The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Plaintiff, Lillie M. Kruger, as Trustee of the Albert W. Kruger, Jr. and Lillie M. Kruger Revocable Trust, sued Defendant, United States of America, acting through the Army Corps of Engineers ("United States"), to quiet title in property in Desha County, Arkansas. Jurisdiction is premised on the Quiet Title Act ("QTA"),*fn1 which is the exclusive means for an adverse claimant to challenge the United States's title to real property.*fn2 However, the QTA bars any action not commenced within twelve years of the date "the plaintiff or his predecessor in interest knew or should have known of the claim of the United States."*fn3
Defendant filed a Motion to Dismiss alleging that Plaintiff failed to bring her quiet title action within the twelve-year time frame required by statute.*fn4 Plaintiff has responded*fn5 and submitted two separate affidavits in support of the response.*fn6
The disputed property (referred to by the parties as "Section 19"), is situated along the Arkansas River in Desha County, Arkansas. Plaintiff and the United States claim title to the same 478 acre property. Based on the accounts from both parties, the history of Section 19 is as follows:
In 1964, the United States filed a "Notice Lis Pendens" in Desha County, condemning 136 acres of Section 19 to be used in the construction of Wilbur D. Mills Dam #2 along the Arkansas River.*fn7 In his affidavit, Mr. Michael G. Hendricks, an Operations Manager for the U.S. Corps of Engineers,*fn8 notes that, in addition to the construction of Dam #2, the Corp also constructed a descending embankment and a roadway running across the embankment and across other parts of Section 19 in the 1960s. In the 1970s improvements were made to the roadway, including resurfacing it with concrete. Mr. Hendricks's affidavit also describes the license agreement arranged in 1969 between the Corps of Engineers and the Arkansas Game and Fish Commission to regulate the abundant wildlife in the area, which became part of the Trusten Holder Wildlife Management Area.*fn9
According to Mr. Hendricks: In the 1980's [sic] the United States purchased additional lands in Section 19. A large portion of Section 19 is below the ordinary high water mark of the Arkansas River and, hence, already owned by the United States.*fn10 As a result of it's [sic] innate ownership, condemnation in the 1960's [sic] and purchases in the 1980's [sic], the United States is the owner of all Section 19, Township 8 South, Range 2 West, Desha County, Arkansas, and has been since at least the 1980's [sic].*fn11
In September 2003, the Secretary of the Army granted the Arkansas Game and Fish Commission an easement to "construct, use and maintain a concrete boat ramp, and parking area, and road for public use at the Buzzard Beach Access Area . . . ."*fn12 The easement specifically mentioned: (1) A 150 foot strip of land in part of "fractional SE1/4 of the fractional SE1/4 of Fraction Section 19 . . ." ("Fractional SE1/4"); (2) a 1.17 acre strip of land in part of Fractional SE1/4; and (3) a 650 x 24 foot strip of land in part of Fractional SE 1/4."*fn13
According to deeds filed in Deed Record Books 350, 368, and 2006, the Commissioner of State Lands for Arkansas deeded Section 19 to A.W. Kruger, Jr. and Lillie M. Kruger in 1990 after the Krugers purchased Section 19 at a tax sale.*fn14 In 1993, the Krugers deeded Section 19 to the A.W. Kruger, Jr. and Lillie M. Kruger Revocable Trust.*fn15 In 2006, following Mr. Kruger's death, Ms. Kruger deeded Section 19 to Lillie M. Kruger as Trustee of the A.W. Kruger, Jr. and Lillie M. Kruger Revocable Trust.*fn16
In bringing this quiet title action, Plaintiff maintains that the United States did not give her or her predecessors in interest adequate notice of its land condemnation and is seeking to quiet the title to the property. The United States asserts that Plaintiff's claims should be dismissed for lack of jurisdiction arguing that at the time of the Tax Sale, (1) the Krugers had constructive notice of the United States's claim to Section 19 through the 1964 lis pendens; and (2) they "should have known" of the United States's ownership claim of Section 19 by virtue of its possession. The United States maintains that it has not waived its sovereign immunity because Plaintiff did not file this action within 12 years of the date she had constructive or actual notice of the United States's claim of ownership of Section 19.
Federal Rule of Civil Procedure 12(b)(1) permits a defendant to file a motion to dismiss for lack of subject matter jurisdiction. In order to dismiss an action under 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its assertions.*fn17 Because the parties in this case have submitted evidence supporting their respective claims, the case presents a factual jurisdictional challenge. In such a challenge, a court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case."*fn18 The existence of disputed material facts will not preclude a court from evaluating the merits of the jurisdictional claims.*fn19 Therefore, a court is "free to weigh the evidence and satisfy itself as to the existence of it's power to hear the case" -- to determine whether subject matter jurisdiction exists.*fn20
The plaintiff has the burden of proving that jurisdiction exists.*fn21 Because the QTA waives the government's sovereign immunity, a challenge based on the statute of limitations is jurisdictional -- a plaintiff must meet the limitations period to defeat the government's immunity.*fn22 In ...