[00:00:00] Speaker 05:
All right, I would call United States versus Osage-Wynn, number 255004.

[00:00:13] Speaker 01:
Thank you, Your Honors, and may it please the Court, Miguel Estrada for the Enel Appellant, and I will try my best to save four minutes for a bottle.

[00:00:24] Speaker 05:
Again, you have to keep track of your own time.

[00:00:26] Speaker 01:
I can see it's a tough room.

[00:00:28] Speaker 01:
Thank you, Your Honor.

[00:00:29] Speaker 01:
My fundamental point today is that the retention today of crushed rock that was severed from the mineral estate years ago is not a continuing trespass, nor a trespass of any kind.

[00:00:44] Speaker 01:
It's not an invasion of realty.

[00:00:47] Speaker 01:
It is, we concede, a conversion for which we have accepted liability.

[00:00:52] Speaker 01:
and for which the court awarded damages of $245,000 that we are willing and ready to pay.

[00:00:59] Speaker 01:
Those damages for conversion under Oklahoma law do not support attorney's fees of several million dollars as were awarded.

[00:01:09] Speaker 01:
Therefore, we submit that the disposition of the case should be the injunction should be reversed.

[00:01:16] Speaker 01:
The damages for continuing trespasses should be reversed.

[00:01:21] Speaker 01:
the conversion damages should be affirmed.

[00:01:25] Speaker 01:
Now, as to the fundamental point, it seems to us cut and dry, even the government at time concedes that once the rocks were severed and crushed, they cease being part of the mineral estate and became personality.

[00:01:42] Speaker 01:
As a general proposition of law, personality can be converted, but is not usually the subject of a trespass.

[00:01:50] Speaker 01:
With respect to the record here, both complaints affirmatively pleaded that what happened in this case was there was excavation, and under the ruling of this court, some of the rocks that were obtained in the excavation were crushed.

[00:02:06] Speaker 01:
Both of the complaints alleged, and the record is clear, that after the foundation for each of the towers were poured, it was concrete that was poured and cured, those rocks were then poured

[00:02:19] Speaker 01:
on top of the concrete foundation, so that what we're talking about is crushed rocks that were severed from the mineral estate that are providing backfill support on top of the concrete foundation and around the concrete foundation.

[00:02:35] Speaker 01:
It is not part of the mineral estate, excuse me, has not been part of the mineral estate for at least 12 years.

[00:02:43] Speaker 01:
That ought to conclude any claim of continuing trespass.

[00:02:52] Speaker 01:
Additional arguments for the giving of an injunction seem to us also to have a fundamental failing of law.

[00:03:02] Speaker 01:
There is the notion that an injunction could be based on the notion that there was an invasion of the tribe's sovereignty.

[00:03:10] Speaker 01:
I would say to you that the Supreme Court's ruling in Marion

[00:03:15] Speaker 01:
versus Hickory Apache, 1982, Justice Thurgood Marshall opinion for the court is controlling on this point.

[00:03:23] Speaker 01:
And I'll just take a second to remind the court of what the case involved.

[00:03:28] Speaker 01:
It involved mineral leases given out by the tribe with the approval of the Secretary of the Interior.

[00:03:37] Speaker 04:
Didn't part of the district court's analysis with respect to that aspect rely upon the finding of the continuing trespass?

[00:03:44] Speaker 04:
wasn't the notion that tribal sovereignty was not being respected or honored in part because the district court found that there was a continuing trespass and that, you know, or your client hadn't gotten a lease in the years since the 10th Circuit's opinion?

[00:04:01] Speaker 01:
Yes.

[00:04:02] Speaker 01:
That's the second aspect I was going to get to, and I was going to separate the claim of an invasion of sovereignty with the claim that there should be a lease obtained now.

[00:04:13] Speaker 01:
So let me deal with the sovereignty point first, which we think is controlled by the Marion case, where leases were at issue.

[00:04:21] Speaker 01:
And, you know, there was an effort by the tribe who gave the mineral leases then to tax the income from the leases.

[00:04:29] Speaker 01:
And the assertion was, no, you've already exercised your sovereign power.

[00:04:32] Speaker 01:
You're essentially a stop.

[00:04:33] Speaker 01:
This is all you can do.

[00:04:35] Speaker 01:
And what the court said was, no, with respect to the leases, and this is from page 145 of the court's opinion,

[00:04:44] Speaker 01:
for 55 US, you're essentially a commercial partner.

[00:04:48] Speaker 01:
You're not a sovereign.

[00:04:50] Speaker 01:
This is what the court said.

[00:04:52] Speaker 01:
And to confusing these two things, this is from page 146, denigrates Indian sovereignty.

[00:04:59] Speaker 01:
So the court said, this is a commercial thing.

[00:05:02] Speaker 01:
It's not sovereignty.

[00:05:04] Speaker 01:
You can then turn around and tax it as you would any other commercial enterprise.

[00:05:10] Speaker 01:
Our point on sovereignty is that, yes, we were guilty by not having obtained the lease in 2014, which would have made the entry privileged and not having settled on a royalty then, which would have then made the taking not a conversion.

[00:05:28] Speaker 01:
We were then guilty of a simple trespass and a conversion.

[00:05:31] Speaker 01:
A lease under the ruling of this court should have been obtained in 2014, not having been

[00:05:37] Speaker 01:
not having obtained those things, we conceded in the district court that we were guilty of trespass, simple trespass, and the conversion.

[00:05:45] Speaker 01:
Now the question is, the government says, well, it is an affront that merits some injunction that you haven't obtained a lease since.

[00:05:57] Speaker 01:
First point of that, under no theory could there be an injunction that ejects us from the surface estate

[00:06:05] Speaker 01:
where we have every right to be under the Osage Act and this court's 2017 ruling.

[00:06:11] Speaker 01:
So if there were any need to obtain a lease, the remedy could not possibly be that you get ejected from your own property.

[00:06:19] Speaker 01:
That's point one.

[00:06:20] Speaker 01:
Point two is the government has never given any support for the proposition that the regulation as written anywhere contemplate that a lease can be obtained retrospectively.

[00:06:34] Speaker 01:
All of the regulations are framed so that you can obtain a lease to license the entry and then pay for the royalties.

[00:06:45] Speaker 01:
As I'm sure you know, there is a whole body of law having to do with retrospective regulations.

[00:06:52] Speaker 01:
There is the Georgetown University Hospital case from 1988 in the Supreme Court, where Justice Scalia, in his concurring opinion, pointed out that when agencies write rules, they have to comply with the APA.

[00:07:05] Speaker 01:
And the definition of a rule in the APA are sort of norms that have prospective application.

[00:07:12] Speaker 01:
as opposed to adjudication by agencies that deal with things that have happened in the past.

[00:07:17] Speaker 01:
And the whole thing about a rule, these are rules, they were promulgated by the agency to have prospective application.

[00:07:24] Speaker 01:
The agency

[00:07:26] Speaker 01:
Neither the agency nor the OMC has ever identified a single passage in any part of the rule that says, this is how you go about licensing conduct that has already occurred.

[00:07:38] Speaker 01:
There is not a single sentence that they have identified.

[00:07:41] Speaker 01:
They have not identified a government website, promulgation, a single example of where this has ever occurred.

[00:07:48] Speaker 01:
I will compare the circumstance in 2017 where the government

[00:07:56] Speaker 01:
had asserted that we needed what they called a Sandy Soil permit.

[00:08:01] Speaker 01:
And this court found that that had no basis, even if they had once pointed to a single example where that had been done.

[00:08:11] Speaker 01:
Here, they have pointed to no administrative record of anywhere how to obtain it, where has it ever been done, how to go about it, or any language in the regulation that could possibly authorize it.

[00:08:24] Speaker 01:
And it would be contrary to the whole concept of the APA, the rules being of prospective application.

[00:08:32] Speaker 01:
I will say that should cover the point about the injunction, except one more thing, which is also part of why the injunction is unjustified.

[00:08:47] Speaker 01:
Even if we were wrong as to anything else, the plaintiffs themselves

[00:08:54] Speaker 01:
submitted evidence that their injuries for the purported continuing trespass were compensable by money damages.

[00:09:02] Speaker 01:
They submitted the testimony of haslet, which the court concluded was not reliable.

[00:09:08] Speaker 01:
But then the court came up with her own measure of damages based on a regulation that no one had cited.

[00:09:18] Speaker 01:
What the haslet and the regulation have in common

[00:09:21] Speaker 01:
is there are measures of damages based on the surface estate.

[00:09:25] Speaker 01:
Now, one can quibble whether that's wrong, whether that's logical, whatever.

[00:09:30] Speaker 01:
But if one accepts their premise that there is a continuing trespass, under their view and the district court's view, this is a continuing trespass that is compensable by money damages.

[00:09:40] Speaker 01:
And under hardcore injunction law, it is therefore not a harm that could ever be considered irreparable.

[00:09:47] Speaker 01:
Under the ruling that was issued by the court,

[00:09:51] Speaker 01:
continuing trespass damages are compensable by a certain sum to be continued at the rate of $8,000 per annum until we tear down the farm.

[00:10:06] Speaker 01:
And if that's true, we could capitalize that for the life of the farm and figure out

[00:10:13] Speaker 01:
what the harm of the trespass is.

[00:10:16] Speaker 01:
But the fundamental point is you can't have a continuing trespass for the possession of the property that you converted.

[00:10:27] Speaker 05:
Well, counsel, let me stop you there.

[00:10:29] Speaker 05:
I think the district court found that there's a continuing trespass here because in our prior opinion, we defined mining as exploiting the resource.

[00:10:43] Speaker 05:
And you're still exploiting the backfill.

[00:10:48] Speaker 05:
And that is a continuing trespass.

[00:10:50] Speaker 05:
Tell me why you think that is incorrect.

[00:10:53] Speaker 01:
That's incorrect as a matter of the ordinary dictionary meaning of mining, as a matter of the regulation, and as a matter of discourse opinion.

[00:11:03] Speaker 05:
Okay, let me start with this court's opinion.

[00:11:06] Speaker 05:
Okay.

[00:11:07] Speaker 05:
And also, I guess a sub-question there is, is that what governs the question of what constitutes mining in this case?

[00:11:16] Speaker 01:
Sure.

[00:11:16] Speaker 05:
Should we look at anything else or should we just look at what we said in our previous opinion?

[00:11:22] Speaker 01:
Well, I think, you know, the regulation sort of speaks for itself.

[00:11:28] Speaker 01:
And if the question of mining were controlling on the question of trespass,

[00:11:32] Speaker 01:
you would have to look at the regulation itself rather than the opinion, because the opinion may interpret the regulation, but if the situation has not exactly arisen, you would have to look at the regulation.

[00:11:48] Speaker 01:
My point to you is that this court actually dealt with the question

[00:11:52] Speaker 01:
And mining, it conceited, actually requires extraction plus treating.

[00:11:58] Speaker 01:
And so you cannot separate the fact that there is no ongoing extraction of anything.

[00:12:03] Speaker 01:
There has not been any excavation for more than a decade.

[00:12:06] Speaker 01:
And I know this.

[00:12:07] Speaker 01:
from the passage in 1090 and 91 and footnote 11 of this court's opinion, where this court focused on the fact that the phrase directed to the severance had to apply to the entirety of the regulation.

[00:12:22] Speaker 01:
Severance, of course, is part of actually going in and getting something out, which hasn't occurred in over a decade.

[00:12:28] Speaker 05:
How about the word exploitation?

[00:12:30] Speaker 01:
Yeah.

[00:12:30] Speaker 05:
Aren't they exploiting by having the backfill still there?

[00:12:35] Speaker 01:
Yes, but my point is that this court's opinion each time that it dealt with the exploitation was presupposing that the severance was ongoing because each of those passages speaks of the excavation and asks what more is needed.

[00:12:54] Speaker 01:
And the reason

[00:12:55] Speaker 01:
that was needed is because this court also conceded that excavation of the dirt by itself would not be mining.

[00:13:01] Speaker 01:
So it was looking for the plus factor that would turn it into mining under the facts of the case.

[00:13:07] Speaker 01:
If I could save the remainder of my time for rebuttal.

[00:13:11] Speaker 01:
Thank you.

[00:13:11] Speaker 05:
Thank you, Your Honor.

[00:13:14] Speaker 05:
Just a minute.

[00:13:15] Speaker 05:
Sorry.

[00:13:16] Speaker 05:
No, you may not.

[00:13:17] Speaker 06:
Are you saying that the only reason why this is not

[00:13:24] Speaker 06:
exploitation and therefore not mining is because it had already been excavated.

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

[00:13:33] Speaker 06:
And in that way... You do concede though that initially there was mining.

[00:13:41] Speaker 01:
That is the holding of this case.

[00:13:44] Speaker 01:
And so yes, we do concede that there was mining to the extent that

[00:13:50] Speaker 01:
that the rocks were taken and crushed, but not merely because of excavation or construction generally.

[00:13:56] Speaker 01:
And I would like to reserve the remainder of my time for rebuttal.

[00:14:00] Speaker 01:
Thank you.

[00:14:12] Speaker 02:
May it please the Court, Nolan Fields for the United States,

[00:14:15] Speaker 02:
I'm working with the Osage Minerals Council.

[00:14:18] Speaker 02:
I'd like to reserve five minutes for them, and I'll do my best to hold to it.

[00:14:21] Speaker 05:
That's your responsibility.

[00:14:23] Speaker 02:
Yes, Your Honor.

[00:14:24] Speaker 02:
May it please the Court.

[00:14:26] Speaker 02:
Here, Enel was never a commercial partner with the United States, so because it had no lease, Marion is inapplicable.

[00:14:36] Speaker 02:
Looking, Mr. Estrada offers that

[00:14:39] Speaker 02:
There's no offer of how the lease should be obtained retrospectively.

[00:14:43] Speaker 02:
The court already confirmed in its 2017 opinion that a lease needed to be obtained.

[00:14:49] Speaker 02:
So for Mr. or for Anel to blame the United States and the OMC for that failure, it's not the victim's job to let them know how to apply for a lease.

[00:14:58] Speaker 02:
They've known how to do it since 2013 and they've willfully and as a bad faith trespasser, which the district court found,

[00:15:05] Speaker 02:
refused to take that step.

[00:15:07] Speaker 04:
So do you contend that they're still mining?

[00:15:10] Speaker 02:
Absolutely.

[00:15:11] Speaker 04:
OK, and explain to me.

[00:15:12] Speaker 04:
So this is one of the issues that I struggle with.

[00:15:15] Speaker 04:
So I read the 2017 opinion.

[00:15:17] Speaker 04:
And with respect to extraction, it talks about action upon the extracted minerals for the purpose of exploiting the minerals.

[00:15:26] Speaker 04:
So explain to me how this rock that's already been mined, like it was pulled out, it was crushed, it's now just sitting on top.

[00:15:34] Speaker 04:
How is that still mining?

[00:15:36] Speaker 02:
But his characterization is incorrect.

[00:15:38] Speaker 02:
Based on the facts of the case, it's not just sitting on top of the foundation.

[00:15:42] Speaker 02:
It's backfill under the foundation, beside the foundation, and on top of the foundation.

[00:15:48] Speaker 02:
And so what the court did in its 2017 opinion laid out four examples that constituted mining, including, but not limited to, the extraction or excavation, the sorting, the crushing, and the use.

[00:16:02] Speaker 02:
And so by including the use, they explicitly explained that the ongoing exploitation was mining, and the court even took the step- Did they include the use as part of the mining, or was it action upon?

[00:16:15] Speaker 02:
No, that was already... The 2017 court specifically disabused ANEL of its attempted narrow reading of the mining regulations.

[00:16:27] Speaker 02:
And unequivocally, in that 2017 opinion, it said the problem here is that, I quote, that Osage Wind did not merely dig holes in the ground.

[00:16:37] Speaker 02:
It went further.

[00:16:38] Speaker 02:
It sorted, it crushed, and then exploited the crushed rocks as structural support.

[00:16:43] Speaker 02:
And there is no dispute that that exploitation continues.

[00:16:47] Speaker 02:
So when you want to talk about severance, physical severance, not legal severance, because Osage Wind cannot legally sever

[00:16:56] Speaker 02:
unalienable tribal property without a lease.

[00:17:00] Speaker 02:
That is the only way they can do it.

[00:17:02] Speaker 02:
And so without that lease, that's the reason the court is not, is correctly finding a remedy for this.

[00:17:12] Speaker 06:
The backfill is benefiting the surface estate.

[00:17:17] Speaker 06:
And as it is now, it's in urge.

[00:17:20] Speaker 06:
And it has no effect on the mineral aspect.

[00:17:24] Speaker 02:
But it's not a nerd.

[00:17:26] Speaker 02:
But for the backfill, if it was removed, these turbines would not be able to function or stand.

[00:17:32] Speaker 02:
So it's inherently part of the commercial operation.

[00:17:36] Speaker 02:
That's why the court in 2017, even without the benefit of discovery, at that procedural procedure of the case, all that had happened was two declaratory questions came up.

[00:17:46] Speaker 02:
Is it mining?

[00:17:47] Speaker 02:
And is the lease required?

[00:17:49] Speaker 02:
And the court came back and in its four examples that showed what mining constituted, notably only one of them is the extraction.

[00:18:00] Speaker 02:
All the other three sorting, crushing and use are considered mining and they are after the minerals have been removed.

[00:18:08] Speaker 02:
While they are physically removed, they are not legally severed.

[00:18:12] Speaker 02:
And that's the reason the court crafted the ejectment remedy because it cannot be more narrowly tailored because if they don't take a lease, there's only one entity that has a say on how tribal property rights can be alienated.

[00:18:26] Speaker 02:
And that's Congress.

[00:18:29] Speaker 06:
As the litigation progressed, there came a point where the district court inquired of whether or not the backfill could be removed.

[00:18:41] Speaker 06:
And the lawyer for Osage-Wooden had no answer to that.

[00:18:47] Speaker 03:
That's correct.

[00:18:49] Speaker 06:
That's over.

[00:18:50] Speaker 06:
Now, but the...

[00:18:59] Speaker 06:
Does that mean that part of our solution cannot be that as part of an order sending it back to require that there be an evidentiary hearing as to whether or not the backfill is essential?

[00:19:25] Speaker 06:
to the continued structure of the turbines.

[00:19:30] Speaker 02:
That was already found in the 2017 opinion.

[00:19:32] Speaker 02:
There are multiple places in the 2017 opinion where this court noted how specifically the structural support of the backfill for the turbines, i.e.

[00:19:42] Speaker 06:
the use... I actually agree with you.

[00:19:44] Speaker 06:
I remember reading that and said it several times because I was looking for it.

[00:19:48] Speaker 06:
You did say that.

[00:19:49] Speaker 06:
But the other side of the coin is, is it essential

[00:19:54] Speaker 06:
Can it be removed and not adversely affect the stability of the turbine?

[00:20:04] Speaker 02:
At the time when the court specifically had a letter briefing before the motion for summary judgment argument, there was a month advance lead time.

[00:20:14] Speaker 02:
And the court said, please explain this point if continuing trespass can be abated by the removal of the backfill.

[00:20:21] Speaker 02:
Both the OMC and the United States explained that that was possible and were intellectually honest.

[00:20:28] Speaker 02:
And unfortunately, Annelle did not provide any information.

[00:20:32] Speaker 02:
It specifically whiffed.

[00:20:34] Speaker 02:
And then only after the court had issued its order stating that it was going to eject the wind farm,

[00:20:40] Speaker 02:
that at that point, a nail ball can come up with a middle-of-the-road replacement option, which was not asked for by the court.

[00:20:46] Speaker 02:
The court only asked, how long is this going to take?

[00:20:49] Speaker 02:
So in that briefing, what this is, it goes to an abuse of discretion standard, which is...

[00:20:54] Speaker 02:
The court should get great discretion to control its own docket.

[00:20:58] Speaker 02:
But for the most part, the United States would like to pivot back to why we win.

[00:21:02] Speaker 02:
This is not a simple commercial transaction between the parties as Enel would like to have it be.

[00:21:08] Speaker 02:
This is the scale of a trespass that would be the equivalent of 84 wind turbines across 8,400 acres.

[00:21:16] Speaker 02:
That's literally the height equivalent of 84 statues of liberty across

[00:21:21] Speaker 02:
10 times the size of New York's Central Park.

[00:21:24] Speaker 02:
That's also half the size of Boulder, Colorado.

[00:21:27] Speaker 02:
The volume of the OMEA issue is over 300,000 tons.

[00:21:31] Speaker 02:
So with all of that information, what Enel does not want to talk about is that their continued use and exploitation without a lease is continuing trespass, and it's not on some obscure private party.

[00:21:45] Speaker 02:
It's on a sovereign tribe, specific reservation of minerals

[00:21:50] Speaker 02:
that is to be protected as trustee by the United States.

[00:21:53] Speaker 02:
And so they are flouting that and they cannot alienate something that only Congress has delineated how they could do it.

[00:22:00] Speaker 04:
So would you contend that there was still a continuing trespass if they had just taken the backfill off site?

[00:22:05] Speaker 02:
If they don't have a lease, they're still mining.

[00:22:08] Speaker 02:
So we can get into hypotheticals of where it's located, but they didn't take it off site.

[00:22:12] Speaker 02:
They literally put it back in place.

[00:22:14] Speaker 04:
Right, but when does, I guess, when does mining end to you?

[00:22:17] Speaker 04:
Like that's, I'm struggling here.

[00:22:19] Speaker 02:
There's only two ways.

[00:22:20] Speaker 02:
I'm trying to be honest.

[00:22:20] Speaker 02:
It's unfortunate.

[00:22:21] Speaker 02:
It's two ways.

[00:22:22] Speaker 02:
They either get the lease, which is the way that Congress has said that you can alienate this properly, or they can be ejected.

[00:22:30] Speaker 02:
So the problem is with this- I'm sorry.

[00:22:32] Speaker 05:
No, it's okay.

[00:22:33] Speaker 05:
Just have you repeat that.

[00:22:35] Speaker 05:
They cannot end mining activities until they leave or forced to leave.

[00:22:42] Speaker 02:
They could get a lease or they could be ejected.

[00:22:46] Speaker 05:
And anything they do is mining up until that point.

[00:22:49] Speaker 02:
Well, at this point, the 2017 order has delineated what mining is.

[00:22:53] Speaker 02:
There's no reason, I think, for the court to delve into hypotheticals because it's laid out here in 2017.

[00:22:58] Speaker 05:
You haven't given us an answer to the hypothetical.

[00:23:01] Speaker 05:
You didn't answer Judge Teter's question about the hypothetical, so I'll ask it again.

[00:23:06] Speaker 05:
Yes, ma'am.

[00:23:07] Speaker 05:
They take the backfill, or whatever, the material, and they take it 1,000 miles away, and they build a road with it.

[00:23:15] Speaker 05:
And that material is sitting there.

[00:23:18] Speaker 05:
Is that mining?

[00:23:20] Speaker 02:
Yes, it is mining.

[00:23:21] Speaker 05:
It is mining.

[00:23:22] Speaker 05:
Okay, so how is the thousand mile away mining?

[00:23:25] Speaker 02:
This court in 2017, it's mining because they don't have a lease.

[00:23:30] Speaker 02:
If they were allowed a certain distance or a certain amount of money, that would obviate the fact that there are federal regulations and sovereignty.

[00:23:38] Speaker 02:
It's specifically regarding that, otherwise you would have no one ever seek the lease.

[00:23:44] Speaker 02:
All they would do is rush to quickly get it out of the ground, like the land rush, ironically, in Oklahoma, so that they wouldn't have to comply with the regulations and they could pay a paltry amount, which is not what

[00:23:55] Speaker 02:
Congress is authorized.

[00:23:56] Speaker 05:
So you're, I understand now you're saying because of the sovereignty element, this is different.

[00:24:04] Speaker 02:
And because of what Congress has said, the only way that it can be severed is one way.

[00:24:08] Speaker 02:
So the court in 2017 and I'll quickly end said, quote, this type of mining does not fit nicely into the traditional notions of mining as the term is commonly understood.

[00:24:19] Speaker 02:
So as much as Anel would like to pay for their trespass and make it seem simple,

[00:24:23] Speaker 02:
It is nothing but because they never addressed the sovereignty of the Osage nation, and they have illegally attempted to sever unalienable tribal property.

[00:24:32] Speaker 02:
Thank you.

[00:24:38] Speaker 00:
Thank you.

[00:24:38] Speaker 00:
May it please the court, my name is Jeffrey Rasmussen for the Osage Minerals Council.

[00:24:43] Speaker 00:
I'm going to try very hard not to refer to them as a tribe, but I do it all the time.

[00:24:48] Speaker 00:
So I wanted to turn to Judge Murphy's question about

[00:24:52] Speaker 00:
what Enel now claims is the narrower option.

[00:25:02] Speaker 00:
And what they're talking about is lifting the existing wind structures up, removing the rock that is the use that they've admitted they're still using it, and then taking the Osage Minerals rock out

[00:25:20] Speaker 00:
and replacing it with rock that they purchased elsewhere.

[00:25:23] Speaker 00:
And in many cases, when you're dealing with is there a narrower option, you're dealing with something where the court can see there's a narrower option.

[00:25:31] Speaker 00:
And in this case, what the district court asked Enel was not, you know, is this an option, but is this possible under construction methods?

[00:25:44] Speaker 00:
And Enel said, there's no evidence in the record of that.

[00:25:47] Speaker 00:
There's no evidence to support that in the record.

[00:25:50] Speaker 00:
That's what they said.

[00:25:51] Speaker 00:
The court then issued the summary judgment based upon that.

[00:25:54] Speaker 00:
So when we're talking often about narrower options, we're talking about something the court can say, oh, here's a narrower option.

[00:26:00] Speaker 00:
You can allow the protesters closer or things like that that we know are possible.

[00:26:09] Speaker 00:
Here, the court's question went to the facts.

[00:26:13] Speaker 00:
of is it factually possible.

[00:26:16] Speaker 00:
And Enel said, no, there's no evidence in the record of this.

[00:26:21] Speaker 00:
And the court then issued its decision saying we're going to have to evict the wind farm because there's no evidence in the record of this other option being possible.

[00:26:32] Speaker 00:
And it was only after that that Enel then submitted what it calls the replacement option.

[00:26:36] Speaker 00:
And it did so improperly.

[00:26:38] Speaker 00:
The court had asked for a briefing on a particular topic, and Enel volunteered

[00:26:43] Speaker 00:
oh, can we go back to that?

[00:26:45] Speaker 00:
And that's one of the reasons we're 15 years into this, almost 15 years into this case, is that Enel goes for their big win, and when they lose, they then go back and say, let me try this one again.

[00:27:01] Speaker 00:
And so what they're trying to do now with this option is exactly what the judge asked, which is, well, could we remand?

[00:27:07] Speaker 00:
And that's what Enel wants.

[00:27:09] Speaker 00:
Because then they get another five years of operating this wind farm before it can be removed.

[00:27:15] Speaker 00:
So no, it is not an option under the record of this case.

[00:27:20] Speaker 00:
Similarly, Enel said, yes, we are still exploiting those minerals because we are using them as the foundation upon which these turbines sit.

[00:27:33] Speaker 00:
So we basically have 84 mines on this land, 84 mines

[00:27:39] Speaker 00:
that don't have a lease on this land where they're using the minerals, they're exploiting the minerals.

[00:27:46] Speaker 00:
And I wanted to go back to why that was part of the prior case.

[00:27:50] Speaker 06:
Let me ask you this.

[00:27:51] Speaker 06:
I have one of those what ifs for you.

[00:27:55] Speaker 06:
What if this court does not buy the sovereignty issue?

[00:28:00] Speaker 06:
and says, no, this is all proprietary.

[00:28:04] Speaker 06:
You have non-tribal members with head rights that are affected by this, so it can't be solved.

[00:28:13] Speaker 06:
They'll accept that.

[00:28:16] Speaker 06:
But it also accepts the proposition that the continued presence of the back mill is deemed to be mining.

[00:28:31] Speaker 06:
What then?

[00:28:31] Speaker 06:
The company can say, well, we expect millions of dollars for this.

[00:28:42] Speaker 06:
And Inferno says, well, it's not worth millions of dollars.

[00:28:47] Speaker 06:
There are law grants.

[00:28:48] Speaker 06:
What if no new lease can be accomplished?

[00:28:52] Speaker 06:
What then?

[00:28:54] Speaker 00:
Well, as far as legally a new lease can be accomplished, that wasn't an argument that I recall them making in their brief that they can't go back and retroactively do it.

[00:29:03] Speaker 00:
But it can be.

[00:29:04] Speaker 00:
As far as if the court said there's no sovereignty, you get back to basic property rights, which is if you're on the property and you don't have the right to be there, and they don't have the right to have their 84 mines there, that that would be a violation of basic property rights.

[00:29:18] Speaker 00:
So even a separate from the tribal interests.

[00:29:22] Speaker 00:
Reading of Marion is completely wrong, so we'd ask the court to look at that carefully.

[00:29:29] Speaker 06:
Let me ask you this.

[00:29:30] Speaker 06:
Based on what you just said, if that is so, but we also disagree that with the district court as to its measurement, its rental for the trespass,

[00:29:48] Speaker 06:
Would remand it then to the district court to have a new hearing on what the reasonable rental value would be of this area that is filled with backfill?

[00:30:06] Speaker 00:
I think we did not appeal on that issue.

[00:30:09] Speaker 00:
We thought the court's decision on that was wrong.

[00:30:11] Speaker 00:
But what it's talking about is $8,400 when it was saying

[00:30:16] Speaker 00:
when the wind farm's going to have to be removed and until, so in that interim, $8,400 until it is done.

[00:30:23] Speaker 00:
So the court was very clear that it was saying, this is just an interim measure because it's not a full measure of the damages or the full remedy.

[00:30:33] Speaker 00:
The full remedy is removal of that wind farm.

[00:30:35] Speaker 00:
That is what we want now, in part because of some of the things that Annella said in its brief and in its arguments that we view as disrespectful to the Osage

[00:30:46] Speaker 00:
nation and to the OMC as part of a sovereign.

[00:30:50] Speaker 00:
Thank you.

[00:30:51] Speaker 05:
Thank you.

[00:30:52] Speaker 05:
Could you add two minutes to rebuttal because of the court's questions?

[00:31:02] Speaker 01:
Thank you, Your Honor.

[00:31:04] Speaker 01:
Let me start by adding that there has been

[00:31:07] Speaker 01:
no rebuttal on the fundamental point that this is personality and not realty.

[00:31:13] Speaker 01:
We can have a debate as to the meaning of mining, if there were mining, which I'll get to.

[00:31:19] Speaker 01:
But this is a conversion and not a trespass, irrespective of the meaning of mining.

[00:31:27] Speaker 01:
But let me first address the questions that were raised first by Judge Teeter, followed up by Judge Eyde, and then the question that was raised by Judge Murphy.

[00:31:37] Speaker 01:
The offsite versus onsite does matter because, you know, the regulation says what it says.

[00:31:45] Speaker 01:
And if hypothetically this were an emerald mine and I had gone in without a permit and stole the emeralds and converted them into earrings for my spouse, you know, the fact that she was still going around wearing the earrings would turn it into a conversion.

[00:32:06] Speaker 01:
A remedy could be relevant, given back.

[00:32:10] Speaker 01:
in which case you would not be entitled to also seek damages for the value of the emeralds.

[00:32:14] Speaker 01:
Or it could be, you know, give me the damages for the conversion, in which case you would not get the emeralds back too.

[00:32:23] Speaker 01:
You can't get both of those things, right?

[00:32:25] Speaker 01:
And so here, if you are getting the damages for the conversion, ordinarily you would not also get an injunction to get the rocks back.

[00:32:35] Speaker 01:
It's essentially a forced sale.

[00:32:36] Speaker 01:
That's point one.

[00:32:37] Speaker 01:
Point two, on the mining point, the text of the definition, both in the general definition, refers to severance and doing something which has been severed.

[00:32:53] Speaker 01:
And then there is an exception that refers to extraction of no more than 5,000 cubic feet per year.

[00:33:03] Speaker 01:
Neither of those things would make sense if the passive possession of something could be mining because the extraction on a per annum basis would stop applying on year two.

[00:33:16] Speaker 01:
And so as a textual interpretation of the regulation, the notion that the continuing possession

[00:33:24] Speaker 01:
of something that was extracted years ago being mining, if that was still relevant, wouldn't make any sense because it would make a hash of the language of the regulation.

[00:33:34] Speaker 01:
Point three, this court's opinion said we should have had a lease in 2014.

[00:33:40] Speaker 01:
It didn't say one is available now.

[00:33:42] Speaker 01:
It did not purport to construe the regulations.

[00:33:45] Speaker 01:
The consequence of that, of course, is since we didn't have one, we have to pay damages for the conversion.

[00:33:51] Speaker 01:
Judge Murphy.

[00:33:54] Speaker 01:
The 2023 summary judgment hearing is very long.

[00:34:00] Speaker 01:
And we truthfully answered when asked, could you take the rocks back structurally?

[00:34:06] Speaker 01:
We have no record for that.

[00:34:07] Speaker 01:
And I think the council say, I also don't have the engineering background to know.

[00:34:11] Speaker 01:
That was in September 2023.

[00:34:15] Speaker 01:
a ruling issued in December 2023 saying, I will grant an injunction, there was a request for clarification of the court, is this an injunction?

[00:34:26] Speaker 01:
And she said, no, I am not yet issuing an injunction.

[00:34:32] Speaker 01:
Now the significance of that is, if there had been an injunction, we could have appealed

[00:34:39] Speaker 01:
and we could have brought the matter to the court.

[00:34:42] Speaker 01:
But as we pointed out, under the last sentence of Rule 54B, if a ruling is interlocutory, it is subject to change until the entry of the final judgment.

[00:34:53] Speaker 01:
It was open to us to then furnish the record that had not been available when the court asked that question as we did then.

[00:35:00] Speaker 01:
Now, Mr. Field says she hadn't asked

[00:35:04] Speaker 01:
for the record, but she still had the duty to follow a correct interpretation of the law before she entered the injunction.

[00:35:12] Speaker 01:
I will note that, contrary to the statements by the government and the OMC, that she said that we had waived something by not having, you know, the record of summary judgment or that there was a forfeiture of some sort.

[00:35:25] Speaker 01:
Her opinion.

[00:35:25] Speaker 05:
Okay.

[00:35:26] Speaker 05:
Thank you.

[00:35:28] Speaker ?:
Okay.

[00:35:28] Speaker 02:
Thank you.

[00:35:28] Speaker 02:
Honor, can I address 214 and 30 seconds?

[00:35:32] Speaker 02:
Yes.

[00:35:36] Speaker 02:
25 CFR 214.9 is not some obscure thing that the judge came up with.

[00:35:41] Speaker 02:
It is literally in the regulations on how leases can get paid off, specifically in the Osage mineral estate.

[00:35:48] Speaker 02:
Advanced rentals are what you pay to have the opportunity to have a lease and the exclusive right to mine.

[00:35:54] Speaker 02:
It's only when you then mine and produce something that royalties are also paid.

[00:35:58] Speaker 02:
So clearly, this is not something that the judge came up with.

[00:36:01] Speaker 02:
It's something that's in the regs specifically for this asset.

[00:36:04] Speaker 02:
Accordingly, thank you.

[00:36:06] Speaker 06:
Are you saying if you can't reach agreement on a new lease, that you necessarily then get this advance rental payment forever?

[00:36:24] Speaker 02:
You pay the advance rental while you occupy it.

[00:36:27] Speaker 02:
That's the only way you're able to occupy the area in question.

[00:36:31] Speaker 02:
So because Enel has never had a lease,

[00:36:33] Speaker 02:
They don't have the right to be there to begin with.

[00:36:36] Speaker 02:
So to pay $8,400 a year is a pittance compared to the million dollars that the surface owners are getting.

[00:36:42] Speaker 02:
It's just not equitable.

[00:36:44] Speaker 02:
Thank you.

[00:36:45] Speaker 05:
Thank you.

[00:36:46] Speaker 05:
Any more questions from the court?

[00:36:49] Speaker 05:
No.

[00:36:49] Speaker 05:
All right.

[00:36:49] Speaker 05:
Thank you, counsel, for your arguments.

[00:36:51] Speaker 05:
The case stand's submitted.

[00:36:52] Speaker 05:
Counsel's excused.

[00:36:54] Speaker 05:
And we are adjourned until tomorrow night.