Reply Brief — United States v. Koch

a Supréme Court, U.S,

4, ,iLs& D

Pt. rr

No. 95-253 cr 2 9%

CLERK

Jn the Supreme Court of the Giuted States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, ET AL., PETITIONERS

EDWARD H. KOCH, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

DREW S. DAYS, III

Solicitor General

De partment of Justices

Washington, D.C. 20530

(202) 514-2217

JOHN D. LESH’

Solicitor

Departme nt of the Interior

Washington, D.C. 20240

TABLE OF AUTHORITIES

Cases:

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

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

RETR SICA Se FESTA, SUEY WC ea

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

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .

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

a canedeninnie

R.A. Mikelson, 26 1.B.L.A. 1 (1976) ......................000

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

Cir. 1901), aff ’d, 189 U.S. 391 (1908) .............ccscseeee

Moss v. Ramey, 239 U.S. 538 (1916) ...................0..

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

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

denied, 423 U.S. 947 (1975) ............cccceeeeee net Sete: NOOO F

Scott v. Lattig, 227 U.S. 229 (1913) ....................000

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

Texas v. Louisiana, 410 U.S. 702 (1973) .................

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

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

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

Wolff v. United States, 967 F.2d 222 (6th Cir.

a a aneetns

Miscellaneous:

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

(I)

In the Supreme Court of the Giuted States

OCTOBER TERM, 1995

No. 95-253

UNITED STATES OF AMERICA, ET AL., PETITIONERS

v.

EDWARD H. KOCH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

We explain in our petition for a writ of certiorari

that the question presented in this case—whether a

federal land patent that conveys riparian land also

grants title to unsurveyed islands in the adjacent

stream—presents an important issue of federal law

that has generated a serious and irreconcilable con-

flict among the courts of appeals. Respondents’ ar-

guments to the contrary are unpersuasive.

1. Respondents, who contend that this case simply

involves title to some “insignificant land masses” (Br.

in Opp. I), ignore the nationwide significance of the

legal question at issue. Congress has plenary author-

ity to dispose of the public lands. See Pet. 3-6, 22-23.

The United States has asked this Court to resolve a

(1)

legal question of national importance respecting Con-

gress’s exercise of that power. We submit that Con-

gress has not authorized the implicit conveyance of

unsurveyed public lands to riparian owners free of

charge. The six islands at issue here, which range in

size from 7 to 67 acres and contain valuable minerals,

are by no means “insignificant.” See Pet. 7-9. But

more important, those islands, which are found in a

mere 15-mile reach of a single river, represent only a

handful of the thousands of unsurveyed islands that

are currently subject, as a consequence of the court

of appeals’ decision, to an uncertain ownership status.

See Pet. 12-13."

2. The case warrants review now because the

courts of appeals have adopted contradictory rules

governing conveyance of unsurveyed islands. Respon-

dents are wrong in contending otherwise. See Br. in

Opp. 5-7, 8, 16. The court of appeals in this case

expressly acknowledged that the federal circuits are

divided on the question. See Pet. App. 10a-lla & n.6,

13a. Indeed, as we explain in our petition, the courts

of appeals have fallen into complete disarray

1 Respondents question whether the lands at issue here are

actually islands, stating that the administrative law judge made

a finding that “the land masses were not islands at the time the

original surveys were conducted.” Br. in Opp. 3; see Pet. App.

36a-37a. The Interior Board of Land Appeals (IBLA), however,

carefully examined that issue and overruled the administrative

law judge’s finding, id. at 59a-65a, and the courts below both

accepted the IBLA’s ruling, see id. at 4a, 74a. Thus, the status

of those land masses as islands is beyond question. See, e.g.,

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987) (“both

courts below having agreed on the facts, we are not inclined to

examine the record for ourselves absent some extraordinary

reason for undertaking this task”).

respecting the status of unsurveyed islands. See Pet.

13-21.

Respondents’ attempts to diminish the conflict are

unavailing. For example, they contend that the Sev-

enth Circuit’s ruling in United States v. Severson,

447 F.2d 631 (1971), cert. denied, 404 U.S. 1039 (1972),

which upheld the United States’ ownership of two

islands, turned on the dimensions of the disputed

lands, which were approximately 20 and 255 acres in

size. Br. in Opp. 16. To the contrary, the Seventh

Circuit concluded that the United States retained

ownership of the disputed lands because “the unsur-

veyed islands, existing at the time of statehood, re-

mained the property of the United States,” and

“Wisconsin law could not and the patents did not con-

vey to the patentees the unsurveyed islands.” 447

F.2d at 635; see Pet. 17. In any event, the conflict

among the cases cannot be reconciled by distinctions

based on the size of the islands. The Ninth Circuit

has upheld government ownership in a case involving

much smaller islands, which ranged in size from .84 to

8.99 acres. See Ritter v. Morton, 513 F.2d 942, 944,

cert. denied, 423 U.S. 947 (1975); Pet. 17-18; see also

Mission Rock Co. v. United States, 109 F. 763, 769-770

(9th Cir. 1901) (upholding federal ownership of two

islands that were respectively .01 and .14 acres in

size), aff’d, 189 U.S. 391 (1903).’

Respondents also contend that the conflicting cases

can be distinguished based on whether the surround-

2 As we explain in the petition, although the Ninth Circuit’s

Ritter decision is ultimately correct, it rests on a misunderstand-

ing of this Court’s precedents. See Pet. 18 n.9. Hence, that

decision contributes somewhat to the current disarray in the

courts of appeals.

ing waters are navigable or non-navigable. See Br. in

Opp. 18 & n.18. The Court of Claims had suggested

such a distinction, see Bourgeois v. United States,

545 F.2d 727, 730-731 (1976), but the Sixth Circuit

has expressly disavowed that rationale, see Wolff v.

United States, 967 F.2d 222, 226 n.3 (1992). See Pet.

19-21. Contrary to respondents’ contention, a distinc-

tion based on the navigability of the surrounding

waters cannot reconcile the case law. Indeed, that

rationale would also conflict with state supreme court

decisions that have recognized that the United States

retains unsurveyed islands whether or not the

surrounding waters are navigable. See Bode v.

Rollwitz, 199 P. 688, 690-691, 692-693 (Mont. 1921);

Steinbuchel v. Lane, 51 P. 886, 887-888 (Kan. 1898).

3. Respondents’ arguments in support of the court

of appeals’ decision demonstrate precisely why the

Court should review this case. This Court has made

clear that Congress requires upland to be surveyed

prior to disposition and that the United States there-

fore retains ownership of unsurveyed islands. See

Pet. 17-29; see also, e.g., Moss v. Ramey, 239 U.S. 538

(1916); Scott v. Lattig, 227 U.S. 229 (1913); Buxton v.

Traver, 130 U.S. 232, 235 (1889). Those principles are

longstanding and widely acknowledged. See, e.g.,

Severson, 447 F.2d at 635; Bode, 199 P. at 692-693;

R.A. Mikelson, 26 I.B.L.A. 1 (1976); Emma 5S.

Peterson, 39 Pub. Lands Dec. 566 (1911); BLM,

Manual of Surveying Instructions § 3-122 (1973).

Nevertheless, as a result of the arguments put

forward by respondents and accepted by the court of

appeals, the law has now become uncertain and

confused.

el

Respondents rely on cases, such as Grand Rapids

& .LR.R. v. Butler, 159 UsS. 87 (1895), that this Court

specifically distinguished in Scott v. Lattig, 227 U.S.

at 244. Compare Pet. 14-16 with Br. in Opp. 9. They

also conflate the principles that apply to uplands with

those that apply to submerged lands. Compare Pet. 28

(quoting this Court’s admonition that the rules

applicable to submerged lands are not applicable to

“islands or fast lands” (Texas v. Louisiana, 410 U.S.

702, 713 (1973)) with Br. in Opp. 2 (stating that “[t]his

case concerns title to the bed of a non-navigable

river”). Furthermore, respondents would subordinate

the intent of Congress, which has plenary power over

the disposition of public lands, see Watt v. Western

Nuclear, Inc., 462 U.S. 36, 47-54 (1983), to dubious

inferences respecting the subjective beliefs of the

Department employees who surveyed the lands and

prepared the patents. Compare Pet. 22-27 with Br. in

Opp. 21-23. Finally, respondents’ contention that they

acquired title to the islands, even though they regard

the United States’ intent on that point here as

“ambiguous” (Br. in Opp. 23), cannot be reconciled

with “the established rule that land grants are

construed favorably to the Government, that nothing

passes except what is conveyed in clear language, and

that if there are doubts they are resolved for the

Government, not against it.” Western Nuclear, 462

U.S. at 59.

This case presents the appropriate opportunity to

clarify the controlling principles in this area of public

land law, where clear and certain rules are essential

to efficient government and to the protection of

property rights and settled expectations.

For the foregoing reasons, and the reasons stated

in the petition, the petition for a writ of certiorari

should be granted.

Respectfully submitted.

DrREw S. Days, III

Solicitor General

JOHN D. LESHY

Solicitor

Department of the Interior

OCTOBER 1995