March April 2018

18 The Oregon Surveyor | Vol. 41, No. 2 The Federal Land Rights Series I n a prior edition of this series of articles, we conducted an initial exploration of some of the most interesting parameters and aspects of the federal Quiet Title Act (QTA) from which we learned, not surprisingly, that some variance exists in the judicial implementation of that federal statute (FN 1). In sub- sequent editions we have examined both federal case law and federal statutory law in the context of submerged land, noting that federal statutes such as the QTA can play a key role in the resolution of riparian scenarios involving boundary and title conflicts of various kinds (FN 2) suggesting that the operation of the QTA should be properly understood by all land rights professionals. As we have also observed in reviewing federal litigation involving land rights, conservation easements have be- come a popular tool for land preservation, and the title research which is typically associated with the creation of such ease- ments very often results in the discovery of previously unknown or long dormant and unaddressed boundary and title issues, producing controversy arising from the presence of public and private interests in such protected properties. Pursuant to that theme, here we will look on as one property owner’s decision to implement the conservation easement alternative brings serious boundary issues generated by historical river move- ment to the forefront, resulting in a dispute between private parties which in turn triggers a sequence of federal and state level litigation that ideally illustrates the adverse consequences awaiting those who neglect to address boundary issues in a timely manner. Thus in this edition we will focus on the signif- icance of understanding the legal implications of the presence of a federal interest, and in so doing we will observe how a federal land rights presence can substantially impact the litiga- tion options which are available to private parties who elect to seek judicial boundary and title resolution. As we will also have occasion to note, ongoing uncertainty over the proper use of the QTA, among both land owners and the legal community, clearly remains problematic, highlighting the importance of rec- ognizing the legal limitations of the divergent forms of action which are available to property owners seeking to resolve such issues under the law as it stands today. In this instance, our historical saga takes place in the northwest- ern portion of Washington, and it begins, as is typically the case whenever boundary issues appear, with the original survey of the public domain, which was conducted by the US General Land Office (GLO) in 1873 in the relevant area, 16 years prior to the arrival of statehood in Washington (FN 3). Whatcom Coun- ty, which stretches eastward from the Pacific Coast toward the mighty North Cascade Mountains, just south of the Canadian border, had already been in existence for about 2 decades by the time the original GLO survey work was done in this area, bringing homesteaders and other early settlers the opportu- nity to acquire title to legally defined land units by obtaining federal patents. The Nooksack River pursues a highly circuitous course through this landscape, winding its way westward from the western slopes of the majestic and perpetually snow cov- ered Mount Baker to the sea, and of course that river’s presence was duly noted by the GLO surveyors, through whose work it became a boundary monument, being depicted as such on nu- merous GLO township plats. Although the GLO had no reason and no intention to ascertain or determine the river’s navigabil- ity status, its presence as a prominent feature of the landscape merited the creation of riparian lots in those sections lying along the river, revealing to viewers of the relevant GLO plats that it comprised both a benefit and a burden to the lands through which it passed. Several such GLO lots were platted in a certain township, situated about 7 miles south of the aforementioned international boundary and about 14 miles upstream from the mouth of the river, identified as Township 40 North, Range 2 East, of the Willamette Meridian, which contains a bountiful quantity of wonderfully productive farmland. While the Nooksack River forms an especially beautiful and particularly valuable compo- nent of the ecosystem in Whatcom County, as an ambulatory boundary monument it also holds the potential, like all other such wandering streams which have been adopted as bound- aries of federal origin, to become a source of devilish problems for the owners of the properties which it penetrates or adjoins. Following its generally westward course, at the time of the original survey of the aforementioned township, the Nooksack River ran more or less through the middle of Section 36, just north of the center of that section, before reaching Section 35, which forms the site of the controversy examined herein. Then just shortly after crossing the line between those sections, and entering the southeast quarter of the northeast quarter of Section 35, the river took a sharp bend, of roughly 90 degrees, and flowed essentially due south, but for only about a quarter of a mile, before taking another 90 degree turn, and proceed- ing virtually due west once again, across the north half of the south half of that section and onward into Section 34. As a re- sult of the river’s presence, the GLO township plat indicated, Section 35 contained only 572 acres of unsubmerged land, as opposed to the standard 640 acre size of a regular section. In addition, the river’s presence resulted in the creation of 9 ripar- ian lots in Section 35 by the GLO, beginning with Lot 1, which occupied the portion of the southeast quarter of the northeast quarter, and also the portion of the northeast quarter of the southeast quarter, lying northwest of the river. Thus the south- eastern boundary of Lot 1 was formed by the 2 aforementioned bends in the river, but presumably unknown to anyone at that time, the seeds of future problems were already in place and growing, as the force of the onrushing stream was eroding the outer northwestern riverbank. Lots 2 through 4 in this section were each positioned along the north side of the river, all ly- ing to the west of Lot 1, and Lots 5 through 7 were positioned directly opposite Lots 2 through 4, along the south riverbank, but none of these lots played any role in the forthcoming con- troversy. Lot 8 included the area which would have been the The Federal Land Rights Series Does the presence of federal land always implicate the federal Quiet Title Act in the riparian boundary context? By Brian Portwood, PLS