Opinion
3:19-cv-02015-AC
02-15-2021
JOHN LUND, Plaintiff, v. UNITED STATES OF AMERICA and JOHN DOES 1-15, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Lund filed this lawsuit against the United States of America alleging the Bonneville Power Administration (“BPA”), though fifteen unnamed BPA employees (“Agents”) (collectively, “Defendants”), have repeatedly and without permission, authority, or just compensation, trespassed onto his real property, thus depriving him of valuable property rights and causing him person al harm. He asserts claims for trespass under the Federal Torts Claims Act (28 U.S.C. §§ 2671-2680 (2000)) (“the FTCA”), an inverse condemnation claim under the Little Tucker Act (28 U.S.C. § 1346(a)(2)), and a Bivens claim against Defendants.
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants move to dismiss Lund's complaint for lack of subject matter jurisdiction. (Defendants' Motion [ECF No. 7] to Dismiss for Lack of Subject Matter Jurisdiction (the “Motion”).) Specifically, Defendants contend that because Lund's claims all pertain to land in which the United States claims an interest, the Quiet Title Act (28 U.S.C. § 2409a (1986)) (“QTA”) governs Lund's case to the exclusion of all other theories and remedies. Thus, Defendants conclude, Lund's FTCA and Bivens claims must be dismissed. The court then must determine, according to Defendants, the parties' respective rights under the easement and whether, depending on that determination, Lund is entitled to a remedy under the QTA.
The court finds the QTA governs here because a dispute over title to the subject parcel underlies the parties' dispute. Because the QTA provides the exclusive means by which Lund may seek a remedy, it pre-empts his claims to the extent those claims assert more general remedies under other theories. Consequently, Defendants' motion should be granted and Lund's complaint dismissed, with leave to amend his complaint to state a claim under the Quiet Title Act.
Background
I. The History of the Lund Property.
A. The chains of title.
Lund owns real property located along Oregon Highway 6 at Lees Camp in Tillamook County, Oregon (the “Lund Property”). (Complaint [ECF No. 1], ¶ 2.) The Lund Property's provenience is important to resolving the issues raised in Lund's complaint.
In January 1944, Gerald and Nellie Reheer granted to Rex and Bernadine Lee (“the Lees”) the tract of land that eventually became the Lund Property. (Declaration of Daniel Ackerman [ECF No. 8] (“First Ackerman Decl.”), p. 3, ¶ 5 and Exh. 1, pp 1-2.) The grant recited that “the above-described [Lund Property] is subject to an easement for road purposes along the Wilson River, which road is to be of a sufficient width to make said road a good passable highway, not less than twenty-four feet in width.” (First Ackerman Decl., Exh. 1, p. 2.) In October 1945, the Lees granted to B.H. and Anne Reheer (“the Reehers”), who owned an adjacent parcel, a road easement across the Lees' property:
Throughout his first declaration, Ackerman refers to the Lund Property as “the Subject Property.” To promote clarity, the court hereinafter refers to it as “the Lund Property.”
After its construction, the highway was called the Wilson River Highway, and subsequently designated Oregon Highway 6. Second Declaration of Daniel Ackerman [ECF No. 17](“Second Ackerman Decl.”), Exh. 18; Second Declaration of James Clark [ECF No. 18](“Second Clark Decl.”), p. 2. ¶ 2.
[The Lees] hereby grant[] unto [the Reehers], heirs and assigns the free and uninterrupted use, liberty and privilege of and passage over and along a certain established logging road across [the Lund Property] above described, not to exceed 40 feet in width; together with free ingress, egress and regress to and for [the Reehers], their heirs and assigns, at all times forever hereafter into, along upon and out of the said roadway.
TO HAVE AND TO HOLD all and singular, the privileges aforesaid to them [the Reehers], their heirs and assigns to their use and behoof.
(First Ackerman Decl., p. 3, and Exh. 2, p. 2.) (hereinafter, the logging road is referred to as “the Subject Road”). Subsequent aerial photographs taken in 1952, 1955, and 1967 confirmed both the existence of the Subject Road and its location on the Lund Property. (First Ackerman Decl., p. 3 and Exh. 3. Compare Declaration of James Clark [ECF No. 9] (“First Clark Decl.”), Exhibit 5 (Google Maps depiction of same area).)
The logging road, which the court refers to as “the Subject Road, ” later became Reheer Road.
In 1955, the United States acquired easements from multiple property owners to build and maintain power lines, including the two transmission line and access road easements relevant here, one obtained on August 18, 1955 (the “August Easement”), and the other obtained on December 2, 1955 (the “December Easement”). (First Ackerman Decl., pp. 4-5 and Exhs. 4, 5.) The August Easement was obtained from Reehers Incorporated and granted to the United States a transmission line easement, which grant included an access road to be built from the Subject Road to the transmission towers on the easement. (First Ackerman Decl., p. 4 and Exh. 4.) The December Easement was obtained from Elmer and Alma Beeler, Russell and Beulah Thornbury, and Thomas and Betty Bowman, and granted the United States rights identical to those granted in the August Easement. (First Ackerman Decl., pp. 4-5 and Exh. 5.) The December Easement provides:
TRANSMISSION LINE EASEMENT AND ACCESS ROAD EASEMENT
The Grantors, ELMER S. BEELER AND ALMA D. BEELER, husband and Wife, owners; RUSSELL W. THORNBURG AND BEULAH M. THORNBURG, husband and wife, contract purchasers; and THOMAS K. BOWMAN AND BETTY L. BOWMAN, husband and wife, subcontract purchasers, for and in consideration of the sum of ONE HUNDRED DOLLARS ($100, 00), in hand paid by the UNITED STATES OF AMERICA, receipt of which is hereby acknowledged, hereby grant, bargain, sell and convey to the UNITED STATES OF AMERICA and its assigns, a perpetual easement and right to enter and erect, operate, maintain, repair, rebuild, and patrol one or more electric power transmission lines and appurtenant signal lines, poles, towers, wires, cables, and appliances necessary in connection therewith, in, upon, over, under and across the following described parcel of land in the County of Tillamook, in the State of Oregon, to-wit:
That portion of that part of the SW¼SW¼ of Section 3 and SE¼SE¼ of Section 4, Township 1 North, Range 7 West of the Willamette Meridian, Tillamook County, Oregon, within a tract of land described as: Beginning at the point of intersection of the centerline of the Wilson River and the centerline of the Wilson River Highway in the NW¼NW¼ of Section 10, Township 1 North, Range 7 West, W.M.; thence easterly along said highway a distance of 500 feet; thence north a distance of 700 feet; thence westerly a distance of 1386 feet, more or less, to a point which is 145 feet, more or less, north of the center of the Wilson River; thence southerly a distance of 145 feet to the center of the Wilson River; thence southerly along the center of said Wilson River to the point of beginning, which lies within a strip of land 100 feet in width, the boundaries of said strip lying 50 feet distant from, on each side of and parallel to the survey line of the Gales Creek-Tillamook section of the Forest Grove-Tillamook transmission line as now located and staked on the ground over, across, upon and/or adjacent to the above described property, said survey line being particularly described as follows:
Beginning at survey station 1433+89.5 a point on the east line of Section 3, Township l North, Range 7 West, W.M., said point being N. 14° 39' 10" W. a distance of 711.8 feet from the southeast corner of said Section 3; thence S. 88° 19' 50" W. a distance of 4737.1 feet to survey station 1481+26.6; thence S. 69° 14' 50" W. a distance of 1185.3 feet to survey station 1493+11.9; thence S. 84° 12' 20" W. a distance of 133.9 feet to survey station 1494+45.8 a point in the NE¼NE¼ of Section 9, Township 1 North, Range 7 West, W.M., said point being S. 80° 19' 30" W. a distance of 885.4 feet from the northeast corner of said Section 9; together with the right to clear said parcel of land and keep the same clear of all brush, tuber, structures, and fire hazards, provided however, the words “fire hazards” shall not be interpreted to include growing crops; and also the present and future right to top, limb, fell, and remove all growing trees, dead trees or snags (collectively called “danger trees”) located on Grantors' land adjacent to said parcel of land, and within a strip of land 50 feet in width on the northerly side of and 75 feet in width on the southerly side of and beyond the outside limits of the right-of-way, which could fall upon or against said transmission and signal line facilities.
Also, in addition to the above described easement and right-of-way, the Granters herein grant, bargain, sell, and convey unto the United States of America a permanent easement and right-of-way over, upon, and across a part of the SW¼SW¼ of Section 3, Township 1 North, Range 7 West, W.M., Tillamook County, Oregon, excepting the Gales Creek-Tillamook transmission line right-of-way, as is now surveyed and staked on the ground and as is shown colored in red on drawing, serial number 85326, attached hereto and, by reference, made a part of the description of this access read easement and right-of-way, for the purpose of constructing an access road approximately 14 feet in width, with such additional widths as are necessary to provide for cuts, fills, and turnouts, and for curves at angle points, to be used in connection with the aforementioned transmission line easement and right-of-way, together with such other rights and the right to construct such other appurtenant structures as are necessary to accomplish the purposes for which this access road easement and right-of-way is granted.
The Grantors will be permitted the right of ingress and egress over and across said road, and the right to pass and repass along and on said road in so far as the same extends across the land of the Grantors, said right to be exercised in a manure that will not interfere with the use of the road by the United States of America, its agents and assigns.(First Ackerman Decl., Ex. 5, pp. 1-2.)
Although separate documents, the two easements contain nearly identical language of the rights granted, with exceptions made only for the names of the granting parties and descriptions of the grantors' specific parcels.
The December Easement is most relevant to the Lund Property and to the parties' dispute, because Lund acquired the Lund Property in 2004 subject to it. (First Ackerman Decl., p. 7, ¶¶ 14, 15 and Exh. 11; Declaration of Daniel Ackerman [ECF No. 17] (“Second Ackerman Declaration”), p. 1, ¶ 1.) Lund confirms this in his declaration: “I acquired my property from a former wife of Bill Stewart[.]” Declaration of John Lund (“Lund Decl.”), p. 1; First Ackerman Decl., Exh. 11 (Statutory Warrant Deed, Stewart to Lund). Stewart's title came from Rex and Bernadine Lee in 1972, the couple who, as mentioned above, obtained their title from Gerald and Nellie Reeher in 1944. (First Ackerman Decl., pp. 3, ¶ 5, 5-6 ¶ 11, and Exhs. 1, pp. 1-2; 7.)
Lund acknowledges that his grantor, Stewart, during the mid-1950s had given the BPA “permission to cross the property to access powerlines located on an easement it had acquired” on land north of the Lund Property. (Lund Decl. [ECF No. 13] (“Lund Decl.”), ¶ 2.) Lund states that he “continued to give BPA permission to cross the property, but never spent any time or money maintaining the roadway.” (Id. at ¶ 3.) Lund claims that in August 2014, he “expressly revoked BPA's permission to continue using my property” (Id. at ¶ 4), but that even after doing so, BPA employees would come upon the Lund Property, sometimes with his “limited permission” and other times without his “consent.” (Id. at ¶ 5.) Lund observes that both before and after he revoked permission for BPA to use the Lund Property, BPA approached him “at various times with various offers to purchase an easement to use the roadway on the property, ” but that no agreement has yet been reached. (Id. at ¶ 6.)
B. Evidence.
1. Daniel Ackerman.
Daniel Ackerman (“Ackerman”), is an Acquisition Land Surveyor assigned to BPA's Mapping Group, and has worked for BPA under contract or as an employee since September of 2012. (First Ackerman Decl., pp. 1, 2, ¶¶ 1, 3.) Since 2003, he has been a licensed Professional Land Surveyor in Washington State, and in 2006 he became a Certified Federal Surveyor. (First Ackerman Decl., pp. 1-2, ¶ 2.) He provides BPA with “professional opinions and guidance regarding boundaries, legal descriptions, and title issues, for the acquisition of land rights on federal, public, private, and tribal lands covering the seven states in BPA's service territory including: Washington, Oregon, Idaho, Montana, California, Nevada, and Wyoming.” (First Ackerman Decl., p. 2, ¶ 2.) His job duties include “researching, reviewing and evaluating deeds, surveys, maps, title reports and other evidence for the purpose of making title and ownership determinations and to prepare accurate land descriptions for BPA's Realty Group to acquire the land rights needed for BPA to construct, access, maintain the regional electric transmission network.” (First Ackerman Decl., p. 2, ¶ 3.) Ackerman is assigned to coordinate those survey services with BPA's Fish and Wildlife and Mobile REDI telecommunications projects. (Id.)
Ackerman researched and analyzed the rights, burdens, and obligations accompanying and associated with the Lund Property. (First Ackerman Decl., p. 2, ¶ 4.) In performing this task, he worked with two BPA surveyors and one survey technician to gather, assess, and present the facts stated in his declaration and to gather or create the exhibits that accompany it. (First Ackerman Decl., p. 2, ¶ 3.) Ackerman's first declaration [ECF No. 8] is ten pages long and precisely details the chain-of-title of the Lund Property and the neighboring properties. Accompanying his declaration are 17 exhibits [ECF Nos. 8-1 through 8-17] comprising 223 pages that support and illustrate his team's findings.
Based on his team's research and analysis and citing the right-of-way easements, Ackerman concludes that BPA has an easement over the Subject Road:
“In my professional opinion the right to access the transmission line via the Subject Road is included with ‘such other rights . . . as are necessary to accomplish the purpose' of the transmission line easement, because the Subject Road is the most reasonable and obvious way to reach the right-of-way from Oregon Highway 6.(First Ackerman Decl., pp. 3-4, ¶ 9.) After chronicling a series of transfers, surveys, lot-line adjustments, and boundary-line adjustments about and around the Lund property, occurring both before and after Lund's acquisition of the Lund Property on February 9, 2004 (First Ackerman Decl., pp. 5-9, ¶¶ 11-22), Ackerman explains in detail the basis of his conclusion:
In my professional opinion, the provisions in Transmission Line and Access Road Easement, Book 150, Page 521, in 1955, and referenced above in Paragraph 9, have run with the land in the same location since it was first granted to BPA by the Lund's predecessor in title. A significant portion of that easement was transferred to Reeher's Homestead Inc., in that lot line adjustment referenced above in Paragraph 14, but based on the survey field evidence collected in January 2019 as referenced on Paragraph 22, a portion of the easement still exists directly on the Lund Property. The said Transmission Line Easement grants BPA “. . . a perpetual easement and right to enter . . .” to maintain its transmission line that has been in existence in 1955. Plus, the easement grants rights to clear “danger trees” on the area “75 feet in width on the southerly side of and beyond the outside limits of the right-of-way, ” which encumbers an even greater portion of the Lund Property.
In my professional opinion, the route of entry to the easement area is that same “existing logging road” which was granted to the Reehers in 1944, in the Easement in Book 92, Page 550, referenced above in Paragraph 6 and delineated on Survey A-2488 in 1973, referenced above in Paragraph 12. The historical aerial photography referenced above in Paragraph 7, dating back to 19 52, shows the road to be in the same location as it exists today. That road is represented by a double dashed line depicted on BPA Plan Maps referenced above in Paragraph 10. The road connects the new road that BPA built pursuant to Easement 138536 to Oregon Highway 6.(First Ackerman Decl., pp. 9-10, ¶¶ 23-24.)
In his second declaration [ECF No. 17], comprising three pages and accompanied by two exhibits [ECF Nos. 17-1 and 17-2], Ackerman first notes that his first declaration traces the chain of title for the Lund Property “back to Beeler, and the neighbor Reeher before that, ” that it identifies the 1955 transmission line and access road easements the United States procured from Beeler, and consequently that “according to my professional surveyor's assessment, the Beeler Easement directly burdens the Lund property.” (Second Ackerman Decl. p. 1, ¶ 1.) Ackerman then explains why BPA's easement burdens the Lund Property:
The Beeler Easement also grants the United States express rights of action to remove danger trees on the 75-foot portion lying to the south of the 100-foot wide right of way. Using a MicroStation cadd drawing created using field survey data observed by BPA surveyors in February of 2019, I have calculated that 1.03 acres out of the original total of 1.54 acres acquired still burden the Lund property. The acreage calculations reported here are based on the property boundaries established and monumented on the ground, as reported by survey A-2488, referenced in paragraph 12 and attached as Exhibit 8, in my Declaration dated March 5, 2020.
* * * *
In 1955, when the Easement was executed by Beeler, he owned the entire strip of land (Tax Lots 100, 200, and 300) over which Reeher Road runs[.]
(Second Ackerman Decl. pp. 2-3, ¶¶ 3, 5.) Ackerman observes that Lund, in answer to BPA's First Set of Requests for Admission, admitted the Beeler provenience. (Second Ackerman Decl. p. 3, ¶ 5.c. & Ex. 19.)
2. James Clark.
James Clark is a Realty Specialist who has worked for BPA since 2012. (First Clark Decl., p. 1, ¶ 1.) As a Realty Specialist, Clark's duties include land acquisition, land management, and land disposal, and serving as BPA's land liaison for capital projects and for his assigned district. (Id., p. 2, ¶ 3.) Before his employment with BPA, Clark worked for nine years as a Real Estate Broker in Yamhill County, Oregon. (First Clark Decl., p. 1, ¶ 2.) His analysis of the land areas in dispute relies on collaboration and input from various BPA realty specialists, land surveyors, attorneys, transmission line maintenance staff, and vegetation management staff. (Id. at p. 2, ¶ 4.)
Clark identifies the land tracts over which BPA acquired the right to construct the Gales Creek-Tillamook Section of its transmission line in 1955. (Id., p. 2, ¶ 5.) Clark refers to the August Easement and the December Easement and to the burdened tracts of land, traces the Subject Road through those properties, notes that BPA's use of the Subject Road began when it acquired these easements, and confirms that BPA since then has used the Subject Road to access, maintain, inspect, and patrol the transmission line on the easements that burden, among other tracts, the Lund Property. (Id., pp. 2-5, ¶¶ 5-12.) Clark also cites a 1973 Reeher Incorporated survey of the Subject Road, then known as “The North Fork Road, ” to confirm that it later renamed “Reeher Road.” (Id., pp. 5-6, ¶ 13.)
In his second declaration, Clark reaffirms that “BPA has used what is presently known as Reeher Road since 1955 to reach the Easement area from Oregon Highway 6 (also called the Wilson River Highway).” (Second Clark Decl., at p. 2, ¶ 2.)
In his second declaration, Clark reaffirms that “BPA has used what is presently known as Reeher Road since 1955 to reach the Easement area from Oregon Highway 6 (also called the Wilson River Highway).” (Second Clark Decl., at p. 2, ¶ 2.) Clark points out that the Subject Road is the only road by which BPA can transport equipment and personnel from Oregon Highway 6 to the section of the transmission line easement that contains Structure 26/5, which is the section that burdens the Lund Property. (Id. at p. 3, ¶ 4.)
Clark also notes that “though it has meandered, been rebuilt and renamed, BPA has used this road throughout the years.” (Id., p. 2 n.1.)
In his second declaration, Clark also explains why the alternative access routes that Lund proposes in his declaration [ECF No. 13] are not feasible. All of the proposed alternative access routes Lund identifies are on his neighbor's property and “would require BPA to acquire approximately 3000 linear feet of additional access road rights to construct and improve the routes [Lund] highlighted in Appendix A [of Plaintiff's Response to Defendant's First Set of Interrogatories].” (Second Clark Decl., p. 3, ¶ 5). Clark also observes that in identifying proposed alternative routes, Lund failed to account for the problems inherent in those routes that make them “unreasonable and impractical:” none of them are safe, each alternative route presents virtually impassable terrain features, and all would have greater environmental impact if BPA attempted to develop and use them. (Id. at pp. 3-4;. ¶¶ 5-7.) Clark concludes: “While BPA preferred to have an express easement to include the right to use and rebuild the road, BPA concluded it could make do with its existing ‘right to enter' under the Beeler Easement, using Reeher Road, which is the most obvious and reasonable way to reach the Easement area, as BPA has done since 1955.” (Id. at p. 5, ¶ 8.)
3. Lund.
Lund's only evidence to refute the QTA's applicability to his claims is his two-and-one-half-page declaration [ECF No. 13] in which he describes a discussion with Bill Stewart, from whom he acquired the Lund Property, and recounts various conversations with BPA agents and employees. Lund offers no exhibits to support his declaration or his opposition. He did not submit declarations or evidence from surveyors, civil or environmental engineers, title searchers, or realty specialists; provided no chain-of-title analysis; and offered no other evidence to contest Defendants' evidentiary submissions or to create an alternative accounting of his asserted ownership interests in the Lund Property or in the contested easement. Furthermore, many of the statements contained in his declaration's nine paragraphs are conclusory, not based on personal knowledge, or lack sufficient foundation. Fairly read, his narrative mirrors the allegations contained in his complaint and the arguments contained in his opposition to the Motion.
II. The Parties' Contentions.
In his First Claim for Relief, Lund seeks damages for trespass under the FTCA based on the United States' repeated entry over the Disputed Parcel after Lund revoked his permission. (Complaint ¶¶ 8-15.) He also alleges BPA and its contractors used the Subject Road to access BPA's power transmission lines in the past with his permission, but that they continued to do so even after he revoked his permission. (Complaint ¶¶10, 11.)
In his Second Claim for Relief, Lund asserts he is entitled to just compensation for inverse condemnation under 28 U.S.C. § 1346. (Complaint ¶¶ 1-7, 16(1)-18.) He alleges that to the extent BPA's repeated entry and use of the Lund Property has created a unilateral easement for BPA, then a taking has occurred without just compensation to Lund. Thus, he is entitled to a money award under the Fifth Amendment of the United States Constitution. (Complaint ¶¶ 17(1), 18(1).)
Lund begins both the Second and Third Claim for Relief with claim number “16” in his complaint. Here, “16(1)” refers to the first use of “16” in the second claim.
For the reasons explained in footnote 1, “17(1)” and “18(1)” refer to the first use of “17” and “18” in the second claim.
In his Third Claim for Relief, Lund asserts the Agents have repeatedly violated his constitutionally protected right against deprivation of property without due process under the Fourteenth Amendment, right against warrantless entry under the Fourth Amendment, and right against the taking of private property without just compensation under the Fifth Amendment. (Complaint ¶¶ 1-7, 16(2)-21.) He asserts that BPA has federal authority over the Agents, unnamed employees of BPA whom Lund alleges were personally involved in the tortious conduct and the deprivation of his constitutional rights. (Complaint ¶ 4.) Lund alleges he is entitled to an injunction barring Agents, or any other agent of the United States, from entering the Lund Property pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as to money damages for losses incurred by deprivations of his constitutional rights. (Complaint ¶ 20.)
Again, as explained above, “16(2)” refers to the second use of “16” in the third claim.
Defendants observe that the Easement is for the purpose of building, operating, and maintaining electric power transmission lines and related equipment on a 100-foot right-of-way, and that it also grants three relevant express rights: (1) a right to access a right-of-way; (2) a right to build a new access road on the right-of-way; and (3) a right to keep a seventy-five foot wide area south of the right-of-way clear of “danger trees” which could harm the operation of the transmission lines. (Motion, at 2.)
Defendants have moved to dismiss Lund's complaint for lack of subject-matter jurisdiction. (Motion at 4.) Defendants assert BPA claims an interest in the Disputed Parcel to access the Easement's right-of-way (id.) and that the Subject Road, which connects to Oregon Highway 6, is the only reasonable means of ingress or egress to the Easement, thus giving them a right to continue crossing over the Disputed Parcel. (Motion at 7.) On these facts, Defendants conclude Lund's suit is governed exclusively by the QTA, because it involves real property in which the government claims an interest; therefore Lund's other claims are preempted. (Motion at 3.) Defendants also argue the QTA's statute of limitations would time-bar any QTA claim Lund could bring, and accordingly, this action should be dismissed.
Lund counters that his FTCA and Bivens claims are proper because they do not challenge Defendants' use of the Easement, and argues that the claim he brings, trespass on the Disputed Parcel, is outside the Easement's scope. (Resp. to Defs.' Mot. [ECF No. 12] (“Resp.”) at 4.) Lund alternatively argues that should the court find his claims more properly brought under the QTA, then the claims should not be time-barred and he should be granted leave to amend, because he was not aware BPA was asserting a right to property until after he revoked his permission to allow BPA to access the Disputed Parcel. (Resp. at 10.) Accordingly, Lund contends the statute of limitations for a QTA claim could not have begun to accrue prior to August 2014.
Legal Standard
The United States District Courts are courts of limited subject-matter jurisdiction, having original jurisdiction over all civil actions arising under the Constitution, law, or treaties of the United States. 28 U.S.C. § 1331. A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject-matter jurisdiction, and the party asserting jurisdiction bears the burden of proving the court has jurisdiction over their claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 9744, 979-80 (9th Cir. 2007) (the court treats motion attacking the substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion). In deciding a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).
Discussion
Defendants argue the QTA is the sole source of the court's authority to decide the real property rights underlying Lund's claims. Defendants support their position with two arguments. First, the QTA governs this case to the exclusion of other claims and remedies, thus preempting Lund's FTCA and Bivens claims. Second, Defendants contend that Lund's inverse condemnation claim under the Little Tucker Act must be dismissed, because such a claim concedes the government's possession of real property and Lund, in his complaint, adamantly asserts an ownership interest here. Finally, Defendants oppose Lund's alternative request to amend his complaint to add a QTA claim because the applicable statute of limitations bars a QTA claim here. Because the parties couple subject-matter jurisdiction for the FTCA and Bivens claims in their respective discussions, the court addresses those claims first, along with the QTA statute of limitations issue. The court then addresses Lund's inverse condemnation claim.
I. Lund's First and Third Claims for Relief: FTCA and Bivens.
A. The QTA applies.
Federal sovereign immunity insulates the United States from lawsuits in the absence of an express waiver of immunity by Congress. Block v. North Dakota, 461 U.S. 273, 280 (1983). In a suit against the federal government, discerning whether the United States has waived sovereign immunity is itself a question of subject-matter jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The United States has waived its sovereign immunity for claims under the FTCA, including any civil action or claim not exceeding $10,000 in amount, and founded either upon the Constitution or any “Act of Congress.” 28 U.S.C. § 1346(a)(2) (2013); see Tobar v. U.S., 639 F.3d 1191, 1196 (9th Cir. 2011).
The United States' sovereign immunity also is waived when federal agents act under color of law. In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the plaintiff brought a civil action against the United States and recovered damages for injuries sustained following federal agents' violation of his constitutional rights. Id. at 397. Bivens recognized that agents of the federal government acting under federal authority have a higher propensity to harm the rights of private citizens. Id. at 391-92. The Court found the Fourth Amendment operates as a limitation on the exercise of federal power, and found where federally protected rights have been invaded, the courts may adjust their remedies to grant the necessary relief. Id. at 392. Because the plaintiff stated a cause of action arising under the Constitution, the claim could be heard in court. Id. at 397.
The United States also has waived its sovereign immunity under the QTA, allowing it to be named as a defendant in a civil action to adjudicate a disputed title to real property in which it claims an interest. 28 U.S.C. § 2409a(a) (1986). This section contains a caveat that the section does not apply to “actions which may be or could be brought under sections 1346 . . . of this title.” Id. The QTA thus provides an exception for claims brought under the FTCA (id.), but the QTA may also provide exclusive jurisdiction when claimants explicitly challenge the United States' title to real property. Robinson, 586 F.3d at 686. If a suit falls within the substantive scope of the QTA by challenging the title of the United States, the QTA serves as an exclusive authority with a preemptive effect on other claims. Id. (quoting Block, 461 U.S. at 280).
Lund argues this court has subject-matter jurisdiction over his FTCA and Bivens claims as claims under federal law and the Constitution, and thus the QTA does not exclude these claims. (Resp. at 1.) Defendants reply that a plaintiff may not, as Lund attempts here, litigate a claim that in fact is a QTA claim under a different statute imposing different requirements and providing different remedies. (Motion at 8.) Defendants observe that the QTA therefore should govern this case exclusively, because the allegations regarding the Disputed Parcel challenge the scope of the Easement, which in turn is central to the question of which law applies in determining jurisdiction. (Motion at 6.) While Lund insists he is the sole owner of the Disputed Parcel, Defendants contend the nature of the complaint necessarily implicates the Easement and, thus, constitutes a dispute involving the scope Easement.
The court first addresses whether the QTA preempts Lund's FTCA and Bivens claims. Supreme Court case law determines whether or not Lund's claims are governed by the QTA. In Block v. North Dakota, the Supreme Court of the United States interpreted Congress's intent in the Quiet Title Act:
The legislative history establishes that Congress intended the QTA to provide the exclusive means by which adverse claimants can challenge the United States' title to real property . . . . The rule that a precisely drawn, detailed statute pre-empts more general remedies is applicable here. Cf. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402. Pp. 1816-1819.Block, 461 U.S. at 273.
In United States v. Mottaz, the court held a party's claim was brought within the scope of the QTA based on the description of her claim. 476 U.S. 834, 841-42 (1986). There, the plaintiff maintained she possessed sole title to the property, the ownership of which was disputed by the United States. Mottaz, 476 U.S. at 842. The Court found the plaintiff's claim to title central to her suit and, therefore, held her claim within the scope of the QTA. Mottaz, 476 U.S. at 842. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Band of Indians v. Patchak, 57 U.S. 209 (2012), the Court interpreted the plain language of the QTA and found it gives the district court jurisdiction over “civil actions . . . to quiet title” to property in which the United States claims an interest. Id. at 217 (quoting 28 U.S.C. 1346(f)).
Two elements to a QTA claim are important to the Lund's claims here: whether there is a dispute over title to real property; in which 2) the United States claims an interest. Robinson, 586 F.3d at 686 (quoting 28 U.S.C. § 2409(a)). In Robinson, the Ninth Circuit set out a pragmatic approach to determining whether a claim is excluded by the QTA. There, the court concluded that a suit which actually challenges the federal government's title, however denominated, falls within the scope of the QTA regardless of the remedy sought. Robinson, 586 F.3d at 688. “Where, on the other hand, there was no real dispute as to an ownership interest, courts have held that the QTA does not apply to a related tort claim.” Id. (citing Dunbar Corp. v. Lindsey, 905 F.2d 754, 759 (4th Cir.1990) (permitting an action for trespass where the plaintiff did not assert an ownership interest in his complaint)).
In tandem, Robinson and Block define the QTA's reach when disputes over title to real property involve an easement. Haury Living Trust by and through Haury v. United States, No. 3:19-cv-00853-HZ, 2019 WL 5699598, at 2 (D. Or. Nov. 4, 2019). Applying those cases, Chief Judge Hernández of this court explained that a challenge to the scope of an easement also is properly brought under the QTA, whereas challenges over use of an easement are not. Id. A challenge to property “use” must involve existing easement rights, but a challenge to the scope of an easement is concerned with dispute over rights that may have been granted in an easement, or the “bundle of sticks” which give way to permissive rights conveyed to the United States. Id.
These authorities inform the court's understanding of the essence of Lund's claims: his assertion of title is central to those claims. Lund alleges “BPA and its agents and contractors have repeatedly and without lawful authority or just compensation used and trespassed upon Plaintiff's property, thereby depriving him of valuable property rights and causing him personal harm.” Complaint, ¶1 (italics added). Lund asserts that “[t]he Lund Property contains a private road that links Oregon State Highway 6 to an area used by a company owned by Plaintiff's family for the operation of private vacation cabins. That area is near an easement owned and maintained by BPA for power transmission lines.” Complaint, ¶ 9 (italics added). And he contends that “[i]n times past, BPA and its contractors used the private road to access its power transmission lines with Plaintiff's permission. In August 2014, Plaintiff formally revoked permission for BPA and its contractors to continue using the private road to access its power lines.” Complaint, ¶ 10 (italics added).
Each of Lund's three claims for relief is premised on his ownership of the Lund Properly and on the United States' alleged violation, through BPA and its agents, of that ownership interest. Lund's assertion that in the past he gave and later revoked “permission” for BPA to come upon and cross his property further manifests that ownership is the issue raised in his complaint. He alleges that even though he has “revoked [his] permission, ” BAP and its agents “continue using his road and property” (Complaint, ¶ 11), which use violates his right of exclusive possession.” Complaint, ¶ 12.
Counter to these allegations is Defendants' equally unequivocal assertion that BPA has, and has had continually since 1955, an easement to use the Subject Road on and over the Lund Property. Defendants support their assertion with extensive and detailed analysis backed by evidence to show their use of the Subject Road and the Disputed Parcel during that time. Thus, there is no doubt here that Lund's claims involve a dispute over ownership or, at least, over the scope of the Easement. Under either premise, Lund's claims fall squarely under the QTA.
Accordingly, the court finds Lund's FTCA and Bivens claims arise from disputed rights to access the Easement, which brings his claims under the QTA's purview. Therefore, the court finds it does not have subject-matter jurisdiction over Lund's First and Third Claims for Relief. Because the QTA is intended as the exclusive source of jurisdiction over claims encompassing the scope of an easement, it preempts Lund's FTCA and Bivens claims and is the sole source of jurisdiction here.
B. Lund should be granted leave to amend his complaint.
Lund asserts that if the court finds the QTA preempts his FTCA and Bivens claims, the court should allow him leave to amend his complaint. Defendants argue the QTA's statute of limitations renders any QTA claim time-barred. Defendants assert they have used the Disputed Parcel for decades prior to Lund's revocation of permission and, thus any claim under the QTA would be futile in light of a lapsed statute of limitations. (Motion at 15-16.)
As Defendants observe in their Motion, claims under the QTA are subject to a twelve-year statute of limitations that begins to accrue on the date the plaintiff, or their predecessor in interest, “knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g)(1986). Accordingly, Defendants frame the “accrual question” as “‘whether the United States' actions would have alerted a reasonable landowner that the government claimed an interest in the land.'” (Mot. at 15 (citation omitted).)
The Ninth Circuit explained that simple knowledge of an adverse claim is insufficient to trigger the statute of limitations under the QTA. Michel v. U.S., 65 F.3d 130, 131 (9th Cir. 1995). The facts regarding land ownership and the easement in Michel are effectively the inverse of the present case, but the principles explained by the Ninth Circuit remain relevant here. In Michel, the government argued that a plaintiff who filed a lawsuit in 1992 should have known long before that he had a claim of a right to use roads across a government refuge, having been aware of the government's title since the 1940s. Id. There, the court concluded that when a plaintiff claims a non-possessory interest such as an easement across the government land, the claim accrues only once the government acts “adversely to the interests of plaintiffs, denies or limits the use of the roadway for access to the plaintiff's property.” Id. at 132 (quoting Werner v. United States, 9 F.3d 1514, 1516 (11th Cir. 1993)). The court elaborated, explaining a contrary holding would force a claimant to bring a claim within twelve years even if the government gave no clear indication it contested the claimant's right. Michel, 65 F.3d at 132. Thus, the court held the plaintiff's claim did not accrue until they knew or should have known the government claimed exclusive rights over access to the property in dispute. Id.
The Werner court found limitations on a plaintiff's claim of an easement over government land even though plaintiffs knew of the government's title for more than twelve years.
Here, BPA used a portion of the Lund Property, via the Disputed Parcel, to access the Easement “for decades, ” and Defendants assert BPA accessed the Easement for vegetation management at least annually, using the Subject Road over the Disputed Parcel. (Motion at 2-3, 15.) Initially, this use was pursuant to permission granted by Lund's predecessors-in-interest at the time of the Easement's creation. (Motion at 5-6.) Defendants' evidence demonstrates a continued entry over the Disputed Parcel to access the Easement, and Defendants argue that on this evidence of continued entry, Lund's predecessors-in-interest should have been alerted to BPA's ingress and egress at least annually since 1955. (Mot. at 15-16.) But Michel instructs here that the statute of limitations began to accrue only once Defendants affirmatively claimed their interest in the Disputed Parcel, thus making plaintiff aware of a disputed interest. The Tenth Circuit, in a separate case, arrived at the same conclusion regarding the accrual of a statute of limitations for QTA claims, holding the “[k]nowledge of a claim's full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff's.” Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980).
The court finds Lund was not reasonably aware that BPA had an adverse claim to the Disputed Parcel until after he revoked his permission, because previously he reasonably believed himself to be the sole and exclusive owner of the Disputed Parcel who merely allowed BPA to access the Easement with his permission, just as he reasonably believed his predecessor-in-interest had done before him. (Complaint ¶¶ 10-14; Lund Decl. ¶¶ 2-7.) Lund testified BPA approached him to purchase rights to the Disputed Parcel both before and after he revoked BPA's permission to use the Road on the Lund Property, but - critical to the analysis here - it never claimed an adverse interest to the Disputed Parcel. (Lund Decl. ¶¶ 6-7.) Even if BPA's use of the Disputed Parcel to access the Easement was permissive under Lund's predecessors-in-interest, Lund was not necessarily aware of any dispute of title until August 2014. It was at this point when Lund asserted what he believed to be his sole ownership of the Disputed Parcel, and Defendants continued to access the Easement over the Disputed Parcel, having never previously asserted a property interest over the Disputed Parcel to Lund. (Lund Decl. ¶ 7.) Defendants' arguments to the contrary are unpersuasive under the standard articulated in Michel and Knapp. Viewing the facts alleged in the light most favorable to Lund, the court does not find Lund knew the Disputed Parcel actually was in dispute. The court thus finds Lund could not reasonably have known of Defendants' adverse interest until he revoked BPA's permission to access the Easement via the Disputed Parcel in August 2014.
The court concludes that the statute of limitations for a QTA claim here has not lapsed. Accordingly, the court finds Lund's claim to resolve ownership of the Disputed Parcel is not time-barred. Because the QTA preempts Lund's FTCA and Bivens claims, those claims should be dismissed without prejudice and Lund should be allowed leave to amend his complaint to assert a timely claim under the QTA.
II. Lund's Second Claim for Relief: Inverse Condemnation.
The Supreme Court has explained the distinction between claims under the Little Tucker Act and claims under the QTA. Under the Little Tucker Act, a plaintiff concedes the government possesses title through a taking and seeks compensation for the taken property, but a claim brought under the QTA disputes the government's possession and seeks to vest title in the plaintiff. Mottaz, 476 U.S. at 849-50.
Here, Lund contends that the court has subject-matter jurisdiction over the inverse condemnation claim because his is a Fifth Amendment claim that “arises” under the Constitution, within the parameters of 28 U.S.C. § 1331. (Resp. at 4.) Lund contends that when a plaintiff expressly invokes the Little Tucker Act, the court can exercise subject-matter jurisdiction over the claim as it was pleaded. He argues his inverse condemnation claim brought as a Fifth Amendment takings claim should fall squarely under the Little Tucker Act, and so his claim is properly pleaded under 28 U.S.C. § 1346(a)(2) and not preempted by the QTA.
In their motion, Defendants analogize Lund's third claim for relief to his Bivens claim, noting both claims turn on whether BPA lacked the right to enter under the Easement. Because the QTA preempts Lund's Bivens claim, “[t]he same holds for the inverse condemnation claim, which alleges that BPA ‘repeatedly' entered and used the Lund Property ‘without permission.'” (Motion at 14.) In their reply, Defendants acknowledge that no authority has concluded the QTA preempts claims brought under the Little Tucker Act, but Mottaz articulated the difference between the two claims and it is that difference that distinguishes Lund's claim here. A QTA claim involves a disputed interest but a Little Tucker Act claim concedes the Government's interest. (Defs.' Reply at 6.) Thus, where landowners claim they still own their property interest exclusively, the claim would not fit within the Little Tucker Act because the essence of the claim is a disputed interest.
As discussed above, Lund's complaint is firmly premised on his exclusive ownership interest in the Lund Property and on his contention that BPA has no right to enter it. Indeed, he explicitly characterizes his ownership interest as “exclusive” in his complaint. Complaint, ¶ 12. Lund cannot assert an inverse condemnation claim over real property which he claims to own exclusively. Thus, the court finds it does not has subject-matter jurisdiction over Lund's inverse condemnation claim under the 28 U.S.C. 1346(a)(2), because the QTA preempts that claim.
Conclusion
Defendants' motion should be granted and the court should dismiss Lund's first, second, and third claims. Lund should be granted leave to amend his complaint under the QTA. Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement at that time.