the the claims in this case revolve around when i created land on the yellowstone river my folks are farmers and they purchased what were originally patented lots which are have right beriah riparian borders the inland borders are fixed and set borders the river side were originally marked with the meander line which was roughly designated where the extent of usable farmable land was so that farmers when they were purchasing this land would have an idea of what they were really buying however that wasn't the extent of of the air their property they owned to the ordinary high water we had with the movie interline is it's not the center of the stream it's the high water we had so mark on the  from the high water mark recognizing that there generally is some rough land closer to the ordinary high water mark that you cannot use however there are the deed itself clearly provided that their property extended to the ordinary high line means and how it's used in that they really do own to the ordinary high watermark so that it's consistent with a movable river it's a boundary that changes the yellowstone river is an undamped river and has great movement within its within its valley but some of your claims here relate to land between the high water mark and the low water mark yes they do your honor and the reason that is is that under montana law there is a provision under montana law unnavigable rivers that the state of montana who received the bed of at least most of rivers and the equal footing doctrine have ceded to the landowners that land between the ordinary high watermark and the low water mark for the purpose of feeding cattle to be honest but i mean generally a nd count from the high watermark to the low what i understand that in part of part of the issue here is that the district court seems to have packaged all the claims together i agree i see the district court seems to have thrown the baby out with the bathwater it's our position that certainly at the very least the claims to the high water mark are not barred by the q th twelve year statute of limitations there's nothing about why is that so it seemed to me that the magistr judge his recommendation was adopted then by the district court had the notion that you needed to point to something that happened since two thousand and two to show why this claim isn't time barred and the then the magistrate judge that you had not done that and i don't really see anything in your brief now that does that so i don't understand how we can think that something happened since two thousand and two that keeps your claims alive on any of the claims well you know i think that the distinction lies as to the year th created land and the notice provided by the statutory language about the middle of the channel and the particularly in the fidelity explorer case which talks about that on the so what about and since two thousand to own the riverbed that is adverse to my client's gaining position of land as a crete's but if if if the united states the sort of claim to the river bed wouldn't they and the islands in the river bet they would if the islands formed depending on the interpretation of the equal footing and whether they formed in the self their southern half of the river or the northern half of the river if the a lot islands originally formed in the northern half of the river and we've cited to the record where some of the maps seem to indicate that they did those belong to the state of montana and not the united states united states doesn't have a reasonable claim to those but why did you sue the united states why did we say that they were predecessor in title under montana law when you bring a quiet title act you are required to bring it against any possible person but so what changed since two thousand and two as to you and i so you're still in the united states for some reason and i can understand what changed in two thousand and two and if nothing changed in two thousand and two then it seems like it's time barred well some of the what has happened is the increased pressure of recreation on the river and the advent of g p s and what does that have to do with the united states folks have now hunters and fishers have preprogrammed maps that doesn't get to them where it says they feel least they are free to go in what is public land and not public land and these are often in there and it's causing preaching conflict between landowners and recreation as to where what is public land it is not under montana long we have a stream access law that are navigable rivers of repudiation are allowed to access from the low water mark to the ordinary high water mark which creates some conflicts initially anyway because where that is and also if there is some few that some of this may or may not be public land but in your view if it's public land it stant land once led to crete's it's no longer part of the riverbed and montana law is clear that land of the crease belongs to the right parian landowner and the united states has done nothing to provide any creations or otherwise you don't remain a riparian landowner right the river given the river taketh away and that's been cited by the united states can court is part of federal law and also in this montana statutory law but i don't understand how that makes your claim  timely because might be why you should win it or something but i'm not even sure the united states has the right defendant can you explain again why you think that makes the claim timely yes because we are not there's been no notice that the united states is claiming an interest and adverse interest in this or created it so your twelve years would run from the assertion i remember and schultz we said that putting up a gate house and a gate and guards to keep people out of army land wasn't enough to put somebody on notice that the feds were claiming file an action to quiet title whether it's in federal court against the feds or in state court against all who may have an interest and nobody shows up yes your honor you just get a default and you're right and in this interest with the united states maybe that's where we did this or yes certainly there is a claim now that it is adverse but there wasn't before and as to this or created land you know this is different for instance in the fidelity explorer case where there was a lease for the river bet they and the riverbed itself was what was being adjudicated who owns that we're not trying to say that we own the river that's minerals and this is for answers or so yes yes my for my clients thirty year old thirty years of ranchers and farmers and we're talking about a created why are there cattle yes in the river and the issue is will they be able to water their cattle without whether they can water their cattle tints or somebody you know yes and we understand that there may be an argument has to be between the high water mark in the low water mark that a little different beast then the created land but we feel very strongly that the created land there is no notice from the united states that they are that they have there are maps which lists those lands are any good maps i looked at the maps they're just black and white reproductions of small maps i can read them there are larger color maps which obviously don't lend themselves to electric  electronic filing that certainly could be provided are they somewhere they in the district court where are those they they hopefully were part of the deal but you know district court records but you don't know if they were i my understanding is they were but i'm not personally relative i'm sure you've read the record i have read the record s but i've been looked at as a black and white whether they are the color ones exist in the record i do not know i know when it was originally filed they were color argument the accretions are attached islands yes there are that's is another complicating factor in this case is that accretions that have created to them the river bank have  creek created to these islands have met and depending on your view of of how far that is there's a dispute there which is again wasn't known before that but certainly i don't think that you can throw out all the whole claim when it's some of that is indeed a credit to the riverbed and there's never been any notice something on the on the islands the idea of accretion law for many centuries has been that if you're ripari mountain of case law about what happens when the river goes down and an island rises and also at the bank it creates land and they meet that's not uncommon yes and under montana where that line is the break between the attrition is that we're attached to the land and those that were attached to the island in our case we haven't asserted where that exact line is of the law that the riparian owner gets the island but that you have to figure out some line yes it is in our case we've not asserted where that line is because it's our belief that the united states doesn't own the islands they could and we were under the same hope that the my state of montana would consent to having this argued in federal court and we were unfortunately surprised that they did not and certainly there's no forum where we can compel both the united states and the state of montana to both be in here the other problem with that is that if we have to wait for those requiring title against the u s here in quieting title against one hundred and ten in a subsequent act yes the court yes and the problem is if  we as been suggested we wait around for those two sovereigns to eventually get around to litigate ing that and the united states winds well our twelve years may well have been gone and there's no provision for tolling that assumes that your twelve years ever started yet what exactly is your is your claim with respect to arrow co creek are you claiming all the land that was formally under arrow creek yes with the exception of that which is nearest to lot sixteen it is a what is it is now a real licht did a dry stream bed and we were there it is navigable or not want the practical effect is that the landowners on each side own to the middle good morning america transfer the united states plans are seeking a quiet title against the united states to do that the st half the burden of establishing that they fall within the limited waiver of sovereign immunity established by the quite title act the plaintiff is now claiming and to the extent we as the united states that they are claiming title two that did not fall within the united states claim this court also lacks jurisdiction because the complaint doesn't satisfy another condition of that limited waiver of sovereign immunity and that's the condition that the complaint plead with sufficient particular particularity the interest that they're claiming the circumstances under which they took that interest and the adverse interest of the united states i need some help on something ok we have this case quite title lactase about when this twelve year statute of limitations accrued in shorts versus department of the army in that  case there are bunch of homesteads army wasn't even there the army put a military base over a large area that had homesteads and an area some groups of homesteads that were patented on the landlocked side of the military base needed access so they were driving down the road through the military base the question was whether because it had been there since world war two a landowner who sued in the eighty's was barred by the twelve year statute of limitations from using the quiet title act acquired title to an easement over the road through the military base we held in that case that erection of a fence gate and generally on attended guard post alone was insufficient to put a reasonable landowner on notice of claim we hold that the earliest the cause of action accrued was when the army began to restrict access through a past system and here what i was trying to identify was when the twelve year statute started running and i couldn't find anything that was remotely close to the united states restricting and the the plaintiff's use of the  accreted lands so it's not a question to me of when it expired it's a matter of when it started running until there's the us does something that doesn't start you have the statute doesn't mean you have to sue as soon as you're worried it means you have to sue when somebody interferes with your your rights to your land well your honor it strikes me that this case is much more similar different law as for their honor is he in united states ever interfered with the landowners right to graze cattle to the high water mark no i don't believe says it ever interfered with the ability of riparian landowner to graze on a created land no but the united states claim here to the mid channel that's it that's a congressional pronouncement that the united states own lands up to the middle of the river there could be nothing more clear no claymore clear by the united states of ownership not congressional act the also the lamps that plant is trying to quiet about the created land to the river bank and the creek well here's a big problem plaintiffs i heard plans council just say that their patents say they are right parian owners that is not accurate the  patents do not say right period they do not say high watermark instead they reference a farm plan that we don't have in the record we also don't have a chain of title extending from those patents to the  if we leave the entire case they are raising a lot of questions out there even if you are satisfied that there is jurisdiction here that they have both fallon with and the statute of limitations and pled the claims with sufficient particularity there is absolutely no evidence in this record that would allow the court to quiet title and these plaintiffs they when how into the united states assert a claim to the created land undershorts i mean in short surely the united states asserted the right to build a road across land that these homesteaders thought that they were entitled to but since it didn't bar the use by the homestead the full contours of the united states claim they just have to understand that it would create a cloud on their book titles that plowed through just what used quite a title act claims for i suppose the most common use that i've ever seen of  is when there is some sloppy drafting of deeds in the chain of title so that before exploiting the land fully the landowner has to clear the clouds off and there's no statute  totally different animal ok let me try this another way today i heard plaintiffs say nothing about these claims below the ordinary high watermark i it seems that they are abandoning the argument that they didn't have noticed a vat at least because those are rare but claim so that's those are all the even claims if we're talking just about accretions it's plain from this record that the majority of what they are claiming as accretions are in fact former iowans that were federally them to establish that are you thing that you're entitled to prevail in such a way that on a created lands the rancher would no longer be able to use them to water as cattle or whatever else he might want to adversely possessed them say the us would have put a restricted park on the created lands and you can't graze your cattle there anymore at that point i can see word have to sue within twelve years but i think you're right i'm asking you is that your position well i'm i'm really talking at this point less about the statue limitation and more just about the merits of this case because if this went off at the summary judgment face the record has been as developed as it's going to be absolutely no evidence that would allow the court to even answer that question and there's they have presented no expert testimony at all there's also they have also no knowledgeable fact witness that would be so if you went to trial they they certainly would have burden of proof a trial i suppose well but what i'm but this is going off on statute of limitations usually if you want to build say an office building and there were some sloppy drafting in some of the deeds one hundred years ago or fifty years ago or whatever you bring a quiet title action against the world and you  complaint for for why you own the land that you want to build the office building on give notice to the world every person will notice wherever it's possible  publication or something where it's not and then the whole world can respond and say no you don't own that we do and burden of proof really doesn't come into it at that point because if there's a motion to dismiss that action because someone says they made a claim that accrued some number of years ago and that winds become adversely possessed by them say they built a driveway over part of the land that is going to be the office building many years ago and then the burden of proof and the statute of limitations come up well the burden of proof is really important here because although the district court rule you can't prove anything if you can't go to trial you need they need to survive a motion for summary judgment that's that's where we were and perceiving ok know no case whatsoever about what extent of vick accretions they are entitled to they didn't put in their patents or deeds we have patents that just reference lots in a farm unit plan and so we have the original patents and then we have their deed and nothing in between they also if you look at i think this is really in shock to the armstrong case that cited in our previous is very helpful walking through background principles of montana law daughter creation and i  information and a jointer but it also talks about the type of evidence that you would expect to see in this kind of case to establish you know if you have accretions to mainland and accretions to an island trying to establish where that line is  to establish a property boundary in that case there was testimony from a settlement halid jess and on the other side testimony from a geologist with a specialty in flu field geomorphology these are the type of type of experts that could look at the ground custom here now or other cases you're aware of and i talking about the law i'm talking about what one there is a general principle that right where that line is between their allegedly very perry and lots and the form islands that have become a joint of them and without any of that evidence they as the as the the party with the burden of proof dry and fully relate to it he can say that but that's not in the record the record suggests that there is still rather moving in that channel and that it's thank you counsel i don't remember how much i think we had you passed your time so i'll give you a minute for about all they are free to be quick to the summary judgment issues that she's raised beyond the statute of limitations the in their briefing before the magistrate in a district court what the united states said was is that it was a discovery issue that the the hinds had not produced the full documents for the change of the record to which we responded their public records but isn't it your burden to show the chain of title trial it is yes they did not write how do you survive summary judgment if they're raising that you don't have evidence and you haven't shown the evidence they didn't raise that we don't have the evidence they just raised that we and it has to be and is there anything in the record you can point us to that shows that the creek is totally dry all the time yes there was there i believe we cited in our brief to the district court their expert testified that it was related can you point us to where that is i don't have that with with me right here i have to go back for the record your honor and as to the issue of drawing a line and saying where the two lands meet it's our position that the united states does not own those islands and that to draw a line as to where our property ends and there is begins there isn't a line where their property begins it belongs to the state of montana and that fight is a different fight summary judgment that there wasn't they raise it as a discovery issue that we should have provided these documents but we didn't they didn't deny that we owned it isn't that just a magic you need to show evidence when we do need to show evidence but whether we need to produce a public copy of a public document through own national disclosure is a little different i'm trying to understand this suppose i file a quiet title action in the state of washington on the land where the fairmont hotel is yes  surely if there's a motion for summary judgment i have to show some prima facie case for my for that that i own the land where the fairmont hotel is yes and we sure we did provide the deeds that show that we own it but there the way it was styled in their motion for summary judgment was not that we did not own the land or that it wasn't right parian land it was simply that we failed in a discovery obligation to which our response was these are public documents and public documents make it riparian yes but we don't have those in the record and they're not in the record because there wasn't a denial of our ownership ok both sides are out of time  t thank you counsel for the helpful arguments we're adjourned for the day and for the week