In The

Supreme Court of the United States



and School Lands

Decided May 2, 1983

Justice O’Connor, Dissenting

Topic: Federalism*Court vote: 8–1
Note: No other Justices joined this opinion.
Citation: 461 U.S. 273 Docket: 81–2337Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, dissenting.

I agree with the Court that the sole remedy available to North Dakota is an action under the Quiet Title Act. Having concluded that Congress has permitted such suits, though, I would not reject the usual rule that statutes of limitation do not bar a sovereign, a rule that is especially appropriate in the context of these cases. Consequently, I dissent.

Since the Quiet Title Act is the sole relief available to North Dakota, we confront the question whether Congress intended the statute of limitations to bar actions by States. The Court resolves the question by invocation of the principle that waivers of sovereign immunity are to be strictly construed. See ante at 461 U. S. 287. [ Footnote 2/1 ] The question is not that simple.

Although it is indeed true that the Court construes waivers of sovereign immunity strictly, that principle of statutory construction is no more than an aid in the task of determining congressional intent. In a close case, it may help the Court choose between two equally plausible constructions. It cannot, however, grant the Court authority to narrow judicially the waiver that Congress intended. United States v. Kubrick, 444 U. S. 111, 444 U. S. 118 (1979); Indian Towing Co. v. United States, 350 U. S. 61, 350 U. S. 69 (1955). The mere observation that a statute waives sovereign immunity, then, cannot resolve questions of construction. The Court still must consider all indicia of congressional intent. Considering all the evidence, I cannot agree with the Court's conclusion that Congress intended to subject the States to a statute of limitations that would prevent their assertion of title to lands held in trust for the public.

The common law has long accepted the principle " nullum tempus occurrit regi " -neither laches nor statutes of limitations will bar the sovereign. See, e.g., 10 W. Holdsworth, A History of English Law 355 (1938); D. Gibbons, A Treatise on the Law of Limitation and Prescription 62 (1835). The courts of this country accepted the principle from English law. See, e.g., 85 U. S. Board of Harbor Comm'rs, 18 Wall. 57 (1873); United States v. Kirkpatrick, 9 Wheat. 720, 22 U. S. 735 (1824); Iverson & Robinson v. Dubose, 27 Ala. 418, 422 (1855); Stoughton v. Baker, 4 Mass. 522, 528 (1803); see generally J. May, Angell on Limitations 29-30 (5th ed. 1869). As this Court observed:

So complete has been its acceptance that the implied immunity of the domestic 'sovereign,' state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included.

Guaranty Trust Co. v. United States, 304 U. S. 126, 304 U. S. 133 (1938). In this country, courts adopted the rule not on the theory that an "impeccable" sovereign could not be guilty of laches, but because of the public policies served by the doctrine. The public interest in preserving public rights and property from injury and loss attributable to the negligence of public officers and agents, through whom the public must act, justified a special rule for the sovereign.

These policies reach their apex in the case of lands held in trust for the public. The interests of the sovereign, so widespread and varied, hinder it in the exercise of the vigilance in protecting rights that we require of private parties. Yet the public must not lose its rights because of the constraints on the sovereign.

If a contrary rule were sanctioned, it would only be necessary for intruders upon the public lands to maintain their possessions until the statute of limitations shall run; and then they would become invested with the title against the government, and all persons claiming under it. In this way, the public domain would soon be appropriated by adventurers. Indeed, it would be utterly impracticable, by the use of any power within the reach of the government, to prevent this result. It is only necessary, therefore, to state the case in order to show the wisdom and propriety of the rule that the statute never operates against the government.

Lindsey v. Lessee of Miller, 6 Pet. 666, 31 U. S. 673 (1832). Accord, Guaranty Trust Co. v. United States, supra, at 304 U. S. 132 ; Weber v. Board of Harbor Comm'rs, supra, at 85 U. S. 68, 70; United States v. Knight, 14 Pet. 301, 39 U. S. 314 (1840); J. May, supra, at 29. [ Footnote 2/2 ]

The lands in controversy here are held in trust for the public by North Dakota, see App. to Pet. for Cert. in No. 81-2337, p. A-6; United Plainsmen v. North Dakota State Water Conservation Comm'n, 247 N.W.2d 457 (N.D.1976). This case, therefore, implicates the core policies underlying the doctrine, and we should be extremely reluctant to reject the usual rule that time will not bar the sovereign.

The Court, however, dismisses this rule, apparently on the theory that it does not apply in actions between two sovereigns. But the authority that it cites for that proposition is weak, at best. United States v. Louisiana, 127 U. S. 182 (1888), involved a claim for money, rather than a dispute to title over public trust lands. More important, the parties never argued for the application of the rule that time does not bar the sovereign. See Brief for Appellant and Brief for Appellee in United States v. Louisiana, O.T. 1887, No. 1388. The Court's decision in that case therefore cannot serve as authority for rejecting the rule when, as is the situation here, it is raised. Nor does Minnesota v. United States, 305 U. S. 382 (1939), support the Court. There, a State sought to sue the United States in state court. Construing the waiver of sovereign immunity narrowly, we held that the United States had only waived its immunity as to suits in federal court, and we applied that condition against the State. Since no general rule permits a sovereign to maintain a suit in any forum it chooses, the holding of Minnesota reflects nothing more than the usual reluctance to construe waivers of sovereign immunity broadly in the absence of any countervailing considerations.

Thus, our precedents do not reject the principle that time does not bar the sovereign in conflicts between sovereigns. On the contrary, our precedents suggest that a sovereign can invoke this principle against another sovereign. In Rhode Island v. Massachusetts, 15 Pet. 233 (1841), the Court declined to apply the ordinary rule of limitations in a dispute between sovereign States. Chief Justice Taney observed:

[I]t would be impossible with any semblance of justice to adopt such a rule of limitation in the case before us. For here two political communities are concerned, who cannot act with the same promptness as individuals....

Id. at 40 U. S. 273. In particular, when lands held in trust for the public are at stake, the Court has recognized sovereign prerogatives of other governmental units as bars to defenses asserted by the United States. See New Orleans v. United States, 10 Pet. 662 (1836). [ Footnote 2/3 ] Consequently, I disagree with the Court's conclusion that the principle that time will not bar the sovereign has no application in these cases.

Turning to the statute at issue here, the circumstances of its enactment indicate that Congress did not intend to bar actions by States. As general background, we know that Congress was aware of the rule that, to affect the government, an enactment imposing a burden or a limitation must expressly include the sovereign. See, e.g., Wilson v. Omaha Indian Tribe, 442 U. S. 653, 442 U. S. 667 (1979). The particular incident that spurred Congress to pass the Quiet Title Act was a dispute between private landowners and the Federal Government. See Hearings on S. 216 et al. before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., 83-85 (1971) (affidavit of A. L. Robinson). The statements in the hearings reflect a focus on disputes between private citizens and the Federal Government. See, e.g., id. at 20 (statement of Shiro Kashiwa) (referring to claims of "private citizens"); id. at 55, 58 (statement of T. E. McKnight) (observing that "private landowners" had no right to sue the Government). See also S.Rep. No. 92-575, pp. 1, 2 (1971) (recognizing inequity of denying action to "private citizen" and explaining that bill would enable "citizen" to have his day in court). Finally, the House Report explained the limitations provision in the Quiet Title Act as designed to give "persons" a certain amount of time to sue. H.R.Rep. No. 92-1559, p. 5 (1972).

Indeed, this Court has already been called upon to conform the provisions of the Quiet Title Act enacted by Congress with private citizens in mind -to the special requirements of litigation involving States. In California v. Arizona, 440 U. S. 59 (1979), California sought to sue Arizona and the United States, in a quiet title action in which both defendants were indispensable parties. Under the Constitution, this Court had original jurisdiction over the claim against Arizona, U.S.Const., Art. III, § 2, and Congress had conferred exclusive jurisdiction on this Court. 28 U.S.C. § 1251(a)(1). The claim against the United States, however, could only be maintained under the Quiet Title Act, which vested exclusive jurisdiction in the district courts. 28 U.S.C. § 1346(f). In spite of the general language placing all quiet title actions against the United States in the district courts, we concluded that Congress did not intend to divest this Court of its jurisdiction. Thus, while Congress clearly intended that States be able to maintain quiet title actions, the procedural provisions drafted with the private citizen in mind need not be applied with slavish literalness to States. [ Footnote 2/4 ]

Finally, we cannot ignore the special nature of the lands at issue in this case. The beds of navigable waters pass to the States when they achieve statehood under the constitutional equal footing doctrine, as an incident of sovereignty. Montana v. United States, 450 U. S. 544, 450 U. S. 551 (1981); Pollard's Lessee v. Hagan, 3 How. 212 (1845). And the lands are of critical importance to North Dakota, which holds them in its sovereign capacity in trust for its citizens. [ Footnote 2/5 ] Congress has recognized the special importance of these lands in the Submerged Lands Act, 67 Stat. 30, 43 U.S.C. § 1301 et seq. [ Footnote 2/6 ] Until today, the Court too has shown special sensitivity to the importance of these lands, recognizing the strongest presumption that Congress will not act to convey the lands, rather than to preserve them for the State. Montana v. United States, supra, at 450 U. S. 552. Given that solicitude for the State's ownership of these lands, it becomes extremely difficult to believe that Congress intended to deny States dominion over these lands by silently extinguishing their right to quiet title. I would affirm the judgment below.


[ Footnote 2/1 ]

The Court's reliance on this principle is surprising, since it expressly declines to decide whether, without the Quiet Title Act, sovereign immunity would bar this action. Ante at 461 U. S. 285 -286. Thus, as far as the Court is concerned, the Quiet Title Act may not, in fact, be a waiver of sovereign immunity, and these cases then would not present the predicate for the application of the principle that waivers are construed narrowly. Since I believe, for the reasons suggested by the Court, ante at 461 U. S. 281 -282, that the Quiet Title Act was necessary to permit this action, in my view, the principle of strict construction does inform, although it does not control, our inquiry into congressional intent.

[ Footnote 2/2 ]

The case for protecting the sovereign from the running of tine is weaker when the lands are held other than as public trust lands. When, for instance, a sovereign holds lands in its proprietary capacity, as the United States would hold the title that it asserts to these lands, ante at 461 U. S. 277, time may run against the sovereign. See Weber v. Board of Harbor Comm'rs, 18 Wall. at 85 U. S. 68 ("Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there is some reason in requiring the assertion of her rights within a limited period...") (dictum).

[ Footnote 2/3 ]

In New Orleans v. United States, the United States argued that the city of New Orleans was estopped to assert title to certain lands held for the public. At the time, estoppel could not be asserted against a sovereign, see, e.g., 76 U. S. United States, 9 Wall. 45, 76 U. S. 49 (1870), and the Court declined to estop the city, largely on the ground that the lands were held in trust for the public and, since the sovereign could not by act convey them, the sovereign's acts could not estop it from asserting that they were not conveyed. Although the protection against estoppel has since largely dissipated, see generally Note, Equitable Estoppel: Does Governmental Immunity Mean Never Having to Say You're Sorry? 56 St. John's L.Rev. 114 (1981); K. Davis, Administrative Law of the Seventies § 17.01 (1976), the application of that protection in New Orleans contradicts the view of the majority that, in controversies between the United States and another sovereign, only the United States can rely on sovereign attributes.

[ Footnote 2/4 ]

Cf. Wilson v. Omaha Indian Tribe, 442 U. S. 653, 442 U. S. 667 (1979) (rule that statute must expressly include sovereign is particularly applicable "where the statute imposes a burden or limitation, as distinguished from conferring a benefit or advantage").

[ Footnote 2/5 ]

Cf. United States v. Oregon, 295 U. S. 1, 295 U. S. 14 (1935) ("Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself.... For that reason, upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce").

[ Footnote 2/6 ]

In § 3(a) of the Act, 60 Stat. 30, 43 U.S.C. § 1311(a), Congress provided:

It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States....

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