[00:00:00] Speaker 01:
And that brings us up to our third case set for argument, which is Johnson versus United States case number 24-2779.

[00:00:57] Speaker 04:
Good afternoon.

[00:00:58] Speaker 04:
Danielle Bettencourt for the appellant Charlie Johnson as trustee of the Charlie Johnson revocable living trust.

[00:01:05] Speaker 04:
I'm also here today with my co-counsel Mr. William Klein and Mr. Johnson.

[00:01:09] Speaker 04:
His wife have also joined us today as well in the court.

[00:01:12] Speaker 04:
This case involves the United States Forest Service partial denial of Mr. Johnson's small tract act application that resulted in the reduction of his proposed track from eight acres down to 0.59 acres.

[00:01:27] Speaker 04:
and under the APA asking this court to review this decision and the decision of the lower court because of the fact that it excluded majority of a corrals involved in these improvements that were encroaching on Forest Service property.

[00:01:42] Speaker 04:
Most specifically, Mr. Johnson challenges the decision to do this reduction on the basis that these corrals were not considered to be encroachments.

[00:01:51] Speaker 04:
on that they were not, in fact, trespassing on Forest Service property, but were instead range improvements, as well as challenging the Forest Service decision of their appraisal value of that parcel that they did give to Mr. Johnson of .59 acres that included a part of a house, a barn, additional sections of the corrals, as well as a well.

[00:02:14] Speaker 01:
Can I ask you just as I look at the district court order, if I understand it correctly, the district court said, well, there was no allegation of noncompliance with a mandatory provision and therefore there could not have been an APA violation.

[00:02:29] Speaker 01:
Is that accurate?

[00:02:31] Speaker 01:
Or excuse me, no violation of the Small Tracks Act.

[00:02:35] Speaker 04:
That is what the court held below, that is correct, and said that we didn't raise any issues that showed that they violated a mandatory?

[00:02:42] Speaker 01:
What I'm wondering is, is that correct law?

[00:02:44] Speaker 01:
Because I don't understand, and I think that's your argument, is that the district court misstated the law.

[00:02:51] Speaker 01:
It doesn't require a mandatory provision.

[00:02:55] Speaker 01:
Even discretionary provisions can still be violated in the Small Tracks Act.

[00:03:02] Speaker 04:
Yes, Your Honor.

[00:03:02] Speaker 04:
So I think that there can be some discretion in the law and given to agencies on agency decision making.

[00:03:08] Speaker 04:
But if you have specific factors and consideration that the Forest Service must look at or an agency, any agency,

[00:03:16] Speaker 04:
that they would have to comply and look at those factors before making a decision.

[00:03:21] Speaker 04:
And it's those factors and statutes and regulations that can, in fact, be reviewable by the courts.

[00:03:27] Speaker 04:
So whether they have a complete discretion at the end to decide whether to convey the land or exchange under the Small Tract Act, they do have to follow the other requirements under the Small Tract Act and their implementing regulations.

[00:03:38] Speaker 01:
But the district court, as I understand it, never really went into whether they looked at all the factors because it just said, out of the gate,

[00:03:46] Speaker 01:
there's no mandatory provision, therefore I'm not going to go further.

[00:03:50] Speaker 04:
I would agree with that.

[00:03:51] Speaker 04:
I think they, they may have briefly only mentioned the fact that they said, well, they did look at public interest factors and considered those, but otherwise they didn't go in depth into any other of the argument.

[00:04:03] Speaker 01:
And so just assuming we were to agree with you on that, what would the proper outcome be?

[00:04:09] Speaker 01:
Would we just say, listen, this is the wrong statement of the law.

[00:04:14] Speaker 01:
Discretionary factors are enough.

[00:04:16] Speaker 01:
Should we then go in and do the discretionary factor analysis or should we remand that to the district court to do what it didn't do in the first instance?

[00:04:27] Speaker 04:
I think the potential is to do it and potentially you could go either way on how you decide what you have the court do or whether you decide this case on your own.

[00:04:36] Speaker 04:
Um, only because of the fact that they did make some kind of fan finding that, um, they did consider the public interest factors and considered other factors and noted parts of the record.

[00:04:46] Speaker 04:
And which they talked about it for the 0.59 acre parcel.

[00:04:50] Speaker 04:
But I think also what we've argued, you know, where there may be some.

[00:04:54] Speaker 04:
Potential that you'd have to be remanded back to the district court is a failure to look at the parcel in its entirety and consider all the public interest factors as well as the other don't we have to determine.

[00:05:05] Speaker 02:
the validity of the district courts or the determination on the encroachment.

[00:05:11] Speaker 04:
Correct.

[00:05:12] Speaker 02:
I mean, is there enough in the record for us to do that?

[00:05:15] Speaker 04:
I think there would be enough in the record.

[00:05:17] Speaker 04:
I mean, we have what was in the record in front of the Forest Service, although potentially that I think maybe additional support would be nice to see in the record.

[00:05:25] Speaker 04:
But I know in terms of

[00:05:28] Speaker 04:
whether there's actually any of that type of information at the Forest Service level is unclear.

[00:05:33] Speaker 04:
I mean, I think there's an issue with speaking in terms of the rage improvements that were put in place in the 1950s.

[00:05:38] Speaker 04:
There's nothing in the record showing that the Forest Service actually ever improved that construction.

[00:05:45] Speaker 04:
And what we have seen and what we have in the record is the fact that these were put in place and put in place on private property.

[00:05:51] Speaker 04:
And they also were shown on the tax rolls for Gila County

[00:05:55] Speaker 04:
and the landowners pay taxes on those improvements.

[00:05:58] Speaker 02:
Is that all in the record?

[00:06:00] Speaker 04:
It's in the record through statements from Mr. Johnson.

[00:06:02] Speaker 03:
Let me ask you this.

[00:06:05] Speaker 03:
The review provision says that this decision is discretionary and shall be made only if found to be in the public interest.

[00:06:16] Speaker 03:
If it had only said discretionary, this seems to be a very easy case because we review often for abuse of discretion.

[00:06:21] Speaker 03:
The mere fact that it's discretionary doesn't mean it's insulated from review.

[00:06:25] Speaker 03:
Does the additional language saying, and shall be made only a found to be in the public interest, alter that analysis?

[00:06:35] Speaker 04:
Your honor, I don't think it necessarily alters the analysis.

[00:06:38] Speaker 04:
I know that was quoting from the regulations, I believe.

[00:06:42] Speaker 04:
But I also think under the Small Tract Act, there's other requirements that have to be discussed.

[00:06:47] Speaker 04:
And that is the determining factor, whether there's an actual encroachment, which is an improvement claimed under color or claimed a title, a color of title.

[00:06:58] Speaker 04:
that has to be also discussed and analyzed prior to getting to that public interest determination.

[00:07:06] Speaker 04:
And I think that's one in which the Forest Service kind of failed on its end in regards to the portions of the corral that it determined to exclude.

[00:07:15] Speaker 03:
And maybe we don't have to decide this now.

[00:07:18] Speaker 03:
If we do remand, a finding is whether or not it is in the public interest or not.

[00:07:23] Speaker 03:
Is that reviewed for abuse of discretion or is that reviewed under a different standard?

[00:07:30] Speaker 04:
I believe that's also reviewed under the administrative procedure act for abuse of discretion would be the same standard.

[00:07:37] Speaker 01:
Is it abuse of discretion or arbitrary or capricious review?

[00:07:41] Speaker 01:
I mean, I guess I'm getting confused now.

[00:07:44] Speaker 04:
I think I am too, Your Honors.

[00:07:46] Speaker 04:
I apologize.

[00:07:46] Speaker 03:
If we remand, I guess that's for the district judge to go ahead and then if we disagree, we can disagree later.

[00:07:54] Speaker 04:
Yeah.

[00:07:54] Speaker 04:
And I think what I'm also thinking of is arbitrary and capricious.

[00:07:57] Speaker 04:
as well as looking at whether they considered all the reasonable factors and gave a rational explanation for their decision below in terms of the agency.

[00:08:11] Speaker 01:
Are there any cases, I mean, Small Tracks Act, I guess there's not a lot of cases that come up.

[00:08:17] Speaker 01:
I mean, we struggled to kind of find some precedent here.

[00:08:22] Speaker 01:
Maybe I'm asking the wrong party.

[00:08:24] Speaker 01:
I suppose the Forest Service would know this better.

[00:08:26] Speaker 01:
But do these cases come up a lot?

[00:08:28] Speaker 01:
Or they do, but they're normally just handled administratively, and they don't end up in litigation.

[00:08:37] Speaker 04:
Right.

[00:08:37] Speaker 04:
I would say small tract act cases probably don't come up as often.

[00:08:40] Speaker 04:
We do have the Luciano v. United States that came up in the Eastern District of California.

[00:08:46] Speaker 04:
Um, and that one specifically dealt with the issue of whether they could review, um, this type of claim under the small tract act.

[00:08:53] Speaker 04:
And ultimately that part of the decision didn't come to the ninth, but the decision on the merits of the case, um, went to the ninth.

[00:09:00] Speaker 04:
Um, so you have that decision.

[00:09:02] Speaker 04:
Um, I know.

[00:09:03] Speaker 04:
The appellee is also cited decision from the district of Alaska, but it dealt with a small tract act.

[00:09:09] Speaker 04:
Um, uh, prior statute as a different statute that was repealed by, uh, flip ma of the federal land policy and management act.

[00:09:16] Speaker 04:
So it wasn't considering the same statute nor the regulations associated with it.

[00:09:21] Speaker 04:
And then the only other thing I could say, kind of like in these issues too, is the fact that courts have looked at maybe more often as land exchanges that occur under the Federal Land Policy and Management Act.

[00:09:36] Speaker 01:
So... Are there any analogies we can make to some of those other statutes as far as whether it's judicially reviewable?

[00:09:45] Speaker 04:
I think in some sense, but I would have to, if I am recalling correctly in the Greer correlation, the U.S.

[00:09:54] Speaker 04:
Forest Service and others, is that in FLIPMA, I think there's a particular provision that specifically says that land reviews, or land sales and exchanges, or just land exchanges are reviewable under the

[00:10:08] Speaker 04:
are reviewable decisions of the agency.

[00:10:10] Speaker 04:
So I think they have more specific language in that statute as opposed to what's written in the Small Tract Act.

[00:10:18] Speaker 04:
Although I would still say they're half comparable because they consider some of the same types of things in terms of whether it was appropriate to do the exchange within the public interest as well as kind of determining the approximate equal value when they're doing the exchange, similar to the Small Tract Act.

[00:10:36] Speaker 02:
Yes, let me ask you this.

[00:10:37] Speaker 02:
How did the district court, in your opinion, get this wrong?

[00:10:42] Speaker 02:
Yeah, I mean, you're here on an appeal that you properly filed in a timely fashion.

[00:10:48] Speaker 02:
How did they get this wrong?

[00:10:50] Speaker 04:
Correct.

[00:10:50] Speaker 04:
I think, Your Honor, it's a great question.

[00:10:53] Speaker 04:
And what I think what was wrong in their decision is the fact that they really never even got to the merits of our discussion.

[00:10:58] Speaker 02:
Exactly.

[00:10:58] Speaker 04:
Because they felt that they didn't have the ability to review the issues that we brought forth.

[00:11:04] Speaker 04:
But as we discussed earlier and as I discussed in our briefing, I think that was an error.

[00:11:09] Speaker 04:
And I think they did have the ability to review our arguments as well as the fact, you know, I think they brushed off the idea of whether this was an encroachment or not, didn't matter, it was in a posit.

[00:11:19] Speaker 04:
But that wasn't an incorrect holding.

[00:11:21] Speaker 04:
It absolutely mattered because you have to be able to show that there was an encroachment in the first place to be even qualified for consideration of the Small Tract Act.

[00:11:29] Speaker 04:
So if you're being excluded out the outset, no analysis is being done.

[00:11:34] Speaker 04:
Uh, yeah.

[00:11:35] Speaker 01:
So if we were to say, you, this should have been reviewable and we remand it, I guess that doesn't necessarily mean you're going to win.

[00:11:43] Speaker 01:
I mean, you would have to go back to the district court and now the discourse is okay.

[00:11:47] Speaker 01:
It's reviewable.

[00:11:48] Speaker 01:
And then we get into all these other questions, which sort of.

[00:11:51] Speaker 01:
They, they seem a little thornier as we start talking about them, which makes me think that if we were to go this route, we would just remand.

[00:11:59] Speaker 01:
I I'm not sure we want to weigh into them in the first instance.

[00:12:04] Speaker 01:
You would like us to, I assume.

[00:12:07] Speaker 01:
You'd rather win now than later.

[00:12:10] Speaker 04:
I mean, obviously, I think my client would also like you to as well.

[00:12:13] Speaker 04:
It's only been 20 years.

[00:12:15] Speaker 04:
Yeah, I mean, it's been an extremely long time on this case.

[00:12:18] Speaker 04:
And specifically, you know, I think we would prefer you guys to be able to to decide and not have to remand back to the lower court.

[00:12:26] Speaker 03:
But also, I think relevant to what we're talking about, do we have any insight as to why the Forest Service changed its mind?

[00:12:34] Speaker 03:
That is to say, originally, it was quite willing to sell the entire

[00:12:38] Speaker 03:
property and then changed his mind.

[00:12:43] Speaker 03:
Do we know why?

[00:12:45] Speaker 04:
Yes.

[00:12:45] Speaker 04:
So the only reason the Forest Service changed its mind and had this decision was the fact that they said, well, the corrals are listed in a 2006 term grazing permit as a range improvement.

[00:12:57] Speaker 04:
So they're an authorized range improvement in which title is in the United States and we cannot sell that to you or sell the underlying land back to you.

[00:13:05] Speaker 02:
Your argument is that the corral at the grazing permit

[00:13:08] Speaker 02:
identified as a different corral than you're trying to get.

[00:13:11] Speaker 04:
That's correct.

[00:13:13] Speaker 04:
I mean, that's from our understanding, and it's unclear from the record.

[00:13:16] Speaker 04:
I think that's what's the problem is through the years, the location on maps and everything else has been different, sometimes further north, sometimes actually on the private property to the south denoting corrals.

[00:13:29] Speaker 04:
And so I think that's where the confusion comes.

[00:13:31] Speaker 04:
And there's been nothing in the record or nothing that the Forest Service has provided to show that they had ever at any point authorized this range improvement.

[00:13:39] Speaker 01:
Um, and your explanation is maybe going against what you want, because as you explain this, I'm thinking, how are we in a position to decide that question?

[00:13:50] Speaker 01:
Um, I mean, even you've just said it's unclear in the record.

[00:13:54] Speaker 01:
Like I think the district court would be in a better position to, to look at that.

[00:13:58] Speaker 01:
Maybe, maybe not.

[00:13:59] Speaker 01:
Maybe there's not enough information.

[00:14:01] Speaker 04:
Well, I think maybe I'd clarify when I mean it's unclear.

[00:14:04] Speaker 04:
I think the position of the four services unclear in terms of how they can just point to

[00:14:08] Speaker 04:
a grazing permit map to claim that this somehow is no longer considered an encroachment or not an innocent trespass when they have nothing else to support their decision.

[00:14:19] Speaker 01:
Right.

[00:14:19] Speaker 01:
So what do you do?

[00:14:20] Speaker 01:
I mean, even if we send this back to the district court, the ultimate relief you can get, I think, is to send it back to the Forest Service to relook at it.

[00:14:30] Speaker 01:
And you're still not guaranteed to get the result you want there.

[00:14:36] Speaker 01:
I mean, they may come up with a different rationale or they may come up with more evidence or whatever.

[00:14:41] Speaker 01:
I'm just trying to, I mean, figure out how this games out and it's not clear.

[00:14:48] Speaker 04:
Correct.

[00:14:48] Speaker 04:
And I would agree in terms of some uncertainty in terms of what would happen if it gets remanded or even if it gets remanded back to the agency, they obviously would be able to look at the decision again and reevaluate.

[00:15:01] Speaker 04:
Our hope would be it wouldn't take them 14 years like it did in the past and that they could actually get us a result much sooner.

[00:15:09] Speaker 04:
But I also would be the hope that they would come to a similar correct decision as they did with all the other improvements on the property.

[00:15:16] Speaker 03:
And I don't assume, as I sit here, that the district judge necessarily is, even if the district judge agrees with your basic position, has to remand.

[00:15:27] Speaker 03:
We'll see.

[00:15:27] Speaker 03:
But I certainly don't want to foreclose the district court from making the decision and ending this long saga.

[00:15:35] Speaker 04:
Right.

[00:15:38] Speaker 04:
If there's no questions at this time, I would like to reserve the rest of my time for rebuttal.

[00:15:42] Speaker 01:
Actually, just one more question in the L.A.

[00:15:45] Speaker 01:
You also challenge the Edwards appraisal.

[00:15:48] Speaker 01:
I assume, again, hypothetically, if we were to say the district court needs to take another look at this, under that scenario, we would not need to reach the Edwards appraisal because it might not be relevant, right?

[00:16:03] Speaker 04:
Correct.

[00:16:03] Speaker 04:
And although it may still be relevant, I guess we don't want, and we're not asking the court to change the decision on the sale of that 0.59 acres.

[00:16:12] Speaker 04:
Um, the sale that occurred on those portions, you know, we don't want to get into a situation where that gets back and then they say, we're not going to sell it to you.

[00:16:20] Speaker 04:
Um, we agree with that portion of it.

[00:16:22] Speaker 04:
We are do dispute the appraisal.

[00:16:24] Speaker 04:
Um, I do think there was enough in the record enough of the decision of the court below, um, and deciding that they felt that the appraisal was not arbitrary and capricious, um, and that it was supported.

[00:16:34] Speaker 04:
Although we would disagree, um, in the sense the fact that whether they use the right type of land sale comparables.

[00:16:41] Speaker 04:
Or looked at the highest and best use of this property.

[00:16:44] Speaker 02:
Well, there weren't many land sales around to compare it to.

[00:16:47] Speaker 04:
No, there was not and I'd have to agree with you on that point.

[00:16:50] Speaker 04:
I think they could have maybe tried to find some other properties though, in which it was just agricultural vacant land instead of properties located in subdivisions and the like, because that's not what this property is as properties surrounded on the North by the 4 service land.

[00:17:05] Speaker 04:
um, and then to the south and surrounding Mr. Johnson's other land, which is 21 acres.

[00:17:10] Speaker 02:
It isn't judge Nelson's question important because, you know, if we remand this, you're going to be talking about, hopefully your clients will be talking about a much bigger track and there's going to be a need for a new appraisal.

[00:17:24] Speaker 04:
Yes, that's correct.

[00:17:25] Speaker 04:
It could be done to separately from the track that was already, um,

[00:17:30] Speaker 04:
Conveyed and already sold to Mr. Johnson, because that has already gone through and been done and all we challenge is the actual appraisal value given.

[00:17:37] Speaker 04:
So the other track could be its own separate addition to what was already conveyed to Mr. Johnson.

[00:17:43] Speaker 04:
So it would have just include the corrals.

[00:17:46] Speaker 04:
The remaining portion of the corrals.

[00:17:48] Speaker 01:
Do you want to reserve?

[00:17:49] Speaker 01:
Yes, thank you.

[00:17:50] Speaker 04:
Thank you.

[00:18:01] Speaker 00:
Good morning, Your Honors.

[00:18:02] Speaker 00:
My name is Neil Singh.

[00:18:03] Speaker 00:
I'm an Assistant U.S.

[00:18:04] Speaker 00:
Attorney from the U.S.

[00:18:05] Speaker 00:
Attorney's Office here in Phoenix, and I represent the Forest Service, the United States, and all of the five federal defendants who have been named in this case.

[00:18:17] Speaker 00:
And, Your Honors, I'm sure you'll have a lot of questions for me, but I'd like to just get one introductory point out to you as we start, which is that this is a private land transaction between two citizens.

[00:18:31] Speaker 00:
And the United States is involved in this case because there was an accident in terms of the purchase that intruded on federal land.

[00:18:42] Speaker 00:
And the Forest Service in the United States have an interest in protecting their discretion to protect federal lands.

[00:18:51] Speaker 00:
And that's what this case really is about.

[00:18:55] Speaker 01:
I don't take issue with that characterization, but you have an interest in that.

[00:18:59] Speaker 01:
But what the district court did here, and I'd be interested in your response to this, because the district court said, well, this is just not reviewable at all.

[00:19:07] Speaker 01:
That seems to be incorrect.

[00:19:10] Speaker 01:
Now, that doesn't mean you ultimately lose at the end of the day.

[00:19:13] Speaker 01:
But I wonder, I mean, don't we need to correct that and say, no, these are reviewable under the Small Tracks Act?

[00:19:22] Speaker 01:
I'd be interested in your response to that.

[00:19:23] Speaker 00:
Yes, Your Honor, I would respectfully disagree that the district court

[00:19:27] Speaker 00:
I guess I would respectfully disagree with that characterization of what the district court was trying to do.

[00:19:33] Speaker 00:
And I would agree that there is some back and forth on the question of sovereign immunity and discretion in judicial review when we're reading all of the opinions that are at issue in this case.

[00:19:48] Speaker 00:
The district court, in my view, as I read the opinion, held that

[00:19:53] Speaker 00:
First of all, I disagreed with the government in stating when the government argued that there is no discretion or there's no judicial review at all.

[00:20:03] Speaker 00:
But the district court then went to look at Mr. Johnson's arguments and found that there are no arguments of specific violations of whatever obligations the government had.

[00:20:16] Speaker 00:
And since there were no specific arguments of specific violations of any of the statutory clauses or of the regulations, there's no basis to conduct a judicial review on whether the government... Yes, you're on.

[00:20:32] Speaker 02:
The Small Tracks Act had these 12 factors.

[00:20:38] Speaker 02:
National Forest Service evaluated this request for the conveyance or the correction of the deeds under those 12 factors.

[00:20:49] Speaker 02:
And then came to the conclusion that they could only transfer 0.59 acres under the discretion it was given.

[00:20:59] Speaker 02:
And they're saying, well, they exercised the discretion improperly.

[00:21:02] Speaker 02:
Why is that wrong?

[00:21:04] Speaker 02:
Doesn't that give us jurisdiction?

[00:21:06] Speaker 02:
Doesn't that give the courts jurisdiction to review what your agency did?

[00:21:11] Speaker 00:
Well, I think one difficult.

[00:21:13] Speaker 00:
difficulty in this case that the district court had to grapple with is that there is no specific statutory violation that Mr. Johnson can point to that the government committed.

[00:21:25] Speaker 00:
The government has an obligation under the small tracks act and under its own regulations to look at all of the factors.

[00:21:33] Speaker 00:
And there's no allegation that the government failed to look at those factors.

[00:21:37] Speaker 01:
Well, we don't really know that's part of the problem because the district court said there's no mandatory provision.

[00:21:43] Speaker 01:
So therefore, I can't review it.

[00:21:46] Speaker 01:
And that's where I keep getting hung up.

[00:21:48] Speaker 01:
Now, it's not clear to me that there's not mandatory.

[00:21:51] Speaker 01:
I mean, it may well be that there are mandatory provisions in the Small Tracks Act.

[00:21:56] Speaker 01:
But at a minimum, even if you consider them as discretionary, you still would review it for arbitrary or capricious application by the agency.

[00:22:06] Speaker 00:
Your honor, one of the more interesting passages that I found in the case law that applies to this case is actually from this court's decision and there's everyone agrees that there's not a lot of case law here, but there are actually two cases.

[00:22:20] Speaker 00:
from this court, 1969 and 1970, that I do think this court and this panel will have to, well, should reconcile if they are going to make a determination about sovereign immunity.

[00:22:32] Speaker 00:
And the one that I'm thinking of right now is Malahan versus Gray, 413 of second 349.

[00:22:38] Speaker 00:
That's the 1969 case, which it did not concern the Small Tracks Act, but it did concern the Administrative Procedure Act.

[00:22:47] Speaker 02:
But wasn't that rejected in 1975?

[00:22:49] Speaker 02:
and Strickland v. Morton?

[00:22:53] Speaker 02:
I'm sorry, Your Honor.

[00:22:54] Speaker 02:
Was that called into question by the court's decision in 1975 and Strickland v. Morton?

[00:23:00] Speaker 00:
Your Honor, I remember Strickland, but I can't speak to whether it overturned the passage that I'm focusing on.

[00:23:08] Speaker 00:
So granted, I don't remember the holding of Strickland and whether it applies.

[00:23:13] Speaker 00:
But the rule in Malahan, which has to be subject to Strickland, as you point out,

[00:23:19] Speaker 00:
was the Ninth Circuit in that court looked at the question of mandatory versus permissive statutes.

[00:23:28] Speaker 00:
And just because a statute does contain mandatory provisions does not mean that the government does not have discretion that the courts should stay away from.

[00:23:37] Speaker 00:
That's the only purpose of my mentioning.

[00:23:41] Speaker 01:
Even that doesn't control whether there's judicial review.

[00:23:45] Speaker 01:
I mean the district court thought

[00:23:47] Speaker 01:
I think incorrectly, but because there wasn't, I mean, he might've been wrong on two points.

[00:23:51] Speaker 01:
At least he was wrong on one.

[00:23:53] Speaker 01:
He said, if it's not mandatory, I can't review it.

[00:23:58] Speaker 01:
That seems wrong.

[00:23:59] Speaker 01:
And then he said, this is not mandatory.

[00:24:02] Speaker 01:
That might also be wrong.

[00:24:05] Speaker 01:
I just don't know how we, I mean, I guess we could affirm it on alternate basis.

[00:24:10] Speaker 01:
We could say, well, okay, we're going to review it.

[00:24:12] Speaker 01:
We're going to look at the merits and we're going to find that this was not arbitrary and capricious.

[00:24:16] Speaker 01:
But then we'd run into the, I mean, would you advocate for us doing that?

[00:24:20] Speaker 01:
Do you think we have enough before us to do that?

[00:24:23] Speaker 00:
Yes, I would advocate for this panel to do that.

[00:24:26] Speaker 00:
And I believe that the district court was also trying to do that.

[00:24:30] Speaker 00:
The district court made a determination that it had no jurisdiction, but it did turn to

[00:24:36] Speaker 00:
examine the record and see whether the government had acted arbitrarily and capriciously.

[00:24:42] Speaker 00:
And again, the record is empty of allegations that the government in some way ignored the factors that it needs to look at when making this determination.

[00:24:55] Speaker 03:
This happens within a frequency that we're quite familiar with this.

[00:24:59] Speaker 03:
The government has several factor tests.

[00:25:02] Speaker 03:
It exercises discretion.

[00:25:04] Speaker 03:
It discusses all of the factors.

[00:25:06] Speaker 03:
But that doesn't mean that the government is right and should be affirmed.

[00:25:11] Speaker 03:
I mean, just because it ticks off the factors doesn't mean that they didn't abuse their discretion.

[00:25:17] Speaker 00:
I agree with that, Your Honor.

[00:25:18] Speaker 00:
And if there's something in the record to show a clear error,

[00:25:24] Speaker 00:
then yes, the government is wrong.

[00:25:26] Speaker 00:
If there's something in the record to show some fundamental misunderstanding or misinterpretation.

[00:25:33] Speaker 00:
One of the, I think perhaps the only big fact question in this case that is really disputed is the ownership status of the corrals.

[00:25:42] Speaker 00:
And the panel will find very little in the record to speak to that, certainly to support.

[00:25:47] Speaker 01:
But that begs the question whether we should jump into it.

[00:25:50] Speaker 01:
You're saying, it sounds like both parties are asking us now to jump into it.

[00:25:54] Speaker 01:
You both think that we're going to rule in your favor on the merits if we get there.

[00:25:57] Speaker 01:
And I'm looking at this saying, I'm not sure how to make heads or tails of this.

[00:26:02] Speaker 01:
Can't you just go give them the corral?

[00:26:04] Speaker 01:
Let's be done.

[00:26:06] Speaker 01:
We'll all go out there.

[00:26:07] Speaker 01:
We'll look at the corral.

[00:26:09] Speaker 01:
We'll turn it over.

[00:26:10] Speaker 01:
We'll have a ceremony.

[00:26:11] Speaker 01:
And you just do that.

[00:26:13] Speaker 00:
Well, Your Honor, the Forest Service wants the discretion to do what it

[00:26:20] Speaker 00:
I guess what it is statutorily mandated to do with federal lands and that whether that is to allow.

[00:26:27] Speaker 01:
And that's the bottom line is you don't think you even have it.

[00:26:31] Speaker 01:
You don't view yourself as even having the discretion to, even if you wanted to, to sell him the corrals.

[00:26:38] Speaker 00:
Is that your position?

[00:26:39] Speaker 00:
That is correct because the corrals were, they were never private property.

[00:26:43] Speaker 00:
There's nothing in the record to suggest that they were private property.

[00:26:45] Speaker 02:
This was all.

[00:26:47] Speaker 02:
There's nothing in the record to show that there was neighbor government property.

[00:26:51] Speaker 00:
What we have, candidly, your honor, what we have in the record are statements from both sides.

[00:26:56] Speaker 00:
So we have a letter from Mr. Johnson stating what his views are on the corrals.

[00:27:01] Speaker 00:
And then we have an internal email within the Forest Service that is in the record.

[00:27:06] Speaker 00:
And we also have a letter from the Forest Service to Mr. Johnson describing the status of the corrals.

[00:27:11] Speaker 00:
As far as I know, that's all there is in the record.

[00:27:15] Speaker 00:
Now, I would still

[00:27:16] Speaker 00:
go back to point out that it is the Forest Service that has the expertise in determining what is the status and the ownership and the legal status of the corrals in the land.

[00:27:27] Speaker 01:
Well, but the allegation is you were looking at different corrals.

[00:27:31] Speaker 01:
I mean, I have no idea.

[00:27:34] Speaker 01:
I don't know.

[00:27:35] Speaker 01:
But that's the allegation.

[00:27:36] Speaker 01:
And that suggests that you might not have gotten this right.

[00:27:41] Speaker 00:
Well, there would have to be something.

[00:27:42] Speaker 00:
I guess my response to that point, Your Honor, would be that

[00:27:46] Speaker 00:
Mr. Johnson still has an obligation to point to, in the record, what was gotten wrong.

[00:27:52] Speaker 00:
And there has to be something wrong for there to be a showing that the government acted arbitrarily in this case or unfairly in violation of the administration.

[00:28:02] Speaker 02:
Isn't it in the record that the seller of the property to Mr. Johnson asserted that they exercise control over those corrals?

[00:28:16] Speaker 02:
and that those were corrals that were their corrals.

[00:28:19] Speaker 02:
Isn't that in the record?

[00:28:21] Speaker 00:
I don't know of a record site for that.

[00:28:23] Speaker 00:
I don't dispute that Mr. Johnson believed that at the time of the transaction between him and the seller.

[00:28:33] Speaker 00:
But the government's view has never changed.

[00:28:36] Speaker 00:
The corrals are range improvements.

[00:28:40] Speaker 00:
They are there.

[00:28:40] Speaker 02:
The government's view did change.

[00:28:43] Speaker 02:
Originally, you were going to convey 4.17 acres and even indicated to the congressman at the time that that conveyance was going to go through.

[00:28:53] Speaker 02:
So somewhere along the line, you changed your mind.

[00:28:56] Speaker 00:
Yes, your honor.

[00:28:57] Speaker 00:
I don't dispute that.

[00:28:59] Speaker 00:
I mean, whether we call it changing your mind or whether over a multi-year process, multi-decade perhaps, the government's view and the Forest Service view of how this land needed to be treated.

[00:29:15] Speaker 00:
is fluid, depending on what they learn about the land.

[00:29:19] Speaker 00:
And studies have to be conducted.

[00:29:21] Speaker 01:
But why doesn't that uncertainty just give you enough discretion here to end this case?

[00:29:27] Speaker 01:
I mean, this is just, you know, my big fear is that if we remand this, I mean, we want to get the law right.

[00:29:34] Speaker 01:
But if we remand this, I'm not sure we're getting anybody further along in the process of actually resolving this case.

[00:29:43] Speaker 01:
And I'm wondering if the Forest Service

[00:29:45] Speaker 01:
I know you can't do what you don't have discretion to do, but it seems like it's hard to imagine you couldn't make this happen in some way.

[00:29:54] Speaker 00:
Well, Your Honor, one other thing that I think bears on why the Forest Service makes the decisions that it does is that it is mandated to.

[00:30:06] Speaker 00:
The law states that these conveyances of land, of federal land, need to be as small as proven.

[00:30:14] Speaker 00:
I totally get that.

[00:30:15] Speaker 01:
I just wonder if you could go back.

[00:30:19] Speaker 01:
I would encourage you to advise your client to go back and take a look at whether this could be resolved.

[00:30:24] Speaker 01:
I understand you can't set a precedent that you can't adhere to in the future, but boy, there just seems like enough uncertainty here that I'm just not sure that you should be so bought in that we don't have authority.

[00:30:36] Speaker 02:
If we were in the Third Circuit, we would suggest that you may want to consider

[00:30:40] Speaker 02:
sending this to our third circuit mediator.

[00:30:43] Speaker 03:
I was just going to ask, we do have mediation service.

[00:30:45] Speaker 03:
Has this case been mediated?

[00:30:47] Speaker 00:
Has there been some attempt to mediate?

[00:30:49] Speaker 00:
I think there was talk of mediation, but we did not participate in a mediation.

[00:30:54] Speaker 00:
You have a concept of a plan?

[00:30:56] Speaker 00:
Concept of a plan.

[00:30:57] Speaker 03:
Okay.

[00:30:58] Speaker 03:
But there's been no mediation?

[00:31:00] Speaker 03:
That is correct, Your Honor.

[00:31:01] Speaker 03:
I would suggest that you go to the Ninth Circuit mediators.

[00:31:06] Speaker 03:
Ninth Circuit mediators are pretty good and it might inform the Forest Service position in mediation.

[00:31:17] Speaker 03:
It may be helpful to know that I would sure like to end this case right now by holding against the whole Forest Service if we have to get to the merits.

[00:31:27] Speaker 03:
That would be helpful to you in mediation?

[00:31:30] Speaker 03:
Perhaps.

[00:31:33] Speaker 03:
But I think our mediators may be able to help here.

[00:31:40] Speaker 00:
If no other questions, Your Honor, I will... That wasn't a resounding yes.

[00:31:46] Speaker 00:
Well, I'm happy to talk and, you know, opposing counsel and I have had a dialogue from the beginning of this case, so happy to discuss any of those possibilities.

[00:31:59] Speaker 00:
Thank you, Your Honors.

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

[00:32:10] Speaker 04:
Thank you.

[00:32:10] Speaker 04:
I think I addressed just that last point on the mediation.

[00:32:12] Speaker 04:
I do know that it was discussed and there was conversation surrounding it and some discussions on what could possibly be done to try to resolve this and ultimately weren't able to get much further along.

[00:32:26] Speaker 03:
I don't want to intrude in this too much.

[00:32:31] Speaker 03:
Did you ever talk to one of our mediators?

[00:32:34] Speaker 04:
Yes, as I'm recalling that we had some conversations either via email and separately on phone.

[00:32:40] Speaker 03:
Yeah.

[00:32:41] Speaker 03:
And I don't want to inquire further because it's our policy for us as the judges to stay away from the mediators.

[00:32:46] Speaker 03:
They don't tell us what happens in mediation.

[00:32:48] Speaker 03:
Correct.

[00:32:50] Speaker 03:
Except when they get to an answer.

[00:32:52] Speaker 04:
Yeah.

[00:32:53] Speaker 04:
I'd also kind of want to just address briefly the Mullahan v. Gray case on the Taylor Grazing Act.

[00:32:58] Speaker 04:
I think those are old cases, and they have obviously been kind of narrowed a little bit.

[00:33:05] Speaker 04:
Specifically, this court in Portland General Electric Company v. Bonneville Power Administration talked about how that there is, in terms of agency action, committed discretion by law precludes review, but that this is now, it's a narrow exception, and you have to show that there's absolutely no law to apply in the circumstances.

[00:33:26] Speaker 04:
I too, I recall Strickland, but I can't recall the exact specifics.

[00:33:30] Speaker 04:
So that's why I have referenced this other case.

[00:33:35] Speaker 04:
As well as this too, and I think Appellee made a mention of they have a complete discretion to determine whether an improvement is an encroachment or not.

[00:33:45] Speaker 04:
I think they have the discretion to approve a land sale, but, and part of that determination is determining if there's an encroachment that could qualify under the land sale.

[00:33:53] Speaker 04:
But it doesn't mean that that can't be reviewed and determine whether they gave a rational basis for the decision and whether it's actually supported by the evidence in the record as to why they are determining that it's not an encroachment, which in briefing and below, we argued was the fact that we don't believe they had enough to show that or to show that these weren't in fact encroachments that were.

[00:34:15] Speaker 04:
Claimed as owned by the private landowner under claim of title or color of title previous landowner and the current landowner.

[00:34:22] Speaker 04:
Mr. Johnson.

[00:34:23] Speaker 04:
Um, so based on that, I would just, um, ask this court, um, to decide in favor of the appellant, um, and finding that the decision of the Forest Service was arbitrary and capricious, um, was not supported by the facts in the record, um, and should be, I want to be careful.

[00:34:42] Speaker 04:
It should be either set aside or it should be remanded back to the court, um, to consider these issues.

[00:34:47] Speaker 04:
Thank you.

[00:34:48] Speaker 01:
Thank you.

[00:34:49] Speaker 01:
Thank you to both counsel, uh, for your arguments today.

[00:34:52] Speaker 01:
The case is submitted and that concludes our arguments for today's session.