Cox v. United States of America

Motion to Dismiss for Lack of Jurisdiction , Motion to Dismiss for Failure to State a Claim .

D. Or.February 10, 2017

Page 1 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon JARED D. HAGER, WSB #38961 jared.hager@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1120 Facsimile: (503) 727-1117 Attorneys for the Government UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION SHAWNA COX, and those similarly situated, and those real parties to be joined as their names become known, Plaintiffs, v. UNITED STATES OF AMERICA, and JOHN DOES 1-100, Defendants. Case No.: 2:17-CV-00121-SU MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM Fed. R. Civ. P. 12(b)(1) and 12(b)(6) MOTION Defendants, the United States of America and John Does 1-100 (collectively “the Government”), by Billy J. Williams, United States Attorney for the District of Oregon, and through Jared D. Hager, Assistant U.S. Attorney, respectfully ask the Court to dismiss this case because Plaintiff Shawna Cox has not met her burden to establish subject matter jurisdiction over her claim Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 1 of 13 Page 2 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU to quiet title to the Malheur National Wildlife Refuge. To the contrary, the Complaint on its face shows that her claim is barred by the 12-year statute of limitations set by the Quiet Title Act (QTA), 28 U.S.C. § 2409a(f). If the Court decides it has jurisdiction, it should dismiss the Complaint because Cox does not allege the requisite personal interest in the land to state a valid claim against the United States. Pursuant to Local Rule 7.1, the parties conferred by phone; Cox opposes this motion and intends to file a motion for remand supported by documents. INTRODUCTION The saga of the Malheur National Wildlife Refuge is a quintessential American story. The Refuge was originally established as the Lake Malheur Reservation when the “conservationist president,” Theodore Roosevelt,1 set aside 80,000-plus acres of land for the Department of Agriculture to use as a preserve and breeding ground for native birds. See Exec. Order No. 929 (Aug. 18, 1908), available online at https://en.wikisource.org/wiki/Executive_Order_929. Over time, this high-desert oasis expanded and was renamed; it was given its current moniker by Proclamation of Franklin Roosevelt, who aimed to distinguish federal wildlife preserves from similar state and private projects. See Proclamation No. 2416, 5 Fed. Reg. 2677, 54 Stat. 2717 (July 25, 1940), available online at https://en.wikisource.org/wiki/Proclamation_2416. Before its designation as a national Refuge, Native Americans inhabited the Refuge area for millennia, the Paiute people in particular. Archaeological research shows humans were using the area’s relative abundance more than 9,000 years ago. See CARLA D. BURNSIDE, MALHEUR’S LEGACY: CELEBRATING A CENTURY OF CONSERVATION 9-18 (2008), available online at 1 President Roosevelt established 230 million acres of public land during his presidency, including national forests, wildlife refuges, and parks. See National Park Service, Theodore Roosevelt and Conservation, available at https://www.nps.gov/thro/learn/historyculture/theodore-roosevelt-and- conservation.htm. Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 2 of 13 Page 3 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU https://babel.hathitrust.org/cgi/pt?id=umn.31951p01019964u;view=1up;seq=6. The 19th century brought Indo-European explorers and American military expeditions; Oregon transitioned from territory to the thirty-third state admitted to the union; homesteaders settled parts of the land; and the Paiute people were eventually displaced. See Burnside, supra, at 19-36. Even then, the Refuge area was seen as a wildlife domain unsurpassed in the United States, and was particularly known for its diverse bird populations. See Burnside, supra, at 38-41 (quoting William Finley, The Trail of the Plume-Hunter, Atlantic Monthly (1910)). Local Audubon Society members persuaded President Roosevelt to set aside the lands as a preserve only after plume hunters decimated the area’s white heron population to satisfy a fleeting trend for feathered hats. See Burnside, supra, at 39. By lawful executive order, the Refuge area became federally protected on August 18, 1908. During its 100-plus years as a designated federal preserve, the Refuge has grown from 81,786 acres to its current size of 187,167 acres. See U.S. Fish & Wildlife Service, Statistical Data Tables for Fish & Wildlife Service Lands (as of 9/30/2015), available at https://www.fws.gov/refuges/land/PDF/2015_Annual_Report_of_LandsDataTables.pdf. In the mid-1930s, the Civilian Conservation Corps, a federal public work relief program created by Franklin Roosevelt’s “New Deal,” improved the Refuge area, constructing dams, buildings, roads, fences, irrigation ditches, cattle guards, and power lines. See U.S. Fish & Wildlife Service, Malheur National Wildlife Refuge, The Civilian Conservation Corps Builds the Refuge, available at https://www.fws.gov/refuge/malheur/about/CCC.html. To this day, the U.S. Fish and Wildlife Service manages the Refuge, as required by law. See U.S. Fish & Wildlife Service, Malheur National Wildlife Refuge Comprehensive Conservation Plan, Executive Summary, at ES-ii, available at https://www.fws.gov/refuge/Malheur/what_we_do/conservation.html (cataloguing the primary purposes of the Refuge and referencing to the Migratory Bird Conservation Act, 16 U.S.C. § 715d, Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 3 of 13 Page 4 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU the Fish and Wildlife Act of 1956, 16 U.S.C. § 742f, and the National Wildlife Refuge System Administration Act, 16 U.S.C. § 668dd). Situated in the high desert of southeastern Oregon, the Refuge continues to serve as an oasis for a multitude of birds and other wildlife, and is an essential stop along the Pacific Flyway for migrating birds and avid birdwatchers alike. On September 26, 2016, Cox filed a lawsuit in Harney County Circuit Court challenging the United States’ title to a portion of the Malheur National Wildlife Refuge. See ECF 1-1, Compl. The Government removed the action to this Court pursuant to 28 U.S.C.§ 1442(a). See ECF 1, Not. of Removal. The Government now asks the Court to dismiss the case. FACTS Taking as true the allegations in the Complaint,2 the following facts are relevant to this motion: 1. Cox claims against the United States under Oregon state law, ORS § 12.050, asserting that she “took hostile adverse possession of the Malheur Wildlife Refuge.” See ECF 1-1, Compl. ¶¶ 3-4. 2. Cox purports to be “an interested party” under Oregon state law, explaining she “is motivated to assist the people of Harney County to recover lands involved in the Malheur that has [sic] wrongfully been taken from them.” See ECF 1-1, Compl. ¶ 5. 3. Cox alleges that it “appears section 36 has been wrongfully taken from the Harney County schools and any and all funds generated from section 36 have been embezzled from Harney county schools.” See ECF 1-1, Compl. ¶ 6. 4. Cox assets that “many expert witnesses” have concluded “the land titles to the Malheur 2 To be clear, the Government disputes many of the operative facts alleged in the Complaint, but assumes their truth as required for the purpose of this motion. Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 4 of 13 Page 5 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU is [sic] seriously clouded, federal government overreach is involved and oppressive government tactics is [sic] involved in covering-up and concealing the government overreach involved.” See ECF 1-1, Compl. ¶ 7. 5. In addition to her claim to uncloud and quiet title to the Malheur National Wildlife Refuge, Cox asks for a declaratory judgment “defining Venue and Jurisdiction” as to illegal conduct committed on the Refuge. See ECF 1-1, Compl. ¶¶ 14-15. STANDARDS A. Pro Se Pleadings and Federal Rule of Civil Procedure 8(a)(2) A court must liberally construe a pro se plaintiff’s filings and give them the benefit of any reasonable doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Even so, a pro se litigant is not entitled to an opportunity to amend prior to dismissal of a defective complaint where “it is absolutely clear that no amendment can cure the defect.” Walker v. Beard, 789 F.3d 1125, 1139 (9th Cir. 2015). Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The rule does not call for detailed factual allegations, but demands more than an unadorned accusation that the defendant unlawfully harmed the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). B. Federal Rule of Civil Procedure 12(b)(1) A motion to dismiss under Rule 12(b)(1) tests subject matter jurisdiction. Whether the United States has waived sovereign immunity is, in the first instance, a question of subject matter Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 5 of 13 Page 6 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The burden of establishing jurisdiction lies with the plaintiff, including in Quiet Title Act claims against the United States. See Proschold v. United States, 90 Fed. Appx. 516, 2004 WL 324717 *1 (9th Cir. 2004); Friends of Panamint Valley v. Kempthorne, 499 F. Supp. 2d 1165, 1171 (E.D. Cal. 2007). A federal court “is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” General Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). In deciding a Rule 12(b)(1) motion, a court will accept as true the factual allegations in the complaint. See Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). However, a court is not restricted to the face of the pleadings, and may review evidence and resolve factual disputes without converting the motion into one for summary judgment. See Friends of Panamint Valley, 499 F. Supp. 2d at 1171 (citing McCarthy v. United States, 850 F.2d at 560). C. Federal Rule of Civil Procedure 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. A Rule 12(b)(6) motion will be granted when a complaint lacks sufficient factual allegations to state a facially plausible claim for relief. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. In evaluating the sufficiency of a complaint’s factual allegations, a court will accept as true all well-pleaded material facts and construe them in the light most favorable to the non-moving party. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). However, to be entitled to a presumption of truth, the complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Moreover, a court will not credit legal conclusions that are couched as factual allegations. See Iqbal, 556 U.S. at 678-79. Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 6 of 13 Page 7 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU A complaint must set forth facts that “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. A claim has facial plausibility when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). ARGUMENT Cox’s claim to uncloud and quiet title to the Malheur National Wildlife Refuge fails for three reasons. First, the Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, preempts Oregon state law, and is the exclusive source of remedy against the United States’ property rights. Cox has not alleged a claim under the QTA, and her state law claim must be dismissed. Second, even if the Court were to construe the Complaint as asserting a QTA claim, Cox cannot meet her burden to establish the Court’s subject matter jurisdiction because any such claim is plainly time-barred. Finally, even if this Court is satisfied of its jurisdiction to hear this case, Cox does not plead a sufficient personal interest in the land to state a claim for relief under the QTA. The Government therefore respectfully asks the Court to grant its motion and dismiss this case. A. The Quiet Title Act Preempts Inconsistent State Law, Providing for a Limited Waiver of Sovereign Immunity It has been settled since at least the mid-nineteenth century that the United States may not be sued without its consent. See, e.g., United States v. Lee, 106 U.S. 196, 204-05 (1882); United States v. McLemore, 45 U.S. 286, 288 (1846); United States v. Clarke, 33 U.S. 436, 444 (1834). In 1972, however, the United States agreed to a limited waiver of its immunity with respect to suits involving title to land. See Quiet Title Act of 1972, Pub. L. No. 92-562, 86 Stat. 1176, codified at 28 U.S.C. § 2409a; see also Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-90 (1983). Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 7 of 13 Page 8 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU Federal district courts have exclusive original jurisdiction of civil actions under the QTA. See 28 U.S.C. § 1346(f). The QTA sets the exclusive procedure by which a claimant can judicially challenge the title of the United States to real property. See Block, 461 U.S. at 286. Federal courts strictly observe the QTA’s conditions on the waiver of immunity, including its 12-year statute of limitations. See id. at 287. The QTA preempts inconsistent state law; however, states may impose stricter requirements, e.g., a shorter statute of limitations. See State of Hawaii v. United States, 866 F.2d 313, 313 (9th Cir. 1989) (per curiam) (holding that state law cannot supersede the QTA); cf. Abdo v. Reyes, 91 F. Supp. 3d 1225, 1230-31 (D. Utah 2015) (holding that the QTA does not preclude a state from imposing shorter limitations). Thus, to effectively challenge the title of the United States to real property, Cox must sue under the QTA. See Gardner v. Stager, 103 F.3d 886, 887 (9th Cir. 1996). As in Gardner, where the plaintiffs sued under a Nevada state statute to quiet the United States’ title to certain grazing lands, Cox’s suit is barred because she seeks to quiet title to U.S.-owned property under an Oregon state statute, ORS § 12.050.3 See id. B. The Complaint Fails to Allege Facts Sufficient to Establish the Timeliness of Cox’s Claim and the Court’s Subject Matter Jurisdiction Even if the Court construes Cox’s action as asserting a claim under the QTA, the claim still fails as a matter of law. The QTA sets a 12-year statute of limitations. See 28 U.S.C. § 2409a(g) 3 Under Oregon law, title by adverse possession requires open, notorious, exclusive, and uninterrupted antagonistic possession under a claim of ownership of land belonging to another for the full statutory period of 10 years. See Owens v. Bartruff, 297 Or. 610, 617-18 (1984). Even if the QTA does not completely preempt Oregon state law, Cox’s Complaint would fail because she does not plead facts sufficient to establish any of these elements for the required 10-year period. More importantly, “adverse possession cannot be achieved against the federal government.” United States v. Vasarajs, 908 F.2d 443, 446 n.4 (9th Cir. 1990). Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 8 of 13 Page 9 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU (“Any civil action under this section . . . shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.”). The Supreme Court and Ninth Circuit treat the QTA’s statute of limitations as jurisdictional, which may not be tolled. See Block, 461 U.S. at 283-85; Kingman Reef Atoll Invs. v. United States, 541 F.3d 1189, 1196 (9th Cir. 2008); Fidelity Exploration & Prod. Co. v. United States, 506 F.3d 1182, 1186 (9th Cir. 2007). Cox does not allege facts sufficient to establish the timeliness of her claim to dispossess the United States of the Refuge. Nor can she. Cox filed the Complaint on September 26, 2016. Thus, if she or her predecessor in interest “knew or should have known of the claim of the United States” prior to September 26, 2004, her claim is barred by the QTA’s statute of limitations. It is. The United States has openly claimed rights to the Refuge area since at least 1908, when Theodore Roosevelt set aside the land for use by the Department of Agriculture as a wildlife preserve and breeding ground for native birds. See Exec. Order No. 929 (Aug. 18, 1908), available online at https://en.wikisource.org/wiki/Executive_Order_929. For the part of the Refuge identified in the Complaint, the United States acquired title no later than 1954, and has since managed the land as part of the Refuge.4 See U.S. Fish & Wildlife Service, Malheur National Wildlife Refuge Comprehensive Conservation Plan, Chapter 1, at 1-11 to 1-12, available at https://www.fws.gov/uploadedFiles/Region_1/NWRS/Zone_2/Malheur/Documents/MalheurN 4 The United States filed evidence of its ownership interest in the criminal cases arising from Cox’s attempt to take “hostile adverse possession of the Malheur Wildlife Refuge.” ECF 1-1, Compl., ¶ 4; see also United States v. Bundy, Case No. 3:16-cr-00051-BR, ECF 1230, Decl. of Charles Houghten. However, it is the Government’s position that the Court can resolve this case on the face of the Complaint, without considering matters outside the pleadings. See Fed. R. Civ. P. 12(d). Until Cox pleads a viable QTA claim, the Government need not defend its title to the land. Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 9 of 13 Page 10 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU WR_FCCP_chapter1.pdf. Moreover, the Complaint suggests Cox is aware that the United States has long claimed title to the land at issue here. See, e.g., ECF 1-1, Compl., ¶ 4-8 (alleging federal government overreach in “taking” land and “obtain[ing] title” to the Malheur National Wildlife Refuge). In any event, it is Cox’s burden to establish the Court’s subject matter jurisdiction, and she has not met it. C. The Complaint Fails to Allege Facts Sufficient to Establish Cox’s Requisite Personal Interest in the Land. If the Court concludes it has jurisdiction, it should dismiss the Complaint for failing to state a claim upon which relief can be granted. The QTA sets forth detailed requirements of any complaint challenging the United States’ interest in real property. See 28 U.S.C. § 2409a(d) (“The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.”). Thus, to bring a QTA claim, a plaintiff must allege a personal interest in the title to the real property at issue, as opposed to a general public interest. See, e.g., Long v. U.S. Bureau of Reclamation, 236 F.3d 910, 915 (8th Cir. 2001) (holding that a plaintiff fails to state a QTA claim by alleging a general public interest in the land); Cadorette v. United States, 988 F.2d 215, 223 (1st Cir. 1993) (observing that the QTA’s purpose is “to determine which named party has superior claim to a certain piece of property”). These pleading requirements are “neither discretionary nor flexible because the terms of the waiver of sovereign immunity limit the scope of this Court’s jurisdiction.” See Friends of Panamint Valley, 499 F. Supp. 2d at 1174. The Complaint plainly fails to allege facts sufficient to establish Cox’s personal interest in title to the Refuge, as required by the QTA. To the contrary, the Complaint expressly admits that Cox’s interest is tantamount to a general public interest. See, e.g., ECF 1-1, Compl., ¶ 5 (“As Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 10 of 13 Page 11 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU described in ORS I am an interested party who is motivated to assist the people of Harney County to recover lands involved in the Malheur that has [sic] wrongfully been taken from them.”). If Cox cannot allege-consistent with the strictures of Rule 11-that she has an ownership claim in the Refuge, she cannot maintain a federal lawsuit to quiet the United States’ title. D. The Declaratory Judgment Act Does Not Waive Sovereign Immunity. Cox also seeks declaratory relief, which this Court may consider under the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. However, courts have long held that the DJA requires an actual controversy, not the mere possibility or even probability that a person may in the future be adversely affected by official acts. See Garcia v. Brownell, 236 F.2d 356, 357-58 (9th Cir. 1956). An “actual controversy” is a dispute that is “definite and concrete, touching the legal relations of parties having adverse legal interests;” the dispute must be “real and substantial and admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal alteration and quotation marks omitted). Even where a justiciable controversy exists, declaratory relief will be granted “only as a matter of judicial discretion, exercised in the public interest.” See Eccles v. Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431 (1948). The purpose of Cox’s claim for declaratory relief is not exactly clear. To the extent she seeks a declaration to challenge the United States’ title to the Refuge area, her claim fails for at least two reasons. First, the DJA does not effect a waiver of the United States’ sovereign immunity. See California v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979); Lane v. Kitzhaber, 2013 WL 6798470 *3 (D. Or.). Second, the Supreme Court holds that plaintiffs cannot escape the QTA’s requirements by artful pleading. See Block, 461 U.S. at 284-85; see also Friends of Panamint Valley, 499 F. Supp. 2d at 1177-78 (declining request for declaratory relief in relation to QTA claim). Likewise, Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 11 of 13 Page 12 Motion to Dismiss Cox v. United States, Case No. 2:17-cv-00121-SU to the extent Cox seeks this Court’s legal opinion on questions of federal venue and jurisdiction over future, hypothetical criminal conduct, she lacks standing. See MedImmune, 549 U.S. at 127. In all events, the Complaint lacks enough factual content to show Cox is entitled to relief. See Fed. R. Civ. P. 8(a)(2). CONCLUSION For the foregoing reasons, the Government respectfully asks the Court to grant its motion, and dismiss this case. Dated this 10th day of February 2017. Respectfully submitted, BILLY J. WILLIAMS United States Attorney District of Oregon /s/ Jared D. Hager JARED D. HAGER Assistant U.S. Attorney Attorneys for the Government Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 12 of 13 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss was placed in a postage prepaid envelope and deposited in the United States Mail according to established office procedure within the office of the United States Attorney at Portland, Oregon, on February 10, 2017, addressed to: Shawna Cox 113 East Adams St. Burns OR 97720 (435) 899-0300 utazpatriots@gmail.com Plaintiff, acting pro se /s/ Jared D. Hager JARED D. HAGER Assistant U.S. Attorney Case 2:17-cv-00121-SU Document 4 Filed 02/10/17 Page 13 of 13