Aderholt et al v. Bureau of Land Management et al

Brief/Memorandum in Support

N.D. Tex.June 26, 2017

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION PLAINTIFFS’ MEMORANDUM IN SUPPORT OF RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS KENNETH ADERHOLT et al., Plaintiffs, the STATE OF TEXAS, by and through the office of the Attorney General of Texas, and GEORGE P. BUSH, COMMISSIONER, of the GENERAL LAND OFFICE of the STATE OF TEXAS, Plaintiff-Intervenor, v. BUREAU OF LAND MANAGEMENT et al., Defendants. Civ. No. 7:15-CV-000162-O Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 1 of 58 PageID 3933 ii TABLE OF CONTENTS INDEX OF AUTHORITIES............................................................................................................v I. INTRODUCTION ...............................................................................................................1 II. STATEMENT OF FACTS ..................................................................................................2 A. HISTORICAL FACTS ........................................................................................................2 B. 1923 SUPREME COURT DECISION ................................................................................4 C. BLM TAKES STEPS TO SEIZE PLAINTIFFS’ LANDS .................................................6 D. INDIVIDUAL PLAINTIFFS...............................................................................................8 E. TEXAS COUNTY PLAINTIFFS ......................................................................................15 F. CLAY COUNTY SHERIFF LEMONS ............................................................................16 III. PLAINTIFFS’ LIVE CAUSES OF ACTION ...................................................................17 A. COUNT ONE: QUIET TITLE FOR INDIVIDUAL PLAINTIFFS CANAN, HUNTER, SMITH, AND PATTON .................................................................................17 B. COUNT TWO: QUIET TITLE FOR UNSURVEYED INDIVIDUAL PLAINTIFFS .....................................................................................................................18 C. COUNT THREE: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR COUNTY PLAINTIFFS AGAINST DEFENDANTS FOR UNLAWFUL AND UNCONSTITIONAL ACTIONS .....................................................18 D. COUNT FIVE: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF TO DETERMINE PROPER SURVEY STANDARDS FOR DETERMINING THE SOUTH BANK AND GRADIENT BOUNDRY OF THE RED RIVER ..............................................................................................................19 E. COUNT SIX: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR PLAINTIFF CLAY COUNTY SHERIFF LEMONS ................................19 F. COUNT EIGHT: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR UNREASONABLE SEIZURE OF PROEPRTY UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION....................20 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 2 of 58 PageID 3934 iii IV. ARGUMENT & AUTHORITIES .....................................................................................20 A. DEFENDANTS’ MOTION SEEKS ONLY PARTIAL SUMMARY JUDGMENT ......................................................................................................................20 B. BLM’S NON-PERMANMENT SUSPENSION OF ITS SURVEYS DOES NOT IMPACT THE JUSTICIABILITY OF PLAINTIFFS’ CLAIMS ............................21 1. BLM keeps door open to reimplement suspended surveys .........................................21 2. Federal Defendants do not disclaim claims underlying suspended surveys ................22 3. Proper methodology remains a primary issue in dispute .............................................23 C. SURVEYED PLAINTIFFS’ QTA CLAIMS ......................................................................23 1. The Surveyed Plaintiffs Have Offered Sufficient Evidence of the Relevant Boundary ......................................................................................................................23 2. BLM’s Allegation Concerning Indian Allotments Does Not Deprive the Court of Jurisdiction Over Any Plaintiff or Claim ......................................................25 D. UNSURVEYED PLAINTIFFS’ QTA CLAIMS ................................................................27 1. Article III Standing ......................................................................................................28 2. The Unsurveyed Plaintiffs Have Also Sufficiently Alleged “Disputed Title to Real Property”..........................................................................................................30 3. The Unsurveyed Plaintiffs Have Shown the Location of the Boundary Bank .............................................................................................................................31 E. FOURTH AMENDMENT UNREASONABLE SEIZURE ...............................................31 F. PLAINTIFFS ARE ENTITLED TO MANDAMUS AND DECLARATORY RELIEF ON COUNTS FOUR, FIVE AND SIX...............................................................34 1. Defendants Ignore Claims of County Plaintiffs ...........................................................34 2. Plaintiffs have multiple available causes of action ......................................................34 3. Federal Defendants assert the boundary of the Red River has changed ......................36 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 3 of 58 PageID 3935 iv G. FEDERAL DEFENDANTS’ PROCEDURAL OBJECTIONS TO COUNTS 4- 6, 8 ARE MISPLACED .....................................................................................................39 1. Plaintiffs’ claims do not arise under the APA, so final agency action is not required ........................................................................................................................39 2. Even if final agency action were required, Plaintiffs claims meet that burden ..........................................................................................................................40 a. Federal Defendants’ actions mark the consummation of the decision making process.......................................................................................................41 b. Federal Defendants’ actions claim to determine legal rights and cause legal consequences .................................................................................................44 3. Plaintiffs’ claims are not barred by the statute of limitations ......................................45 4. Plaintiffs non-QTA claims are not bound by the administrative record ......................47 5. Plaintiffs have not waived their non-QTA claims .......................................................48 V. PRAYER & CONCLUSION .............................................................................................50 CERTIFICATE OF SERVICE ......................................................................................................51 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 4 of 58 PageID 3936 v INDEX OF AUTHORITIES CASES PAGE(S) Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ........................................................................40, 41 Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484 (5th Cir. 2014) ..........38, 39, 49 Alaska v. United States, 201 F.3d 1154 (9th Cir. 2000) ...........................................................22, 24 Appalachian Power Co. v. E.P.A., 208 F.3d 1015 (D.C. Cir. 2000) .............................................43 Bennett v. Spear, 520 U.S. 154 (1997) ..........................................................................................40 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ..................................................................................................................31 Board of Natural Resources v. Brown, 922 F.2d 937 (9th Cir. 1992) ............................................27 Bowsher v. Synar, 478 U.S. 714 (1986) .........................................................................................27 Brainard v. State, 12 S.W.3d 6 (Tex. 1999) ....................................................................................8 Citizens Legal Enf’t. v. Connor, 762 F.Supp.2d 1214 (S.D. Cal. 2011), aff’d, 540 Fed. Appx. 587 (9th Cir. 2013) .....................................................37 Commercial Drapery Contractors, Inc. v. United States, 967 F.Supp. 1 (D.D.C. 1997), aff’d, 133 F.3d 1 (D.C. Cir. 1998) ............................................................................................47 Connor v. U.S. Dept. of the Int., 73 F.Supp.2d 1215 (D. Nev. 1999) ............................................45 Doe v. United States, 853 F.3d 792 (5th Cir. 2017) ........................................................................39 Donnelly v. U.S., 850 F.2d 1313 (9th Cir. 1988) ............................................................................34 Dunn-McCampbell Royalty Interest, Inc. v. Natl. Park Serv., 112 F.3d 1283 (5th Cir. 1997) ...................................................................................................45 Franklin v. Massachusetts, 505 U.S. 788 (1992) ...........................................................................43 Fulbright v. McHugh, 67 F.Supp.3d 81 (D.D.C. 2014) .................................................................46 Hoffman v. L&M Arts, No. 3:10-CV-0953-D, 2013 WL 81578 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 5 of 58 PageID 3937 vi (N.D. Tex. Jan. 8, 2013)............................................................................................................24 Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607 (7th Cir. 2003) .....................................................................................................43 Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1993) ..................................................................................................................46 Kane Cnty. Utah v. United States, 772 F.3d 1205 (10th Cir. 2014) .........................................27, 29 Lopez v. Davis, 531 U.S. 230 (2001) .............................................................................................49 Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) ..........................................................................8 Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491 (5th Cir. 2004) .....................................................................................................27 Oklahoma v. Texas, 258 U.S. 574 (1922) ....................................................................................4, 5 Oklahoma v. Texas, 260 U.S. 606 (1923) .................................................................. 3, 5, 6, passim Oklahoma v. Texas, 261 U.S. 340 (1923) ....................................................................................5, 6 Philadelphia Co. v. Stinson, 223 U.S. 605 (1912) ...........................................................................8 Qureshi v. Holder, 663 F.3d 778 (5th Cir. 2011) ...........................................................................40 Sackett v. E.P.A., 132 S.Ct. 1367 (2012) .......................................................................................42 Secretary of the Interior v. California, 464 U.S. 312 (1984).........................................................27 Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009) .......................................... 19, 31, 32, passim Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009) .............................................21 State of Texas v. U.S., 749 F.2d 1144 (5th Cir. 1985) ..............................................................45, 46 Stauber v. Shalala, 895 F.Supp. 1178 (W.D. Wis. 1995) ..............................................................47 Trudeau v. Fed. Trade Commn., 456 F.3d 178 (D.C. Cir. 2006) ..................................................39 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 6 of 58 PageID 3938 vii Other Authorities U.S. Library of Congress, Collections. Louisiana: European Explorations and the Louisiana Purchase: A Question of Boundaries. Available at: https://www.loc.gov/collections/louisiana-european-explorations-and-the-louisiana- purchase/articles-and-essays/a-question-of-boundaries/ (accessed 6/19/17) ..................................3 Treaty of Amity, Settlement, and Limits, Between the United States of America and his Catholic Majesty, art. 3, Feb. 22, 2819. 8 Stat. 252 .........................................................................3 Red River Private Property Protection Act: Hearing on H.R. 4979 Before the House Subcommittee on Public Lands and Environmental Regulation, 113th Congress (Hearing July 29, 2014) (statement of Steven Ellis, Director of BLM, Panel II). Available at https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=388599 ........................28 Acts of June 6, 1900 § 6, 31 Stat. 672, 676 .....................................................................................4 Enabling Act of June 5, 1906, 34 Stat. 213 .....................................................................................4 74 Fed. Reg. 28061-62 ........................................................................................... 6, 17, 22, passim 75 Fed. Reg. 8738 .................................................................................................. 6, 17, 22, passim 5 U.S.C. §500 et. seq. ...............................................................................................................................20 § 551(13) ....................................................................................................................................39 § 551(10)(D) ..............................................................................................................................39 § 551(10)(F) ...............................................................................................................................39 §702................................................................................................................................20, 31, 32 28 U.S.C. § 1331.........................................................................................................................................39 § 1361.........................................................................................................................................20 § 2201.........................................................................................................................................20 Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 7 of 58 PageID 3939 1 I. INTRODUCTION This case is not about “Plaintiff’s discontent with longstanding uncertainty” regarding a riparian boundary. ECF 199 at 1. Plaintiffs recognize that uncertainty is part of life as a riparian landowner; even if Plaintiffs prevail, some level of uncertainty will remain. Rather, this case about is about “Plaintiffs’ discontent” with the Federal Government performing and approving surveys that directly contradicted the law as set down by the Supreme Court almost a century ago. This case is about “Plaintiffs’ discontent” with the Government’s response to those errors, indicating only that the surveys “may contain errors”—yet using that as a basis to claim that the controversy no longer exists. And this case is about “Plaintiffs’ discontent” with the Government’s ever-shifting positions (none of them correct) on the appropriate application of Oklahoma v. Texas to the Red River where the correct application—advocated by Plaintiffs—is abundantly clear. In sum, this case is not about Plaintiffs’ discontent with the uncertainty inherent in riparian landownership. This case is about remedying and rectifying the Government’s unlawful actions, which serve to unnecessarily and arbitrarily increase and exacerbate this uncertainty. On the merits, much of Federal Defendants’ summary judgment motion attempts to re- litigate issues already resolved by this Court in denying the federal government’s 12(b) dismissal motion. ECF 86. Federal Defendants admit that their survey methodology leading to the fixture of federal survey markers upon Plaintiffs’ property and publication of BLM maps estimating public lands did not comply with the methodology established by the Supreme Court’s opinion in Oklahoma v. Texas, yet they continue to rely on the erroneous method to date. Federal Defendants admit that their arguments would leave countless property owners along the Red River deprived of their property rights, with no remedy in federal court—a shocking departure from the demands Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 8 of 58 PageID 3940 2 of the Supreme Court in Marbury v. Madison—but, to avoid any declaration of unlawfulness, Federal Defendants make these arguments anyway. Enough is enough. Plaintiffs’ lawsuit seeks a declaration that the methodology used by Federal Defendants to locate the boundary between federal land and Texas private property is unlawful and for injunctive relief to prevent Federal Defendants from continuing to use that method, or surveys created by that method, in the future. Federal Defendants admit that the method used was unlawful. In fact, BLM has suspended these surveys due to admitted failure to follow the Oklahoma v. Texas methodology, but refuses to disclaim the methodology leading to the error in these surveys or the use of that same method in future surveys. Not once during this litigation have Federal Defendants attempted to defend the merits of their survey method or subsequent claims to private property based on it. Federal Defendants’ position has not changed - they continue to assert that federal lands overlap private property along the disputed area within Texas. Their entire motion is just a procedural attempt to have the Court declare this remarkable position unlawful. As Plaintiffs have alleged since the dawn of this case, Federal Defendants’ actions have effectively seized thousands of acres of private property along the Red River in Texas. It is for this Court, not Congress, to protect these property owner’s rights by requiring Federal Defendants’ to comply with the law. For the reasons explained below, Federal Defendants’ repackaged Motion to Dismiss masquerading as a partial summary judgment motion should be denied. II. STATEMENT OF FACTS A. HISTORICAL FACTS The legal history of the Red River boundary is significant in this lawsuit for the Court to recognize why the boundary exists and, therefore, where the boundary must lie – not a snapshot in Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 9 of 58 PageID 3941 3 time as asserted by Federal Defendants, but within the context of history dating back to the Louisiana Purchase. The Red River as a political, jurisdictional, and property boundary arose because it was readily discernible when the gizmos and gadgets of BLM - LIDAR, soil samples, water modeling, etc. - were decades, centuries even, away from being invented. The historical precedent as it relates to the legal methodology used to determine the boundary in question did not end when BLM acquired GPS technology, much as the Federal Defendants would claim otherwise. At the most basic level, the Red River boundary is and has always been intended to be proximate to the flowing waters of the river, resulting ultimately in the Supreme Court’s methodology determining exactly where, next to the water, the boundary line lies. The south bank of the Red River has been a boundary since 1803, when the United States acquired ownership of the entire bed and lands lying to its north through a treaty with France in the Louisiana Purchase.1 The Louisiana Purchase boundary was reaffirmed in the 1819 Adams- Onis Treaty, which established the border between the two nations as the “south cut bank” of the Red River. Treaty of Amity, Settlement, and Limits, Between the United States of America and his Catholic Majesty, art. 3, Feb. 22, 2819, 8 Stat. 252. After the Republic of Texas gained its independence from Mexico, Texas entered into a treaty with the United States which upheld the Adams-Onis Treaty as the official border between the two nations. Id. Under that treaty, both countries maintained their ability to access and navigate the river, but full ownership of the riverbed remained with the United States. Id.; Oklahoma v. Texas, 260 U.S. 606, 623 (1923). Through an 1867 treaty between the United States and the Kiowa, Comanche, and Apache 1 U.S. Library of Congress, Collections. Louisiana: European Explorations and the Louisiana Purchase: A Question of Boundaries. Available at: https://www.loc.gov/collections/louisiana-european-explorations-and-the- louisiana-purchase/articles-and-essays/a-question-of-boundaries/ (accessed 6/19/17). Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 10 of 58 PageID 3942 4 Tribes, the territory north of the “middle of the main channel” of the Red River was set apart as a reservation and permanent home for those tribes.2 Oklahoma v. Texas, 258 U.S. 574, 592 (1922); Treaty with the Kiowa and Comanche, art. 2, October 21, 1967, 15 Stat. 581. Like the 1867 treaty, these acts were limited to the territory north of the main channel of the river. Id. The Court determined that the main channel designated under the treaty must extend from one cut bank to the other, and that north of the medial line must be what was designated as the Indian boundary. Oklahoma, 258 U.S. at 594. As the Indian tribes and tribal lands arose within the state and territory of Oklahoma and whose boundary ends at the medial line, it is legally impossible for BLM’s application of the 1923 Oklahoma v. Texas methodology to result in tribal lands south of the Red River’s medial line. In 1922, Oklahoma sued Texas claiming that, per its admittance into the union, Oklahoma owned the entirety of the Red River riverbed. Oklahoma v. Texas, 258 U.S. at 583, 588. The United States intervened, claiming title to the entire river bed with the argument that because the Red River is not navigable in the disputed stretch, Oklahoma did not gain title under the rule of equality among the states. Id. at 588. In that case, the Supreme Court found that since no portion of the Red River within Oklahoma was navigable, title to the riverbed did not pass to Oklahoma upon its admission to the Union. Id. The Court further held that any lawful claim gained upon admission to the Union, to any part of the riverbed, could only be sustained through incidental claims relating to its ownership of riparian lands on the northerly bank. Id. at 591. B. 1923 SUPREME COURT DECISION In 1923 the Supreme Court reaffirmed that the south cut bank, or the southern gradient 2 This reservation was maintained until the Act of June 6, 1900 §6, 31 Stat. 672, 676 and Enabling Act of June 5, 1906, 34 Stat. 213, which directed that the reservations be disposed of by reserving common grazing lands, allotting severalty to each member of the tribes, reserving four sections in each township for the future state of Oklahoma, and by subjecting the remaining lands to particular modes of entry and acquisition. Id. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 11 of 58 PageID 3943 5 boundary of the Red River, was the northern border of Texas. Oklahoma v. Texas, 260 U.S. 606, 625 (1923). The Court further determined that the south cut bank is “[the] bank at the mean level of the water, when it washes the bank without overflowing it…subject to the right application of the doctrines of erosion and accretion and of avulsion to any intervening changes. Id. at 636. Both title and jurisdictional boundaries follow the natural and gradual progression of the river as it changes through erosion and accretion. Id. The Indian allotments are limited to the area north of the medial line of the Red River, and Texas lands begin south of the south bank of the Red River, with the property between the medial line and the south bank owned by the United States serving as a buffer. Oklahoma v. Texas, 258 U.S. at 592; Treaty with the Kiowa and Comanche, art. 2, October 21, 1967, 15 Stat. 581. Because the medial line and south bank boundaries move with the course of the Red River, it is impossible for Indian allotments to extend into Texas. Following its 1923 decision, the Court issued the following order: It is ordered and decreed: 1. The Boundary between the states of Oklahoma and Texas…is part of the international boundary established by the treaty of 1819 between the United States and Spain, and is on and along the south bank of that river (Red River) as the same existed in 1821, when the treaty became effective, save as hereinafter stated. 2. Where intervening changes in that bank have occurred through the natural and gradual processes known as erosion and accretion the boundary has followed the change; but where the stream has left its former channel and made for itself a new one through adjacent upland by the process known as avulsion the boundary has not followed the change, but has remained on and along what was the south bank before the change occurred…4. The rules stated in the last two paragraphs will be equally applicable to such changes as may occur in the future. Partial decree in Oklahoma v. Texas, 261 U.S. 340, 341 (1923) (emphasis added). In accordance with its ruling, the Court commissioned a survey and ordered surveyors Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 12 of 58 PageID 3944 6 Arthur D. Kidder and Arthur L. Stiles to apply the Court’s survey method to determine the gradient boundary as of 1923 and conduct a survey of various portions of the boundary bank of the Red River. Id. at 343. C. BLM TAKES STEPS TO SEIZE PLAINTIFFS’ LANDS In 2003, BLM initiated the process of revising the Resource Management Plan, including as federal property a 116-mile stretch of the Red River in Wichita, Wilbarger, and Clay Counties, Texas. ECF 91 at ¶ 61. As a part of the revision process, BLM conducted surveys along the 116- mile stretch of the Red River and published them in the Federal Register, giving official and legal notice of its claim to property owned by the individual Plaintiffs. 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738. BLM acknowledged that “the survey methodology used was in error” because the surveyor did not apply the doctrines of erosion, accretion, and avulsion, in violation of the Supreme Court’s holding in Oklahoma, 260 U.S. at 636. ECF 168. The erroneous surveys were suspended, but not withdrawn and can therefore be reinstated at any time. Id. In 2007, BLM representatives entered Plaintiff Pat Canan’s property and affixed BLM survey monuments onto his property. ECF 91 at ¶ 62. BLM also affixed survey monuments on properties owned by Plaintiffs Kevin Hunter, Ken and Barbara Patton, and Jimmy Smith. Foster Aff., APP. 0001-0013. The various monuments purport to mark both the southern gradient boundary and the medial line of the Red River. Id. In places, the survey monuments were set over one mile from the flowing water of the Red River. Id. at ¶10. In 2014, BLM created and distributed a map (“2014 Map”) identifying the land it claimed as public land along the 116-mile stretch of the Red River. 12/16/2016 Depo. Tr. of S. Tryon APP. 0014-0018 at 18:14-24. The 2014 Map shows land owned by the individual Plaintiffs as estimated Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 13 of 58 PageID 3945 7 public land owned by the federal government. APP. 0250. The map was distributed at public meetings, even though Federal Defendants were aware it would cause concern among property owners whose land was shown within the boundaries of the federal land. 12/16/2016 Depo. Tr. of S. Tryon, APP. 0014-0018 at 18:14-24. The now-suspended surveys published in the Federal Register do not rely on any alleged, past avulsive event. 3/2/17 Depo. Tr. of G. Winter, APP. 0019-0027 at 71:11-18; 3/16/17 Depo. Tr. of Robert Caisas, APP. 0028-0030 at 48:12-14. The surveys do not locate the southern gradient boundary on a bank that is water-washed. 3/2/17 Depo. Tr. of G. Winter, APP. 0019-0027 at 106:3-107:17; Foster Aff., APP. 0001-0013 at ¶11. Vegetation grows on both sides along virtually the entire length of the boundary located in the BLM surveys. Id. at ¶12. As BLM has admitted, the surveys do not account for erosion and accretion. 3/2/17 Depo. Tr. of G. Winter, APP. 0019- 0027 at 72:2-12; ECF 168. In fact, the surveys were conducted by retracing the Kidder and Stiles monuments and by estimating the gradient boundary line with a protractor and scales where the Kidder and Stiles monuments did not exist. Id. at 21:25-23:1 and 23:2-19. The surveys were conducted with the assumption that the southern gradient boundary should be placed on the bluff banks. Winter Field Notes, APP. 0031-0071; 3/2/17 Depo. Tr. of G. Winter, APP. 0019-0027 at 25:17-27:18. The 2014 Map does not locate the southern gradient boundary on a bank that is the water- washed and relatively permanent elevation or acclivity at the outer line of the riverbed. Foster Aff., APP. 0001-0013 at ¶13. The 2014 Map does not locate the southern gradient boundary on a bank that separates the bed from the adjacent upland, on a bank that serves to confine the waters within the bed, or on a bank that preserves the course of the river. Id. at ¶14-17. Like the surveys, it does not account for erosion or accretion and was not created via the gradient boundary survey Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 14 of 58 PageID 3946 8 method. Id. at ¶17; 12/16/16 Depo. Tr. of S. Tryon, APP. 0014-0018 at 41:8-25, 42:1-6. Instead, the 2014 Map located the southern gradient boundary by using data on transportation infrastructure, prior year survey boundaries, soils, satellite imagery, the public land survey system, and township boundaries. Id. at 41:8-42:6. Finally, the 2014 Map does not rely on any avulsive event occurring after the Kidder and Stiles survey. However, whereas Federal Defendants go to great lengths to point out that the 2014 map is not an “official BLM survey,” Federal Defendants have never, nor do they now, disclaim the assertion estimated in the 2014 Map that federal public lands overlap with private property in Texas as indicated. D. INDIVIDUAL PLAINTIFFS The Individual Plaintiffs in this lawsuit hold title to and pay taxes on property along the Red River in Wichita, Wilbarger, and Clay Counties, Texas. APP. 0185-0249. In addition to the land described in their deeds, the Individual Plaintiffs also own the land that has built up due to accretion, including accretion by reliction, in between their deeded acreage and the flowing waters of the Red River. See Philadelphia Co. v. Stimson, 223 U.S. 605, 624 (1912) (“It is the established rule that a riparian proprietor of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased he is not accountable for the gain, and if it is diminished he has no recourse for the loss.”); Brainard v. State, 12 S.W.3d 6, 18 (Tex. 1999), disapproved of on other grounds by Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) (“A riparian owner thus acquires title to all such additions or extensions to the land and loses title to portions of the land that are worn, washed away or encroached upon by the water.”). The Supreme Court’s holding in Oklahoma establishes the methodology in determining the location of the Individual Plaintiffs’ boundaries along the Red River. 260 U.S. 606. Per the Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 15 of 58 PageID 3947 9 Supreme Court’s decision, the Individual Plaintiffs’ boundaries along the Red River follow the river as it moves. Id. at 636. This is legally how the northern boundary of Individual Plaintiffs’ properties along the Red River is identified. ADERHOLT - Plaintiff Kenneth Aderholt owns approximately 700 acres in Wilbarger and Wichita Counties. APP. 0185-0197. In the “Factual Background” of Defendants’ Motion for Summary Judgment, Plaintiffs dispute that Mr. Aderholt “cannot identify any specific portion of those parcels that he believes BLM claims.” ECF 199 at 7. To the contrary, Mr. Aderholt has seen maps at public meetings which had “a big broad stroke that up and down the river and it was BLM property,” and has spoken with a BLM official who indicated his property was included in the BLM’s resource management plan. 2/9/17 Depo Tr. of K. Aderholt, APP. 0072-0076 at 62:20- 63:8. BLM Field Manager Larry Levesque informed Mr. Aderholt that the federal government claimed land “up to the tree line up to the high bluff” for the 116-acres along the Red River, which is unquestionably further inland than the south cut bank of the Red River. Id. at 54:18-55:3-13. Mr. Aderholt clearly testified at deposition that his property includes both the deeded and accreted land, and that BLM claimed his land up to the high bluff. Id. at 54:18-55:3-13, 56:18-22. Mr. Aderholt’s deeds provide a metes and bounds descriptions of each of his parcels, and those parcels include accreted land at the boundary with the Red River. APP. 0185-0197. Federal Defendants provide no support for their outlandish claim that Mr. Aderholt must provide a pre- litigation survey of each of his properties in order to identify his own property boundaries or that he cannot identify the boundaries of his own property – owned by his family for three generations. ECF 199 at 7. Mr. Aderholt’s property boundaries are as described in his deeds, where the metes and bounds description specifies a boundary reaching to the “South Cut Bank of the Red River; Thence in an Easterly direction with said cut bank” until it intersects with another property line. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 16 of 58 PageID 3948 10 APP. 0185-0197. JACKSON - Plaintiff Ronald Jackson owns approximately 1,138 acres in Clay County, Texas. APP. 0210-0215. Contrary to Defendants’ claim that Mr. Jackson cannot identify any specific portion of his land claimed by BLM, Mr. Jackson has already identified 750 acres claimed by the federal government. 2/10/17 Depo. Tr. of R. Jackson, APP. 0077-0080 at 12:24-25 (“[T]here was about 750 acres in question on my land…”). Citing the cloud on his title caused by the BLM’s actions in this case, Mr. Jackson is prevented from buying additional property in the disputed area because he’s not sure of the ownership of the land, and he is also unable to plow or graze cattle on the 750 acres claimed by the federal government, testifying “I don’t want to spend the money if they’re going to take it away from me.” 2/10/17 Depo. Tr. R. Jackson, APP. 0077-0080 at 12:19-13:3. Mr. Jackson already fears having to remove a $50,000 fence on his property now claimed by the federal government. Id. at 13:19-21. Plaintiffs further dispute that “Mr. Jackson also cannot identify his claimed boundary for the property.” ECF 199 at 8. Mr. Jackson has provided to Defendants and this Court deeds with metes and bounds descriptions of his property, and that property includes accreted land at the boundary with the Red River. APP. 0210-0215. Mr. Jackson’s property boundaries are as described in his deeds, which specify that his property extends to the “Bank of Red River; Thence down Red River with its meanders to the northeast corner of Block No. 8…” in the case of one parcel, and for another parcel “to an elm marked X on the bank of the Red River; Thence up said River south 7/12 west 309 varas to a stake….” Id. A third parcel’s river boundary is described as “in a southerly direction up the River with its meanders to the northwest corner of Block No. 15…” Id. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 17 of 58 PageID 3949 11 LALK - William Lalk owns approximately 196 acres in Wichita County, Texas. APP. 0216-0232. Defendants’ claim of property up to the high bluffs along the south side of the Red River intrudes upon Mr. Lalk’s property, which contains a segment of the high bluffs overlooking the river. 2/8/17 Depo. Tr. W. Lalk, APP. 0081-0084 at 25:15-20. Furthermore, BLM’s estimates of federal ownership of public lands within Wichita County place a cloud on Mr. Lalk’s property even though it may not abut the current flowing waters of the Red River. BLM has placed federal markers miles within Texas and published maps projecting estimates of public lands within Wichita County. If anything, these “estimates” represented in the 2014 Map and others created a further cloud upon Mr. Lalk and his neighbors because BLM disclaims the specific accuracy of the maps as mere estimates, yet does not disclaim the underlying assertion of federal ownership of property within Wichita County as expressed by the maps and Federal Defendants public statements and positions taken in this litigation. Whereas Mr. Lalk’s property at issue in this lawsuit may not abut the flowing waters of the Red River, nor do Federal Defendants limit their “estimate” of ownership to areas adjacent to the River. PATTONS - Plaintiffs Kenneth and Barbara Patton own approximately 1,308 acres within Wichita County, Texas. APP. 0233-0236. Plaintiffs dispute that that the Pattons cannot identify their claimed boundary for their property. ECF 199 at 9. Mr. and Mrs. Patton’s deeds with metes and bounds descriptions of their property describe the boundary, and that property includes accreted land at the boundary with the Red River. APP. 0233-0236 (“All of the accreted land lying North of and adjacent to the above described tract one…”). CANAN - Plaintiff Patrick Canan owns approximately 2,000 acres in Wichita and Clay Counties, Texas. APP. 0198-0204. Defendants placed permanent survey markers on Mr. Canan’s property, claiming approximately 1,400 acres as federal land. 2/6/17 Depo. Tr. of P. Canan Vol. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 18 of 58 PageID 3950 12 I, APP. 0085-0093 at 33:8. As explained above, it is a legal and factual impossibility for Mr. Canan’s property to overlap with any Indian allotments in Oklahoma. See supra p. 5. Plaintiffs dispute Defendants’ incomplete quote from Mr. Canan’s deposition to support their statement that “Mr. Canan cannot identify his claimed boundary for the property.” ECF 199 at 11. Mr. Canan testified that because of Defendants’ claim to his property, he is unsure of where the northern boundary of his property now lies. 2/6/17 Depo. Tr. of P. Canan Vol. I, APP. 0085-0093 at 141:21- 24 (“A: The northern boundary. I can’t define where the northern boundary of my property is. I know where the southern boundaries are because they are uncontested.”). Mr. Canan testified that the federal government is claiming “to where they had placed their gradient boundary markers” on his property, extending from the markers to the medial line of the river. Id. at 69:6-15, 69:25-70:2. Mr. Canan and Mr. Hunter protested the BLM’s now-suspended surveys to the BLM. RAR0000070-71, APP. 0251-0253; RAR 0000072-74, APP. 0254-0256. BLM rejected both appeals in nearly identical language, stating that the survey by George Winter “does follow the Gradient boundary as defined by the 1923 Supreme Court decision and the Commissioners Third Report to the October Term, 1925, No. 13, Original.” Id. BLM also stated, “It has been our experience that some Texas surveyors continue to go to the running water to define the Gradient State boundary, accepting the bank at the south edge of the running water as the State boundary. This is an incorrect procedure.” Id. (emphasis added). Because of the federal government’s claim to his property, Mr. Canan has not been able to make improvements on the disputed property or manage it in the way chooses. 2/6/17 Depo. Tr. of P. Canan Vol. I, APP. 0085-0093 at 78:21-25 (“A: I’ve had some creek crossings washout on Gilbert’s Creek, and as opposed to either putting a bridge across it or placing culverts in there and actually building a crossing there, we withheld from doing that.”); Id. at 82:19-20 (“A: We omitted Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 19 of 58 PageID 3951 13 doing some additional fencing down into the river bottom.”). Mr. Canan has provided to Federal Defendants and this Court deeds with metes and bounds descriptions of his property, and that property includes accreted land at the boundary with the Red River. APP. 0198-0204. Mr. Canan’s property boundaries are as described in his deeds, and the boundary along the Red River is located according to the Supreme Court’s methodology. Oklahoma, 260 U.S. 606. HUNTER - Plaintiff Kevin Hunter owns approximately 510 acres in Wichita County, Texas. APP. 0205-0209. Mr. Hunter testified that the federal government has claimed roughly 250 acres of his property. 2/9/17 Depo. Tr. of K. Hunter, APP. 0098-0102 at 16:11. Plaintiffs’ dispute that Mr. Hunter cannot identify the claimed boundary of his property. Defendants state that “[w]hile the property was surveyed in 2015, [Mr. Hunter] denied that the survey accurately identified his boundary abutting the Red River.” ECF 199 at 11. Federal Defendants misrepresent Mr. Hunter’s position in this lawsuit, taking out-of-context Plaintiffs’ Response to Request for Admission No. 19. Plaintiffs’ response clearly does not say what Defendants claim it does: REQUEST FOR ADMISSION NO. 19: Admit that Plaintiffs possess no more recent survey plat describing the boundaries for Plaintiff Hunter’s property that is at issue in this case, than the April 2015 survey plat produced by Plaintiffs as Bates Number P-0000219. RESPONSE: Admitted. Plfs.’ Responses to Defs.’ Second Request to Plaintiffs for Admissions, APP. 0128-0137. Plaintiffs further dispute Federal Defendants’ statement that Mr. Hunter cannot identify the claimed boundary for his property. Mr. Hunter’s deeds describe the metes and bounds of his property, and that property includes accreted land at the boundary with the Red River. APP. 0198- 0204. Mr. Hunter’s property boundaries are as described in his deeds, which specify a boundary Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 20 of 58 PageID 3952 14 which reaches “to a point on the south gradient line of the Red River, same being the Texas/Oklahoma border, for the northwest corner of this tract; Thence along the south gradient line of the Red River and along said state border…” Id. SMITH - Based upon a gradient boundary survey of Plaintiff Jimmy Smith’s property by Plaintiffs’ expert Nedra Foster, including accreted land, done for the purposes of this lawsuit in July 2016, Mr. Smith owns approximately 684 acres in Wichita County, Texas. APP. 0120-0127. Ms. Foster’s gradient boundary survey correctly applied the Oklahoma v. Texas methodology, which Federal Defendants have not done in this case. Plaintiffs’ dispute that Mr. Smith cannot identify the claimed boundary for his property. Mr. Smith has provided Federal Defendants and this Court deeds with metes and bounds descriptions of his property, and that property includes accreted land at the boundary with the Red River. APP. 0237-0249. Mr. Smith’s property boundaries are as described in his deeds, which specify boundary lines which extend “a distance of 35.98 feet to a point on the South bank of the Red River; Thence with the South bank of the Red River as follows…” Id. Plaintiffs further dispute that Mr. Smith “denies that the [2016 Nedra Foster survey] accurately identified his boundary abutting the Red River.” ECF 199 at 12. In support of this statement, Defendants cite to Plaintiffs’ Response to Request for Admission No. 22. Id. Defendants again severely mischaracterize one of Plaintiffs’ responses to a Request for Admission: REQUEST FOR ADMISSION NO. 22: Admit that the boundary abutting the Red River for Plaintiff Smith’s property at issue in this case is accurately described by the survey plat dated July 25, 2016, prepared by Nedra Foster, and produced as part of Plaintiffs’ expert disclosures. RESPONSE: Denied. The boundary abutting the Red River of Plaintiff Smith’s property at issue in this case is constantly changing as a result of erosion and accretion and is determined according to the process set forth in Oklahoma v. Texas, 260 U.S. 606 (1923). Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 21 of 58 PageID 3953 15 Plfs.’ Responses to Defs.’ Second Request to Plaintiffs for Admissions, APP. 0128-0137. E. TEXAS COUNTY PLAINTIFFS3 Though they are not specifically mentioned in Defendants’ Motion for Summary Judgment, Federal Defendants globally seek summary judgment against “Plaintiffs.” The three Texas Counties affected by the Federal Defendants’ unlawful acts are parties to this dispute. Wichita County, Wilbarger County, and Clay County, Texas, are governmental entities situated along the Red River. The County Plaintiffs provide county services for their residents, including fire and emergency medical services, law enforcement and corrections, a court system, public record maintenance and storage, and protection against threats to public health. Tyra Aff., APP. 0263-0265 at ¶5; Liggett Aff., APP. 0260-0262 at ¶ 5; Gossom Aff., APP. 0257-0259 at ¶ 5. The County Plaintiffs have statutory duties regarding land within their jurisdictions delegated by the Texas Legislature, and collect ad valorem taxes to support the functions of the county. Tyra Aff., APP. 0263-0265 at ¶¶ 6-7; Liggett Aff., APP. 0260-0262 at ¶¶6-7; Gossom Aff., APP. 0257-0259 at ¶¶ 6-7. The County Plaintiffs collect ad valorem taxes on the property within their jurisdictions now claimed by the federal government. Tyra Aff., APP. 0263-0265 at ¶ 8; Liggett Aff., APP. 0260-0262 at ¶ 8; Gossom Aff., APP. 0257-0259 at ¶ 8. The County Plaintiffs have no authority to tax federal holding, so the federal government’s unlawful seizure of private property within the Counties’ jurisdictions reduces their tax revenue and threatens their lien interests for unpaid property taxes. Tyra Aff., APP. 0263-0265 at ¶ 9; Liggett Aff., APP. 0260-0262 at ¶ 9; Gossom Aff., APP. 0257-0259 at ¶ 9. The County 3 While Federal Defendants do not specifically reference the County Plaintiffs or Sheriff Lemons in their summary judgment motion, Federal Defendants seek summary judgment against Plaintiffs globally. Out of an abundance of caution, this Response specifically addresses the claims of the County Plaintiffs and Sheriff Lemons. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 22 of 58 PageID 3954 16 Plaintiffs also have a legal obligation to provide health, safety, and welfare services for residents residing in their jurisdictions. Tyra Aff., APP. 0263-0265 at ¶ 10; Liggett Aff., APP. 0260-0262 at ¶ 10; Gossom Aff., APP. 0257-0259 at ¶ 10. The uncertainty surrounding the federal government’s claims to unspecified amounts of property within Wichita County also leaves the County and its officials open to potential litigation or prosecution for failure to enforce statutes which turn on property ownership. Tyra Aff., APP. 0263-0265 at ¶ 11; Liggett Aff., APP. 0260-0262 at ¶ 11; Gossom Aff., APP. 0257- 0259 at ¶ 11. F. CLAY COUNTY SHERIFF LEMONS Also specifically unmentioned, yet globally included within Federal Defendants’ summary judgment motion versus “Plaintiffs” in Defendants’ Motion is Clay County Sheriff Kenneth Lemons, acting in his official capacity. Sheriff Lemons has law enforcement duties throughout Clay County, including along the Red River, delegated to him pursuant to the laws of the State of Texas. 2/7/17 Depo. Tr. of K. Lemons, APP. 0103-0111 at 16:16-17:12. Defendants’ failure to delineate their property with reasonable specificity prevents Sheriff Lemons from being able to discern what land Federal Defendants claim, which interferes with his ability to discharge his law enforcement duties. Id. at 48:14-49-8. Specifically, Federal Defendants’ lack of clarity (1) prevents Sheriff Lemons from being able to enforce certain criminal statutes on private land; and (2) subjects him to potential criminal liability. 2/7/17 Depo. Tr. of K. Lemons, APP. 0103-0111 at 54:16-20, 48:8-13. Additionally, Federal Defendants’ assertion of ownership over private property along the Red River in Clay County causes trespassers to encroach onto private landowners’ land and engage in unlawful activity under the belief they cannot be removed because it is federal land. 2/7/17 Depo Tr. of K. Lemons, APP. 0103-0111 at 34:3-35:1. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 23 of 58 PageID 3955 17 Sheriff Lemons testified that should the disputed portions of Plaintiffs’ properties be opened as public land, “it would do such a damage to the protection of the rest of the county. And when I say that, the volume of calls that would take up my workforce to answer these calls in this public area once it’s opened up, would virtually eliminate any response to any other part of the county.” 2/7/17 Depo. Tr. of K. Lemons, APP. 0103-0111 at 21:19-22:1. Additionally, to enforce criminal statutes for offenses like criminal trespass, poaching, and public intoxication, Sheriff Lemons must know which areas are private property and which are public lands. Id. at 34:3-35:1 (“If it’s public land, then they’re not trespassing. So, it makes it impossible to do that job.”); Id. at 48:21-25 (“If you’re on private land and you have permission to be there, you can be as intoxicated as you want to be. But when you step out in public, it’s a different story.”). This lawless situation created by Federal Defendants’ assertion of ownership interferes with Sheriff Lemons’ law enforcement duties to preserve the peace and provide for public safety. III. PLAINTIFFS’ LIVE CAUSES OF ACTION The nature with which Federal Defendants mischaracterize Plaintiffs’ legal theories confuses the active litigated issues. To assist the Court, Plaintiffs summarize their live causes of action specifically to make clear how Federal Defendants’ summary judgment motion only partially addresses the live claims and would not be dispositive. Following the Court’s Order disposing of the Federal Defendants’ 12(b) dismissal motion, Plaintiffs were left with six remaining causes of action. ECF 86. A. COUNT ONE: QUIET TITLE FOR INDIVIDUAL PLAINTIFFS CANAN, HUNTER, SMITH, AND PATTON.4 In Count One, the Surveyed Plaintiffs seek relief under the Quiet Title Act from Federal 4 Plaintiffs’ Amended Complaint, ECF 40, designated Plaintiffs Ken and Barbara Patton as Unsurveyed Plaintiffs. Since the filing of the Amended Complaint, the Pattons have located BLM survey markers on their property, and will now be treated as Surveyed Plaintiffs. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 24 of 58 PageID 3956 18 Defendants’ unlawful claims to the Surveyed Plaintiffs’ private property, as shown by the BLM surveys published in the Federal Register at 74 Fed. Reg. 28061-62 and 75 Fed. Reg. 8738, and the permanent survey markers hammered into the Surveyed Plaintiffs’ properties. ECF 40 at ¶¶ 131-153. Plaintiffs allege that the method for determining the boundary bank of the Red River must be in accordance with Oklahoma v. Texas, and that any federal claim to the Surveyed Plaintiffs’ property within Texas from the southern vegetation line falls outside the boundary bank and is therefore invalid and unlawful. The Surveyed Plaintiffs seek an order from this Court quieting title to such lands as described in their individual deeds, tax appraisals, and dry land exposed due to accretion. B. COUNT TWO: QUIET TITLE FOR UNSURVEYED INDIVIDUAL PLAINTIFFS. In Count Two, the Unsurveyed Individual Plaintiffs seek relief under the Quiet Title Act from Defendants’ unlawful claims to the Unsurveyed Plaintiffs’ private property. The Unsurveyed Plaintiffs allege that the BLM surveys published in the Federal Register, the permanent survey markers placed miles from the river on their neighbors’ properties, and the public maps showing federal claim to large swaths of privately owned property south of the vegetation line and boundary bank demonstrate that Federal Defendants are using a survey method contrary to the one set out in Oklahoma v. Texas. This Court has found that there is no dispute that the BLM produced the relevant Plats showing that the United States claims estimated acreage of the Unsurveyed Plaintiffs’ land. ECF 86 at 15. This Court also noted that publication in the Federal Register is sufficient to assert a claim to the property. Id. at 18-19. C. COUNT FOUR: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR COUNTY PLAINTIFFS AGAINST FEDERAL DEFENDANTS FOR UNLAWFUL AND UNCONSTITUTIONAL ACTIONS. In Count Four, the County Plaintiffs seek declaratory, mandamus, and injunctive relief Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 25 of 58 PageID 3957 19 from Federal Defendants’ unlawful adoption of survey methods that are contrary to Oklahoma v. Texas, claiming land within the County Plaintiffs’ jurisdictions beyond Federal Defendants’ proper borders, and by asserting federal jurisdiction over land within the County Plaintiffs’ traditional jurisdiction without specifying the extent of the property claimed with reasonable specificity. ECF 40 at ¶ 191. This Court denied Federal Defendants’ Motion to Dismiss as to this claim. D. COUNT FIVE: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF TO DETERMINE PROPER SURVEY STANDARDS FOR DETERMINING THE SOUTH BANK AND GRADIENT BOUNDARY OF THE RED RIVER. In Count Five, Plaintiffs seek declaratory, mandamus, and injunctive relief from Federal Defendants’ use of an official survey method for determining the location of the gradient boundary along Plaintiffs’ properties that is contrary to the method expressly mandated by the Supreme Court in Oklahoma v. Texas. Plaintiffs allege Federal Defendants have published maps and surveys and made statements which espouse a survey method contrary to Oklahoma v. Texas, as well as issued official opinions which reject surveys of the gradient boundary offered by Plaintiffs Hunter and Canan and state an adoption of a survey method contrary to Oklahoma v. Texas. ECF 40 at ¶¶ 205-211. This Court denied Federal Defendants’ Motion to Dismiss as to this claim. E. COUNT SIX: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR PLAINTIFF CLAY COUNTY SHERIFF LEMONS. In Count Six, Plaintiffs seek declaratory, mandamus, and injunctive relief from Federal Defendants’ assertion of ownership and jurisdiction over property they refuse to delineate with reasonable specificity. ECF 40 at ¶ 220. Plaintiff Sheriff Lemons is prevented from fully performing his statutory law enforcement duties due to the ambiguity of the property boundaries claimed by Federal Defendants, and faces criminal and civil liability for removing individuals from allegedly public land. Id. at ¶ 222-3. This Court denied Federal Defendants’ Motion to Dismiss as to this claim. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 26 of 58 PageID 3958 20 F. COUNT EIGHT: DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF FOR UNREASONABLE SEIZURE OF PROPERTY UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION. In Count Eight, Plaintiffs seek declaratory, mandamus, and injunctive relief from Federal Defendants’ unreasonable seizure of their property under the Fourth Amendment. ECF 40 at ¶¶ 241-252. Plaintiffs have a constitutional right to be free from unreasonable seizure of their property, and Federal Defendants’ seizure violates the Fourth Amendment because it is “(a) a meaningful interference with [Plaintiffs’] possessory interest in [their] property, which is (b) unreasonable because the interference is unjustified by ...law, or, if justified, then uncompensated.” Severance v. Patterson, 566 F.3d 490, 503-4 (5th Cir. 2009). This Court has found that “because the QTA does not provide the relief Plaintiffs seek through this claim, the claim is challenging administrative wrongdoing rather than title ownership.” ECF 86 at 38 (internal quotation marks omitted). This Court denied Defendants’ Motion to Dismiss as to this claim. IV. ARGUMENT & AUTHORITIES A. FEDERAL DEFENDANTS’ MOTION SEEKS ONLY PARTIAL SUMMARY JUDGMENT As an initial matter, Federal Defendants’ motion should be considered as a motion for partial summary judgment pursuant to Local Rule 56.3(c) because it does not address all of Plaintiffs’ claims. Plaintiffs’ Counts 4, 5, 6, and 8 were pled under the Declaratory Judgment Act (DJA), the Mandamus Act, and the United States Constitution. ECF 40 at 34-38. In response to Federal Defendants’ Motion to Dismiss, this Court recognized that these were separate and discrete claims. See ECF 86 at 33-36. Federal Defendants’ Brief in support of its summary judgment motion treats Counts 4, 5, 6, and 8 as claims arising under the Administrative Procedure Act (APA), 5 U.S.C. §500 et seq. ECF 199 at 15-35. Federal Defendants’ arguments against Counts 4, 5, 6, and 8 are based on this Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 27 of 58 PageID 3959 21 erroneous assumption. Id. Yet, Plaintiffs have made clear that their claims do not arise under the APA. ECF 40 at 34-38. While it is true that Plaintiffs argue in the alternative that 5 U.S.C. §702 provides a waiver of sovereign immunity in this case, as explained infra, a claim that uses 5 U.S.C. §702 as a waiver is not necessarily a claim arising under the APA. In any event, this Court recognized that Plaintiffs pled “appropriate waivers under the DJA, 28 U.S.C. § 2201...the Mandamus Act, 28 U.S.C. § 1361” as well as 5 U.S.C. §702. ECF 86 at 26. This Court recognized each of these provisions as separate and sufficient waivers of sovereign immunity. ECF 86 at 33, 35. Because Federal Defendants’ motion does not address the merits of Plaintiffs’ Counts 4, 5 and 6, but merely raises procedural arguments based on the faulty assumption that those counts arise under the APA, Federal Defendants’ motion for summary judgment on counts 4, 5, 6 and 8 should be denied. B. BLM’S NON-PERMANENT SUSPENSION OF ITS SURVEYS DOES NOT IMPACT THE JUSTICIABILITY OF PLAINTIFFS’ CLAIMS Federal Defendants argue that all of Plaintiffs’ claims are moot because Federal Defendants have admitted that their survey methods were in error and have suspended the Winter surveys. ECF 168. These arguments fail for several reasons. 1) BLM keeps door open to re-implement suspended surveys. Although Federal Defendants’ summary judgment motion implies that the surveys have been irrevocably cancelled, the Suspension Memorandum itself makes clear that Defendants reserve the right to re-urge a claim identical to the one made by the Winter surveys. ECF 168. The Memorandum states that an improper methodology only “may have caused errors,” that the suspension only holds the survey “in abeyance,” and that after an investigation “the survey may be cancelled, corrected, or reinstated.” ECF 168-1 at 1. Thus, Federal Defendants’ contention that they have somehow disclaimed the boundary set by these surveys is simply false. Federal Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 28 of 58 PageID 3960 22 Defendants certainly have not met their burden, as a governmental entity, “to make absolutely clear” that this unlawful claim “cannot reasonably be expected to recur.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009). Indeed, the notice of suspension expresses only that one of many possible errors exist and even as to that one error, the decision is preliminary. Indeed, BLM expressly contemplates a potential reoccurrence. 2) Federal Defendants do not disclaim claims underlying suspended surveys. Even if Federal Defendants did formally cancel or revoke the Winter surveys or the map, the Court would retain jurisdiction to invalidate these documents because Federal Defendants have not formally disclaimed all unlawful aspects of them. Under the holding in Alaska v. United States, where the government makes a historical “claim” on disputed land, that claim continues to provide a justiciable controversy until it is either resolved in court or the government files a formal section (e) disclaimer giving up its former claim. Alaska v. United States, 201 F.3d 1154, 1162 (9th Cir. 2000). Mr. Winter’s work, approved by BLM, makes claims beyond the mere geographical location of some monuments. 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738-39. Mr. Winter concluded, among other things, that substantial flow is something more than ordinary high water mark and that areas north of the boundary bank can have areas covered in upland vegetation, while BLM has only admitted that Mr. Winter’s erroneous survey methodology “may” have caused errors in identifying the location of the gradient boundary. ECF 168. Like BLM’s claim in Alaska that a river was non-navigable, these conclusions, too, continue to present a cloud on Plaintiffs’ title, absent disclaimer. Until BLM formally revokes the Winter surveys and the unlawful theories which served as the basis for Mr. Winter’s conclusions, the Court retains jurisdiction to invalidate the documents themselves and declare the proper method for determining the boundary. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 29 of 58 PageID 3961 23 3) Proper methodology remains a primary issue in dispute. Federal Defendants’ mootness arguments also misstate Plaintiffs’ claims. While Plaintiffs claim that they have been injured by the various maps and surveys published by Federal Defendants, the primary issue in this case is the validity of the method adopted and applied by Federal Defendants to locate the boundary between federal land and private property along the Red River in Texas. The maps and surveys are merely the unlawful results of this foundational, flawed methodology. Thus, the suspension of the surveys without a corresponding disclaimer of all the unlawful assumptions underlying the surveys and the related maps fails to resolve the case and controversy here. Until BLM acknowledges the correct application of Oklahoma v. Texas to the Red River, the parties’ dispute will remain live and justiciable. C. SURVEYED PLAINTIFFS’ QTA CLAIMS 1) The Surveyed Plaintiffs Have Offered Sufficient Evidence of the Relevant Boundary. Federal Defendants’ sole basis for summary judgment against Plaintiffs Patton, Canan, and Hunter’s QTA claims is that those plaintiffs have failed to produce their own surveys of the disputed boundary or plead with particularity a metes and bounds description of the precise location of the current boundary.5 However, this objection shows a fundamental misunderstanding of the Court’s ruling in Oklahoma v. Texas, Plaintiffs’ claims, and the requirements of the Quiet Title Act. The boundary between federal holdings and Plaintiffs’ land is not a static location; it is the south bank of the Red River, as defined by the Supreme Court in Oklahoma v. Texas, which is subject to erosion and accretion. 260 U.S. at 631-2, 636. As the Supreme Court recognized, the 5 Plaintiffs’ deeds, in fact, use the flowing waters of the Red River as part of the described boundary. See, infra. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 30 of 58 PageID 3962 24 location of the Red River is in constant flux, and the boundary between public and private land moves with it. Id. at 636. In light of this fact, the Court’s opinion in Oklahoma v. Texas provides a method by which the boundary can be determined at any given time, but any survey based on that method will be a snapshot of that moment, not a permanent marker. Id. Absent an avulsive event—of which there is no evidence in this case—the method for determining the boundary is the boundary. And here, each of the Surveyed Plaintiffs has offered evidence—the expert opinion of Ms. Nedra Foster—of approximately where a bank located by that methodology sits today.6 Pltfs.’ Rebuttal Disclosures, APP. 0266-0307; Foster Aff., APP. 0001-0013. According to the Supreme Court’s holding in Oklahoma v. Texas, “the cut bank along the southerly side of the sand bed constitutes the south bank of the river, and ... the boundary is on and along that bank at the mean level of the water, when it washes the bank without overflowing it.” 260 U.S. at 636. The court described the “cut bank” as follows: Almost uniformly the valley land is separated from the sand bed of the river by a clearly defined waterworn bank, designated by witnesses and counsel as a cut bank. This bank ranges in height from 2 to 10 or more feet, the height generally increasing from west to east and the lower parts usually being where the bed is wide. On the valley side of the bank is vegetation and on the river side bare sand. The cut banks effectively confine the water to the sand bed, save in exceptional instances, when the river is at flood and overflows adjacent lands for a few days. There is some overflowing almost every year and in one year out of 12 or 15 the overflow reaches back to the bluffs in many places. Id. at 634. Based on this holding, Plaintiffs assert that the boundary between public and private lands 6 BLM halfheartedly seeks to strike Ms. Foster’s opinions as to all parcels but Mr. Smith’s. The Court should decline to do so. As reflected by BLM’s rebuttal disclosures to Ms. Foster’s opinions as to all parcels (and corresponding discovery into all relevant disclosures and opinions), BLM has alleged and can allege no prejudice from Ms. Foster’s opinions appearing first in a rebuttal report. See, e.g., Hoffman v. L & M Arts, No. 3:10-CV-0953- D, 2013 WL 81578, at *2 (N.D. Tex. Jan. 8, 2013) (refusing to strike supplemental report because motions to strike depend more on timing rather than content of report). In any event, Ms. Foster’s opinions were proper rebuttal to criticisms offered in BLM’s opening report. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 31 of 58 PageID 3963 25 is the bank of the Red River as it exists today as determined by the methodology set forth by the Supreme Court. While the physical location of the boundary will change due to the natural process of erosion and accretion, the methodology has and will remain the same and is what legally defines the boundary in dispute. The Surveyed Plaintiffs, like all Plaintiffs, seek to quiet title to their land up to the bank that is washed by ordinary high water, which Plaintiffs have identified as to each relevant parcel. Federal Defendants claim that this description is not sufficient to state a claim under the QTA, formalistically demanding metes and bounds markers rather than the (correct) shifting boundary. ECF 199 at 35. This is not the law. This Court may quiet title up to a shifting boundary bank without such formalities. See Alaska, 201 F.3d at 1166 (affirming judgment on the pleadings that entire river belonged to State of Alaska, making no mention of metes and bounds of the river). Indeed, all riparian boundaries are typically defined by legal tests. Here, the Surveyed Plaintiffs seek to quiet title as to the parcels between the correct legal test—as described in Plaintiffs’ Motion for Partial Summary Judgment—and that implemented by BLM (both in the Winter surveys but also in its various pronouncements of incorrect legal methods). Because Plaintiffs have offered their legal right to their parcels abutting the Red River and because BLM’s past actions (and failure to reject them) presents a claim on Plaintiffs’ title, Plaintiffs have offered sufficient evidence to withstand summary judgment on their QTA claims.7 2) BLM’s Allegation Concerning Indian Allotments Does Not Deprive the Court of Jurisdiction Over Any Plaintiff or Claim. 7 Further, even if QTA Plaintiffs must prove that the added lands came about through accretion, it does not follow that Plaintiffs must prove the current metes and bounds of the accreted lands. Rather, Plaintiffs must only prove (1) additional land exists on the riparian property; and (2) that land occurred entirely via accretions rather than any intervening avulsions. While this may be a difficult burden in some cases, BLM has disclaimed the existence of any intervening avulsion. Therefore, in the circumstances of this case and this record, the identification of a boundary that meets the Oklahoma v. Texas methodology is not only necessary but sufficient to discharge any such burden. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 32 of 58 PageID 3964 26 Federal Defendants claim that summary judgment is proper against Plaintiffs Smith and Canan because those Plaintiffs’ claims “appear to conflict with Indian Allotment tracts” and thus present an exception to the QTA.8 ECF 199 at 41. This argument fails for several reasons. Contrary to their arguments, BLM’s witness testified that Indian allotments stop at the medial line of the Red River. 2/2/17 Depo Tr. of Jay Innes, APP. 0112-0115 at 69:3-15 (Q: Are you aware of any independent allotments or trust lands that are located south of the medial line of the Red River? A: Indian lands, I’m not aware of.); Id. at 92:23-93:4 (Q: So when you are identifying Indian allotments as part of the surveying work done in this time frame, those occurred on the north side of the medial line, correct? Where they occurred, they occurred on the north side of the medial line, correct? A: I believe so, yes.). Plaintiffs’ properties end at the south bank of the Red River. Plaintiffs do not claim any property north of the south bank of the Red River where it currently flows. APP. 0198-0204 ; APP. 0204-0209. Accordingly, by definition, Plaintiffs’ properties will not overlap with Indian land and there will be a buffer of federal land between the south bank and the medial line. Stated differently, Plaintiffs’ QTA claims do not conflict with actual Indian allotments; at most, they conflict with the federal government’s outdated or incorrect records of those allotments. Additionally, Federal Defendants base their assumption that the Smith and Canan properties conflict with Indian Allotments on the since-suspended Winter surveys. ECF 199 at 41. Because these erroneous surveys place the south bank well below its actual location, the medial line of the river was also misplaced. Federal Defendants may not base their claims for summary judgment on admittedly erroneous surveys. 8 As discussed above, Federal Defendants claim that Plaintiffs Canan and Smith have failed to produce their own surveys of the disputed boundary or plead with particularity a metes and bounds description of the precise location of the current boundary. As discussed supra, this argument fails. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 33 of 58 PageID 3965 27 Finally, BLM’s own Administrative Record disputes Federal Defendants’ argument involving Indian Allotments. Upon discovery of the federal markers and BLM surveys, both Plaintiffs Canan and Hunter attempted a pro se administrative appeal through the Interior Board of Land Appeals (IBLA). APP. 0314-0316. In connection with his IBLA appeal, Mr. Canan commissioned a gradient boundary survey of his then northern boundary.9 APP. 0317. In correspondence rejecting Mr. Canan’s survey, BLM rejected the methodology used by Mr. Canan’s surveyor, stating, “It has been our experience that some Texas surveyors continue to go to the running water to define the Gradient State boundary, accepting the bank at the south edge of the running water as the State boundary. This is an incorrect procedure.” APP. 0251-0253. When Mr. Canan filed his administrative appeal of Federal Defendants surveys with the IBLA, Federal Defendants did not raise the prospect of Indian lands as a defense. Likewise, Federal Defendants failed to raise this issue in its Answer. ECF 91. This Court should therefore recognize Federal Defendants’ argument for what it is--a transparent attempt to find any reason, however tenuous, to avoid this Court ruling on the merits. D. UNSURVEYED PLAINTIFFS’ QTA CLAIMS Under the QTA, “Plaintiffs need not show that the United States took direct action to close or deny access…indirect action or assertions that actually conflict with a Plaintiff’s title will suffice.” Kane Cnty. Utah v. United States, 772 F.3d 1205, 1212 (10th Cir. 2014). Where the Government “implicitly disputes” Plaintiffs’ title, that is sufficient. Id. at 1211. Both the law and common sense establish that such a dispute can exist beyond only “an official cadastral survey that addresses this boundary” or “an administrative survey or any other survey that does so.” ECF 199 at 38. Where the federal government takes actions inconsistent with Plaintiffs’ 9 Once Plaintiffs Canan and Hunter obtained the assistance of counsel, the IBLA appeals were dismissed for want of jurisdiction. APP. 0314-0316. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 34 of 58 PageID 3966 28 lawful title, that is sufficient under both Article III and the QTA. 1) Article III Standing10 In the case of the Unsurveyed Plaintiffs, Federal Defendants have acted in a manner which constitutes “indirect action or assertions” in conflict with and “implicitly disputing” the Unsurveyed Plaintiffs’ titles. First, Federal Defendants published three surveys in the Federal Register of neighboring properties using illegal survey methods, which resulted in a claim to significant portions of the neighboring properties. 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738-39. At least by approving this work through its survey process, Federal Defendants’ surveys were an indirect assertion that these surveys were correct and that when the BLM ultimately surveyed the rest of its Red River property, the Unsurveyed Plaintiffs could very reasonably expect the same result as their neighbors. Buttressing this expectation is Federal Defendants’ action in publishing and publicly distributing to local landowners the 2014 Map, showing federal claim to lands along the entire 116-mile stretch of the Red River at issue in this lawsuit, using the existing Winter surveys as a “pre-existing data point” from which BLM traced an estimated boundary bank. ECF 40- 11;12/16/16 Depo. Tr. S. Tryon, APP. 0014-0018 at 42:12-20 . This map extended beyond the 10 In a footnote, the Court states that “to the extent that the Court finds the Surveyed Individual Plaintiffs have standing, the Court need not analyze this issue as to the Unsurveyed Individual Plaintiffs at this time.” Id. at fn. 3. In support of this decision, the Court cited Bowsher v. Synar, which concluded that “because at least one group of plaintiffs had standing in a case where plaintiffs were seeking a declaratory judgment, the Court ‘need not consider the standing issue’ as to the other groups of plaintiffs.” Id.; quoting Bowsher, 478 U.S. 714, 721 (1986). The standing of the Surveyed Plaintiffs remains unquestioned, and so too should the Unsurveyed Plaintiffs’ standing in relation to the Surveyed Plaintiffs. See Secretary of the Interior v. California, 464 U.S. 312 n.3 (1984) (stating no need existed to address standing as to parties who had identical positions since standing of one party was already established); Board of Natural Resources v. Brown, 922 F.2d 937, 942 (9th Cir. 1992) (noting that if any one of a group of plaintiffs had standing, court may reach merits of case without considering whether the others have standing); Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491, 501 n.18 (5th Cir. 2004) (“[W]hen one of multiple co-parties raising the same claims and issues properly has standing, we do not need to verify the independent standing of the other co-plaintiffs.”). Because the extent of Plaintiffs’ quiet title request applies equally to both Surveyed and Unsurveyed Plaintiffs—quieting title up to a bank washed by ordinary high water—the distinction between Surveyed and Unsurveyed Plaintiffs for Article III purposes is illusory. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 35 of 58 PageID 3967 29 surveyed area to encompass the properties owned by the Unsurveyed Plaintiffs and confirmed BLM’s intent to apply the methodology of the Winter surveys through the 116-mile stretch. Id. BLM distributed this 2014 Map at community meetings, thus confirming that the Unsurveyed Plaintiffs’ properties were in danger as well. 3/9/17 Depo. Tr. of S. Tryon, APP. 0014-0018 at 18:16-20. Finally, Federal Defendants also confirmed the cloud on the Unsurveys Plaintiffs’ title through its testimony before Congress. There, Federal Defendants confirmed through then- Director Steven Ellis that BLM believed that the federal government owned “Red River Lands” “south of the South Bank of the Red River.” Red River Private Property Protection Act: Hearing on H.R. 4979 Before the House Subcommittee on Public Lands and Environmental Regulation, 113th Congress. (Hearing July 29, 2014) (statement of Steven Ellis, Director of BLM, Panel II). Available at https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=388599 at 1:27:12-1:27:30. Thus, with all of the circumstances considered together, Unsurveyed Plaintiffs have clearly alleged that Federal Defendants have clouded title to their properties and that the incorrect survey methods performed on the Surveyed Plaintiffs’ properties support their QTA claim. Federal Defendants have never disclaimed the positions in the surveys or the application of the Winter surveys as the preexisting data points on which the estimates were based. Instead, as discussed, BLM has merely indicated that the surveys may contain a single possible error out of several errors appearing on the face of Mr. Winter’s field notes. And in the context of this litigation, BLM has never offered a single affirmative position for where the appropriate bank is located. Under these circumstances, the Surveyed Plaintiffs have sufficiently alleged a concrete dispute sufficient to confer Article III standing. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 36 of 58 PageID 3968 30 2) The Unsurveyed Plaintiffs Have Also Sufficiently Alleged “Disputed Title to Real Property.” For the same reasons that Plaintiffs have sufficiently alleged Article III standing, Plaintiffs have sufficiently alleged “a disputed title to real property” under the QTA. Again, the federal government need only take “indirect action or assertions” that conflicts with Plaintiffs’ title or “implicitly dispute” it. Kane Cnty. Utah, 772 F.3d at 1212. Again, there is no requirement that Federal Defendants approve an “an official cadastral survey that addresses this boundary” to dispute title, at least implicitly, to the relevant territory. In contending otherwise, Federal Defendants misapply the holdings of Alaska to the facts of this case. There, BLM had asserted in administrative proceedings that two rivers in Alaska were not navigable at statehood and therefore belonged to the federal government, not to Alaska. A third river was not subject to any administrative proceeding and the federal government never expressly asserted an interest in the third river. The 9th Circuit held that, although the federal government was presently declining to make a claim as to any of the three rivers, the BLM’s former position was a sufficient claim on two of the rivers, but not the third. BLM contends that this decision requires dismissal of the Unsurveyed Plaintiffs because BLM has never claimed to own the precise metes and bounds areas estimated to be under federal control. In fact, the case holds the opposite. Because this case is about methodology concerning one river, not metes and bounds locations of discrete parcels, this situation in more like the two rivers for which disputed title existed. Like in Alaska, BLM has performed surveys under an incorrect methodology and published maps indicating that the results of these surveys applied throughout the entire 116-mile stretch. Although BLM has suspending the surveys, it has not permanently disclaimed any of the results of those surveys, much less all of the flaws underlying the survey methodology other than Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 37 of 58 PageID 3969 31 those specifically mentioned in the disclaimer. This is particularly analogous to the situation in Alaska, where BLM once asserted non-navigability, but refused to take any position in litigation. Like in Alaska, the Unsurveyed Plaintiffs have sufficiently shown a title dispute here. Therefore, summary judgment is inappropriate on this basis. 3) The Unsurveyed Plaintiffs Have Shown the Location of the Boundary Bank. Like the Surveyed Plaintiffs, the Unsurveyed Plaintiffs have also sufficiently shown the location of the appropriate boundary bank. Like the Surveyed Plaintiffs, Ms. Foster has offered expert testimony about the location of the appropriate boundary bank as to each of the Unsurveyed Plaintiffs; parcels. APP. 0266-0307. For the same reasons BLM’s argument fails as to the Surveyed Plaintiffs, it fails as to the Unsurveyed Plaintiffs; a plaintiff need not prove the current metes and bounds location of a riparian property to prevail under a quiet title claim. Rather, where the dispute is about the correct legal framework or methodology for locating the boundary, a plaintiff may quiet title to all property in between the two competing approaches. E. FOURTH AMENDMENT UNREASONABLE SEIZURE Individual Plaintiffs have established a claim for unreasonable seizure under the Fourth Amendment because Federal Defendants’ actions have caused (a) a meaningful interference with their possessory interests in their property, which is (b) unreasonable because the interference is unjustified by law. See Severance v. Patterson, 566 F.3d 490, 502 (5th Cir. 2009). Federal Defendants nonetheless argue that summary judgment is proper on Plaintiffs’ Fourth Amendment claims, because the QTA bars such claims and, even if Fourth Amendment Claims are not barred by the QTA, Plaintiffs have not alleged that Federal Defendants have taken “physical occupancy or control” of Plaintiffs’ properties. ECF 199 at 33-34. Defendants’ arguments are without merit. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 38 of 58 PageID 3970 32 First, this Court has already rejected Federal Defendants’ claim that the QTA acts as a bar to Fourth Amendment claims in this case. ECF 86 at 38. Relying on binding Fifth Circuit precedent, this Court noted that a “Fourth Amendment seizure claim is not the functional equivalent of a quiet title action” and therefore is not barred by the QTA. ECF 86 at 37-38 (citing Severance, 566 F.3d at 502). Federal Defendants’ Motion fails to mention that this Court has already ruled on this issue, does not address the Fifth Circuit’s opinion in Severance at all, and fails to present any additional case law that would suggest that this Court should reconsider its prior holding. Accordingly, Federal Defendants’ argument that the QTA bars Plaintiffs’ Fourth Amendment claims should be rejected. Although BLM contends that there is no general waiver of sovereign immunity for Fourth Amendment claims11, there is a sovereign immunity waiver for constitutional claims seeking non-monetary relief under at least 5 U.S.C. § 702. Moreover, this Court has recognized that the Declaratory Judgment Act and the Mandamus Act serve as separate waivers in this case. Second, Federal Defendants are wrong that Plaintiffs must establish that Defendants have taken “physical occupation or control” of Plaintiffs’ properties in order to prevail on their Fourth Amendment Claims. ECF 199 at 33. A seizure occurs when there is some “meaningful interference with an individual’s possessory interests in their property.” Severance v. Patterson, 566 F.3d at 502. That interference does not have to rise to an official claim to title or physical occupation and control. Id. at 495. Indeed, as this Court recognized, Plaintiffs’ seizure claims may even be stronger if Defendants claim that they do not actually own the land depicted in their maps 11 Plaintiffs reject the notion that the Fourth Amendment does not grant a general waiver of sovereign immunity. To the extent that no other waiver of sovereign immunity is available for a Fourth Amendment Claim, the United States Supreme Court has repeatedly held that it will create such a waiver to avoid the right going unprotected. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971) (quoting Bell v. Hood, 327 U.S. 678, 684 (1946) (“where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”)). Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 39 of 58 PageID 3971 33 and surveys. ECF 86 at 38 (citing Severance v. Patterson, 566 F.3d at 495.) Plaintiffs have suffered meaningful interference with their possessory interests in their properties. The Surveyed Plaintiffs have had permanent BLM survey markers placed on their properties, which are illegal to remove. 2/6/17 Depo. Tr. of P. Canan Vol. II, APP. 0094-0097 at 261:17-262:5; 2/8/17 Depo. Tr. of B. Patton, APP. 0116-0119 at15:5-14; 2/9/17 Depo. Tr. of K. Hunter, APP. 0098-0102 at 68:13, 24. Federal Defendants have published surveys in the Federal Register which stake a claim to hundreds of acres of Plaintiffs’ private property. 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738-39. The illegal survey methods used to conduct the three disgraced surveys published in the Federal Register, when ultimately applied to the rest of the area at issue in this lawsuit, would result in the same federal claim to private property for the Unsurveyed Plaintiffs. Finally, Federal Defendants produced and distributed the 2014 Map and other maps, drawn based on the same illegal methods applied with the Federal Register surveys, which lay federal claim to swaths of all Plaintiffs’ properties. APP. 0250. Federal Defendants acknowledge that this 2014 Map would cause a reasonable person to question Plaintiffs’ ownership of their properties. See 3/9/17 Depo. Tr. of S. Tryon, APP. 0308-0310 at 18:16-20 (Q: Was the reason you guys were concerned about releasing [the 2014 map] to the public is that it could generate concern with the private property owners whose land is depicted on this map? A: Yes, I think that’s fair.). But Plaintiffs’ injuries go beyond a cloud on title. As in Severance, they are unable to exclude the public from their land or make repairs and investments on their property. See Severance, 566 F. 3d at 500-2 (“[Severance] may neither repair her damaged houses nor rebuild on that segment of her property nor exclude the public….”). Because of the federal government’s claim to their property, Plaintiffs have not been able to make improvements to their lands or Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 40 of 58 PageID 3972 34 otherwise fully utilize the properties.12 That ambiguity, for example, prevents Plaintiffs from performing controlled burns on the portions of their land Federal Defendants do not claim for fear that they will accidentally commit arson if they misjudge Federal Defendants’ claimed property boundaries. 2/9/17 Depo Tr. K. Hunter, APP. 0098-0102 at 168:6-13. F. PLAINTIFFS ARE ENTITLED TO MANDAMUS AND DECLARATORY RELIEF ON COUNTS FOUR, FIVE, AND SIX 1) Federal Defendants Ignore Claims of County Plaintiffs. The County Plaintiffs’ claims are not specifically mentioned in Federal Defendants’ Motion for Summary Judgment, though Federal Defendants seek summary judgment against Plaintiffs generally. In lumping the County Plaintiffs’ claims together with the non-QTA claims of Sheriff Lemons and the Unsurveyed Plaintiffs, Defendants have not challenged the County Plaintiffs’ allegations that the federal government adopted survey methods contrary to Supreme Court precedent, claimed land within County Plaintiffs’ jurisdictions beyond Defendants’ proper borders, and asserted federal jurisdiction over land within County Plaintiffs’ traditional jurisdiction without specifying the extent of the property claimed with reasonable specificity. ECF 40 at ¶¶ 191-200. As explained below, County Plaintiffs are entitled to relief from these unlawful actions under the Mandamus Act and Declaratory Judgment Act. 2) Plaintiffs have multiple available causes of action. This Court has already found that the QTA is not the exclusive cause of action available to 12 For example, Plaintiff Jackson is unable to purchase additional property in the disputed area due to the uncertainty surrounding its ownership, and has also testified that he cannot plow or graze cattle on the 750 acres of his property claimed by the federal government. 2/10/17 Depo. Tr. R. Jackson, APP. ____ at 12:19-13:3 (“I don’t want to spend the money if they’re going to take it away from me.” Plaintiff Jackson also fears having to remove a $50,000 fence on the portion of his property now claimed by the federal government. Id. at 13:19-21. The federal government’s claim has also kept Plaintiff Canan from making improvements on his property, like building a bridge or permanent crossing across Gilbert’s Creek to replace crossings which have washed out, or placing additional fencing near the river bottom. 2/6/17 Depo. Tr. P. Canan Vol. I, APP. 0085-0093 at 78:21-25, 82-19-20. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 41 of 58 PageID 3973 35 the Plaintiffs. ECF 86 at 26, 36 (“The Court finds that based on the facts alleged, Plaintiffs may bring a valid QTA claim, as well as a non-QTA claim concerning an ‘administrative wrongdoing’ apart from the ‘alleged wrongful assertion of title.”) (citing Donnelly v. United States, 850 F.2d 1313, 1318 (9th Cir. 1988) (“Furthermore, the Court has previously determined that the QTA does not govern Plaintiffs’ claims that concern the survey methods, rather than the actual title.”)). Though Federal Defendants disregard the Court’s prior findings and contend that the only claims available to Plaintiffs are via the QTA or APA, Plaintiffs have successfully made claims for declaratory and mandamus relief from Federal Defendants’ adoption of the wrong method for determining the gradient boundary of the Red River, Federal Defendants’ unlawful application of that incorrect method, and Federal Defendants’ failure to specify the particular land they claim. In its Opinion and Order, the Court held that in Counts Four and Five, “Plaintiffs seek a declaratory judgment and injunctive relief to determine the proper method for finding the riverbank, rather than a request for the Court to engage in drawing the actual boundary.” ECF 86 at 25. The Court also found that under the Mandamus Act, “Plaintiffs have a clear right to relief based on Oklahoma’s mandates, and Federal Defendants have a clear duty to act before claiming the boundary has changed.” Id. at 35. The evidence is clear that Federal Defendants have adopted the wrong method for determining the gradient boundary, in conflict with the Supreme Court’s directive in Oklahoma v. Texas, thus entitling Plaintiffs to relief. In rejecting Plaintiffs Hunter and Canan’s appeal of the 2009 BLM surveys published in the Federal Register, BLM’s then-Acting State Director Aden Seidlitz incorrectly declared that “It has been our experience that some Texas surveyors continue to go to the running water to define the Gradient State Boundary, accepting the bank at the south edge of the running water as the State boundary. This is an incorrect procedure.” RAR0000070- Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 42 of 58 PageID 3974 36 71, APP. 0251-0253; RAR 0000072-74, APP. 0254-0256. Acting Director Seidlitz went on to say that Mr. Canan and Mr. Hunter were “limited by the Gradient boundary on the south bank as depicted on the 2009 BLM survey which is in conformance with the Supreme Court Decisions.” Id. BLM has already admitted that the 2009 survey was in fact not in conformance with the Supreme Court’s holding in Oklahoma v. Texas. ECF 168. Additionally, the BLM surveyor who conducted the disputed surveys repeatedly testified that the current location of the southern gradient boundary is the same as it was in the 1923, which is impossible under the method set forth in Oklahoma v. Texas. See, e.g., 3/2/17 Depo. Tr. G. Winter, APP. 0019-0027 at 101:9-14, 104:23- 105:1, 143:10-14, 144:2-5. There is also clear evidence supporting Plaintiffs’ charge that Federal Defendants failed to apply the correct method for determining the southern gradient boundary of the Red River. The BLM surveyor who conducted the 2009 surveys testified that rather than follow the requirements of Oklahoma v. Texas, he instead retraced the survey lines set by Kidder and Stiles in the 1920s. 3/2/17 Depo. Tr. G. Winter, APP. 0019-0027 at 101:9-14, 104:23-105-1. Even beyond this error, Mr. Winter also wrote of a number of incorrect conclusions about the meaning of Oklahoma v. Texas, although BLM approved his surveys anyway. ECF 165 at 9-14. Federal Defendants acknowledge this failure to apply the correct method by suspending (although not withdrawing) the 2009 surveys because they were done with a method not in accordance with the Supreme Court’s holding. ECF 168. 3) Federal Defendants assert the boundary of the Red River has changed. Federal Defendants appear confused about which party, Plaintiffs or Defendants, is asserting that the boundary of the Red River has changed. ECF 199 at 27. The Supreme Court in Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 43 of 58 PageID 3975 37 Oklahoma clearly stated that “when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream.” 260 U.S. at 636. The boundary moves with the river’s flowing water, its location changing perhaps from day to day. The boundary is located via proper application of the Supreme Court’s decision in Oklahoma. If a party claims that the boundary has moved, the burden of proof is on the party asserting the change. Id. at 638 (“The party asserting material changes should carry the burden of proving them, whether they be recent or old.”). Federal Defendants attempt to sidestep this fact by claiming their re-tracing of the decades- old Kidder and Stiles line was not an assertion of a change in the boundary. ECF 199 at 28. However, the fact remains that the boundary moves with the river. Oklahoma, 260 U.S. at 636. The river has certainly moved in the last 90 years; therefore, so has the boundary. Id. In placing permanent boundary markers along the old Kidder and Stiles line and publicly issuing a map which also retraced the Kidder and Stiles boundary, Federal Defendants did in fact assert that the boundary had changed: instead of being located at the “cut bank along the southerly side of the sand bed…at the mean level of the water, when it washes the bank without overflowing it,” Federal Defendants claimed that the boundary somehow remained where it was in the early 1920s. This is a substantial, material change – in some places over a mile from the actual boundary of the river – and therefore the burden of proof absolutely falls upon Federal Defendants. Oklahoma, 260 U.S. at 638. This Court has already found that “to the extent Oklahoma requires that a party asserting changes to the boundary must prove such changes through conducting a gradient boundary survey...Plaintiffs have pleaded Defendants’ actions have been ‘unlawfully withheld.’” ECF 86 at 32-33. Federal Defendants have significantly departed from the survey method set forth in Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 44 of 58 PageID 3976 38 Oklahoma v. Texas on multiple occasions. Federal Defendants have applied this incorrect survey method in the decisions on the administrative appeals of Plaintiffs Hunter and Canan, in the creation of the June 2014 Map, and in surveys published in the Federal Register. RAR0000070- 71, APP. 0251-0253; RAR 0000072-74, APP. 0254-0256; 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738-39. Federal Defendants again departed from the survey method in Oklahoma v. Texas through assertions that the Red River somehow does not behave as it used to – that mature trees and upland grasses can now grow at the river’s medial line, or that the river has not altered its course at all since 1923. 3/2/17 Depo. Tr. G. Winter, APP. 0019-0027 at 42:12-14; 2/17/17 Depo. Tr. H. Simmons, APP. 0311-0313 at 154:1-15. Additionally, though Federal Defendants contend that FLPMA does not impose a mandatory, non-discretionary duty to identify the boundaries of the federal land BLM manages, they are missing the full picture. Plaintiffs have always maintained that the Court’s directive in Oklahoma imposes a mandatory duty to prove the ownership of land Federal Defendants’ claim pursuant to a gradient survey. ECF 40 at ¶¶201-218; ECF 53 at 11. This Court agrees. ECF 86 at 32. In fact, the Court found that “Oklahoma’s mandate that asserted changes must be proved by conducting a gradient boundary survey, as a specific federal law in conjunction with the FLMPA’s requirement to maintain an inventory of public lands” is a “‘sufficiently specific command to be enforceable.’” Id. (citing Citizens Legal Enf’t v. Connor, 762 F.Supp.2d 1214, 1231 (S.D. Cal. 2011)). Further, because “Plaintiffs have a clear right to relief based on Oklahoma’s mandates,” Federal Defendants “have a clear duty to act before claiming the boundary has changed.” 86 ECF at 35. Thus, because BLM’s surveys asserted a material change in the boundary but BLM has entirely failed to defend that boundary and because the FLPMA imposes a clear duty to act before claiming so, BLM’s request for summary judgment on these counts is Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 45 of 58 PageID 3977 39 certainly inappropriate.13 G. FEDERAL DEFENDANTS’ PROCEDURAL OBJECTIONS TO COUNTS 4, 5, 6, AND 8 ARE MISPLACED14 1) Plaintiffs’ claims do not arise under the APA, so final agency action is not required. The majority of Federal Defendants’ arguments rely on a deliberate mischaracterization of Plaintiffs’ claims as arising under the APA. As Plaintiffs have repeatedly made clear, and this Court has recognized, that Plaintiffs’ claims arise under the Supreme Court’s decision in Oklahoma v. Texas, the Constitution, the Declaratory Judgment Act, and the Mandamus Act. Plaintiffs merely plead 5 U.S.C. §702 in the alternative, as one of many potential waivers of sovereign immunity. This distinction is important. 5 U.S.C. §702 provides a waiver of sovereign immunity for two types of claims: 1) claims arising under the general provisions of the APA—e.g. a claim that an agency acted arbitrarily or capriciously, and 2) claims arising under another legal source or statute, outside the APA, that does not contain its own explicit waiver of sovereign immunity. Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484, 489 (5th Cir. 2014). Claims arising under the general provisions of the APA are subject to the APA’s “final agency action” requirement. Id. Claims that do not rely on the APA for their cause of action need only allege an injury caused by “agency action.” Id. In explaining this distinction, the Fifth Circuit adopted the holding in Trudeau v. Fed. Trade Commn., 456 F.3d 178, 187 (D.C. Cir. 2006). See Alabama-Coushatta, 757 F.3d at 489 13 As discussed above, even if Plaintiffs have a burden to show any accretion or the location of the current boundary bank, Plaintiffs have met it. 14 Federal Defendants raise four additional specific procedural issues against Plaintiffs’ Counts 4, 5, 6, and 8. First, Federal Defendants mischaracterize Plaintiffs’ claims as arising under the APA and therefore claim that Plaintiffs’ claims fail for not having established final agency action. Second, Federal Defendants claim that any non- QTA claim is time barred because it was not filed within 6 years of the 2009 surveys. Third, because Federal Defendants assume that Plaintiffs claims arise under the APA they argue that Plaintiffs’ non-QTA claims fail because they rely on evidence not contained in the administrative record. Fourth, Federal Defendants claim that Plaintiffs waived counts 4, 5 ,6, and 8 by not moving for summary judgment on those claims. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 46 of 58 PageID 3978 40 (citing Trudeau, 456 F.3d at 187 “There is no requirement of ‘finality’ for this type of waiver to apply.”) In Trudeau, the court was asked whether the APA’s final agency action requirement applied to constitutional and non-statutory claims that merely used § 702 as a waiver of sovereign immunity. The court’s holding was clear: [W]e hold that APA §702’s waiver of sovereign immunity permits not only Trudeau’s APA cause of action, but his non-statutory and First Amendment actions as well. We also hold that the waiver applies regardless of whether the FTC's press release constitutes “final agency action.” The district court therefore had subject- matter jurisdiction to hear Trudeau's suit under 28 U.S.C. §1331, and its dismissal of the complaint for lack of jurisdiction pursuant to Rule 12(b)(1) was erroneous. Trudeau, 456 F.3d at 187 (citations omitted). Further, while §702 does require “agency action” if not “final agency action,” Plaintiffs have sufficiently challenged agency action. Doe v. United States, 853 F.3d 792, 799–800 (5th Cir. 2017), as revised (Apr. 12, 2017). Agency action is defined in 5 U.S.C. §551(13). One action within the definition of “agency action” is a “sanction,” which includes “withholding of relief.” “Relief,” in turn, includes “recognition of a claim.” Thus, by “withholding” its “recognition of a claim”—Plaintiffs’ lawful right to title concerning the disputed land under the correct survey methodologies – Federal Defendants have clearly performed an “agency action.” Id. §551 (10)(D); id. §11(B). Additionally, Federal Defendants have performed a “sanction” of Plaintiffs’ land by seizing and/or withholding it and either declaring it or estimating it to be a federal holding based on their inappropriate methodologies. Id. §551(10)(F). Thus, the finality requirement does not apply. And to the extent Plaintiffs’ claims are governed by §702, summary judgment is inappropriate. 2) Even if final agency action were required, Plaintiffs claims meet that burden. Again, Plaintiffs challenge two types of agency action: 1) Federal Defendants’ failure to act by refusing to conduct surveys or to articulate a reasonably clear method to determine the Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 47 of 58 PageID 3979 41 boundary of federal property, and 2) Federal Defendants’ actions in affirmatively adopting and applying survey standards that are contrary to Oklahoma v. Texas. This Court has held that Federal Defendants’ failure to conduct surveys is sufficient to show final agency action. ECF No. 50 at 11. Federal Defendants’ actions in affirmatively adopting and applying survey standards are also final agency action. For an agency action to be final, two conditions must be satisfied: “First, the action must mark the consummation of the agency’s decision-making process, it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). “In evaluating whether a challenged agency action meets these two conditions, this court is guided by the Supreme Court's interpretation of the APA's requirement as ‘flexible’ and ‘pragmatic.’” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)). Federal Defendants’ adoption and application of the incorrect survey method meets these standards. a. Federal Defendants’ actions mark the consummation of the decision making process. The purpose of the final agency action requirement is to give the agency the first bite at the apple. Its “basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories, 387 U.S. at 148-49. It was not designed to create an artificial barrier to prevent injured parties from seeking review once the agency has made a final decision. The absence of a procedure for an administrative appeal generally means that the agency’s decision-making process is at an end. Federal Defendants’ actions meet this burden. First, Federal Defendants have taken a clear Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 48 of 58 PageID 3980 42 and erroneous position on the method for locating the boundary of Federal land along the Red River in Texas. There is no evidence that this method was purely internal or preliminary. This faulty method has been applied on numerous occasions in official acts, to the detriment of Plaintiffs. Federal Defendants have had numerous opportunities to address the claimed defects in this method, but have refused to do so. Indeed, Federal Defendants still refuse to admit that this method will not be used in the future. Under Federal Defendants’ own administrative rules, this Court is the only forum available to Plaintiffs to adjudicate their claims. Second, there is no question that the 2009 surveys entered into the federal register constitute final agency action. The entry into the federal register marks the consummation of the decision making process and there is no reasonable dispute that legal rights are determined and that consequences flow from an official recorded claim to property. See Abbott Laboratories, 387 U.S. at 151 (“There is no hint that this regulation is informal, or only the ruling of a subordinate official, or tentative. It was made effective upon publication.”). Third, Federal Defendants’ application of an unlawful method for finding the river bank in response to Plaintiffs Hunter and Canan’s appeals of the 2009 surveys constitutes final agency action, because that response marked the consummation of the agency’s decision making process and legal consequences flowed from that decision. In that official response, Federal Defendants rejected Plaintiff Hunter and Canan’s proposed boundary and articulated unlawful standards for how the boundary should be located. For example, Federal Defendants held that you do not go to the current location of the river to find the boundary bank. APP. 0251-0256. Federal Defendants also claimed that the boundary bank fell outside the waters of the Red River even when that river was at flood stage, in direct contradiction of Oklahoma v. Texas. Id. Plaintiffs’ appealed this decision to the IBLA, only to be informed that the IBLA had no jurisdiction to hear the appeal. APP. 0314-0316. Because no appeal was available, Federal Defendants initial opinion marks the consummation of the decision-making process. See Sackett v. E.P.A., 132 S. Ct. 1367, 1373 (2012) Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 49 of 58 PageID 3981 43 (“it is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation.”) Fourth, the publication of the 2014 Map at public meeting for the purpose of developing a resource management plan also constitutes final agency action because it too marked the consummation of the decision making process and caused direct legal consequences. First, there is no question that the decision to publish the 2014 Map was the consummation of the decision making process. At deposition, Federal Defendants testified that they had concerns that publication of the map would call private ownership of land into question, but made a conscious effort to do so anyway. Federal Defendants also testified that there was no administrative appeal for property owners to contest the Federal claims of ownership depicted in the map. And while Federal Defendants make much out of the statement on the map that it was an estimate, the Federal Defendants have given no indication that the map is wrong,15 only that they planned to conduct formal surveys before making plans concerning any particular parcel. 12/16/16 Depo. Tr. S. Tryon, APP. 0014-0018 at 64:5-8, 15-20; 65:4-12. Indeed, Federal Defendants current position seems to be that nothing short of a survey entered into the federal register – which Federal Defendants have no plans to complete – would be sufficient to ripen Plaintiffs’ claims. c. Federal Defendants’ actions claim to determine legal rights and cause legal consequences. Additionally, Federal Defendants’ actions are final because the actions are the type from 15 Additionally, such pronouncements alone are not conclusive of the finality question. Indeed, because agencies regularly place such statements on various agency actions, courts look to the substance of the challenged action, not any boilerplate statement contained therein. Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (refusing to give credence to an EPA disclaimer that policy guidance was only guidance, citing to article calling such a disclaimer “a charade, intended to keep the proceduralizing courts at bay.”). Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 50 of 58 PageID 3982 44 which legal consequences flow. An agency decision is final if “the result of that process is one that will directly affect the parties,” Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Engineers, 335 F.3d 607, 614 (7th Cir. 2003). An action affects the parties if it affects their “day-to-day business.” Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 796–97 (1992)) Here, Plaintiffs are directly affected by BLM in their day-to-day business. Mr. Jackson is prevented from buying additional property in the disputed area because he’s not sure of the ownership of the land, and he is also unable to plow or graze cattle on the 750 acres claimed by the federal government, testifying “I don’t want to spend the money if they’re going to take it away from me.” 2/10/17 Depo. Tr. R. Jackson, APP. 0077-0080 at 12:19-13:3. Mr. Jackson already fears having to remove a $50,000 fence on his property now claimed by the federal government. Id. at 13:19-21. Similarly, Mr. Canan has not been able to make improvements on the disputed property or manage it in the way chooses. 2/6/17 Depo. Tr. of P. Canan Vol. I, APP. 0085-0093 at 78:21-25 (“A: I’ve had some creek crossings washout on Gilbert’s Creek, and as opposed to either putting a bridge across it or placing culverts in there and actually building a crossing there, we withheld from doing that.”); Id. at 82:19-20 (“A: We omitted doing some additional fencing down into the river bottom.”). Mr. Hunter is unable to sell his property or house, due to the dispute and uncertainty surrounding the property’s ownership. 2/9/17 Depo Tr. K. Hunter, APP. 0098-0102 at 62:1-11 (“Q: And what do those realtors say? A: They don’t want to touch it with a ten-foot pole. Q: And why is that? A: The repercussions. Q: Repercussions of what? A: They can’t represent this land and that house. Q: What do you mean ‘they can’t represent this land and that house?’ A: Well, they are scared of getting sued.”). He has also been prevented from using controlled burns to manage the land on his property, for fear of prosecution should the burns be on federal property. Id. at 168:6-13 (“Q: And what activities in particular? A: Yeah. Thank you. Controlled burn. Is Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 51 of 58 PageID 3983 45 what the Hamlin boys went to jail for. Remember up in Oregon? They did a controlled burn and got on some BLM land and now they’re in that Federal pen. So no, I haven’t done any from my understanding. I’m not going to.”). Mr. Hunter has also been unable to place wildlife feeding areas and blade the roads on his property due to the federal government’s claim. Id. at 176:7-22. Finally, Mr. Hunter has been forced to place plans to build a home on his property on hold, “[b]ecause the federal government is trying to take 250 acres of [Mr. Hunter’s property]…[a]nd put them, or the public, at my back door.” Id. at 177:1-178:6. 3) Plaintiffs’ claims are not barred by the statute of limitations. Again, Plaintiffs are challenging two categories of agency action: (1) the agency’s ongoing failure to act (i.e., its refusal to articulate a boundary with reasonable specificity); and (2) Federal Defendants’ application of invalid theories to create maps, issue official opinions, and initiate a Resource Management Plan (RMP) process involving Plaintiffs’ land. The maps Federal Defendants published claiming portions of Plaintiffs’ properties (down to the acre) were published in 2014—well within the six-year statute of limitations. Additionally, Federal Defendants issued official opinions regarding the method for locating the boundary of federal property in 2015 that are contrary to Supreme Court precedent and render it impossible for Plaintiffs to locate the boundary of the property with any reliability. Federal Defendants nonetheless claim that Plaintiffs’ claims are time barred because Defendants argue that none of the above-mentioned actions are “final agency action.” Federal Defendants argue that the only “final agency action” that could affect Plaintiffs is either the development of the current survey method that was used for the surveys entered into the Federal Register more than six years ago—which Federal Defendants argue is time barred. This is not so. First, as explained infra, Plaintiffs dispute that anything short of a formally adopted survey recorded in the Federal Register cannot be agency action sufficient to trigger standing. Federal Defendants have taken action claiming Plaintiffs’ properties, clouding Plaintiffs’ titles, and Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 52 of 58 PageID 3984 46 preventing Plaintiffs from using and enjoying their property. These actions have all occurred within the past 6 years. Second, Federal Defendants’ development of the current erroneous survey method is final agency action that is subject to review each time it is applied. It is well established that “when an agency applies a rule, the limitations period running from the rule’s publication will not bar a claimant from challenging the agency’s statutory [or constitutional] authority.” Dunn-McCampbell Royalty Interest, Inc. v. Natl. Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997); Conner v. U.S. Dept. of the Int., 73 F. Supp. 2d 1215, 1218 (D. Nev. 1999) (If “plaintiffs’ challenge raises the question of whether the action exceeded the agency’s constitutional or statutory authority, then the challenge may be brought more than six years after agency action.”); See also State of Tex. v. U.S., 749 F.2d 1144, 1146 (5th Cir. 1985) (the time limit “restricting judicial review of [agency] action is applicable only to cut off review directly from the order promulgating a rule. It does not foreclose subsequent examination of further Commission action applying it.”). In such circumstances, the limitation period begins to run from the date that the agency decision is applied to the plaintiffs. Id. Each time the agency revisits the issue and applies its decision anew, the clock starts again. Fulbright v. McHugh, 67 F.Supp.3d 81, 92 (D.D.C. 2014) (citing Interstate Commerce Comm'n v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278 (1993)). This remains true, even if the agency “merely reaffirms its original decision.” Id. To hold otherwise “would effectively deny many parties ultimately affected by a rule an opportunity to question its validity.” State of Tex. v. U.S., 749 F.2d 1144, 1146 (5th Cir. 1985). Regardless of when Federal Defendants ultimately settled on their current method for locating the gradient boundary, they have applied that method in ways that affected Unsurveyed Plaintiffs well within the past six years. Federal Defendants issued official opinions in 2015 that contradict the Supreme Court’s mandates for how the boundary of federal property should be located. They also published maps in 2014 claiming to own large swaths of the Unsurveyed Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 53 of 58 PageID 3985 47 Plaintiffs’ properties. Federal Defendants’ decision to apply an erroneous and unlawful method to locate the gradient boundary in these instances has clouded Plaintiffs’ titles and made it impossible for Plaintiffs to make key decisions necessary to order their lives. Federal Defendants have suspended the surveys during this litigation, yet claim that the underlying methodology used by BLM is valid, albeit misapplied. The time limit for Plaintiffs to bring suit to rectify these injuries began to run when the unlawful methods and decisions were applied to them. See State of Tex. v. U.S., 749 F.2d at 1146. Federal Defendants’ views on final agency action, and the relevant statute of limitations, would leave scores of property owners along the Red River that have been injured by federal action with no redress in this Court or through the administrative process. 4) Plaintiffs non-QTA claims are not bound by the administrative record. Because Plaintiffs non-QTA claims do not arise under the APA, those claims are not bound by the administrative record. See Commercial Drapery Contractors, Inc. v. United States, 967 F. Supp. 1, 3 (D.D.C. 1997), aff'd, 133 F.3d 1 (D.C. Cir. 1998) (“Plaintiffs' claims that GSA's actions were “arbitrary and capricious” and contrary to federal regulations and statutes are brought under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and must be evaluated against the administrative record. The authority to examine plaintiffs' due process claims is independent of the APA, and such an examination requires an independent assessment of the facts and the law.”) Yet even if this court were to find that Plaintiffs’ non-QTA claims were APA claims, allowing extra record evidence to establish standing in APA cases is common. See, e.g., Stauber v. Shalala, 895 F.Supp. 1178, 1188 (W.D. Wis. 1995). Indeed, if such evidence were not permitted, then it would be impossible for any plaintiff in any APA case to establish Article III standing unless there had been a prior administrative adjudication. Agencies do not collect a record of every individual that an agency action will affect before the agency acts. That evidence must be found outside of the administrative record. Once Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 54 of 58 PageID 3986 48 again, Federal Defendants tortured reading of the law would render challenges to most government action impossible. 5) Plaintiffs have not waived their non-QTA claims. Contrary to Federal Defendants’ allegations, Plaintiffs have not waived their non-QTA claims. ECF 199 at 16-17. The non-QTA claims and relief sought in Plaintiffs’ Amended Complaint mirror those in Plaintiffs’ Motion for Partial Summary Judgment. ECF 164. In the Amended Complaint, Plaintiffs seek declaratory and mandamus relief from Defendants’ unlawful actions in adopting survey methods contrary to Oklahoma v. Texas, and by asserting federal jurisdiction over private property without specifying the extent of the property claimed with reasonable specificity. ECF 40 at 34, 37-38. In their Motion for Partial Judgment, Plaintiffs allege that BLM failed to articulate a valid method for determining the boundary bank, instead of 1) attempting to redefine “river bed” to include a place where upland grasses, shrubs, and trees grow (Id. at 16); 2) implying that a boundary on or around the 1923 Kidder-Stiles line is appropriate because the Red River is not currently at “substantial flow” (Id. at 17); or 3) that excising accretion by reliction from the doctrine of accretion. Id. at 20-21. Plaintiffs argued that Federal Defendants’ surveys are evidence of BLM’s adoption and application of survey standards in conflict with the requirements of Oklahoma v. Texas. Id. at 9 (“There [i]s [n]o [e]vidence [t]hat BLM’s [s]urveys [c]omply with Oklahoma v. Texas.”). Plaintiffs charged that BLM’s surveys and maps violated Oklahoma v. Texas and that the BLM’s surveyor failed to account for erosion and accretion and retraced the Kidder-Stiles line instead of conducting a gradient boundary survey. Id. at 11-14. Plaintiffs also contended that BLM had the opportunity to conduct a gradient boundary survey to support its disputed surveys, but refused to do so. Id. at 10. In the Amended Complaint, Plaintiffs seek orders declaring that Federal Defendants’ survey method and resulting work invalid, and declaring that the proper method for locating the boundary bank is using the process set out in Oklahoma v. Texas. ECF 40 at 43-44. In concluding Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 55 of 58 PageID 3987 49 their Motion for Partial Summary Judgment, Plaintiffs sought relief from Federal Defendants’ “flawed legal theories,” after proving that the content of the BLM’s 2014 map and 2009 surveys, as well as the way in which they were created, was indisputably wrong. Id. at 23; 14 (“In sum, Mr. Winter’s survey is untenable, and the Court should grant summary judgment finding it invalid.”). Plaintiffs asked this Court to affirm that the southern gradient boundary of the Red River may only be established via the method determined by the Supreme Court. Id. Plaintiffs in no way waived these claims in their Motion for Partial Summary Judgment. Even if Plaintiffs failed to raise these arguments in their Motion, which they have not, there is nothing which requires Plaintiffs to move for summary judgment on any of their claims. Much of Defendants’ Motion for Summary Judgment is premised on the belief that Plaintiffs have brought their non-QTA claims under the APA. This is not the case. Plaintiffs’ non-QTA claims arise under the Supreme Court’s decision in Oklahoma v. Texas, 260 U.S. 606 (1923), the Declaratory Judgment Act (DJA), 28 U.S.C. §2201, and the Mandamus Act, 28 U.S.C. §1361. ECF 051-1 at 9. 5 U.S.C. §702 waives sovereign immunity for Plaintiffs’ DJA and constitutional claims, but does not transform the DJA and Mandamus Act claims into APA claims. See Alabama- Coushatta, 757 F.3d at 488 (§702 provides a general waiver of “sovereign immunity for actions against federal government agencies, seeking nonmonetary relief.”). Further, Rule 56(a) of the Federal Rules of Civil Procedure states that “a party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought.” Fed.R.Civ.P. 56(a) (emphasis added). It is a widely accepted rule of statutory interpretation “that shall is mandatory and may is permissive.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012). The Supreme Court has recognized that “legislation using ‘shall’ indicates a mandatory duty while legislation using ‘may’ grants discretion.” See Lopez v. Davis, 531 U.S. 230, 241 (2001). Therefore, rules of statutory interpretation entail that a motion for summary judgment is not a mandatory duty in any suit Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 56 of 58 PageID 3988 50 proceeding, as this one does, under the Federal Rules of Civil Procedure, and that Plaintiffs’ choice to exclude certain claims from its Motion for Partial Summary Judgment does not constitute waiver of those claims. Finally, none of cases cited by Federal Defendants in support of their contention that Plaintiffs’ non-QTA claims must be determined on summary judgment actually support that proposition. ECF 199 at 18. While Plaintiffs do not dispute that true APA claims must be confined to the administrative record and not reviewed de novo, the can be done at summary judgment or at a later stage in the proceedings (e.g., Findings of Fact and Conclusions of Law). Thus, there is no basis for waiver. Summary judgment on this ground should be denied. V. PRAYER AND CONCLUSION The Individual Plaintiffs and communities of Clay, Wichita, and Wilbarger Counties deserve to have this ordeal resolved once and for all. Federal Defendants take the extreme position that only a final recorded survey may be considered sufficient to constitute action taken by the federal government, and then BLM temporarily suspends its surveys and attempts to run away when it becomes apparent that BLM’s actions do not withstand legal scrutiny. But, it is more than a survey recorded in the Federal Register. It is the methodology applied and asserted by the Federal Government – expressed in surveys, markers, maps, public hearings, congressional testimony, and even the government’s current position as of today’s date – that cloud the title of the Individual Plaintiffs, create a seizure upon their properties, and interfere with the abilities of the Counties and Sheriff Lemons to discharge their duties pursuant to the laws of the State of Texas. The federal government is wrong in its methodology as applied to determining the boundary in dispute and federal lands along the Red River. Plaintiffs’ claims are ripe for adjudication, property pled, and lawfully before this Court. Plaintiffs respectfully request this Court strongly reject Federal Defendants’ partial summary judgment motion and grant Plaintiffs their summary judgment motion. Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 57 of 58 PageID 3989 51 Respectfully submitted, /s/Robert Henneke ROBERT HENNEKE Texas State Bar No. 24046058 rhenneke@texaspolicy.com CHANCE WELDON Texas State Bar No. 24076767 cweldon@texaspolicy.com TEXAS PUBLIC POLICY FOUNDATION Center for the American Future 901 Congress Avenue Austin, Texas 78701 Telephone: (512) 472-2700 Facsimile: (512) 472-2728 BRADLEY W. CALDWELL Texas State Bar No. 24040630 bcaldwell@caldwellcc.com JOHN AUSTIN CURRY Texas State Bar No. 24059636 acurry@caldwellcc.com JOHN F. SUMMERS Texas State Bar No. 24079417 jsummers@caldwellcc.com DANIEL R. PEARSON Texas State Bar No. 24070398 dpearson@cadlwellcc.com Caldwell Cassady Curry P.C. 2101 Cedar Springs Road, Suite 1000 Dallas, Texas 75201 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above Plaintiffs’ Memorandum in Support of Response to Defendant’s Motion For Summary Judgment On Plaintiffs’ Claims was served via the CM/ECF electronic system to all parties of record on June 26, 2017. /s/Robert Henneke ROBERT HENNEKE Case 7:15-cv-00162-O Document 213 Filed 06/26/17 Page 58 of 58 PageID 3990