Opinion
Case No.: 5:05 CV 750.
December 20, 2005
ORDER
Now pending before the court is Plaintiff United States of America, United States Department of the Interior, National Park Service's ("NPS" or "Plaintiff") Motion for Summary Judgment (ECF No. 11) against Defendant Craig M. Skorepa ("Skorepa" or "Defendant"). Plaintiff filed its Motion on August 15, 2005, seeking summary judgment on its claims of: (1) trespass; and (2) violation of the Park System Resources Protection Act ("PSRPA"), 16 U.S.C. § 19jj et seq. Over four months later, Defendant has not responded to the motion. After reviewing Plaintiff's brief, the applicable case law, and the relevant documents on the record, the court grants the motion for summary judgment.
I. FACTS
The following facts are undisputed and supported by the record.
Two tracts of land in Summit County, Ohio are at issue in this litigation. In 1976, Marjorie Semon ("Semon") owned both tracts. On May 11, 1976, Semon conveyed Tract 109-49 to The Firestone Bank by trust agreement. (Pl. Exh. 1.) On July 19, 1978, Semon conveyed the other tract, 8110 Brandywine Road, to Edward and Wanetta Duber (the "Dubers"). (Pl. Exh. 3.)
On February 19, 1980, the Dubers conveyed 8110 Brandywine Road to Defendant Skorepa, along with Margaret A. Huth. (Pl. Exh. 4.) On November 15, 1984, Firestone Bank conveyed Tract 109-49 to the United States for the benefit of the Cuyahoga Valley National Park. (Pl. Exh. 2.)
Plaintiff alleges, and Defendant does not dispute, that at some point thereafter, Skorepa constructed an outbuilding and installed landscaping on land which he believed was his own property. (Def. Answer ¶ 7.) On August 15, 2001, a land survey concluded the outbuilding and landscaping were not on Skorepa's property, but on federally owned tract 109-49, and the outbuilding was 77 feet from the edge of Skorepa's property. (Pl. Exh. 5.)
At a meeting following the August, 2001 land survey, Cuyahoga National Valley Park ("CNVP") officials issued citations to Skorepa for constructing a building on federal property, driving vehicles off road on federal property, dumping refuse on federal property, and interfering with agency functions by failing to obey a lawful order. (Pl. Exh. 6.) Magistrate Judge James S. Gallas held a hearing on the citations on June 21, 2002. Skorepa pled guilty to the middle two citations: driving vehicles off road, and dumping refuse on federal land. (Pl. Exh. 7.) In his Answer, Skorepa admits he drove motor vehicles from his property across federally-owned property, without any authorization. (Pl. Compl. ¶ 15-16; Def. Answer ¶ 9.) Skorepa also admits that off-road vehicle use was not permitted on the federally-owned property in question. ( Id.) However, Skorepa now denies dumping refuse on federal land. (Def. Answer ¶ 10.)
CVNP voluntarily dismissed the other two citations due to a Color-of-Title Application then pending before the Bureau of Land Management ("BLM"). In the application, Skorepa sought title to the small portion of federal land containing his outbuilding. (Pl. Exh. 7.) In the application, Skorepa indicated he was not the record title holder to the land, and noted that the United States held title to the land in question. ( Id.)
On March 3, 2003, the BLM rejected Skorepa's Color-of-Title Application, finding the United States properly owned the land in question and "is not public domain land subject to disposal." (Pl. Exh. 9.)
On January 9, 2004, CVNP sent a letter to Skorepa requesting a meeting to discuss removing the outbuilding. (Pl. Exh. 10.) At a meeting between CVNP officials, Skorepa, and Skorepa's attorney on May 19, 2004, Skorepa asked CVNP to reconsider its demand that he remove the outbuilding. (Pl. Compl. ¶ 33; Def. Answer ¶ 21.) CVNP responded in a June 1, 2004 letter, that "we expect that Mr. Skorepa will completely remove the structure and rehabilitate the site, under NPS supervisions [sic], no later than August 1, 2004." (Pl. Exh. 11.)
Skorepa did not remove the outbuilding. (Pl. Compl. ¶ 35; Def. Answer ¶ 23.) On March 8, 2005, CVNP wrote to Skorepa, seeking $15,860.24 to pay for the estimated costs of removing the outbuilding and rehabilitating the areas harmed by Skorepa's activity. (Pl. Exh. 12.) Defendant did not pay, and Plaintiff filed the instant lawsuit.
II. LAW AND ANALYSIS A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .
In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id.
B. Trespass
1. LiabilityPursuant to its statutory authority to make rules to manage its parks under 16 U.S.C. § 3, Plaintiff issued regulations specifically prohibiting certain activities in its parks. First, unauthorized construction of buildings is prohibited:
Constructing or attempting to construct a building, or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through, or under any park areas, except in accordance with the provisions of a valid permit, contract, or other written agreement with the United States, is prohibited.36 C.F.R. § 5.7. Additionally, off road vehicle travel is specifically prohibited:
Operating a motor vehicle is prohibited except on park roads, in parking areas and on routes and areas designated for off-road motor vehicle use.36 C.F.R. § 4.10(a). Finally, "disposing of refuse in other than refuse receptacles," 36 C.F.R. § 2.14(a)(1) and "operating a solid waste disposal site without a permit issued," 36 C.F.R. § 6.12(a)(1) are specifically prohibited.
Skorepa has admitted to or pled guilty to violating each of these regulations. (Pl. Exh. 8.) First, Plaintiff admits he constructed the outbuilding, and in his Color-of-Title Application, he concedes the outbuilding is not on his land. (Def. Answer § 7; Pl. Exh. 7.) Furthermore, in these proceedings, he offers no admissible evidence to contest Plaintiff's land survey, which indicates the outbuilding is on government land. Any belief by Skorepa that he actually owned the land in question is immaterial, since it is undisputed he does not own the land, and he built the outbuilding on government property. Second, Skorepa specifically admits Plaintiff's allegations that "Mr. Skorepa also drove vehicles from his property across Tract 109-49 and the federally owned Tract 109-71." (Pl. Compl. § 15; Def. Answer § 9.)
With respect to the third violation, for refuse disposal, Skorepa now denies disposing of refuse on federal land. However, Skorepa pled guilty when cited for the precise violation in a criminal citation before Magistrate Judge Gallas. He is thus collaterally estopped from arguing he did not dispose of refuse on federal land. Collateral estoppel requires the following elements:
1) the issue precluded must be the same one involved in the prior proceeding; 2) the issue must actually have been litigated in the prior proceeding; 3) determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; and 4) the prior forum must have provided the party against whom estoppel is asserted a full and fair opportunity to litigate the issueE.g., Cent. Transp., Inc. v. Four Phase Sys. Inc., 936 F.2d 256, 259 (6th Cir. 1991). These elements are met in this case. The issue is exactly the same: did Skorepa dispose of refuse on federal land? The issue was actually litigated to a final conclusion, was central to that conclusion, and Skorepa had a full and fair opportunity to litigate the issue previously. Thus, Skorepa is estopped from arguing he did not trespass by disposing of refuse on federal land.
There are no genuine issues of material fact in this case. Plaintiff's motion for summary judgment is granted as to all aspects of Defendant's trespass claim.
2. Damages
Plaintiff seeks injunctive relief and compensatory damages as a result of the trespass. The National Park Service is generally entitled to injunctive relief for trespass on its lands. See, e.g., Hunter v. United States, 388 F.2d 148, 155 n. 6. (9th Cir. 1967); Robbins v. United States, 284 F. 39, 46 (8th Cir. 1922); Mantle Ranches, Inc. v. United States Park Service, 945 F.Supp. 1449, 1452-53 (D. Colo. 1996). The standard for obtaining a permanent injunction is essentially the same as the standard for obtaining a preliminary injunction, except the Plaintiff must actually succeed on the merits. E.g., Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n. 12 (1987). In evaluating a claim for a preliminary injunction:
a district court must consider and balance four factors: (1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000). In this case, Plaintiff has succeeded on the merits. There is a threat of irreparable harm to the environment by the possibility of additional future construction or off-road driving by the Plaintiff. The injunction would not cause others substantial harm, and the public interest in protecting park land would be served by granting the injunction. Accordingly, Plaintiff is specifically and permanently enjoined from constructing buildings or trails on the federal park lands at issue in this lawsuit, driving off-road across any such federal park lands, and dumping any waste on any such federal park lands, except as authorized by applicable park regulations.
Plaintiff submitted a letter to Defendant, detailing the estimated costs of removing the outbuilding from Plaintiff's land and repairing any other damage to the land. Defendant has not responded on the record to dispute the cost of the removal and repair. The court finds that Plaintiff is entitled to, and Defendant shall reimburse Plaintiff for, the full cost of removing the outbuilding and replacing a white pine tree removed by Defendant. Defendant shall pay Plaintiff $10,785.00 in compensatory damages. If the actual cost of the repair is less, Plaintiff shall refund the difference. If the actual cost is higher, Defendant shall be liable to Plaintiff for the difference.
C. Damages to National Park Systems Resources
In addition to its trespass claim, Plaintiff seeks "response costs and damages" pursuant to the PSRPA, 16 U.S.C. § 19jj et seq. That statute provides, in pertinent part:
any person who destroys, causes the loss of, or injures any park system resource is liable to the United States for response costs and damages resulting from such destruction, loss, or injury.16 U.S.C. § 19jj-1(a). The statute defines response costs as
the costs of actions taken by the Secretary of the Interior to prevent or minimize destruction or loss of or injury to park system resources; or to abate or minimize the imminent risk of such destruction, loss, or injury; or to monitor ongoing effects of incidents causing such destruction, loss, or injury.16 U.S.C. § 19jj(c). As with the trespass claim, there is no dispute Plaintiff injured park system resources by driving off road, dumping refuse, constructing an outbuilding, and installing landscaping. Plaintiff is therefore entitled to "response costs and damages" resulting from this injury to park lands. Plaintiff estimates its costs as follows:
Survey Cost $2,440.44 Cost of removal of structure and $8,515.00 surrounding landscaping material and debris Cost of removal of campsite and access $1,820.00 road improvements Cost of replacement of White Pine Tree . . . $450.00 Response monitoring time by Case $834.80 Ranger and support staff prior to 10/11/01 Response monitoring time by Case $1,800.00 Ranger and support staff between 10/11/01 and 3/01/05
TOTAL $15,860.24
The court previously awarded $10,785 for trespass damages for the costs of removing the structure, landscaping, camping and access road, and replacing the tree. These damages are also available under the PSRPA. However, an additional $5,075.24 is available under the PSRPA to cover response costs. Accordingly, summary judgment on Plaintiff's PSRPA claim is granted in favor of Plaintiff. Defendant is ordered to pay estimated costs covering the trespass and PSRPA claims in the total amount of $15,860.24 to Plaintiff.
D. Affirmative Defenses
In his answer, Defendant raises three affirmative defenses: (1) statute of limitations; (2) laches and estoppel; and (3) entitlement to reformation of the deed to accurately reflect that he purchased the land containing the outbuilding. (Def. Answer ¶ 29, 30, 31.) However, Defendant has not responded to the summary judgment motion, and thus has not made any legal or factual arguments in support of his affirmative defenses. Despite this, and out of an abundance of caution, the court will briefly examine the merits of each affirmative defense.
1. Statute of Limitations
The general statute of limitations for trespass actions brought by the United States government is six years. 28 U.S.C. § 2415(b). Time during which "facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances" does not count towards the statute of limitations. 28 U.S.C. § 2416(c). Preliminary land survey results indicating the outbuilding was on a government tract were available in March, 2001, and the final survey was completed in August, 2001. Plaintiff contends it did not know the outbuilding was on government property prior to this time. Defendant has put forth no evidence or argument to contradict this undisputed fact. Even if Defendant had put forth such evidence, under the continued trespass doctrine, the United States could still file suit for damages for the six years prior to filing. E.g., United States v. Hess, 194 F.3d 1164, 1177 (10th Cir. 1999). Accordingly, the March, 2005 filing in this in this case was within the six-year statute of limitations.
Plaintiff acknowledges there is no express statute of limitations under the PSRPA. In the absence of a legal argument from Defendant, the court applies the same six-year trespass limitation to the PSRPA claim. Neither of Plaintiff's claims are barred by the statute of limitations.
2. Laches or Estoppel
Laches is unavailable in suits brought by the government in its sovereign capacity. See United States v. California, 332 U.S. 19, 40 (1947) ("officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act."); United States v. Peoples Household Furnishings, Inc., 75 F.3d 252, 254 (6th Cir. 1996) ("The ancient rule quod nullum tempus occurit regi — 'that the sovereign is exempt from the consequences of its laches, and from the operation of statutes of limitations' — has enjoyed continuing vitality for centuries"). Accordingly, any defense of laches is not viable in this case.
Estoppel is likewise generally not available against the government. E.g., Housing Authority of Elliott Cty. v. Bergland, 749 F.2d 1184, 1190 (6th Cir. 1984). An assertion of estoppel requires an allegation of affirmative misconduct by a government agent. Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 421 (1990). Affirmative misconduct is more than mere error or negligence, and requires a calculated or intentional effort to mislead. See, e.g., Mich Express, Inc. v. United States, 374 F.3d 424, 427 (6th Cir. 2004). In the instant case, there is no allegation of affirmative misconduct by the government. Defendant's Answer seems to indicate he believed the land he purchased included the land where he constructed the outbuilding, but does not in any way suggest it was the government that affirmatively helped create this belief. Even if Plaintiff knew Defendant was constructing the outbuilding and did nothing, it is not enough to support estoppel. See Utah Power Light Co. v. United States, 243 U.S. 389, 409 (1917).
Estoppel and laches are not viable affirmative defenses to Plaintiff's trespass and PRSPA claims.
3. Reformation of Deed
Reformation of deed is not an affirmative defense listed in Fed.R.Civ.P. 8(c). However, the court will construe the affirmative defense broadly as a counterclaim. The Answer seeks "reformation of the deed by which he acquired his residential property to accurately reflect that he purchased the land upon which his outbuilding is located." (Def. Answer, ¶ 31.) Read broadly, this could raise two counterclaims: a claim to quiet title, and a claim for reformation of deed.
The Quiet Title Act ("QTA") is 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 QTA permits suits against the United States "to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights." 28 U.S.C. § 2409a(a). The QTA requires an adverse claimant's complaint "shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States." Id. at § 2409a(d). In this case, construing the affirmative defense as a counterclaim, Defendant sets forth none of this information in his Answer. Even if he had properly pled a QTA counterclaim, the QTA is to settle actual disputes about who owns what land. It is not a statute which permits a court to reform deeds. In United States v. Austin Two Tracts, L.P., the Eastern District of Texas, interpreting the QTA, held:
It is clear that the flowage easement owned by the United States is an interest in land which is subject to the Quiet Title Act, however, there is simply no dispute between the parties as to what estate and land each one owns. Austin is requesting this Court to reform the instrument creating the flowage easement. The Court is without jurisdiction under the Quiet Title Act to reform the flowage easement.239 F.Supp.2d 640, 644 (E.D. Tex. 2002). In this case, there is no dispute the United States owns the land on which Defendant's outbuilding sits. The QTA does not grant authority to this court to take property from the United States and give it to Defendant.
Assuming Defendant's affirmative defense is a state law counterclaim for deed reformation, it is barred by the statute of limitations. Ohio law recognizes legal actions for deed reformation. Sams v. Nolan, 1987 Ohio App. LEXIS 7980 (Ohio Ct.App. July 1, 1987). However, actions for deed reformation are subject to a ten-year statute of limitations. Id. at *7. The time period "accrues upon execution of the instrument, and not upon discovery of the mistake." Id. Thus, since Defendant purchased his property in 1980, a request to reform the deed is barred by the statute of limitations.
Construing Defendant's affirmative defense of "reformation of the deed by which he acquired his residential property to accurately reflect that he purchased the land upon which his outbuilding is located" as a counterclaim under the QTA or for state law reformation of deed does not present a valid defense or counterclaim to Plaintiff's claims.
III. CONCLUSION
For the reasons stated above, Plaintiff's motion for summary judgment (ECF No. 11) is granted in full. Defendant shall reimburse Plaintiff for removing the outbuilding and landscaping, repairing the federal land, and for all response costs, a sum estimated at $15,860.24. Should the actual costs be higher, Defendant shall reimburse Plaintiff for its additional costs, and should the actual costs be lower, Plaintiff shall refund the difference to Defendant. Defendant is also permanently enjoined from constructing buildings or trails on the federal park lands at issue in this lawsuit, driving off-road across any such federal park lands, and dumping any waste on any such federal park lands, except as authorized by applicable park regulations.
IT IS SO ORDERED.