ELR Citation: ELR 20432
No(s). 91-2725 (8th Cir. Aug 10, 1992)

The court holds that a district court was not clearly erroneous in ruling that the United States has title to the riverbeds of the Little Missouri River in North Dakota, because the state failed to prove by a preponderance of the evidence that the river was navigable when North Dakota became a state in 1889. In 1978, North Dakota brought an action in federal district court to determine title to certain portions of the riverbed of the Little Missouri River where it runs through federally owned lands, asserting title pursuant to the "equal footing" doctrine and the Submerged Land Act of 1953. Under that Act, title to the riverbeds of rivers that were navigable at the time of statehood vests with the state on its admission to the Union, while title to riverbeds of rivers that were not navigable at the time of statehood remains in the United States. In response, the United States argued that the state's claim was barred by the Quiet Title Act's 12-year statute of limitations. After the district court held that the statute of limitations did not apply and the Eighth Circuit upheld that decision, the U.S. Supreme Court reversed, holding that states are subject to the Quiet Title Act's statute of limitations. Subsequently, Congress amended the Quiet Title Act, exempting states, for certain purposes, from the Quiet Title Act's statute of limitations, and North Dakota again sought to quiet title against the United States. This appeal followed the district court's holding that the state had failed to prove by a preponderance of the evidence that the Little Missouri River was navigable when North Dakota became a state.

The court holds that the record supports the district court's rejection of North Dakota's claim that the Little Missouri River was navigable in 1889. First, evidence presented to establish that railroad ties were floated down the Little Missouri River in the 1880s from southeastern Montana for railroad track construction 270 miles downstream in North Dakota did not establish that the river was a highway of useful commerce. Although the ties ultimately traveled down the river, they were floated in times of high water and many ties were hauled 100 miles overland due to times of low water. The district court thus properly concluded that the tie drive did not rise to the level of "occasional" usage, but rather was a unique and isolated venture that was only partially successful because of unusually high water. Next, the state's claim that Indian hunting parties historically used the river was supported by only one expert, and the district court's decision to limit the evidentiary weight of that fact was not clearly erroneous. Further, the district court properly concluded that the state's establishment of the existence of cable ferries across the river was irrelevant to the issue of navigability, because this fact did not show the susceptibility of the river for upstream or downstream commercial use. Next, the state's evidence that Lewis and Clark's journal contains writings that indicate that the river may be navigated with small canoes was inconclusive. Finally, the evidence of modern day recreational canoe use to prove the river's susceptibility to commerce at statehood was properly accorded little weight, since evidence indicated that the river today is not the same for purposes of useful commerce as it was at statehood.

Counsel for Appellant
Charles Carvell, Ass't Attorney General
Attorney General's Office
State Office Bldg., 900 E. Blvd., Bismarck ND 58505
(701) 224-3640

Counsel for Appellee
Cameron W. Hayden, Ass't U.S. Attorney
U.S. Attorney's Office
452 U.S. Post Office & Courthouse, Third & Rosser Ave., P.O. Box 699, Bismarck ND 58502
(701) 250-4396