cases, the best analogy is the non-

navigable water bed law. To reach this result

have been surveyed, and proceed to occupy it for the purposes

of homestead or preéemption entry”). At bottom. the Ritte,

case, like Scott, involved unsurveyed islands, and the Ninth

Circuit was correct in following Scott, even if it misunder

stood Scott’s rationale.

we concentrate on the fact of accessibility, par-

ticularly with reference to the time of the grant.

545 F.2d at 731 (emphasis in original). The court

reasoned that if the United States conveys the shores

of a non-navigable body of water without preserving

a means of access to an unsurveyed island, the United

States’ rights should be resolved under state law,

which in that case vested ownership in the owner

of the shore. /bid."°

d. The fourth case, Wolff v. United States, con-

fused the issue still further. The plaintiffs claimed

title to a .90-acre unsurveyed island in Arbutus Lake,

located within the State of Michigan. They based

their claim on an 1871 patent that conveyed littoral

land. The district court concluded that the plaintiffs

owned the island, 770 F. Supp. 1205 (W.D. Mich.

1991), and the Sixth Circuit affirmed, 967 F.2d 222,

reh’g denied, 974 F.2d 702 (1992).

The Sixth Circuit concluded that the scope of the

federal patent should be evaluated according to the

law of the State in which the lands lie. 967 F.2d at

224 (citing, among other cases, Oklahoma v. Texas,

supra; Whitaker v. McBride, supra; and Hardin v.

Jordan, 140 U.S. 371, 384 (1891)). The court dis-

tinguished Moss v. Ramey and Scott v. Lattig on the

basis that they involved much larger islands and that

by virtue of its reliance on Whitaker v. McBride, that th

Same principles would apply in the case of an island in non-

navigable waters. Scott, 227 U.S. at 244-245. As the Court

later recognized in Moss, the controlling issue is whether the

land mass is an island of “‘stable formation” and whether the

government “treat[s] it as public land,” 239 U.S. at 546—

not whether the island is located in navigable or non-navigable

waters.

it was therefore reasonable to conclude that the United

States did not intend to convey them. The court saw

“no reason to suppose that the United States intended

to retain the island” in Arbutus Lake, and it there-

fore ruled that, under Michigan law, the island passed

to the riparian owners. 967 F.2d at 226. It con-

cluded, contrary to the Court of Claims’ decision in

Bourgeois, that the same result would obtain whether

the waterway was navigable or non-navigable. /d.

at 226 & n.3."

3. As the foregoing discussion indicates. this

Court’s clear pronouncements in Moss v. Ramey and

Scott vy. Lattig, although adhered to by the Seventh

and Ninth Circuits, have been eroded by recent deci-

sions of other courts of appeals, and the law govern-

ing unsurveyed islands has now fallen into serious

disarray. The Tenth Circuit’s decision in this case

confuses the matter still further. As we explain be-

low, that court failed to appreciate three fundamental

principles that govern federal conveyances of public

' The government petitioned for rehearing in Wolff. but the

Sixth Circuit reaffirmed its prior ruling. 974 F.2d 702, 703-

706 (1992). The court also distinguished Sev. rson, Ritter,

and a prior Sixth Circuit case, United States v. Boyd, 458

F.2d 1252 (1972). The court of appeals concluded that

Severson involved islands that “were large enough relative

to the patented littoral lots to create an inference that the

United States did not intend to divest itself of the islands

when it conveyed the littoral land.” 974 F.2d at 705. It

distinguished Ritter, which involved islands comparable in

size to the Lake Arbutus Island, on the ground that the

“islands had been left unsurveyed due to a surveyor’s error.”

[bid. And it distinguished Boyd, which cited Scott v. Lattigq

approvingly, on the ground that “the failure to survey the

island was a mistake” and that the island “might have been

of some value to the government.” Jbid.

land to private parties: (a) Congress has the sole

power to determine the conditions under which public

lands shall be conveyed; (b) Congress has consistently

specified that public land cannot be conveyed into

private ownership until the land has been identified

and marked in accordance with the government’s rec-

tangular survey system; and (c) if there are ambi-

guities over the scope of the conveyance, they are

resolved in favor of the sovereign. The practical

effect of the court’s decision is to convey public land

to private parties who did not pay for its purchase.

a. Since the Nation’s beginnings, Congress has had

exclusive power over the public domain. The Framers

of the Constitution explicitly granted Congress that

power through Article IV of the Constitution, which

provides in pertinent part:

The Congress shall have Power to dispose of

and make all needful Rules and Regulations re-

specting the Territory or other Property belong-

ing to the United States.

U.S. Const. Art. IV, § 3, Cl. 2.”

As this Court has explained, Article IV grants

Congress “plenary power” to retain and dispose of

public lands. Utah Div. of State Lands vy. United

States, 482 U.S. 193, 201 (1987). Accord, e.g., Cali-

fornia Coastal Comm’n v. Granite Rock Co., 480 U.S.

'2 That principle predated the Constitution. The Continental

Congress recognized in 1780 that unappropriated lands ceded

to the United States “shall be granted and settled at such

times and under such regulations as shall hereafter be agreed

on by the United States in Congress assembled, or any nine

or more of them.” 18 J. Continental Cong. 915 (1780). See

also 26 J. Continental Cong. 277 (1784).

972, 580 (1987): Gibson v. Chouteau, 80 U.S. (13

Wall.) 92, 99 (1871). Both the Executive and Judi-

cial Branches are obligated to respect Congress’s di-

rections with regard to grants of public lands. See,

g., Lee Wilson & Co. v. United States, 245 U.S. 24.

82 (1917); Easton v. Salisbury, 62 U.S. (21 How.)

126, 431 (1858).

This Court has accordingly recognized that the

construction of a public land grant rests on federal

law. The Court articulated that principle in United

States v. Oregon, 295 U.S. 1 (1935). stating:

The laws of the United States alone control the

disposition of title to its lands. * * * The con-

struction of grants by the United States is a fed-

eral not a state question, * * * and involves the

consideration of state questions only insofar as

it may be determined as a matter of federal

law that the United States has im} liedly adopted

and assented to a state rule of construction as

applicable to its conveyances.

Id, at 27-28. Accord California v. United Stat. 8.

U.S. 273, 278-283 (1982): Hughes v. Was]

389 U.S. 290, 292-293 (1967).

b. Congress has provided that private parties may

acquire legal ownership of public lands through a

federal patent, “which, under the laws of Congress,

passes the title of the United States.” Gibson vy.

Chouteau, 80 U.S. (13 Wall.) at 102; see Wileow vy.

Jackson, 38 U.S. (13 Pet.) 498. 516-517 (1839).

Since the framing of the Constitution. Congress has

consistently followed the practice—first laid down

by the Continental Congress in the Land Ordinance

of 1785—of requiring that public lands be surveyed

before they are conveyed by patent to private

parties.”

This Court recognized the significance of the sur-

vey requirement as early as 1827, explaining that

publie lands ‘are first surveyed, then advertised at

public auction, and then, whatever remains unsold

at public auction, is offered at private sale to the

first applicant, at stipulated prices.” Chotard v.

Pope, 25 U.S. (12 Wheat.) 586, 588 (1827); see

Eldred vy. Sexton, 86 U.S. (19 Wall.) 189, 195

(1873): Brown’s Lessee v. Clements, 44 U.S. (3

How.) 650, 663 (1845). The Court has consistently

required compliance with the congressionally pre-

scribed mechanism for sale, stating:

No portion of the public domain, unless it be in

special cases not affecting the general rule, is

open to sale until it has been surveyed and an

approved plat of the township embracing the

land has been returned to the local land office.

Buxton v. Traver, 130 U.S. 232, 235 (1889). The

Court has accordingly held in a variety of contexts

that, until surveyed, a tract of public land remains

unidentified, and therefore not subject to sale or dis-

position. See United States v. Wyoming, 331 U.S.

440, 443-444 (1947); United States v. Northern Pac.

R.R., 311 U.S. 317, 344 (1940); United States v.

Morrison, 240 U.S. 192, 199-201 (1916); United

States v. Montana Lumber & Mfg. Co., 196 U.S. 5738,

13 See, e.g., Act of May 18, 1796, ch. 29, § 4, 1 Stat. 466;

Act of Apr. 24, 1820, ch. 51, § 1, 3 Stat. 566; Act of Sept. 4,

1841 (General Preemption Act), ch. 16, §10, 5 Stat. 455;

Act of May 20, 1862 (Homestead Act), ch. 75, § 1, 12 Stat.

392; Act of Mar. 3, 1891, ch. 561, § 13, 26 Stat. 1100.

—

900, 506-507 (1980) (title to school sections does not

vest in the State until surveyed )."

Congress adopted the requirement that a survey

must precede the sale to promote a rational and uni-

form policy for disposition of public lands. As Con-

gress recognized from the outset of public land sales,

completion of a survey prior to sale provides cer-

tainty with respect to the lands actually conveyed,

reduces boundary disputes, and promotes evenhanded

distribution of public lands among the private settlers.

See C.A. White, supra, at 11. A survey is an indis-

pensable first step in disposition because it deter-

mines and marks the boundaries of the lands that are

available for sale. As the Court has explained: “A

survey of public lands does not ascertain boundaries:

it creates them.” Cox y. Hart, 260 U.S. 427, 436

(1922) (emphasis in original).

Federal patents specifically rely on the official sur-

vey to locate and define exactly what upland the

federal patent conveys. See Horne v. Smith, 159 U-S.

40, 45 (1895) (“The patent conveys only the land

which is surveyed, and when it is clear from the plat

and the surveys that the tract surveyed terminated

at a particular body of water, the patent carries no

land beyond it.) ; accord Niles vy. Cedar Point Club.

175 U.S. 300, 305-306 (1899). In addition, the sur-

vey ascertains the precise number of acres purchased,

which the United States must know at the time it

'* In the past, Congress occasionally allowed private parties

to enter public lands prior to survey. Even then, a settler who

entered the land could obtain legal title only th rough a patent,

and the settler could not obtain a patent until the government

completed a survey of the settled lands. See, e.g., Scott v.

Lattig, 227 U.S. at 240-241; C.A. White, supra, at 100,

132, 155.

issues the patent in order to determine the total price

for the land and to ensure compliance with statutory

acreage restrictions. |

c. The principle that the survey defines what land

is conveyed is especially significant in the light of

the federal rules governing the construction of fed-

eral patents. This Court has repeatedly recognized

the established rule that land grants are con-

strued favorably to the Government, that noth-

ing passes except what is conveyed in clear lan-

guage, and that if there are doubts they are

resolved for the Government, not against it.

Watt v. Western Nuclear, Inc., 462 U.S. 36, 59

(1983); see, e.g., Andrus v. Charlestone Stone Prods.

Co., 436 U.S. 604, 617 (1978); United States v.

Union Pac. R.R., 353 U.S. 112, 116 (1957); Caldwell

v. United States, 250 U.S. 14, 20 (1919): Northern

Pac. R.R. v. Soderberg, 188 U.S. 526, 530 (1903);

United States vy. Arredondo, 31 U.S. (6 Pet.) 691,

728 (1832). Thus, because federal patents rely on

the official survey to identify the conveyed land, a

federal patent cannot grant private parties unsur-

veyed land.

The Court’s decisions in Moss vy. Ramey and Scott

v. Lattig recognize and apply that principle. As those

cases indicate, a federal patent that conveys riparian

land but fails to mention unsurveyed islands in the

'’ Congress has traditionally sold public lands at a specified

price per acre. See Rev. Stat. § 2357 (1875 ed.). In many

instances, Congress has imposed limitations on the total

acreage that may be conveyed to each qualifying entryman.

See, e.g., Act of May 20, 1862 (Homestead Act), ch. 75, 12

Stat. 392 (limiting homestead grants to 160 acres); ef. Bryant

V. Yellen, 447 U.S. 352, 368-369 (1980) (discussing acreage

limitations under the reclamation laws).

adjacent stream is not “ambiguous.” The patent, as

a matter of federal law, simply does not COnVeY the

unsurveyed land. That has been the consistent under-

standing of the Executive Branch since 1824. See.

e.g., BLM, Manual of Surve ying Instructions § 3-122

(1973): mma S, Pe Le rson, 59 Pub. Lands Dec. 566

(1911); C.A. White, supra, at 81 (quoting 1824 co)

respondence from the Commissioner of the General

Land Office to the Surveyor General): see also id. at

98 (quoting similar 1839 correspondence). Indeed,

the precise terms of the patents involved here gave

the patentees no reason to believe that the patents

included the unsurveyed islands."

Thus, the patents under which respondents clain

are not ambiguous with respect to title to the islands.

The court of appeals thought differently, App., infra,

3a, but that supposed ambiguity should have led the

court to adhere to “the established rule that land

grants are construed favorably to the Government,”

Western Nuclear, 162 U.S. at 59, and to hold that

the United States retained title to the unsurveyed

islands. The court of appeals instead erroneously

concluded that in the “select area” of controversies

over the extent of a riparian patent, “federal law di-

s a court to look to state law to resolve the dis-

The patents, which were issued under the Act of April 24,

1820, as amended, each conveyed a fractional surveyed section

that was identified by its rectangular survey coordinates and

the contained acreage. The patents conveyed the land for

et price per acre and measured the surveyed acreage to

within hundredths of an acre. Because the unsurveyed island

(which have since been determined to range in size from 7 to

67 acres) had not been meandered at that time. they could not

have been included in the measured acreage. Thus. the

patents indicated that each patentee paid for and received

pecific amount of land that did not include any unsurveved

islands in the adjacent stream.

pute.” App., infra, 9a. The court mistakenly relied

on a series of past decisions that addressed the spe-

cial rules that apply to ownership of submerged

lands. See ibid.

The States have an historically rooted sovereign

interest in submerged land beneath inland navigable

water, which becomes property of the States upon

their admission to the Union. See, e.g., Utah Div. of

State Lands, 482 U.S. at 195-198. Congress has ac-

cordingly adhered to special principles respecting

title to inland submerged land, which are embodied

in the Equal Footing Doctrine, see ihid., and reflected

in the Submerged Lands Act of 1953, 48 U.S.C.

1301 et seg. But as this Court has explained, those

principles are not applicable to islands. The Court

stated in Tewvas vy. Louisiana, 410 U.S. 702 (1973):

It is the unquestioned rule that States enter-

ing the Union acquire title to the lands under

navigable streams and other navigable waters

within their borders. * * * But the rule does

not reach islands or fast lands located within

such waters. Title to islands remains in the

United States, unless expressly granted along

with the stream bed or otherwise. That was the

express holding of Scott v. Lattig, supra.

Id. at 713 (citations elided). Although the Texas

decision addressed islands in navigable waters, the

same distinction applies in the case of islands in non-

navigable waters, where the States have no claim

under the Equal Footing Doctrine to ownership of the

streambed. See Scott v. Lattig, 227 U.S. at 244-

245."

7 As Texas V. Louisiana indicates, an issue may arise in a

particular case whether the land masses in question are truly

islands of “stable formation” and not simply temporarily

—

4. Congress is free to alter the established rule

that the United States retains title to unsurveyed

islands. Significantly, Congress has done so in only

one limited respect. In 1976, Congress authorized the

Secretary of the Interior to convey unsurveyed islands

to States or political subdivisions. explicitly adding

that “[t]he conveyance of any such island may be

made without survey.” FLPMA $211, 43 U.S.C.

1721. Congress’s creation of that express and limited

exception—involving only conveyances to government

entities—demonstrates Congress’s understanding of

the continued vitality of Moss vy. Ramey and Scott y,

Lattig. The court of appeals’ decision in this case

departs from that understanding and provides an

unauthorized windfall to riparian land owners. This

Court should review that decision and restore cer-

tainty and predictability to this important body of

law.

exposed portions of the streambed. See Moss v. Ramey, 239

U.S. at 546. The BLM made that factual inquiry in this case,

and the IBLA, the district court, and the court of appeals

all agreed that the lands in question are islands. Because they

are islands, they should be treated like other uplands, and

they are not governed by the special rules that apply to sub-

merged lands. See ibid.: Scott V. Lattig, 227 U.S. at 244;

Mission Rock Co. y. United States, 109 F. at 769-770.

‘

APPENDIX A

: 19QS

rT)

A] re R

[THA \ >

tiffs claim ownership of the lands through patents

granted by the United States; the United States con-

tends that the “islands” remained public lands fol-

lowing the execution of the patents. The case origi-

nated in the Interior Board of Land Appeals (IBLA),

which ultimately ruled in favor of the government.

Plaintiffs then filed suit in federal court. The district

court reversed the IBLA’s decision, granting sum-

mary judgment in plaintiffs’ favor. The government

now appeals. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

I. BACKGROUND

In 1889 and 1891, Peter Crutchfield and George

House surveyed the area surrounding the land masses

in question (in shorthand, the “islands’”). The sur-

veyors described each island in their field notes and

identified them on the plats prepared from their notes.

Crutchfield and House never meandered the islands,

however, so that the islands remained officially un-

surveyed. The United States patented the surveyed

land adjacent to the Colorado River, incorporating

by reference the relevant plats and field notes. Plain-

tiffs now claim ownership of these islands through

the chain of title from these patents.

In 1982 the Bureau of Land Management (BLM)

announced that it would survey nine islands along

the same stretch of the Colorado River. The BLM

determined that, although those nine islands existed

at the time of the original survey, they had not yet

been meandered. The BLM announced in 1987 that

it would file in its Colorado office the survey plats

that included the islands, indicating that the BLM

believed that the islands belonged to the federal

government.

Several individuals protested the proposed filings,

asserting ownership of the islands deriving from the

patents to the lands adjacent to the river. The Colo-

rado State Director of the BLM dismissed the pro

tests, asserting that the United States owned the

islands because they were previously unsurveyed.

Plaintiffs claiming ownership to six of the nine

islands appealed to the IBLA.' The parties then

entered into a number of stipulations before the Ad-

ministrative Law Judge (ALJ). Under thes stipu-

lations, the parties agreed that the surveys were per-

formed properly, that this portion of the Colorado

River was non-navigable, and that the reason these

six islands were not originally surveyed was that

they were of little value. After a hearing. the ALJ

ruled in favor of plaintiffs, holding that the islands

“passed with the patent to the uplands adjacent to the

parcels.” On appeal, the IBLA reversed the ALJ’s

decision. It reasoned that the United States was au-

thorized to survey the lands because the islands were

well-defined bodies of public land omitted from th

original survey.

Plaintiffs appealed to federal court, asserting sub-

ject matter jurisdiction under the Administrative

Procedure Act, 5 U.S.C. §§ 701-706. The same stipu-

lations that had been placed before the IBLA were

put into evidence in district court. While accepting

the IBLA’s factual findings, the district court. re-

' Because persons claiming ownership to three of the island

did not appeal to the IBLA, those islands are not a subject of

this action.

versed the IBLA’s decision. The court concluded that

the land masses were islands, that state law should

govern the construction of the patents, and that state

law vested title in plaintiffs, 824 F.Supp. 996.

The government now appeals to this court, alleging

that the district court erred in failing to apply the

following rules of law: a patent from the United

States does not pass title to an island existing when

the survey was made; unsurveyed land cannot be con-

veyed; government grants must be clear and unam-

biguous; and the government cannot be bound by

estoppel.

Il. STANDARD OF REVIEW

This case results from an administrative proceed-

ing. As a reviewing court, our task is to determine

the legal principles underlying the rights of riparian

land owners against the United States. Because the

legal determination does not depend on the agency’s

interpretation of a statutory provision, cf. Chevron,

U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83,

81 L.Ed.2d 694 (1984), we review these questions of

law de novo, see Kapcia v. INS, 944 F.2d 702, 705

(10th Cir.1991); United Transp. Union v. Dole, 797

F.2d 823, 828 (10th Cir.1986). We review the

[BLA’s factual findings deferentially, upholding the

findings as long as they are supported by substantial

evidence in the record as a whole. See Arkansas v.

Oklahoma, 503 U.S. 91, 108, 112 S.Ct. 1046, 1060,

117 L.Ed.2d 2389 (1992); Monfort, Inc. v. NLRB,

965 F.2d 1538, 1540 (10th Cir.1992).

As we noted earlier, the parties agreed to a num-

ber of stipulations. While this court will honor stip-

ulations regarding factual issues, see, e.g., Vallejos

v. C.E. Glass Co., 583 F.2d 507, 510-11 (10th Cir.

1978), “[i]t is well-settled that a court is not bound

by stipulations of the parties as to questions of law,”

Dimidowich v. Bell & Howell, 803 F.2d 1473, 1477

n. 1 (9th Cir.1986).

il. THE EQUAL FOOTING DOCTRINE

Before addressing whether the patents granted

title in the islands to plaintiffs’ predecessors in in-

terest, we must determine whether the islands passed

to Colorado when it became a state in 1876. If the

islands passed to Colorado when it entered the Union,

the United States government cannot now survey

the lands as its own.

The equal footing doctrine is grounded in the idea

that new states enter the Union with the same rights

as the original states. Pollard’s Lessee v. Hagan,

44 U.S. (3 How.) 212, 230, 11 L.Ed. 565 (1845)

(“The new states have the same rights, sovereignty,

and jurisdiction . . . as the original states.”): see

also Utah Div. of State Lands v. United States, 482

U.S. 193, 195-97, 107 S.Ct. 2318. 2320-21, 96 L.Ed.2d

162 (1987). In Pollard’s Lessee, the Supreme Court

held that ‘“[t]he shores of navigable waters. and the

soils under them, were not granted by the Constitu-

tion to the United States, but were reserved to the

states respectively.” Pollard’s Lessee, 44 U.S. (2

How.) at 230. Because a new state enters the Union

on “equal footing”’ with the original states. it acquires

title to the lands under the navigable waters within

its borders. /d.; see also Texas Vv. Lowsiana, 410 U.S.

702, 713, 93 S.Ct. 1215, 1221, 35 L.Ed.2d 646 (1973).

Therefore, if these islands are in a navigable part

of the Colorado River and are part of the stream

bed,” they passed to the state in 1876.

The parties have stipulated, however, that these

islands lie in a non-navigable portion of the Colorado

River. The equal footing doctrine simply does not

cause land in non-navigable waters to pass from the

federal government to the state. Consequently, the

State of Colorado did not acquire the islands in 1876,

and the federal government held the islands as public

land following Colorado’s entry into the Union.

IV. THE PATENTS

We next review whether plaintiffs hold title to the

land by virtue of the patents that the United States

government gave to plaintiffs predecessors in inter-

est. Of course, if the federal government intended

* The Supreme Court has refined the rule that lands under-

lying navigable streams belong to the states. Islands that are

fast dry land and not part of the bed or stream do not pass

to the states. Scott v. Lattig, 227 U.S. 229, 244, 38 S.Ct. 242,

244, 57 L.Ed. 490 (1913); see also Texas, 410 U.S. at 713, 93

S.Ct. at 1221 (reaffirming the holding in Scott); Moss +.

Ramey, 239 U.S. 538, 546, 36 S.Ct. 183, 184, 60 L.Ed. 425

(1916) (“It was fast, dry land, and neither a part of the bed

of the river nor land under water, and therefore did not pass

to the state of Idaho on her admission into the Union.”). The

IBLA found that the land masses were islands which were

fast dry land. Consequently, the land masses would not have

passed to the state in 1876 even if the river had been

navigable.

* We emphasize that the questions of whether the land

passes to the state and whether it passes under the patent

are analytically distinct. In their briefs, the parties conflate

these issues, often using the law governing the passage ot

land to the state to analyze rights under the patents. The

to retain the islands as public land, then the islands

remain the property of the United States. See Okla-

homa v. Texas, 258 U.S. 574, 594-95, 42 S.Ct. 406.

414, 66 L.Ed. 771 (1922) (“If by ... the terms of

its patent [the government] has shown that it in-

tended to restrict the conveyance . . ., that intention

will be controlling.”). The government’s intention

controls the disposition of land granted by govern-

ment patent; thus, the federal government is not

bound by its mistakes. Scott, 227 U.S. at 241-42,

Supreme Court, though, has clearly used different modes of

analysis for the two situations. See, €.g., Oklahoma v. Texas.

258 U.S. 574, 591-92, 42 S.Ct. 406, 413, 66 L.Ed. 771 (1922)

(although the river was not navigable and therefore title did

not pass to the state upon admission to the Union, the state

can claim parts of the bed “incidental to its ownership of

riparian lands on the northerly bank”): United States v.

Chandler-Dunbar Water Power Co., 209 U.S. 447, 451, 28

S.Ct. 579, 580, 52 L.Ed. 881 (1908) (analyzing “whether the

title remains in the state or passed to the defendant with the

land conveyed by the patent”): Hardin ». Shedd, 190 U.S.

908, 519-20, 23 S.Ct. 685, 685, 47 L.Ed. 1156 (1903) (explain-

ing that the state never owned the land even though the courts

look to state law to construe the patent).

Of course, this distinction does not mean that the state

cannot convey title to lands that it has vained through the

equal footing doctrine. See, e.g., United States ”». Mission

Rock Co., 189 U.S. 391, 406, 23 S.Ct. 606, 609, 47 L.Ed. 865

(1903). For example, states own lands under navigable

streams under the equal footing doctrine. Some states auto-

matically grant title in that land to the riparian landowners.

See, e.g., Shedd, 190 U.S. at 519, 23 S.Ct. at 685 (“When land

under navigable water passes to the riparian proprietor, along

with the grant of the shore by the United States, it does not

pass by force of the grant alone, because the United States

does not own it, but it passes by force of the declaration of

the state which does own it that it is attached to the shore.’’).

33 S.Ct. at 243; Grand Rapids & I.R. Co. v. Butler,

159 U.S. 87, 94, 15 S.Ct. 991, 993, 40 L.Ed. 85

(1895) (‘“‘[M]istakes, of course, do not bind the

government.’ ”’) (quoting Mitchell v. Smale, 140 U.S.

406, 413, 11 S.Ct. 819, 822, 35 L.Ed. 442 (1891) ).

Nothing in the record clearly reveals the govern-

ment’s intent with respect to patents affecting the

islands at issue. There is no indication that the gov-

ernment intended to part with the islands; however,

the evidence also does not support the contention that

the government’s failure to survey the islands demon-

strated its desire to retain them. First, the patents

are silent as to whether the government continued

to view the islands as public lands or instead wished

to convey the property. Second, the parties have

stipulated that the reason that the government did

not originally survey the islands was that they were

of little value, suggesting that the government had

no affirmative intent to retain or dispose of the

islands. Finally, the geographic positioning of the

islands does not clearly show the government’s intent.

The government patented all of the area around the

island. Because the river surrounding the islands is

non-navigable, the government had no access to the

islands. As the government points out, however, it

had other means to reach the islands, such as con-

demnation. We therefore find no government intent

expressed by the patents either to retain or to dis-

pose of the islands.

Given the ambiguity of the grants, the government

asks this court to subject the patents to “the general

rule of construction that any ambiguity in a grant

is to be resolved favorably to a sovereign grantor—

‘nothing passes but what is conveyed in clear and

explicit language.’” Great N. Ry. Co. v. United

States, 315 U.S. 262, 272, 62 S.Ct. 929, 532, 86 L.Ed.

836 (1942) (quoting Caldwell v. United States, 250

U.S. 14, 20, 39 S.Ct. 397, 398, 63 L.Ed. 816 (1919));

see also Watt v. Western Nuclear, Inc., 462 U.S. 36,

99, 103 S.Ct. 2218, 2231, 76 L.Ed.2d 400 (1983).

But the Supreme Court has not used that interpretive

technique when examining the effect of a patent on

islands in adjacent waters. Instead, the Court has

stated that when the government’s intention is am-

biguous, “it will be taken to have assented that its

conveyance should be construed .. . according to the

law of the state in which the land lies.” Oklahoma,

258 U.S. at 595, 42 S.Ct. at 414.

Of course, “ ‘[t]he question as to the extent of this

federal grant, that is, as to the limit of the land

conveyed, . . . is necessarily a federal question.’ ”’

Bonelli Cattle Co. ». Arizona, 414 U.S. 313, 320, 94

S.Ct. 517, 523, 38 L.Ed.2d 526 (1973) (quoting Borax

Consol., Ltd. v. Los Angeles, 296 U.S. 10, 22 56

S.Ct. 23, 29, 80 L.Ed. 9 (1935)), overruled in part

by Oregon ex rel. State Land Bd. v. Corvallis Sand

& Gravel Co., 429 U.S. 363, 378, 97 S.Ct. 582, 590,

50 L.Ed.2d 550 (1977). Nevertheless, in this select

area of cases, federal law directs a court to look to

state law to resolve the dispute. See Corvallis Sand

& Gravel Co., 429 U.S. at 378, 97 S.Ct. at 590 (stat-

ing that the “Court has consistently held that state

law governs issues relating to” riparian lands which

did not pass under the equal footing doctrine) ; Chan-

dler-Dunbar, 209 U.S. at 452-53. 28 S.Ct. at 581

(applying Michigan law): Whitaker v. McBride, 197

U.S. 510, 511-12, 25 S.Ct. 530, 531. 49 L.Ed. 857

(1905) (“It is the settled rule that the question of

etnias laaianamme it ines lee

10a

the title of a riparian owner is one of local law.’’) ; *

Shedd, 190 U.S. at 519, 23 S.Ct. at 685; Grand

Rapids, 159 U.S. at 92-94, 15 S.Ct. at 992-93 (analyz-

ing Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808,

35 L.Ed. 428 (1891), and applying Michigan law

to land grant); Jordan, 140 U.S. at 384, 11 S.Ct. at

812 (“In our judgment the grants of the government

for lands bounded on streams and other waters, with-

out any reservation or restriction of terms, are to be

construed as to their effect according to the law of

the state in which the lands lie.’’).° Moreover, in cases

similar to the one at bar, two other circuits have in-

terpreted the same Supreme Court opinions as direct-

‘Although the government was not a party in Whitaker,

that case illustrates the consistency with which state law is

applied in this area.

> Compare Moss, 239 U.S. at 538, 36 S.Ct. at 183, where the

Supreme Court first found that the islands did not pass to the

State of Idaho and determined that “[t]he claim that the

island passed under the patents is .. . ill-founded” without

looking at state law. /d. at 546, 36 S.Ct. at 184.

Moss presents a different situation than our case. In Moss,

the islands were left unsurveyed by mistake. /d. “The field

notes and plat represented the survey as extending to the

river, but made no mention of the island.” /d. at 545, 36 S.Ct.

at 184. In such a case, the Supreme Court found that the

government intended to retain the island. /d.; accord Wolff

»v. United States, 967 F.2d 222, 225 (6th Cir.) (reading Moss

as representing “the familiar concept that the intent of the

United States, express or implied, governs the scope of the

land grants’), reh’g denied, 974 F.2d 702 (1992). This read-

ing of Moss is further reinforced by placing it in its chrono-

logical context. The Court’s decision in Oklahoma, 258 U.S.

at 574, 42 S.Ct. at 406, coming six vears after Moss, once

again applied state law to determine the rights of a riparian

land owner. /d. at 595, 42 S.Ct. at 414.

ing the court toward state law. See Wolff v. United

States, 967 F.2d 222. 234 (6th Cir.), reh’q denied,

974 F.2d 702 (1992); Bourgeois v. United States.

945 F.2d 727, 731 (Ct.Cl.1976) (° ‘TWle hold that

if the intent of the grantor is ambiguous and the

Government grants shoreland along non-navigable

waters, it also passes title to islands according to the

law of the state in which the property is located.”’)

W e therefore look to Colorado State law to ascribe

rights in the property at issue here.

‘The general rule of law followed in Colorado is

that a deed conveying land bordered by a non-naviga-

ble stream includes the bed to the center.” More v.

Johnson, 193 Colo. 489, 568 P.2d 437, 439 (1977):

see also United States v. Goodrich Farms Partner-

ship, 947 F.2d 906. gl 10t h Cir.1991): People v.

Emmert, 198 Colo. ] 37, 597 P.2d 1025. 1027 (1 979)

This rule conforms to the « common “i rule for non-

navigable waters. See Jordan, 140 U.S. at 383-84.

S.Ct. at 812. We therefore conclude that Colorado

would follow the common law rule for islands in the

river, which holds that “all grants bounded upon a

river not navigable by the common law entitle the

grantee to all islands lying between the main-land

and the center thread of the current.” Jd. at 384.

11 S.Ct. at 812; see also Grand Rapids, 159 U.S. at

92-93, 15 S.Ct. at 992-93. The government does not

dispute that the islands fall between the mainland

and the center thread of the « ‘urrent and has there-

® But Sé¢ Ritter . Morton. 513 F.2d 942. 946 (9th Cir.).

cert. denied, 423 U.S. 947. 96 S.Ct. 362, 46 L.Ed.2d 22]

(1975); United States v. Sever on, 447 F.2d 631, 634-35 (7t}

Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 716, 30

L.Ed.2d 731 (1972).

12a

fore waived the issue. Thus, applying Colorado law,

we hold that plaintiffs own the islands in question.

V. ATTORNEY’S FEES

Plaintiff’s also ask for attorney’s fees under the

Equal Access to Justice Act (EAJA), 28 U.S.C.

§ 2412(d)(1)(A). That provision allows courts to

award fees to a “prevailing party” in an action

brought by or against the United States in any court

having jurisdiction of that action, unless the court

finds that the position of the United States was sub-

stantially justified or that special circumstances make

an award unjust.” Jd. A party must seek the fee

award “within thirty days of final judgment in the

action.” Jd. § 2412(d)(1)(B).

In this context, a final judgment “means a judg-

ment that is final and not appealable.” /d. § 2412(d)

(2)(G). In other words, “[t]he 30-day EAJA clock

begins to run after the time to appeal . . . has expired.”

Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct.

2157, 2162, 115 L.Ed.2d 78 (1991). We must there-

fore determine whether we can reach the merits of the

attorney’s fees question even though either party could

appeal this decision (i.e., by applying for certiorari to

the Supreme Court).

In Melkonyan, the Supreme Court left open the

question of whether a party can ask for fees “at any

time up to 30 days after entry of judgment, and even

before judgment is entered, as long as he has achieved

prevailing party status.” /d. at 103, 111 S.Ct. at

2165. The Court, however, has subsequently resolved

this issue. In Shalala v. Schaefer, US. ;

113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), the district

court had never entered the judgment by filing a

ee ee

l3a

separate document as required by Fed.R.Civ.P. 58, so

the time for filing an appeal of the district court’s

decision technically had not run. The Court held that

the plaintiff was nevertheless entitled to file for attor-

ney’s fees. Jd. at , 113 S.Ct. at 2632. Schaefer

therefore makes clear that a plaintiff may ask for

attorney’s fees even when the time for appeal has not

elapsed. Thus, we hold that plaintiffs’ request before

this court is timely, and we will examine the merits

of their attorney’s fees claim.

To repeat, plaintiffs are not entitled to attorney’s

fees if the government’s position is “substantially

justified.” In this context, “substantially” means

“Justified in substance or in the main’—that is,

justified to a degree that could satisfy a reasonable

person.” Pierce v. Underwood, 487 U.S. 552, 565,

108 S.Ct. 2541, 2554, 101 L.Ed.2d 490 (1988); see

also Gatson v. Bowen, 854 F.2d 379, 380 (10th Cir.

1988). While the ruling of other courts are not dis-

positive of whether the government’s position is sub-

stantially justified, ‘a string of losses can be indica-

tive; and even more so a string of successes.” Pierce,

487 U.S. at 569, 108 S.Ct. at 2552.

In this matter, the law of this circuit was unclear

before this case. In addition, other circuits had dis-

agreed over whether state law applied under these

circumstances. Compare Wolff, 967 F.2d at 222, and

Bourgeois, 545 F.2d at 727, with Ritter, 513 F.2d at

942, and Severson, 447 F.2d at 631. We therefore

hold that the position of the United States was sub-

stantially justified in this case, and plaintiffs are not

entitled to attorney’s fees under the EAJA.

VI. CONCLUSION

Federa) law instructs the court to apply state lav

to ascribe title under the circumstances of this case.

Because Colorado law would vest title in plaintiffs, w

hold that plaintiffs are the rightful owners of the

islands. The government’s position in this case wa

substantially justified, however, so plaintiffs are not

entitled to attorney’s fees under the EAJA. The de-

cision of the district court is therefore AFFIRMED.

15a

APPENDIX B

[ Loe 10 |

UNITED STATES

DEPARTMENT OF THE INTERIOR

SUREAU OF LAND MANAGEMENT

COLORADO STATE OFFICE

Lakewood, Colorado 80215-7076

[Jul. 28, 1988]

Certified Mail

Kenneth Balcomb, Esq.

P.O. Drawer 790

Glenwood Springs, Colorado 81602

Dear Mr. Baleomb:

This letter responds to the protest you submitted for

the following: Exxon Corporation and Battlement

Mesa dated March 8. 1988; Edward H. Koch. Ed-

ward N. Juhan, Anthony Zarlengo, Flora Dere, Wal-

ter B. Lemon and Roberta Lemon, dated March 8,

1988; and Richard E. Looney, Daisy B. Looney and

Jan Ertl, dated March 19, 1988.

All of the above protests have common issues concern-

ing surveys executed by this office along the Colorado

River in the reach between DeBeque to New Castle.

Colorado. I have, therefore. joined them in this re-

sponse,

Your STATEMENT IN SUPPORT OF PROTEST

FOR EDWARD H. KOCH. EDWARD N. JUHAN

AND ANTHONY ZARLENGO, FLORA DERE,

WALTER B. LEMON AND ROBERTA A. LEMON

Was the source document in preparing this response

l6a

to the above protestants, and fully explains the fol-

lowing decisions concerning all of the protests.

Decision

The Bureau of Land Management (BLM) hereby

dismisses the protests to acceptance of the surveys of

nine islands. The United States claims ownership

of the islands because they are islands not previously

surveyed which were in existence at the time of the

original survey of the surrounding lands. At the time

of the original survey, it was the Government’s policy

to avoid the expense of surveying islands, as it was

not cost effective. That policy also contemplated that

when surveying such islands becomes cost effective,

the Government will do so. We note also that BLM

surveyors examined cther islands at the same time

and decided not to claim those islands because of in-

sufficient evidence to support a finding of their exist-

ence at the time of the original survey.

The following are more detailed responses to the

protestants’ allegations.

1. I hereby deny your clients’ protests of the filing

of the plats of survey in Townships 6 and 7 South,

tange 95 West and Township 8 South, Range 96

West, Sixth Principal Meridian, Colorado, all ap-

proved on September 21, 1987.

2. I hereby deny your clients’ protests of the Investi-

gative Report on the Omitted Islands in Township 6

South, Range 92 West, Township 7 South, Range 96

West, Township 8 South, Range 96 West, Sixth Prin-

cipal Meridian, Colorado, dated April 10, 1987.

3. I hereby affirm your protest of the Report on

Navigability of Colorado River in the reach of De-

17a

Beque to New Castle, Garfield County, Colorado, un-

dated, but transmitted to the Colorado State Director

by memorandum dated November 20, 1984. to the

extent that the position of the Bureau of Land Man-

agement is that this stretch of the Colorado River is

nonnavigable.

I call your attention to the provisions relating to an

appeal from this response, as they are set out in Sub-

part E of the Department’s regulations at 43 CFR

4.400 et seq. (October 1, 1984), including particu-

larly 43 CFR 4.410 and 4.411. If an appeal is taken

or claimed, the Notice of Appeal must be filed with

this office so that the case file can be transmitted to

the Interior Board of Land Appeals, U.S. Department

of the Interior. To avoid summary dismissal on the

appeal, there must be strict compliance with the regu-

lations, and the Appellant will have the burden of

proving that error was committed in the Bureau sur-

vey. We also call your attention to 43 CFR 4.413.

which requires the Appellant to serve a copy of the

Notice of Appeal and of any statement of reasons.

written arguments, or briefs on the Regional Solici-

tor, Rocky Mountain Region, U.S. Department of the

Interior, P.O. Box 25007, Denver Federal Center.

Denver, Colorado 80225.

If any appeal is taken, you are allowed 30 days from

the date of receipt of this letter to file your Notice of

Appeal with this office.

Sincerely,

S/ Neil F. Morek

NEIL F. Morck

State Director

18a

APPENDIX C

LOGO |

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

HEARINGS DIVISION

6432 Federal Building

Salt Lake City, Utah 84158-1194

(Phone: 801-524-5344 )

December 21, 1989

IBLA &9-]

(CO-942, Group 719)

Protest on Survey

BATTLEMENT MESA, INC.,

EDWARD H. KocH. EDWARD N. JUHAN, and AN-

THONY ZARLENGO, WALTER B. LEMON, and Rob-

ERTA LEMON, RICHARD E. LOONEY, DAISEY B.

LOONEY and JAN ERTL. and FLORA DERE, APPEL-

EXXON CORPORATION and

LANTS

BUREAU OF LAND MANAGEMENT, RESPONDENT

DECISION

Child, Judge.

a a

19a

Statement of the Case

Appeal from decision of Colorado State Director,

Bureau of Land Managament (BLM) dated July 28,

1988, denying protests concerning a BLM tract seg-

regation survey in T. 6 S., R. 95 W.: T.7S., R. 95

W.; and T. 8 S., R. 96 W., Sixth Principal Meridian,

Colorado. Appellants claim ownership and allege

BLM erred in claiming by resurvey “islands” in the

Colorado River. The State Director concluded that

the “islands” were in existence at the time of the

origina! surveys, but were “omitted” from those

surveys.

Appellants requested a hearing which was granted by

Order of the Interior Board of Land Appeals en-

tered March 14, 1989.

The Issues:

The issues to be here determined are:

A. Were the parcels in question “islands” at the

time of the original survey?

B. Were the parcels in question “omitted” from the

original survey?

C. Are the parcels in question property of the

United States?

The matter came on regularly for hearing at Glen-

wood Springs, Colorado, on the 13th, 14th, 15th and

16th days of June 1989. At the outset of the hear-

ing, the parties placed into the record a 16 page

stipulation (Stipulation) duly executed by the attor-

neys for the parties, which stipulation was not

marked as an exhibit, but rather was incorporated

into the file.

20a

The parties were requested to submit post hearing

proposed findings of fact and conclusions of law and

briefs in support of their respective positions and

have done so. To the extent proposed findings or con-

clusions are consistent with those entered herein,

they are accepted; to the extent they are not so con-

sistent, they are rejected.

Statement of the Facts

This case involves an approximately 15 mile stretch

of the Colorado River roughly midway between Glen-

wood Springs and Grand Junction, Colorado, herein-

after referred to as “the reach.” This reach flows

between Rifle and DeBeque, Colorado. The parties

have stipulated that the Colorado River at the reach

in question is a non-navigable stream. (Stipulation,

III, D, 6)

Over a period of approximately three centuries com-

mencing about 500 years ago the reach was influ-

enced by an occurrence high in the adjacent moun-

tains commonly referred to as the little ice age. Dur-

ing that period there was considerable glacial erosion

caused by expansion of the Alpine Glaciers in the

Rocky Mountain. This glacial erosion yielded large

amounts of sediment, the onslaught of which tended

to widen the Colorado River channel. This action

provided a relatively high percentage of sediment

transported as bed material which was fairly coarse

as opposed to sediment suspended in the flowing

waters which is generally made up of medium sand

to silt and clay. The net effect of this little ice age

was to cause a channel in the vicinity of the reach

that was braided in its morphology.

CL —

2la

Since the cessation of the little ice age in the late

1700’s, the onslaught of coarse sediment has been no

longer available for transport and the Colorado River

at that point became a stream much more typical of

what one would find in the midwest or elsewhere.

The tendency of the River in modern times is to try

to narrow some of the braiding which was present

two or three hundred years ago.

The bottomland of a stream valley, referred to as the

floodplain, is formed of alluvium, being the sediment

| that has been deposited over time by the stream and

) the surface of the floodplain is generally conformable

to the level of the two-year flood.

The land masses within the reach have matured

Within the River to a degree that they have a mor-

phology very similar to the floodplain and an eleva-

tion identical thereto. The Same processes that

formed the floodplain itself formed these land masses

within the reach, but these land masses have been

separated from the floodplain by an anabranch of the

stream, i.e., a secondary channel of a multiple thread

stream.

In the vicinity of the reach, the Colorado River can

be said to be in a state of semi-disequilibrium, still

showing the after effects of the glaciation. The tend-

ency over time is for the anabranches of the channel

to be resolved and the land masses within the river

to become attached to the floodplain to the end that

the river will become a single thread stream. Thus,

this reach of the Colorado River js in the process of

healing itself from an unstable stream to a stable.

single-thread fluvial system.

Typically these land masses are not the result of water

cutting a channel, but rather they are the result of

22a

sediment being caught by an obstruction of some sort

on the river bed followed by depositions of material

on the lee side of that obstruction which deposition

grows over time until, through a process of accretion,

the land mass achieves a height or elevation compara-

ble to the floodplain adjacent to the river.

The process of the anabranches of the river resolving

themselves and the land masses becoming affixed to the

floodplain at the sides of the river would tend to be

accelerated by the dynamics of water diversion or stor-

age upstream, or other reductions of flood peaks with

the resulting reduction of annual scarring in the sec-

ondary channel. Accumulated sediment being allowed

to remain, with vegetation resulting, would increase

the pace of the healing process. Such accelerating

factors have occurred in the instant case. (Tr. 119,

122, 147, 156-159, 360-373)

In the latter fifth of the nineteenth century, the Fed-

eral Government undertook to survey the lands across

which this reach of the Colorado River flowed. These

original surveys were conducted pursuant to contracts

which required the individual surveyors to post a bond

for at least double the estimated amount to have been

due upon the completion of the contract. Upon the

individual surveyor’s certification of completion of his

survey, his field notes were examined and approved

by the United States Surveyor General and a plat

thereof was prepared by the Department of the In-

terior and certified by the United States Surveyor

General to be strictly conformable to the field notes

of the individual surveys. None of these surveys were

approved until they were found to have been in exact

23a

accordance with the instructions governing them.

(Stipulation, III, B, 1)

It is stipulated by the parties that these original sur-

veysS were accepted as having been completed in exact

conformance with the applicable instructions and that

they were neither fraudulent nor erroneous. (Stipu-

lation, III, D, 5 and 7)

The first survey touching upon this reach of the

Colorado River was performed by Deputy Surveyor

Williamson in October, November and December of

1883 and January of 1884. U.S. Deputy Surveyor

Henry E. Simon performed the next such survey in

March and April of 1885. Again in October and No-

vember of 1886 and October of 1887 the third such

original survey was performed by U.S. Deputy Sur-

veyor Benjamin F. Clark. None of these three sur-

veys involved the uplands now owned by appellants

herein or the land parcels subject of this proceeding.

In the Williamsen survey only small portions of the

River were involved and even those portions were not

meandered. Surveyor Simon meandered only the right

bank of the River and made no mention of “islands”

in his field notes. Simon’s Survey was examined in

the field, reported as having been correctly surveyed

and accepted as having been conducted in exact ac-

cordance with the applicable instructions by the Com-

missioner of the General Land Office on March 2,

1887. The original plat of this township surveyed by

Simon, nonetheless, reflects the existence of four

“islands.” Subsequent patents to these lands were

issued by the United States without reference to the

—————————

24a

meandered bank of the River, any “islands” or the

River itself. Finally, Deputy Surveyor Clark in fol-

lowing his instructions meandered both banks of the

Colorado River as it crossed the Townships he was

charged with surveying and being instructed as he

was to meander all islands in the River, he meandered

five islands and noted the existence of approximately

eleven topographical objects lying between the me-

ander lines of the River. (Stipulation, III, B, 2, 3

and 4).

The fourth and fifth original surveys touching upon

this reach of the Colorado River were performed by

U.S. Deputy Surveyors Peter Churchfield during the

period of October and November 1889 and George W.

House in June of 1891. These last two surveys in-

volved the uplands now owned by the appellants and

among others, the lands parcels subject of this pro-

ceeding. The Churchfield surveys were governed by

the 1855 Manual of Surveying Instructions, The In-

struction of June 1, 1864, The Instructions of May

3, 1881, The Annual Instructions of July 25, 1884,

and Special Instructions dated July 22, 1889. The

House survey was governed by the 1890 Manual of

Survey Instruction and Special Instructions dated

April 20, 1891. (Stipulation, III, B, 5 and 6)

The Churchfield strvey resulted in two islands being

meandered (neither is among the parcels here in

dispute) and notation of approximately fifteen topo-

graphical objects lying between the meander lines of

the river. Although Surveyor House noted four land

masses between the meander lines of the River he

meandered no islands.

nese eae ee

25a

Fairly summarized it can be said that the instructions

governing the original surveys required all islands

between the surveyor established meander lines of the

Colorado River to be meandered. Those instructions

also required the deputy surveyor to take field notes

in which he was to exercise “the utmost ae?"

to pass no object of topography * * * without giving

a particular description.” The surveyor was _ in-

structed to “make a faithful, distinct and minute

record of everything done and observed” and to pre-

sent as far as possible a full and complete topographi-

cal description of the country surveyed and to render

sketches thereof in relation to the survey lines he

was establishing. (Stipulation, III, C) That the sur-

veyors did note these topographical factors is demon-

strated by the fact that many land masses or parcels

in the river showed upon the original plats although

they were not meandered as islands in the surveys.

With respect to the parcels here contested, the field

notes of the U.S. Deputy Surveyors indicate the fol-

lowing:

Parcel 9—a “bar or low islands.” (Exhibit G-3)

Parcel 10—a “long low island, overflowing and

unfit for cultivation.” (Exhibit G-3)

Parcel 14—a “low overflowing island.” (Exhibit

G-28)

Parcel 20—A “large island.” (The original plat

made from the survey and field notes of Deputy

Surveyor House suggests this parcel may have

been three parcels in 1891) (Exhibit G-29)

Parcel 20A—a “small island.” (Exhibit G-29)

Parcel 21—an “island.” (Exhibit G-29)

26a

Parcel 22—a “gravel bar.” (Exhibit G-29)

(Stipulation, III, D)

Due to mineral development in the area and respond-

ent’s classification of the area as an “area of critical

environmental concern,” the BLM began an investiga-

tion in 1982 to determine the ownership of many “‘is-

lands” in the Colorado River between Grand Junction

and Glenwood Springs. (Respondent’s Posthearing

Brief, pp. 1, 2)

In the investigation, the respondent investigated 22

parcels which had not been meandered in the original

survey and of those 22 parcels, claimed ownership to

9 parcels, 6 of which are subject of this action. (Tr.

10) Ownership of these six parcels is claimed by re-

spondent under the following theory:

* * * These islands were omitted from the origi-

nal surveys in 1889 and 1890 because they could

not be economically surveyed. Because unsur-

veyed, omitted land may not be legally trans-

ferred from Federal ownership, these six islands

remain public lands owned by the United States.

(Respondent’s Posthearing Brief, p. 1)

BLM issued its decision accepting its survey per-

formed between 1982 and 1987 which in effect asserts

Federal ownership of the nine parcels, including the

six parcels subject of this action. Appellants, as own-

ers of the riparian uplands adjacent to said six

parcels, protested the said decision issued by the Colo-

rado State Director of BLM and appealed from a

denial of that protest.

2/a

At the request of appellants, the matter was referred

by the Interior Board of Land Appeals to the Hear-

ings Division for a hearing and this decision which

shall be final for the Department of the Interior absent

a timely appeal to the Interior Board of Land Appeals.

Discussion

The parties have agreed to the following legal princi-

ples which shall be controlling for purposes of this

case:

A Grantee of land bordering a non-navigable me-

andered river takes title to all submerged lands

between the mainland and the thread of the river,

unless expressly reserved by the United States.

In the absence of an express reservation of sub-

merged unsurveyed lands, such a reservation can-

not be implied.

The original Government Land Office plats and

field notes of the areas surveyed, having been in-

corporated by reference in the original patents,

are a part of the description of the lands granted.

A meander line is a traverse of the margin of a

permanent natural body of water which follows

the contour of such a body at mean high water.

Meander lines are not run as boundaries, but are

used to define the sinuosities of the river and to

ascertain the quantity of land remaining after

segregation of the water area.

An “Island” is a permanent land mass rising from

the bed of a meanderable body of water above the

mean high water mark, separated from the main-

land by a perpetual channel.

(Stipulation, VI, p. 14)

28a

Were the parcels in question “islands” at the time of

the original survey?

Messrs. Churchfield and House made note of the par-

cels in question, each of which appeared on the origi-

nal plats prepared from their survey notes. Although

they were charged and instructed to “meander” (in

effect, “survey’’) all islands in the Colorado River as

it crossed the lands they were surveying, they did not

meander these parcels. Cursory inspection of the

valley bottom through which this reach of the Colorado

River runs would impress any rational person or sur-

veyor that this river was in a state of constant change

and the parcels within the River unstable and subject

to being altered or eliminated at the whim of the river

during any seasonal runoff. An examination of the

many exhibits prepared and offered by the respondent

cannot but impress even the casual observer that these

parcels have gone through dramatic shifts, alterations

and changes since the original surveys in 1889 and

1891. Single parcels have divided and multiple par-

cels have united. None of the parcels has shown itself

to have the capacity for constancy since it was noted

by the surveyors and placed on the original plat. (See

particularly Exhibits G-3, G-5, G-28, G-29)

Well could the original surveyors have recognized the

futility of meandering such shifting protrusions of

the river bed. Well could the issuers of patents to the

uplands in the vicinity of these parcels have acknowl-

edged that these unstable parcels properly should pass

with the stream bed of this non-navigable river. Un-

der no fair interpretation of the evidence could these

parcels be said to be fast, dry lands at the time of the

original survey.

29a

The definition of “island” accepted by the parties to

this action which we must apply requires a “perma-

nent land mass,” separated from the mainland by a

“perpetual channel.” The parcels here in question

have shown themselves to lack permanency. Geological

evidence presented by the respondent testified to the

fact that this reach of the Colorado River is in a state

of “Semi-disequilibrium tending to straighten itself

and remove land parcels from the course of its cur-

rent. Although the court in Ritter v. Morton, 513

F.2d 942, 950 (9th Cir. 1975) viewed morphological

evidence to be irrelevant, that case is distinguished

from the present case, since it would appear that the

court in Ritter was able to apply an elementary school

definition of “island” and did not concern itself with

the permanent nature of the land mass in question.

Likewise with respect to the channel which separates

the land mass from the mainland, ours, by reason of

the definition agreed to by the parties, is a more

specific inquiry that that generally confronting the

courts in the cases which have been cited. We here

must ask ourselves, was the channel perpetual? An

elementary school definition of “island” is not gen-

erally so restricted. Webster’s I] New Riverside Uni-

nished its employees by the United State Government,

defines Perpetual as deriving from the Latin “*ner-

petuus, continuous perpes, uninterrupted 1. Lasting

for eternity: never ending * * *”

That a channel must be of water when speaking of an

island in a river, lake or ocean cannot be gainsaid.

Simply put, no channel would separate these parcels

from the mainland (floodplain or upland) when the

parcel was inundated by water during times when

30a

the river was at flood state. Neither would the parcels

be separated by a channel from the mainland when

the river was at low stage which would occur sea-

sonally or in times of drought. If, as respondent

claims, a channel is a channel even when dry, it is

nonethless then a dry channel and fails to separate

the parcel from the upland.

The term channel is used in many ways. The drip

molding on an automobile is a channel as is the rain

gutter on a house. Respondent’s reliance on cases dis-

cussing intermittent or seasonal water courses as

channels whether flowing or dry does not shed light

upon when is an island! In order for a channel to

separate a land mass in a river from the uplands or

mainland, it must contain water throughout its length.

In order to meet the definition of island agreed to by

the parties, such a channel must do so perpetually.

The parcels here in question were not permanent land

masses nor were they separated from the mainland by

perpetual channels. Under the definition to which the

parties are bound, the parcels subject of this action

were not islands at the time of the original surveys

in 1889 and 1890 nor were they at the time of the

hearing.

Were the parcels in question ‘“‘omitted” from the origi-

nal survey?

The proposition of law upon which respondent relies

is stated in the lead note in Oliver Wheeler v. Bureau

of Land Management, 108 IBLA 296 (1989):

An island, whether located in navigable or non-

navigable waters, that is omitted from a survey

remains public domain and may be surveyed and

disposed of by the United States.

———————<—<—_sstiC“<;2Z7273}>PSCé«‘<:|

3la

The two essential elements to be found to effect re-

tained ownership by the United States under this

proposition are (a) that a present island existed in its

present form as “fast dry land” at the time of the

original survey, and (b) error in omitting it from

the original survey. See Scott v. Lattig, 227 U.S. 229

(1913) and Moss v. Ramey, 239 U.S. 538 (1916). In

Scott and Moss the Court found the parcels in ques-

tion to have existed as islands at the time of the

original survey as fast dry lands in the same form

as that existing at the time of the hearing. Since the

surveyors were charged with surveying islands and

recording same in their field notes and failed to so

survey or to make any reference to same in their

field notes and the islands failed to appear on the

original plats, the Court held the omission of these

| islands from the survey to have been in error. Par-

| ticularly was this so in Ritter v. Morton, supra, where

the Court noted that since the original surveyor in-

cluded in his survey a much smaller island in an ad-

joining section, but failed to make any note whatso-

ever of the island at issue, “In all probability, he

| intended to return and survey the islands at a later

date.” The Court held under these circumstances that

it was error to have omitted the island in question

from the survey, wherefore title thereto remained in

the United States. Supra at pages 950 and 951.

hitter, Scott and Moss, supra, contain references to

circumstances where omission of land parcels within

rivers from original survey does not serve to cause

title thereto to remain in the United States. Such

circumstances may include decision that the island

was too small or of too little value. United States vy.

Lane, 43 S.Ct. 236 is cited by the Circuit Court in

Ritter, supra, at page 950, for its enumeration of

32a

factors which might excuse the survey of islands, the

omission of which from the survey would not consti-

tute error and title to which would presumably pass

with riparian uplands. Such factors include the omit-

ted lands locality, remoteness and value and the exist-

ence of any difficulties out of proportion to any

possible gains in surveying.

In the case at bar the original surveyors were in-

structed to survey or meander all islands in the Colo-

rado River and to carefully note all topographical

features. Some islands within the river were me-

andered. The land parcels in question were not sur-

veyed or meandered. However, they were noted in the

field notes and appeared on the original plats. The

parties have stipulated that the original surveys here

in question were accepted as having been completed in

exact conformance with the instructions which gov-

erned them and that the original surveys were neither

fraudulent nor erroneous.

It thus appears that Surveyors Churchfield and

House committed no error in omitting these parcels

from their original surveys. It is apparent that they

concluded that the parcels in question lacked the per-

manency essential to qualify as islands. It is fur-

ther apparent that they recognized the futility of

meandering these parcels, since a meander performed

on Tuesday may well be unrecognizable on Wednes-

day, given the instability of the Colorado River at

this juncture.

The parcels, subject of this action were not islands,

omitted from the original survey; rather, they were

included in the survey, but excluded as islands there-

from.

Are the parcels in question property of the United

States?

The cases cited by the respondent have been carefully

reviewed and are generally distingiushed from the

case at bar. The definition of “island” stipulated to

by the parties governs this case. Here the original

surveyors were charged with surveying all islands

in the Colorado River along the reach in question.

Here the parcels in question were noted in the field

notes of the surveyors and appeared on the original

plats made from those field notes. Other parcels

along the reach were surveyed as islands. Finally,

the parties here acknowledge the original surveys

were accepted as having been completed in exact con-

formance with the instructions which governed them

and were neither fraudulent nor erroneous.

Under the circumstances of this case, the original

surveyors were justified in viewing the parcels in

question not to be islands, but rather part of the

shifting bed of the Colorado River. As such, they

passed with the uplands on issuance of patent thereto.

See Whitaker v. McBride, 197 U.S. 510 (1905).

Now having observed the demeanor of the witnesses

and having weighed the credibility thereof, there are

here entered the following:

Findings of Fact

1. Factual findings stated elsewhere in this decision

are here incorporated by reference as though again

specifically restated at this point.

34a

2. Appellants Walter B. Lemon and Roberta A.

Lemon hold title to lands along the south bank of

the Colorado River in Section 25, T. 6 S., R. 95 W.,

of the Sixth Principal Meridian through mesne con-

veyance from the original patents granted by the

United States, which describe the patented acreage

by reference to the official plats of the original sur-

vey of the involved lands. These lands are adjacent

to the lands claims by the Government as Parcel 9

in that section. (Stipulation, p. 3; Exhibit G-3)

3. Appellant Flora Dere holds title to lands along

the north bank of the Colorado River in Section 35,

T. 6 S., R. 95 W., of the Sixth Principal Meridian

through mesne conveyance from the original patents

granted by the United States, which describe the pat-

ented acreage by reference to the official plats of the

origina! survey of the involved lands. These lands

are adjacent to the lands claimed by the Government

as Parcel 10 in that section. (Stipulation, p. 3; Ex-

hibit G-3)

4. Appellant Edward H. Koch holds title to lands

along the north bank of the Colorado River in Section

7, T. 758., R. 95 W., of the Sixth Principal Meridian

through mesne conveyance from the original patents

granted by the United States, which describe the

patented acreage by reference to the official plats of

the original survey of the involved lands. These

lands are adjacent to the eastern portion of the lands

claimed by the Government as Parcel 14 in that sec-

tion. (Stipulation, p. 8; Exhibit G-28)

5. Appellants Richard E. Looney and Daisey B.

Looney hold title to, and appellant Jan Ertl, by vir-

tue of a contract of purchase and sale, asserts an

interest in, lands along the north bank of the Colo-

rado River in Section 7, T. 7 S., R. 95 W., of the Sixth

35a

Principal Meridian through mesne conveyance from

the original patents granted by the United States,

which describe the patented acreage by reference to

the official plats of the original survey of the involved

lands. These lands are adjacent to the western por-

tion of the lands claimed by the Government as Parcel

14 in that section. (Stipulation, p. 3; Exhibit G-28)

6. Appellants Edward N. Juhan and Anthony Zar-

lengo hold title to lands along the south bank of the

Colorado River in Section 7, T. 8 S., R. 96 W., of the

Sixth Principal Meridian through mesne conveyance

from the original patents granted by the United

States, which describe the patented acreage by ref-

erence to the official plats of the original survey of

the involved lands. These lands are adjadent to the

lands claimed by the Government as the northeast

portion of Parcel 20 and Parcels 20-A and 22 in that

section. (Stipulation, p. 4; Exhibit G-29)

7. Appellant Exxon Corporation (Exxon) holds title

to lands along the banks of the Colorado River in

Section 7, T. 8 S., R. 96 W., Sixth Principal Merid-

ian, through mesne conveyance from the original

patents granted by the United States, which describe

the patented acreage by reference to the official plats

of the original survey of the involved lands. These

lands are adjacent to the lands claimed by the Gov-

ernment as the southwestern portion of Parcel 20

and Parcel 21 in that section. (Stipulation, p. 4; Ex-

hibit G-29)

8. Each of the parcels, subject of this action, had

surface areas above the ordinary high water mark

at the time of the original surveys and could there-

for have been meandered.

9. None of the parcels, subject of this action, was

an island at the time of the original survey as that

36a

term is defined by stipulation of the parties. (Stipu-

lation, VI, par. 6, p. 14)

10. The ordinary high water mark, mean high

water line and vegetation line approximate the ele-

vation along the river of the mean annual flow,

which approximates the meander line. (Tr. 394, 417,

502, 514-515, 527-531)

Conclusions of Law

1. The Hearings Division of the Department of the

Interior has jurisdiction of the parties and of the

subject matter of this proceeding.

2. Conclusions of law reached and set forth else-

where in this decision are here incorporated by ref-

erence as though again specifically restated at this

point.

3. The patents to the lands adjoining the Colorado

River in the involved reaches contained no reserva-

tions of the disputed lands to the United States.

4. The patents to the lands adjoining the Colorado

River in the involved reaches incorporate by reference

the Government Land Office plats and field notes of

the areas surveyed.

5. No evidence supports respondent’s contention that

‘“* * * These islands were omitted from the original

surveys in 1889 and 1890 because they could not be

economically surveyed.” Rather the contracts for

survey issued by the Government required the sur-

vey of all islands in the involved reach of the Colo-

rado River.

6. The parcels, subject to this action, were included

in the original surveys and not omitted therefrom.

37a

They were correctly determined at the time of said

surveys not to qualify as islands.

7. For purposes of this case, by reason of the agreed

definition of “island” set forth in the stipulation en-

tered into the record, a land mass rising from the bed

of a meanderable body of water above the mean high

water mark is not an island unless: (a) it is a per-

manent land mass, (b) separated from the mainland

by a perpetual channel.

8. To the extent the 1982-1987 surveys represent the

parcels, subject of this action, to be islands, title to

which was presumably retained by the United States,

they are legally and factually incorrect and the re-

spondent’s decision to so accept said surveys should

be reversed.

9. Title to the thread of the Colorado River passed

with patent to the uplands adjacent to the parcels,

subject of this action.

Order

The parcels subject of this action, to-wit: numbers 9,

10, 14, 20, 20-A, 21 and 22 are not property of the

United States and the respondent has no bona fide

claim thereto. Respondent’s decision to the contrary

is reversed.

Dated: December 20, 1989

s/ Ramon M. Child

RAMON M. CHILD

Administrative Law Judge

38a

Apnpeal In formation

Any party adversely affected by this decision has the

right of appeal to the Interior Board of Land Ap-

peals. The appeal must comply strictly with the reg-

ulations in 43 CFR Part 4 (see enclosed informatio)

pertaining to appeals proced res).

Distribution

Buy Certified Ma

Kenneth Balcomb, Esa.

Robert Noone, Esq

Delaney & Balcomb, P.C

518 Colorado Avenue,

P.O. Drawer 790

Glenwood Springs, Colorado 81602

Lyle kK Rising, Ksq

Robert LD). Comer. sq

Office of the Region Li SOLCIT !

5 Department oO] the Interio)

P.O. Box 25007. Denver Federal Cent,

ley er. Col rado 80225

SYa

APPENDIX D

Loco]

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

INTERIOR BOARD OF LAND APPEALS

1015 Wilson Boulevard

Arlington, Virginia 22203

EXXON CORP.. ET AL

BUREAU OF LAND MANAGEMENT’

[BLA 90-199 Decided February Z21, 199]

\ppeal from a decision of Administrative Law

Judge Ramon M. Child reversing a decision of the

Colorado State Director, Bureau of Land Manag‘

ment, which had dismissed protests LO the acceptance

of surveys of certain islands in the Colorado River,

and concluding that such land vere not island

omitted from the « riginal survevs of the area CO)

942, Group 719

Reversed.

OPINION BY

ADMINISTRATIVE JUDGE HARRIS

The Bureau of Land Management (BLM) appeals

from a December 21, 1989, decision of Administra-

tive Law Judge Ramon M. Child reversing a July 28,

1988, decision of the Colorado State Director. BLM.

, >

ich had dismissed protest o the acceptance of

40a

surveys of certain islands' located in T. 6 S., R. 95

W., T. 7S., R. 95 W., and T. 8 S., R. 96 W., sixth

principal meridian, Colorado, in the reach of the

Colorado River between Rifle and DeBeque, Colorado.

The Judge concluded that the surveyed land masses

(which he designated “parcels’’) were not islands

omitted from the original surveys of the area and,

therefore, were not the property of the United States.

I. Procedural and Factual Background

The original surveys of the particular areas in

question were performed in 1889 and 1891. Deputy

Surveyor Peter Churchfield surveyed T. 6 S., R. 95

W., and T. 7 S., R. 95 W., in October and November

1889, and that survey was accepted on March 12,

1890. Deputy Surveyor George W. House conducted

the survey of T. 8 S., R. 96 W., in June 1891, and

that survey was accepted on February 23, 1892. Al-

though neither surveyor meandered any of the land

masses at issue in this appeal, they identified each

land mass in their field notes and each land mass

' In the protests to BLM, protestants challenged the surveys

as they related to nine islands; however, certain protestants

did not appeal BLM’s dismissal of their protests. In addition,

in its opening appeal brief, BLM indicates that Parcel 20 A

is not being claimed by the United States (BLM Brief at 24

n.7; Tr. 494), as it did at page 18 of its Proposed Conclusions

of Law filed with Judge Child. Nevertheless, in his decision,

Judge Child addressed Parcel 20 A, ruling that it was not an

island. Since it was not asserting title to that parcel, BLM

did not challenge that ruling. For purposes of appeal, only

six land masses, identified in the record as Islands or Parcels

9, 10, 14, 20, 21, and 22, are at issue. They contain 23.68

acres, 66.63 acres, 43.11 acres, 19.51 acres, 7.29 acres, and

7.97 acres, respectively.

4la

appeared on the plats prepared from the field notes.’

The United States patented the surveyed land ad-

jacent to the Colorado River, incorporating by ref-

erence the plats and field notes of the areas surveyed.

In. 1982, BLM commenced an investigation to de-

termine ownership of 22 land masses in the Colorado

River between Glenwood Springs and Grand Junc-

tion, Colorado, including the parcels at issue here.’

After evaluating data from the original survey rec-

ords, railroad survey plats prepared in 1886 and

1919, aerial photography from 1937, 1945 or 1948,

1954, 1978, and 1984, dendrochronology analyses of

samples taken from trees on the various land masses,

and hydrology reports, BLM determined that 9 of the

22 land masses which had not been meandered in the

* Churchfield’s field notes described the land masses, identi-

fied in this case as Parcel 9, located in sec. 25, Parcel 10,

located in sec. 35, T. 6 S., R. 95 W., and Parcel 14, located in

sec. 7, T. 7S., R. 95 W., as a “bar or low island,” a “long low

island, overflowing and unfit for cultivation,” and a “low

overflowing island * * * bar or low island” respectively;

while the House field notes characterized the land masses,

identified in this case as Parcels 20, 21, and 22, located in

sec. 7, T. 8 S., R. 96 W., as a “large island” (the original

plat depicts this parcel as three islands), an “island,” and a

“gravel bar,” respectively. See Judge Child’s Decision at 6,

and BLM Brief, Attachment A.

* The investigation was precipitated by inquiries from local

landowners and oil companies concerning the ownership of

the land masses. Apparently, several of the land masses con-

tain valuable sand and gravel, and oil companies have dis-

covered natural gas and coalbed methane along this reach of

the Colorado River (BLM Brief at 2; Tr. 42-43). This area

has also been classified as an Area of Critical Environmental

Concern due to the existence of wildlife habitat and the area’s

recreational potential (BLM Brief at 2; Tr. 43).

42a

original surveys were islands which existed at the

time of the original surveys and continued to exist

(see Exh. G-27). Based on this investigation, BLM

accepted the surveys of the nine omitted islands per-

formed between 1982 and 1987 and announced in the

Federal Registe, that it would officially file the plats

in the Colorado State Office on a particular date.

Prior to that date, as extended by BLM, various

individuals and corporations protested that proposed

action, alleging ownership of the land masses on the

ground that the parcels were part of the riverbed

which had passed to the original patentees of the

riparian lots based on the original surveys( see, e.9.,

Exh. A, attached to Exh. A-23).

By decision dated July 28, 1988, the Colorado State

Director, BLM, dismissed the protests, stating that

the United States claimed ownership of the land

masses because they were islands omitted from the

original surveys which were in existence at the time

of the original surveys of the surrounding lands

(Exh. G-14).

Certain protestants (claimants) appealed that dis-

missal to this Board and requested a hearing. The

* The claimants and the adjacent parcel(s) which they seek

are: Walter B. and Roberta A. Lemon—Parcel 9; Flora Dere

—Parcel 10; Edward H. Koch—eastern portion of Parcel 14;

Richard E. and Daisey B. Looney and Jan Ertl—western por-

tion of Parcel 14; Edward N. Juhan and Anthony Zarlengo—

northeastern portion of Parcel 20 and Parcel 22; Exxon Corp.

—southwestern portion of Parcel 20 and Parcel 21. See Deci-

sion at 12-13; Stipulation (Stip.) III. A. (1)-(6). Battlement

Mesa, Inc. (BMI), filed a protest in this case asserting title

to the center line of the bed of the river adjacent to riparian

uplands in T. 7 S., R. 95 W., and T. 7 S., R. 96 W. See Exh.

B, attached to Exh. A-23, at 4. It was also an appellant before

43a

Board docketed that appeal as IBLA 89-1. By order

dated March 14, 1989, the Board granted claimants’

request and referred the case to the Hearings Divi-

sion for assignment of an Administrative Law Judge

and issuance of an initial decision, which, absent an

appeal to the Board, would be final for the Depart-

ment.°

The hearing in this case was held on June 13-16,

1989, and included a field trip to view several of the

disputed land masses. However, prior to the hearing,

on June 12, 1989, the parties executed a 16-page pre-

hearing stipulation which was made part of the rec-

ord at the hearing. The stipulated facts included ex-

cerpts from the relevant surveying manuals and

instructions directing surveyors to meander islands

and to note topographical features (Stipulation

(Stip.) III. C.). The parties agreed that “[t]he

surveys of the involved lands were accepted as having

been completed in exact conformance with the In-

structions” (Stip. III. D. 5), and that “[t]he orig-

inal surveys were neither fraudulent nor erroneous”

the Board in IBLA 89-1; however, it is unclear whether BMI

still remains a party here since, at the hearing, claimants’

counsel did not name BMI as one of the parties they repre-

sented. See Tr. 4-6.

5 Prior to issuance of our order, claimants had filed a re-

quest with the Secretary of the Interior that he remove the

case from the Board and assume jurisdiction thereof in ac-

cordance with 43 CFR 4.5. By letter dated Mar. 31, 1989, the

Director, Office of Hearings and Appeals, responded to that

request, informing claimants that the Secretary had declined

to take personal jurisdiction of the appeal, but that he had

ordered that the case be considered on an expedited basis.

Accordingly, the Board has undertaken expedited considera-

tion of this appeal. See Board order dated Oct. 11, 1990.

44a

(Stip. II. D. 7). See also Stip. II. B. 1. Under the

terms of the stipulation, claimants were to prove that

the subject lands were below the ordinary high water

‘mark of the Colorado River at the time of the orig-

inal surveys and thus were a part of the riverbed

(Stip. IV. 1.), while BLM had the burden of proving

that those lands were islands at the time of the orig-

inal surveys (Stip. V. 1.).

The stipulation also embraced various legal issues.

The parties agreed to the following legal definition of

“island”: “An ‘Island’ is a permanent land mass

rising from the bed of a meanderable body of water

above the mean high water mark, separated from the

mainland by a perpetual channel” (Stip. VI 5.). They

also recognized that a legal issue remaining to be de-

termined was “[w]hether at the time of the original

surveys of the disputed lands there was in effect an

official or unofficial policy of the Government not to

survey islands falling within the regular course of

the surveys of public lands” (Stip. VII. 1.).

At the outset of the hearing, claimants stated their

position that the controversy could be resolved as a

matter of law without the necessity for a hearing.

They asserted that although the survey manuals and

instructions mandated the meandering of all islands

encountered while surveying, the original surveyors

had not meandered the disputed land masses; rather

they had merely noted them as topographical fea-

tures. Because BLM had stipulated that the sur-

veyors had exactly complied with their instructions

and that the original surveys were not erroneous,

claimants argued that BLM had, in effect, admitted

that the disputed lands were not islands at the time

of the original surveys (see Tr. 13-25).

45a

Claimants, however, did not request a ruling on

their assertion; rather, they proceeded to call three

witnesses and introduce over 25 exhibits to demon-

strate that the disputed parcels were below the ordi-

nary high water mark of the Colorado River, which

they equated with the mean annual flood level of the

river. BLM presented the testimony of five witnesses

and over 30 exhibits to support its position that the

land masses were islands in existence at the time

of the original surveys, and that the Government’s

policy at the time of the original surveys was not

to survey all islands in the regular course of survey-

ing public land. The parties filed extensive posthear-

ing submissions including proposed findings of fact

and conclusions of law.

Il. Judge Child’s Decision

In his December 21, 1989, decision, Judge Child

framed three issues raised in the ease: (1) whether

the disputed parcels were “islands” at the time of

the original surveys; (2) whether the parcels were

“omitted” from the original surveys; and (3)

whether the parcels were property of the United

States. Then, relying on testimony presented at the

hearing, he recited some geologic history of the area

as it related to the river, adopting the conclusion

that:

In the vicinity of the reach, the Colorado can

be said to be in a state of semi-disequilibrium,

still showing the after effects of the glaciation.

The tendency over time is for the anabranches

of the channel to be resolved and the land masses

within the river to become attached to the flood-

plain to the end that the river will become a

. |

46a

single thread stream. Thus, this reach of the

Colorado River is in the process of healing itself

from an unstable stream to a stable, single-

thread fluvial system.

(Decision at 3).

After accepting the parties’ stipulation as con-

trolling for the purposes of this case, the Judge ad-

dressed each of the identified issues, first determin-

ing that the land masses were not islands at the

time of the original surveys. He explained:

Cursory inspection of the valley bottom through

which this reach of the Colorado River runs

would impress any rational person or surveyor

that this river was in a state of constant change

and the parcels within the [rJiver unstable and

subject to being altered or eliminated at the

whim of the river during any seasonal runoff.

An examination of the many exhibits prepared

and offered by [BLM] cannot but impress even

the casual observer that these parcels have gone

through dramatic shifts, alterations and changes

since the original surveys in 1889 and 1891.

Single parcels have divided and multiple parcels

have united. None of the parcels has shown it-

self to have the capacity for constancy since it

was noted by the surveyors and placed on the

original plat. (See particularly Exhibits G-3,

G-5, G-28, G-29) [.]

(Decision at 8). He found that the evidence failed

to demonstrate that the parcels were fast, dry lands

at the time of the original surveys.

The Judge’s resolution of this issue focused on the

stipulated definition of an island which required a

47a

“permanent land mass’ separated from the main-

land by a ‘perpetual channel’.” Jd. He found that

the disputed parcels lacked permanency because

BLM’s geologic evidence indicated that this reach of

the Colorado River was in a state of “Ts ]emi-dis-

equilibrium which would tend to straighten itself out

and remove land masses from the course of its cur-

rent.” Jd. He distinguished a case cited by BLM,

Ritter v. Morton, 513 F.2d 942 (9th Cir. 1975), on

the ground that the court in Ritter applied an “ele-

mentary school definition” of island “and did not

concern itself with the permanent nature of the land

mass in question.” Jd. at 9.

After citing the definition of “perpetual” in

Webster’s II New Riverside University Dictionary,

1984 ed., as meaning “[l]asting for eternity: never

ending,” he stated that the channels which separated

the land masses from the mainland were not perpet-

ual channels because no channel would separate the

parcels from the mainland when the parcels were

inundated by water when the river was at flood stage,

nor would the parcels be separated by a channel from

the mainland when the river was at a low stage and

the channels were dry. He found that:

In order for a channel to separate a land mass

in a river from the unplands or mainland, it

must contain water throughout its length. In

order to meet the definition of island agreed to

by the parties, such a channel must do so per-

petually.

Id.

He concluded that, under the stipulated definition

of island, the parcels were not islands at the time

of the original surveys or at the time of the hearing.

48a

Judge Child also found that the parcels were not

omitted from the original surveys. He cited prece-

dent holding that omitted islands remain public do-

main and may be surveyed and disposed of by the

United States, but noted that in order for ownership

to be retained by the United States, a present island

must have existed in its present form as fast, dry

land at the time of the original survey, and its omis-

sion from the original survey must have been an

error. He noted that although the surveyors had

meandered some islands in the river, they did not

meander the disputed parce!s; rather, they described

them in their field notes as topographic features. He

also referred to the parties’ stipulation that the sur-

veyors had conducted the original surveys in exact

conformance with the governing instructions and that

those surveys were neither fraudulent nor erroneous.

Judge Child, therefore, found that the original sur-

veyors had committed no error in omitting these par-

cels from their surveys, suggesting that they appar-

ently had “concluded that the parcels in question

lacked the permanency essential to qualify as islands”

(Decision at 11) and had recognized “the futility of

meandering these parcels, since a meander performed

on Tuesday may well be unrecognizable on Wednes-

day, given the instability of the Colorado River at

this juncture.” Jd. In short, he concluded that the

parcels were not islands omitted from the original

surveys, but were properly included in the surveys

as topographical features, not islands.

Finally, Judge Child found that the disputed par-

cels were not property of the United States because

“Tu]jnder the circumstances of this case, the original

surveyors were justified in viewing the parcels in

question not to be islands, but rather part of the

49a

shifting bed of the Colorado River. As such they

passed with the uplands on issuance of patent thereto”

(Decision at 11).°

Thus, Judge Child determined that the 1982-1987

surveys of the disputed parcels were legally and

factually incorrect, and reversed BLM’s decision ac-

cepting the surveys of Parcels 9, 10, 14, 20, 21, and

22 because those parcels were not property of the

United States.

III. Arguments of the Parties

In its opening brief, BLM argues that the Judge

ignored all the facts developed at the hearing con-

cerning the existence of the disputed land masses at

the time of the original surveys and virtually all the

law on omitted islands. BLM asserts that the J udge’s

decision is premised on two erroneous factual find-

ings: (1) the present parcels were not in existence as

islands at the time of the original surveys and (2)

the land masses are not islands because the side chan-

nels do not carry water at all times.

BLM contends that virtually all the evidence demon-

strates that the parcels were, in fact, islands at the

* The Judge also specifically found as facts that each of the

parcels had surface areas above the ordinary high water mark

at the time of the original survey and could have been sur-

veyed, and that “[t]he ordinary high water mark, mean high

water line and vegetation line approximate the elevation

along the river of the mean annual flow, which approximates

the meander lines (Decision at 13). Further, he found as a

conclusion of law that no evidence supported BLM’s conten-

tion that the parcels had been omitted from the original

surveys because they could not be economically surveyed,

noting that the contracts for survey required the survey of

all islands in the involved reach of the Colorado River (De-

cision at 14).

50a

time of the original surveys. It argues that its evi-

dence shows that the parcels were expressly noted in

the original surveyors’ field notes; the parcels were

all shown as islands on the original plats of survey;

each parcel now has one or more trees on it which

predate the original 1889 and 1891 surveys; the par-

cels were fast, dry land at the time of the original

surveys; the parcels are all surrounded today by

permanent channels, except where the channels have

been filled in by the adjacent riparian landowners;

and the size, shape, and location of the parcels today

are in close congruence with those shown on the

original survey plats.

BLM argues that these facts were clearly proven by

the testimony and documentary evidence it introduced,

including the testimony of two geologists: Dr. Waite

R. Osterkamp, an expert in fluvial geomorphology,

who testified by the morphology of the river and par-

cels, and opined that the parcels were all 100 to 200

years old and that their appearance had probably

changed little since the surveys were performed; and

Dr. Gordon C. Jacoby, an expert in dendrochronology,

who discussed the dating of tree bore samples taken

on the parcels and concluded that because each parcel

contained at least one tree predating the original sur-

veys, the parcels had to have been in existence at that

time. BLM also asserts that the testimony of its ex-

perienced surveys, as well as the exhibits it intro-

duced, provide further support for its position. One

of those surveyors, Donald W. Ashbaugh, who con-

ducted the 1982-87 investigation, explained at the

hearing how he reached his conclusion that the parcels

were islands omitted from the original surveys.

5la

BLM discusses each parcel individually, citing the

testimony and exhibits relating to the parcel’s exist-

ence as an island at the time of the original surveys

(BLM Brief at 15-26). It asserts that claimants pro-

duced nothing at the hearing to rebut any of its proof.’

BLM claims that the Judge completely disregarded

all of its uncontroverted evidence. Instead, BLM sub-

mits, the Judge focused solely on small portions of

Osterkamp’s testimony to conclude that the parcels

were impermanent, while ignoring the bulk of that

testimony, including Osterkamp’s expert opinion that

the parcels were in existence as islands in 1889 and

1891.

BLM further argues that the Judge erroneously

concluded that the parcels were not islands because

some of the side channels separating them from the

upland did not have water in them at all times. Ac-

cording to BLM, the existence of the channels today

has relevance only to the extent it sheds light on the

condition: of the parcels at the time of the original

surveys. It argues that a channel is a permanent

7 Instead, BLM argues, claimants’ evidence at the hearing

focused on demonstrating that the parcels were not legally

in existence in 1889 and 1891 because they were completely

submerged by the river during the height of flood stage,

apparently equating the ordinary or mean high water mark

with peak flood waters. While BLM agrees that the parcels

and most other geomorphic features in a fiood plain are

inundated during a flood, it insists that this fact is irrelevant

since the ordinary high water mark of the river has nothing

to do with peak flood waters, but is, instead, the level of the

water during average flow conditions. The Judge agreed with

BLM’s definition of the ordinary or mean high water mark

(see Decision at 13 and note 6, supra), and the meaning of

this term is not an issue in this appeal.

52a

geomorphic feature which frequently conveys water,

but may sometimes be dry, citing legal authority sup-

porting its position, which BLM claims the Judge dis-

regarded. BLM contends that contrary to the Judge’s

assumption, the parties did not intend for the stipula-

tion to mandate that the channel always be filled with

water asserting that if the parties had so intended,

they would have used words explicitly indicating that

the channels must be filled with water at all times.

Furthermore, BLM asserts, if the stipulation meant

what the Judge suggested, there would have been no

reason for a hearing.”

In short, BLM essentially argues that the Judge

erred in concluding that the disputed parcels were not

islands at the time of the original surveys because he

overlooked the unrebutted evidence establishing their

existence as fast, dry land at that time and failed to

recognize that channels separating islands from the

mainland need not always be filled with water. BLM

stresses that it has established that the disputed par-

cels were islands at the time of the original surveys,

and that modern case law supports its ownership of

those islands. BLM requests that its original decision

dismissing the protests and accepting the 1982-87 sur-

veys of those islands be upheld.”

* BLM also asserts that, contrary to the Judge’s conclusion,

it has demonstrated that it was the practice of nineteenth

century surveyors not to survey nonagricultural! land, includ-

ing islands, in the regular course of their surveys.

* Attachment B to BLM’s opening brief consists of a letter

from Jacoby, one of BLM’s witnesses, commenting on the

Judge’s decision. Claimants filed a motion to strike that

attachment on the ground that it was an inappropriate at-

tempt to submit additional evidence after the conclusion of

the hearing. By order dated Apr. 20, 1990, we took that

53a

In its answer, claimants argue that the detailed

stipulation agreed to by the parties conclusively pre-

cludes all of BLM’s arguments and permits no con-

clusion other than that reached by the Judge. They

stress that BLM stipulated that the survey instruc-

tions directed the original surveyors to meander is-

lands and to note topographical features; the involved

surveyors exactly complied with the applicable instruc-

tions; the surveys were neither fraudulent nor errone-

ous; and in order to be an island, the land mass must

be separated from the mainland by a perpetual chan-

nel. Claimants assert that “[i]t is unmeaningful that

either Osterkamp, Jacoby, or even the Supreme Court

would otherwise define an island. The definition used

was taken from the 1864 Instructions to surveyors.

The parties agreed on the definition for the purposes

of this case and the (Judge) found it to be control-

ling’ (Answer at 15).

Claimants contend that the only way BLM could

prove that the parcels were islands at the time of the

original surveys would be to show error in those sur-

veys. Since BLM stipulated that those surveys were

not erroneous, claimants argue that any attempt to

show error would be in defiance of the stipulation and

cannot be allowed. Therefore, they request that the

Judge’s decision be affirmed.

In response, BLM denies that it is attempting to

disclaim the stipulation and states that it fully sup-

ports the stipulation as long as it is read in its totality,

motion under advisement, indicating that we would rule on

it when we addressed the merits of the appeal. Jacoby’s com-

ments on Judge Child’s opinion are irrelevant to our consider-

ation of BLM’s appeal. For that reason, we hereby grant

claimants’ motion to strike Attachment B to BLM’s brief.

See 43 CFR 4.24(a).

S4a

as written, and in light of the fact that it was drafted

by claimants. It contends that the only areas of dis-

pute concern the definition of an island and whether

BLM has stipulated away its case by agreeing that

the original surveys were correctly done. BLM argues

that the definition of island, which comes from old

survey manuals, does not include a sentence requiring

that the perpetual channel contain flowing water at

all times. Furthermore, BLM asserts, claimants’ sug-

gestion that relevant case law should be ignored in

interpreting this definition lacks legal support and

defies common sense.

BLM admits that it agreed that the original surveys

were correctly done, but contends that it did so in

order to eliminate the question of gross error or fraud

as possible legal issues in this case. It asserts that

other provisions of the stipulation clearly indicate that

the existence of the islands and the practice of 19th

century surveyors concerning meandering islands

were very much at issue in the case, citing part of

the stipulation requiring BLM to prove that the lands

were islands at the time of the original surveys (Stip.

V. 1.) and that part which dentified as a legal issue

to be determined whether there existed at the time of

the original surveys an official or unofficial Govern-

ment policy regarding the surveying of islands (Stip.

VII. 1.). BLM argues that there would have been no

need for these stipulations, if it had agreed as claim-

ants allege.

BLM suggests that the stipulation appears to be

both contradictory and ambiguous. Therefore, BLM

asserts, the stipulation may not be relied on as con-

clusive, and the entire record must be reviewed to

determine if it supports the stipulated facts.

55a

BLM contends that it presented evidence explain-

ing that the reason the surveyors followed some of

their instructions (i.c., to note all topographical

features), but disregarded others (1.¢., to survey all

islands) was because surveyors at that time did not

survey islands which were not useful for agricultural

purposes. It further emphasizes that the preponder-

ance of the evidence definitively establishes the exist-

ence of the parcels as islands at the time of the

original surveys, and argues that it would be improper

for the Board to hold that the islands did not exist in

1889 and 1891 solely because of the stipulation.

| IV. Discussion

The Secretary of the Interior is authorized and

obligated “to consider and determine what lands are

public lands, what public lands have been or should

be surveyed, and what public lands have been or re-

main to be disposed of by the United States.” FR. A.

Mikelson, 26 IBLA 1, 8 (1976). In Emma S. Peter-

son, 39 L.D. 566, 567 (1911), this Department held

that the United States has the authority to survey an

island, located in navigable or nonnavigable waters,

omitted from an original township survey if it ap-

pears that at the time of the original survey the island

was a well-defined body of public land. From that time

on, the Department has consistently maintained that

an unsurveyed island, whether located in navigable or

nonnavigable waters, remains public domain, does not

pass with the bed under navigable waters to a state

upon statehood or as an appurtenance to a patent of

riparian land abutting nonnavigable waters, and may

be surveyed and disposed of by the United States.

Mr. & Mrs. Thomas Dekker, 114 IBLA 302, 305-06

(1990); Northern Michigan Exploration Co., 114

S6a

IBLA 177, 186-88, 97 I.D. 171, 175-76 (1990); Olive

Wheeler, 108 IBLA 296, 301 (1989), and authorities

cited therein.

In Scott v. Lattig, 227 U.S. 229, 240-42 (1913),

the Supreme Court applied the same rule to islands in

navigable waters, holding that the omission of an

island from survey does not divest the United States

of title to the island nor interpose any obstacle to

surveying it at a later date if the island existed at

the time of the original survey as fast, dry land above

the mean high water mark. The Court explained that

such an island was not part of the bed of the river

and, therefore, title to it did not pass with the bed

of the river. /d. at 244. See Texas vy. Louisiana, 410

U.S. 702, 713 (1973) (reaffirming the vitality of

Scott v. Lattiq); see also R. A. Mikelson, supra at 9.

We have recently reaffirmed that this rule applies to

isalnds in nonnavigable waters, despite the conflicting

holding in Bourgeois v. United States, 545 F.2d 727

(Ct. Cl. 1977).°° See Mr. & Mrs. Thomas Dekker,

The most critical reasoning flaw in Bourgeois v. United

States, supra, was the attempt to establish a dichotomy be-

tween unsurveyed islands found in navigable bodies of water

and those located in nonnavigable bodies of water by, in

effect, ascribing a varying “intent” to retain or convey de-

pending on whether or not the water body was navigable.

Thus, if the island is located in a navigable body of water,

the island is deemed to retain its public domain status (under

the theory that nothing passes except by intent) whereas if

it is located in a nonnavigable body it is deemed to pass as an

appurtenance of the riparian patent (if state law so provides)

unless a contrary intent is clearly expressed. Thus, the

Bourgeois theory would postulate that when a surveyor fails

to survey an island in a navigable stream he does so knowing

that his failure to survey the island will not abrogate the

title of the United States to the island, but when he fails to

survey an island in a nonnavigable stream he does so because,

supra at 306-07: Northern Michigan Exploration .o..

upra at 186, 97 L.D. at 175-76; Olive Wheeler, supra

at 501.

Claimants contend that none of the evidence pre-

sented at the hearing nor any of the case law cited by

BLM has any bearing on this case because the stipu-

lation mandates the conclusion that the parcels were

not islands at the time of the original surveys. We

must reject this contention.

A stipulation is a contract to which the general

rules of contract interpretation apply. United States

vy, it is not an island worthy of survey and the

Linited States should make no claim thereto.

This duality of approach might be understandable if, in

fact, navigability determinations were a function of a cadas-

‘al surveyor; they are not. See State of Montana, 11 IBLA

3.8, 80 T.D. 312, 314 (1973) (“The surveyors have no au-

thority to make such [navigability] determinations”). More

over, in manv cases it would be literally impossible to make

navigability determinations as of the date of survey, for the

simple reason that the critical date for navigability determi

nations is the date of admission of the State into the Union

ind numerous surveys were completed prior to that date. In

this case, the basis for the agreement that the Colorado River

nonnavigable throughout the reach in question is an opinion

of the Colorado Attornev General, rendered on Mar. 30, 1950,

that “there are no navigable waters of the United States in

Colorado” (Exh. H of Exh. A of Exh. A-23). Even accepting

this naked assertion of a conclusion which is totally unsup-

ported by any factual analsvis (but see United States v. Holt

State Bank, 270 U.S. 49, 56 (1926) “streams or lakes which

are navigable in fact must be regarded as navigable in law’’),

it is clear that the Colorado Attorney General’s determination

of navigability postdated the original surveys in this case by

vell over 50 years. Any attempt to premise a differentiation

n the treatment of islands in navigable and nonnavigable

hodies of water based on the subjective intent of the surveyor

simply wrong.

58a

v. Ideal Cement Co., 5 IBLA 235, 241, 79 1.D. 117,

120 (1972), aff'd, Ideal Basics Industries, Inc. v.

Morton, 542 F.2d 1364 (9th Cir. 1976). The stipu-

lation should be considered as a whole with each pro-

vision given a reasonable meaning and none of it left

useless. ITT Arctic Services Inc. v. United States,

524 F.2d 680, 684 (Ct. Cl. 1975). See RESTATE-

MENT (SECOND) OF CONTRACTS §§ 202(a),

203(a) (1981). Claimants’ reading of the stipula-

tion renders superfluous the provision recognizing

that whether the disputed parcels were islands at the

time of the original surveys was a claimed fact “on

which the Government shall put on its proof” (Stip.

V.). Additionally, BLM’s agreement that the orig-

inal surveys were correct and in exact accordance

with the instructions must be considered in conjunc-

tion with its position, identified in the stipulation as

a legal issue to be determined, that it was the Govern-

ment’s policy at the time of the original surveys not

to survey islands falling within the regular course of

public land surveys (Stip. VIT.). The stipulation, read

as a whole, clearly indicates that BLM did not stipu-

late away its ease. See Ideal Basic Industries, Inc. v.

Morton, supra at 1369-70 (ambiguous stipulations,

taken as a whole, were insufficient to amount to an

admission ).

Thus, we turn to consideration of the entire

record compiled in this case to resolve the issues

raised. The ultimate issue for consideration is

whether, at the time of the origina! surveys, the dis-

puted parcels were islands omitted from those sur-

veys. Resolution of that issue requires that we focus

on the condition of the parcels at the time of the orig-

inal surveys, beeause if the parcels at issue here

existed as islands at the time of the original 1889 and

59a

1891 surveys, title to them remained in the United

States, and BLM’s 1982-87 survevs were properly ac-

cepted. See Ritter v. Morton, 5i. F.2d 942, 947-48,

950 (9th Cir.), cert. denied, 423 U.S. 947 (1975):

see also Scott vy. Lattig, supra at 241-42. Evidence

concerning subsequent changes in the parcels is rele-

vant only to the extent it reflects on the condition of

the parcels in 1889 and 1891. Thus, while it must be

established that an identifiable land mass existed as

an island as of the date of survey, there is no require-

ment that it must have been in continuous existence

as an island since that time, nor is there any require-

ment that its size and shape remain constant over

that period of time.

The Judge concluded that the parcels were not is-

lands because the land masses were not fast, dry land

at the time of the original surveys, nor were they

permanent land masses separated from the mainland

by perpetual channels. He reached this conclusion

through an extremely narrow, literal interpretation

of the stipulated definition of an island and a highly

selective view of the evidence introduced at the hear-

ing.

The parties agreed to a legal definition of “island”

as “a permanent land mass rising frem the bed of a

meanderable body of water above the mean high water

mark, separated from the mainland by a perpetual!

chanr !” (Stip. VI. 5.)." The Judge considered this

1! Alt:. ugh the Judge found that he was constrained by this

legal de: nition, stipulations as to legal matters are not bind-

ing or adjudicators. See, e.g., Saviano v. Commissioner, 765

F.2d 643, 645 (7th Cir. 1985). Indeed, this Board has ex-

pressly refused to countenance an erroneous stipulation of

law, even where to do so would benefit the United States. Se.

60a

definition to be more stringent than an “elementary

school definition” of island, and he distinguished Rit-

ter v. Morton on the basis that the court had applied

the less rigid “elementary school definition” in that

case. BLM asserts that the stipulated definition must |

be interpreted in light of relevant case law. We |

agree.

We find nothing in the circumstances surrounding

the agreement of the parties to the stipulation which

would support an overly restrictive meaning of the

term “island.” See National Audubon Society, Inc. v.

Watt, 678 F.2d 299, 307 (D.C. Cir. 1982) (a stipu-

lation must be interpreted in light of its evident pur-

pose as gleaned from the circumstances under which

the agreement was made). No reason has been posi-

ted why the parties would choose to use the term in

other than its usual sense, and we believe that the

stipulated definition, reasonably construed, does not

preclude the application of common sense and rele-

vant case law.

Judge Chi'd found that the parcels were not fast,

dry land at the time of th. »riginal surveys because

they were unstable and «:-hemeral. According to the

Judge, the evidence demonstrated that the parcels

had gone through dramatic shifts, alterations, and

changes since the original surveys, with single par-

cels dividing and multiple parcels uniting, and he

concluded that none of the parcels had shown any

capacity for constancy. In support of this conclusion,

he cited Exhibits G-3, G-5, G-28, and G-29, which de-

United States v. Williamson, 45 IBLA 264, 275-77, 87 I.D. 34,

40-41 (1980).

61a

pict the shape and location of parcels at varieus times

over the years.”

The key question. however, is whether thes parcels

were fast, dry land above the mean high water mark

and separated from the mainland at the time of the

original surveys. We find that the evidence in the

present record overwhelmingly demonstrates that the

six disputed parcels existed as islands at the time of

the original surveys and that Judge Child ignored

that evidence.

The disputed parcels clearly existed in some form

in 1889 and 1891. The original surveyors mentioned

them as topographical features in their field notes

(Decision at 6), and the parcels appear on the plats

prepared from those notes as surrounded by flowing

water (see Tr. 262, testimony of Jacoby). BLM’s

virtually uncontested evidence establishes that each

parcel has at least one tree on it which predates the

original survey; each parcel was fast, dry land rising

above the mean high water mark and Separated from

the mainland by a channel at that time; channels

are In evidence today surrounding each parcel, al-

though in some cases channels have been filled in by

the adjacent riparian land owners: and the current

size, shape, and lovation of each parcei are substan-

tially similar to those shown on the original plats

(see BLM Brief at 15-26 for the specific evidence

pertaining to each parcel). Thus, BLM presented

witnesses and exhibits establishing the existence of

the parcels as islands in 1889 and 1891.

'" BLM introduced these exhibits to demonstrate, among

other things, that the parcels have retained essentially the

same size, shape, and location over the years, and the expert

witnesses called by BLM testified that those exhibits did so

demonstrate.

62a

Claimants introduced no direct evidence rebutting |

that introduced by BLM concerning the condition of |

the parcels in 1889 and 1891. Instead, they focused

on demonstrating that these parcels were partially, |

if not totally, inundated by the river in its flood

stage. The mean or ordinary high water mark, how-

ever, as found by Judge Child, is not synonymous

with the height of the water in the river during flood

stage; rather, that term designates the level of the

ordinary high flow of the river, and is readily ob-

servable as the line below which the soil is unfit

for vegetation. See, e.g., State v. Bonelli Cattle Co.,

108 Ariz. 258, 495 P.2d 1312, 1314-15 (1972), rev'd

on other grounds, 414 U.S. 313 (1973) ; United States

v. Claridge, 416 F.2d 933, 934 (9th Cir. 1969), cert.

denied, 397 U.S. 961 (1970). The fact that these

parcels are partially or completely submerged during

flood stage does not preclude them from being islands.

See Raide v. Dollar, 34 Idaho 682, 2038 P. 469, 472

(1921).

We find that the great weight of the evidence in

the record clearly demonstrates that the parcels were

islands at the time of the original surveys and that

they were omitted from those surveys.

Despite all this evidence, the Judge found that the

parcels were not permanent

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