United States District Court, D. Oregon, Portland Division
HAURY LIVING TRUST, by and through ELMER HAURY, and ARTIE HAURY, Trustees, Plaintiff,
UNITED STATES OF AMERICA; JAMES RICHARD PERRY, in his official capacity as Secretary of the United States Department of Energy; BONNEVILLE POWER ADMINISTRATION, Defendants.
Michael G. Neff Eric J. Brickenstein HAGLUND KELLEY LLP
Attorneys for Plaintiffs
J. Williams Jared D. Hager U.S. ATTORNEY'S OFFICE FOR THE
DISTRICT OF OREGON Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Haury Living Trust brings quiet title and related claims
against the United States of America, Secretary of Energy
James Perry, and the Bonneville Power Administration
(“BPA”). Under Federal Rule of Civil Procedure
12(b)(1), Defendants move to dismiss two of the claims for
lack of subject matter jurisdiction: (1) a negligence claim
under the Federal Tort Claims Act (“FTCA”), and
(2) timber trespass claims under Oregon Revised Statutes
§§ 105.810(1) and (2). I grant the motion.
predecessor in interest conveyed an interest in real property
to the United States Government for the operation and
maintenance of power lines. The relevant terms of the
easement grant Defendants “the right to clear said
parcel of land and keep clear of all brush, timber,
structures and fire hazards, provided however, the words
‘fire hazards' shall not be interpreted to include
growing crops[.]” Declaration of Jared D. Hager
(“Hager Decl.”), ¶2, Ex. A at 2, ECF No. 9.
On June 2, 2009, the BPA cut sixty-six filbert trees on the
parcel subject to the easement. Plaintiff, believing
Defendants did not have the right to take this action, timely
filed claims under the Quiet Title Act (“QTA”),
the FTCA, and the Oregon timber trespass statutes.
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) addresses the court's subject matter
jurisdiction. The party asserting jurisdiction bears the
burden of proving that the court has subject matter
jurisdiction over his claims. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
12(b)(1) motion may attack the substance of the
complaint's jurisdictional allegations even though the
allegations are formally sufficient. See Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007)
(court treats motion attacking substance of complaint's
jurisdictional allegations as a Rule 12(b)(1) motion);
Dreier v. United States, 106 F.3d 844, 847 (9th Cir.
1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule
12(b)(1) motion can attack the substance of a complaint's
jurisdictional allegations despite their formal
sufficiency[.]”) (internal quotation omitted).
Additionally, the court may consider evidence outside the
pleadings to resolve factual disputes. Robinson v. United
States, 586 F.3d 683, 685 (9th Cir. 2009); see also
Dreier, 106 F.3d at 847 (a challenge to the court's
subject matter jurisdiction under Rule 12(b)(1) may rely on
affidavits or any other evidence properly before the court).
seeks: (1) a declaration under the QTA that the filbert trees
are not within the scope of the easement; (2) $33, 000 in
economic damages under the FTCA; and (3) $99, 000 in treble
damages plus attorney's fees under the Oregon timber
trespass statutes. Defendants move to dismiss all but the QTA
claim. They argue that the QTA is a limited waiver of
sovereign immunity and is the only claim in which a claimant
may challenge the title of real property in which the United
States has an interest. Plaintiff opposes the motion and
contends that the QTA does not preempt other claims.
1983 case, the Supreme Court analyzed this sovereign immunity
issue and held that “Congress intended the QTA to
provide the exclusive means by which adverse claimants could
challenge the United States' title to real
property.” Block v. North Dakota, 461 U.S.
273, 286 (1983). The Ninth Circuit decision in Robinson
v. United States extended Block, which
concerned a direct title challenge, to challenges over the
scope of the easement. 586 F.3d at 686. Under
Robinson, challenges over the scope of an easement
are properly brought under the QTA, but challenges over use
are not. A “use” issue involves interference with
existing easement rights and does not implicate title.
Id. at 688. In Robinson, the plaintiffs
alleged that an unshored slope on the defendant's
property caused subsidence on a road to which the plaintiffs
had a non-exclusive right-of-way. Id. at 685. They
also alleged that a curb, fence, and fire hydrant encroached
onto the road and interfered with the plaintiffs'
use. Id. The court explained that there was
“no dispute that the trust property was subject to a
sixty-foot easement for specified purposes, ” and thus
the dispute was one about use and did not fall within the
QTA. Id. at 688.
extent that the distinction between use and scope as outlined
in Robinson was not made clear by the
Robinson court, later cases have clarified the
issue. Sawtooth Mountain Ranch LLC v. USFS explained
that where an adverse claimant's argument concerns the
“bundle of sticks” conveyed to the United States,
the claim is about the scope and therefore falls directly
within the QTA. 1:19-cv-0118-CWD, 2019 WL 2477608, at *7 (D.
Idaho June 13, 2019) (“Plaintiffs do not allege the
Defendants' proposed use of the land interferes with the
easement. Rather, Plaintiffs repeatedly assert that the type
of trail, and the extent of construction… was not
contemplated by the easement. Plaintiffs' argument
squarely concerns the scope of the easement, or the
‘bundle of sticks,' conveyed to the United
States.”); see also Kootenai Canyon Ranch, Inc. v.
USFS, 338 F.Supp.2d 1129, 1132 (D. Mont. 2004) (dispute
over whether certain use of easement was permissive or was
granted in easement was a dispute over scope and thus a claim
under the QTA was the plaintiff's exclusive remedy);
Beasley v. United States, 12-cv-3136-LRS, 2013 WL
1832653, at *3-4 (E.D. Wash. May 1, 2013) (claimant's
challenge that the use of an easement by the United States
interfered with his rights as reserved to him in the easement
and that this use was beyond the scope of the intended use of
the easement, was a dispute as to the scope and the exclusive
basis for subject matter jurisdiction was the QTA); Grand
Canyon W. Ranch, LLC v. Norton, 03-cv-2496-PHX-EHC, 2006
WL 1127186, at *1 (D. Ariz. Apr. 26, 2006) (dispute over
whether easement granted right to BLM to allow commercial
traffic on road was a dispute over scope and claim under the
QTA was proper). Robinson made clear that challenges
to scope fall under Block's holding and can be
brought only under the QTA.
expressly pleads a QTA claim. Compl. ¶ 15, ECF No. 1.
(“By cutting Plaintiff's mature, producing filbert
trees, BPA claimed an interest in the Property
pursuant to the Easement. In fact, however, BPA had no such
right.”) (emphasis added). And, in the briefing,
Plaintiff concedes that jurisdiction under the QTA is
appropriate and further contends it is the necessary
precursor to the FTCA claim. Pls. “Opp'n to Partial
Mot. to Dismiss 3, 8, ECF No. 12. (plaintiff…
acknowledge[s] that QTA jurisdiction is available”;
“[P]laintiff, in part, has invoked QTA jurisdiction
because a determination of who owns what rights in the
property is necessary to determine if the defendant
has committed the alleged tort.”) (emphasis added).
Both Block and Robinson make clear that if
the dispute falls within the QTA as a scope challenge, the
QTA provides the exclusive remedy. Robinson, 586
F.3d at 688 (“[A] suit that actually challenges the
federal government's title [or scope], however
denominated, falls within the scope of the QTA regardless of
the remedy sought… To hold otherwise would merely
allow parties to avoid ...