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State ex rel. Stenehjem v. United States

United States District Court, D. North Dakota

June 26, 2017

North Dakota, ex rel. Wayne Stenehjem, Attorney General for the State of North Dakota, Plaintiff,
v.
United States of America, Defendant. Billings County, North Dakota; Golden Valley County, North Dakota; McKenzie County, North Dakota; and Slope County, North Dakota, municipal entities, Plaintiffs,
v.
United States of America, Defendant.

          ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS NORTH DAKOTA'S AMENDED COMPLAINT AND TO DISMISS COUNTIES' FIRST CAUSE OF ACTION IN THIRD AMENDED COMPLAINT

          Daniel L. Hovland, Chief Judge

         Before the Court are two motions filed on behalf of the Defendant United States of America: “The United States of America's Amended Motion to Dismiss North Dakota's Amended Complaint for Lack of Jurisdiction” filed on September 26, 2014 (Docket No. 88), and “The United States of America's Motion to Dismiss the First Cause of Action in the Counties' Third Amended and Supplemental Complaint for Lack of Jurisdiction” filed on December 9, 2015 (Docket No. 169).[1] Plaintiff North Dakota filed a response in opposition to the motions of the United States on January 27, 2015. See Docket No. 104. Plaintiffs Billings County, Golden Valley County, McKenzie County, and Slope County similarly filed a response in opposition to the motions on January 28, 2015. See Docket No. 141. The United States then filed a reply brief in support of its motions to dismiss on April 30, 2015. See Docket No. 148. The Plaintiffs jointly filed a surreply on May 28, 2015. See Docket No. 152. On June 8, 2015, the United States filed a response to the Plaintiffs' surreply. See Docket No. 154. For the reasons set forth below, the Defendant United States' motions to dismiss for lack of jurisdiction are granted.

         I. PROCEDURAL & FACTUAL BACKGROUND

         On July 30, 2012, Billings County, McKenzie County, Slope County, and Golden Valley County initiated an action against the Defendant United States of America (“United States”) to quiet title to their claims of section line rights-of-way in the Little Missouri National Grassland as well as six individual roads claimed by McKenzie County. See Docket No. 1 (Case No. 1:12-cv-102). The State of North Dakota then filed a complaint on September 14, 2012, against the Defendant United States to quiet title to its claim of section line rights-of-way within the Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota, all which are a part of the Dakota Prairie Grasslands. See Docket No. 1 (Case No. 1:12-cv-125). On April 16, 2013, the Court consolidated the two actions, with North Dakota's action designated as the lead case (Case No. 1:12-cv-125) and the action by the Counties as the consolidated case (Case No. 1:12-cv-102). See Docket No. 24.[2]

         The Plaintiffs' claims arise from a controversy surrounding the public's rights-of-way along section lines within the Dakota Prairie Grasslands in North Dakota. At the heart of both complaints is the contention all section lines in North Dakota, including those within the Dakota Prairie Grasslands, are subject to right-of-way for travel by the public. The Plaintiffs allege the public's right to travel along such section lines arises from North Dakota's acceptance of the grant for construction of public highways offered by federal statute, known as R.S. 2477. However, the Plaintiffs allege the United States refuses to recognize the existence of such public rights-of-way along section lines on lands managed by the United States Forest Service (“Forest Service”). Accordingly, the Plaintiffs request the Court quiet title to the public's right-of-way along section lines within those lands managed by the Forest Service (i.e. Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota).

         In the motions before the Court, the United States seeks to dismiss the complaints of North Dakota and the Counties for lack of subject matter jurisdiction because the claims are untimely under the Quiet Title Act, 28 U.S.C. § 2409a. The United States argues the Plaintiffs' claims are untimely because both North Dakota and the Counties had sufficient notice of the United States' position that North Dakota had not accepted the R.S. 2477 grant to create rights-of-way for public travel along the section lines, specifically within the Dakota Prairie Grasslands in North Dakota.

         The Plaintiffs disagree and contend their quiet title claims were timely filed and consequently the Court has jurisdiction over this matter.

         A. Claims of North Dakota

         In its complaint, North Dakota alleges three (3) claims against the United States. See Docket No. 17, pp. 17-20. In its first cause of action, North Dakota seeks “to quiet title to all section line easements” managed by the Forest Service within the Little Missouri National Grasslands, with the exception of those section lines on lands “(1) located within the Theodore Roosevelt National Park; (2) managed by the U.S. Army Corps of Engineers; (3) managed by the Bureau of Land Management; and (4) within the Theodore Roosevelt National Park Elkhorn Ranch Site.” See Docket No. 17, p. 17. In its second cause of action, North Dakota seeks to quiet title to all section line easements” managed by the Forest Service within the Sheyenne National Grassland, excluding those section line easements on lands (1) managed by the U.S. Corps of Engineers; and (2) land managed by the Bureau of Land Management.” See Docket No. 17, pp. 18-19. In its third cause of action, North Dakota seeks to quiet title to all section line easements managed by the Forest Service within the Cedar River National Grassland, with the exclusion of sections lines on those lands “(1) managed by the U.S. Army Corps of Engineers; and (2) lands managed by the Bureau of Land Management.” See Docket No. 17, pp. 19-20.

         According to North Dakota's complaint, the United States has unlawfully interfered with section line easements in the Little Missouri National Grassland, Sheyenne National Grassland, and Cedar River National Grassland “[b]y failing to recognize the state's valid and existing rights in the easement over the 33 feet of federal land abutting section lines in the Dakota Prairie Grasslands, and by failing to abide by the reservation and exception in the conveyances by which it reacquired title. . . .” See Docket No. 17, pp. 18-20.

         North Dakota alleges its claim arises from Forest Service decisions in 2001 and 2002, in which the Forest Service “rejected and no longer intended to recognize the [S]tate's valid and existing right to section line easements in the National Grasslands.” See Docket No. 17, p. 9. Specifically, in 2001, the Forest Service issued a Record of Decision prohibiting off-highway motor vehicle travel in the Little Missouri National Grassland. Based upon this Record of Decision, the Forest Service then issued an order that “closed to motorized uses all non-system roads or trails on National Forest System land in the Dakota Prairie Grasslands that had not been previously traveled.” Id. Then, in the Dakota Prairie Grasslands Land and Resource Management Plan from 2002, the Forest Services expressed that North Dakota “could not accept the R.S. 2477 grant by establishing highways pursuant to state laws that did not satisfy federal requirements, such as construction of the road.” See Docket No. 17, p. 10.

         The controversy regarding section lines has been amplified by recent oil and gas development on lands owned by North Dakota to support state schools, with the State owning both the subsurface and surface estate. These “state school lands” are scattered throughout the Little Missouri National Grassland. The State also has a reserved mineral interest in additional lands located within the Little Missouri National Grassland. In its complaint, North Dakota alleges lessees of the State's mineral interest in state school lands, as well as other lands in which the State holds a mineral interest, have sought to access such lands by way of section lines. These lessees have been informed by the Forest Service “it does not recognize the state's section line rights-of-way and that using the 33-feet on the USFS side of a section line is prohibited.” See Docket No. 17, p. 10. Consequently, in order to develop these State-owned minerals, North Dakota has permitted lessees to build access roads completely on state-owned lands, instead of utilizing the thirty-three feet on the Forest Service's side of section lines.

         North Dakota's complaint also includes allegations outlining the consequences because Forest Service refused to recognize section line right-of-way within the Dakota Prairie Grasslands:

105. Had the USFS recognized the section line rights-of-way and not opposed building roads on the section lines described in the preceding paragraphs, the burdens of the roads would not fall entirely on the state school land and its previously-unencumbered surface estate and would have remained in the already existing easements.
106. Had the USFS recognized the section line rights-of-way and not opposed building roads on the section lines described in the preceding paragraphs, the state would have avoided the entire responsibility for overseeing road reclamations when the purposes for which the roads were built terminate.
107. Had the USFS recognized the section line right of way and not opposed Frank's Creek Road realignment along the section lines, the state would not have incurred the time and expense of administering road construction.

See Docket No. 17, p. 16.

         B. Claims of Counties

         In their Third Amended and Supplemental Complaint, the Counties allege several causes of action against the United States. In the first cause of action, the Counties “seek to quiet title to the rights-of-way for all of the section lines within the [Little Missouri National Grassland] managed by the United States Forest Service within the Counties' boundaries.” See Docket No. 163, p. 18. The Counties do not seek to quiet title as to section line easements: “(1) located within the Theodore Roosevelt National Park; (2) managed by the U.S. Army Corps of Engineers; (3) managed by the Bureau of Land Management; and (4) within the Theodore Roosevelt National Park Elkhorn Ranch Site.” Id.

         Like North Dakota, the Counties allege their quiet title claim accrued when the Forest Service issued a Record of Decision in January of 2001, prohibiting off-highway motor vehicle travel and limiting travel to existing roads and trails within the Little Missouri National Grasslands. Id. at pgs. 12-13. Based upon this Record of Decision, the Forest Service closed “all non-system roads or trails” not previously traveled in the Dakota Prairie Grasslands to motorized travel. Id. The Counties further allege that in a Record of Decision issued on July 31, 2002, the Forest Service “expressed it position that the state could not accept the R.S. 2477 grant by establishing highways pursuant to state law that did not satisfy federal requirements, such as construction of a road.” Id. at 13.

         C. Revised Statute 2477 & North Dakota ‘Section Line Laws'

         In 1866, Congress provided for public access across unreserved public domain lands by granting rights-of-way for the construction of highways by the passage of a statute that is commonly referred to as "R.S. 2477." R.S. 2477 read in its entirety as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, Title VII, § 706(a), 90 Stat. 2743, 2793. See also Kane Cnty. v. United States, 772 F.3d 1205, 1209 (10th Cir. 2014). R.S. 2477 remained in effect for 110 years and many transportation routes in the western part of the United States were established under its authority. S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir. 2005). The establishment of a R.S. 2477 right-of-way required no administrative formalities: “no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the state or localities in whom the right was vested.” Id. at 741. During this time, “congressional policy promoted the development of the unreserved public lands and their passage into private productive hands.” Id. at 740.

         In 1976, Congress “abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation, ” by its enactment of the Federal Land Policy and Management Act of 1976 ("FLPMA"). Id. at 741. The FLPMA repealed R.S. 2477, but preserved "any valid" right-of-way "existing on the date of approval of this Act." Pub. L. No. 94-579, §§ 701(a), 706(a), 90 Stat. at 2786, 2793; see also S. Utah Wilderness Alliance, 425 F.3d at 741.

         Plaintiffs' claims rest upon an 1871 Dakota Territory law, and successor versions enacted after statehood, that Plaintiffs contend, and the North Dakota Supreme Court agrees, was an "acceptance" of the purported open-ended grant of rights-of-way for highways under R.S. 2477. E.g., Small v. Burleigh Cnty., 225 N.W.2d 295 (N.D. 1974); Faxon v. Lallie Civil Tp., 163 N.W. 531, 532 (N.D. 1917). Primarily, the claim of North Dakota and the Counties is that every section line within or adjacent to Forest Service lands is subject to a sixty-six feet wide public right-of-way running along and extending thirty-three feet on either side of section lines. Plaintiffs contend this right-of-way burdens the lands of the Dakota Prairie Grasslands regardless of whether a road has been constructed or there is evidence of use of the section line for public travel.

         The law accepting the R.S. 2477 grant was enacted by the Dakota Territory in 1871 and stated that "[h]ereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable . . . ." Small, 225 N.W.2d at 297. After North Dakota achieved statehood, the statute was amended in 1895 without substantial change to the relevant portion quoted above. N.D. Revised Code § 1050 (1895). Since then, it has been revised, with the present version codified at N.D.C.C. § 24-07-03 and reads as follows:

In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to sections 40-50.1-01 through 40-50.1-17 or recorded prior to July 1, 1987, under former chapter 40-50, the congressional section lines are considered public roads open for public travel to the width of thirty-three feet [10.06 meters] on each side of the section lines.
The board of county commissioners, if petitioned by a person having an interest in the adjoining land or a portion thereof, after public hearing and a finding by the commissioners of public benefit, may close section lines or portions thereof which are not used for ten years, are not traveled due to natural obstacles or difficulty of terrain, are not required due to readily accessible alternate routes of travel, or are intersected by interstate highways causing the section line to be a deadend, providing the closing of the dead-end section line does not deprive adjacent landowners access to the landowners' property. After the section lines are closed, they may be used to the benefit of the adjacent landowners. However, survey or property reference monuments may not be disturbed, removed, or destroyed. If drainage is interfered with due to the farming operations, alternate means of drainage must be provided for by the landowners or tenants farming the lands.

N.D.C.C. § 24-07-03.

         The Plaintiffs allege the territorial law of 1871, along with the subsequent codification and revisions, establishes that all section lines in North Dakota are subject to a public right-of-way and served as a valid acceptance of the R.S. 2477 grant. The Plaintiffs further allege that because North Dakota's law was a valid acceptance of the R.S. 2477 grant and such acceptance occurred prior to the FLMPA enactment, such grant was preserved as a valid existing public right-of-way.

         D. The Dakota Prairie Grasslands in North Dakota

         The current dispute between the Plaintiffs and the United States regarding section line rights-of-way encompasses the lands within the Dakota Prairie Grasslands in North Dakota. The Dakota Prairie Grasslands in North Dakota consist of three distinct grasslands: (1) the Little Missouri National Grassland, (2) the Sheyenne National Grassland, and (3) the Cedar River National Grassland. Most of the lands within the now-Dakota Prairie Grasslands in North Dakota were settled in the late 1800s through the 1920s for agricultural purposes under the Homestead Act. See Docket No. 90, Ex. A, Attach. 23a, pg. 8. However, some lands which now make-up the Dakota Prairie Grasslands were not settled during this time, but instead remained in the public domain.

         By the 1930s, extensive drought, along with plowing of sub-marginal farm land caused the loss of the lands' protective cover. The lands quickly lost fertility and the soil blew, causing “dustbowl” conditions and significant crop failure. As a result, farmers were forced to abandon their land. See Docket No. 90, Ex. A, Attach. 19a, pgs. 24-25. To remedy the situation and reestablish grasses on the land, the federal government sought to reacquire these sub-marginal lands. To this end, the United States Department of Agriculture (“Department of Agriculture”) initiated the Land Utilization Program to purchase and develop sub-marginal lands and then transfer lands to their most suitable use. See Docket No. 90, Ex. H, pg. 8. Through the Land Utilization Program, the United States purchased several hundred thousand acres of land in North Dakota and South Dakota. Id. at pg. 30.

         Eventually, the Land Utilization Program was supplemented by the Bankhead-Jones Farm Tenant Act (“BJFTA”), which was passed in 1937 to provide “a more permanent status for the land utilization program.” Id. at pg. 19. Under the BJFTA, the Secretary of Agriculture was to:

[d]evelop a program of land conservation and land utilization, including the retirement of lands which are submarginal or not primarily suitable for cultivation, in order thereby to correct maladjustments in land use, and thus assist in controlling soil erosion, reforestation, preserving natural resources, mitigating floods, preventing impairment of dams and reservoirs, conserving surface and subsurface moisture, protecting the watersheds of navigable streams, and protecting the public lands, health, safety, and welfare.

Bankhead-Jones Farm Tenant Act, ch. 517, sec. 31, 50 Stat. 522, 525 (1937). Pursuant to Title III of the Act, the Secretary of the Agriculture was specifically authorized “[t]o acquire by purchase, gift, or devise” submarginal land and land not primarily suitable for cultivation. Bankhead-Jones Farm Tenant Act, ch. 517, sec. 32, 50 Stat. 522, 526 (1937). Such property “may be acquired subject to any reservations, outstanding estates, interests, easements, or other encumbrances which the Secretary determines will not interfere with the utilization of such property for the purposes of this title.” Id. In 1937, reacquired lands and public domain lands that would later become the Dakota Prairie Grasslands in North Dakota were withdrawn from “settlement, location, sale or entry, and reserved and set apart for use and development by the Department of Agriculture for soil erosion control and other land utilization activities, ” subject to valid existing rights. Exec. Order No. 7673, 2 Fed. Reg. 1512 (July 19, 1937).

         By 1939, the Department of Agriculture reacquired an estimated nine million acres of lands by purchase or condemnation for $46, 277, 273.00, and had options to buy additional land. Elizabeth Howard, Management of the National Grasslands, 78 N.D. L. Rev. 409, 418 n. 72 (2002). Between 1936 and 1953, the Department of Agriculture transferred a portion of the lands acquired under the Land Utilization Program to other federal agencies, including the National Park Service, Bureau of Indian Affairs, and Fish and Wildlife Service. See Docket No. 90, Ex. H at pg. 32. From 1938 to 1953, the Soil Conservation Services managed most of the submarginal agricultural lands not transferred to other federal agencies. See Docket No. 90, Ex. H at pg. 20. Then, in 1954, the Secretary of Agriculture transferred management of nearly nine (9) million acres, including those lands that would later became National Grasslands, to the Forest Service. See Docket No. 90, Ex. H at pg. 36. The Secretary of Agriculture designated nearly four (4) million acres of the project lands as National Grasslands. See Docket No. 90, Ex. H at pp. 39-40; Howard, supra, at 425.

         In 1998, the Forest Service established the Dakota Prairie Grasslands to separate their management from the administration of the Custer National Forest. See Docket No. 90, Ex. A, Attach. 24e, p. 3. As discussed above, the Dakota Prairie Grasslands includes the Little Missouri National Grassland, the Sheyenne National Grassland and the Cedar River National Grassland. Little Missouri National Grassland consists of roughly 1, 026, 000 acres in McKenizie, Billings, Slope, and Golden Valley Counties. See Docket 17, Ex. 1 (conventionally filed). Of those lands within the Little Missouri National Grassland, roughly 923, 700 acres were lands reacquired by the United States, and roughly 101, 700 acres are reserved public domain lands. See Docket No. 90, Ex. A, Attach. 2.

         The Sheyenne National Grassland is comprised of roughly 71, 000 acres in Ransom and Richland Counties. See Docket 17, Ex. 2 (conventionally filed). Of those lands within the Sheyenne National Grassland, roughly 70, 200 acres were reacquired by the United States and 40 acres are reserved public domain lands. See Docket No. 90, Ex. C, Attach. 2.

         The Cedar River National Grassland consists of roughly 6, 800 acres and is located within Grant and Sioux counties. See Docket 17, Ex. 3 (conventionally filed). All the lands within the Cedar River National Grassland were reacquired by the United States. See Docket No. 90, Ex D., Attach. 2.

         Against this backdrop, the Court now turns to consider the current motion by the United States to dismiss North Dakota's amended complaint and the Counties' first cause of action in their third amended complaint. In its motion, the United States requests the Court dismiss the Plaintiffs' Quiet Title Act claims because the time for the Plaintiffs to bring their claims has run, divesting the Court of jurisdiction to hear the case.

         II. STANDARD OF REVIEW

         The United States requests the Court dismiss North Dakota's amended complaint as well as the first cause of action (“Quiet Title to Section Lines”) of the Counties' Third Amended and Supplemental Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. When considering a motion to dismiss, the Court must generally construe the complaint liberally and assume all factual allegations to be true. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Dismissal will not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would entitle plaintiff to relief.

         Rule 12(b)(1) of the Federal Rules of Civil Procedure governs challenges to subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Here, the United States asserts a factual challenge to the Court's jurisdiction. In such a factual 12(b)(1) motion, the trial court's jurisdiction - its very power to hear the case - is at issue, and the trial court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). As a result, “no presumptive truthfulness attaches to the plaintiff's allegations” and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 744 (8th Cir. 2001). The burden is on the plaintiff to demonstrate jurisdiction exists. Id.

         III. LEGAL ANALYSIS

         The complaints of North Dakota and the Counties were brought pursuant to the Quiet Title Act, 28 U.S.C. § 2409a. In summary, the complaints seeks to quiet title to a public easement for travel within the thirty-three feet on each side of the section lines within the Little Missouri National Grassland, Sheyenne National Grassland, and Cedar River National Grassland in North Dakota.[3] The United States requests the Court dismiss North Dakota's amended complaint as well as the first cause of action of the Counties' third amended and supplemental complaint pursuant to Rule 12(b)(1) of the Federal Rule of Civil Procedure because the Plaintiffs' claims are untimely and, consequently, this Court lacks jurisdiction over the matter. The Plaintiffs contend their claims are timely as their complaints were filed within the twelve (12) year statute of limitations of the Quiet Title Act and the Court has jurisdiction over the matter.

         The United States is immune from suit absent a waiver of sovereign immunity. Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). The Quiet Title Act (“QTA”) provides a limited waiver of sovereign immunity:

The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest of water rights.

28 U.S.C. § 2409a(a). The QTA is the exclusive means by which an adverse claimant can challenge the United States' title to real property. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983). “Because the QTA waives the government's sovereign immunity from suit, a plaintiff must comply with the limitations period to effectuate that waiver.

         Hence the QTA statute of limitations acts as a jurisdictional bar unlike most statutes of limitations, which are affirmative defenses.” Spirit Lake Tribe, 262 F.3d at 737-38 (internal citations omitted).[4]

         When the QTA was enacted in 1972, it contained a 12-year statute of limitations that applied to all QTA actions and reads as follows:

Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

Block, 461 U.S. at 275 n.1 (quoting Act of Oct. 25, 1972, Pub. L. No. 92-562, 86 Stat. 1176, codified at 28 U.S.C. § 2409a(f)). In 1983, the Supreme Court concluded in Block this limitation period applied to claims brought by the states. Id. at 290. Dissatisfied with the result in Block, Congress amended the Quiet Title Act in 1986. The amendment did not modify the statute of limitations for claims brought by persons or entities other than the states, but added new provisions to limit the reach of the 12-year limitations period to only certain lands of the United States and, for some types of lands, provide a new test for when a claim accrues.

         Current subsection (g) of 28 U.S.C. § 2409a, describes the statute of limitations applicable to claims brought by persons or entities other than the states:

Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

28 U.S.C. § 2409a(g). In contrast, current subsection (i) of 28 U.S.C. § 2409a, outlines the limitations period applicable to claims brought by a state:

Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands.

28 U.S.C. §2409a(i) (emphasis added).

         The Court is now tasked with determining whether North Dakota and the Counties complied with the limitations period of the Quiet Title Act to effectuate a waiver of sovereign immunity by the United States. Because North Dakota instituted its action on September 14, 2012, its attempt to quiet title is barred if the State received notice of the United States' adverse claim by September 14, 2000. See Docket No. 17 (Case No. 1:12-cv-125). The Counties attempt to quiet title is barred if they knew or should have known of the United States' adverse claim by July 30, 2000, as the Counties instituted their action on July 30, 2012. See Docket No. 1 (Case No. 1:12-cv-102). The Court first examines whether North Dakota timely brought its action, and then examines whether the Counties timely brought their action.

         A. QTA Statute of Limitations and North Dakota's Claims

         North Dakota filed its complaint on September 14, 2012. See Docket No. 1. In its motion to dismiss, the United States contends North Dakota's amended complaint should be dismissed because North Dakota cannot prove their claims are timely under the QTA. To determine whether North Dakota's claims were timely brought pursuant to the QTA, the Court looks to 28 U.S.C. § 2409a(i), which provides:

Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands.

28 U.S.C. § 2409a(i).[5] For the purposes of the accrual of an action brought by a state pursuant to subsection (i), “notice” shall be:

(1) By public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands, or
(2) By the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious.

28 U.S.C. § 2409a(k). Before the Court can determine whether the limitations period in Section 2409a(i)'s precludes North Dakota's claim, the Court must first decide whether Section 2409a(i) applies to the lands at issue.

         1. Applicability of 28 U.S.C. § 2409a(i) Limitation Period

         As outlined above, the twelve (12) year statute of limitations proscribed in subsection (i) only applies to lands “on which the United States or its lessee or right-of-way or easement grantee”: (1) has made substantial improvements or substantial investments or on which the United States (2) has conducted substantial activities in accordance with a management plan, such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities. 28 U.S.C. § 2409a(i). Both parties dedicate substantial space in their briefing to the issue of whether the concerned lands here are of the type of lands to which 28 U.S.C. §2409a(i) applies. The United States posits that the twelve (12) year limitations period of Section 2409a(i) applies because the Soil Conservation Service as well as the Forest Service and its permitees have made substantial improvements within the Dakota Prairie Grasslands, including improvements to the thirty-three feet on each side of sections lines. See Docket No. 90, pp. 42-49. According to North Dakota, the lands at issue are not of the type contemplated within Section 2409a(i) because any improvements or investments by the Soil Conservation Service or the Forest Service and its permitees' are not substantial activities for the purposes of Section 2409a(i) and are not significantly related to the section line right-of-way. See Docket No. 104, pp. 42-49.

         In its brief, the United States describes many distinct improvements and investments made to the Dakota Prairie Grasslands, including (1) improvements to combat dustbowl conditions and prevent soil erosion in the 1930s and 1940s, (2) range improvements, (3) oil and gas development, and (4) public recreation. Although many of the improvements and investments described by the United States were made within the Dakota Prairie Grasslands, the Court looks only to those improvements and investments made within the thirty-three feet on each side of the section lines of the Dakota Prairie Grasslands, to determine whether the United States, or its lessee or right-of-way or easement grantee, made substantial improvements or investments or conducted substantial activities in accordance with a management plan. See 28 U.S.C. § 2409a(i). In its first amended complaint, North Dakota explicitly and specifically requests the Court to “quiet title to the public easement that provides a right-of-way for public travel on the thirty-three feet on each side of section lines in North Dakota, regardless of whether a visible road or trail exists.” See Docket No.

         17. In particular, the State seeks to quiet title to this easement on land acquired by the United States in the 1930s, 1940s, and 1950s that is currently administered and managed through the Department of Agriculture by the Forest Service. Id. Accordingly, the scope of this quiet title action is limited to the lands within the thirty-three feet on each side of section lines, as presented by the State in its complaint. The question for the Court to then consider is whether Section 2409a(i) applies to the thirty-three feet on each side of the section lines within the Little Missouri National Grassland, Sheyenne National Grassland, and Cedar River National Grassland. Neither party has directed the Court to a decision by any court that meaningfully analyzes whether any improvement, activity, or investment by the United States' is considered ‘substantial' to determine the applicability of Section 2409a(i). Moreover, after a thorough review of QTA actions across the country, the Court was unable to identify any well-developed case law outlining what particular improvements, activities, or investments are “substantial” when the concerned land consists of a right-of-way for public travel within the 33 feet on each side of section lines. The sole decision in which the Court finds guidance is the Tenth Circuit's decision of San Juan County v. United States, which addressed whether the QTA limitations period barred Utah's claim to a right-of-way to use a road with the Canyonlands National Park. 754 F.3d 787, 790 (10th Cir. 2014). In San Juan County v. United States, the Tenth Circuit addressed the applicability of Section 2409a(i) and determined reservation of land as a national park, reconstruction of the park's access road, repair and maintenance of the disputed road to ensure it remained usable by vehicles, and restoration of the disputed road after floods were “substantial activities” conducted by the United States sufficient to trigger the application of Section 2409a(i). Id. at 795. However, the San Juan Court did not expound on its reasoning for determining these activities were “substantial activities” conducted by the United States. With only this guidance, the Court turns to examine investments, improvements, and activities of the United States, as well as its lessees or right-of-way or easement grantees, within the thirty-three feet on each side of the section lines in the Dakota Prairie Grasslands.

         In its brief, the United States identifies several improvements, activities, and investments made to the Dakota Prairie Grasslands, including (1) improvements to combat dustbowl conditions and prevent soil erosion in the 1930s and 1940s, (2) range improvements, (3) oil and gas development, and (4) public recreation. As previously discussed, the Soil Conservation Service managed most of the submarginal agricultural lands in the Land Utilization Project. These lands eventually became part of the National Grasslands, including the Dakota Prairie Grasslands. Improvements made by the Soil Conservation Service to these lands include the following:

[G]eneral land treatment, structural improvements, provision of transportation facilities, control of erosion, flood control, water storage, and development for forestry, recreation, and wildlife. Buildings and fences were removed; old roads no longer needed were blocked up; new roads were built where needed; suitable areas were seeded to grass or planted in trees; forest stands were improved and protected from fire; gullies were stopped; terraces, stock ponds and dams were built; and stream channels were widened and cleaned.

See Docket No. 90, Ex. H, pg. 25. The record is unclear whether these improvements were made within the thirty-three feet of the section lines in the Dakota Prairie Grasslands. However, the United States enumerates several specific improvements made within the thirty-three feet of the section lines of the Dakota Prairie Grasslands. For instance, the Soil Conservation Service planted many trees during its management of the land. See Docket No. 90, Ex. C, ¶ 20. In two locations, the tree plantings are large enough to block motorized travel the entire sixty-six feet (thirty-three feet on each side) of the section line. Several other tree plantings are within thirty-three feet of section lines. Id.

         Certain lands within the National Grasslands have also been made available to ranchers for grazing through cooperative grazing associations. The Forest Service issues permits to local grazing associations, allowing the associations to graze livestock on the lands. Pursuant to management programs for the grasslands, grazing associations are required to facilitate public grazing on the lands through conservation practices, which include construction of fences, cattle guards, and water supply improvements. The cost of these projects completed by grazing associations is then subtracted from the annual fee charged by the Forest Service for grazing on the lands. The Forest Service estimates 54 stockwater tanks, 35 dams, 2 dugouts, 25 water wells, 7 spring developments, 8 windmills, 4 corrals, 1, 309.29 miles of fence, and 227.89 miles of stockwater pipeline, constructed through conservation practices, are located within or across the thirty-three feet on either side of the sections lines within the Dakota Prairie Grasslands. See Docket No. 90, Ex. B, ¶ 32, and Ex. C, ¶ 16. In addition, at least ten exclosures (fences designed to exclude livestock and/or wildlife from certain areas) constructed by the Forest Service cross section lines.

         Within the Dakota Prairie Grasslands, the Forest Service and the Bureau of Land Management (“BLM”) cooperatively manage the leasing and drilling of federal minerals, such as oil and gas, under federal surface estates. According to its brief, the United States “owns the mineral rights for approximately 79% of the National Forest System lands within the Little Missouri National Grassland.” See Docket No. 90, p. 40. For federal mineral interests, the BLM enters into a mineral lease upon receiving authorization to do so from the Forest Service, after the Forest Service completes a leasing analysis. The lessee of the mineral interest must then request a permit to drill on an oil or gas lease. Before commencing operations, the lessee must have both an approved surface use plan of operations from the Forest Service as well as an approved permit. See 30 U.S.C. § 226(g).

         The United States identified forty-one (41) oil and gas well sites (including associated well pads) in the Dakota Prairie Grasslands located within thirty-three feet of a section line or across a section line. See Docket No. 90, Ex. A, ¶ 19, and Ex. B, ¶ 20. Of those forty-one leases, thirty-eight (38) involve the leasing of federal mineral interests. See Docket No. 148, Ex. F, ¶ 7 and Ex. G, ¶ 7. Of those well sites located within thirty-three feet of a section line or across a section line, the first was drilled in 1980. See Docket No. 90, Ex. A, ΒΆ 19. The Forest Service also grants permits to operators of special use facilities (e.g. compressor stations and trucking stations) to ...


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