[00:00:01] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
May it please the Court.

[00:00:03] Speaker 01:
Kristen Raina DeHart on behalf of Defendants, Appellants, San Diego Family Housing, and Lincoln Military Property Management.

[00:00:10] Speaker 01:
I'll be referring to them today during the argument as SDFH and LNPM as we did in our papers.

[00:00:15] Speaker 01:
I'd like to reserve two minutes for rubat.

[00:00:18] Speaker 01:
By way of a brief background, Your Honors, this case has been in federal court for the past four years, including an interlocutory appeal before this court in 2021, in which not only the Childs were involved, but also United States' amicus.

[00:00:32] Speaker 01:
However, it was not until the fall of 2023 that the United States interjected itself into our motion for summary judgment briefing to, for the first time, raise jurisdictional issues with our bases for being a federal court in the first place, both federal enclave jurisdiction and federal officer jurisdiction.

[00:00:50] Speaker 01:
I don't think that I misstate that the centerpiece of this appeal, and likely this argument today, is federal officer jurisdiction.

[00:00:57] Speaker 01:
And specifically, whether this court's decision in 2022 in Lake Viohana military communities requires that SDFH and LMPM cannot avail themselves a federal officer jurisdiction because they are the mirror image of defendant Ohana in the Lake case, as the United States and the Childs contend,

[00:01:17] Speaker 01:
or that this case presents an entirely different factual and evidentiary circumstance such that a different result is required as SDFH and LMP on content.

[00:01:29] Speaker 01:
In the late case, this court was presented with only a few factors in support of the federal officer removal statute.

[00:01:37] Speaker 01:
Three of them were extremely general and not specific to the claims in the case which related to pesticide contamination and claims by the plaintiffs that they were exposed to pesticides.

[00:01:46] Speaker 01:
The three general factors were that the Navy provided a basic housing allowance to service members, that the Navy could control who occupied the housing, and that they had some control over budgeting and management.

[00:01:58] Speaker 02:
Mr. Hart, just to cut to the chase, Lake says, the import of Lake to me is whether the allegations are about whether the Navy directed defendants challenged actions.

[00:02:13] Speaker 02:
And here it's about mold, inspection, testing, and abatement.

[00:02:18] Speaker 02:
I am struggling to see what in the record indicates some measure of control or direction on the mold, abatement, and testing side that would be enough for a federal officer removal.

[00:02:32] Speaker 02:
Can you tell me where on the record I should look to?

[00:02:35] Speaker 01:
Absolutely, Your Honor.

[00:02:37] Speaker 01:
First, I'll point you to the O&M plan, but we call the O&M plan

[00:02:41] Speaker 01:
This is also referred to in the ground lease as the mold management plan.

[00:02:45] Speaker 01:
These are the ground leases and the O&M plan are in our sealed volumes, volumes nine and 10.

[00:02:52] Speaker 01:
The mold plan is specifically at 10 ER 1726 through 1736.

[00:02:57] Speaker 01:
This was a plan that was directed by the Navy to SDFH to prepare to be what would, what SDFH would follow in responding to mold and water intrusion.

[00:03:08] Speaker 02:
And I looked at that mold plan and I guess what I'm missing from it is what in the mold plan restricted defendant's ability to do further testing or abatement consistent with what plaintiffs wanted to have happen.

[00:03:22] Speaker 01:
The mold O&M plan specifies a certain number of inspections to take place and the timing of those inspections.

[00:03:29] Speaker 01:
It also specifies how remediation is to take place in contractors to use.

[00:03:33] Speaker 01:
We followed that plan in responding to the child's complaints.

[00:03:37] Speaker 01:
The child's claims in this case

[00:03:39] Speaker 01:
or not that we didn't follow the plan, but we should have done additional inspections.

[00:03:43] Speaker 04:
I don't see that the plan directs that you couldn't do those additional inspections.

[00:03:51] Speaker 04:
It provides some general policies, but it doesn't seem to supply the kind of control that you're claiming it does.

[00:04:01] Speaker 04:
Go ahead.

[00:04:02] Speaker 04:
Maybe I'm misunderstanding it.

[00:04:03] Speaker 01:
Well, the plan is what the Navy is based on the Navy's housing policies.

[00:04:08] Speaker 01:
And so it specifies a certain number of inspections and a certain type of response to mold and water intrusion events in the Navy housing.

[00:04:16] Speaker 01:
SDFH and LMPM contend as their theory of the case that they followed those criteria.

[00:04:21] Speaker 02:
And this is actually kind of a... So where in the record does it say that it specifies that there must be a certain number of inspections?

[00:04:27] Speaker 02:
I mean, is there something in the plan that says you may only inspect two or three times?

[00:04:33] Speaker 01:
It doesn't place a limit like that, but it does.

[00:04:36] Speaker 01:
It does have a criteria for inspections after a certain amount of time that the first inspection has to take place within a certain amount of time.

[00:04:44] Speaker 01:
Then another inspection needs to take place and then a follow up inspection within a certain number of days.

[00:04:51] Speaker 01:
So that is laid out within the plan.

[00:04:53] Speaker 03:
Assuming that the 1940 statute, this 40 U.S.C.

[00:04:59] Speaker 03:
section, I think it's 3112, applies to the CIPRA property, do you concede that you've cited to no evidence that the United States has accepted jurisdiction over the lands by filing a notice with California?

[00:05:17] Speaker 01:
This is switching over to federal enclave, Your Honor.

[00:05:21] Speaker 01:
I do concede that there is no evidence of acceptance, but it's our position that, based on the definition of the term acquired in that statute, that that doesn't apply to the land.

[00:05:33] Speaker 03:
But isn't it dispositive if they never assented?

[00:05:38] Speaker 03:
No, Your Honor, because- Why wouldn't that just take out the whole federal enclave point?

[00:05:44] Speaker 01:
Well, no, Your Honor, because it's our position that that statute was not triggered because the acceptance is only required when the property is acquired.

[00:05:55] Speaker 01:
The statute actually uses the term acquired.

[00:05:58] Speaker 01:
And the term acquired is defined within the statute to only include purchases, trades, exchange.

[00:06:05] Speaker 01:
It doesn't address the specific circumstance of made land.

[00:06:10] Speaker 01:
which we argue under USFEB Corporation applies to this parcel F on which the Saipan property sits.

[00:06:18] Speaker 01:
So our argument is that you don't even get to that statute because there was no acquisition of the land.

[00:06:26] Speaker 01:
So if there was no acquisition, then there was no requirement.

[00:06:30] Speaker 02:
So if the federal government made the land, what do you rely on for the notion that it's necessarily exclusive jurisdiction?

[00:06:40] Speaker 01:
Yes, Your Honor.

[00:06:42] Speaker 01:
So if under USB FEB... Is that the 11th Circuit case?

[00:06:46] Speaker 01:
Is the 11th Circuit case.

[00:06:47] Speaker 02:
But that talked about, wasn't that about the Submerged Lands Act?

[00:06:50] Speaker 01:
It actually predated, I believe, the Submerged Lands Act, and that's just the precursor.

[00:06:55] Speaker 01:
That states that if land is made for the United States' use, that then the United States owns the land.

[00:07:02] Speaker 01:
There's another statute that was in place.

[00:07:04] Speaker 02:
Just to stick with that one, because the FEB case only talks about title or ownership to land.

[00:07:10] Speaker 02:
It says nothing about jurisdiction or, indeed, exclusive jurisdiction.

[00:07:15] Speaker 02:
And so a lot of what's happening in these cases in the 1940 Act and everything else is concurrent jurisdiction, concurrent legislative jurisdiction.

[00:07:24] Speaker 02:
That's why we're so focused on whether the U.S.

[00:07:26] Speaker 02:
assented to any type of jurisdiction.

[00:07:29] Speaker 02:
And I don't see anywhere in your papers where there would not need to be some assent to exclusive jurisdiction here.

[00:07:37] Speaker 01:
Under the same statute, Your Honor, if the land was made for military use, then exclusive jurisdiction is confirmed as long as there was a plat map on file from the county that demonstrates by meets and bounds the property that's at issue.

[00:07:54] Speaker 01:
The acquired portion of the statute is separate, and we cut that out because we believe that since the land was made, that that portion of the statute doesn't apply because the land was made for military use.

[00:08:06] Speaker 03:
Your arguments about acquisition appear to rely on a 1998 statute that defined acquired in a completely different context related to timbering.

[00:08:19] Speaker 03:
You think that still applies here in this context?

[00:08:22] Speaker 01:
I think under this, because it's under the same United States Code, yes, I do.

[00:08:26] Speaker 01:
And I think that that's the first place where you would go to define the term acquired under this context is the same US Code provisions.

[00:08:37] Speaker 03:
Why do you feel so strongly about litigating this case in federal court instead of the local court?

[00:08:45] Speaker 01:
Well, Your Honor, we do believe that there is a clear causal nexus between the actions that SDFH and LNPM took with respect to the child's housing and the child's claims in this case.

[00:08:56] Speaker 03:
We did talk about the OMB.

[00:08:58] Speaker 03:
I'm just curious, the pill alone has probably cost your client a lot of money and

[00:09:03] Speaker 03:
If you have the federal government going to all the trouble to get involved here, to emphasize that it never ascended to enclave jurisdiction over the Saipan property and your other arguments, I'm just trying to figure out why you're not going to state court.

[00:09:24] Speaker 03:
What's the real motivation here?

[00:09:28] Speaker 01:
Well, Your Honor, I do think that these claims that relate to federal actions, actions under a federal superior and plans and policies under a federal superior, should be heard by a federal court.

[00:09:39] Speaker 01:
We also do bring a defense of derivative sovereign immunity, a defense that even the United States has said multiple times is a colorable federal defense, that we acted under the federal superior at the direction of the federal superior.

[00:09:52] Speaker 01:
And those actions are put at issue by the childs in this case.

[00:09:56] Speaker 03:
It seems, though, that all of the ground leases, military bulletins, the letters you point to show general regulations surrounding military housing, and it seems like you need evidence to have

[00:10:13] Speaker 03:
to present that shows specific military orders directing your client's exact response to the plaintiff's complaints here, sufficient to have that casual nexus control prong of the federal officer removal statute.

[00:10:31] Speaker 03:
It just seems like it's a bit of a stretch for this, what appears to be a landlord-tenant dispute.

[00:10:41] Speaker 01:
Well, it's a landlord-tenant dispute that involves the United States Navy.

[00:10:45] Speaker 01:
And the directions that the Navy have given SDFH and LNPM under operating agreements, the ground lease, the O&M plan, we haven't discussed the Navy's mold policy or the relocation policy, which the child's put squarely at issue in their complaint by claiming that we didn't test for mold.

[00:11:03] Speaker 01:
Our response is we followed the Navy's mold testing policy by not testing for mold.

[00:11:07] Speaker 03:
Right, but I guess, I'm sorry.

[00:11:08] Speaker 03:
I was just saying, but it seems like they contracted, the Navy contracted that out.

[00:11:13] Speaker 03:
And now, and then the contractor, I guess your client, was going about that business.

[00:11:21] Speaker 03:
I don't know that they had that heavy of a hand on these specific aspects.

[00:11:26] Speaker 03:
And that's why I'm struggling to see why we would say this goes under federal jurisdiction.

[00:11:31] Speaker 01:
I'd like to point your honor to the declaration of Mr. Rizzo, which I think does lay out in quite a bit of detail the ongoing supervision that the Navy has over SCFH and LNPM.

[00:11:41] Speaker 01:
He discusses all of the contracts and the plans, but he also discusses how NAVFAC and its business asset manager routinely monitors SDF agent LNPM's compliance with these different regulations and policies.

[00:11:54] Speaker 01:
They have meetings, weekly, bi-weekly, monthly.

[00:11:58] Speaker 01:
They electronically monitor how they respond to mold and water intrusion.

[00:12:02] Speaker 02:
Can I ask though, you know, this is a public-private partnership and the managing member is a private entity called Lincoln Clark, right?

[00:12:10] Speaker 02:
And the operating agreement says that Lincoln Clark has exclusive management and control of SDFH and full authority to take all actions necessary or appropriate.

[00:12:22] Speaker 02:
And the same thing happened in Lake.

[00:12:24] Speaker 02:
And I guess my question is, can there be federal law officer removal when you have a provision like that in an operating agreement that bestows this exclusive authority to a private party?

[00:12:38] Speaker 01:
My response is that it's not exclusive.

[00:12:40] Speaker 01:
That snippet, that party- I mean, it says it has exclusive management and control of SDFH.

[00:12:46] Speaker 01:
But the first part of that sentence, Your Honor, it says, except as otherwise discussed in this agreement.

[00:12:52] Speaker 01:
And there's an entire section in the operating agreement, Section 5.12, that discusses the duties of the United States member.

[00:13:00] Speaker 01:
And the United States member's duties are also discussed in other locations throughout the operating agreement.

[00:13:06] Speaker 01:
And you do have the testimony of Mr. Rizzo, which has not been contradicted by any evidence put forth by the United States.

[00:13:14] Speaker 01:
They haven't submitted any of their own evidence to contradict any of these documents.

[00:13:18] Speaker 01:
They haven't submitted a declaration from the Navy saying that Mr. Rizzo is incorrect or that the Navy doesn't have

[00:13:24] Speaker 01:
the control and supervision and the checking and the oversight that it has that we have described in our paper.

[00:13:32] Speaker 01:
Ms.

[00:13:32] Speaker 01:
Thomas, did you have a question?

[00:13:33] Speaker 03:
No.

[00:13:34] Speaker 03:
Okay.

[00:13:34] Speaker 03:
Thank you.

[00:13:34] Speaker 03:
Do you want to reserve the balance?

[00:13:36] Speaker 01:
Yes, Your Honor.

[00:13:36] Speaker 03:
Thank you.

[00:13:41] Speaker 01:
Okay.

[00:13:44] Speaker ?:
Thank you.

[00:13:53] Speaker 00:
Good morning, your honors, and may it please the court.

[00:13:56] Speaker 00:
My name is Christian Clark on behalf of the appellees Lena Childs in the child's family as outlined in appellees brief.

[00:14:06] Speaker 00:
and in the amicus brief followed by the United States, Appellee's position is simply that the district court's ruling was well-reasoned and that this case essentially is not sufficiently distinguishable from the late case that this court should come to any other conclusion than what occurred in the late case.

[00:14:27] Speaker 02:
Council, can you start with the last point that we were dealing with where Council argued that the U.S.

[00:14:36] Speaker 02:
has reserved certain powers back in the operating agreement that are otherwise exclusive to the managing partner?

[00:14:44] Speaker 00:
Yes, Your Honor, and that is specifically addressed in Appellee's brief

[00:14:48] Speaker 00:
The references to Section 5.12, which describes the member duties of the government partner of the public-private venture, but notably none of those duties have any relevance to how to deal with tenant complaints related to mold or tenant complaints in general.

[00:15:07] Speaker 00:
So, overall, I would suggest that, yes, perhaps the government partner does have certain duties under the plan and the operating agreement, but they wouldn't be relevant to the instant case.

[00:15:20] Speaker 03:
Can you address counsel's comments regarding the Rizzo testimony that that's not disputed and they've put insufficient evidence through the Rizzo declaration?

[00:15:34] Speaker 00:
Certainly, Your Honor.

[00:15:35] Speaker 00:
So the Rizzo Declaration describes with a level of specificity and detail the kind of, and I'll quote some of the terms used that Appellants Council

[00:15:48] Speaker 00:
cited supervision oversight and review that the United States has or I should say the Navy has with respect to the actions taken by the public private venture and specifically the managing partner which is the private portion of that company but importantly as stated in the late case and outlined in excuse me one moment the Fidelity dad

[00:16:19] Speaker 00:
Fidelidad, Inc., the Institute Inc.

[00:16:22] Speaker 00:
case, which was quoting the Watson case.

[00:16:26] Speaker 00:
That's on page 1004 of the Lake case.

[00:16:31] Speaker 00:
Removal is not allowable simply because the federal officer directs, supervises, and monitors a company's activities in considerable detail.

[00:16:42] Speaker 00:
And what I would contend, Your Honors, is simply that that declaration, yes, it does go into considerable detail, but it's not the type of direction or specific directive as it relates to plaintiff's complaints that would be required to establish a causal nexus.

[00:16:59] Speaker 00:
Instead, it simply

[00:17:01] Speaker 00:
a description in considerable detail of the oversight, which was found to not be enough.

[00:17:09] Speaker 04:
Well, but doesn't the RIZO declaration goes beyond things that are just oversight?

[00:17:14] Speaker 04:
The RIZO says the timing of inspections is controlled, the directions for responding to complaints, servicing directions, et cetera, tracking requests.

[00:17:25] Speaker 04:
Why is that not enough?

[00:17:27] Speaker 00:
Yes, Your Honor.

[00:17:28] Speaker 00:
So for one, I would say as Your Honors pointed out earlier, there's no limiting factor contained in any of the documentation as it relates to the duties of the private partner and the managing partner.

[00:17:43] Speaker 00:
In fact, as Your Honors pointed out, the operating agreement and indeed as

[00:17:49] Speaker 00:
outlined in Appellee's brief, all of the documentation that was submitted in support, which includes the operating agreement, property management agreement to which the Navy is not a party, the ground lease, the O&M plan itself, the letter directives, all of those documents repeatedly disclaim the United States' responsibility and repeatedly emphasize the private partner's responsibility

[00:18:17] Speaker 00:
when it comes to specifically addressing tenant concerns and gives them broad authorization and authority to do whatever is needed.

[00:18:26] Speaker 00:
So yes, there may be some guidelines and there may be some level of specific information concerning how oversight will occur, whether that's in the context of meetings, for example, but that's not limiting the private partner from complying with, for example,

[00:18:46] Speaker 00:
tenability laws and landlord tenant laws generally.

[00:18:50] Speaker 00:
Now, Your Honors, I would also like to specifically address why we believe that the Lake cases is so particularly similar to this case and why, at least with respect to the issues of federal

[00:19:16] Speaker 00:
agency jurisdiction and removal under the federal officer statute, we would contend that the same decision and holding should apply here.

[00:19:26] Speaker 00:
Specifically, the Lake case involves

[00:19:30] Speaker 00:
Similarly, a public-private venture that similarly has a managing member and a government member and similarly involves a management plan, in that case the pesticide management plan, in this case the O&M plan or the mold management plan, that relates to the managing member's responsibilities and duties as it relates to dealing with those kinds of issues.

[00:19:56] Speaker 00:
And in the late case, the court opined that the PPV did not, excuse me, the court opined that the broad authority and discretion afforded to the managing member of the PPV was sufficient to

[00:20:17] Speaker 00:
lead to a finding that there was not a causal nexus in that case.

[00:20:22] Speaker 00:
And the same thing is true here.

[00:20:23] Speaker 00:
I mean, nearly the exact same language is utilized in the context of the operating agreement.

[00:20:29] Speaker 00:
In this case, as the language that was utilized in the Lake case, specifically in Lake, the language utilized was

[00:20:38] Speaker 00:
that the private partner or the managing partner had sole and exclusive management and control.

[00:20:43] Speaker 00:
And in this case, the language utilized is full authority, or in other sections, it states the right power and authority to take whatever actions are necessary to carry out the duties of the company, which obviously would involve leasing property and managing issues.

[00:21:02] Speaker 00:
And I would also contend that,

[00:21:08] Speaker 00:
With respect to the Lake case specifically, in that case, the public-private venture similarly argued that the pesticide management plan was reviewed and had to be looked at by the government partner before it could be acted upon.

[00:21:32] Speaker 00:
And essentially, the exact same thing occurs here with respect to the O&M plan.

[00:21:36] Speaker 03:
Time is up.

[00:21:37] Speaker 00:
Thank you, Your Honors.

[00:21:38] Speaker 03:
Thank you.

[00:21:50] Speaker 05:
Good morning, Your Honor.

[00:21:51] Speaker 05:
May it please the Court, Daniel Winnick for the United States as amicus.

[00:21:55] Speaker 05:
Subject, of course, to the Court's questions, I'd like to focus on whether the housing facility here falls within an enclave of exclusive federal jurisdiction.

[00:22:02] Speaker 05:
As our brief explains, courts in the circuit have not always been clear on issues of exclusive federal jurisdiction.

[00:22:08] Speaker 05:
We think it's useful if the court explains clearly that the creation of exclusive federal jurisdiction within a state requires deliberate action by the federal government.

[00:22:17] Speaker 05:
That's always been true in two of the three scenarios in which exclusive jurisdiction can be created.

[00:22:22] Speaker 05:
First, the one discussed in the Constitution.

[00:22:24] Speaker 05:
We are a state where the government buys land with the state's consent for the erection of certain types of buildings.

[00:22:30] Speaker 05:
and second, where Congress conditions the admission of a new state to the union on the session of jurisdiction.

[00:22:36] Speaker 05:
And it's been true since 1940 by statute.

[00:22:38] Speaker 05:
In the third and most common scenario, where a state legislature cedes jurisdiction over some of the state's land.

[00:22:49] Speaker 03:
When I asked the question about the assent, it pointed and redirected me to the acquired, whether it was properly acquired and if it was never properly acquired, then there's no assent.

[00:23:02] Speaker 03:
Can you respond to that?

[00:23:04] Speaker 05:
Sure.

[00:23:04] Speaker 05:
So I think their argument is that the 1940 statute doesn't even apply because they think the United States doesn't acquire land when it

[00:23:13] Speaker 05:
comes to own the land by building it up from the sea floor.

[00:23:16] Speaker 05:
There's just not a basis for that argument that the plain textual meaning of the word acquire both in 1940 and today.

[00:23:24] Speaker 05:
is to gain possession or control of something or to get it or obtain it by any means.

[00:23:29] Speaker 05:
The United States clearly gains possession of land if it creates the land, you know, by building it up from the sea floor.

[00:23:35] Speaker 02:
But there's a weird wrinkle to this, and that is if the 1940 act applies to land that's also been built up, created by the federal government, who would the U.S.

[00:23:46] Speaker 02:
give a cent to?

[00:23:48] Speaker 02:
Because normally it would be to a state or the governor or through some means to some other party saying, you've given us jurisdiction and now we're accepting it.

[00:23:58] Speaker 02:
But if it's created land, how does the US government assent to exclusive jurisdiction there?

[00:24:05] Speaker 05:
So there's still a session of jurisdiction in that scenario.

[00:24:09] Speaker 05:
Their theory is it was seeded under this 1897 statute.

[00:24:13] Speaker 05:
We think that theory is wrong for a number of other reasons.

[00:24:14] Speaker 05:
But if you set those to the side for a minute

[00:24:17] Speaker 05:
The 1897 statute did cede jurisdiction.

[00:24:19] Speaker 05:
That would be a cession by California.

[00:24:22] Speaker 05:
And so the United States would provide its assent to California, as Your Honor noted earlier.

[00:24:27] Speaker 05:
They rely on FEB only for the proposition that the government owned the land that it created from the sea floor.

[00:24:33] Speaker 05:
I don't take them to be making argument anymore that any land that the United States.

[00:24:38] Speaker 02:
But I mean, I agree with you.

[00:24:39] Speaker 02:
I don't think it's land that was ceded from California if the theory is that the federal government made it itself in the 1940s.

[00:24:46] Speaker 02:
So in that circumstance, I don't see any sort of clear answer as to what type of jurisdiction would apply or how the US government would have sent to that sort of jurisdiction in that circumstance.

[00:24:58] Speaker 05:
Well, we may be talking past each other.

[00:25:00] Speaker 05:
I think we agree that the United States came to own the land by creating it from the seafloor.

[00:25:06] Speaker 05:
We agree with defendants that the way in which one could understand the government to have acquired jurisdiction over that land, the federal government,

[00:25:15] Speaker 05:
is because it was ceded through this California statute.

[00:25:18] Speaker 05:
And so if that's their theory, then the way you would accept that session of jurisdiction is by writing to California and saying, thank you, we accept the jurisdiction.

[00:25:26] Speaker 05:
And as they conceded this morning, and they haven't disputed in their briefs, there's just no evidence that any acceptance of that jurisdiction ever happened.

[00:25:33] Speaker 05:
Their only argument is that the United States does not acquire land when it builds it up from the seafloor.

[00:25:38] Speaker 05:
And their only rationale for that argument is that they invoke this definition of acquire

[00:25:45] Speaker 05:
Title 16, 16 USC 620E.

[00:25:49] Speaker 05:
But that definition by its very terms applies only, quote, for the purposes of 16 USC 620, or 620 to 620J, which as Chief Judge Merguia noted is about timber.

[00:25:59] Speaker 05:
And so they say, well, it's the same statute because it's the US Code.

[00:26:02] Speaker 05:
But obviously, there's a lot of things in the US Code.

[00:26:03] Speaker 05:
There's probably other definitions of acquire in the US Code.

[00:26:06] Speaker 05:
And the fact that Congress has a term of art definition in Title 16 says nothing about what should be the relevant definition here.

[00:26:13] Speaker 03:
The alternative theory, it seems, of the SIPAP property coming under control of the federal government was through a 1955 civil condemnation proceeding.

[00:26:25] Speaker 03:
Under that theory, would the 1940 statute apply?

[00:26:30] Speaker 03:
It seems like it would.

[00:26:33] Speaker 05:
Yes, so that's an alternative in the sense that it's our factual theory of how we came to own the land.

[00:26:37] Speaker 05:
The district court didn't resolve the factual dispute as to how we came to own the land and this court both needn't and can't.

[00:26:44] Speaker 05:
But yes, if that is the factual way in which we came to acquire the land, then I actually don't take them to dispute that there's no exclusive federal jurisdiction for that reason among others.

[00:26:55] Speaker 05:
It would never have been ceded from California in the first place if we came to own the land in that way.

[00:27:00] Speaker 05:
and we wouldn't have accepted it.

[00:27:02] Speaker 05:
So their theory is entirely that we came to own the land by creating it from the seafloor in the 1940s, that there was a session of jurisdiction under this 1897 California statute, and that we didn't have to accept it because we didn't acquire the land.

[00:27:18] Speaker 02:
I was going to ask, do you think the district court should have made a determination as to how the land came to be acquired by the US?

[00:27:26] Speaker 05:
I don't think so only because it wasn't I mean that they bear the burden of establishing jurisdiction and so even if I think essentially the district court said is even crediting their factual count of it.

[00:27:35] Speaker 05:
There's no jurisdiction as a matter of law.

[00:27:37] Speaker 05:
I just think it wasn't necessary to resolve the factual dispute.

[00:27:40] Speaker 05:
I think that was the there obviously is some forward looking significance to whether

[00:27:44] Speaker 05:
The United States has exclusive federal jurisdiction over this land, but I don't think the court needed to resolve the factual dispute to make that determination.

[00:27:52] Speaker 03:
I recognize this isn't your burden to prove, and it may not be relevant to the case.

[00:28:00] Speaker 03:
But I'm curious, does the federal government have enclave jurisdiction over any other parts of the Coronado Naval Amphibious Base?

[00:28:09] Speaker 05:
So there is a very, if you look at the surveyor's declaration in the record, there's a very, very tiny piece of the base that was, that used to belong to the Department of the Army and then was eventually transferred to the Navy.

[00:28:20] Speaker 05:
I mean, it's really like a tiny fraction of the base.

[00:28:24] Speaker 05:
And the surveyor's view as articulated in the declaration here is that there is exclusive federal jurisdiction over that tiny strip of land.

[00:28:30] Speaker 05:
Nobody here thinks that this housing unit falls on that piece of land.

[00:28:34] Speaker 03:
And do you know,

[00:28:37] Speaker 03:
how it obtained federal enclave jurisdiction over that part of the base that doesn't include the Saipan parcel, I guess.

[00:28:49] Speaker 05:
Is that right?

[00:28:49] Speaker 05:
Yeah.

[00:28:50] Speaker 05:
I'm sorry.

[00:28:50] Speaker 05:
I don't know the history of that particular strip of land.

[00:28:52] Speaker 05:
There's obviously a lot of detailed history to all of this.

[00:28:56] Speaker 04:
I had a question about federal officer jurisdiction.

[00:29:00] Speaker 04:
Is it dispositive in the United States for you that there is no evidence of communication between SDFAH and the Navy about plaintiffs' particular complaints, or are there other factors that we need to look at under Lake?

[00:29:16] Speaker 05:
First, I want to be clear, as we say in our brief, our position on federal officer as well as federal agency jurisdiction is we take Lake as given.

[00:29:23] Speaker 05:
of here endorsing its analysis.

[00:29:24] Speaker 05:
But our position is just that there's no basis to distinguish Lake.

[00:29:28] Speaker 05:
I think Lake itself emphasizes the need for there to have been governmental direction of the conduct giving rise to liability.

[00:29:39] Speaker 05:
I don't know that it specifically requires communication.

[00:29:41] Speaker 05:
I mean, I think if you had something like the mold management plan, but instead of being like this one, it actually said, you cannot conduct a mold inspection unless X, Y, and Z have happened.

[00:29:52] Speaker 05:
And they say, well, you know, we wanted to, but we couldn't do it.

[00:29:54] Speaker 05:
That was my next question.

[00:29:55] Speaker 05:
Yeah.

[00:29:55] Speaker 05:
So I don't know that you would have had to have had a specific communication about, you know, like about this, these particular people in their apartment, if you had something like that.

[00:30:03] Speaker 05:
But, you know, there's nothing like that here.

[00:30:05] Speaker 05:
The mold management plan, like everything else they point to is just sort of a way in which the government provides general direction and has supervisory and monitoring powers, which, you know, as the Rizzo decoration explains, they do happen, but that's not

[00:30:16] Speaker 05:
know, directing defendants as to what they were supposed to do about this mold problem.

[00:30:20] Speaker 05:
Thank you.

[00:30:21] Speaker 05:
Thank you, Your Honors.

[00:30:22] Speaker 03:
Thank you.

[00:30:27] Speaker 01:
On the federal officer jurisdiction in Lake, that presented a completely different situation than this case.

[00:30:34] Speaker 01:
They only presented three pieces of very general evidence of Navy general oversight and control and then also pointed to a pesticide plan that Ohana admitted it didn't even follow.

[00:30:43] Speaker 01:
Here we present an absolute slew of evidence of significant Navy oversight and control over this housing.

[00:30:49] Speaker 01:
namely through the reserve declaration, through the operating agreement, through the ground lease, through the O&M plan, which we did follow and we were required to follow and which the Navy continues to monitor our following of as we go forward, not just with the child's housing, but other housing under San Diego family housing.

[00:31:08] Speaker 01:
This case is actually a lot more akin to Taylor Energy versus Luttrell, which is a Fifth Circuit case.

[00:31:14] Speaker 01:
It's not a removal case or a remand case.

[00:31:16] Speaker 01:
That was a derivative sovereign immunity case, but it presented a very similar factual situation where you had the contractor preparing a plan at the direction of the Coast Guard, which it then followed and executed.

[00:31:29] Speaker 01:
Plaintiff's claims in that case were that they should have done more than what the plan said.

[00:31:33] Speaker 01:
They should have gone beyond what the plan said, which is exactly what the child say in this case.

[00:31:37] Speaker 01:
We should have done more inspections.

[00:31:38] Speaker 01:
We should have done more testing.

[00:31:40] Speaker 01:
We shouldn't have continued to take Mr. Child's housing allowance after they were relocated.

[00:31:45] Speaker 01:
We should have continued to pay for their hotel instead of offering them an alternative housing under the relocation policy of the Navy.

[00:31:53] Speaker 01:
The Fifth Circuit said not only does that entitle you to, that entitles you to derivative sovereign immunity, not just does that meet a causal nexus, which is a far lower standard that's below this court today, before this court today.

[00:32:08] Speaker 01:
Thank you.

[00:32:08] Speaker 03:
Thank you very much.

[00:32:11] Speaker 03:
Ms.

[00:32:11] Speaker 03:
Raina DeHart, Mr. Clark, Mr. Winnick, we appreciate the oral arguments presented here today.

[00:32:17] Speaker 03:
The case of Lena Childs v. San Diego Family Housing LLC and in-depth corporation is now submitted.