Opinion
3:19-cv-02015-AR
12-07-2022
KRISTY LUND, as personal representative of the ESTATE OF JOHN LUND, Plaintiff, v. UNITED STATES OF AMERICA, Defendants.
FINDINGS AND RECOMMENDATION
JEFFREY ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Kristy Lund, as the personal representative of the Estate of John Lund, brings this quiet title and inverse condemnation action against the United States of America. Lund owns property through which runs a private road (the Subject Road) that the United States has, since 1955, used to reach a power transmission line and access road easement located along the property's northern border. Claiming an exclusive interest in the Subject Road where it crosses his property, Lund seeks a declaration quieting title under the Quiet Title Act (QTA), 28 U.S.C. § 2409a. Am. Compl. ¶¶ 16-18, ECF No. 34. Alternatively, Lund alleges that, by using this road to reach the transmission line and access road easement, the United States has taken his property without just compensation contrary to the Fifth Amendment to the U.S. Constitution. Id. ¶¶ 7-12.
Because John Lund originally brought this action and submitted the declarations referenced in this F&R, the court uses he/him pronouns throughout for consistency.
The United States moves for summary judgment under Federal Rule of Civil Procedure 56, arguing that Lund's claims are barred by the applicable statutes of limitations and fail on their merits. Mot. for Summ. J. at 9, 15-17, ECF No. 38. Because the court concludes that the government's easement encompasses a right of entry using the Subject Road, and because Lund and his predecessors have had actual and constructive notice of that easement since 1955, the court recommends granting the United States' motion.
BACKGROUND
In a prior Findings & Recommendation (F&R) resolving a motion to dismiss, U.S. Magistrate Judge John V. Acosta considered the parties' evidence and described the provenience of the Lund Property in detail. F&R at 2-6, ECF No. 26; Order, ECF No. 33 (adopting in relevant part F&R). The court incorporates those descriptions here and recounts the details most relevant to the current dispute.
A. Evidence
For purposes of this summary judgment motion, the parties rely predominantly on declarations previously presented. Lund relies on his own declaration and a declaration from his attorney, Kenneth Dobson, which is accompanied by four exhibits with excerpts of internal communications from staff at the Bonneville Power Administration (BPA). First Decl. of John Lund, ECF No. 13; Decl. of Kenneth Dobson, ECF No. 13. Defendants rely on declarations from Daniel Ackerman, a BPA Land Surveyor, and James Clark, a BPA Realty Specialist-as well as twenty-six accompanying exhibits-which describe the chain-of-title of the Lund Property and provide context for the easements and roadways at issue in this dispute. First Decl. of Daniel Ackerman, ECF No. 8; Sec. Decl. of Daniel Ackerman, ECF No. 17; First Decl. of James Clark, ECF No. 9; Sec. Decl. of James Clark, ECF No. 18. The credentials of those witnesses and contents of those declarations are thoroughly recounted in Judge Acosta's F&R and are not at issue here. F&R at 2-6.
For this summary judgment dispute, each party submitted an additional declaration, which bear introduction here. Lund submitted a three-page declaration, in which he recounts a discussion he had with William Stewart, the person from whom he acquired the Lund Property in 2004. Sec. Decl. of John Lund, ECF No. 43. Lund also describes his efforts to prevent BPA from entering his property and communications he had with BPA employees about potential alternative access routes. Lund's declaration is accompanied by five exhibits, including an email in which Lund states that he “revokes” BPA's permission to cross his property, a BPA email opening discussions about acquiring a revocable permit to use the Subject Road, a map proposing alternative routes to reach the transmission lines, and excerpts of emails with two BPA staff members, Christine Nickerson and Chad Maxwell. Id. ¶¶ 2-8, Exs. 1-5.
The government submitted a five-page declaration from Matthew Kirkland, who has served as the Director of Realty Property Services for BPA since 2014. Decl. of Matthew Kirkland, ECF No. 46. Kirkland is BPA's top Realty Officer. Id. ¶ 3. He oversees three departments and nine program areas, with approximately ninety BPA employees, including geographers, surveyors, and realty specialists. Kirkland's declaration relies on collaboration and input from various realty specialists and is based on his first-hand review of the pleadings, the aforementioned declarations, and the accompanying four exhibits. Id.¶¶ 10-14, Ex. 1-4 (proposed easement dated June 28, 2012; log summarizing communications between Clark and Lund; May 12, 2015 letter from BPA to Lund's counsel; Nickerson and Maxwell contracts). Kirkland describes, in his view, BPA's culture with respect to land rights when he began as Director in 2014 and his efforts to shift that culture “by aligning [] practices with BPA's legal rights.” Id. ¶¶ 5-7. He also provides context, from BPA's perspective, regarding his staff's efforts to secure a permanent, express access road easement from Lund. Id. ¶¶ 8-16. Those efforts are described in greater detail below.
B. Lund Property and December Easement
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Lund owns property in Tillamook County, Oregon, located east of the Wilson River and north of Oregon Highway 6. First Ackerman Decl. ¶ 22, Ex. 17 (MicroStation Drawing, dated Feb. 11, 2019, depicting the Lund Property (TL 200), adjacent parcels, and relevant roadways, including Oregon Highway 6 (Wilson River Highway); First Lund Decl. ¶ 1 (admitting ownership of property). The property is accessible from Oregon Highway 6 by the Subject Road, the use of which is central to this dispute. First Ackerman Decl. ¶ 22, Ex. 17; Id. ¶ 3, Ex. 3 (aerial photographs from 1952, 1955, and 1967 confirming existence of the Subject Road and its location on the Lund Property).
At various times, the Subject Road has been known as the old logging road, North Fork Road, Centerline Private Drive, and Reheer Road. First Clark Decl. ¶ 13.
In 1955, the government acquired easements from multiple property owners to build and maintain power transmission lines near the Lund Property. As part of those transactions, the government obtained an easement (the December Easement) from Lund's predecessors-in-interest. First Ackerman Decl. ¶ 9, Ex. 5. The December Easement provides:
[The Grantors, Lund's predecessors-in-interest,] 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 SWASWA of Section 3 and SEASEA 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 NWANWA 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 south 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 NE%NE% 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 Grantors 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 SW%SW% 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. ¶ 9, Ex. 5 (emphases added).
When Lund's predecessors-in-interest granted the United States the December Easement, their property began “at the point of intersection of the centerline of the Wilson River and the centerline of [Oregon Highway 6],” stretched eastward along the highway and northward along the river, and was intersected by the Subject Road. Clark Decl. ¶ 7, Ex. 5. That property was later subdivided into three tax lots-one of which, tax lot 200, Lund acquired by statutory warranty deed on February 9, 2004. Sec. Ackerman Decl. ¶ 5, Ex. 17-2; First Ackerman Decl. ¶ 15, Ex. 11. It is undisputed that a portion of the easement area exists on the Lund Property today, although Lund contends that the Subject Road “is located well outside the boundaries of that easement.” Lund Decl. ¶ 2 (admitting that a portion of the easement area exists on the Lund Property); Sec. Ackerman Decl. ¶ 5, Ex. 2 (same); Id. ¶ 4, Ex. 18 (depicting burdened areas).
The United States recorded the December Easement on December 2, 1955. Id. Soon after, BPA, a federal agency that administers power generated by hydroelectric dams in the Pacific Northwest, exercised the easement rights by building the access road and erecting transmission lines, towers, and related facilities on the easement area. Clark Decl. ¶¶ 10-11; Lund Decl. ¶ 2. BPA used the Subject Road to reach the easement area from Oregon State Highway 6, thus crossing the Lund Property to compete these tasks. Id. To maintain the transmission lines, BPA has continued to access the easement area via the Subject Road at least annually. Id. ¶ 12, Ex. 3 (chart depicting BPA's activities on the Lund Property since 1999); Sec. Clark Decl. ¶¶ 2, 4, 6-8.
In 2013, in preparation for a project to improve the transmission lines, BPA acquired from Lund's northern and southern neighbors “perpetual non-exclusive easement[s] and right[s]-of-way for access purposes in, upon over, under, and across” the Subject Road. First Ackerman Decl. ¶¶ 17-18, Exs. 13-14. Despite attempted negotiations, BPA has not acquired a similar easement from Lund. Sec. Clark Decl. ¶ 8; Lund. Decl. ¶ 5-6. Instead, Lund states that, after acquiring the Lund Property in 2004, he “continued to give BPA permission to cross his property, until August 2, 2014, when [he] expressly revoked BPA's permission” to enter the easement area using the Subject Road where it crosses his property. Lund Decl. ¶ 3. Despite that asserted revocation, BPA continued to use the Subject Road as an entry route, prompting Lund to file this action.
Those easements granted BPA rights “to enter and to locate, construct, use, maintain, repair, and reconstruct the road or roads, and appurtenances thereto, including but not limited to culverts and bridges, together with cuts and fills, as needed” on parcels adjacent to the Lund Property. First Ackerman Decl. ¶¶ 17-18, Exs. 13-14.
LEGAL STANDARD
Summary judgment is appropriate if “there is no genuine dispute as to any material fact” and “the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324 (citing FED. R. CIV. P. 56(e)). A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). However, deference to the nonmoving party has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV. P. 56(c). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
DISCUSSION
Lund contends that the December Easement does not support BPA's use of the Subject Road to enter the easement area, and he asserts two claims to prevent BPA's continued use of that road. In Claim 1, brought under the QTA, he seeks a declaration “quieting any claimed right, title, or interest” by the United States in the Subject Road where it crosses his property. Am. Comp. ¶¶ 16-18. In Claim 2, he alternatively alleges that BPA's continued use of the Subject Road to reach the easement area is a constitutional taking, for which he requests “[j]ust compensation in an amount up to $10,000.” Id. ¶¶ 7-12, Prayer for Relief.
Under the QTA, the “United States may be named as a party defendant in a civil action . . . to adjudicate a disputed title to real property to which the United States claims an interest, other than a security interest or water rights.” 28 U.S.C. § 2409a(a). “[D]isputes over the right to an easement and suits seeking a declaration as to the scope of an easement fall within the purview of the QTA.” Robinson v. United States, 586 F.3d 683, 686 (9th Cir. 2009).
The United States argues that Lund cannot restrict BPA from accessing the easement area using the Subject Road where it crosses his property because the December Easement encompasses a right to enter the easement area using that route. Mot. for Summ. J. at 15-17. It further contends that summary judgment is appropriate because both of Lund's claims are barred by the relevant statutes of limitations. Id. at 9-15. For his part, Lund maintains that his claims are timely because he was not reasonably aware that the government had an adverse claim to his property until 2014, when he revoked BPA's permission to use the Subject Road. Resp. to Mot. for Summ. J. (Resp.) at 7, ECF No. 42.
A. Scope of the December Easement
The United States asserts that the statutes of limitation for Lund's QTA and inverse condemnation claims began to run in 1955-when it acquired the December Easement from Lund's predecessors-in-interest and properly recorded that easement. Mot. for Summ. J. at 9-10. Implicit in that assertion is an argument that Lund and his predecessors were on notice, since 1955, that the government claimed an interest in the Subject Road. However, the extent to which the December Easement permits use of the Subject Road first requires interpretation of the easement.
“The interpretation of an express easement, like that of contracts and other written instruments, is a question of law for the court.” Kell v. Oppenlander, 154 Or.App. 422, 426 (1998) (citing State Highway Comm'n v. Deal, 191 Or. 661, 681-82 (1951); ORS § 42.230). “In construing an easement, [the court's] fundamental task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner.” Watson v. Banducci, 158 Or.App. 223, 230 (1999) (citing Bernards v. Link, 199 Or. 579, 593 (1952)). “To determine an easement's purpose, [the court] ‘looks first to the words of the easement, viewing them in the context of the entire document.'” Id. (quoting Kell, 154 Or.App. at 426). The words of the easement are given their plain, ordinary meaning. Cal-Neva Land & Timber Inc. v. UnitedStates, 70 F.Supp.2d 1151, 1157 (D. Or. 1999) (citing Fendall v. Miller, 99 Or. 610, 616-17 (1921)). If the easement's terms clearly express the easement's purpose, the analysis ends here. Id. (citing Watson, 158 Or.App. at 230). However, if ambiguity remains, the court looks to relevant circumstances and uses for evidence of the original parties' intent. Id.
To determine whether a contractual provision is plain or ambiguous, the court may also “properly consider the text of the provision in the context of the agreement as a whole and in light of the circumstances underlying the formation of the contract.” Batzer Const., Inc. v. Boyer, 204 Or.App. 309, 317 (2006); Bloomfield v. Weakland, 224 Or.App. 433, 447 (2008) (applying Batzer to easement interpretation).
To determine whether the December Easement granted BPA a right of entry via the Subject Road, the court's analysis begins with any express purpose or use language in the document. Cal-Neva Land & Timber, 70 F.Supp.2d at 1158. Under the December Easement, Lund's predecessors-in-interest granted the government rights: (1) “to enter and erect, operate, maintain, repair, rebuild, and patrol one or more electric power lines and appurtenant [structures]” on the easement area; and (2) to “keep the [area] clear of all brush, timber, structures and fire hazards,” excluding growing crops, and to remove “danger trees” on a strip of land “75 feet in width on the southerly side of” the transmission lines. First Ackerman Decl. ¶ 9, Ex. 5. The document also provides for (3) “a permanent easement and right-of-way . . . for the purpose of constructing an access road approximately 14 feet in width . . . to be used in connection with the aforementioned transmission line easement and right-of-way.” That grant was made (4) “together with such other rights and the right to construct such other appurtenant structures as are necessary to accomplish the purposes for which [the] access road easement and right-of-way were granted.” Id. (emphasis added).
Examining this text, the court discerns that the express purposes of the December Easement include erection, operation, and maintenance of transmission lines; maintenance of vegetation near the transmission lines; and construction and use of an access road to reach the transmission lines on the easement area. The additional grant of “such other rights,” while apparently expansive, is limited in scope by the requirement that these rights be “necessary to accomplish the purposes for which” the access road was granted.
Notably, the easement's text lacks an express right to use the Subject Road to reach the easement area for these purposes. The United States maintains, however, that the “right to enter” and “such other rights” clauses grant an implied right to enter the easement area using the Subject Road. Mot. for Summ. J. at 15. Lund disputes that position. He counters that the lack of an express right to use the Subject Road shows that the easement, by its plain terms, did not contemplate entry via that route. Resp. at 12. In support, Lund notes that most rights enumerated under the easement-the right to erect and operate transmission lines, to clear vegetation, and to build an access road-are expressly stated. He contends that, in contrast, the clauses cited by the government are too indefinite to support a right to use the Subject Road.
Lund also asserts that “no portion of the actual easement extends to [the Subject Road].” Resp. at 12 n.2. However, the government has presented evidence that portions of the Subject Road crossing the Lund Property still lie within the easement area. See Sec. Ackerman Decl. ¶ 3 (calculations reflecting that “1.03 acres out of the original total 1.54 acres” acquired for the danger tree zone and “0.03 acres out of the original total 0.95 acres” acquired for the transmission lines still burden the Lund Property); Id. ¶ 5, Ex. 19 (map depicting burdened areas indicating that the Subject Road crosses the danger tree zone on the Lund property). Lund has not presented evidence to dispute these calculations. Consequently, he has not raised a genuine dispute of material fact about that issue.
The court agrees with Lund, in part. Given the specificity of easement's first three express rights-coupled with the absence of an express right to use the Subject Road-the court cannot conclude that the easement plainly supports a right of access via that route. Nor can the court conclude, however, that the easement lacks such an implied right. Unlike the text enumerating specific rights, the “such other rights” clause cited by the government is limited only by the requirement that these uses be “necessary” in relation to the purpose of the access road. Because that right is written expansively, the court cannot determine from the text alone whether the original parties intended that clause to grant a right of entry via the Subject Road. Thus, the December Easement is ambiguous concerning that use. Shogun's Galley, Inc. v.Merrill, 229 Or.App. 137, 145 (2009) (“When a provision can reasonably be interpreted in more than one way, it is ambiguous.”) (citing Batzer Constr. Inc., 204 Or.App. at 313).
Given that ambiguity, the court turns to the “relevant surrounding circumstances for evidence of the original parties' intent.” Cal-Neva Land & Timber, 70 F.Supp.2d at 1157. “[R]elevant considerations may include the easement's purpose, the circumstances existing at the time of the grant, and the manner in which the original parties used the easement.” Watson, 158 Or.App. at 230. “[E]xtrinsic evidence . . . is considered to assist the court in determining the intent of the original parties' to the easements.” Id. at 1163.
The United States argues that the circumstances and uses when the December Easement was granted demonstrate that “the original parties to the easement understood in fact that [BPA] would use the established route of entry to reach the easement area from Oregon Highway 6.” Mot. for Summ. J. at 15; Reply in support of Mot. for Summ. J. (Reply) at 3, ECF No. 45. Lund counters that, even assuming that BPA's use of the Subject Road was understood, the Grantors intended that use to be with permission only. As explained below, the government is correct.
When the December Easement was granted in 1955, the Grantors owned the entire strip of land over which the Subject Road runs. Sec. Ackerman Decl. ¶ 5, Ex. 19 (Lund admission that predecessor-in-interest owned all three tax lots). The Subject Road-then an established logging road-connected Oregon Highway 6 to the southern border of the Grantor's property. First Ackerman Dec. ¶ 3, 6, Ex. 3; First Clark Decl. ¶ 13, Ex. 5. From there, it continued north through the Grantor's property, serving also as an access route from Oregon Highway 6 for the Grantor's northern neighbors. First Ackerman Decl. ¶ 6, Ex. 2. Because of terrain limitations imposed by the Wilson River to the east and a steep ravine to the west, the Subject Road is considered the only viable route for access to these properties from Oregon Highway 6. Sec. Clark Decl. ¶ 7, Ex. 7 (depicting river, ravine, and elevation change and stating that “[t]o date, BPA has not identified a viable way to access the [easement area] other than [the Subject Road”]).
Lund's northern neighbor holds an appurtenant easement to use the Subject Road for ingress and egress. First Ackerman Decl. ¶ 6, Ex. 2. Those rights are uncontested in this action.
After the United States acquired the December Easement from the Grantors, the Subject Road played a pivotal role in the exercise of BPA's easement rights. As addressed previously, the easement granted BPA rights to erect and operate transmission lines, to clear vegetation, and to build an access road beginning on a northern portion of the Grantor's property. BPA exercised those rights immediately, using the Subject Road to do so. First Clark Decl. ¶ 10 (The Subject Road “has been used by BPA, as the most reasonable route of access to the transmission line, since easement rights were secured in 1955.”). First, BPA constructed the access road-known today as BPA Road. First Clark Decl. ¶¶ 9-10. Use of the Subject Road was fundamental to the completion of that task, serving as both the access point from Oregon Highway 6 and the beginning point for BPA Road. First Clark Decl., ¶ 10 (citing First Ackerman Decl. ¶ 10, Ex. 6 (BPA Maps Serial No. 85326) (“The point of beginning for this access road, stationing 0+00, is shown on drawing 85326 at the intersection of [the Subject Road] and the transmission line right-of-way.)). Likewise, the Subject Road was the only identified route to reach the transmission line right-of-way. First Clark Decl. ¶ 11; Sec. Clark Decl. ¶ 7. A such, BPA has, since 1955, used the Subject Road to move the equipment and personnel necessary for the erection, operation, and maintenance of those structures. Id.
In light of those circumstances and uses, the record evinces the original parties' intention that the December Easement include a right of entry using the Subject Road. In particular, the location of BPA Road-specifically its origin at the Subject Road-is strong evidence that the original parties understood that entry via the Subject Road was included in the grant of “such other rights . . . as are necessary to accomplish the purposes for which” the access road was granted. Similarly, BPA's immediate, continued, and sole use of the Subject Road to enter the transmission line right-of-way suggests that the parties intended the “right to enter” to encompass entry across the Subject Road.
Lund's arguments do not persuade the court otherwise. Lund does not dispute the evidence of these original circumstances and uses. Instead, he argues that BPA's actions and statements in recent years demonstrate that the “subjective intent of the parties in entering the [December Easement] did not include use” of the Subject Road. Resp. at 15. For instance, Lund notes that, in preparation for a project to rebuild the transmission lines, BPA approached him in 2012 to negotiate an “a permanent, defined access road easement that would include the right to grade and gravel and add cuts and fills as needed” on the Subject Road. First Lund Decl. ¶ 6; Kirkland Decl. ¶ 9, Ex. 1. He also references internal communications from BPA employees as evidence that BPA acknowledged “inadequate land rights” to the Subject Road. Dobson Decl. ¶¶ 2-4, Ex. 1-3 (survey report recommending acquiring express rights to the Subject Road; internal staff emails discussing accessibility problems on Lund Property; 2019 team meeting note about acquiring non-exclusive access road easement for Subject Road).
In 2013, BPA successfully acquired express rights to use the Subject Road from parcels adjacent to the Lund property. First Ackerman Decl. ¶¶ 17-18, Exs. 13-14 (easements to use Subject Road on neighboring properties).
Lund also points to his own declaration, in which he describes that, when he purchased the Lund Property from William Stewart in 2004, Mr. Stewart “explained how he had given [BPA] permission to cross the property using the Subject Road.” First Lund Decl. ¶ 2. Setting aside the admissibility issues inherent in that statement, Mr. Stewart was not the original Grantor of the December Easement, and as such, his explanation does not bear on the intent of the original parties to the easement. Cal-Neva Land & Timber, 70 F.Supp.2d at 1163.
Because Lund's evidence concerns events occurring at least fifty years after the December Easement was granted, “it is not helpful to understanding the [original] parties' intent.” Cal-Neva Land & Timber, 70 F.Supp.2d at 1163 (evidence of events beginning twenty-four years after grant of easement was not persuasive of original grantor's intent). Moreover, to the extent Lund argues that BPA's negotiation attempts and employee communications constitute admissions that it lacks a right to enter the easement area using the Subject Road, his argument is undermined by BPA's evidence of the context behind those decisions.
For instance, BPA's Director of Real Property Services, Matthew Kirkland, provides perspective that, when he began his tenure as Director in 2014, BPA's practice was “to minimize conflicts [with landowners] and to avoid exercising the power of eminent domain.” Kirkland Decl. ¶ 2. Kirkland states that, because of this practice, “staff would sometimes request PEPS from landowners (Permission to Enter Property rights) even when easements expressly provided the right to enter property to maintain and rebuild the transmission lines.” Id. ¶ 6. As for the internal communications reference by Lund, Kirkland acknowledges that BPA staff “noted there was no permanent defined access road from Highway 6 to the transmission line easement.” Id. ¶ 8. He maintains, however, that it was always BPA's position that the December Easement “provides [it] sufficient rights to enter the [Lund Property] using a reasonable route.” Id. ¶ 11, Ex. 3 (letter, dated May 3, 2015, from BPA's counsel to Lund's counsel, supporting that position). Nevertheless, to minimize conflict with Mr. Lund-and because BPA “[understood] that its reasonable rights of entry do not necessarily allow [it] to make changes to Mr. Lund's property or the related proposed access route”-BPA staff “approached Mr. Lund as early as 2012 in an effort to secure a permanent, defined access road easement that would include the right to grade and gravel and add cuts and fills as needed.” Id. ¶¶ 9, 11 Ex. 1 (proposed easement dated Jun 28, 2018).
Given that context, the court cannot conclude-as Lund asserts-that BPA's attempts to negotiate an express easement to use the Subject Road and its staff communications regarding those efforts constitute admissions that the December Easement lacks a reasonable right of entry using the Subject Road. Thus, Lund's counterarguments do not overcome evidence of the circumstances existing when the December Easement was granted in 1955, nor of the BPA's early use of the Subject Road to exercise those easement rights. Accordingly, the court concludes that, when the December Easement was granted in 1955, the original parties understood and intended that BPA would use the Subject Road as a reasonable route of entry to accomplish the purposes of the easement.
That conclusion is consistent with precedent from the Oregon Supreme Court, which has recognized, albeit without lengthy examination, that the “owner of the dominant estate may enter on the servient estate for the purpose of doing anything reasonably necessary to the proper exercise of [its] easement.” SeeJewell v. Kroo, 268 Or. 103, 106 (1973) (citing 3 Tiffany, Real Property 346-51, s 810 (3d ed. 1939) (emphasis added)); Baumbach v. Pool, 266 Or. 154, 157 (1973). Applying that rationale to a dispute between a plaintiff-landowner and a defendant-utility company, the Oregon Court of Appeals held that the utility company's prescriptive easement for power lines granted it an incidental right to enter the landowner's property for maintenance of the lines and surrounding vegetation. Motes v. PacifiCorp, 230 Or.App. 701, 707 (2009).
In the underlying dispute, the utility company asserted that it had a prescriptive easement for the “inspection, maintenance, repair, upgrade, and replacement” of transmission lines crossing the landowner's property, as well as “for the maintenance of vegetation, as necessary to prevent interference with the lines.” Id. at 705. The trial court agreed that a prescriptive easement existed; however, it limited the scope of the easement by prohibiting the utility company from “using a driveway on the subject property to operate vehicles in its maintenance of the easement.” Id. at 705-06. On appeal, the court affirmed the existence of the prescriptive easement. Id. The court concluded, however, that the trial court erred by prohibiting use of the landowner's existing driveway. Id. Because evidence presented at trial demonstrated that the driveway extended onto the easement area and was the safest, most direct access route to the transmission lines, the court held that prohibiting use of that driveway “unduly restrict[ed]” the scope of the easement and reversed for modification to the judgment on that ground. Id. at 714.
As in Motes, here the court is presented with evidence that the Subject Road is the safest, most direct route to enter the easement area and that a portion of the Subject Road extends onto that area. Moreover, the Motes court explicitly recognized that the utility company's “prescriptive easement functions like an express easement,” thus undercutting Lund's argument that Motes is inapposite. Id. at 713; see also Resp. at 15 (arguing that Motes is inapplicable because it involves a common law easement by prescription).
Relying on that precedent, the government argues that BPA's use of the Subject Road to enter the easement area-and its concurrent entry on the Lund Property-is “reasonably necessary” to exercise its rights under the December Easement. Mot. for Summ. J. at 17. The court agrees. As already established, BPA has used the Subject Road to access the easement for maintenance of the transmission lines and vegetation since 1955. See Sec. Clark Decl. ¶¶ 4-6 (stating that “the only way to [access BPA Road] by vehicle is [the Subject Road]”). Those patrols occur on at least an annual basis and require “vehicular access to exercise all of the rights called out in the [e]asement, including patrol and maintenance, and to abate fire hazards and other threats to system operations.” Id. ¶ 7.
The government also has presented significant evidence that, although it investigated alternative routes, there is no other direct way to access the easement area from Oregon Highway 6. Sec. Clark Decl. ¶¶ 2-5. For instance, the record reflects that the Lund Property and easement area are bordered on the east by the Wilson River and on the west by stark elevation changes, including a steep ravine. Id. ¶ 7, Ex. 7. Likewise, maps reflect the Subject Road as the only direct route from Oregon Highway 6 to the Lund Property and the easement area. First Clark Decl. ¶ 13, Ex. 5; First Ackerman Dec. ¶ 22, Ex. 17; Sec. Ackerman Decl. ¶ 3, Ex. 8.
Lund counters that use of the Subject Road is “convenient, but not necessary” to accomplish the purposes of the December Easement because “he is aware of overgrown logging roads which, if reopened, could provide alternative access” to the transmission lines from the east. Resp. at 13; Sec. Lund Decl. ¶ 7, Ex. 4 (depiction of suggested alternative routes). By Lund's own admission, however, these alternative routes are overgrown and abandoned. As such, it would be unreasonable to require BPA to modify its historic use of the Subject Road in favor of one of these asserted alternatives. SeeMotes, 230 Or.App. at 714 (“The need for access to the lines will rarely arise, but if it does, the time and expense associate with coming in from the country road would impose a significantly greater burden on [the utility company] than if it had access by way of plaintiff's driveway.”).
Lund also asserts that, in 2015, he had conversations with two BPA contractors-a road engineer named Chad Maxwell and a right-of-way agent named Christine Nickerson- confirming the existence of alternative routes. Sec. Lund Decl. ¶ 8, Ex. 5. Lund neither offers further details about those alleged routes nor an argument about the admissibility of those out-ofcourt statements. SeeUnited States v. Pappas, 814 F.2d 1342, 1346 n.9 (9th Cir. 1987) (rejecting plaintiff-landowners argument that the government is estopped from complaining about the location of a fence because Bureau of Reclamation employees told plaintiff where to locate the fence). In contrast, the United States presents evidence that Maxwell and Nickerson were “hired for specific, project-related tasks, and neither were authorized to speak on BPA's behalf regarding legal rights, and doing so was outside the scope of their contracts.” Kirkland Decl. ¶ 14. Consequently, Lund has not raised a genuine dispute of fact about the existence of alternative routes to reach the transmission lines and access road.
In summary, although the text of the December Easement is ambiguous concerning BPA's rights to enter the easement area using the Subject Road, evidence of the circumstances when the easement was granted and of BPA's original, continued, and sole use of the Subject Road for maintenance of the transmission lines and vegetation support a conclusion that the original parties intended the easement to grant a right of entry via that route. That conclusion is reinforced by precedent from Oregon courts. Accordingly, the court finds that BPA has a reasonable right to use the Subject Road to enter the easement area to accomplish the purposes set forth in the December Easement.
B. Claim 1: Statute of Limitations
The QTA has a twelve-year statute of limitations, which is a strictly construed jurisdictional prerequisite. 28 U.S.C. § 2409a(g); Skranak v. Castenada, 425 F.3d 1213, 1216 (9th Cir.2005) (“The [QTA] is a waiver of sovereign immunity. If the statute of limitations has run on a waiver of sovereign immunity, federal courts lack jurisdiction.”). The limitations period begins to run “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).
The phrase “‘should have known' imparts a test of reasonableness,” and this standard has been interpreted expansively. Schulz v.Dep't of Army, 886 F.2d 1157, 1160 (9th Cir. 1989) (quoting 28 U.S.C. § 2409a(g)). Although recorded documents trigger the limitations period, “the scope of the QTA's notice standard is not limited to recorded documents of valid claims.” LNG Dev., LLC v. U.S. Army Corps of Engineers, Case No. 3:14-cv-01239-AC, 2015 WL 5155079, at *7 (citing State of California v. Yuba Goldfields, Inc., 752 F.2d 393, 396 (9th Cir. 1985)). Notice of a government claim that creates even a cloud on the title-that is, an “interest that raises questions that may affect the claim of title and pose problems in the future”-is sufficient to trigger the limitations period. Id. (quoting Kingman Reef Atoll Invs. LLC v. UnitedStates, 545 F.Supp.2d 1103, 1111 (D. Haw. 2007), aff'd, 541 F.3d 1189 (9th Cir. 2008) (emphasis in original)); Robinson, 586 F.3d at 687. The period also may be triggered by the “government's use of land,” even if not openly and obviously hostile. Id.
The United States contends that there is no genuine dispute of material fact that Lund and his predecessors-in-interest “knew or should have known” of the government's interest in accessing the easement via the Subject Road since 1955, when the December Easement was procured and properly recorded. The court agrees, for three reasons.
First, it is undisputed that, after acquiring the easement from the original Grantors, the United States properly recorded the December Easement. Moreover, as explained above, the court finds that the original Grantors understood and intended the easement to grant a right of access via the Subject Road. Therefore, Lund's predecessors-in-interest had constructive notice, since 1955, of a cloud on the title of the property with respect to BPA's use of the Subject Road. SeeYuba Goldfields, 752 F.2d at 396 (“Constructive notice of recorded deed may commence the running of the limitations period.”). Second, the record demonstrates that the easement continues to burden the Lund Property today. First Lund Decl. ¶ 2; Sec. Ackerman Decl. ¶ 4, Ex. 18. Consequently, when Lund acquired the property in 2004, he had constructive notice of a cloud on the title of the property as to the Subject Road. And third, the record reflects that BPA exercised its easement rights immediately and, in exercising those rights, used the Subject Road to access and maintain the transmission lines and surrounding area on at least an annual basis. First Clark Decl. ¶¶ 11-12, Ex. 3. Given that historic use, Lund and his predecessors also had actual notice of the government's interest in entry via the Subject Road.
Lund does not contest that he had constructive and actual notice of the easement; instead, he attempts to circumvent the QTA's statute of limitation through several unavailing legal arguments. For instance, Lund argues that a reasonable landowner would not have had notice that the easement included use of the Subject Road because several BPA employees and contractors represented in emails and internal communications that the easement did not expressly extend to the road. The court acknowledges that those communications may have generated confusion. Nevertheless, Lund's argument must fail because, as a matter of law, Lund's predecessors-in-interest had constructive notice of the December Easement since 1955. SeeState of Nevada v. United States, 731 F.2d 633, 635 (9th Cir. 1984) (“The existence of one uncontroverted instance of notice suffices to trigger the limitations period.”). Because the QTA's statute of limitations is strictly construed, that notice was sufficient to trigger the limitations in 1955, well before Lund acquired the property.
Lund also asserts that his QTA claim is timely because, in his F&R dated February 15, 2021, Judge Acosta concluded that the limitations period had not lapsed. F&R at 32, ECF No. 26. That recommendation was not adopted by District Judge Hernandez, however, and thus does not bind this court. See Order, ECF No. 33 (declining to adopt finding that Lund's QTA claim is not time-barred).
Lund next argues that the limitations period did not begin to run until 2014, when he “revoked BPA's permission” to access the transmission lines via the Subject Road. That argument fails because, as the owner of the servient estate, Lund could not orally “revoke” BPA's right to reasonably exercise its easement rights. SeeSander, Trustees of Barry J. Sanderand Goldye Wolf Revocable Living Trust v. Nicholson, 306 Or.App. 167, 173 (2020) (express easement “may only be extinguished by consent, prescription, abandonment, or merger”).
Finally, Lund contends that the government effectively “abandoned” the right to use the Subject Road to reach the transmission lines because BPA employees acknowledged in internal communications that a “rights gap” existed as to the Subject Road. However, Lund has offered no facts showing “clear and unequivocal” abandonment. SeeWaibel Ranches, LLC v. UnitedStates, Case No. 2:15-cv-02071-HL, 2022 WL 2612214, at *6 (“[T]he BLM's public statements regarding the closure of Teaters Road to the public did not ‘clearly and unequivocally' abandon [the] United States's interest in the easement.” (quoting Kingman Reef Atoll Invs., LLC v. UnitedStates, 541 F.3d 1189, 1200-01 (9th Cir. 2008))). Instead, the record reflects that BPA uses the Subject Road to enter the easement area at least annually. First Clark Decl. ¶ 13, Ex. 3. Thus, Lund has not raised a genuine dispute of fact that BPA abandoned its easement rights.
Lund's response to the government's motion for summary judgment relies heavily on statements allegedly made by BPA employees and contractors. Lund Resp. to Mot. for Summ. J. at 3, 8-9, ECF No. 42. The United States moves to strike those statements as hearsay. Reply to Mot. for Summ. J. at 7, ECF No. 45. However, because there is no genuine dispute that Lund's predecessors-in-interest had constructive and actual notice of the easement since 1955, the court need not consider those statements in detail, nor address the motion to strike.
In conclusion, the QTA's statute of limitations began to run when the December Easement was recorded on December 2, 1955, and it lapsed twelve years later in 1967. Lund's QTA claim is time-barred.
C. Claim 2: Statute of Limitations
Lund's inverse condemnation claim is brought under 28 U.S.C. § 1346(a)(2), a statute known as the “Little Tucker Act,” that confers on this court jurisdiction, concurrent with the U.S. Court of Federal Claims, over a “civil action or claim against the United States, not exceeding $10,000 in amount, founded [] upon the Constitution.” 28 U.S.C. § 1346(a)(2). To be timely under the Little Tucker Act, the plaintiff must assert a claim against the United States “within six years after such claim first accrues.” 28 U.S.C. § 2501. “In general, a takings claim accrues when ‘all events which fix the government's alleged liability have occurred and the plaintiff was or should have been aware of their existence.'” Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). “Thus, the key date for accrual purposes is the date on which the plaintiff's land has been clearly and permanently taken.” Id. (citing Seldovia Native Assoc., Inc. v. United States, 144 F.3d 769, 774 (1998)).
Lund alleges that the United States took his property without just compensation by “repeatedly entering and using the Lund Property for public purposes without permission.” Am. Compl. ¶ 11. Therefore, the alleged “taking” began in 1955, when the government began to exercise its easement rights by using the Subject Road to construct BPA Road and erect, operate, and maintain the transmission lines. Thus, the statute of limitations expired in 1961, and Lund's inverse condemnation claim is time-barred.12
CONCLUSION
For the above reasons, the United States motion for summary judgment (ECF No. 38) should be GRANTED. Any other pending motions should be DENIED as MOOT.
SCHEDULING ORDER
The Findings and Recommendation will be referred to Judge Marco A. Hernandez. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.