Calhoun County Texas v. United States

REVISED
United States Court of Appeals,

Fifth Circuit.

No. 97-40663

Summary Calendar.

CALHOUN COUNTY, TEXAS, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

Jan. 22, 1998.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:

This case involves Calhoun County's action to quiet title to

certain lands claimed by the United States. The district court

dismissed for lack of jurisdiction based on the expiration of the

applicable statute of limitations. For the reasons set forth

below, we affirm the district court's order.

I. Factual and Procedural Background
A. Federal land on Matagorda Island

Matagorda Island is a 57,000 acre barrier island located in

Calhoun County, Texas, with a long history of litigation in federal

court. In the early 1940's, the federal government condemned 41

parcels of land constituting almost 19,000 acres of privately owned

land on the eastern half of the northern portion of the island.

See United States v. 35,220 Acres of Land, C.A. No. 22

1
(S.D.Tex.1940). The government's First Amended Petition for

Condemnation named the Calhoun County tax assessor as a defendant,

and its Third Amended Petition in Condemnation listed Calhoun

County as a defendant.

The court issued a Final Judgment on the Declaration of

Taking, which allowed the United States to take possession of the

condemned lands, and a Judgment on the Declaration of Taking, which

specified the lands condemned and that the United States took full

and complete possession of those lands in fee simple. The United

States War Department, and later the Air Force, used the federal

lands as a bombing and gunnery range until 1971, when it allowed

the Department of the Interior ("DOI") to manage the lands for use

as a wildlife refuge. In 1982, the Air Force transferred

jurisdiction over the federal lands to the DOI.

B. State land on Matagorda Island

From October 8, 1942 until 1971, the federal government

condemned for a term of years nearly 17,000 acres of state-owned

land making up the northern half of the western portion of

Matagorda Island. See United States v. 16,579.70 Acres of Land,

C.A. No. 41 (S.D.Tex.1942); United States v. Certain Public Roads

and Highways on Matagorda Island, C.A. No. 165 (S.D.Tex.1951);

United States v. 16,579.70 Acres of Land, More or Less, Situated in

Calhoun County, C.A. No. 336 (S.D.Tex.1957); United States v.

16,579.70 Acres of Land, C.A. No.487-488 (S.D.Tex.1966); United

States v. 17,499.11 Acres of Land in Calhoun County, C.A. No. 70-V-

14 (S.D.Tex.1970). Each of these actions involved essentially the

2
same acreage, which the State of Texas owned.

On October 8, 1942, the United States filed Cause of Action

Number 41, and successfully condemned the 17,000 acres for a term

of years, subject to existing easements for public roads, highways,

utilities, railroads, and pipelines. The 1942 petition recognized

that Calhoun County may have had some interest in part of the

condemned land, but did not specify any particular parcel as

belonging to the county. On May 29, 1951, in Cause of Action

Number 165, a related action, the United States successfully

petitioned to condemn the public roads and highways on Matagorda

Island over which the state had reserved easements pursuant to the

government's initial condemnation action.

In its third and fourth condemnation actions, Civil Action

Number 336 and Civil Actions Number 487-488, the United States

again condemned the same land, public roads, and highways which it

had condemned in 1941 and 1951 because the term of years under each

of the first two actions had expired. Calhoun County participated

in the stipulated final judgment in Civil Actions Number 487-488,

which recited Calhoun County's stipulation that it had waived "all

claims for remuneration of damages for the limited takings of its

public roads, highways and easements on and across said 16,579.70

acres...." In exchange, Calhoun County reserved a right to request

administrative action to set aside a National Historical Shrine,

with connecting causeway and highway easements to Port O'Connor,

Texas.

On June 23, 1970, the United States filed its fifth and final

3
condemnation action regarding the Matagorda Island properties,

Civil Action Number 70-V-14, resulting in condemnation of the same

approximately 17,000 acres for a term of years which the United

States could extend until June 30, 1977. On December 2, 1970,

Calhoun County filed a "Disclaimer and Reservation" in the case,

providing that Calhoun County:

has no claim to an interest in the compensation to be awarded
in this proceeding, and in waiving all claims for remuneration
of damages for the limited taking, if any, of its public
roads, highways and easements on and across said 17,499.11
acres of land, reserves in lieu thereof the election to
request administrative action to set aside a National
Historical Shrine....

The district judge dismissed Calhoun County from the suit.

C. Management of State and Federal land on Matagorda Island

In November, 1971, the Air Force and the DOI entered into a

Memorandum of Understanding (the "1971 MOU"), pursuant to which the

Fish and Wildlife Service ("FWS") began using the leasehold lands

as part of the National Wildlife Refuge System. In September 1975,

the Air Force declared the federally owned lands to be in excess of

its needs and terminated its leasehold interest in the adjacent

acreage. The DOI applied to the General Services Administration

("GSA") for a transfer of the approximately 19,000 federally owned

acres to the FWS, and the State of Texas applied to the GSA for a

transfer of the adjacent leasehold lands to the State of Texas for

use as a state park.

In October, 1982, the FWS and the GSA published an

environmental impact statement ("EIS") proposing the termination of

the 1971 MOU between the Air Force and the DOI and the transfer of

4
jurisdiction over the federally owned land to the FWS to manage as

a unit of the National Wildlife Refuge System. In addition, the

FWS proposed to exchange easements with the Texas General Lands

Office, thereby allowing the Texas Parks and Wildlife Department

to operate the 19,000 acres of federal land as a state park and

providing the FWS with a conservation easement on the adjacent

state-owned land. The EIS included a provision that would have

prohibited any entity other than the FWS or the State of Texas from

having access to publicly owned parts of Matagorda Island. The EIS

did not indicate that Calhoun County had any rights in or on

Matagorda Island. As required by federal law, the Federal Register

contained a notice regarding the preparation of the EIS. Notice,

47 Fed.Reg. 5048 (1982). In addition, the FWS hosted public

meetings to discuss the EIS, which a local newspaper mentioned.

In October, 1982, the Texas Parks and Wildlife Department

published its own "conceptual plan" for Matagorda Island. This

plan would have left only two miles of managed beach available for

public use with limitations on the types of activities allowed

there. The conceptual plan did not refer to Calhoun County as

having any ownership interest on the Island.

On December 8, 1982, the FWS and the Governor of Texas entered

into a Memorandum of Agreement (the "1982 MOA") implementing the

proposals presented in the EIS. The 1982 MOA provides for

integrated management of all publicly owned land on Matagorda

Island by the United States and the State of Texas. The 1982 MOA

further provides that the State of Texas may not authorize any use

5
affecting either the federal lands or the federal conservation

easement unless the FWS determines the use to be compatible with

the purposes of the National Wildlife Refuge System. The 1982 MOA

also limits vehicular access to Matagorda Island to those vehicles

authorized to manage, enforce, or maintain the Wildlife Management

Area. The 1982 MOA does not provide any role for Calhoun County in

managing Matagorda Island.

On December 9, 1982, the State of Texas and the United States

recorded the conservation easements in the Calhoun County Clerk's

Office. On August 4, 1983, over considerable public controversy,

Congress passed a bill enacting the 1982 MOA into law.

D. This litigation

On November 8, 1995, Calhoun County filed a petition for a

declaratory judgment that it has valid title to real property on

Matagorda Island claimed by the United States. Calhoun County's

petition did not specify which areas of land it claimed to own, but

did claim rights to "use, maintain and enjoy all of the public

roads, beaches, historic sites and shrines, cemeteries and other

real estate interests that [Calhoun County] still has and maintains

on Matagorda Island." Calhoun County's petition argued that the

initial 1940 taking was void because the United States failed to

identify and serve Calhoun County as a defendant in that action.

Calhoun County also argued that the expiration of the United States

leasehold interests in the state-owned land, which the United

States had condemned for successive terms of years, caused title to

that land to revert to Calhoun County.

6
 The United States moved to dismiss or alternatively for

summary judgment. The United States argued that the 1940

condemnation action extinguished any property interests that

Calhoun County may have had in the federally owned acreage on

Matagorda Island and that Calhoun County's failure to file suit

within twelve years from the time it received actual or

constructive notice of the federal claims to that land barred any

claims that Calhoun County may have had to that land. The district

court concluded that Calhoun County could not satisfy the

jurisdictional requirements of the Quiet Title Act ("QTA"), 28

U.S.C. § 2409a (1997), because the QTA's twelve year statute of

limitations had expired prior to Calhoun County's commencement of

suit. See 28 U.S.C. § 2409a(g) through (j) (limitations periods

for actions under QTA).

II. Discussion

Calhoun County appeals the district court's dismissal of its

complaint for failing to meet the jurisdictional requirements of

the Quiet Title Act, 28 U.S.C. § 2409a (1997). This Court reviews

a district court's grant of a motion to dismiss for lack of

jurisdiction under a de novo standard of review. Hebert v. United

States, 53 F.3d 720, 722 (5th Cir.1995). The district court's

thorough order discussed several alternative bases for its

dismissal, none of which are in error. Accordingly, we affirm the

district court's dismissal of Calhoun County's complaint.

A. The QTA's twelve year limitations period applies to Calhoun
County's claim.

The district court properly applied a twelve year statute of

7
limitations to Calhoun County's claim. Section 2409a(g) provides:

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. 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.

28 U.S.C. § 2409a(g). Calhoun County is not a state; therefore,

it is subject to this twelve year limitations period. As the

district court noted, however, even if Calhoun County, a

subdivision of the State of Texas, was a state for purposes of the

QTA, the applicable limitations period in this case would still be

twelve years. Section 2409a(i) provides:

Any civil action brought by a State under this section with
respect to lands, other than tide or submerged lands, on which
the United States or its lessee or right-of-way or easement
grantee has made substantial improvements or substantial
investments or on which the United States has conducted
substantial activities pursuant to a management plan such as
... wildlife habitat improvement, or other similar activities,
shall be barred unless the action is commenced within twelve
years after the date the State received notice of the Federal
claims to the lands.

28 U.S.C. § 2409a(i) (emphasis added). As the district court

pointed out, Calhoun County agrees that the United States and the

State of Texas have conducted activities to improve the wildlife

habitat on Matagorda Island since 1982. As such, even under the

limitations provisions applicable to states, a twelve year period

would apply to this case.

B. The QTA's statute of limitations bars Calhoun County's claim
because the cause of action accrued more than twelve years
before commencement of suit.

The district court correctly found that Calhoun County had

failed to comply with the QTA's twelve year statute of limitations.

8
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. See California v. Yuba Goldfields, Inc., 752

F.2d 393, 396 (9th Cir.) (holding that recording of deed naming

United States as grantee constituted actual notice of United States

interest in property for QTA limitations purposes), cert. denied

sub nom., California State Lands Comm'n v. United States, 474 U.S.

1005, 106 S.Ct. 526, 88 L.Ed.2d 458 (1985); Lee v. United States,

629 F.Supp. 721 (D.Alaska 1985) (holding that QTA limitations

period began to run upon publication of notice of federal claims in

Federal Register). The 1982 MOA, which Congress ratified,

essentially enacted the proposals set forth in the EIS published in

the Federal Register earlier that year. In addition, the United

States had been landing planes and dropping bombs on the island

from the 1940's until the 1970's, which is openly and notoriously

inconsistent with any claims Calhoun County may have had to that

land. Even under the QTA's notice provisions applicable to states,

these circumstances constitute sufficient notice for purposes of

accrual of an action. See 28 U.S.C. § 2409a(k) (providing that

public communication reasonably calculated to put the claimant on

notice of federal claim or open and notorious use, occupancy, or

improvement constitutes notice for purposes of accrual of an action

brought by a state).

9
C. Equitable tolling does not apply to the facts of this case.

In Hart v. United States, this Court rejected the proposition

that equitable considerations might justify tolling the QTA's

twelve year statute of limitations. 585 F.2d 1280, 1284-85 (5th

Cir.1978) ("Whether the equitable considerations advanced by

plaintiffs would be persuasive under other facts is wholly beside

the point."), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d

310 (1979). In so construing the QTA, Hart noted that "[w]e have

before us an Act of Congress that is understandable both in

language and intent," 585 F.2d at 1285, and relied upon the well

established proposition that statutes waiving immunity of the

United States are subject to strict construction in favor of the

United States. Id.

Since Hart, the Supreme Court has confirmed the applicability

of equitable tolling against the United States. See Irwin v. Dep't

of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457, 112

L.Ed.2d 435 (1990) (establishing a general rule that "the same

rebuttable presumption of equitable tolling applicable to suits

against private defendants should also apply to suits against the

United States."). Although Irwin involved Title VII of the Civil

Rights Act rather than the QTA, the Supreme Court's holding in

Irwin does relax the maxim that courts must strictly construe

waivers of sovereign immunity in favor of the sovereign, which the

Hart panel interpreted as barring consideration of equitable

tolling under the QTA. See Irwin, 498 U.S. at 94, 95, 111 S.Ct. at

457, 458. Irwin qualified that maxim by stating that "[o]nce

10
Congress has made such a waiver, we think that making the rule of

equitable tolling applicable to suits against the Government, in

the same way that it is applicable to private suits, amounts to

little, if any, broadening of the congressional waiver." Id. Irwin

thus reinterpreted the intent behind congressional waivers of

sovereign immunity, but did not necessarily alter the nature of

conditions on that waiver, such as a statute of limitations.1

Since Irwin, the Fourth Circuit has continued to construe the

QTA's statute of limitations as jurisdictional in nature.

Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945

F.2d 765, 769 (4th Cir.1991) ("Because the limitations period

represents a condition on the waiver of federal sovereign immunity,

it is a jurisdictional prerequisite to suit and is to be construed

narrowly in favor of the government."), cert. denied, 503 U.S. 984,

112 S.Ct. 1667, 118 L.Ed.2d 388 (1992); see also, e.g., Vintilla

v. United States, 931 F.2d 1444 (11th Cir.1991) (adhering to

1
In Block v. North Dakota, 461 U.S. 273, 103 S.Ct. 1811, 75
L.Ed.2d 840 (1983), the Supreme Court held that if a suit under the
QTA is time-barred by the statute of limitations, then federal
courts have "no jurisdiction to inquire into the merits." 461 U.S.
at 292, 103 S.Ct. at 1822. When the United States consents to be
sued, "the terms of its waiver of sovereign immunity define the
extent of the court's jurisdiction." United States v. Mottaz, 476
U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). Under
this line of cases, a statute of limitations constitutes a
condition on the waiver of sovereign immunity, and thus, defines
jurisdiction. Id. The Supreme Court has not overruled these
decisions, but did, in Irwin v. Dep't of Veterans Affairs, 498 U.S.
89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) relax the underlying
maxim that courts must strictly construe waivers of sovereign
immunity in favor of the government. As such, the Court did allow
for the possibility that courts may equitably toll limitations
periods in actions against the government, but did not specifically
discuss the QTA or the jurisdictional nature of its statute of
limitations. Id. at 95-96, 111 S.Ct. at 457-458.

11
pre-Irwin mode of analysis and ruling that tax code limitations

period may not be equitably tolled because timely filing of a

refund claim is jurisdictional prerequisite to suit); Knapp v.

United States, 636 F.2d 279, 282 (10th Cir.1980) (holding,

pre-Irwin, that "timeliness ... is a jurisdictional prerequisite to

suit under section 2409a."); Dillard v. Runyon, 928 F.Supp. 1316,

1323-24 (S.D.N.Y.1996) (arguing that Irwin does not extinguish

jurisdictional nature of time limits on claims against federal

government, and noting that "the Supreme Court in Irwin affirmed

both lower courts' dismissals for lack of jurisdiction."), aff'd,

108 F.3d 1369 (2d Cir.1997).

We note, however, that other courts, including the Ninth

Circuit, have held that Irwin eliminated the jurisdictional nature

of statutes of limitation under statutes waiving sovereign

immunity, apparently based on the rationale that equitable

principles cannot expand a court's jurisdiction. See, e.g., Fadem

v. United States, 52 F.3d 202 (9th Cir.1995) (holding that statute

of limitations under QTA is not jurisdictional), vacated, --- U.S.

----, 117 S.Ct. 1103, 137 L.Ed.2d 306, orig. opinion reinstated,

113 F.3d 167 (9th Cir.1997); see also Krueger v. Saiki, 19 F.3d

1285, 1286 (8th Cir.) ("Because suits against the government are

subject to equitable tolling, compliance with [Federal Tort Claims

Act] limitations period is not a jurisdictional prerequisite to

suing the government."), cert. denied, 513 U.S. 905, 115 S.Ct. 269,

130 L.Ed.2d 187 (1994); Schmidt v. United States, 933 F.2d 639,

640 (8th Cir.1991) (holding that, as a result of Irwin, statutes of

12
limitations in actions against the government are affirmative

defenses rather than jurisdictional bars).

We conclude below that the district court did not err in

finding that the evidence showed Calhoun County's failure to

satisfy the statute of limitations, regardless of equitable

tolling. As such, this case does not require us to decide whether

Irwin extinguished the jurisdictional nature of the QTA's statute

of limitations, and we decline to do so.

After the district court ordered dismissal of Calhoun

County's claim, a divided panel of this Court handed down a

decision in Beggerly v. United States, 114 F.3d 484 (5th Cir.1997),

cert. petition filed, 66 U.S.L.W. 3324 (Oct. 27, 1997). In

Beggerly, the Court explicitly applied the doctrine of equitable

tolling to a QTA claim, noting that "[e]quitable tolling applies

principally where the plaintiff is actively misled by the defendant

about the cause of action or is prevented in some extraordinary way

from asserting his rights." 114 F.3d at 489 (quoting Rashidi v.

American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). In so

holding, the Court cited the Supreme Court's Irwin decision for the

proposition that "[e]quitable tolling may be applied against the

United States." Id. at 489 n. 19. Intervening Supreme Court

precedent had changed the law that Hart relied upon in refusing to

consider the doctrine of equitable tolling in the context of a QTA

claim; therefore, the Court in Beggerly was not bound by Hart and

neither are we.

Although prior to this Court's decision in Beggerly, the

13
district court in this case correctly noted that Calhoun County

could not rely on equitable tolling, even if the doctrine did

apply. As such, the district court's analysis would stand

regardless of the Beggerly panel's decision, which applied the

doctrine of equitable tolling against the United States. 114 F.3d

at 489. In Beggerly, the United States had, in a previous quiet

title action, ostensibly conducted a thorough search of the public

land records and formerly represented to the plaintiffs and the

district court that the United States had never granted any part of

the land in question to a private landowner and, therefore, that

the United States was the title owner of that land. Id. at 486.

That representation later turned out to be false. Id.

In contrast, in this case, the evidence showed that Calhoun

County had notice of the United States' claim in 1982 at the

latest, when the FWS and the GSA published the EIS in the Federal

Register. As a result, the statute of limitations began to run in

1982 and expired before Calhoun County commenced this action,

unless the statute was equitably tolled. The evidence before the

district court did not include any evidence of active

misrepresentation or extraordinary prevention by the United States

that would justify the application of equitable tolling under

Beggerly; therefore, we affirm the district court's dismissal.

AFFIRMED.

14