March April 2018

Professional Land Surveyors of Oregon | www.plso.org 21 The Federal Land Rights Series lack of legal access to the portion of his property lying south- east of the river. Presumably because Swinger had no idea that any federal interest was present within the relevant area, he filed this legal action in the state court system, rather than in federal court, and the action played out in the typical manner, being decided by a county judge, which suggests that no one participating in this case was either aware of, or had any con- cern about, the presence of federal land rights along a portion of the east bank of the river. Not surprisingly, the accusations set forth by Swinger, acting as his own attorney, were readily crushed by the legal team representing the title company, and in October of 2011 the county court dismissed Swinger’s case, issuing summary judgment against him without any trial. In so doing, the county judge adopted the position, set forth by the title company, that the river formed the original southeasterly boundary of Lot 1 and that it had always remained the bound- ary thereof as it moved westward, upon finding that Swinger had presented no distinctly persuasive or convincing evidence proving that any of the river’s movement was attributable to any specific act of avulsion. Quite ironically, evidence support- ing Swinger’s assertion that an avulsive event had occurred did in fact exist, and was readily obtainable, but due to his lack of knowledge of the resources which were available to him, he failed to bring the key information that would have supported his case into court, thus it was Swinger’s lack of preparedness, stemming directly from his own ignorance, which dictated this adverse outcome for him. Having experienced this initial defeat, Swinger devised a new plan, by which he believed that he could leverage the land east of the river to his own financial benefit in a different manner, so in March of 2012 he allowed his oppor- tunity to appeal this county court ruling against him to expire, but as we will see, that would prove to be another unwise de- cision on his part, which he would later regret (FN 5). Although Vanderpol was not involved in Swinger’s 2011 legal action discussed directly above, because Swinger had elected not to make Vanderpol a party to that action, Swinger inevitably had to deal directly with the rights of Vanderpol, since Vander- pol asserted ownership of all of the land lying south and east of the channel currently occupied by the river in the relevant portion of Section 35. Upon learning in 2011 however, during his action against his title company, that his title to the land lying between the modern river channel and the 1873 river channel was unclear and was deeply clouded, Swinger came up with an idea which he believed would enable him to mon- etize his clouded title to that area, despite its deeply flawed or non-existent status, without any need for him to ever make any visible entry into that area. Swinger apparently either discov- ered or was informed in 2011 that he could enroll all or part of his property in a program that was designed to preserve agri- cultural land, which was administered by Whatcom County, so he proposed to devote all of his land lying east of the river to that program, in exchange for financial compensation, and the county evidently accepted his proposal. By this means, Swing- er sought to extract as much economic profit as he could from the disputed acreage, without ever making any physical use of the land at issue, since he knew that taking physical posses- sion of that area would certainly provoke Vanderpol to take legal action against him. Presumably Swinger hoped that Van- derpol would never realize that a conservation easement had been imposed upon the relevant area, but any hopes of that nature which Swinger may have had were rapidly dashed, as Vanderpol soon found out what Swinger had done, whereup- on Vanderpol informed the county personnel in December of 2011 that he, and not Swinger, was the owner of the area in question, thereby notifying the county that no valid easement had been legally created in that location. Swinger was appar- ently aggravated and angered by Vanderpol’s exposure of the legal fallacy upon which Swinger’s conservation easement pro- posal was based, and refused to agree that he had no right to grant such an easement in the relevant location, so Vanderpol decided in May of 2012 to launch a legal action of his own, in an effort to fully resolve the matter. Unlike Swinger’s 2011 legal action, Vanderpol’s 2012 action (FN 6) was properly filed in federal court, rather than in the state court system, as by this time Vanderpol had become aware that a federal interest existed in the problematic area lying direct- ly east of the river bends in Section 35, thus Vanderpol’s action acknowledged the presence of federal riparian land rights in that area by listing the US as a defendant along with Swinger. Vanderpol evidently hoped not only to resolve his controversy with Swinger by means of this action, but just as importantly from his perspective, he also sought a judicial determination of the location of the boundary between his Lot 8 and the feder- al Lot 9, recognizing that the river’s movement had potentially expanded both of those lots, to some as yet undetermined ex- tent. However, although this action which was commenced by Vanderpol under the QTA was accurately targeted and was earnestly intended to facilitate full judicial resolution of the ti- tle issues that had been generated by the river’s impact upon Swinger’s Lot 1, Vanderpol and his legal teamwere not fully cog- nizant of the vital jurisdictional parameters of the QTA, and as a result Vanderpol, like Swinger, was headed for trouble. The positions of the opposing parties were both clearly outlined, Vanderpol maintained that the river had migrated westward from its platted position of 1873 through erosion, and that there was no definitive evidence of avulsive river movement, so all of the land now lying east of the river was accretion to Lots 8 & 9, while Swinger continued to insist that the river had abandoned its 1873 channel at some unknown date, therefore the original platted channel remained the southeast bound- ary of Lot 1 and Vanderpol’s property had not been enlarged by the river’s activity. In an initial ruling delivered in August of 2012, while effectively framing the riparian title and boundary issues which had been presented for adjudication, the federal district court judge rejected Swinger’s assertion that Vanderpol was seeking unjust enrichment. In so doing, the judge agreed with Vanderpol that those issues were within the parameters of the QTA, finding that QTA jurisdiction existed and allowing this federal action to proceed on that basis, but this most fun- damental point of law would later become a central issue itself, as we will observe. Having failed in his effort to induce the federal judge to silence Vanderpol, by throwing out Vanderpol’s case on the grounds that Vanderpol’s conduct amounted to slander of Swinger’s ti- tle, Swinger, who once again represented himself, remained adamant that Lot 1 still extended eastward to the west bank of the platted river channel of 1873, yet he offered no specif- ic evidence supporting his assertion that the river had moved westward avulsively rather than incrementally. Unlike Swing- er however, Vanderpol had wisely obtained the assistance of Continues on page 22 T