# Petition for Writ of Certiorari — United States v. Koch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1646%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 915 ## Text earers Come ILED ) 95°253 ace11% No. ee ' | 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) II 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) IV 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 VI 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 , t 2a 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 3a 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. 4a 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 Sa 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 6a 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 ~ /a 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.’’). Sa 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 ee 9a 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: F 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 A. 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- versity Dictionary, copyright 1984, currently fur- 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. B. 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. ———————PSCé«‘ 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 Z . | ¥ 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. re 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 land masses, as required by the stipulated definition, because they would even- tually become attached to the mainland. He appar- ently based this finding on Osterkamp’s testimony that the river was in a state of semi-disequilibrium, and that over time the land masses within the river would become attached to the floodplain and the river would become a single thread stream. Osterkamp also testified, however, that the time involved for that to hapepn would be “centuries, if not millenia” (Tr. 63a 764). Judge Child evidently discounted that. testi- mony, at least partially, because of his position, based on the stipulated definition of island, that any channel which separated a land mass from the main- land had to be “perpetual,” i.e., lasting for eternity (see discussion infra). Given that over geologic time natural forces, such as erosion and accretion, change the shape and size of land masses, no land mass located in a river could satisfy Judge Child’s interpretation of the terms permanent” and “perpetual.” Nothing in the stipu- lation, read in its entirety, indicates that the parties intended such a result. Clearly, BLM would never have agreed to such an interpretation, because it would have precluded BLM from establishing that the land masses were islands at the time of the original sur- veys, and the parties agreed in the stipulation that BLM was required to provide evidence of that fact at the hearing (Stip. V)." The Judge also found that the channels separating the parcels from the mainland were not perpetual channels because they did not separate the parcels from the mainland when the parcels were in- undated by water during the river’s flood stages and when the channels were dry during low river flow. He concluded that in order for a channel to separate a land mass in a river from the mainland, it must ‘It appears more reasonable to assume that the parties used the term “permanent” to designate a stable land forma- tion above the mean high water mark, as opposed to a transi tory, shifting sand bar. See, e.g., United States V. Otley, 127 F.2d 988, 1001 (9th Cir. 1942); State of Oregon, 60 I.D. 314, 315 (1949). Consistent with our discussion supra, we find that the stipulated definition of “island” only requires that the land masses be permanent, not that the islands as islands be permanent. 64a contain water throughout its length, and that to meet the stipulated definition of island, such a channel must do so perpetually. We find these conclusions to be erroneous. A channel is the depression of a stream bed below the permanent banks which forms a conduit through which waters flow and which may be full at some times and at others nearly, if not completely, dry. State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437, 448 (1907). It consists of a well-defined bed and banks. The bed carries the waters at their ordi- nary stage although [i]n extremely high water the bed may be much more submerged; [and] at other times it may not even be covered, but by close examination of the bed and banks of a natural water course one may readily distinguish the exact line of de- markation between them. * * * The banks of a water course are the elevations of land which confine the waters to their natural channel when they rise to the highest point at which they are confined to a definite course and channel. Al- though at times these banks may be overflowed by flood waters, yet they themselves are un- changed, though not necessarily unchangeable. [ Citations omitted. ] Maricopa County Municipal Water Conservation Dis- trict No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, 376-77 (1931). Thus, a channel is an identifiable geomorphic struc- ture which exists independently of the water which may flow through it. BLM established that each of the disputed parcels was separated from the main- land by a channel at the time of the original surveys, ee 65a and that these channels were still identifiable at the time of the hearing, although some had been filled in by the riparian land owners. We find that this evidence satisfies the stipulated definition of an island, when the stipulation is read as a whole and in light of relevant case law. The evi- dence supports a finding that the parcels existed as islands at the time of the original surveys, and the fact that, over the course of geologic time, they will eventually become part of the mainland does not pre- clude such a finding. See R. A. Mikelson, supra, at 9; see also United States v. Severson, 447 F.2d 631 (7th Cir. 1971) cert. denied, 404 U.S. 1039 (1972)." Judge Child also found that, under Scott v. Lattig, supra, the omission of an island from an original sur- vey had to be the result of error in order for the United States to retain title to the omitted islands. He concluded that the surveyors did not omit the is- lands as a result of error, noting that the parcels were properly identified as topographic features and ap- peared on the plats of survey as such. We have held that the parcels were islands, not mere topographic features, at the time of the orig- inal surveys. 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 unoffi- 14#In R. A. Milkelson, this Board stated, citing Severson, that when an island in an nonnavigable river is omitted from a survey, title to the island remains in the United States and “the island remains subject to survey despite the disappear- ance of the channel separating the island from the lots which were formerly riparian.” 26 IBLA at 9 (emphasis added). Although the parties stipulated that there was no error in the original surveys, if substantial evidence contrary to ee ne ee 66a cial Government policy not to survey islands unsuit- able for cultivation. In either case, their failure to survey the islands did not divest the United States of title to those islands. See Northern Michigan Ex- ploration Co., supra at 187-88 n.13, 97 I.D. at 176 n.13." Based on the entire record before us, we find that the parcels were islands omitted from the original surveys conducted in 1889 and 1891. Title to these islands remains in the United States, and they were properly surveyed by BLM. Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of a stipulation exists in the record, that stipulation may be disregarded. See Smith v. Blackburn, 785 F.2d 545, 549 (5th Cir. 1986); Coastal States Marketing, Inc. Vv. Hunt, 694 F.2d 1358, 1369 (5th Cir.), reh’g denied, 699 F.2d 1163 (5th Cir. 1983). 16 We note that in C. Albert White, A History of the Rec- tangular System of Survey 81 (1980), following the citation of a Jan. 29, 1824, letter from the Commissioner of the Gen- eral Land Office (GLO) to the Surveyor General setting forth a policy on the surveying of islands in which the Commis- sioner stated that “when a favorable opportunity occurs you may take measures to cause such of them to be surveyed as from the best information you can collect, may be worth the expense,” White explained: | “This treatment of islands always remained. Unless an island was large, it was seldom surveyed during the regular, original rectangular surveys. Most islands were small and the cost of surveying, platting, and sale was greater than the monetary return to the government of $1.25 per acre. But the GLO always did and still does consider islands public lands until surveyed, platted, and sold.” See also Loyla C. Waskul, 102 IBLA 241, 246-47 (1988); Joseph Tomalino, 42 IBLA 117, 120 (1979). 6 ja the Interior, 43 CFR 4.1. the decision of Administra- a lve Law Judge Ramon M. Child is reversed. s Bruce R. Harris BRUCE R. HARRIS Administrative Judge I eoneur: 3/ James L. Burski JAMES L. BURSKI Administrative Judge 68a APPENDIX E UNITED STATES DISTRICT COURT D. COLORADO Civ. A. No. 91-C-470 EDWARD H. KOCH, ET AL., PLAINTIFFS uf UNITED STATES OF AMERICA, ET AL., DEFENDANTS June 4, 1993 MEMORANDUM OPINION AND ORDER CARRIGAN, District Judge. Plaintiffs, Edward Koch, Walter Lemon, Roberta Lemon, Edward Juhan and Anthony Zarlengo, seek review of an Interior Board of Land Appeals decision dated February 21, 1991. That order affirmed dis- missal of the plaintiffs’ protests against the filing of surveys of six islands in the Colorado River. Defend- ants, United States, the Department of the Interior, the Interior Board of Land Appeals (IBLA) and the Bureau of Land Management (BLM), have moved for summary judgment. Plaintiffs have responded by opposing that motion and by cross-moving for sum- mary judgment. 69a The parties have fully briefed the issues and oral argument would not be helpful. Jurisdiction exists under 28 U.S.C. § 1331. I. Factual and Procedural Background. The original surveys of the areas in question were performed in 1889 and 1891 by surveyors who did not meander any of the parcels at issue. However, the surveyors identified the parcels in their field notes. The parcels then appeared on the plats prepared from those notes. The United States patented the surveyed land adjacent to the Colorado River, incorporating by reference the relevant plats and field notes. In 1982, the BLM commenced an investigation to determine ownership of twenty-two land masses in the Colorado River between Glenwood Springs and Grand Junction, Colorado. The BLM determined that nine of the twenty-two land masses were islands which existed and had not been meandered at the time of the original surveys. On the basis of that investi- gation, the BLM accepted surveys of those nine islands performed between 1982 and 1987 and announced in the Federal Register that it would officially file the survey plats in its Colorado office. Prior to the proposed date for filing the survey plats, a number of individuals protested the filing. The protestors argued that they owned the islands un- der patents from the United States which described the patented lands by reference to the original survey plats for the townships in question. On July 28, 1988, the BLM’s Colorado State Director dismissed the pro- tests on the ground that the “United States claims ownership of the islands because they are islands not 70a previously surveyed which were in existence at the time of the original survey of the surrounding lands.” Certain of the protestors appealed the BLM deci- sion to the IBLA, and requested a hearing.’ The IBLA granted the request for a hearing and referred the case to an Administrative Law Judge (ALJ). In a sixteen-page pre-hearing stipulation made a part of the hearing record, the parties stipulated that the stretch of the Colorado River containing the par- cels at issue is non-navigable. The stipulation included excerpts from the surveying manuals and instructions directing the surveyors to meander islands and to note topographical features. The parties agreed that “(t]he surveys of the involved lands were accepted as having been completed in exact conformance with the [surveying] Instructions,” and that “[t]he origi- nal surveys were neither fraudulent nor erroneous.” Under the terms of the stipulation, the plaintiffs were to prove that the subject lands were below the ordinary high water mark of the Colorado River at the time of the original surveys and thus were a part of the riverbed, while the BLM was to prove that those lands were islands at the time of the original surveys. The stipulation further defined an “island” as “a permanent land mass rising from the bed of a me- ‘The instant action involves six of the nine islands for which surveys were accepted. The claimants of two of the islands failed to appeal from the BLM’s dismissal of their protests. In addition, the BLM did not appeal the ruling of the Administrative Law Judge that another of the parcels was not an island at the time of the original survey. The six tracts here in question are identified as islands 9 (located in sec, 25, T. 6 S., R. 95 W.), 10 (located in sec. 35, T. 6 S., R. 95 W.), 14 (located in sec. 7, T. 7 S., R. 95 W.), 20, 21 and 22 (located in sec. 7, T. 8 S., R. 96 W.). /la anderable body of water above the mean high water mark, separated from the mainland by a _ perpetual channel.” Finally, the parties stipulated that ‘“‘the original Government Land Office plats and field notes of the areas surveyed, having been ‘ncorporated by reference in the original patents, are a part of the description of the lands granted.” Following a hearing held on June 13-16, 1989, the ALJ concluded that the parcels at issue were not islands omitted from the original surveys of the area and, therefore, were not the property of the United States. The BLM appealed that decision to the IBLA. On February 21, 1991, the IBLA reversed. The IBLA found that the parcels had been omitted from the original surveys conducted in 1889 and 1891 and that ‘‘{t]itle to these islands remains in the United States, and they were properly surveyed by BLM.” The IBLA concluded that the United States had the au- thority to survey the islands because they were well defined bodies of public land that were omitted from the original township survey. Thereafter, the plaintiffs filed the instant appeal. Il. Analysis A. Decision Being Reviewed and the Scope and Standard of Review. The parties disagree whether the decision to be reviewed is that of the ALJ or the IBLA. Plaintiffs contend that the IBLA was, in essence, sitting as an appellate court when it reviewed the ALJ’s decision and therefore was bound by the ALJ’s factual determi- nations unles they were clearly erroneous. “Under administrative law principles, an agency or board is free either to adopt or reject an ALJ’s findings and conclusions of Jaw.” Starrett v. Special Counsel, 792 F.2d 1246, 1252 © ith Cir.1986). “On appeal from or review of the initial decision, the agency has all the power which it would have in making the initial decision except as it may limit the issues on notice or by rule.” /d. (quoting 5 U.S.C. $557(b)). The IBLA retains the power to rule on disputed facts and the ALJ’s determinations of such facts are not given the weight cf the findings of fact by a district court. /d. As the reviewing court, I must review the decision of the board, not that of the ALJ. Id. The scope of this court’s review is “confined to the agency record or such portions of it which the parties may cite, and additional evidence is not to be admit- ted.’ Roberts v. Morton, 549 F.2d 158, 160 (10th Cir.1976). The IBLA’s fact findings may only be set aside if this court cannot “conscientiously find that the evidence supporting the decision is substantial, when viewed in the light of the entire record. ‘ Id. Questions of law will be reviewed de novo. United Transp. Union v. Dole, 797 F.2d 823, 828 (10th Cir. 1986). B. Whether the Parcels Were “Islands” at the Time of the Original Surveys. The parties agree that if the parcels were not ‘islands” at the time of the original surveys, then they were a part of the river bed and therefore title to them passed along with the patents. Plaintiffs contend that the parcels at issue were not islands omitted from the original survey. The heart of the plaintiffs’ first argument is that the only way to prove that the parcels were islands at the time of 73a the original surveys would be to show error in those surveys because the surveyors were instructed to sur- vey all islands and to note topographical features. Since the BLM stipulated that those surveys were not erroneous, the plaintiffs contend that any attempt to show error would defy the stipulation. “Stipulations of fact fairly entered into are con- trolling and conclusive and courts are bound to en- force them.” Fenix v. Finch, 436 F.2d 831, 837 (8th Cir.1971). The stipulation that the original surveys were correct and in exact accordance with the instruc- tions must be considered together with the other por- tions of the stipulation, including: (1) the BLM’s position, identified in the stipulation as a legal issue to be determined, that the government’s policy at the time of the original surveys was “not to survey islands falling within the regular course of public land sur- veys;’ and (2) the stipulation that the BLM was to prove that the disputed parcels were islands at the time of the original surveys. When these three provi- sions of the stipulation are read together it is evident that the stipulation does not preclude a finding that the parcels were islands at the time of the original surveys. Thus, it is necessary to determine whether the [BLA’s conclusion that the land masses were “‘islands”’ (as that term is defined in the stipulations) at the time of the original surveys, is supported by substan- tial evidence in the record. Plaintiffs contend that the evidence of the surveyors’ decisions not to survey the parcels, the surveyors’ de- scriptions of the parcels,” the fact that other islands * Parcels 9, 10 and 14 are described in Surveyor Church- field’s field notes as a “bar or !ow island,” a “long low island, overflowing and unfit for cultivation,” and a “low overflowing 74a were surveyed, and the testimony that the Colorado River is in a constant state of semi-disequilibrium all establish that the parcels were not islands at the time of the original surveys. Plaintiffs, however, do not challenge the IBLA’s findings that: (1) each parcel has at least one tree on it which predates the original surveys; (2) each parcel was fast, dry land rising above the mean high water mark and separated from the mainland by a channel at the time of the original surveys; (3) chan- nels are in evidence today surrounding each parcel, although some channels have been filled in by the adjacent riparian land owners; and (4) the current size, shape, and location of each parcel is substantially similar to those shown on the original plats. Although the plaintiffs’ arguments are persuasive, 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. E. Ownership of the Islands. The fact that the parcels in question were “islands” at the time of the original surveys, does not, however, end the inquiry into ownership. The Sixth Circuit recently held that the issue who has title to an un- surveyed island hinges on whether there is evidence, either expressed or implied, that the United States intended to retain the island. Wolff v. United States, 967 F.2d 222, 226 (6th Cir.), rehearing denied, 974 island... bar or island,” respectively. Surveyor House’s field notes characterize parcels 20, 21, and 22 as a “large island”’ (the original plat depicts this parcel as three islands), an “island,” and a “gravel bar,” respectively. 75a F.2d 702 (1992). The court there concluded that where no contrary intent has been shown, ‘“[w]hat- ever incidents or rights attach to the ownership of property conveyed by the government will be deter- mined by the States....’’ /d. (citations omitted) ; see also Bourgeois v. United States, 545 F.2d 727, 212 Ct.Cl. 32 (1976) (where the government’s intent is not clear from the face of the patent, title to unsur- veyed islands in non-navigable waters passes accord- ing to the laws of the state in which the islands are located.) ;° cf. Ritter v. Morton, 513 F.2d 942 (9th Cir.) cert. denied, 423 U.S. 947, 96 S.Ct. 362, 46 L. Ed.2d 281 (1975) (court must look at all the facts and circumstances in their totality to determine whether islands in a navigable river were intended to be included in the riparian grants); United States v. Elliott, 131 F.2d 720 (10th Cir.1942).4 Therefore, if the government conveys riparian land along non- navigable waters and there is an absence of evidence ‘Bourgeois and Wolff are in conflict over whether state law governs ownership with regard to islands in navigable waters. Because the parties have stipulated that the instant search of the Colorado River where the islands are located is non-navigable, it is not necessary to decide whether the same rule applies to islands in navigable waters. ‘In Elliott the court reasoned that the United States may intend to restrict a conveyance to lands ending at the river- bank when it disposes of riparian land on a non-navigable river. However, when such intent is not shown, and the lands are not within a state, what the grant conveys is a matter of common law principles and Supreme Court decisions. The court concluded that the grant at issue carried the exclusive right and title to the center of the stream including islands. The original surveys in the instant action were performed in 1889, thirteen years after Colorado statehood. 76a whether the government also intended to convey title to islands located within the river, title to the islands passes according to the laws of the state in which the property is located. Defendants’ arguments that the Sixth Circuit erred in Wolff are not persuasive. Defendants’ contention that a long line of cases recognize that title to un- surveyed islands, whether located in navigable or non-navigable water, remains in the United States and may be surveyed and disposed of by the United States, is too broad a statement of the law. Indeed a close reading of the cases reveals that they are all based on the same principle recognized by the court in Wolff—that the intent of the United States governs the scope of its land grants. See Wolff, 967 F.2d at 225. The parties have stipulated that the patents to the lands adjoining the disputed islands contained no ex- press reservation of the islands to the United States. Thus, it is necessary to determine whether the facts and circumstances surrounding the original grants evidence an implied intent to retain the islands. In Wolff, the court identified a number of relevant factors to consider in determining whether the gov- ernment intended the island to be surveyed; (2) the size and value of the island at the time the littoral land was patented; and (3) whether the United States treated the island as public land in the past. Wolff, 967 F.2d at 225-26. The parties have stipulated that the original sur- veys were neither fraudulent nor erroneous, and that they were accepted as having been completed in exact conformance with the surveying instructions. Indeed, the government produced evidence of an unwritten TS 77a policy that islands unsuitable for cultivation would not be surveyed." This policy was justified by the fact that the cost of surveying, platting and sale was greater than the island’s value. (IBLA decision at 54 n. 15.) Therefore, it is clear that the government did not intend to survey the islands at issue. Moreover, there is no evidence in the record that the United States has treated these islands as public lands. In addition, as recognized by the court in Bour- geois, where, as here, the river involved was non- navigable, it wouid make little sense to pass title to all shorelands without reserving access easements to the islands. Bourgeois, 545 F.2d at 731 n. 3. Had the government intended to retain the islands, it prob- ably would have reserved easements across the ripar- ian land. There is no evidence that the government made any such reservations. The most important evidence of an intent to convey the islands along with the riparian land is the inclu- sion of the islands in the surveyors’ field notes and the plats which were incorporated by reference in the original patents and are a part of the description of the lands granted.” Parcels 9, 10 and 14 are described ° The IBLA determined alternatively that the original sur- veyors erred when they failed to survey the islands. Here the stipulations provided that the original surveyors did not err in failing to survey the parcels. Plaintiffs were therefore jus- tified in believing that this issue was settled and that no evidence showing absence of error was necessary. See Brad- ford v. United States, 651 F.2d 700, 704-05 (10th Cir.1981). "The IBLA did not discuss what effect the description of the islands in the field notes has on the plaintiffs’ claims of ownership. Indeed, there is a strong argument that the de- scription of the islands in the field notes and the plats which were subsequently included by reference into the grants pre- 78a in Surveyor Churchfield’s field notes as,‘ respectively, a “bar or low island,” a “long low island, overflowing and unfit for cultivation,” and a “low overflowing island . . . bar or island.”’ Surveyor House’s field notes characterize parcels 20, 21, and 22 as, respec- tively, a “large island” (the original plat depicts this parcel as three islands), an “island,” and a “gravel bar.” “In determining boundaries in any land patent case, special weight must be given to the precise description of the land contained in the surveyor’s field notes and the official plat.” Ritter v. Morton, 513 F.2d 942, 948 (9th Cir.1975). The fact that an island is mentioned in a surveyor’s field notes and the official plat is highly persuasive evidence that the is- land was intended to be conveyed with the riparian land. See id.; Firt Nat’l Bank v. United States, 59 F.2d 367, 370 (8th Cir.1932). Patentees are entitled to rely on field notes and plats incorporated into their patents. See Bradford, 651 F.2d at 706. Another fact bearing on the government’s intent is the size and value of the respective islands at the time of the original surveys. The islands are substan- tially the same size and shape now as they were at the time of the original surveys. At present island 9 is 23.68 acres, island 10 is 66.63 acres, island 14 is 43.11 acres, island 20 is 19.51 acres, island 21! is 7.29 acres, and island 22 is 7.97 acres. Although these is- lands are larger than the island in Wolff, that fact alone is not dispositive. As discussed above, the in- stant islands were of little value at the time of the original surveys. Therefore, an intent to retain the vents the islands from being treated as lands ‘‘omitted” from survey. 79a islands can not be implied based solely on their size at the time of the original surveys. Based on the facts that the government did not expressly reserve the islands, that the government did not intend to survey the islands, that the islands were then of little value, that the patents incorpo- rated by reference the relevant plats and field notes which included the islands at issue, that the govern- ment apparently reserved no access to the islands across the nearest land, and that the government has not treated the islands as public land in the past, I conclude that there is no clear evidence that the government intended to reserve the islands when it conveyed the riparian land. As a result, ownership of the islands must be determined in accordance with Colorado law. In Colorado, “when a government grant is made which does not reserve a right or interest that would ordinarily pass by the rules of law, and the govern- ment does no act indicating an intention to make such reservation, the grant includes [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1646%3A1. Public record. Not legal advice.