Opinion
Civil No. A2-86-87. Docket No. 359.
January 24, 2000.
Summary : Tribe brought action to quiet title to the bed of Devils Lake. Court held that the running of the statute of limitations deprived it of jurisdiction and that the Tribe is also precluded from claiming the lake bed now since it did not bring this claim to the Indian Claims Commission when it asserted other claims in 1951.
MEMORANDUM AND ORDER
Devils Lake Geologic and Historical Background:
To better understand the circumstances regarding the ownership history of Devils Lake and its environs we must at least recognize the area's geographic and geologic history.
The word "Devils" is a perversion of the Indian word for "Spirit."
Devils Lake is located within a large, closed drainage basin in northeastern North Dakota. The water levels of the lake fluctuate to a great degree.
The Jerusalem and Tolna Outlets in the Devils Lake Basin, North Dakota — ND Geologic Survey 1987, Page iv.
The water level (October 1999) exceeds 1447+ feet above mean sea level (msl) and flows through the Jerusalem Outlet to Stump Lake. When the water level reaches 1457 feet msl, it will flow to the Sheyenne River through the Tolna Outlet.
ND Geologic Survey, Page iv.
In the region bed rocks were deposited in a cretaceous seaway covering portions of North Dakota eighty-two to sixty-five million years ago. About three million years ago glaciers overrode and filled the valleys of the pre-glacial Cannon Ball River, incising deep valleys in soft shale and creating an irregular surface. It was this river, the pre-glacial Cannon Ball River, which carved out Devils Lake and Stump Lake with their numerous windings. The rivers also carved out a large "Spiritwood Aquifer," and much of Devils Lake lies over that aquifer.
The present day surface of the Devils Lake region is covered by glacial sediment deposited during the last three million years when large sections of what is now North Dakota were periodically covered by glacial drift.
Geologic Survey Page 6.
At the end of glaciation, approximately ten thousand years ago, the lack of glacial meltwater caused Glacial Lake Minnewaukan to shrink in size, creating the present day Devils Lake and Stump Lake systems. The water level in these lakes rose and fell in response to changes in climate, at times overflowing into the Cheyenne River through the natural outlets.
Geological Survey Page 8.
This is an action by the Spirit Lake Indian Tribe, formerly the Devils Lake Sioux Tribe, brought to quiet title to the bed of Devils Lake. The complaint was filed on June 9, 1986. The relief sought by the Indian plaintiffs was to establish that the Spirit Lake Sioux Tribe is the beneficial owner of the bed of Devils Lake with the legal title held by the United States in trust for the Tribe. The defendants are the State of North Dakota, the Garrison Diversion Conservancy District, the United States, and various individuals claiming an interest in the lake bed adverse to the plaintiff.
Jurisdiction is claimed under the Quiet Title Act, (QTA), 28 U.S.C 2409a, 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1362, (Indian Tribes). Defendant United States has moved for summary judgment alleging that (1) the 12 year statute of limitations included in 28 U.S.C. § 2409a(g) had run; (2) that the tribe is precluded from bringing this action because they knew, or should have known before 1951 of the adverse claims of the United States and should have included this claim in the action they brought that year before the Indian Claims Commission (ICC), and (3) that this action is barred because it was a part of the settlement made in the 1951 ICC action.
The District Court granted the motion on the grounds that the settlement of the ICC action included the question of the ownership of the lake bed. Devils Lake Sioux Tribe v. State of North Dakota, 714 F. Supp. 1019 (D.N.D. 1989). The Eighth Circuit Court of Appeals reversed and remanded. Devils Lake Sioux Tribe v. State of North Dakota, 917 F.2d 1049 (8th Cir. 1990). That court held that an affidavit submitted by the attorney, who represented the tribe in the ICC action to the effect that the question of the lake bed was not a part of the discussions at that time, created a question of fact and granting summary judgment was inappropriate.
This action was filed on June 9, 1986, thus, if the tribal elders knew or should have known of the adverse claims on or before June 9, 1974 the action is time barred. A party moving for summary judgment must show that the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998). Once the moving party has made this showing, the nonmoving party must go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue of material fact. Fed.R.Civ.P. 56(e); Celotex v. Catrett, 106 S.Ct. 2548, 2553 (1986). As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 106 S.Ct. 2505, 2510 (1986).
The dispute here is engendered by the description of the reservation boundaries in the Treaty of 1867 which starts at the eastern point of Devils Lake and continues "along the waters of said lake". It may well be that the Indians who entered into that treaty thought that the lake was contained within the boundaries of their reservation. They had been driven westward from what is now Minnesota by the immigration driven expansion by the whites and were unsophisticated, spoke no English and had no formal education. However that may have been in 1867, what is at issue here is not what they thought at the time, but what they learned or should have learned since that time.
TRUST STATUS OF LAKE BED
The Tribe contends that the United States holds the lake bed in trust for the Tribe and that, under the doctrine enunciated inLoudner v. United States, 108 F.3d 896 (8th Cir. 1997), the Government had to actually inform them that it was claiming an adverse interest in that property to trigger the running of the statute of limitations. That would only be true if the lake bed is held in trust, so the court must first determine if the lake bed is held in trust. An analysis of that question starts with the determination of the navigability of Devils Lake.
NAVIGABILITY
A lake is navigable in law if it is navigable in fact. United States v. Holt State Bank, 46 S.Ct 197, (1926). The determination that must be made here is as to the lake's status in 1889, the year North Dakota achieved statehood. Exhibit 225, Frank E. Vyzralek, Powered Boat Navigation on Devils Lake (1986), points out what is common knowledge to North Dakotans, that is that there were a number of good size steamboats carrying on commercial navigation on Devils Lake in 1889, Captain E. E. Heerman owned three of these boats, the most famous of which was the Minnie H. Therefore, it appears that the lake was navigated in fact, and so it must be regarded as navigable in law when North Dakota achieved statehood. . . .
Further, that lake has been declared navigable in a number of legal proceedings. It was found so by the North Dakota Supreme Court in the Matter of the Ownership of Bed of Devils Lake, 423 N.W.2d 141 (N.D. 1988), and in Rutten v. State, 93 N.W.2d 796 (N.D. 1958); by the United States District Court in Devils Lake Sioux Tribe v. State of North Dakota, supra, and in 101 Ranch v. United States, 714 F. Supp. 1005 (D.N.D. 1988); by the Eighth Circuit Court of Appeals in Devils Lake Sioux Tribe, supra, and 101 Ranch v. United States, 905 F.2d 180 (8th Cir. 1990); by the District of Columbia Court of Appeals in National Wildlife Federation v. Alexander, 613 F.2d 1054 (D.C. Cir. 1979).
GRANT OF LAKE BED
The Tribe contends that the reservation boundary should be the north shore of the lake, making the entire lake a part of the reservation which is held by the United States in trust for the Tribe. In order for the lake to be a part of the reservation, the United States had to have granted it to the Tribe in the Treaty of 1867. The United States claims that the boundary is the south shore and that it did not grant the lake and lake bed to the Tribe when creating the reservation.
Being navigable, there is a strong presumption that the United States retained the bed of Devils Lake when the reservation was created so that it could pass to the state at statehood under the "equal footing" doctrine. Pollard's Lessee v. Hagan, 3 How. 212 (1845); Shively v. Bowlby, 14 S.Ct. 548 (1894); United States v. Holt State Bank, supra; Montana v. United States, 101 S.Ct 1245 (1981); Utah Div. of State Lands v. United States, 107 S.Ct. 2318 (1987); Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct 2028 (1997). As the Supreme Court pointed out in those cases, this court must start with a strong presumption that the land under navigable water was retained to be given to the state at statehood and against conveyance by the United States and must not infer such a conveyance unless the intention was definitely declared in clear or unequivocal special words and was done for some national purpose.
The reservation was created by the Treaty of 1867, and the boundaries of the reservation were described as:
Beginning at the most easterly point of Devil's lake; thence along the waters of said lake to the most westerly point of the same; thence on a direct line to the nearest point on the Cheyenne river; thence down said river to a point opposite the lower end of Aspen island; and thence on a direct line to the place of beginning. (See appendix 1).
This certainly falls far short of being a clear declaration of conveyance of the bed of the lake. The only mention of the lake in the treaty is that the line between the most easterly point on the lake and the most westerly point is "thence along the waters". This certainly lacks the specificity needed to be "unequivocal". This court finds that the Treaty of 1867 did not convey the bed of Devils Lake to the Tribe. Therefore, it is not being held in trust and the statute of limitations would be triggered by any notice that a reasonable person would interpret to mean that there was a competing claim to the lake.
STATUTE OF LIMITATIONS
By passing the Quiet Title Act Congress intended to create a waiver of sovereign immunity for a specified purpose and for a specified time. If that time has been exceeded, this court is without jurisdiction to decide any part of the action. Block v. North Dakota ex. rel. Bd. of University and School Lands, 103 S.Ct 1811(1983), Knapp v. United States, 636 F.2d 279 (10th Cir. 1980),Vincent Murphy Chevrolet v. United States, 766 F.2d 449 (10th Cir, 1985). Since this is a waiver by the sovereign, it must be strictly construed in favor of the sovereign. Knapp and Vincent Murphy, supra. Therefore, unless the plaintiff has clearly shown that its cause of action did not accrue until after June 9, 1974 — twelve years before the action was filed — the action must be found to be time barred and dismissed. The language of 28 U.S.C. § 2409a(g) is clear, and when conditions, such as a statute of limitations are placed on laws waiving the immunity of the United States, those conditions must be strictly observed and exceptions thereto are not to be lightly implied. Vincent Murphy Chevrolet v. United States, supra, citing Block v. North Dakota, supra.
Plaintiff claims that it had no knowledge of any adverse claim to the lake bed by the United States until the United States filed its answer in this action. (Pl. Brief, docket #142. p. 2, et seq.) The Court is constrained to note that it finds this statement difficult to accept in light of the fact that the Tribe initiated the action and named the United States as a defendant. If the plaintiff had no knowledge of a claim by the United States, it would be in jeopardy of Rule 11 sanctions.
However, the question remains, when did the Tribal Council members learn, or when should they have learned, of the government's claims to the bed of Devils Lake? It is a landowner's duty to use reasonable diligence in exerting dominion over his land. The ownership of property carries the concomitant responsibility of being informed of events and conditions that occur on the property. Any knowledge reasonably obtainable by a prudent owner will be imputed to him. Fulcher v. United States, 696 F.2d 1073 (4th Cir. 1982). In that case the court imputed knowledge to Fulcher even though the land was in North Carolina and Fulcher resided in California.
The Court has reviewed the exhibits and appendices filed with the brief of the United States and sees them as giving notice to a reasonably diligent Tribal Council in a number of ways.
SETTLEMENT
First, there was the settlement of land below the water level that Devils Lake had at the time of the making of the treaty in 1867. There are 153 homestead filings on property in the lake bed before the court, many of which describe improvements on the homesteads. Exh. 43-195. They were there to see. Plaintiff contends that it did not understand what was going on, not being educated and not understanding English. That may have been true at the beginning of settlement, but the farmsteads stayed there, the Indian School was established about 1874 — during the 1901 negotiations Inspector McLaughlin commented that the school had been there for 27 years — (App. E, p. 25), and the population of the reservation became English speaking, literate, and most developed a sophisticated understanding. Indeed, when 216 male adult tribal members signed the treaty negotiated by Inspector McLaughlin in 1901, 94 (43.5%) signed their names, indicating they had had some education. (Appendix E, p. 30-31). Plaintiffs submitted nothing to refute this evidence, relying solely on a general denial.
1901 TREATY NEGOTIATIONS
The minutes of those negotiations, Appendix E, clearly show that at that time the Indians were aware that the United States had claimed the lake bed. Inspector McLaughlin stated in his report which accompanied the treaty to Washington, "I also clearly told them that they never had any recognized claim . . . to the two former islands referred to. . . . (Graham's and Rock Islands)". (App. E, p. 10). At the negotiations Little Fish stated, "Even Rock Island was taken away from us by Congressional action". (App. E, p. 16) Later in the negotiations McLaughlin told those assembled, "Your reservation lines as defined by [the 1867] Treaty never included Rock Island and Grahams Island", and "You will never realize a cent more . . . from the two islands in Devils Lake". (App. E, p. 24) Thus, those present were certainly put on notice at that time that the United States was claiming the lake bed. Plaintiff has submitted nothing to refute this evidence, relying solely on a general denial.
MAPS
Another manner in which the Tribe could have or should have had notice is in the many maps of the reservation that were produced between 1876 and 1974. The court notes that 20 such maps were produced in that period which show the reservation boundary to be the South shore of Devils Lake. Especially notable in this group is Exhibit 312, a map produced in 1963 by the Aberdeen area office of the Bureau of Indian Affairs (BIA), and is a key map to six other maps showing the ownership of land within the Fort Totten Indian Reservation. This map shows the reservation south of the lake, with the south shore as the north boundary. The map doesn't even show the north shore. This map must have been available to Tribal Council members, and from its portrayal of the boundaries was such notice the United States held that the south shore was the boundary. Another pertinent piece of evidence that the tribal leaders should have known this fact is Exhibit 311, a BIA highway map of the reservation that was prepared in 1938 which only goes up to the lake, and does not show the north shore at all. Plaintiff has submitted nothing to refute this evidence, relying solely on general denial.
ANNUAL REPORTS
Exhibits 200 through 224 are annual reports by the Indian Agent at the Devils Lake Agency for the years from 1876 through 1903. Many of them contain descriptions of the reservation such as "lying along the south shore of Devil's Lake, (Exh. 202), "Devil's Lake, 35 miles long, on the north" (Exh. 203), "lying along the southern shore of Devil's Lake" (Exh. 204), lies along the southern shore of Devil's Lake" (Exh. 205), "on the south of Devil's Lake" (Exh. 207), "The reservation lies south of Devil's Lake" (Exh. 211), "Devil's Lake Reservation lies south of Devil's Lake" (Exh. 212), "on the south shore of Devil's Lake" (Exh. 213, "on the south shore of Devil's Lake" (Exh. 214), "on the south shore of Devil's Lake, which forms its northern boundary" (Exh. 215), "on the south shore of Devil's Lake" (Exh. 223), "The lake is the north boundary" (Exh. 224). These reports show that the government's agents during this period, at least five in number, held that the south shore was the northern boundary of the reservation. Appendix E, the McLaughlin report on the 1901 treaty, shows that some form of tribal council was active at that time. Appendix E, on page 32 recites that 61 persons were admitted by the council to allow them to receive allotments. Certainly the council would have worked with the agent frequently enough so that they should have known his views about the location of the north boundary. Plaintiff has submitted nothing to refute this evidence, relying solely on general denial.
ICC EVIDENCE
In 1951 the Tribe filed claims with the Indian Claims Commission (ICC) which heard those claims in 1971 and issued 2 opinions, one in 1973, (App. G) and one in 1975, (App. U). Exhibits in this action include four of the exhibits presented to the ICC. They are exhibits 249, 331, 332 and 333. Two of these items are significant in regards to the question before the court. Exhibit 331 is a United States Geological Survey 1:250,000 map of the area on which the reservation boundaries have been drawn in and which shows the area that the 1951 claim included. The shown north border of the reservation is the south shore of Devils Lake. Exhibit 332 is an appraisal of the lands in the claims and contains a small map which very clearly shows the south shore of the lake as the north boundary of the reservation. (See appendix 2). Tribal officials can hardly make a credible claim they did not know at that time that the lake was not in the reservation when the evidence in an action in which they were involved contains material to the contrary. Plaintiff has submitted nothing to refute this evidence, relying solely on general denial.
PETITIONS
In 1965 and in 1970 the Tribal Council petitioned the Department of Interior's Office of the Solicitor to get a determination of the ownership of the relicted land, (Exhs. 273 280). Clearly they are referring to the land on the south shore as the resolution states, "with the coming Garrison Diversion Project the waters of Devils Lake will become stabilized at a level below the meander line of the lake as established by the General Land Office survey, and the entity proving ownership of land lying between said stabilized water level and the meander line will control access to the entire south side of Devils Lake," (Exh. 280 Emphasis added). This shows the court that, first, the Tribe was aware of the coming Garrison project in 1970, which they have denied, and, second, the Tribe was limiting its claim to the south shore. While the latter point is interesting, it is not pertinent to the question, but the first point clearly shows that the Tribal Council was aware that the government had claims on the lake bed. Plaintiff has submitted nothing to refute this evidence, relying solely on general denial.
MANAGEMENT
Since their inception as state agencies, the North Dakota State Water Commission has exercised jurisdiction over the water of the lake, and the North Dakota Game and Fish Department has exercised jurisdiction of the fish and game in the lake. The court has been shown no evidence that the Tribe has ever tried to exercise such jurisdiction as do some tribes on their reservation.
BUREAU OF RECLAMATION ACTIVITY
In 1950 the Bureau of Reclamation constructed a large transmission line through the main body of the lake. The line consists of huge steel towers on concrete bases which can be seen from Fort Totten.
In addition, The Bureau spent many years planning Garrison Diversion Unit (GDU) and received a great deal of publicity about the project. Still, the Tribe denies it knew anything about that project. As noted earlier, the 1970 Tribal Resolution specifically referred to the fact that the lake would be stabilized by that project. In addition, The Draft Environmental Study for GDU was sent out for comment in 1973. (Exh. 327). The letter attached to that statement states,"The Indian tribes at Fort Totten . . . have been contacted in regard to how they will be affected by the Garrison Diversion Unit. They have received a copy of the Draft Environmental Statement".
The letter further states, "On July 23, 1973, the Devils Lake Sioux Tribe advised the Secretary of the Interior of its support of the Garrison Diversion Unit, stating `. . . the overwhelming advantages of the Garrison Diversion in the Devils Lake area would be of great benefit not only to our tribe but for others in North Dakota as well'". (Exh. 327, Unnumbered page following p. IX-20).
SUMMARY
The standard that requires the Court to closely scrutinize any claimed waiver of immunity also requires the courts to narrowly define the phrase "should have known". United States v. Mottaz, 106 S.Ct. 2224 (1986); (Owner should have known when she got notice the United States did not recognize her title.); Richmond, Fredricksburg and Potomac Railroad Company, 945 F.2d 765 (4th Cir. 1991), (Should have known based on a condition in a 1938 deed);Fulcher v. United States, supra; (California owner of North Carolina land should have known because he failed to exercise reasonable diligence to inform himself of the state and condition of his property); Park County, Montana v. United States, 626 F.2d 718 (9th Cir. 1980), (County board should have known based on placement of federal sign on a forest trail over 40 miles from either county seat); State of North Dakota, ex rel. Board of University and School Lands v. Block, 789 F.2d 1308 (8th Cir. 1986), (Should have known the United States claimed all minerals under river bed because they had clearly claimed some). Thus it is seen that it does not require actual notice, or a lot of evidence to place one on notice of the adverse claim.
Any of the actions noted above, settlement of the lake bed, 1901 negotiations, the many maps showing the south shore as the boundary, the annual reports of the Indian Agent, the maps used in the ICC claim, the 1970 petition, management of the lake by the state or the Bureau of Reclamation activity, is sufficient notice to have put a reasonable prudent Tribal Council member on notice that there were competing claims to the lake bed. Thus the statute of limitations had passed before this action was started and the court is without jurisdiction to consider the merits of the claim.
ISSUE PRECLUSION
The government claims that this suit is also barred by the doctrine of issue preclusion because the Tribe should have brought this claim at the time it brought its claim to the Indian Claims Commission in 1951. The Tribe responds that the ICC would not have had jurisdiction to hear this claim, and that both the District Court and the Eighth Circuit have so held. Having carefully re-read both opinions the Court does not find any such holding in either. Indeed, just the opposite appears to have been the law.United States v. Dann, 105 S.Ct. 1058 (1985); White Mountain Apache Tribe v. Hodel, 784 F.2d 921 (9th Cir. 1986); Oglala Sioux Tribe v. United States, 650 F.2d 140 (8th Cir. 1981).
The Tribe responds to this claim the same way it responded to the issue of the statute of limitations in denying that its members knew, or should have known, that the United States was making adverse claims to the lake. A review of the evidence discussed regarding the statute of limitations shows that there was much evidence available prior to 1951 to put the Tribe on notice of such claims. The settlement of parts of the lake, the 1901 negotiations, many of the maps of the reservation, the annual reports of the Indian Agent, and the management of the fish and game in the lake all preceded the 1951 ICC action and any one of these is sufficient to have put the Tribal Council on notice that there were rival claims to the lake bed. Thus, this issue should have been presented to the ICC in 1951 and the Tribe is precluded from presenting it to this court.
It is ordered that the Motion for Summary Judgment is GRANTED, and the United States is dismissed as a defendant in this action.
11TH AMENDMENT
North Dakota and the Conservancy District have pled 11th Amendment immunity in their answers, and the court is of the opinion that they would be entitled to such immunity. See Seminole Tribe of Florida v. Florida, 116 S.Ct 1114 (1996); Bradley v. Arkansas Dept. of Education, 189 F.3d 745, (8th Cir. 1999); Kimel v. State Board of Regents, 139 F.3d 1426 (11th Cir. 1998). Congress may enact a statute that abrogates the State's 11th Amendment immunity, but to do so Congress must make it obvious from a clear legislative statement. Seminole Tribe v. Florida, supra. There is no mention of 11th Amendment immunity in the QTA thus, Congress did not intend that act to abrogate immunity under the 11th Amendment.
NECESSARY PARTIES
The state agencies and the individual defendants claim that the United States is a necessary party to this action and if it is dismissed, the action should be dismissed as to all defendants.
Federal Rule of Civil Procedure 19(b) states:
If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity or good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable, the factors to be considered by the court include; first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is issued for nonjoinder.
Fed.R.Civ.P. 19(b) (emphasis added).
The essence of the Tribe's claim is that the United States improperly conveyed title to reservation lands held in trust for the Tribe to the state of North Dakota and various third parties in violation of its fiduciary obligations. As set forth above, the Court finds that it lacks subject matter jurisdiction over the United States. Therefore, the Court must determine whether the United States is an indispensable party pursuant to Rule 19(b), Federal Rules of Civil Procedure. If the answer is yes, the action against the remaining defendants must be dismissed.
The United States argues that this case is directly analogous toNavaho Tribe of Indians v. State of New Mexico, 809 F.2d 1455 (10th Cir. 1987), quoting "[t]he Tribe's remaining claims against the remaining defendants are, in reality, challenges to the validity of the transactions by which the United States assumed title to the subject land." Navaho at 1471. First, there is no question that the first prong of Rule 19(b) a judgment rendered in the absence of the United States would be prejudicial to the United States. Because prejudice to the United States is clear, the Court need not consider prejudice to the other parties. A finding in the United States' absence that Article IV of the Treaty of 1867 included the lake bed of Devils Lake in the grant of land to the Tribe undoubtedly prejudices the United States. Second, this Court sees no way to word a judgment or shape the possible relief to avoid such prejudice to the United States. In this case, title to the lake bed must be decided entirely or not at all. Navaho at 1472. Third, any judgment rendered without the presence of the United States would be totally inadequate. Fourth, the Tribe does not have a proper remedy, in fact it has no remedy. The fourth factor is not dispositive, rather Rule 19(b) must be applied in "equity and good conscience" by the district court.
In Navaho, the Tenth Circuit examined the application of Rule 19(b) to a claim that was barred by the ICCA and that is analogous to the Tribe's current claim. The Tenth Circuit in Navaho held that the United States was an indispensable party. Further, the Eighth Circuit's decision in Oglala Sioux Tribe v. Homestake Mining Company, 722 F.2d 1407 (8th Cir. 1983) stands for the proposition that the Tribe may not avoid the exclusivity bar of the Indian Claims Commission Act by seeking title, possession and damages from successors in interest of the United States, where suit against the federal government is barred. Therefore, application of the factors set forth in Rule 19(b) and the case law cited lead this Court to conclude that the United States is an indispensable party in this action.
THEREFORE, IT IS ORDERED that the United States Motion for Summary Judgment (Dkt. 116) is GRANTED, and that a judgment of dismissal be entered as to all named defendants in the plaintiff's complaint.
BRUCE M. VAN SICKLE, Judge, United States District Court.