Netterville v. Commonwealth Land Title Insurance Co et alMOTION to Dismiss for Lack of JurisdictionW.D. La.April 14, 2017UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION DECARLA NETTERVILLE ) NUMBER 15-01832 ) VERSUS ) JUDGE FOOTE ) COMMONWEALTH LAND TITLE ) MAGISTRATE JUDGE HAYES INSURANCE COMPANY, THE UNITED ) STATES OF AMERICA, ABSTRACTING ) AND LEGAL RESEARCH, INC., AND ) LAUREN GAY COLEMAN ) THE UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION NOW COMES the Defendant, the United States of America, through undersigned counsel, and moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Pursuant to the Wetlands Reserve Program, Plaintiff’s father conveyed an easement to the United States in 1997. In her Complaint, Plaintiff alleges that the United States’ title to the easement is void, and therefore the United States Department of Agriculture wrongly refused to terminate or transfer the easement when notified of her claim to the property. Plaintiff’s Complaint fails to assert a valid waiver of the United States’ sovereign immunity. First, she cites the waiver provided by the Federal Tort Claims Act (FTCA), without identifying any underlying state law claim as required by 28 U.S.C. § 1346(b). The FTCA’s waiver is not applicable, because the Quiet Title Act (QTA) provides the exclusive remedy for Plaintiff’s claims. Second, although the QTA provides the appropriate remedial scheme, Plaintiff’s QTA claim is barred by the statute of limitations. Plaintiff has presented no alternative waiver of the United States’ sovereign immunity. Case 3:15-cv-01832-EEF-KLH Document 50 Filed 04/14/17 Page 1 of 3 PageID #: 234 Therefore, for the reasons stated in the attached Memorandum, Plaintiff’s claims against the United States should be dismissed for lack of subject matter jurisdiction. Respectfully submitted, ALEXANDER C. VAN HOOK ACTING UNITED STATES ATTORNEY By: s/Katherine W. Vincent KATHERINE W. VINCENT (#18717) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501 (337) 262-6618 // Fax: (337) 262-6693 katherine.vincent@usdoj.gov and /s/ Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney 300 Fannin Street, Suite 3201 Shreveport, Louisiana 71101-3068 (318) 676-3610 // Fax: (318) 676-3642 andolyn.johnson@usdoj.gov and /s/ John T. Balhoff, II g JAMES M. GARNER #19589 JOHN T. BALHOFF, II #24288 RYAN O. LUMINAIS #30605 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 jgarner@shergarner.com jbalhoff@shergarner.com rluminais@shergarner.com Case 3:15-cv-01832-EEF-KLH Document 50 Filed 04/14/17 Page 2 of 3 PageID #: 235 CERTIFICATE OF SERVICE I certify that on April 14, 2017, a copy of the United States’ Motion, Memorandum and Exhibits was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent electronically to all counsel of record. By: /s/Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney Case 3:15-cv-01832-EEF-KLH Document 50 Filed 04/14/17 Page 3 of 3 PageID #: 236 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION DECARLA NETTERVILLE ) NUMBER 15-01832 ) VERSUS ) JUDGE FOOTE ) COMMONWEALTH LAND TITLE ) MAGISTRATE JUDGE HAYES INSURANCE COMPANY, THE UNITED ) STATES OF AMERICA, ABSTRACTING ) AND LEGAL RESEARCH, INC., AND ) LAUREN GAY COLEMAN ) MEMORANDUM IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 1 of 30 PageID #: 237 i TABLE OF CONTENTS TABLE OF CONTENTS…... ……………………………………………………………………..i TABLE OF AUTHORITIES……………………………………………………………………..iii MEMORANDUM IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION….……………………………………………1 I. INTRODUCTION………….……………………………………………….…….1 II. FACTUAL BACKGROUND.…………………………...…………………...…...2 A. History of the Property at Issue………………………………………………3 B. The WRP Easement conveyed to the United States…………………………..4 C. Procedural History…………………………………………………………….5 III. THE COURT LACKS JURISDICTION OVER ALL CLAIMS ASSERTED BY PLAINTIFF AGAINST THE UNITED STATES………..……..………………..6 A. Overview of Legal Arguments………………………………………………..6 B. Plaintiff has not presented a cognizable claim under the FTCA ………….….8 1. Plaintiff’s Complaint fails to identify a state tort cause of action, which is a prerequisite of the FTCA’s waiver of sovereign immunity………………………………………………………………9 2. A Quiet Title Action is the exclusive remedy to challenge the United States’ title to real property…………………………………………..11 C. Plaintiff’s Quiet Title Act claim is barred by the statute of limitations...……13 1. Legal analysis defining accrual of the QTA’s statute of limitations...14 2. James W. Davis, Plaintiff’s predecessor in interest, had actual knowledge of the United States’ claim to the property in 1997……..16 3. Plaintiff should have known about the United States’ claim to the property in 1997……………………………………………………...16 4. The Trustee should have known about the United States’ claim to the property in 1997……………………………………………………...19 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 2 of 30 PageID #: 238 ii D. Plaintiff presented no other valid waiver of the United States’ sovereign immunity as a basis for jurisdiction………………………………………….21 IV. CONCLUSION….……………………………………………………………….22 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 3 of 30 PageID #: 239 iii TABLE OF AUTHORITIES Cases Alabama–Coushatta Tribe of Texas v. United States, 757 F.3d 484 (5th Cir. 2014) ....................................................................................................... 6 Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir. 1980) ........................................................................................... 15, 17 Bank One Texas v. United States, 157 F.3d 397 (5th Cir. 1998) ............................................................................................... 11, 14 Block v. North Dakota, 461 U.S. 273 (1983) ................................................................................................ 11, 12, 13, 14 Brown v. Gen'l Servs. Admin., 425 U.S. 820 (1976) .................................................................................................................. 12 Brown v. United States, 653 F.2d 196 (5th Cir. 1981) ..................................................................................................... 10 Calhoun County, Texas v. United States, 132 F.3d 1100 (5th Cir. 1998) ....................................................................................... 15, 17, 18 California v. Yuba Goldfields, Inc., 752 F.2d 393 (9th Cir. 1985) ..................................................................................................... 15 Carr v. Oaktree Apartments, 46 So.3d 793 (La. App. 2d Cir. 2010) ....................................................................................... 17 Crooks v. Placid Oil Co., 166 F.Supp.2d 1104 (W.D. La. 2001) ....................................................................................... 12 D. C. Transit System, Inc. v. United States, 531 F.Supp. 808 (D.C. Cir. 1982) ............................................................................................. 17 Dual Drilling Co. v. Mills Equipment Investments, Inc., 721 So.2d 853 (La. 1998) ......................................................................................................... 11 F.D.I.C. v. Meyer, 510 U.S. 471 (1994) .................................................................................................................... 6 Federal Housing Administration v. Burr, 309 U.S. 242 (1940) .................................................................................................................... 6 Freeman v. United States, 556 F.3d 326 (5th Cir. 2009) ..................................................................................................... 10 Healy v. Sea Gull Specialty Co., 237 U.S. 479 (1915) .................................................................................................................... 7 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 4 of 30 PageID #: 240 iv In re FEMA Trailer Litigation, 668 F.3d 281 (5th Cir. 2012) ..................................................................................................... 10 Johnson v. Sawyer, 47 F.3d 716 (5th Cir. 1995) ....................................................................................................... 10 Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978) ................................................................................................... 11 Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) ............................................................................................. 14, 15 LaFargue v. United States, 4 F.Supp.2d 580 (E.D. La. 1998) .................................................................................... 7, 13, 22 Lasyone v. United States, 30 F.3d 1490 .................................................................................................................. 15, 17, 19 Lee v. United States, 629 F.Supp. 721 (D. Alaska 1985) ............................................................................................ 15 Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627 (La. 2006) .......................................................................................................... 10 Loeffler v. Frank, 486 U.S. 549 (1988) .................................................................................................................... 6 McDuffie v. Walker, 51 So. 100 (La. 1909) ................................................................................................................ 17 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ....................................................................................................... 6 Rodgers v. Vilsack, No. 2:14–CV–81, 2015 WL 4488078 (E.D. Mo. July 23, 2015) ................................................ 2 School Bd. of Avoyelles Parish v. U.S. Dept. of Interior, 647 F.3d 570 (5th Cir. 2011) ..................................................................................................... 11 Sellfors v. United States, 697 F.2d 1362 (11th Cir. 1983) ................................................................................................. 10 Spirit Lake Tribe v. North Dakota, 262 F.3d 732 (8th Cir. 2001) ..................................................................................................... 15 St. Tammany Parish v. FEMA, 556 F.3d 307 (5th Cir. 2009) ..................................................................................................... 10 Thomas v. Lewis, 475 So.2d 52 (La. App. 2d Cir. 1985) ....................................................................................... 17 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 5 of 30 PageID #: 241 v United States v. Beggerly, 524 U.S. 38 (1998) .................................................................................................................... 14 United States v. Mitchell, 463 U.S. 206 (1983) .................................................................................................................. 22 United States v. Mottaz, 476 U.S. 834 (1986) .................................................................................................. 7, 13, 14, 22 United States v. Smith, 324 F.2d 622 (5th Cir. 1963) ..................................................................................................... 10 Vincent Murphy Chevrolet Co. v. United States, 766 F.2d 449 (10th Cir. 1985) ................................................................................................... 17 Voelkel v. Harrison, 572 So.2d 724 (La. App. 4th Cir. 1990) .................................................................................... 17 Wells v. Joseph, 101 So. 2d 667 (La. 1958) ......................................................................................................... 17 Williamson v. Tucker, 645 F.2d 404 (5th Cir.1981) ........................................................................................................ 6 Statutes 16 U.S.C. § 3837 ............................................................................................................................. 2 28 U.S.C. § 1346(a)(2) ...................................................................................................... 13, 21, 22 28 U.S.C. § 2409a ..................................................................................................................... 7, 11 28 U.S.C. § 2409a(a)..................................................................................................................... 11 28 U.S.C. § 1332 ............................................................................................................................. 7 28 U.S.C. § 1346(b) ................................................................................................................ 7, 8, 9 28 U.S.C. § 1367 ............................................................................................................................. 7 28 U.S.C. § 1402(d) ........................................................................................................................ 7 28 U.S.C. § 1491(a)(1) .................................................................................................................. 21 La. C.C. Art. 2315 ......................................................................................................................... 10 La. C.C. Art. 3338 ......................................................................................................................... 17 La. Rev. Stat. § 9:2088(B) ............................................................................................................ 20 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 6 of 30 PageID #: 242 vi Rules Fed. R. Civ. P. 12(b)(1)......................................................................................................... 2, 6, 22 Regulations 7 C.F.R. § 614.1 .............................................................................................................................. 2 Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 7 of 30 PageID #: 243 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION DECARLA NETTERVILLE ) NUMBER 15-01832 ) VERSUS ) JUDGE FOOTE ) COMMONWEALTH LAND TITLE ) MAGISTRATE JUDGE HAYES INSURANCE COMPANY, THE UNITED ) STATES OF AMERICA, ABSTRACTING ) AND LEGAL RESEARCH, INC., AND ) LAUREN GAY COLEMAN ) MEMORANDUM IN SUPPORT OF THE UNITED STATES’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION I. INTRODUCTION Plaintiff, DeCarla Netterville, asserts claims against defendants, Commonwealth Land Title Insurance Company (Commonwealth), the United States of America, Abstracting and Legal Research, Inc. (Abstracting), and Lauren Gay Coleman, regarding a Wetlands Reserve Program easement conveyed to the United States by her father, James W. Davis, in 1997. (Docs. 1, 28, 39). Specifically, Plaintiff alleges that the U.S. Department of Agriculture (USDA) wrongfully refused to terminate or transfer the easement upon her challenge to the United States’ title to the property. (Doc. 1, ¶ 22-24). Plaintiff has not identified a valid waiver of the United States sovereign immunity in order to establish this Court’s jurisdiction over the United States. According to the Complaint, Plaintiff asserts the waiver of immunity in the Federal Tort Claims Act (FTCA). However, Plaintiff did not plead a state law tort as the underlying basis for her FTCA claim. Moreover, the gravamen of Plaintiff’s Complaint is a title dispute with the United States, for which the exclusive remedy is a Quiet Title Act (QTA) claim. The QTA’s 12-year statute of limitations is a jurisdictional Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 8 of 30 PageID #: 244 2 prerequisite, and any claim Plaintiff may have had under the QTA is now time-barred. Plaintiff has not asserted any other jurisdictional basis for her claims against the United States. Therefore, Plaintiff’s claims against the United States should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). I I . FACTUAL BACKGROUND The Wetlands Reserve Program (WRP) was created in 1985 to allow the United States, acting through the U.S. Department of Agriculture (USDA), to obtain easements with landowners to restore and protect wetlands. 16 U.S.C. § 3837, et seq. (repealed 2014), attached hereto as Exhibit 1; 7 C.F.R. § 614.1, et seq. These WRP easements allow officers of the Natural Resources Conservation Service (NRCS), a subset of the USDA, to undertake restoration and preservation efforts on the land, in exchange for compensation to landowners.1 According to Plaintiff’s Complaint, her father, James W. Davis, executed a Warranty Easement Deed in 1997, conveying a perpetual easement to the United States covering over half of a larger property in Tensas Parish, Louisiana. (See Doc. 1; see also Warranty Easement Deed, attached hereto as Exhibit 2). Now, over 20 years later, Plaintiff alleges that James W. Davis did not own the entirety of the property that he conveyed, making the warranty deed null and void. (See Doc 1, ¶ 6). Plaintiff requests removal of the easement, and either transfer to the Conservation Reserve Program or reimbursement to convert the property to farmland.2 Id. at ¶ 14. 1 For more information about the history of the WRP, see Rodgers v. Vilsack, No. 2:14–CV–81, 2015 WL 4488078, at *1 (E.D. Mo. July 23, 2015) (summarizing the history of the Wetlands Reserve Program in a quiet title action brought by a landowner/grantor of a WRP easement). 2 The Conservation Reserve Program (CRP) differs significantly from the WRP. The CRP is a land conservation program, whereby the United States enters into 10-15 year contracts with landowners to provide yearly rental payments if they plant species to improve the health and quality of land. The program is administered by the Farm Service Agency, not the NRCS. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 9 of 30 PageID #: 245 3 A. History of the Property at Issue The WRP easement is located on a larger piece of property in Tensas Parish, Louisiana. The entire property totals approximately 1,024 acres, and sits on the north bank of Lake St. Joseph, with Highway 608 running east to west through it. Part of the 1,024 acres is subject to the easement at issue. (See Map, Ex. 2). Upon information and belief,3 the property was previously owned in part by Alvern Adams Davis, the first wife of the former Louisiana Governor Jimmie H. Davis. Alvern and Jimmie Davis had one son, James W. Davis, who co-owned the property with Alvern Adams Davis as owners in indivision. (See Act of Partition, attached hereto as Exhibit 3). Plaintiff DeCarla Netterville is James W. Davis’ daughter. In 1966, The Alvern Adams Davis Trust (“the Trust”) was established by the Last Will and Testament of Alvern Adams Davis. (See Act of Transfer from Trust, attached hereto as Exhibit 4). American Bank & Trust Company (ABTC) was named the Trustee. (See id.; Ex. 3). In her Will, Mrs. Davis conveyed her part-ownership (25.5%) of the land to the Trust, with ABTC as Trustee. James W. Davis retained his ownership interest (74.5%) in the land, thus becoming owners in indivision with the Trust. (See Ex. 3). It is defendant’s understanding that James W. Davis farmed portions of the land and lived in a home on the property during the time period pertinent to this lawsuit. In her Will, Mrs. Davis named her husband, Jimmie H. Davis, as the income beneficiary to the Trust, followed by James W. Davis as his successor income beneficiary. (See Ex. 4). She named her grandchildren as the beneficiaries upon termination of the Trust. Id. Her only grandchild was Plaintiff DeCarla Netterville. 3 Defendant possesses only some of the documents evidencing the history of the property at issue. The facts presented represent what could be gleaned from the records available at this time. Any gaps in the history of the property impact only the factual background, and not the jurisdictional questions posed herein. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 10 of 30 PageID #: 246 4 In 1987, through an Act of Partition, James W. Davis and the Trust divided the property into two separate plantations. (Ex. 3). The Act of Partition purported to grant James W. Davis an undivided interest in part of the land, and the Trust an undivided interest in another part of the land. Id. According to the Act of Partition, Jimmie H. Davis, who was presumably the income beneficiary of the Trust at the time, directed the Trustee to execute the partition. Id. B. The WRP Easement conveyed to the United States On April 1, 1997, James W. Davis conveyed a perpetual easement encumbering 5 tracts of land, totaling approximately 670 acres, to the United States. (Ex.2). All 5 tracts are located on the above-mentioned property. Id. Mr. Davis received $422,300 from the WRP in exchange for the easement. He executed a Warranty Easement Deed, binding himself, his heirs, successors, assigns, lessees, and any other person claiming an interest. Id. The Deed was filed for record in Tensas Parish, Louisiana on April 1, 1997, Registry No. 160935, in accordance with the local recording statute. Id. According to the Complaint, Abstracting performed the title search on the land, and Commonwealth issued the title insurance policy insuring the United States’ interest in the property. (Docs. 1, 28, 39). In the Warranty Easement Deed, James W. Davis granted all rights, title and interest in the land comprising the easement area to the United States, reserving only those rights, title, and interest expressly enumerated in Part II of the deed. (Ex. 2). Part II reserves in the Landowner the rights to record title, quiet enjoyment, prevent trespass and control access by the public, recreational uses, and subsurface resources like oil, gas, and minerals. Id. Part III of the deed sets forth obligations of the landowner which include paying property taxes, controlling noxious weeds and pests, and reporting adverse conditions and events along with prohibitions against various activities, i.e., haying mowing, altering grassland, dumping refuse, harvesting wood products, and draining water control structures. Id. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 11 of 30 PageID #: 247 5 Jimmie H. Davis was the income beneficiary of the Trust when the easement was conveyed to the United States by his son in 1997, with ABTC as the Trustee.4 (Ex. 4). Jimmie H. Davis remained income beneficiary, presumably until his death in 2000, and was succeeded by James W. Davis as income beneficiary until his death on November 2, 2012. (See Doc. 1; see also Ex. 4). The Trust assets were distributed to Plaintiff on February 14, 2013, with the Act of Transfer recorded on March 14, 2013. Id. C. Procedural History On June 9, 2015, Plaintiff filed the above-styled lawsuit against Commonwealth and the United States. Shortly thereafter, she voluntarily dismissed her claims against the United States in order to exhaust her administrative claims with the USDA pursuant to the FTCA. (Doc. 16). After the USDA issued a final denial of the claims, she filed an amended Complaint adding the United States back into her lawsuit against Commonwealth. (Doc. 28). She filed a second amended Complaint, adding defendants Abstracting and Lauren Gay Coleman. Ms. Coleman was the settlement agent for the WRP easement transaction. (Doc. 39). According to the Complaint, Plaintiff alleges that a portion of the 670.3 acres conveyed pursuant to the Warranty Easement Deed was not wholly owned by James W. Davis, but by the Trust, making the 1997 Warranty Easement Deed void. Plaintiff seeks removal/transfer of the easement from the WRP, the cost of tree removal to place the land in farmable condition, and other monetary damages. (Doc. 1). Plaintiff also asserts separate claims against Commonwealth, Abstracting and Ms. Coleman for their roles in the title abstract for the Warranty Easement Deed. 4 At some point after 1987, American Bank & Trust Company merged with, and became known as, Whitney Bank. It remained the Trustee until the Trust assets were distributed to Plaintiff in 2013. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 12 of 30 PageID #: 248 6 III. THE COURT LACKS JURISDICTION OVER ALL CLAIMS ASSERTED BY PLAINTIFF AGAINST THE UNITED STATES. Plaintiff’s Complaint against the United States should be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). As the party asserting federal jurisdiction, Plaintiff bears the burden of establishing all jurisdictional prerequisites. Alabama–Coushatta Tribe of Texas v. United States, 757 F.3d 484, 487 (5th Cir. 2014); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court reviewing jurisdiction may base a Rule 12(b)(1) ruling on: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts in the record; or (3) the complaint supplemented by the undisputed facts plus the court’s resolution of the undisputed facts. Ramming, 281 F.3d at 161. In evaluating the Court’s own subject matter jurisdiction, it is not bound to presume the truth of Plaintiff’s assertions in the Complaint. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The Court may make factual determinations necessary to resolve jurisdictional disputes. Id. A. Overview of Legal Arguments Plaintiff’s burden to establish jurisdiction includes identifying an express waiver of the United States’ sovereign immunity. The United States, as sovereign, is immune from suit unless it consents to be sued. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940)). Sovereign immunity is jurisdictional and construed in favor of the sovereign. Id. Without the express intent by Congress to waive the United States’ sovereign immunity for a particular action, a plaintiff cannot recover against the United States. Id. In Plaintiff’s Complaint, she bases the Court’s subject matter jurisdiction on the following statutes: Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 13 of 30 PageID #: 249 7 28 U.S.C. § 1332 (federal question); 28 U.S.C. § 1332 (diversity jurisdiction); 28 U.S.C. § 1346(b) (United States as defendant); 28 U.S.C. § 1402(d) (United States as defendant/real property); and 28 U.S.C. § 1367 (supplemental jurisdiction). (Doc. 1, ¶ 1). Only two of the statutes cited by Plaintiff provide potential waivers of the government’s sovereign immunity. Title 28 U.S.C. § 1346(b) of the Federal Tort Claims Act (FTCA) includes a waiver of sovereign immunity for certain negligent acts by government employees. Title 28 U.S.C. § 1402(d) does not contain a waiver, but references 28 U.S.C. § 2409a of the Quiet Title Act (QTA). The QTA offers a remedy to adjudicate disputed title to real property with the United States. Both the FTCA and the QTA provide exclusive remedies. Presumably, Plaintiff intends to proceed under the FTCA because she exhausted administrative claims with the USDA, which is a prerequisite only under the FTCA. Regardless of Plaintiff’s intention, the Court is tasked with reviewing the nature of the rights and relief sought in Plaintiff’s Complaint to determine which statutory scheme, if any, provides a waiver of immunity. United States v. Mottaz, 476 U.S. 834, 850–51 (1986) (examining whether jurisdiction existed under either the QTA or the Tucker Act in a case involving disputed title and noting that “[j]urisdiction generally depends upon the case made and relief demanded by the plaintiff.” Id. at 850 (quoting Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480 (1915)); see also LaFargue v. United States, 4 F.Supp.2d 580, 586 (E.D. La. 1998) (examining whether jurisdiction existed under either the QTA or 28 U.S.C. § 1346(a)(2) (Baby Tucker Act) in a dispute over an easement)). In this case, neither the FTCA nor the QTA provides this Court with jurisdiction over Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 14 of 30 PageID #: 250 8 Plaintiff’s claims against the United States. First, Plaintiff has not raised a cognizable FTCA claim. The FTCA’s waiver of sovereign immunity is dependent upon a state law duty, which Plaintiff has not identified. More importantly, the QTA provides the exclusive remedy for real property disputes with the Federal Government. It cannot be avoided by artfully pleading claims to fit within other statutory frameworks like the FTCA. Second, although Plaintiff may have had a claim under the QTA, it is now barred by the statute of limitations. There are no alternative waivers of the United States’ sovereign immunity available to Plaintiff. Thus, Plaintiff’s claims against the United States should be dismissed for lack of subject matter jurisdiction. B. Plaintiff does not present a cognizable claim under the FTCA. The FTCA provides a limited waiver of the Federal Government’s sovereign immunity for civil actions sounding in tort. 28 U.S.C. § 1346(b). Based upon the facts asserted, the gravamen of Plaintiff’s Complaint is a real property dispute, not a tort. In particular, Plaintiff alleges that the USDA wrongfully refused to terminate or transfer the WRP easement in response to her challenge to title in 2014. (Doc. 1, ¶¶ 14, 22-24). Her claims and requested relief are as follows: 14. Netterville desires that the property be released from the WRP and either placed into the Conservation Reserve Program to serve the purpose of freeing the land from restrictions which Mr. Davis was not authorized to place on the land, or to compensate Netterville for the cost of clearing the land to return to farmable condition. 22. Despite being placed on notice via undersigned counsel that the USDA had improperly and illegally acquired the Warranty Easement Deed over the portion of the property owned by Mrs. Netterville, the USDA has failed to release the subject property from the Warranty Easement Deed. 23. The USDA’s refusal to remove the improper encumbrance from the subject property, despite having absolute documentary proof that Mr. Davis did not have title to the subject portion at the time of the sale, has caused and will continue to cause Mrs. Netterville to suffer lost income and diminished value of the subject property. The USDA is additionally liable to Netterville for the cost to clear the Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 15 of 30 PageID #: 251 9 unauthorized trees and return the land to farmable condition. 24. Accordingly, pursuant to article 2315 of the Louisiana Civil Code, the USDA is liable to Netterville for all damages which flow from their continued refusal to remove the subject property from the improper encumbrance. Id. These allegations do not fall within the FTCA’s waiver of immunity for two reasons. First, Plaintiff’s claims do not invoke a state law tort claim, which is a prerequisite of the FTCA’s waiver of sovereign immunity. Second, these allegations do not sound in tort, but are an indirect challenge to the United States’ title to the property. The Supreme Court has prohibited circumventing the QTA in title dispute cases, particularly when done to avoid the statute of limitations. 5 1. Plaintiff’s Complaint fails to identify a state law tort claim, which is a prerequisite of the FTCA’s waiver of sovereign immunity. Title 28 U.S.C. § 1346(b) of the FTCA provides the parameters of the FTCA’s waiver of sovereign immunity. It states: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (emphasis added). The FTCA only provides a waiver of sovereign immunity if a private person could be liable under the law of the place where the alleged act occurred. Moreover, the “‘law of the place where the act or omission occurred’ refers exclusively to state law.” In re FEMA Trailer Litigation, 668 F.3d 281, 287 (5th Cir. 2012) (citing Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981)). 5 There are additional reasons that Plaintiff cannot pursue an FTCA claim against the United States, such as the FTCA’s discretionary function exception and statute of limitations. However, those inquiries are more fact intensive, and likely superfluous given the bases for dismissal raised in this Motion. Defendant reserves the right to raise additional defenses should the Court find a plausible FTCA claim exists. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 16 of 30 PageID #: 252 10 Thus, to proceed under the FTCA’s waiver of immunity, Plaintiff must identify a statutory, regulatory or other duty under Louisiana law comparable to the allegations in her Complaint.6 The only state law cited by Plaintiff in the Complaint is Louisiana Civil Code art. 2315, which provides, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (See Doc. 1, ¶ 24). This statute does not set forth a viable cause of action on its own. Louisiana employs a duty-risk analysis to determine whether to impose liability under Article 2315. Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627 (La. 2006) (“The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under LSA-C.C. art. 2315.”). The analysis includes five elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Id. Article 2315 does not by itself supply a duty under Louisiana law to proceed under the FTCA. Plaintiff must provide an underlying statutory or other duty, as well as assert facts showing breach and causation, to make a colorable claim under Article 2315. 6 The FTCA also permits plaintiffs to sue for violations of a federal statute or regulation, but only if Louisiana tort law imposes a comparable duty. St. Tammany Parish v. FEMA, 556 F.3d 307, 316 (5th Cir. 2009); Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (explaining that the FTCA only gives rise to liability if a private entity would owe a duty under state law in a nonfederal context, because the “FTCA was not intended to redress breaches of federal statutory duties.” (quoting Sellfors v. United States, 697 F.2d 1362, 1365 (11th Cir. 1983))); see also, e.g., Freeman v. United States, 556 F.3d 326 (5th Cir. 2009); United States v. Smith, 324 F.2d 622 (5th Cir. 1963). In this case, Plaintiff has identified neither a federal or state regulatory or statutory duty. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 17 of 30 PageID #: 253 11 In this case, Plaintiff essentially claims that a mere allegation against another’s title to real property triggers an automatic duty to release all rights to the property. Defendant can find no duty under Louisiana law which gives rise to such a claim.7 Because Plaintiff’s Complaint fails to set forth any actionable duty under Louisiana tort law, she cannot proceed under the FTCA’s waiver of sovereign immunity. 2. A Quiet Title Action is the exclusive remedy to challenge the United States’ title to real property. Even assuming Plaintiff could identify a state law duty to serve as the basis of her FTCA claim, the Quiet Title Act is nonetheless her exclusive remedy. Title 28 U.S.C. § 2409a of the QTA provides a waiver of the United States’ sovereign immunity for civil suits involving the United States’ title to land. Block v. North Dakota, 461 U.S. 273, 280 (1983); Bank One Texas v. United States, 157 F.3d 397, 402 (5th Cir. 1998). The waiver extends to all claims against the United States to “adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. § 2409a(a). Easements are included in the real property rights adjudicated in a quiet title action. School Bd. of Avoyelles Parish v. U.S. Dep’t of Interior, 647 F.3d 570, 580 (5th Cir. 2011) (citing Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978)). In Block v. North Dakota, the Supreme Court stated, “Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States’ title to real property.” 461 U.S. at 286. The QTA forecloses any other claims against the United States arising out of a title dispute. Id. In Block, North Dakota filed suit in federal district court against federal officials over ownership of portions of a state riverbed. Because a QTA action was likely barred by the statute 7 The closest cause of action Defendant can surmise is tortious conversion. See Dual Drilling Co. v. Mills Equipment Investments, Inc., 721 So.2d 853, 856-57 (La. 1998). However, a conversion claim applies to movables only, not to real property. Id. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 18 of 30 PageID #: 254 12 of limitations, North Dakota argued that it could assert claims against federal officers individually, apart from the QTA. The Supreme Court rejected that theory, finding: If North Dakota’s position were correct, all of the carefully-crafted provisions of the QTA deemed necessary for the protection of the national public interest could be averted. “It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.” Id. at 284-285 (quoting Brown v. Gen’l Servs. Admin., 425 U.S. 820, 833 (1976)). In this case, the substance of Plaintiff’s Complaint challenges the United States’ title to real property. Although Plaintiff asserts an FTCA claim regarding the USDA’s refusal to terminate/transfer the easement, the gravamen of that claim is the validity of the easement itself. The Supreme Court in Block prohibited claimants from using other waivers of immunity as backdoor challenges to the United States’ title to property. 461 U.S. at 284-286. Congress intended a specific statutory remedy for title disputes with the Federal Government, and it cannot be “circumvented by artful pleading.” Id. For example, in Crooks v. Placid Oil Co., 166 F.Supp.2d 1104 (W.D. La. 2001), the plaintiff-landowners asserted that the United States’ title to a mineral reservation on their property was null and void. They did not seek a remedy under the QTA, but instead sought reimbursement for the minerals extracted from the property by the government. The Court rejected the plaintiffs’ approach: The plaintiffs have artfully attempted to avoid an action under the QTA by couching this action as “personal” rather than “real” in nature. Regardless of how the plaintiffs characterize their interests in the minerals, they are attempting to collect an accounting from the defendants based on an assertion of ownership of certain mineral rights. . . . This court concludes, then, that the plaintiffs’ action does fall within the ambit of the QTA, thereby triggering a jurisdictional question for this court to determine. Id. at 1107. Akin to Crooks, the Plaintiff herein attempts to couch her claims as personal rather Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 19 of 30 PageID #: 255 13 than real. However, Plaintiff’s assertion of ownership over property belonging to the United States falls exclusively within the QTA. Similarly, in LaFargue v. United States, 4 F.Supp.2d 580 (E.D. La. 1998), landowners granted easements to the Government for a pipeline pursuant to the Strategic Petroleum Reserve Program. The government subsequently sold those easements to a private company. The landowners brought suit under the QTA and under 28 U.S.C. § 1346(a)(2) pursuant to the Takings Clause, seeking declaration as to ownership, an injunction, and damages. In dismissing all but the QTA claim, the Court concluded, “[T]his Court will not permit the plaintiffs to avoid the ‘carefully crafted limitations of the Quiet Title Act by characterizing [their] suit as a claim’ under the Takings Clause.” Id. at 588 (quoting Mottaz, 476 U.S. at 844). Before this Court could consider whether the USDA acted improperly, it would first need to determine who has valid title to the easement. Reviewing the validity of the United States’ ownership of property falls outside the scope of the FTCA’s waiver of immunity, and would circumvent Congress’ mandate that all title disputes with the United States be remedied through a QTA action. Moreover, Plaintiff is prohibited from bringing a title dispute under the guise of an alternative statutory waiver of immunity in order to avoid the QTA’s strict statute of limitations. Block, 461 U.S. at 284-286. C. Plaintiff’s Quiet Title Act claim is barred by the statute of limitations. Plaintiff’s exclusive remedy under the QTA is subject to a 12-year statute of limitations. The QTA claim accrued in 1997, when the WRP easement was conveyed and the Warranty Easement Deed recorded. Therefore, Plaintiff’s 2015 lawsuit is time-barred. Section 2409a(g) of the QTA states, “Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued.” This limitations period is a prerequisite of the United States’ waiver of Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 20 of 30 PageID #: 256 14 sovereign immunity. Block, 461 U.S. at 287; Bank One Texas, 157 F.3d at 402. It is jurisdictional, and cannot be waived or tolled. United States v. Beggerly, 524 U.S. 38, 48 (1998). The court is to strictly construe the Quiet Title Act’s statute of limitations. Id.; Block, 461 U.S. at 287. Its purpose is to foreclose “stale challenges to the United States’ claim[s] to real property, whatever the merits of those challenges.” Mottaz, 476 U.S. at 851. 1. Legal analysis defining accrual of the QTA’s statute of limitations. Plaintiff’s QTA claim accrued well over 12 years ago. Section 2409a(g) defines accrual of a QTA claim: “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.” For purposes of this lawsuit, two elements of accrual are key. First, accrual is triggered when “plaintiff or his predecessor in interest” had knowledge. Second, the knowledge requirement is “knew or should have known of the claim of the United States.” Id. Courts, including the Fifth Circuit, apply a reasonableness test to determine whether plaintiff or her predecessor in interest “should have known” about the government’s claim to the property. Bank One Texas, 157 F.3d at 402, fn 11 (citing Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980)). “Knowledge of the claim’s full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff’s.” Knapp, 636 F.2d at 283. In determining whether a plaintiff or predecessor in interest reasonably should have known of the Government’s claim, the Fifth Circuit looks to whether he or she had actual or constructive notice pursuant to local recording statutes. Calhoun County, Texas v. United States, 132 F.3d 1100, 1103-04 (5th Cir. 1998) (finding the recording of an easement and memorandum of agreement sufficient to constitute actual and constructive notice of the United States’ claims and trigger Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 21 of 30 PageID #: 257 15 accrual of the statute of limitations) (citing California v. Yuba Goldfields, Inc., 752 F.2d 393, 396 (9th Cir. 1985); Lee v. United States, 629 F.Supp. 721 (D. Alaska 1985)); see also Lasyone v. United States, 30 F.3d 1490, No. 93-5355 (5th Cir. 1994) (holding that the government need only show plaintiff or his predecessor in interest had actual or constructive notice of the United States’ claim to the property more than twelve years prior to the commencement of an action to quiet title). It would not be feasible for the United States to personally notify every potential heir or successor each time it obtains ownership of land. Thus, complying with the local notification statutes by recording the legal instrument has been deemed sufficient notice to trigger the QTA’s statute of limitations. Other circuits follow the same standard in order to avoid stale challenges to the Government’s ownership of property. In interpreting the “should have known” language of § 2409a(f), the Tenth Circuit stated, “[A]s a matter of federal law, we believe that a party ‘should have known’ of a claim of the United States at the time he was clearly and properly imputed with constructive notice of that claim under local recording statutes.” Amoco Production Co. v. United States, 619 F.2d 1383, 1287-88 (10th Cir. 1980); see also Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 737 (8th Cir. 2001) (“This [knew or should have known] standard does not require the government to provide explicit notice of its claim.”). Additionally, for purposes of accrual, the Court need only find that either the Plaintiff or her predecessor in interest should have known of the Government’s claim to the property. Assuming the facts in Plaintiff’s Complaint to be true, Plaintiff’s predecessors in interest to the property were James W. Davis and ABTC (the Trustee). According to Plaintiff’s Complaint, James W. Davis owned at least part of the easement property that he conveyed, and the Trustee owned the other part. (See Doc. 1; see also Act of Partition, Ex. 3). The Court does not need to resolve who owned what portions of the land at this Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 22 of 30 PageID #: 258 16 time; that inquiry goes to the merits of Plaintiff’s claims. For purposes of this Motion, James W. Davis, Plaintiff, and ABTC had the requisite degree of knowledge of the WRP easement in 1997. Knowledge by any one of these parties triggers accrual of the QTA’s statute of limitations. 2. James W. Davis, Plaintiff’s predecessor in interest, had actual knowledge of the United States’ claim to the property in 1997. James W. Davis had actual knowledge of the United States interest in the property in 1997 when he personally conveyed the interest to the United States. (Ex. 2). He received $422,300 from the United States in exchange for title and perpetual rights to 670.3 acres of land. Id. He acknowledged his intent to convey the land in question before a notary and two witnesses. Id. Plaintiff’s Complaint acknowledges that James W. Davis owned at least part of the easement property conveyed to the Government. (See Doc. 1, ¶ 6). Thus, pursuant to Plaintiff’s own Complaint, one of the predecessors in interest to the property at issue undeniably knew about the Government’s interest in the land in 1997 when he conveyed the easement and recorded the Deed. James W. Davis’ knowledge alone is sufficient to trigger accrual of the statute of limitations in 1997, thus barring Plaintiff’s QTA claim. 3. Plaintiff should have known about the United States’ claim to the property in 1997. In addition to her father’s actual knowledge, Plaintiff should have known about the United States’ claim to the property in 1997. Plaintiff asserts in her Complaint that her claims accrued in September 2014, when her husband presented to the NRCS office to inquire about placing the land in another government program. (Doc. 1, ¶ 10-12). However, when Plaintiff personally discovered the WRP easement does not govern accrual. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 23 of 30 PageID #: 259 17 Louisiana’s public records doctrine dictates when Plaintiff was placed on constructive notice of the United States’ interest in the property.8 According to the Louisiana public records doctrine, codified at Louisiana Civil Code article 3338, et seq., “third persons need only to look to the public records to determine adverse claims.” Voelkel v. Harrison, 572 So.2d 724 (La. App. 4th Cir. 1990), writ denied, 575 So.2d 391 (La. 1991) (citing McDuffie v. Walker, 51 So. 100 (La. 1909); Carr v. Oaktree Apartments, 46 So.3d 793 (La. App. 2d Cir. 2010), writ denied, 49 So.3d 896). Moreover, “All persons are held to have constructive notice of the existence and contents of recorded instruments affecting immovable property.” Voelkel, 572 So.2d at 727 (citing Thomas v. Lewis, 475 So.2d 52 (La. App. 2nd Cir. 1985); Wells v. Joseph, 101 So. 2d 667 (La. 1958)). Thus, under Louisiana law, Plaintiff was deemed to have knowledge of the United States’ adverse claims to the property when the Warranty Easement Deed was recorded in 1997. In addition to recording the Deed, circumstances surrounding the WRP easement further support Plaintiff’s reasonable awareness of the Government’s interest in the property in 1997 or shortly thereafter. Plaintiff was the adult child of James W. Davis when he conveyed the easement to the United States. Her father received over $400,000 from the United States for the conveyance. She was a beneficiary of her grandmother’s Trust dating back to 1966, and was presumably her father’s heir to both his interest in the property and any remaining money he received for the easement. The property at issue had been in her family for decades, and upon information and belief, Plaintiff’s father lived in a home on the property. 8 Courts generally interpret the QTA using principles of federal law; however, specific to the interpretation of statutory language, including what constitutes constructive notice, courts look to state law for guidance. See Calhoun County, Texas, 132 F.3d at 1103-04; Lasyone, 30 F.3d 1490; see also D. C. Transit System, Inc. v. United States, 531 F.Supp. 808, 812 (D.C. Cir. 1982); Vincent Murphy Chevrolet Co. v. United States, 766 F.2d 449, 451 (10th Cir. 1985); Amoco, 619 F.2d at 1387-88. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 24 of 30 PageID #: 260 18 Once the easement was conveyed, the Government undertook restoration efforts on the property. (See Restoration Records, attached hereto as Exhibit 5). The NRCS, through a contractor, planted trees on all tracts of land that made up the easement area. Id. NRCS corresponded with Mr. Davis regarding the easement in 2000 and 2001. (USDA Letters, attached as Exhibit 6). Mr. Davis was well-aware of the easement and the work being done on his property, and Plaintiff reasonably should have been aware as well. Sufficient knowledge to trigger accrual has been found under similar circumstances. In Calhoun County, Texas v. United States, 132 F.3d 1100, 1103-04 (5th Cir. 1998), the U.S. Fish and Wildlife Service entered into a Memorandum of Agreement (MOA) with the state of Texas to manage land on Matagorda Island in 1982. Calhoun County was not a party to the MOA. The MOA included conservation easements that limited vehicular access to the Island. Texas and the United States recorded the conservation easements in accordance with state law. Several years later, Calhoun County sued the United States, claiming it owned rights to portions of Matagorda Island. The Court dismissed the County’s claim on statute of limitations grounds, holding, “The district court properly found that Calhoun County had actual and constructive notice of the United States’ claim to the land on Matagorda Island by virtue of the 1982 MOA and the recording of the conservation easements with the Calhoun County Clerk’s Office, thus beginning the limitations period more than twelve years before commencement of suit.” Id. Calhoun County had never been directly notified by the Government of the easements, but knowledge was imputed through properly recording the title instruments. Id. Similarly, in Lasyone v. United States, 30 F.3d 1490, No. 93-5355 (5th Cir. 1994) (per curiam), Plaintiff brought an action against the United States to quiet title to 160 acres of land in the Kisatchie National Forest in Grant Parish, Louisiana. Plaintiff alleged he inherited the land Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 25 of 30 PageID #: 261 19 from his grandfather. The United States had a warranty deed recording the conveyance of the property to the United States in 1930 and a condemnation judgment in 1937, both of which were recorded in the conveyance records of Grant Parish. The Government sought dismissal pursuant to the 12-year statute of limitations in the QTA. The Fifth Circuit agreed with the Western District of Louisiana’s finding that Plaintiff or his predecessor in interest had or should have had notice of the government’s claim at the latest in 1937. The Court rejected Plaintiff’s argument that he was never actually notified of the Government’s interest or the condemnation proceedings. Id. Because the Warranty Easement Deed was properly recorded in Tensas Parish, Plaintiff had constructive notice under Louisiana law of the United States’ claim to the property. Moreover, Plaintiff’s father received a considerable sum of money from the United States for the easement during Plaintiff’s adult lifetime, and the Government undertook preservation efforts on the land. Plaintiff reasonably should have been aware of the United States’ claim to the property in 1997. 4. The Trustee should have known about the United States’ claim to the property in 1997. Plaintiff alleges that the Trust owned some of the easement property in 1997, making the Trustee ABTC a predecessor in interest. Although not necessary in light of Plaintiff and her father’s knowledge, even the Trustee should have known about the Government’s interest in the land in 1997. Like Plaintiff, the Trustee had constructive notice of the WRP easement in 1997 from the recording of the Warranty Easement Deed. See supra Part III(B)(3). The Trustee’s management obligations further suggest reasonable awareness of the United States’ interest in the property in 1997, or shortly thereafter. Under Louisiana law, trustees have duties regarding management of trust assets. Trustees are responsible for conducting yearly accountings and reporting to the beneficiary. See La. Rev. Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 26 of 30 PageID #: 262 20 Stat. § 9:2088(B). ABTC had been serving as Trustee since 1966, and participated in the partition of the land in 1987 with James W. Davis. (Ex. 3). From 1997 to 2000, after the WRP easement was conveyed, the Trustee would have been providing an accounting to Jimmie H. Davis, the beneficiary at the time. In 2000, Jimmie H. Davis passed away and James W. Davis became the income beneficiary. Between the reporting and the transition to a new income beneficiary, the Trustee should have known that the United States claimed an interest in the property at issue. The Fifth Circuits’ analysis in Bank One Texas is instructive. In Bank One Texas, Plaintiffs’ grandmother owned mineral rights that she had inherited from her husband. Her Will placed the remainder of her estate, including the mineral rights, in a Trust, with her two children as life beneficiaries and her grandchildren as remainder beneficiaries. Her Will designated National Fort Worth Bank (NFWB) as the Trustee. Id. at 400. In 1949, the Government instituted a condemnation action, which encompassed the property on which the mineral interests were held. Id. The Government followed the rules related to notice for such action. The Trustee did not respond with any affirmation that it received actual notice. In 1996, the beneficiaries brought a QTA action. The Fifth Circuit held that the QTA action accrued in 1955, when the Government followed the applicable notice requirements, because that placed the Trustee on notice of the United States’ rights to the property, despite no actual knowledge by the Trustee. See id. at 403. Similar to the Trustee in Bank One Texas, ABTC had constructive notice of the Government’s WRP easement when the USDA and James W. Davis recorded the Warranty Easement Deed in accordance with Louisiana law. The Government followed the applicable notice requirements, which trigger accrual of the QTA’s statute of limitations. In addition, the Trustee had a longstanding duty to oversee the Trust assets, and reasonably should have been aware of the Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 27 of 30 PageID #: 263 21 conveyance of an easement to the United States. The Court need not find that Plaintiff DeCarla Netterville, James W. Davis and the Trustee all had knowledge of the United States’ claim to the property. The statute of limitations accrued when any one of them should have known of the United States’ claim. James W. Davis had actual knowledge when he conveyed the easement in 1997, thereby triggering accrual of any QTA claim. Plaintiff and the Trustee should have known of the United States’ claim to the easement property in 1997 as well, and they had constructive notice due to the recordation of the Warranty Easement Deed in the public record. Plaintiff did not file this lawsuit until 2015, well over 12 years since her claim accrued. Pursuant to § 2409a(g) of the QTA, Plaintiff’s claim is barred and must be dismissed for lack of subject matter jurisdiction. D. Plaintiff presented no other valid waiver of the United States’ sovereign immunity as a basis for jurisdiction. Plaintiff did not assert any other potential waivers of the Government’s sovereign immunity aside from the FTCA and the QTA. (See Doc. 1). The only other remedial scheme worth noting is the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). Defendant raises the Tucker Act briefly, despite its absence from Plaintiff’s Complaint, because many cases cited herein review whether title disputes fall under the QTA or the Tucker Act. Prior to the QTA, the United States was immune from suit involving title to land. However, there was a waiver of immunity for contract disputes with the United States. Thus, claimants used that remedy to dispute ownership of real property against the United States by conceding the Government’s ownership and seeking monetary damages under 28 U.S.C. §§ 1346(a)(2) and 1491 based upon a claim for unconstitutional taking of property. See, e.g., United States v. Mottaz, 476 U.S. 834, 849 (1986) (“Rather than seeking a declaration that they owned the property at issue, such claimants would concede that the Government possessed title and then would seek Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 28 of 30 PageID #: 264 22 compensation for the Government’s having taken the property from them.”); LaFargue, 4 F.Supp.2d at 586. This gap in remedies led to the passage of the QTA. Id. The Tucker Act does not fit the rights and remedies asserted in Plaintiff’s Complaint. Plaintiff maintains her assertion of ownership over the property at issue, which takes her outside the scope of the Tucker Act. Id. Even if Plaintiff opted to present facts consistent with the Tucker Act, her claim exceeds $10,000, thus removing it from the jurisdiction of this Court. The U.S. Court of Federal Claims has exclusive jurisdiction over Tucker Act claims in excess of $10,000. 28 U.S.C. §§ 1346(a)(2) and 1491; United States v. Mitchell, 463 U.S. 206 (1983). Therefore, Plaintiff has presented no valid statutory waiver of the United States’ sovereign immunity to provide jurisdiction in this Court. IV. CONCLUSION Plaintiff has not met her burden to establish this Court’s jurisdiction over her claims against the United States. Her exclusive remedy to challenge the United States’ title to the WRP easement is a QTA claim, which is barred by the statute of limitations. Plaintiff cannot avoid the untimeliness of her QTA claim by indirectly challenging the Government’s title through an FTCA claim. Because Plaintiff has presented no basis for federal jurisdiction, dismissal pursuant to Fed. R. Civ. P. 12(b)(1) is warranted. Respectfully submitted, ALEXANDER C. VAN HOOK ACTING UNITED STATES ATTORNEY By: s/Katherine W. Vincent KATHERINE W. VINCENT (#18717) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501 (337) 262-6618 // Fax: (337) 262-6693 katherine.vincent@usdoj.gov Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 29 of 30 PageID #: 265 23 and /s/ Andolyn R. Johnson ANDOLYN R. JOHNSON #ky95189 Assistant United States Attorney 300 Fannin Street, Suite 3201 Shreveport, Louisiana 71101-3068 (318) 676-3610 // Fax: (318) 676-3642 andolyn.johnson@usdoj.gov and /s/ John T. Balhoff, II f JAMES M. GARNER #19589 JOHN T. BALHOFF, II #24288 RYAN O. LUMINAIS #30605 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 jgarner@shergarner.com jbalhoff@shergarner.com rluminais@shergarner.com Case 3:15-cv-01832-EEF-KLH Document 50-1 Filed 04/14/17 Page 30 of 30 PageID #: 266 Page 2128TITLE 16—CONSERVATION§ 3837 planting of hardwood trees, windbreaks, shelterbelts, or wildlife corridors, if the original term of the contract was less than 15 years, the owner or operator may extend the contract to a term of not to exceed 15 years. (B) Cost share assistance The Secretary shall pay 50 percent of the cost of establishing conservation measures and practices authorized under this sub- section for which the Secretary determines the cost sharing is appropriate and in the public interest. (b) Conversion to wetland The Secretary shall permit an owner or opera- tor that has entered into a contract under this subpart that is in effect on November 28, 1990, to restore areas of highly erodible cropland that are devoted to vegetative cover under the con- tract to wetland if— (1) the areas are prior converted wetland; (2) the owner or operator of the areas enters into an agreement to provide the Secretary with a long-term or permanent easement under subpart C covering the areas; (3) there is a high probability that the prior converted area can be successfully restored to wetland status; and (4) the restoration of the areas otherwise meets the requirements of subpart C. (c) Limitation The Secretary shall not incur, through a con- version under this section, any additional ex- pense on the acres, including the expense in- volved in the original establishment of the vege- tative cover, that would result in cost share for costs under this section in excess of the costs that would have been subject to cost share for the new practice had that practice been the original practice. (d) Condition of contract An owner or operator shall as a condition of entering into a contract under subsection (a) of this section participate in the Forest Steward- ship Program established under section 2103a of this title. (Pub. L. 99–198, title XII, § 1235A, as added Pub. L. 107–171, title II, § 2101(a), May 13, 2002, 116 Stat. 251.) PRIOR PROVISIONS Prior sections 3835a and 3836 were omitted in the gen- eral amendment of this subpart by Pub. L. 107–171. Section 3835a, Pub. L. 99–198, title XII, § 1235A, as added Pub. L. 101–624, title XIV, § 1435, Nov. 28, 1990, 104 Stat. 3582; amended Pub. L. 102–324, § 1(b), July 22, 1992, 106 Stat. 447, related to conversion of land subject to contract to other conserving uses. Section 3836, Pub. L. 99–198, title XII, § 1236, Dec. 23, 1985, 99 Stat. 1514; Pub. L. 101–624, title XIV, §§ 1436, 1447(a), Nov. 28, 1990, 104 Stat. 3583, 3605; Pub. L. 107–76, title VII, § 759(b)(1), Nov. 28, 2001, 115 Stat. 741, related to cropland base and allotment history. A prior section 3836a, Pub. L. 104–127, title III, § 387, Apr. 4, 1996, 110 Stat. 1020, related to Wildlife Habitat Incentive Program, prior to repeal by Pub. L. 107–171, title II, § 2502(b), May 13, 2002, 116 Stat. 267. See section 3839bb–1 of this title. SUBPART C—WETLANDS RESERVE PROGRAM § 3837. Wetlands reserve program (a) Establishment The Secretary shall establish a wetlands re- serve program to assist owners of eligible lands in restoring and protecting wetlands. (b) Enrollment conditions (1) Maximum enrollment The total number of acres enrolled in the wetlands reserve program shall not exceed 2,275,000 acres, of which, to the maximum ex- tent practicable, the Secretary shall enroll 250,000 acres in each calendar year. (2) Methods of enrollment The Secretary shall enroll acreage into the wetlands reserve program through the use of permanent easements, 30-year easements, res- toration cost share agreements, or any combi- nation of those options. (c) Eligibility For purposes of enrolling land in the wetland reserve established under this subpart during the 1991 through 2007 calendar years, land shall be eligible to be placed into such reserve if the Secretary, in consultation with the Secretary of the Interior at the local level, determines that— (1) such land maximizes wildlife benefits and wetland values and functions; (2) such land is farmed wetland or converted wetland, together with adjacent lands that are functionally dependent on such wetlands, ex- cept that converted wetlands where the con- version was not commenced prior to December 23, 1985, shall not be eligible to be enrolled in the program under this section; and (3) the likelihood of the successful restora- tion of such land and the resultant wetland values merit inclusion of such land in the pro- gram taking into consideration the cost of such restoration. (d) Other eligible land The Secretary may include in the wetland re- serve established under this subpart, together with land that is eligible under subsection (c) of this section, land that maximizes wildlife bene- fits and that is— (1) farmed wetland and adjoining lands, en- rolled in the conservation reserve, with the highest wetland functions and values, and that are likely to return to production after they leave the conservation reserve; (2) other wetland of an owner that would not otherwise be eligible if the Secretary deter- mines that the inclusion of such wetland in such easement would significantly add to the functional value of the easement; or (3) riparian areas that link wetlands that are protected by easements or some other device or circumstance that achieves the same pur- pose as an easement. (e) Ineligible land The Secretary may not acquire easements on— (1) land that contains timber stands estab- lished under the conservation reserve under subpart B; or Case 3:15-cv-01832-EEF-KLH Document 50-2 Filed 04/14/17 Page 1 of 5 PageID #: 267 Page 2129 TITLE 16—CONSERVATION § 3837a (2) pasture land established to trees under the conservation reserve under subpart B. (f) Termination of existing contract The Secretary may terminate or modify an ex- isting contract entered into under section 3831(a) of this title if eligible land that is subject to such contract is transferred into the program established by this subpart. (Pub. L. 99–198, title XII, § 1237, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3584; amended Pub. L. 102–237, title II, § 204(6), Dec. 13, 1991, 105 Stat. 1855; Pub. L. 103–66, title I, § 1402(c), Aug. 10, 1993, 107 Stat. 333; Pub. L. 104–127, title III, § 333(a)–(c), Apr. 4, 1996, 110 Stat. 995; Pub. L. 105–277, div. A, § 101(a) [title VII, § 752], Oct. 21, 1998, 112 Stat. 2681, 2681–32; Pub. L. 107–171, title II, §§ 2201, 2202, May 13, 2002, 116 Stat. 252.) AMENDMENTS 2002—Subsec. (b). Pub. L. 107–171, § 2202(1), added sub- sec. (b) and struck out heading and text of former sub- sec. (b). Text read as follows: ‘‘(1) MAXIMUM ENROLLMENT.—The total number of acres enrolled in the wetlands reserve program shall not exceed 975,000 acres. ‘‘(2) METHODS OF ENROLLMENT.— ‘‘(A) IN GENERAL.—Subject to subparagraph (B), ef- fective beginning October 1, 1996, to the maximum ex- tent practicable, the Secretary shall enroll into the wetlands reserve program— ‘‘(i) 1⁄3 of the acres through the use of permanent easements; ‘‘(ii) 1⁄3 of the acres through the use of 30-year easements; and ‘‘(iii) 1⁄3 of the acres through the use of restora- tion cost-share agreements. ‘‘(B) TEMPORARY EASEMENTS.—Effective beginning October 1, 1996, the Secretary shall not enroll acres in the wetlands reserve program through the use of new permanent easements until the Secretary has en- rolled at least 75,000 acres in the program through the use of temporary easements. ‘‘(C) For purposes of subparagraph (A), to the maxi- mum extent practicable should be interpreted to mean that acceptance of wetlands reserve program bids may be in proportion to landowner interest ex- pressed in program options.’’ Subsec. (c). Pub. L. 107–171, § 2201, substituted ‘‘2007’’ for ‘‘2002’’ in introductory provisions. Subsec. (g). Pub. L. 107–171, § 2202(2), struck out head- ing and text of subsec. (g). Text read as follows: ‘‘The Secretary shall enroll lands in the wetland reserve through the purchase of easements as provided for in section 3837a of this title.’’ 1998—Subsec. (b)(2)(C). Pub. L. 105–277 added subpar. (C). 1996—Subsec. (b). Pub. L. 104–127, § 333(a), added sub- sec. (b) and struck out heading and text of former sub- sec. (b). Text read as follows: ‘‘The Secretary shall en- roll into the wetlands reserve program— ‘‘(1) a total of not less than 330,000 acres by the end of the 1995 calendar year; and ‘‘(2) a total of not less than 975,000 acres during the 1991 through 2000 calendar years.’’ Subsec. (c). Pub. L. 104–127, § 333(b), substituted ‘‘2002’’ for ‘‘2000’’ in introductory provisions, added par. (1), and redesignated former pars. (1) and (2) as (2) and (3), respectively. Subsec. (d). Pub. L. 104–127, § 333(c), in introductory provisions, inserted ‘‘, land that maximizes wildlife benefits and that is’’ after ‘‘subsection (c) of this sec- tion’’ and, in par. (2), substituted ‘‘or’’ for ‘‘and’’ at end. 1993—Subsec. (b). Pub. L. 103–66, § 1402(c)(1), added subsec. (b) and struck out former subsec. (b) ‘‘NUMBER OF ACRES’’ which read as follows: ‘‘To the extent prac- ticable, the Secretary shall attempt to enroll into the wetlands reserve program, 1,000,000 acres of land during the 1991 through 1995 calendar years; except that the Secretary may not enroll more than 200,000 acres in 1991, 400,000 acres in the 1991 to 1992 period, 600,000 acres in the 1991 to 1993 period, 800,000 acres in the 1991 to 1994 period, and 1,000,000 acres in the 1991 to 1995 period.’’ Subsec. (c). Pub. L. 103–66, § 1402(c)(2), substituted ‘‘2000’’ for ‘‘1995’’. 1991—Subsec. (d). Pub. L. 102–237 substituted ‘‘sub- section (c)’’ for ‘‘subsection (d)’’ in introductory provi- sions. EFFECT OF 1996 AMENDMENTS ON EXISTING AGREEMENTS Section 333(f) of Pub. L. 104–127 provided that: ‘‘The amendments made by this section [amending this sec- tion and sections 3837a and 3837c of this title] shall not affect the validity or terms of any agreements entered into by the Secretary of Agriculture under subchapter C of chapter 1 of subtitle D of title XII of the Food Se- curity Act of 1985 (16 U.S.C. 3837 et seq.) before the date of enactment of this Act [Apr. 4, 1996] or any payments required to be made in connection with the agree- ments.’’ § 3837a. Easements and agreements (a) In general To be eligible to place land into the wetland reserve under this subpart, the owner of such land shall enter into an agreement with the Sec- retary— (1) to grant an easement on such land to the Secretary; (2) to implement a wetland easement con- servation plan as provided for in this section; (3) to create and record an appropriate deed restriction in accordance with applicable State law to reflect the easement agreed to under this subpart with respect to such lands; and (4) to provide a written statement of consent to such easement signed by those holding a se- curity interest in the land. (b) Terms of easement An owner granting an easement under sub- section (a) of this section shall be required to provide for the restoration and protection of the functional values of wetland pursuant to a wet- land easement conservation plan that— (1) permits— (A) repairs, improvements, and inspections on such land that are necessary to maintain existing public drainage systems if such land is subsequently restored to the condition re- quired by the terms of the easement; and (B) landowners to control public access on the easement areas while identifying access routes to be used for wetland restoration ac- tivities and management and easement mon- itoring; (2) prohibits— (A) the alteration of wildlife habitat and other natural features of such land, unless specifically permitted by the plan; (B) the spraying of such land with chemi- cals or the mowing of such land, except where such spraying or mowing is permitted by the plan or is necessary— (i) to comply with Federal or State nox- ious weed control laws; or Case 3:15-cv-01832-EEF-KLH Document 50-2 Filed 04/14/17 Page 2 of 5 PageID #: 268 Page 2130TITLE 16—CONSERVATION§ 3837b (ii) to comply with a Federal or State emergency pest treatment program; and (C) any activities to be carried out on such participating landowner’s or successor’s land that is immediately adjacent to, and func- tionally related to, the land that is subject to the easement if such activities will alter, degrade, or otherwise diminish the func- tional value of the eligible land; and (D) the adoption of any other practice that would tend to defeat the purposes of this subpart, as determined by the Secretary; (3) provides for the efficient and effective restoration of the functional values of wet- lands; and (4) includes such additional provisions as the Secretary determines are desirable to carry out this subpart or to facilitate the practical administration thereof. (c) Restoration plans The development of a restoration plan, includ- ing any compatible use, under this section shall be made through the local Natural Resources Conservation Service representative, in con- sultation with the State technical committee. (d) Compatible uses Wetland reserve program lands may be used for compatible economic uses, including such activities as hunting and fishing, managed tim- ber harvest, or periodic haying or grazing, if such use is specifically permitted by the plan and consistent with the long-term protection and enhancement of the wetlands resources for which the easement was established. (e) Type and length of easement A conservation easement granted under this section— (1) shall be in a recordable form; and (2) shall be for 30 years, permanent, or the maximum duration allowed under applicable State laws. (f) Compensation Compensation for easements acquired by the Secretary under this subpart shall be made in cash in such amount as is agreed to and speci- fied in the easement agreement, but not to ex- ceed the fair market value of the land less the fair market value of such land encumbered by the easement. Lands may be enrolled through the submission of bids under a procedure estab- lished by the Secretary. Compensation may be provided in not less than 5, nor more than 30, an- nual payments of equal or unequal size, as agreed to by the owner and the Secretary. (g) Violation On the violation of the terms or conditions of the easement or related agreement entered into under subsection (a) of this section, the ease- ment shall remain in force and the Secretary may require the owner to refund all or part of any payments received by the owner under this subpart, together with interest thereon as deter- mined appropriate by the Secretary. (Pub. L. 99–198, title XII, § 1237A, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3585; amended Pub. L. 104–127, title III, § 333(d), Apr. 4, 1996, 110 Stat. 996; Pub. L. 107–171, title II, § 2203, May 13, 2002, 116 Stat. 252.) AMENDMENTS 2002—Subsec. (h). Pub. L. 107–171 struck out heading and text of subsec. (h). Text read as follows: ‘‘The Sec- retary may enroll land into the wetlands reserve pro- gram through an agreement that requires the land- owner to restore wetlands on the land, if the agreement does not provide the Secretary with an easement.’’ 1996—Pub. L. 104–127, § 333(d)(1), inserted ‘‘and agree- ments’’ after ‘‘Easements’’ in section catchline. Subsec. (c). Pub. L. 104–127, § 333(d)(2), added subsec. (c) and struck out heading and text of former subsec. (c). Text read as follows: ‘‘(1) PLANS.—The development of restoration plans under this section shall be made through the agree- ment of the local representative of the Soil Conserva- tion Service and a representative of the Fish and Wild- life Service. If agreement cannot be reached at the local level under the preceding sentence within a rea- sonable period of time, such plans shall be referred to the State Conservationist, who in developing such plans under this paragraph, shall consult with the Fish and Wildlife Service. ‘‘(2) REPORT.—The State Conservationist and a rep- resentative of the Fish and Wildlife Service shall report to their respective national offices concerning all plans developed under paragraph (1) at the State level as a re- sult of an agreement not being reached at the local level.’’ Subsec. (f). Pub. L. 104–127, § 333(d)(3), substituted ‘‘Compensation may be provided in not less than 5, nor more than 30, annual payments of equal or unequal size, as agreed to by the owner and the Secretary.’’ for ‘‘Compensation may be provided in not less than 5 nor more than 20 annual payments of either equal or un- equal size, except in the case of a permanent easement, a single lump-sum payment may be provided, as agreed on by the owner and the Secretary.’’ Subsec. (h). Pub. L. 104–127, § 333(d)(4), added subsec. (h). EFFECT OF 1996 AMENDMENTS ON EXISTING AGREEMENTS Amendments made by section 333 of Pub. L. 104–127 not to affect validity or terms of agreements entered into by Secretary of Agriculture under this subpart be- fore Apr. 4, 1996, or payments required to be made in connection with such agreements, see section 333(f) of Pub. L. 104–127, set out as a note under section 3837 of this title. § 3837b. Duties of owners Under the terms of an agreement entered into under this subpart, an owner and operator of the land that is subject to an easement under this subpart shall agree to comply with the terms of the easement and related agreements and shall agree to the permanent retirement of any exist- ing cropland base and allotment history for such land under any program administered by the Secretary. (Pub. L. 99–198, title XII, § 1237B, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3587.) § 3837c. Duties of Secretary (a) In general In return for the granting of an easement by an owner under this subpart, the Secretary shall— (1) share the cost of carrying out the estab- lishment of conservation measures and prac- tices, and the protection of the wetland func- Case 3:15-cv-01832-EEF-KLH Document 50-2 Filed 04/14/17 Page 3 of 5 PageID #: 269 Page 2131 TITLE 16—CONSERVATION § 3837d 1 See References in Text note below. tions and values, as set forth in the plan to the extent that the Secretary determines that cost sharing is appropriate and in the public interest; and (2) provide necessary technical assistance to assist owners in complying with the terms and conditions of the easement and the plan. (b) Cost-share and technical assistance (1) Easements Effective beginning October 1, 1996, in mak- ing cost-share payments under subsection (a)(1) of this section, the Secretary shall— (A) in the case of a permanent easement, pay the owner an amount that is not less than 75 percent, but not more than 100 per- cent, of the eligible costs; and (B) in the case of a 30-year easement, pay the owner an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs. (2) Restoration cost-share agreements In making cost-share payments in connec- tion with a restoration cost-share agreement entered into under section 3837a(h) 1 of this title, the Secretary shall pay the owner an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs. (3) Technical assistance The Secretary shall provide owners with technical assistance to assist owners in com- plying with the terms of easements and res- toration cost-share agreements. (c) Acceptability of offers In determining the acceptability of easement offers, the Secretary may take into consider- ation— (1) the extent to which the purposes of the easement program would be achieved on the land; (2) the productivity of the land; and (3) the on-farm and off-farm environmental threats if the land is used for the production of agricultural commodities. (d) Easement priority In carrying out this subpart, to the extent practicable, taking into consideration costs and future agricultural and food needs, the Sec- retary shall give priority to obtaining perma- nent conservation easements before shorter term conservation easements and, in consulta- tion with the Secretary of the Interior, shall place priority on acquiring easements based on the value of the easement for protecting and en- hancing habitat for migratory birds and other wildlife. (Pub. L. 99–198, title XII, § 1237C, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3587; amended Pub. L. 104–127, title III, § 333(e), Apr. 4, 1996, 110 Stat. 996.) REFERENCES IN TEXT Section 3837a(h) of this title, referred to in subsec. (b)(2), was repealed by Pub. L. 107–171, title II, § 2203, May 13, 2002, 116 Stat. 252. AMENDMENTS 1996—Subsec. (b). Pub. L. 104–127 added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: ‘‘In making cost share payments under subsection (a)(1) of this section, the Secretary shall pay the owner an amount that is not less than 50 percent but not more than 75 percent of eligible costs with re- spect to an easement which is not permanent, and not less than 75 percent but not more than 100 percent of el- igible costs with respect to a permanent easement.’’ EFFECT OF 1996 AMENDMENTS ON EXISTING AGREEMENTS Amendments made by section 333 of Pub. L. 104–127 not to affect validity or terms of agreements entered into by Secretary of Agriculture under this subpart be- fore Apr. 4, 1996, or payments required to be made in connection with such agreements, see section 333(f) of Pub. L. 104–127, set out as a note under section 3837 of this title. § 3837d. Payments (a) Time of payment The Secretary shall provide payment for obli- gations incurred by the Secretary under this subpart— (1) with respect to any cost sharing obliga- tion as soon as possible after the obligation is incurred; and (2) with respect to any annual easement pay- ment obligation incurred by the Secretary as soon as possible after October 1 of each cal- endar year. (b) Payments to others If an owner who is entitled to a payment under this subpart dies, becomes incompetent, is otherwise unable to receive such payment, or is succeeded by another person who renders or completes the required performance, the Sec- retary shall make such payment, in accordance with regulations prescribed by the Secretary and without regard to any other provision of law, in such manner as the Secretary deter- mines is fair and reasonable in light of all of the circumstances. (c) Payment limitation (1) In general The total amount of easement payments made to a person under this subpart for any year may not exceed $50,000, except such limi- tation shall not apply with respect to pay- ments for perpetual or 30-year easements. (2) Regulations The Secretary shall issue regulations pre- scribing such rules as the Secretary deter- mines necessary to ensure a fair and reason- able application of the limitation contained in this subsection. (3) Other payments Easement payments received by an owner shall be in addition to, and not affect, the total amount of payments that such owner is otherwise eligible to receive under this Act, the Food, Agriculture, Conservation, and Trade Act of 1990, or the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.). (4) State wetland and environmental enhance- ment The provisions of this subsection that limit payments to any person, and section 1305(d) of the Agricultural Reconciliation Act of 1987 (7 Case 3:15-cv-01832-EEF-KLH Document 50-2 Filed 04/14/17 Page 4 of 5 PageID #: 270 Page 2132TITLE 16—CONSERVATION§ 3837e U.S.C. 1308 note), shall not be applicable to payments received by a State, political sub- division, or agency thereof in connection with agreements entered into under a special wet- land and environmental easement enhance- ment program carried out by that entity that has been approved by the Secretary. The Sec- retary may enter into such agreements for payments to States, political subdivisions, or agencies thereof that the Secretary deter- mines will advance the purposes of this sub- part. (d) Exemption from automatic sequester Notwithstanding any other provision of law, no order issued under section 902 of title 2 shall affect any payment under this subpart. (Pub. L. 99–198, title XII, § 1237D, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3588; amended Pub. L. 105–277, div. A, § 101(a) [title VII, § 751], Oct. 21, 1998, 112 Stat. 2681, 2681–32.) REFERENCES IN TEXT This Act, referred to in subsec. (c)(3), is Pub. L. 99–198, Dec. 23, 1985, 99 Stat. 1354, as amended, known as the Food Security Act of 1985. For complete classifica- tion of this Act to the Code, see Short Title of 1985 Amendment note set out under section 1281 of Title 7, Agriculture, and Tables. The Food, Agriculture, Conservation, and Trade Act of 1990, referred to in subsec. (c)(3), is Pub. L. 101–624, Nov. 28, 1990, 104 Stat. 3359, as amended. For complete classification of this Act to the Code, see Short Title of 1990 Amendment note set out under section 1421 of Title 7 and Tables. The Agricultural Act of 1949, referred to in subsec. (c)(3), is act Oct. 31, 1949, ch. 792, 63 Stat. 1051, as amended, which is classified principally to chapter 35A (§ 1421 et seq.) of Title 7. For complete classification of this Act to the Code, see Short Title note set out under section 1421 of Title 7 and Tables. Section 1305(d) of the Agricultural Reconciliation Act of 1987, referred to in subsec. (c)(4), is section 1305(d) of Pub. L. 100–203, which is set out as a note under section 1308 of Title 7. AMENDMENTS 1998—Subsec. (c)(1). Pub. L. 105–277 inserted ‘‘or 30- year’’ after ‘‘perpetual’’. § 3837e. Changes in ownership; agreement modi- fication; termination (a) Limitations No easement shall be created under this sub- part on land that has changed ownership in the preceding 12 months unless— (1) the new ownership was acquired by will or succession as a result of the death of the previous owner; (2)(A) the ownership change occurred be- cause of foreclosure on the land; and (B) immediately before the foreclosure, the owner of the land exercises a right of redemp- tion from the mortgage holder in accordance with State law; or (3) the Secretary determines that the land was acquired under circumstances that give adequate assurances that such land was not acquired for the purposes of placing it in the program established by this subpart. (b) Modification; termination (1) Modification The Secretary may modify an easement ac- quired from, or a related agreement with, an owner under this subpart if— (A) the current owner agrees to such modi- fication; and (B) the Secretary determines that such modification is desirable— (i) to carry out this subpart; (ii) to facilitate the practical adminis- tration of this subpart; or (iii) to achieve such other goals as the Secretary determines are appropriate and consistent with this subpart. (2) Termination (A) In general The Secretary may terminate an easement created with an owner under this subpart if— (i) the current owner agrees to such ter- mination; and (ii) the Secretary determines that such termination would be in the public inter- est. (B) Notice At least 90 days before taking any action to terminate under paragraph (A) all ease- ments entered into under this subpart, the Secretary shall provide written notice of such action to the Committee on Agri- culture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate. (Pub. L. 99–198, title XII, § 1237E, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3589; amended Pub. L. 107–171, title II, § 2204, May 13, 2002, 116 Stat. 253.) AMENDMENTS 2002—Subsec. (a)(2). Pub. L. 107–171 added par. (2) and struck out former par. (2) which read as follows: ‘‘the new ownership was acquired before January 1, 1990; or’’. § 3837f. Administration and funding (a) Delegation of easement administration The Secretary may delegate any of the ease- ment management, monitoring, and enforce- ment responsibilities of the Secretary to Fed- eral or State agencies that have the appropriate authority, expertise, and resources necessary to carry out such delegated responsibilities. (b) Regulations Not later than 180 days after November 28, 1990, the Secretary shall issue such regulations as are necessary to carry out this subpart. (Pub. L. 99–198, title XII, § 1237F, as added Pub. L. 101–624, title XIV, § 1438, Nov. 28, 1990, 104 Stat. 3589.) PART II—CONSERVATION SECURITY AND FARMLAND PROTECTION SUBPART A—CONSERVATION SECURITY PROGRAM § 3838. Definitions In this subpart: Case 3:15-cv-01832-EEF-KLH Document 50-2 Filed 04/14/17 Page 5 of 5 PageID #: 271 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 1 of 7 PageID #: 272 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 2 of 7 PageID #: 273 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 3 of 7 PageID #: 274 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 4 of 7 PageID #: 275 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 5 of 7 PageID #: 276 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 6 of 7 PageID #: 277 Case 3:15-cv-01832-EEF-KLH Document 50-3 Filed 04/14/17 Page 7 of 7 PageID #: 278 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 1 of 6 PageID #: 279 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 2 of 6 PageID #: 280 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 3 of 6 PageID #: 281 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 4 of 6 PageID #: 282 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 5 of 6 PageID #: 283 Case 3:15-cv-01832-EEF-KLH Document 50-4 Filed 04/14/17 Page 6 of 6 PageID #: 284 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 1 of 9 PageID #: 285 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 2 of 9 PageID #: 286 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 3 of 9 PageID #: 287 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 4 of 9 PageID #: 288 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 5 of 9 PageID #: 289 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 6 of 9 PageID #: 290 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 7 of 9 PageID #: 291 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 8 of 9 PageID #: 292 Case 3:15-cv-01832-EEF-KLH Document 50-5 Filed 04/14/17 Page 9 of 9 PageID #: 293 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 1 of 8 PageID #: 294 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 2 of 8 PageID #: 295 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 3 of 8 PageID #: 296 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 4 of 8 PageID #: 297 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 5 of 8 PageID #: 298 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 6 of 8 PageID #: 299 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 7 of 8 PageID #: 300 Case 3:15-cv-01832-EEF-KLH Document 50-6 Filed 04/14/17 Page 8 of 8 PageID #: 301 sgaByffi, ffi Agriculture The Natural Resources conservaEon Eervlce, formerlY the Soil OorFerYation Seryioer is an Agency of the Unfied States oePartment of Agriculture Natural Resoutces Conservation Senrice rILE COPY PostOfficeEox3T6 St. Josep[ I-ouisiana 7t366 Cc: Patti Woods, Contract Specialist WRP Case File Jeffreyf-'lenlii AN EOUAL OPPORTUNITY EMPLOYER Case 3:15-cv-01832-EEF-KLH Document 50-7 Filed 04/14/17 Page 1 of 3 PageID #: 302 r ( USDA United States =: Deparunentof Nanrd ResourcesCorrsenation Sen"ice CERTIFIED MAIL _ RETURN RECEIPT REOUESTED June 25,2001 JAMES DAVIS P. O. BOX IEE NEWELLTON, LA 71357 Subjoot: Conrpatible Uses of thE Wetlands Reserve Program CWRP) Easement Land Dear Landowner(s): This letter is just to remirrd you of the need to have written authorization for any uses or activities that you may wish to conduct on your WRP easentent area. A Conrpatible Use Authorization signed by me is required before you engage in any activity not reserved under tho WRP sasemsnt deed, As you may recall, the rights reserved to you on the easeurert area include record title, quiet enjoynenf control ofpublic access, undevelopod recreational uses, and subsurfaco resouroes. Ifyou wish to conduct any other activities on the easement area, you may request, at any tinre, authorization from the Natural Resources Conservation Service (NRCS) for tlrese activities. NRCS will evaluate whether your requested activity is consistent rvith our restoration objectives of the easement. NRCS will only authorize activities that f,rfilrer the long-term protection and enhancement of the wetland functions and other natural vatues of the easen-rent area. I will notifl, you in u,riting whether such use is approved, and if applicable, any tenns urd conditions of such approval. Please be advised that only conrpatible use authorizations that l'rave been sigr:ed by the State Conservationist are valid. Compatible use auflrorizations are not transferable. New landorvners n'rust request authorizrtion for compatible use activities. While you may realize economic retums frorn an activity allowed on the easement area, you will not be assured of or guaranteod any specific level or frequency of such uso. Additionally, NRCS resoryes ttre right to modify or cancel a compatible use authorization at any time if the.NRCS detcrmines that such activitics do not further the protection and enhancement objectives of flre easement. If you are unsure whether you need a conrpatible use auihorization or if you have only previous verbal authorization or written authorization fronr someone other than the State Conservationilq please contact the NRCS district oonscrvationist in your tocal USDA Service Center. If you no longer own the subject property, please notify the local NRCS office. We look forward to working rvith you on the restoration success of our WRP easenlent 0n your land. 3737 Govemment Street AlexandriA Louisiarn 7t302 Doneld W. Gohmert State Conservationist cc: Contracting Office, NRCS, Alexandria, LA District Conservati onist, NRCS The Natural Resources Gonservation servlce, formerly the Soil Conservation Service, is an Agency ef the untted states Department of Agricutture AN EOUAL OPPOFITUNITY EMPLOYER Case 3:15-cv-01832-EEF-KLH Document 50-7 Filed 04/14/17 Page 2 of 3 PageID #: 303 ,) unlted states Dcpartmcnt ef Agrkulture ONRCS Natural Resouroes Conservation Servlce 3737 Government Street Alexandria. LA 71302 MI Dear Mr. Davis: Subject: Agreement Number: 66-7211 -6-3166 Thank you for your cooperation this past year in preserving wetlands on your lands through the conservation easement. Louisiana landowners, like yourself, aro preserving over 190,000 acres through conserryation easements. As you realize, the value of these natural wetlands increases yearly, not only for wildlife purposes, but for othei equally important reasons such as run-off collection, nutrient entrapment, and water table retention. We would like to take this opportunity to remind you of the provisions of the warranty easement deed and the applicable restrictions. Many of you are preparing for hunting season with food plots and shallow water management in mind. All activities on the easement should be in accordanse with a conservation plan or a compatible use authorization. If you lease the easement area for hunting, the lessee should be rerninded of the restrictions that apply to the gasement area. We value your participation in the easement progrem and look forward to your continued support and cooperation for this easement. Please contact the St. Joseph Field Office at (318)766-3502 if the property has been sold. If we can bo of assistance to you, ploase do not hesitate to call on us. Sincerely, &,1 /u*,* Ronald J. Marcantel Assistant State Conservationist/Programs cc: Mike Nichols. WRP|VYHIP Specialist. Alexandria SO Jeff Jenkins, District Conservationist, St. Josephfield Office The Natural Resour€es Conseryation Service provides leadenhip in a partnership effort to help people conserve, maintain. and imDrove our natural resources and environment. An Equal Opportunity Provider and Employer Case 3:15-cv-01832-EEF-KLH Document 50-7 Filed 04/14/17 Page 3 of 3 PageID #: 304
