Utah Ex Rel. Div. of Foresty, Fire & State v. United States

FILED
United States Court of Appeals
Tenth Circuit

June 4, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF UTAH, by and through its
Division of Forestry, Fire & State
Lands,

Plaintiff-Appellee,

UTAH LAKE USERS; NATIONAL
AUDOBON SOCIETY; GREAT SALT
LAKE AUDUBON, UTAH COUNCIL
OF TROUT UNLIMITED; SAM
RUSHFORTH; GLENN FOREMAN,

Plaintiffs-Intervenors-
Appellees, No. 06-4062
(D.C. No. 2:97-CV-927-DAK)
v.

UNITED STATES OF AMERICA;
DEPARTMENT OF THE INTERIOR,
BLM; UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION;
ELUID MARTINEZ, in his official
capacity as Commissioner; U.S.
ARMY CORP OF ENGINEERS;
BROOKS CARTER, in his official
capacity as Chief, Utah Regulatory
Office; RICHARD W. DAVIS; COL.
DOROTHY F. KLASSE, in her
official capacity as District Engineer;
CAROL M. LEE; CAROL J. LEE;
ALTON M. LEE; A. MAUGHN LEE;
DON F. ENSIGN; JOHN M. HAILES,
PAULINE P. HAILES; SUSAN L.
BASTIAN, DICK E. BASTIAN,
HAVERGAL GREEN, a Limited
Partnership; PHYLLIS ENSIGN;
DONNA C. JACOBSON; PHILLIP R.
GREEN; RODGER D. GRANGE;
RHONDA L. GRANGE; CHARLES
GARNER; ALMA L. EARL; ROBERT
C. BEVERLY; CAROL BEVERLY;
NATHAN B. JOHNSON; DONNA S.
JOHNSON; JOANN G. JONES;
REVA SMITH; A. DOYLE SMITH;
COLLEEN P. OHRAN; VENICE C.
GAMMON, Trustee of the Venice C.
Gammon Revocable Trust; J. RULON
GAMMON, Trustee of the J. Rulon
Gammon Revocable Trust; PAULINE
G. PUGH; FOWERS FRUIT RANCH;
MARY B. HERBERT; JAMES S.
EVANS; FLOYD H. EVANS; PEGGY
F. BISHOP; LISA DOMBROSKY;
DANIEL R. BISHOP; CAROLYN
EVERETT; ROY B. MONK, Trustee
of the Monk Family Trust;
WILLIAMSON FARMS;
KINGSBURY WILDLIFE FARMS;
THE GREAT STOCK COMPANY OF
VAST INTERNATIONAL IMPORT;
JERALD L. CROSS; LAURIE
CROSS; BETH W. CLEGG; ROBERT
H. HERBERT; GRAY LOWERY;
MAC CARTER; NANCY CARTER;
GAYLEN W. BROWN; NORMA S.
SMITH; WALDO COMPANY;
WHITE EAGLE FARMS; VALUM
AND VATAVAL; HARBOUR LINKS
ASSOCIATION; KEITH Y.
BARNEY; ISABELLE J. BARNEY;
GENEVA STEEL; STEVE BUNKER;
ALLEN C. CHRISTENSEN; WAYNE
A. CHRISTENSEN; DARREL L.

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CLEGG; DARREL LEWIS CLEGG;
ALLEN C. COX; CRANDALL
PROPERTIES; DURRANT,
WINNIFRED H. FAMILY LIMITED
PARTNERSHIP; DONALD P.
ENSIGN; SUSAN S. EVANS;
MERLENE S. EVANS, DON GREEN;
HOWARD F. HATCH; GEORGE M.
HINCKLEY; NITA J. HINCKLEY;
DANIEL MILTON HOLDAWAY;
KEITH R. HOLDWAY; JONI V.
HOLDAWAY; J L.C., a Utah Limited
Liability Company; ROBERT G.
JACOBSON; EDWARD D.
JOHNSON; WANDA L. JOHNSON;
EVAN JOHNSON; DORTHY H.
SCOTT; VERLON TERRY SCOTT;
LEONARD C. SIMPSON; SWANNY
L. SIMPSON; ERSEL O. STEELE; E.
LEON STUBBS; BONNIE J.
STUBBS; PETER S. ULUAVE;
SHERYL D. ULUAVE; DAN R.
WILLIAMS; KAREN W. WILLIAMS;
DEAN S. WILLIES; LEATRICE M.
WILLIES; CLAUDIA WRIGHT;
DAVID WRIGHT; JANET B. YOUD,
DIXIE B. FENN; BEVERLY D.
DAVIS; B. NIEL CHRISTENSEN,
Landowner; BETH HOLDWAY,
Landowner; FEDERAL DFTS.,
Federal Dfts. consists of USA,
DOI/BLM, RECLAM, Eluid Martinez,
US Army Corp of Eng(T), Dorothy F.
Klasse(T), Brooks Carter(T), and Sally
Wisely; LANDOWNER DFTS;

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 SALLY E. WISELY, Utah State
Director of the Bureau of Land
Management, DOI,

Defendants,
and

CLINGER FAMILY PARTNERSHIP,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH
(D.C. No. CIV 2:97-CV-927-DAK)

M. Dayle Jeffs, Jeffs & Jeffs, P.C., Provo, Utah, for the Defendant-Appellant
Clinger Family Partnership.

Michael S. Johnson, Assistant Utah Attorney General (J. Mark Ward, Assistant
Utah Attorney General, and Mark L. Shurtleff, Utah Attorney General, with him
on the brief), Salt Lake City, Utah, for the Plaintiff-Appellee the State of Utah by
and through its Division of Forestry, Fire, and State Lands.

W. Cullen Battle, Fabian & Clendenin, Salt Lake City, Utah, and Joro Walker,
Western Resource Advocates, Salt Lake City, Utah, for Plaintiffs-Intervenors-
Appellees National Audubon, et al.

Before HENRY, Chief Judge, and KELLY and LUCERO, Circuit Judges.

HENRY, Chief Judge.

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 The State of Utah, by and through its Division of Forestry, Fire, and State

Lands (Utah), filed this quiet title action against the United States and private

landowners pursuant to the Federal Quiet Title Act, 28 U.S.C. § 2409(a), and state

law. Utah asserted title to the lakebed of Utah Lake, a navigable body of

freshwater west of Provo that covers 150 square miles. See Utah Div. of State

Lands v. United States, 482 U.S. 193, 198 (1987). Utah based its claims upon the

equal footing doctrine, under which the State automatically acquired ownership of

the lakebed on January 4, 1896, when it entered the union. See id. at 195-96. It

asserted that it owned the land up to the lake’s ordinary high water mark at

statehood–“the level where the body of water would normally stand during high

water period, when not affected by floods and draught and free from all other

disturbing causes.” Provo City v. Jacobsen, 176 P.2d 130, 136 (Utah 1947)

(Larson, C.J., dissenting).

This appeal involves Utah’s claim against one of the private landowners: the

Clinger Family Partnership (the Clingers). The Clingers own approximately sixty-

three acres on the east side of Utah Lake, in an area known as the Powell Slough.

They trace their title to a patent issued by the United States to James Clinger in

1881.

In the early stages of this litigation, Utah and the Clingers reached an agreed

resolution of their boundary dispute: they filed a joint motion to quiet title in the

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Clingers and against Utah down to an elevation of 4,481 feet above sea level. In a

judgment entered in November 2002, the district court granted the parties’ request,

quieting title to the parcel described by the parties “and to the property lakeward

to an elevation of 4,481 [mean sea level] against all claims the State has in its

sovereign capacity or could bring as against [the Clingers] at this time.” Aplt’s

App. vol. II, at 583-84. However, Utah subsequently filed a motion under Rule

60(b) of the Federal Rules of Civil Procedure to set aside the judgment, reasoning

that state land officials had not approved the decision to agree to quieting title to

the Clingers down to the 4,481-foot elevation.

The district court granted Utah’s Rule 60(b) motion and then

entered summary judgment in favor of Utah on its claim against the Clingers. The

court concluded that the Clingers did not have title to lake-abutting land because

the United States owned parcels between the Clingers’ parcel and Utah Lake at the

time the Clingers’ predecessors first acquired the patent. Therefore, the court said,

only the United States’ un-patented lands were subject to Utah’s claim to

sovereign lakebed lands.

In this appeal, the Clingers argue that (a) Utah lacked standing to pursue its

claims against them; (b) the district court abused its discretion in vacating the

stipulated judgment in favor of the Clingers; (c) the district court erred in ruling

on the Clingers’ lack of title to the disputed property because that issue was never

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pled in the litigation; and (d) the district court also erred in interpreting the Color

of Title Act, 43 U.S.C. § 1068. We are not persuaded by these arguments, and we

therefore affirm the district court’s grant of summary judgment to Utah on its

claim against the Clingers.

I. BACKGROUND

A. The Parties’ Claims

The relevant facts are not disputed. Utah filed this action in 1997 against

the United States and an individual landowner, Richard Davis. In 1999, Utah

amended its complaint to add approximately two hundred individual landowners,

including the Clingers. In both complaints, Utah requested the district court to

determine the boundary between the lakebed of Utah Lake (which it owned as a

sovereign under the equal footing doctrine) and the adjoining properties. The

Clingers contested Utah’s claim, based on “[their] title to the property and [their]

possessory use of the same for in excess of one hundred twenty five years.” Aplt’s

App. vol. I, at 264 (Answer to Amended Complaint and Counterclaim). The

Clingers alleged that Utah had encroached on their property, and they sought a

decree quieting their title and enjoining any further encroachment.

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 In support of their positions, Utah and the Clingers advanced conflicting

accounts of the lakebed boundary in the Powell Slough. Both parties invoked

United States Geological Survey (USGS) determinations in 1856 and 1874.

In those years, the USGS established two meander lines–“the mean high-water

elevation [] segregating the land covered by navigable waters from land available

for public sale and settlement.” Utah Div. of State Lands, 482 U.S. at 205. The

first of these meander lines (established in 1856) was above the second

(established in 1874).

In the part of the Powell Slough at issue in this appeal, the 1856 meander

line ran from the northwest to the southeast through the northeast quarter of

Section 29, Township 6, South Range 2 East. The 1856 survey produced sub-40

acre parcels immediately adjacent to and eastward of the meander line. Those

parcels included lots 1 and 2, which were subsequently acquired by the Clingers.

Lots 1 and 2 did not extend below the 1856 meander line, and none of the land

west (or lakeward) of the 1856 meander line was surveyed, subdivided, or opened

for entry pursuant to the 1856 survey.

Following the 1874 survey and the identification of a lower meander line,

the USGS established Lots 3, 4, and 5 below the 1856 meander line. Those lots

appear in the 1875 United States Government Land Office Plat, and they block the

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lake frontage that lots 1 and 2 had in the 1856 plat. Lots 3, 4, and 5 have not been

patented by the federal government. 1

In its complaint and its amended complaint, Utah asserted that the upper

(1856) meander line was the best documentary evidence of the ordinary high water

mark at statehood, and that, as a result, the 1856 meander line should determine

the boundary of the lake. Under that theory, neither the United States nor the

private landowner defendants would have any right to property below that line.

In response, the Clingers asserted title to lots 1 and 2 in section 29 pursuant

to a patent first issued by the United States to James Clinger on November 15,

1881. Even though, in the 1875 plat, lots 1 and 2 did not extend below the 1856

meander line, the Clingers argued that they owned property below the 1856

meander line because they and their predecessors had “possessed, used, [and]

farmed under claim of right and under color of title between the [upper] 1856 and

[lower] 1874 meander lines” and because they had also paid taxes on part of the

land between the meander lines. The Clingers also invoked deeds transferring the

property after 1887, all of which stated that they conveyed property “lakeward

from the deeded ground to the waters’ edge of Utah Lake.” Aplt’s App. vol. III, at

997 (affidavit of licensed abstractor William M. Hall). The district court resolved

the dispute in a series of rulings between 2001 and 2005.

1
A map of the disputed area, part of a Department of Interior Survey, is attached
as Exhibit A. See Aplt’s App. vol. III, at 999.

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 B. The District Court’s September 2001 Decision Quieting Title
in Landowners in Possession of the Land

First, in a September 2001 decision, the court rejected Utah’s contention

that the 1856 meander line should be deemed the ordinary high water mark as of

1896 (the time of statehood). The court reasoned that the actual ordinary high

water mark as of 1896 had been obliterated and that the reasons offered by Utah

for defaulting to the 1856 meander line were not persuasive. Therefore, the

district court adopted the approach of the Utah Supreme Court in the Provo City

cases (Provo City v. Jacobsen, 176 P.2d 130 (Utah 1947); Provo City v. Jacobsen,

181 P.2d 213 (Utah 1947); and Provo City v. Jacobsen, 217 P.2d 577, 578- 79

(Utah 1950)). In those cases, the Utah Supreme Court held that the state had the

burden of proving the location of the ordinary high water mark at statehood. The

court found that the State had failed to establish that location, and it then quieted

title in favor of landowners who could offer evidence of historical title, use, and

possession at the time of statehood.

In the instant case, the district court followed that approach. It stated:

“[g]iven [Utah’s] failure to submit evidence to meet its burden of proving the

ordinary high water mark on the date of statehood and [the individual

landowner’s] evidence of historical uses on the lands in question below the

meander line, this court finds that title should be and is quieted in the Defendants

in possession of the land.” Aplt’s App. vol. I, at 355.

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 In denying Utah’s motion to reconsider this initial ruling, the district court

explained that its decision had not determined which particular landowners

possessed land adjoining the lake. It observed that “[a]ll of the defendant[]

[landowners] will need to establish their title, usage, and possession of the land in

order for boundaries to be set.” Aplt’s App. vol. II, at 409. The court later

clarified that this initial ruling did not apply to land in the Powell Slough.

C. The 4,481 Stipulation and the Judgment in Favor of the Clingers

After the district court adopted the approach of the Provo City cases, the

United States assigned to Utah any interest that it possessed in land between the

bed of the Utah Lake and the private defendants’ property, but it excluded from

this assignment the land in the Powell Slough. Then, in July 2002, Utah entered

into a stipulation with the private landowners, including the Clingers. It provided

a guideline for determining to what extent the private landowners had used the

disputed land, stating that:

[t]he Defendants, and each of them, their heirs and assigns, and Plaintiff
the State of Utah, stipulate that from the time of the original federal
patent under which their predecessors-in-interest claim title, they and
their predecessors-in-interest have used that land lakeward from the
federally surveyed meander line to an elevation no higher than 4481 feet
above sea level continuously, except as such times as water levels have
interfered with their historic use. The Defendants need put on no further
evidence to support their claim of use of the land between the meander
[line] and 4481 feet above sea level to support a finding by the court that
at all relevant times the ordinary high water mark on Utah Lake was no
higher than 4481 feet above sea level.

Aplt’s App. vol. II, at 665.

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 Relying on this “4,481 Stipulation,” Utah and the Clingers filed a joint

motion to quiet title in the Clingers and to settle the boundary dispute. On

November 20, 2002, the district court granted the parties’ request and entered a

judgment stating that “title to the property described . . . is quieted in the

[Clingers] and to the property lakeward to an elevation of 4,481 MSL against all

claims that the State has in its sovereign capacity or could bring as against this

Defendant at this time.” Aplt’s App. vol. II, at 675-76.

D. Utah’s Fed. R. Civ. P. 60(b) Motion

On July 7, 2003, Utah moved pursuant to Federal Rule of Civil Procedure

60(b) to set aside the 4,481 Stipulation and the judgment quieting title in the

Clingers. Utah explained that when its counsel entered into the 4,481 Stipulation,

state land officials had not understood that the assignment of claims or interests

from the United States had not included lands in the Powell Slough. To their

surprise, “the limited extent of the federal assignment of claims that excluded the

Powell Slough, combined with the unlimited extent of the 4481 stipulation that

included the lakebed below the Powell Slough, meant the State could not stop

Powell Slough area defendants from quieting title down to the 4481 level, thanks

to the 4481 Stipulation.” Aplt’s App. vol. II, at 623.

In light of the land officials’ lack of knowledge, Utah maintained, its former

counsel (an Assistant Attorney General) lacked actual or apparent authority to

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enter into the stipulation and judgment. See id. at 647, 649 (arguing that “State

Lands officials never manifested an intent to permit lead counsel to [enter into the

stipulation]” and that “there is no evidence that State Lands Officials did anything

to cause defendants or their counsel to think the State lead counsel had authority to

sign the 4481 Stipulation”). Utah further argued that the stipulation and order

were manifestly unjust, interfered with the public trust, and intruded on the court’s

province.

The district court denied Utah’s request to set aside the 4,481 Stipulation.

However, it granted Utah’s motion to set aside the resulting judgment. The

distinction was based upon the court’s view of the limited effect of the Stipulation

on the one hand, and, in contrast, the sweeping and final effect of the resulting

judgment.

As to the 4481 Stipulation, the court explained, its language “does not

preclude the State from putting on evidence to counter [it]. It also does not

preclude the landowners from putting on further evidence to support the 4481 level

if they have such evidence.” Aplt’s App. vol. III, at 800. In contrast, there were

good grounds for vacating the judgment quieting title in the Clingers. “Such a

judgment, the court reasoned, “ requires the consent of the client,” which was

lacking here. Id. at 805. “The State’s prior counsel did not have the authority to

enter into the Stipulation and Judgment with the Clingers without the approval of

State land officials.” Id.

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 Further, the court said, “[it] [did] not find any prejudice in returning the

Clingers to the position of the other remaining landowners who must complete the

process of determining the correct boundary of their respective properties.” Id.

Additionally, “to the extent that the Clinger stipulation and judgment relied on the

4481 Stipulation, it relied on an improper construction of the language of the 4481

Stipulation.” Id.

E. Utah’s Second Summary Judgment Motion

Utah then filed a motion for partial summary judgment against twelve

landowner defendants in the Powell Slough, including the Clingers. Utah argued

that the Clingers’ predecessors did not obtain patents to lake-abutting parcels, but

instead only obtained patents to property separated from the lake by land owned

by the United States. These government lands, Utah said, were surveyed, platted,

and then offered for sale in 1875, before the upland patent was issued to James

Clinger in 1881. Moreover, James Clinger’s patent was for a parcel above the

1856 meander line. Accordingly, the Clingers’ parcel was separated from the lake

by the land owned by the United States.

In response, the Clingers filed a cross-motion for partial summary judgment.

They sought a declaration that Utah had no interest in the land between the 1856

and 1874 meander lines. They “dispute[d] [Utah’s] claims to land lying between

the 1874 meander line and the stipulated 4481 level, which has been occupied,

used and possessed by the Clingers since at least 1878.” Aplt’s App. vol. III, at

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929. They also argued that Utah lacked standing because it had admitted in its

motion for partial summary judgment that it had no claim to the land between the

meander lines.

As to standing, the district court agreed with Utah. It reasoned that because

part of the sovereign lakebed lands may have been above the lower meander line,

Utah could pursue its claim that the Clingers did not have title to lake-abutting

land.

On the merits, the court also agreed with Utah. “Because the government

re-surveyed the area and created the 1875 Plat including additional parcels within

the 1875 lands, it is clear that the government did not intend a patent issued after

1875 using the 1856 meander line as a boundary to convey land to the water’s

edge.” Id. at 1073. Thus, when it issued the patent to James Clinger in 1881, the

United States “would not have regarded the 1856 meander line as the lakeside

meander line because the 1875 meander line created parcels between the 1875

meander line and the 1856 meander line.” Aplt’s App. vol. III, at 1068-69. As a

result, “only the United States’ un-patented lands are subject to the State’s claim

to sovereign lake-bed lands as measured by the ultimate statehood use and

possession test.” Id. at 1073.

The court rejected the Clingers’ argument that an 1887 deed gave them title

to lake-abutting land. That deed purported to convey to their predecessors in

interest “the tract of land adjoining the above described tract on the west and

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extending to Utah Lake.” Id. at 1069. Despite that language, “a grantor of real

property may not convey more than he owns.” Id. (citation omitted). Thus, “[t]he

existence of an over-reaching deed in the Clingers’ chain of title cannot form the

basis of a claim to unpatented federal land.” Id.

Accordingly, the court held that as a matter of law “the Clingers

do not have title to lake-abutting land because the United States owned parcels

between the Clingers’ patented parcel and the Lake at the time the patent was

conveyed.” Id. at 1072-73. The court entered a final judgment resolving the

respective interests of Utah and the Clingers. The judgment stated that

[t]itle is quieted in the State of Utah as against the Clinger
F[am]ily Partnership to all lands located below (to the west
or lakeward of) the former [1856] meander line (which is
also the line separating Lots 2 and 5 of Section 29 of
Township 6 South, Range 2 East, SLM) in the vicinity of
Utah County Tax Parcel No. 19:034:0051. It is adjudged
that Clinger possesses no right, title or interest as against
the State of Utah to any portion of Lots 4 and 5, the SE1/4
NW1/4, or the SW1/4 NE1/4 of Section 29, Township 6
South, Range 2 East, SLM, or any acreage lying lakeward
of those lands.

Id. at 1106. The court dismissed all of the Clingers’ causes of action against Utah

with prejudice.

II. DISCUSSION

In this appeal, the Clingers do not directly challenge the district court’s

conclusion that they do not own lake-abutting property. Instead, they assert that

(a) Utah lacked standing to assert its claims against them; (b) the district court

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abused its discretion in vacating the November 20, 2002, judgment quieting title in

the Clingers down to an elevation of 4,481 feet above sea level; (c) the district

court erred in ruling on the Clingers’ lack of title to the disputed property because

that issue was never pled in the litigation; and (d) the district court erred in

quieting title against them in light of the Color of Title Act, 43 U.S.C. § 1068. We

consider each argument in turn.

A. Utah’s Standing

The Clingers first contend that Utah lacks standing to litigate the ownership

of property above the lower meander line (established in 1874) and that, as a

result, the district court erred in granting Utah’s second motion for summary

judgment and entering the final judgment quieting title against them. In support of

their argument, the Clingers invoke alleged concessions made by Utah, statements

in prior district court rulings, the Supreme Court’s observations in Utah Division

of State Lands, 482 U.S. at 205, and a Utah statute regarding the public use of

state lands. They also argue that Utah has improperly sought to assert claims on

behalf of the United States and that the interests of a third party are insufficient to

establish standing.

We consider these contentions de novo. See Brereton v. Bountiful City

Corp., 434 F.3d 1213, 1216 (10th Cir. 2006). They are based upon Article III of

the Constitution, which grants federal courts jurisdiction over cases and

controversies. U.S. C ONST . A RT . III, § 2, cl. 1. “Without a live, concrete

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controversy,” a federal court lacks jurisdiction to consider the parties’ claims.

Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007).

Standing is a component of the case or controversy requirement. Habecker

v. Town of Estes Park, Colo., 518 F.3d 1217, 1223 (10th Cir. 2008). The

requirement that a party have standing “serves to ensure that the plaintiff is a

proper party to invoke judicial resolution of the dispute.” Id. (quoting Warth v.

Seldin, 422 U.S. 490, 518 (1975)). To demonstrate Article III standing, a plaintiff

must establish (1) an injury in fact; (2) a causal connection between the injury and

the conduct complained of; and (3) a likelihood that the injury will be redressed by

a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The injury must involve a legally protected interest that is “(a) concrete and

particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id.

Importantly, “[s]tates are not normal litigants for the purposes of federal

jurisdiction” and are “entitled to special solicitude in our standing analysis.”

Massachusetts v. E.P.A., 127 S. Ct. 1438, 1454-55 (2007).

Although Article III standing is a question of federal law, state law may

create the asserted legal interest. Swanson v. Bixler, 750 F.2d 810, 813-14 (10th

Cir. 1984) (analyzing state law in a diversity case to determine whether the

plaintiff had standing); see also Cantrell v. City of Long Beach, 241 F.3d 674,

684 (9th Cir. 2001) (“[S]tate law can create interests that support standing in

federal courts.”). Here, Utah’s quiet title claim against the Clingers arises under

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Utah law. “[A] quiet title action, as its name connotes, is one to quiet an existing

title against an adverse or hostile claim of another. . . . One seeking such

equitable relief must allege title, entitlement to possession, and that the estate or

interest claimed by others is adverse or hostile to the alleged claims of title or

interest.” Utah Dep’t of Soc. Servs. v. Santiago, 590 P.2d 335, 337-38 (Utah

1979).

Applying these standards, we agree with the district court’s analysis.

Contrary to the Clingers’ contention, Utah asserted a right to lands above the

lower (1874) meander line in the Powell Slough throughout the district court

proceedings. Although its initial contention was that its sovereign lakebed lands

extended all the way to the upper (1856) meander line, Utah did not abandon its

claim to lands above the lower meander line after its more ambitious, upper

meander line argument proved unsuccessful. For example, in a memorandum in

support of its second motion for summary judgment, Utah stated that “[p]arcels

surveyed below the upper meander line remain unpatented to this day (part or all

of which un-patented federal surveyed lands are subject to Utah’s eventual

sovereign lake-bed claim”). Aplt’s App. vol. II, at 825 (emphasis added). That

language indicates that Utah continued to assert an interest in land between the

two meander lines.

Importantly, the Clingers also asserted an interest in land between the two

meander lines. They explained in their memorandum in support of their motion

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for partial summary judgment and in opposition to Utah’s motion that they “indeed

claim[] lands, including but not limited to the Powell Slough area between the

1856 and 1874 meander lines.” Id. vol. III, at 929. These competing claims to the

land between the meander lines are sufficient to establish standing. See Santiago,

590 P.2d at 337.

Additionally, we are not persuaded by the Clingers’ contention that the

district court ruled that Utah lacked an interest in the land between the meander

lines. The ruling invoked by the Clingers (the December 2001 decision adopting

the historic use and possession analysis of the Provo City cases) did not concern

the Powell Slough. That ruling did not foreclose the claim at issue here–that the

ordinary high water mark at statehood was above the 1874 meander line in the

Powell Slough.

The other authorities invoked by the Clingers in support of their standing

argument are similarly unpersuasive. Contrary to their argument, the Supreme

Court’s opinion in Utah Division of State Lands, 482 U.S. 193, does not “bar[]

[Utah] from any claim to the title for the lands above the 1874 meander line.”

Aplt’s Br. at 17. The Court’s decision describes the location of the property

designated for sale by the federal government. It does not purport to define the

boundary between Utah’s lands and the Clingers’ land. Indeed, the Court

expressly stated that it was not establishing such a boundary. It explained that

“[o]ur point is not that the meander line was a ‘boundary’ between the lands under

the navigable waters and the adjacent lands granted by the Federal Government to

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private citizens, nor that this line settled the property rights of those who occupied

exposed land within the meander line when Utah Lake receded.” Utah Division of

State Lands, 482 U.S. at 206 n.* The Court added that “[t]he resolution of these

issues is complex, depending in large measure on the facts of the specific

survey[,]” and it therefore expressed no opinion on those issues. Id.

Similarly, the public use statute invoked by the Clingers, Utah Code Ann. §

23-21-4(1), does not undermine Utah’s standing. The statute “reserve[s] to the

public the right of access to all lands owned by the state, including those lands

lying below the official government meander line or high water line of navigable

waters, for the purpose of hunting, trapping, or fishing.” Id. However, it does not

identify a particular boundary between Utah’s lakebed lands and the adjoining

property.

Finally, we agree with the district court that the fact that Utah has admitted

that the United States holds property between the meander lines does not mean

that Utah lacks standing to pursue its quiet claim against the Clingers. The United

States’ acknowledged interest in the unpatented land between the meander lines

does not establish that it is the only party that has an interest there. As the district

court reasoned, “[a]lthough the United States may have been the owner of

unpatented lands between the two meander lines, that does not automatically make

it the owner to sovereign lake-bed lands if such lands are eventually determined to

be above the lowest meander line at the time of statehood.” Aplts App. vol. III, at

l072.

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 Here, Utah sought a determination that the United States, not the Clingers,

was the owner of the property that adjoined the lake and was therefore the proper

party with which to litigate the boundary issue. Despite the United States’

interest, the adverse interests asserted by Utah and the Clingers to the property

between the meander lines are sufficient to establish Utah’s standing.

B. Order Granting Utah’s Rule 60(b) Motion

Next, the Clingers challenge the district court’s decision granting in part

Utah’s motion to set aside the 4,481 Stipulation and the resulting judgment

quieting title in the Clingers. Utah filed that motion pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure. As we have noted, the district court granted that

motion in part. The court refused to vacate the 4481 Stipulation, but it did vacate

the resulting judgment.

Rule 60(b)(1) provides that “[o]n motion and upon such terms as are just, the

court may relieve a party or a party’s legal representative from a final

judgment . . . for the following reasons: (1) mistake, inadvertence, surprise, or

excusable neglect.” Rule 60(b)(1) motions premised upon mistake are intended to

provide relief to a party in only two instances: (1) when “a party has made an

excusable litigation mistake or an attorney in the litigation has acted without

authority; or (2) whe[n] the judge has made a substantive mistake of law or fact in

the final judgment or order.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576

(10th Cir. 1996). We review the district court’s decision to grant, in part, Utah’s

Rule 60(b) motion for an abuse of discretion. Plotner v. AT& T Corp., 224 F.3d

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1161, 1174 (10th Cir. 2000). As a result, “we will reverse the district court’s

determination only if we find a complete absence of a reasonable basis and are

certain that the district court’s decision is wrong.” Id. (internal quotation marks

omitted).

Here, the district court provided two grounds for its grant of Utah’s Rule

60(b) motion. First, it concluded that Utah’s former counsel, an Assistant

Attorney General, lacked both actual and apparent authority to enter into the

stipulated order, even though (in the court’s view), the Assistant Attorney General

did have both actual and apparent authority to enter into the 4,481 Stipulation.

Second, the court concluded that “to the extent that the . . . judgment relied on the

4481 Stipulation, it relied on an improper construction of the language of the 4481

Stipulation.” Aplt’s App. vol. III, at 805.

The Clingers now challenge the first of the district court’s grounds. They

contend that a card laid is a card played: in their view, the Assistant Attorney

General’s actual and apparent authority extended to the decision to consent to the

judgment. There is considerable support for their argument.

In particular, Utah was represented in this litigation by an Assistant

Attorney General. “In addition to constitutional and statutory authority, the Utah

Attorney General, like attorneys general of numerous other states, has common

law powers. . . . The source of the common law power lies in the State’s statutory

adoption of the common law which has been in effect, except as modified by

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statute, since statehood.” Hansen v. Utah State Ret. Bd., 652 P.2d 1332, 1337

(Utah 1982).

Although the Utah Supreme Court does not appear to have resolved the

question, a number of other courts have concluded that a state Attorney General’s

common law powers include the power to settle litigation in which the state is a

party. See, e.g., State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813, 818

(Okla. 1973) (“We conclude, as did the Kansas [Supreme] [C]ourt . . . , that the

Attorney General’s powers are as broad as the common law unless restricted or

modified by statute, and that his authority to dismiss, settle or compromise the

litigation in question, in the absence of fraud or collusion, is undisputed.”); State

ex rel. Carmichael v. Jones, 41 So. 2d 280, 284 (Ala. 1949) (stating that

“pretermitting any question of bad faith, which is not here raised, it is our

conclusion that the attorney general, as the chief law officer of the state, was fully

empowered to make any bona fide disposition of the cause as in his judgment

might be deemed to be to the best interest of the state, unless inhibited by organic

law”).

Here, in vacating the judgment quieting title in the Clingers, the district

court stated that “[t]his type of stipulation [i.e., a stipulation to a dispositive

decision] requires the consent of the client.” Id. at 805. Although, as Utah

observes in its appellate brief, there is ample authority to support that proposition

when a party is represented by private counsel, see, e.g., State v. Musselman, 667

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P.2d 1061, 1068 n.8 (Utah 1983) (stating that “in civil cases, it is for the client to

decide whether he will accept a settlement offer” (quoting ABA M ODEL C ODE OF

P ROFESSIONAL R ESPONSIBILITY EC 7-7 (1981)), the district court did not address

the fact that, in this case, Utah was represented by an Assistant Attorney General.

Nevertheless, we need not here determine whether the common law powers

of the Utah Attorney General, read in conjunction with the state statutes regarding

the office, authorized Utah’s former counsel to agree to the stipulated judgment.

Even assuming that Utah’s former counsel had such authority, the district court

provided an independent ground for vacating the judgment–that the judgment

“relied on an improper construction of the language of the 4481 stipulation.”

Aplt’s App. vol. III, at 805. The Clingers have neither challenged that holding on

appeal, nor have they questioned the timeliness of Utah’s Rule 60(b) motion. See

Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1088 (10th Cir. 2005)

(observing that “a Rule 60(b)(1) motion ‘shall be made within a reasonable time,’

but never ‘more than one year after the judgment, order or proceeding was entered

or taken’” and that this time limit is “absolute”) (quoting F ED . R. C IV . P. 60(b)(1)).

Therefore, the Clingers have waived any objection to the district court’s ruling on

this ground. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th

Cir. 1994) (noting that failure to raise issue on appeal in the opening brief is a

waiver of that issue).

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 Morever, the district court’s conclusion that the 4,481 Stipulation did not

necessarily require the entry of judgment in favor of the Clingers is a plausible

one. The Stipulation merely stated that “from the time of the original federal

patent under which their predecessors-in-interest claim title, they and their

predecessors-in-interest have used that land lakeward from the federally surveyed

meander line to an elevation no higher than 4481 feet above sea level.” Aplt’s

App. vol. II, at 665. It further stated that the defendant landowners need put on no

further evidence to support their claim that their use of the land established the

ordinary high water mark at that level. As the district court reasoned, the 4,481

Stipulation did “not set the ultimate boundary.” Aplt’s App. vol, III, at 803. It did

not address the Clingers’ land in particular, and it did not purport to resolve the

question resolved by the district court here–whether there was federal land in

between Utah’s lakebed lands and the Clingers’ property. Thus, the district court

did not abuse its discretion in concluding that the Stipulation did not foreclose the

arguments that Utah subsequently advanced against the Clingers in its second

summary judgment motion.

C. Ruling on Issues Allegedly Not Pleaded

The Clingers further contend that the district court erred “in allowing [Utah]

to advance, after five years of litigation, the theory of the Clinger[s’] lack of title

as a basis for quieting title.” Aplt’s Br. at 35. They maintain that they were

unfairly surprised by Utah’s assertion of a new ground for relief. The Clingers

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also seek to characterize certain statements in the district court’s rulings as the law

of the case. In their view, these statements by the district court indicated that the

sole issue remaining between Utah and the Clingers was the boundary of the land

that the Clingers’ predecessors possessed. Thus, they maintain, by allowing Utah

to pursue its theory that it was the United States, rather than the Clingers, that

owned land in the Powell Slough that adjoined the lakebed, and then adopting that

theory, the district court improperly ruled on an issue that was never pled.

Upon de novo review, see Butler v. Compton, 482 F.3d 1277, 1278 (10th

Cir. 2007), we conclude that the Clingers’ arguments are not supported by the

record. In both its Complaint and its Amended Complaint, Utah asserted that “the

1856 survey notes and the location of the meander line fixed by the government

surveys [are] the best documentary evidence of the ordinary high water mark” at

the time of statehood. Aplt’s App. vol. I at 106, 192. Utah’s Amended Complaint

alleged that the defendants (including the Clingers) each “may claim a portion of

the Lakebed lying below the Meander Line which may conflict with the claims of

the State to sovereign land comprising the Lakebed.” Id. at 199. Utah requested

the court to quiet title up to the asserted boundary. In their answer and

counterclaim, the Clingers contended that they were entitled to “the use and

possession of all of [their] lands lying between the Meander Line and the water’s

edge.” Id. at 266.

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 These competing claims were sufficient to put the Clingers on notice that

title to the land between the meander lines was in dispute in the litigation. The

fact that the district court rejected Utah’s contention that the 1856 meander line

constituted the ordinary high water mark at statehood does not mean that the

Clingers did not know of the interests at stake: they were still on notice that Utah

was asserting title to the same land that they were.

Additionally, we are not persuaded by the Clingers’ contention that the

district court’s rulings established, as the law of the case, that Utah could not

assert that the United States, rather than the Clingers, owned the land adjoining the

lake in the Powell Slough. The district court’s September 2001 decision did state

that “title should be and is quieted in the Defendants in possession of the land.”

Aplt’s App. vol. I, at 355. However, in ruling on Utah’s motion to reconsider that

decision, the court explained that each of the private landowners “will need to

establish their title, usage, and possession of their land in order for boundaries to

be set.” Aplt’s App. vol. II, at 565 (emphasis added). Moreover, although the

district court did deny Utah’s motion to file another amended complaint based on

“omitted lands” or “Basart doctrines,” see id. at 596, that decision did not preclude

Utah from continuing to assert its claims to the disputed land based upon other

theories. 2

2
The district court explained that the “omitted lands” theory was based upon an
alleged error in the surveys. Aplt’s App. vol. II, at 600. The other new theory,
the Basart doctrine, “theorizes that between the time of the meander survey of
(continued...)

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 Most importantly, the Clingers have failed to explain how they were

prejudiced by the district court’s consideration of Utah’s argument in its second

summary judgment motion. There, as we have noted, Utah persuasively argued

that the existence of federal land between the lakebed and the Clingers’ land

barred the Clingers’ claim to land adjoining the lake. The Clingers had the

opportunity to contest Utah’s arguments in support of its second summary

judgment motion, and there is no indication in this record that the district court’s

management of the case precluded them in any way from raising legal or factual

arguments in response to Utah’s contentions.

2
(...continued)
1856 and the issuance of patents substantial accretions had formed adjacent to the
patents.” Id. at 601.

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 D. Color of Title Act

Finally, the Clingers contend that the district court erred in quieting title

against them in light of a provision of the Color of Title Act, 43 U.S.C. § 1068.

Section 1068 states that “no patent shall issue under the provisions of this

chapter . . . for any tract to which there is a conflicting claim adverse to that of the

applicant, unless and until such claim shall have been finally adjudicated in favor

of such applicant.” The Clingers maintain that “[by] law, [they] could not obtain a

patent for their property until the dispute with the State over the lakebed was

adjudicated in favor of Clinger.” Aplt’s Br. at 40. This cursory argument is not

persuasive.

The Color of Title Act provides that the Secretary of the Interior shall “issue

a patent for not to exceed one hundred and sixty acres of such land upon the

payment of not less than $1.25 per acre” if “it shall be shown to his satisfaction

that a tract of public land has been held in good faith and in peaceful, adverse,

possession by a claimant, his ancestors or grantors, under claim or color of title for

more than twenty years, and that valuable improvements have been placed on such

land or some part thereof has been reduced to cultivation.” 43 U.S.C. § 1068(a).

Additionally, the Secretary may issue such a patent if “it shall be shown to his

satisfaction that a tract of public land has been held in good faith and in peaceful,

adverse, possession by a claimant, his ancestors or grantors, under claim or color

of title for the period commencing not later than January 1, 1901, to the date of

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application during which time they have paid taxes levied on the land by State and

local governmental units.” Id. § 1068(b).

The fact that the Clingers could not obtain a patent under the Color of Title

Act while this litigation was pending does not establish that the district court

erred. The district court concluded that the Clingers’ property did not adjoin the

lakebed. However, it did not purport to resolve any disputes between the federal

government and the Clingers regarding the boundaries of their respective parcels.

Thus, the Clingers’ potential Color of Title Act claim against the federal

government does not affect the district court’s resolution of the dispute before us

now.

III. CONCLUSION

We therefore AFFIRM the district court’s judgment quieting title in favor of

Utah and against the Clingers. 3

3
In light of our disposition of this case, we deny Utah’s motion to supplement
the appendix as moot.

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