March April 2018

22 Vol. 41, No. 2 The Oregon Surveyor | The Federal Land Rights Series a professional land surveyor, who testified that his view of the historical evidence suggested to him that the river had relocat- ed itself, at least partially if not entirely, through erosion and accretion, which served the key purpose of placing a legal bur- den upon Swinger to bring forth some form of clear and distinct evidence to the contrary. In December of 2012, after noting that neither party had presented truly complete or convinc- ing evidence regarding the historical changes undergone by the relevant portion of the river, the district court issued sum- mary judgment in favor of Vanderpol, concluding that Swinger had failed to meet his burden of proof with regard to histori- cal evidence of avulsive river movement (FN 7). In desperation, Swinger argued that Vanderpol should not be allowed to utilize adverse possession in support of his position, because Vander- pol had failed to assert ownership of the disputed area based on adverse possession with sufficient promptness. The court read- ily dismissed this argument however, pointing out to Swinger that the statutes of limitation which facilitate adverse posses- sion never operate against one who holds physical possession of land, such statutes operate only against delinquent owners of record, who neglect to take any action to recover land in a timely manner, because those statutes were devised to protect land use, informing Swinger that his position with regard to ad- verse possession was entirely without merit. In reality, Swinger’s view of adverse possession was not merely meritless, it was also moot, because Vanderpol had no need to rely on adverse possession in order to prevail over Swinger, since Swinger had never proven that any avulsive river movement had ever oc- curred, so this loss suffered by Swinger actually resulted solely from his failure to gather and present any satisfactory evidence of avulsion, which he could well have done. Although Swinger had utterly failed to understand or appreci- ate the value and importance of assembling sound historical evidence supporting his position regarding river movement, of the kind routinely compiled by land surveyors while research- ing riparian boundaries, and by this point he had tasted defeat twice, in county court in 2011 and in federal court in 2012, for that reason, he was apparently smart enough to recognize that the 2012 ruling against him was fatally marred by a crucial ju- dicial flaw. As the astute reader may have already noted, the federal presence was left unaddressed in the December 2012 district court ruling, and the riparian land rights held by the US were thus left unresolved, despite the fact that Vanderpol had included the US along with Swinger as a defendant when filing his federal action in 2012. Ironically, even though Swinger ap- parently never made any effort to coordinate with the BLM to determine the legal extent of Lot 9 pursuant to accretion, because he declined to acknowledge that any accretion had occurred, and Vanderpol did attempt to obtain resolution of the location of the boundary between Lot 8 and Lot 9 in the accretion zone through coordination with the BLM, the federal presence was destined to operate in Swinger’s favor. The BLM was powerless to resolve the title and boundary issues raised by the substan- tial expansion of Lot 9 through coordination with Vanderpol alone, because Swinger also asserted title to the accretion zone, and such contention over the land lying between the modern and historical river channels could be resolved only as a mat- ter of state law, thus the hands of the BLM were effectively tied, preventing the completion of any final riparian boundary agreement for accretion division purposes between Vanderpol and the BLM. This scenario enabled Swinger to leverage the federal presence to his advantage, and he did so by appealing the 2012 ruling, requiring the Ninth Circuit to review the legal basis for the federal district court ruling against him. Because Vanderpol had filed his action under the QTA, the appellate court found, he had to prove that an authentic land rights dis- pute involving an assertion of title by the US existed, which he was unable to accomplish because the BLM had never made any distinct or specific assertion of title to the land between the channels. Therefore, the federal Court of Appeals struck down Vanderpol’s 2012 victory on the grounds that the lower court had incorrectly determined that QTA jurisdiction was present, when in fact none existed (FN 8). Vanderpol was thus handed a major setback by the Ninth Cir- cuit, but his cause was not completely lost, because although he had made a serious error, in failing to recognize that he was incapable of proving that he was engaged in a title dispute with an agency or branch of the federal government, which forms an essential pillar necessary to support any QTA action, Swinger had also erred, in what would prove to be an even more dev- astating manner. Nonetheless in February of 2016, filled with renewed confidence following his appellate court triumph, and serving yet again, for a third time, as his own sole legal advo- cate, Swinger proceeded to directly challenge Vanderpol in the state court system, by filing a quiet title action against him. Ob- serving however, that this new action filed by Swinger effectively amounted to a repetition of the case which he had brought into a Whatcom County courtroom 5 years earlier, when he had charged his title company with negligence and error in the preparation of his title report, as outlined previously herein, the county judge dismissed Swinger’s 2016 action, informing him that his opportunity to litigate the boundaries of his property had passed. Unwilling to accept this decision, Swinger pressed on, bringing the matter to the Washington Court of Appeals, only to learn that he had indeed exhausted all of his legal options, as the appellate panel agreed that Swinger’s contentions were unworthy of any further judicial attention (FN 9). The Court of Appeals held that Swinger had “a full and fair opportunity” to prove that avulsive river movement had occurred, during his first legal action in 2011, and his failure to do so at that time had foreclosed and resolved that issue on a permanent basis, contrary to his position. Therefore, any additional evidence per- taining to the river’s historical activity, which Swinger may have gathered since 2011, was useless to him, because he had not presented it for judicial review when it was needed for that pur- pose, thus the Court of Appeals was required in 2016 to impose an estoppel upon him, pursuant to the time honored judicial concept of res judicata (FN 10). In effect, Swinger was judicially required to lie in a bed of his own making, and the fact that his land rights had been limited as a result of his own folly made no difference, he was simply left to live with the legal conse- quences of his own lack of diligence and timeliness in executing riparian boundary and title research (FN 11). Although Swinger was ultimately unable to prevail, he had perpetuated this controversy for several years, to the distinct financial detriment of Vanderpol, leading in 2016 to a judicial damage award in Vanderpol’s favor, and in fully upholding that award the Court of Appeals reminded Swinger of the serious responsibility he had taken on by electing to proceed pro se, which had proven to be a disastrous decision on his part (FN 12). In addition to the land between the channels, Swinger sought over $50,000 in damages from Vanderpol, on the grounds that