             Case: 17-11908   Date Filed: 07/23/2018   Page: 1 of 10


                                                                       [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-11908
                         ________________________

                     D.C. Docket No. 9:16-cv-80802-RLR


NE 32ND STREET, LLC,
c/o Mr. William Swain as agent for the Frank Sawyer
Revocable Trust
5455 Via Delray
Delray Beach, FL 33484
as agent for the Frank Sawyer Revocable Trust,
                                                            Plaintiff - Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Defendant - Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (July 23, 2018)
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Before WILLIAM PRYOR and MARTIN, Circuit Judges, and HALL, * District
Judge.

WILLIAM PRYOR, Circuit Judge:

       This appeal requires us to decide whether a conservation restriction imposed

in 2013 on a property owned by the Frank Sawyer Revocable Trust restarted the

12-year statute of limitations of the Quiet Title Act, 28 U.S.C. § 2409a, so that NE

32nd Street, LLC, as agent for the trust, can sue to extinguish a spoilage easement

granted to the federal government in 1938. The trust owns a piece of land on the

Intracoastal Waterway in Florida. In 1938, its predecessor in interest granted a

spoilage easement that allows the government to deposit dredged material on the

property. And in 2013, the government granted the trust a building permit that

imposes strict conservation requirements on the land. Three years later, NE 32nd

filed an action against the government to extinguish the 1938 spoilage easement. It

argued that the 2013 permit restarted the statute of limitations, but the district court

disagreed and dismissed the complaint. Because the statute of limitations bars a

challenge to the eighty-year-old easement and the 2013 permit did not change the

terms of that easement to the detriment of the trust, we affirm.




*
 Honorable James Randal Hall, United States District Judge for the Southern District of
Georgia, sitting by designation.


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                               I.      BACKGROUND

      The Frank Sawyer Revocable Trust owns a piece of property on the

Intracoastal Waterway in Florida. In 1938, its predecessor in interest granted the

United States “the perpetual right and easement to deposit upon the [property]

material that may at any time be dredged in the construction and maintenance of

the . . . Waterway.” Three quarters of a century later, the government issued the

trust a permit to fill and build on part of the property. The 2013 permit also

imposed strict conservation restrictions on much of the property. For example, the

permit requires the trust to “maintain the [relevant] areas . . . in their natural state

in perpetuity,” forbids the “[d]umping or placing [of] soil or other substance or

material as landfill or [the] dumping or placing of trash, waste[,] or unsightly or

offensive material,” prohibits many kinds of “[s]urface use,” and demands that

“only clean fill material” be used on the property.

      Three years later, NE 32nd Street, LLC, as agent for the trust, sued the

government under the Quiet Title Act, 28 U.S.C. § 2409a, and “request[ed] entry

of a judgment . . . cancelling the [1938 easement] and releasing [the property] from

all burdens and obligations created thereunder.” NE 32nd underscored that when

the government issued the 2013 permit with its strict conservation requirements,

the government “committed an act wholly inconsistent with its future use and

enjoyment of the [1938 spoilage easement].” NE 32nd argued that this tension

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between the 1938 easement and 2013 permit required the district court to

extinguish the easement.

      The government moved to dismiss for lack of jurisdiction based on a

provision of the Act that states that an action against the government “shall be

barred unless it is commenced within twelve years of the date upon which it

accrued.” Id. § 2409a(g). It argued that this limitations period is jurisdictional. The

government maintained that the challenged easement was granted in 1938 and that

the “predecessor in interest [of the trust] knew or should have known of the claim

of the United States [to the easement] since [this date].”

      The district court initially denied the motion, but it later granted a motion for

reconsideration and dismissed the complaint. It explained that the “adverse

interests were present in this case in 1938” and that the issuance of the 2013 permit

“did not abolish [the] preexisting notice [that the trust had] of the United States’[s]

asserted interest.”

                         II.    STANDARD OF REVIEW

      We review de novo both “a district court’s application of a statute of

limitations,” F.E.B. Corp. v. United States, 818 F.3d 681, 685 (11th Cir. 2016)

(citation and internal quotation marks omitted), and its “grant of [a] motion[] to

dismiss for lack of subject matter jurisdiction,” Broward Gardens Tenants Ass’n v.

U.S. Envtl. Prot. Agency, 311 F.3d 1066, 1072 (11th Cir. 2002).

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                                III.   DISCUSSION

      The Act provides that an action to quiet title brought by a private party

against the United States “shall be barred unless it is commenced within twelve

years of the date upon which it accrued.” 28 U.S.C. § 2409a(g). This limited

“waiver of sovereign immunity . . . is jurisdictional,” F.E.B., 818 F.3d at 685, and

we “must be careful not to interpret it in a manner that would extend the waiver

beyond that which Congress intended,” id. at 686 (quoting Block v. North Dakota

ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983)) (internal quotation

marks omitted). Indeed, the Supreme Court has underscored that the Act represents

a “careful and thorough remedial scheme” that litigants cannot “circumvent[] by

artful pleading.” Block, 461 U.S. at 285 (quoting Brown v. Gen. Servs. Admin., 425

U.S. 820, 833 (1976)).

      The running of the statute of limitations starts “on the date the plaintiff or his

predecessor in interest knew or should have known of the claim of the United

States.” 28 U.S.C. § 2409a(g). We define this “claim” in terms of a property

interest of the United States that is actually “adverse[]” to the interest asserted by

the plaintiff. Werner v. United States, 9 F.3d 1514, 1519 (11th Cir. 1993). It is not

enough that the government asserts “some interest—any interest—in the property.”

Id. Indeed, if the interests asserted by the parties are capable of peaceful

coexistence—such as if the plaintiff asserts that he owns a fee simple subject to an

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easement while the government claims the complementary easement—then the

clock will not run. In contrast, adversity arises if the government asserts a new

interest that is fundamentally incompatible with the interest asserted by the

plaintiff or “seeks to expand [a preexisting] claim.” Id.

      For example, in Werner we explained that the Act did not bar former users

of a road over government property from “seeking a declaration that they had

acquired an easement of necessity” after the government installed a gate blocking

the road within 12 years of the suit. Id. at 1515; see also id. at 1516. Although the

government had held “some interest” in the underlying property for a much longer

period of time because it had owned the land since 1821, id. at 1519; see also id. at

1515, we explained that the “government’s claim” for the purpose of the litigation

was its decision to “expand [its preexisting] claim” when it built the gate and

excluded the plaintiffs, id. at 1519 (emphasis added); see also Kane Cty. v. United

States, 772 F.3d 1205, 1216 (10th Cir. 2014) (“As a public right-of-way can

generally peaceably coexist with an underlying ownership interest, the United

States must provide a county or state with sufficient notice of the United States’[s]

claim of a right to exclude the public.” (citations and internal quotation marks

omitted)); Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995) (explaining

that the plaintiffs’ “claim of access to roads and trails across [government

property] did not accrue until [they] knew or should have known the government

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claimed the exclusive right to deny their historic access to the trails and roads”). In

short, a claim arises when the government puts its interest in conflict with that of

the plaintiff.

       NE 32nd contends that the statute of limitations does not foreclose its suit to

extinguish the 1938 spoilage easement. Although NE 32nd does not dispute that

the trust and its predecessor in interest have “known of” the easement since 1938,

28 U.S.C. § 2409a(g), it argues that the “spoil[age] easement did not become

adverse . . . until the conflicting . . . [p]ermit was issued in 2013 and the

conservation easement was recorded by the [government] in direct conflict

therewith.” It asserts that the fee simple interest held by the trust peacefully

coexisted with the spoilage easement until 2013, and it concludes that the issuance

of the conservation permit restarted the statute of limitations.

       We disagree. The property right of the government that NE 32nd wants to

challenge—the 1938 spoilage easement—is the same property right that the

predecessor in interest of the trust granted the government. And 1938 was a lot

more than 12 years ago. The 2013 permit did nothing to “expand” the 1938

easement in a manner adverse to the trust. Werner, 9 F.3d at 1519.

       NE 32nd responds that adversity arose only in 2013 when the government

issued a conservation permit that is in tension with the 1938 easement, but this

argument overlooks that any limitations that the permit imposes on the future use

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of the spoilage easement by the government have no negative impact on the

interest held by the trust. To be sure, the government conceded for the purpose of

the motion to dismiss that the extensive 2013 conservation restrictions are

inconsistent with the 1938 easement. But any tension between two interests that

both benefit the government hardly creates new adversity between the interests of

the government and the trust. See F.E.B., 818 F.3d at 692 (“[T]he statute of

limitations is . . . triggered by . . . only a claimed interest that is inconsistent with

. . . the plaintiff’s asserted interest.” (emphasis added)); Werner, 9 F.3d at 1519

(explaining that the “inquiry” was whether the government “expand[ed] [its]

claim” to the detriment of the plaintiff). If anything, the events of 2013 benefitted

the trust by suggesting that the government is now more reluctant to dump spoilage

on the property. And NE 32nd acknowledges as much when it asserts that “the

government itself, by [the 2013 permit], . . . restricted its own access and created

the conflict with its own spoil[age] easement.” In short, the fee simple held by the

trust is no more encumbered by the spoilage easement than it was in 1938.

       NE 32nd invokes the legal principle that “easement interests and fee simple

ownership interests can peacefully coexist with one another without adversity,”

and it contends that its fee simple interest was somehow not inherently adverse to

the spoilage easement in 1938 but instead became adverse to the easement in 2013.

But whether certain kinds of easements can coexist with certain kinds of fee

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simples is irrelevant to this appeal. More specifically, although a fee simple and an

easement can coexist when the landowner defines his interest as a fee simple

encumbered by an easement, see Kane Cty., 772 F.3d at 1216; Michel, 65 F.3d at

132, NE 32nd has asserted a fee simple unencumbered by the 1938 easement. This

kind of unencumbered fee simple necessarily has been adverse to the spoilage

easement since the moment that the easement was created in 1938, and the 2013

permit did nothing to exacerbate this conflict.

      To be sure, the recent decision by NE 32nd to redefine the property interest

as an unencumbered fee simple has created a dispute about the 2013 easement, but

this conflict provoked by NE 32nd cannot restart the clock because only an

“expan[sion]” by the government can create the necessary adversity. Werner, 9

F.3d at 1519. The plain text of the Act dictates this conclusion when it provides

that the statute of limitations begins to run when the landowner has notice of “the

claim of the United States.” 28 U.S.C. § 2409a(g) (emphasis added). When the

private party decides to challenge the claim of the United States has nothing to do

with when adversity arises. A plaintiff cannot restart the clock whenever he

decides to reinvent his interest. Indeed, the ability to manufacture adversity

through “artful pleading” would nullify the statute of limitations. Block, 461 U.S.

at 285 (quoting Brown, 425 U.S. at 833).




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      Finally, NE 32nd suggests that the district court lacked sufficient reason to

revisit its initial ruling and grant the motion for reconsideration, but this argument

is meritless. The statute of limitations is jurisdictional, see F.E.B., 818 F.3d at 685,

and a jurisdictional question demands review at any point in litigation, see Fed. R.

Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). Indeed, we have underscored that

“because a federal court is powerless to act beyond its statutory grant of subject

matter jurisdiction,” it should “raise the question of subject matter jurisdiction at

any point in the litigation where a doubt about jurisdiction arises.” Smith v. GTE

Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). The district court wisely

reconsidered its ruling.

                                 IV.    CONCLUSION

      We AFFIRM the dismissal of the complaint.




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