[00:00:02] Speaker 01: Case number 19-1030 at L. Bahamas County of Washington Petitioner versus Service Transportation Board at L. Mr. Montag for the petitioner. [00:00:12] Speaker 03: Ms. [00:00:12] Speaker 03: Miller. [00:00:54] Speaker 04: Good morning, if it please the court. [00:00:56] Speaker 04: My name is Charles Monte. [00:00:57] Speaker 04: I am counsel for Snohomish County, Washington. [00:01:01] Speaker 04: Snohomish County is located immediately north of King County, close to the city of Seattle. [00:01:09] Speaker 04: As STB has argued, its licensing regulations for acquisition and operation of a railroad are in general permissive, which is to say they permit a party who applies to acquire [00:01:24] Speaker 04: and to operate a railroad, to operate the railroad, but do not mandate that it do so. [00:01:29] Speaker 04: They don't command that it do so. [00:01:32] Speaker 04: If the party does acquire and does operate the railroad, then it's subject to a host of additional limitations and restrictions. [00:01:41] Speaker 04: Now, if you're issuing a permissive regulation to operate to acquire a railroad, it generally, well, it inevitably is subject to two conditions. [00:01:52] Speaker 04: either by statute or by regulations or by case law. [00:01:57] Speaker 04: Number one, if I apply to acquire and operate a railroad, I must have the intent of operating a freight railroad, acquiring the property, the rail property, to operate a freight rail system on it. [00:02:08] Speaker 04: In addition, I must have the, I must in fact acquire the rail property. [00:02:15] Speaker 04: I can't simply tell the STD I'm going to acquire and operate a railroad and not acquire the railroad. [00:02:21] Speaker 04: Instead, it just commits operations. [00:02:24] Speaker 04: The reason is very simple. [00:02:25] Speaker 04: STB has no power of eminent domain. [00:02:28] Speaker 04: They don't want to obligate the government to buy the property of the underlying property owners in order to do this. [00:02:36] Speaker 04: The crux of this case then is very simply stated. [00:02:39] Speaker 04: A party, the Eastside Community Railroad, applied to the STB for a license to acquire and to operate a railroad. [00:02:49] Speaker 04: They said in their license application, and it was a verified application by one Douglas Ingle, that they were in fact going to acquire this property from an outfit called GNP. [00:03:02] Speaker 04: Unfortunately, they did not. [00:03:05] Speaker 04: There is no deed from GNP at all to ECR, East Side Community Railroad. [00:03:12] Speaker 04: In fact, the record is bereft of any deed at all of any rail property. [00:03:18] Speaker 04: from anyone, GNP, BNSF, anyone, any individual to Eastside Community Rail to operate a railroad on. [00:03:29] Speaker 04: They had been operating a railroad on the property, however, and when we, the county, discovered what had happened finally, we applied to revoke their license. [00:03:42] Speaker 01: Before I, just to clarify. [00:03:44] Speaker 01: Yes. [00:03:45] Speaker 01: Was this an easement that was limited to use as a railroad line so that if it's not used as a railroad line, if your exemption, if the exemption is revoked so that it cannot be used as a railroad line, does it revert to the county? [00:04:00] Speaker 04: Yes, the county would, well, the county would, owns the underlying property. [00:04:07] Speaker 04: Our position is replication of the license alone won't cause a reversion. [00:04:12] Speaker 04: This isn't an abandonment kind of action. [00:04:15] Speaker 04: Someone else would be the common carrier on the line. [00:04:21] Speaker 04: Our view of who that common carrier would be. [00:04:23] Speaker 04: Now, there's a common carrier obligation that goes with the railroad line. [00:04:26] Speaker 04: The license to acquire and to operate. [00:04:29] Speaker 01: I want to get to, if East Coast doesn't hold this easement, does somebody else or is it yours? [00:04:40] Speaker 04: If Eastside Rail doesn't own the easement, the record title owners, according to the county's research and the title commitment that we received from an independent title company, are the father and the then wife, now ex-wife, of Douglas Engel, the man who signed the verification. [00:05:01] Speaker 01: So how does this help you? [00:05:02] Speaker 01: How would a ruling in this case help you? [00:05:05] Speaker 01: You still have an easement across your land. [00:05:09] Speaker 01: Either way. [00:05:10] Speaker 04: At least we would be dealing with a party who's not a trespasser. [00:05:14] Speaker 01: Sorry? [00:05:15] Speaker 04: We would be dealing with a party who is not a trespasser and we would know with whom we have to deal on contractual matters and also against whom to aim an adverse abandonment application in the event it reaches that point. [00:05:31] Speaker 01: At the current time we're facing... Did the Angles have an obligation to run a railroad on there or they could have made it a bicycle path? [00:05:39] Speaker 04: I believe that there are multiple licensing violations at issue below. [00:05:43] Speaker 04: The one we have brought is this one on revocation of a license by an applicant who doesn't own anything. [00:05:51] Speaker 04: Under STB case law, as I understand it, they would view the actual owner of the freight rail easement as the railroad, and they would presumably require that individual or entity to obtain a railroad operating license. [00:06:08] Speaker 04: There's an alternative one could conjure, and that is that maybe this would go to another party, GNP, the original party that supposedly... Is there still a GNP? [00:06:21] Speaker 04: There is still a GNP. [00:06:23] Speaker 01: So they reorganize, but they're back in business? [00:06:26] Speaker 04: Yeah, reorganize. [00:06:27] Speaker 04: They still exist out there. [00:06:29] Speaker 01: So your injury is you don't know who to contact? [00:06:32] Speaker 04: That's a point in the record. [00:06:33] Speaker 04: I'm sorry. [00:06:33] Speaker 01: We'll get finished. [00:06:34] Speaker 04: That's a point in the record, I believe. [00:06:37] Speaker 04: I believe Mr. Engel testified that there was a signal company, NWSignal, that testified final statement saying NWSignal was seeking to acquire GNP. [00:06:51] Speaker 04: So, yeah, it would either go back to GNP if the license were revoked or, alternatively, SCB case law suggests that the actual owner of the freight rally, I mean, if I am [00:07:02] Speaker 04: an entity that buys without their license authority the common care obligation, the real one. [00:07:10] Speaker 04: Then in general, when STB finds out about it, they'll say, you should get a license. [00:07:14] Speaker 04: Go get a license from us. [00:07:16] Speaker 04: And then if there's an issue with that license, then that can be taken up in that proceeding. [00:07:27] Speaker 02: This is beyond our core expertise. [00:07:30] Speaker 02: Go to a state court and get the property and contract questions sorted out. [00:07:36] Speaker 02: But without prejudice to coming back to them if in fact the state of affairs as you are briefed to us describes born out. [00:07:47] Speaker 02: So what's wrong with that? [00:07:50] Speaker 04: It's a delay to go to a state court for an advisory opinion to the federal agency about who owned what. [00:07:57] Speaker 02: It's an actual adjudication of property rights, no? [00:08:02] Speaker 04: Well, it's a quiet title proceeding under which the state could say these guys do not is a touchy thing because STB licenses preempt state law. [00:08:13] Speaker 02: Their position is, no, not in this way in the sense of who owns the easement. [00:08:19] Speaker 02: Their position doesn't preempt. [00:08:23] Speaker 04: I understand that they believe we can go to Washington State Court. [00:08:27] Speaker 04: We're not so certain that we would have a remedy in Washington State Court. [00:08:30] Speaker 01: Well, I'm not sure they believe you can either. [00:08:32] Speaker 01: I think the reconsideration decision drops a footnote that says, oh, maybe you can't go there either. [00:08:37] Speaker 01: Of course, you have to come back to us. [00:08:39] Speaker 01: Yes. [00:08:39] Speaker 04: No, no, maybe you can't go there either. [00:08:41] Speaker 04: Yes. [00:08:41] Speaker 04: So sad. [00:08:41] Speaker 04: There are a lot of problems with that as a remedy. [00:08:44] Speaker 04: One is that STDs also suggested we might have to reopen a bankruptcy proceeding that's five or six years old. [00:08:50] Speaker 04: And this is sort of a negative pregnant that since this was from a bankruptcy proceeding, maybe there was fraud committed when these deeds out by Douglas Engel were issued such that GMP didn't even own the, the irony of the situation, I'm jumping around, but the irony of this situation [00:09:11] Speaker 04: is that Douglas Engel, before he forced GNP into bankruptcy, before he forced it into bankruptcy, conveyed as an officer of GNP, the freight rail easement, to his father and his then wife. [00:09:30] Speaker 04: And they're the record title owners of it. [00:09:32] Speaker 04: That was a deed that's in the record. [00:09:34] Speaker 04: We've established that as well as it can be established. [00:09:40] Speaker 04: forces the entity into bankruptcy and no longer owns the freight rail easement. [00:09:44] Speaker 04: His father and then-wife file claims as creditors against the bankrupt estate, do not disclose that they've received a settlement. [00:09:56] Speaker 04: In addition, Mr. Engel buttresses that point and at the same time asserts that the freight rail easement that GNP owned was the primary and only valuable asset held by GNP. [00:10:09] Speaker 04: Of course, at the time, it was no longer held by GNP. [00:10:12] Speaker 04: They concealed it from the trustee, most likely, and the bankruptcy court. [00:10:17] Speaker 04: So we have a potential massive fraud. [00:10:19] Speaker 04: He has no incentive to reopen the proceeding because there were possibilities that Engel family members might end up in the clink or in jail. [00:10:28] Speaker 01: Well, I think the standard for [00:10:37] Speaker 01: vacating the exemption or revoking the exemption is false or misleading. [00:10:42] Speaker 01: False or misleading. [00:10:43] Speaker 01: Yes. [00:10:44] Speaker 01: Yes. [00:10:45] Speaker 01: And sending it, I guess, if the state court could adjudicate it, that might establish falsity. [00:10:53] Speaker 01: But Engel has his argument as to, well, there's actually this convoluted path on which there is something there. [00:10:59] Speaker 01: Yeah. [00:11:03] Speaker 01: I'm confused as to what the standard is for, whether this was independently misleading to the board. [00:11:10] Speaker 04: Whether it's false or not. [00:11:14] Speaker 04: STB tries to paint this as a contract case. [00:11:17] Speaker 04: Contract disputes are frequently given over to the state court. [00:11:21] Speaker 04: This is not a contract case. [00:11:22] Speaker 04: This is a pure property interest case. [00:11:25] Speaker 04: STB has adjudicated who owns what under state law all the time. [00:11:30] Speaker 04: It does it in abandonment proceedings when there's an OFA. [00:11:32] Speaker 04: It does it in feeder line applications. [00:11:34] Speaker 04: It does it to determine [00:11:36] Speaker 01: I guess my question is a little bit different, and that is if someone's filing one of these exemption applications with the board, is there some duty of candor? [00:11:48] Speaker 01: You said part of what they have to say is, and I'm going to either have this property or I'm going to get this property and use it this way. [00:11:55] Speaker 01: Absolutely there's a duty of candor. [00:11:57] Speaker 01: What precedent is there that would say, if in fact, [00:12:02] Speaker 01: getting this title is going to be quite complicated because we're not even sure where this title is and there's a lot of moving parts here that it was misleading. [00:12:12] Speaker 04: Yeah, I think if you're asking, there are kind of two levels to your question. [00:12:16] Speaker 04: Is there STB precedent for voiding the exemption when the party asserting they were going to acquire title does not or cannot? [00:12:26] Speaker 01: Or misleading about the complexities of it. [00:12:29] Speaker 04: Oh yes, and or misleading. [00:12:32] Speaker 04: It's misleading at best. [00:12:35] Speaker 04: I would say it's just false to say that ECR acquired, but misleading certainly... Well, what the Board said is, well, we can't figure out false until somebody sorts out this property interest. [00:12:47] Speaker 01: But I'm asking you something about misleading, which would seem to be something right squarely in the Board's wheelhouse, is whether they feel like they've been misled. [00:12:53] Speaker 04: Oh, surely. [00:12:54] Speaker 04: Surely. [00:12:54] Speaker 04: The fact Mr. Engel knew that he had deeded this property to his relatives [00:12:59] Speaker 04: And at the same time he's telling STB he's going to acquire it from GNP and at the same time he knows GNP doesn't own it. [00:13:06] Speaker 04: No matter what he, his obfuscation before the agency is kind of incredible. [00:13:12] Speaker 01: But the key... Are there hard cases about misleading what level of candor or explanation as to the source of the property right to be acquired they require? [00:13:23] Speaker 04: When a party knows that it [00:13:27] Speaker 04: the entity it's saying to the agency it's going to acquire from does not have the property right. [00:13:33] Speaker 04: I don't know of a stronger case for viewing that as misleading. [00:13:38] Speaker 01: Mr. Engel thinks that they had it by the time there was this bankruptcy. [00:13:41] Speaker 01: You disagree, and right, and that's maybe that's the property law question. [00:13:46] Speaker 01: But apart from the property law question is whether Mr. Engel should have said, well, [00:13:52] Speaker 01: We think GMP should have disclosed these series of transactions to avoid misleading. [00:13:59] Speaker 01: The board says actually a month ago you filed a petition with us, or someone filed a petition with us telling us that Telegraph Hill had this easement. [00:14:10] Speaker 01: And so it seemed to me they were a bit exasperated about this level of candor. [00:14:16] Speaker 01: But I don't know what case law there is on what it means to be misleading the board apart from, I know you have your argument as to actual falsity, but apart from that, is there a case law on what it means to be misleading? [00:14:28] Speaker 04: And we do cite case law saying that if an individual claims that they have an agreement to acquire but the agreement doesn't exist or there's some problem with it, I would say a problem is it can't be implemented, then that's misleading. [00:14:43] Speaker 04: I don't think the issue of misleading can be left up to what Mr. Engel's judgment. [00:14:49] Speaker 04: There has to be a more objective criteria that we want to grip in place. [00:14:52] Speaker 02: You mentioned you have cases where someone said, we're going to acquire this, but that was misleading. [00:14:58] Speaker 02: And so I think what we're asking is, without suggesting that we don't agree with your falsity argument, if it were the case that the STB really can't decide true or false, [00:15:12] Speaker 02: doesn't it have more expertise and more of a domain over its idea of what's misleading in the context of the STB? [00:15:24] Speaker 02: What misleads the board. [00:15:25] Speaker 02: What misleads the board and what misleads people who it is regulating. [00:15:29] Speaker 02: And so even if it's not false, even if it turns out to be true, but it's misleading. [00:15:35] Speaker 02: Is there any case that goes off on misleadingness alone? [00:15:39] Speaker 02: that you could point us to. [00:15:41] Speaker 02: In other words, where the STB said may or may not be false. [00:15:44] Speaker 02: Even if at the end of the day it's true what this applicant said, it was really misleading. [00:15:50] Speaker 04: I would say the Black Hills case cited in our brief comes close to, at least close to what you're saying. [00:15:55] Speaker 04: The parties there, it's a somewhat similar regulation. [00:15:59] Speaker 04: The party that sought the real operating right applied. [00:16:03] Speaker 04: It turned out they did not have the property interest in question. [00:16:07] Speaker 04: And the agency said that that was sufficient basis to deny the exemption modified certificate that they sought. [00:16:20] Speaker 02: And that was in the context of an initial application as opposed to under this screen of very deferential review. [00:16:28] Speaker 02: So what about that? [00:16:29] Speaker 02: The STB says this is sort of super duper, [00:16:34] Speaker 02: deference when you come up later and say this should be voided. [00:16:39] Speaker 04: But the regulation and their order says that if there are false or misleading information that's supplied, it is to be voided. [00:16:48] Speaker 04: That's what the regulation and the order both say. [00:16:51] Speaker 04: And I don't know how we could have stronger evidence, honestly, than what we presented that the ECR [00:17:00] Speaker 04: never got a deed, certainly never got a deed that conforms to Washington law. [00:17:05] Speaker 04: It just doesn't comply with the statute of frauds. [00:17:08] Speaker 04: Anything that they cite, well, this, that, the other, nothing that they cite, including all this optimization stuff that he tries to trip people up with compliance with statute of frauds. [00:17:18] Speaker 04: The bottom line, though, is there's just no deed. [00:17:21] Speaker 02: But just to push back on that, there is a deed, right? [00:17:24] Speaker 02: In a way, isn't Mr. Engel's offense that he's not respecting the corporate form or the lines between himself, his family, there's all kinds of self-dealing, the company that he was employed by, the company he's later associated with, but the deed does exist and it's with his team at some point, no? [00:17:45] Speaker 02: So is it, I'm just pushing back on the nature of the wrong here that [00:17:52] Speaker 02: Angle is saying, you know, it's not going to matter to the STB at the end of the day whether it's, you know, this acronym organization, that acronym organization, my cousin, my uncle, my wife, or me, but we've got this under control. [00:18:05] Speaker 02: We've got this deed. [00:18:08] Speaker 04: If you make a representation to a government agency that you're going to do something and then you don't do that and instead say, well, [00:18:17] Speaker 04: I have a colleague or I have a friend in Belarus who will do it for me. [00:18:22] Speaker 04: Or if I have this person in a hospital somewhere. [00:18:27] Speaker 04: Now, they don't want to operate a railroad. [00:18:29] Speaker 04: They're not real railroad. [00:18:30] Speaker 04: But that's where I want to put the responsibility. [00:18:33] Speaker 04: That's alarming to me. [00:18:35] Speaker 04: And I would think it should be to the agency. [00:18:37] Speaker 04: If the agency thinks that's okay, then why didn't it say to Mr. Engel, Mr. Engel, [00:18:45] Speaker 04: Why don't you get the deed from these people and put it back in ECR? [00:18:49] Speaker 04: What Mr. Engel told the agency is that basically ECR never owned anything in this line. [00:18:56] Speaker 04: He's now claiming and he asserts that his father and he own the rail rights. [00:19:03] Speaker 04: And I guess he's trying to be part of it to this Northwest Signal Company too. [00:19:07] Speaker 04: All of which, if you read the regulations, require a license from STB. [00:19:15] Speaker 04: But has anyone applied for a license? [00:19:18] Speaker 04: No. [00:19:18] Speaker 04: Now, why should that concern the county? [00:19:21] Speaker 04: We would probably be out there objecting. [00:19:23] Speaker 04: We'd be saying these people have a track record that isn't very Ivy League, isn't very common folk, okay? [00:19:33] Speaker 04: Why should that be a concern? [00:19:34] Speaker 04: Because federal rail policy supposedly is supposed to protect the integrity of agency processes to weed out corruption in the rail industry. [00:19:44] Speaker 04: If you're going to lie to the agency or not conform to its regulations and this goes rampant, what use is it to have SDB in the regulations? [00:19:53] Speaker 04: Either they should enforce clear requirements or why have them? [00:19:58] Speaker 02: The railway has been being operated by Ballard? [00:20:03] Speaker 04: Ballard Terminals claim to operate the railroad is based on a lease from ECR and they and their pleading [00:20:10] Speaker 04: when they said they had no idea what was going on. [00:20:14] Speaker 04: They basically said we lack knowledge. [00:20:19] Speaker 04: We add the revocation as to their license because it's based on a flawed ECR license. [00:20:28] Speaker 04: The county has no problem in trying to deal more directly with an outfit like BTRC. [00:20:34] Speaker 04: which in fact has an operational capability. [00:20:37] Speaker 04: They have real employees, they've rented a locomotive from BNSF. [00:20:41] Speaker 04: But that's different from GMB and also they themselves are in non-compliance. [00:20:47] Speaker 01: Thank you very much. [00:20:48] Speaker 04: Thank you, Your Honor. [00:20:49] Speaker 04: I have reserved two minutes. [00:21:14] Speaker 00: May it please the court, my name is Barbara Miller, and I am here on behalf of respondents to the Surface Transportation Board and the United States of America. [00:21:23] Speaker 00: The petitions for review here fail for two reasons. [00:21:26] Speaker 00: One, this court lacks jurisdiction to review the two board orders at issue here. [00:21:32] Speaker 00: And two, even if this court had jurisdiction, the county's claims fail on the merits. [00:21:38] Speaker 00: First and foremost, the court lacks jurisdiction over both the December merits order [00:21:44] Speaker 00: and the May reconsideration order. [00:21:47] Speaker 00: Because lack of jurisdiction over the order denying reconsideration is one that is easily resolved does not appear to be in dispute based on the county's reply. [00:21:57] Speaker 00: I'm going to start there. [00:22:00] Speaker 01: This was sort of a weird series of circumstances that we went through here and getting the different petitions filed and we held the case in advance and then we consolidated. [00:22:11] Speaker 01: of the two cases we respond to. [00:22:15] Speaker 01: Was the board surprised to discover that they wanted to challenge the merits order? [00:22:21] Speaker 01: Was there any surprise? [00:22:24] Speaker 01: You submitted both administrative records after we consolidated the case. [00:22:28] Speaker 01: You updated the first one and submitted the second one, so. [00:22:31] Speaker 00: Then the second one related to the reconsideration order, and we do not deny that the reconsideration order was appealed in that second petition review. [00:22:41] Speaker 01: At that time, you also provided an update of the initial, I'm going to get, is that December? [00:22:47] Speaker 01: Was the first one December? [00:22:49] Speaker 01: The first one was December. [00:22:51] Speaker 01: So you also updated the December record. [00:22:55] Speaker 01: So you see, even though that second petition only referenced [00:22:59] Speaker 00: We updated it under the first case number because yes, the May reconsideration order is relevant to that appeal. [00:23:11] Speaker 00: Actually, the reconsideration order is relevant to both appeals, but that does not mean that the... Were you surprised? [00:23:19] Speaker 01: Did you not understand them to want to be challenging? [00:23:23] Speaker 01: from all their different filings, their response to your motion to dismiss. [00:23:27] Speaker 01: Look, we just want to make sure we can review that. [00:23:29] Speaker 01: Were you surprised? [00:23:31] Speaker 01: Were you prejudiced? [00:23:33] Speaker 00: Well, Your Honor, this court has repeatedly held that the question of prejudice to the agency is not reached. [00:23:38] Speaker 01: That's a separate one. [00:23:39] Speaker 01: I get that. [00:23:40] Speaker 01: But you don't allege prejudice. [00:23:43] Speaker 01: Excuse me? [00:23:43] Speaker 01: You don't allege prejudice. [00:23:45] Speaker 00: We have not. [00:23:46] Speaker 01: And then just on the series of filings that happened here, [00:23:50] Speaker 01: Did you understand them, that they wanted to challenge that December order? [00:23:55] Speaker 00: Your Honor, I don't think, whether, the record did not reflect an intent to appeal that order in the second appeal. [00:24:04] Speaker 00: And this court has consistently looked at, if a specific order is not attached- When you said look, if we don't, we don't, if they don't reference it in the second petition, but if we can infer [00:24:17] Speaker 01: fairly infer from all the related filings that they wanted to challenge the initial decision, then that's good enough. [00:24:29] Speaker 00: Well, with respect to the second petition, there were no filings. [00:24:32] Speaker 01: There were no contemporary... Well, that was on us because we immediately consolidated it and didn't ask for a second dogging statement. [00:24:39] Speaker 00: Well, there is nothing that prevented the county from filing something making clear their intent. [00:24:44] Speaker 00: And again... Were you confused with their intent? [00:24:48] Speaker 00: As to what they meant to appeal in the second petition, based on that petition for review, it was simply the May reconsideration order. [00:24:56] Speaker 00: And that May reconsideration order is not reviewable by this court. [00:25:01] Speaker 00: And this court looks to the party's intent, not the court's intent. [00:25:05] Speaker 00: And the party's intent here, there is nothing in the record. [00:25:08] Speaker 01: So if we determine that they still intended to challenge the December petition, then there's no jurisdictional issue. [00:25:17] Speaker 01: If we determine from this whole series of events that their intent was displayed, then there's no jurisdictional issue. [00:25:24] Speaker 00: If this court determines that you can infer their intent from contemporaneous filings with that second petition, then no, there wouldn't be. [00:25:36] Speaker 01: It's very fair of you to raise the issue. [00:25:38] Speaker 01: I don't mean to. [00:25:39] Speaker 01: I'm sorry? [00:25:39] Speaker 01: It's very fair of you to raise the issue. [00:25:41] Speaker 01: I don't mean to question that at all. [00:25:43] Speaker 01: It's a serious question, and certainly they should have. [00:25:46] Speaker 01: reference both decisions, but there was a lot of confusion with the shutdown and the timing and everything that was going on in the NAR-Cuias-Fonte actions. [00:25:57] Speaker 01: They were holding it in abeyance, so the time they filed the second petition, the first one was still here. [00:26:01] Speaker 00: I don't think the fact that it was held in abeyance really affects the, again, the intent to infer the order, as this Court has held in [00:26:14] Speaker 00: American Rivers and Melcher it looks at two petitions to review orders in the same different orders in the same proceeding independently and it looks at the intent that is inferable from those from each petition for review independently and if you look at that and consolidation itself does not mean that there is no question as to what the intent was you still go and you still look to the petition [00:26:42] Speaker 00: And if the petition does not specifically reference an order as it is required to do under Rule 15, then you look at whether you can fairly infer an intent to appeal a different order than was named by fairly contemporaneous filings. [00:26:57] Speaker 00: And there are no fairly contemporaneous filings in connection with that second petition. [00:27:02] Speaker 00: And even if you could look back to the filings in connection with the first petition, this court has held that pleadings filed four months apart [00:27:10] Speaker 00: are, quote, plainly not contemporaneous violence. [00:27:14] Speaker 00: And so either way, there is nothing that you can look for under the standard that this court has repeatedly applied from which you can infer intent here. [00:27:22] Speaker 02: It seems like the papers on the motion to dismiss the incurably premature first petition, both the opposition to motion to dismiss and your reply, shared the understanding that the [00:27:40] Speaker 02: right time and place to challenge the order was after the reconsideration was finalized. [00:27:48] Speaker 02: And then, indeed, after the reconsideration was finalized, the county files a petition. [00:27:54] Speaker 02: So it does seem like there was a shared understanding that they were trying to protect [00:28:01] Speaker 02: file a protective and it turns out incurably premature initial petition and then file a ripe petition afterwards. [00:28:11] Speaker 02: And so the motion dismiss filings and also the updating on your part of the appendices, it's like, okay, now we have our case and the case clearly has to be about that first order because the second order is not even subject to our review. [00:28:28] Speaker 00: Well, except I would say this court has [00:28:31] Speaker 00: in multiple cases where parties made an error and only appealed an unappealable reconsideration order has dismissed the petition. [00:28:40] Speaker 02: Where they only did that, but here where there was an effort to go after the first order, we have looked back as in the Domtar case at an earlier petition and said, okay, they meant to roll that all into one at the end. [00:28:54] Speaker 02: It's obviously a mistake. [00:28:57] Speaker 02: on their part. [00:28:58] Speaker 02: I mean, it's not good practice, but the question is, is there, are there indicia of an intent to bring that up? [00:29:05] Speaker 02: I actually would love to hear from you on merits. [00:29:08] Speaker 02: Okay. [00:29:09] Speaker 02: Because, you know, the question about whether this was misleading, and I recognize there's a protective, a relatively deferential standard of review, but if we look at this, for example, through [00:29:22] Speaker 02: kind of what we in the federal courts would think of as a summary judgment lens, you would at least, in order to say this isn't false or misleading, you would at least need to have some creditable version of events by which the application was actually non misleading and non false. [00:29:43] Speaker 02: And I'm not sure what your position is on that. [00:29:46] Speaker 02: What is the story, other than Engel just sort of saying, [00:29:51] Speaker 02: denying things. [00:29:53] Speaker 02: What is the story that actually is plausible and has evidentiary support where the county might be wrong and the application might have been not misleading? [00:30:03] Speaker 00: Well, the question is not just based on Engel's assertions. [00:30:08] Speaker 00: First of all, the fact that there was a dispute here, well, the fact that there were questions as to ownership here was clear on the face of the county's petitions. [00:30:21] Speaker 00: I would also say that it is not just Engel's version that is at issue here, but if in fact, but what happened in the bankruptcy court as well, if by questioning the ownership here and whether that, whether the easement was transferred from GNP to ECR, that is also bringing into question. [00:30:47] Speaker 00: necessarily what occurred in the bankruptcy court. [00:30:50] Speaker 01: You know, maybe the bankruptcy court was misled too, but that's over and done with. [00:30:53] Speaker 01: That's been closed seven years. [00:30:55] Speaker 01: That case is done, right? [00:30:57] Speaker 01: There's nothing to be done. [00:30:58] Speaker 01: I can't imagine that a bankruptcy trustee is going to, the bankruptcy court is going to reopen the case so that a bankruptcy trustee can make a discretionary decision whether or not to claw back what everyone says is not a particularly valuable easement claim and then try to [00:31:16] Speaker 01: seven years after the fact, dole it out to creditors. [00:31:21] Speaker 01: That's just not reasonable, isn't it, to think that's going to happen? [00:31:26] Speaker 01: Keep on going. [00:31:27] Speaker 01: Thank you, Your Honor. [00:31:29] Speaker 00: Well, I think we don't know what happened in the bankruptcy court. [00:31:31] Speaker 01: It doesn't matter. [00:31:33] Speaker 01: Why does it matter? [00:31:34] Speaker 00: It matters because if the petitioner's entire claim is, we have one valid transaction, and that was the transaction from GMP to the Engels. [00:31:46] Speaker 00: And in fact, we don't know whether that transaction was valid to begin with. [00:31:50] Speaker 00: But we also have the petitioners saying nothing that happened in bankruptcy court that the bankruptcy court thinks happened and the transactions that they authorized and think that they effectuated, none of those happened. [00:32:03] Speaker 01: What if the filing, maybe the bankruptcy court was misled, but what does that got to do with whether the board was misled when Engel filed this application without disclosing [00:32:17] Speaker 01: questions or issues about the ownership of the easement? [00:32:21] Speaker 01: Because we don't know if the bankruptcy court was misled. [00:32:24] Speaker 01: We don't know if the... Why does that matter when he didn't disclose? [00:32:28] Speaker 01: You know that there's at least an issue. [00:32:29] Speaker 01: Does anyone dispute that this is not as clean cut as the exemption application portrayed it and that in fact there are complexities and disputes and serious questions? [00:32:43] Speaker 01: I didn't take the board to be disputing that. [00:32:45] Speaker 01: In fact, they went out of their way to [00:32:47] Speaker 01: Scold Mr. Engel for his lack of candor. [00:32:52] Speaker 00: The questionability and the troubling behavior as we stated in the December order of Mr. Engel does not necessarily mean that he was incorrect when he made those, at the time that he made those representations to the board as to ownership. [00:33:11] Speaker 01: Failure, this is the board's own language in the Black Hills case. [00:33:15] Speaker 01: Failure to disclose potential issues regarding ownership of the issue line in a notice could be found to be materially misleading by omission. [00:33:25] Speaker 01: If the state did not have the necessary interest that they were represented, such circumstances, the notice of exemption would have contained false information would be void of an issue. [00:33:36] Speaker 01: So it sounds to me like the board treats something as misleading when they failure to disclose potential issues regarding the ownership of the issue. [00:33:45] Speaker 01: of the relevant property. [00:33:48] Speaker 00: But Your Honor, this is why it is relevant what happened in the bankruptcy court, because those may not have been misleading misrepresentations to the board. [00:33:56] Speaker 00: It may be that if the bankruptcy court did, in fact, avoid that transfer and did, in fact, issue a deed. [00:34:04] Speaker 01: There was no avoiding of that transfer. [00:34:06] Speaker 01: That would be a matter of public record. [00:34:07] Speaker 01: That was not avoided. [00:34:10] Speaker 00: We don't have a complete record of the bankruptcy court, and so we don't know what happened. [00:34:14] Speaker 01: And I would be very- So it sounds like it was misleading. [00:34:17] Speaker 00: We don't know if it was misleading. [00:34:18] Speaker 02: And the basis of the county- This is the question that I was trying to focus you on when I was adverting to how, at least in the federal court, we would do a summary judgment standard. [00:34:29] Speaker 02: You can't just say we don't know. [00:34:31] Speaker 02: When a party has come forward and given you a factual and legal theory about misleadingness, [00:34:38] Speaker 02: You don't have to buy that theory. [00:34:40] Speaker 02: But if you're not going to buy it, you have to have a different version of how the facts and the law line up so that it's not misleading and not false. [00:34:52] Speaker 02: And if you have that, then you can say, fine, I'm not going to adjudicate this. [00:34:56] Speaker 02: And there might be someone else that should. [00:34:58] Speaker 02: But I don't even see what STB's position is. [00:35:02] Speaker 02: Or I would like your help in tracing through what STB's position is as to how what [00:35:08] Speaker 02: happened not withstanding the county's detailed factual and legal recitation, how what happened might in fact have been completely non-false and non-misleading. [00:35:20] Speaker 02: You don't have to say that's actually what happened, but all I'm asking for is like a connecting the dots of what a state court were to exercise jurisdiction over the poverty issue might find that would [00:35:36] Speaker 02: be consistent with non-falseness and non-misleadiness. [00:35:39] Speaker 00: Does that make sense? [00:35:41] Speaker 00: It does. [00:35:41] Speaker 00: And let me start with, just to clarify, the question that was presented to us was not, has Mr. Engel conducted, has engaged in questionable conduct. [00:35:53] Speaker 00: It was, this was false. [00:35:55] Speaker 00: ECR, or GMP did not own this easement when they made that reprisation to the board and on [00:36:02] Speaker 00: Only on that basis did the county ask us to report. [00:36:05] Speaker 01: Well, they kept referencing the false and misleading authority, and that's used, they're being abused all the time. [00:36:11] Speaker 00: It was based on this concrete position that GMP did not own the easement when they filed for authority. [00:36:19] Speaker 02: Right, because Engel himself said other people owned it, and so he himself is speaking out of two sides of his mouth, right? [00:36:31] Speaker 00: When you say other, I'm assuming you mean his pleadings in the revocation proceeding? [00:36:37] Speaker 00: Yeah, the wife and the father. [00:36:40] Speaker 00: The wife and father-in-law, or father. [00:36:42] Speaker 00: Father and ex-wife. [00:36:44] Speaker 00: The wife and the father. [00:36:46] Speaker 00: But again, based on his allegations, and I'm not defending his veracity, based on his allegations, if you were to accept them as true, then his representation to the board was not incorrect. [00:37:00] Speaker 01: But he didn't flag, he didn't disclose in the exemption application. [00:37:05] Speaker 01: I'm not talking about what he did in response. [00:37:07] Speaker 01: His exemption application did not disclose these potential issues that the exemption said, I'm going to get it from GNP. [00:37:15] Speaker 01: And he did not disclose well. [00:37:18] Speaker 00: Because if the bankruptcy court, as it believed it did, effectively transferred [00:37:26] Speaker 00: If the bankruptcy court's actions were valid and its transactions were effective, that was not a misrepresentation to the board. [00:37:34] Speaker 01: It wasn't this, it wasn't, you just said you weren't going to applaud his lack of veracity before the board. [00:37:39] Speaker 01: I just don't know how, in fact, that the board went out of its way to shake its finger at him and scold him for not being honest in his filings and in fact dropped a foot in it going, a month ago we were told that Telegraph Hill held this easement. [00:37:55] Speaker 01: I don't know how they can make those statements and say they need a state court to tell them whether they were misled, given their rule about failure to disclose potential issues regarding ownership. [00:38:09] Speaker 01: Wasn't it even a potential issue? [00:38:11] Speaker 01: When he says we're going to get it from GNP, was it not still a potential issue when he didn't disclose that in fact GNP doesn't have it, my wife and father have it, [00:38:25] Speaker 01: There's a deed here under suspicious circumstances, but they're going to give it to this person. [00:38:30] Speaker 01: But there's no actual deed recorded, or as the board found, properly executed, or completely executed, deed to them. [00:38:40] Speaker 01: But we're going to say, we think it's good enough. [00:38:44] Speaker 01: And because we duped the bankruptcy court, it doesn't count as duping the board, too. [00:38:50] Speaker 00: But that is assuming that we know who owned the easement at that point. [00:38:54] Speaker 00: And so you are assuming that they're- No, no, no. [00:38:56] Speaker 01: I'm backing up and saying it was his job to show you who owned the easement and he didn't. [00:39:01] Speaker 00: But if that was not in question, if the ownership was not in question, then it wasn't misleading to say, GMT owns this. [00:39:08] Speaker 00: There was a period of time between all of these- But is it disputed? [00:39:13] Speaker 00: So it is, because we don't know, [00:39:17] Speaker 00: whether each of these three transactions was valid. [00:39:22] Speaker 00: We, under state law, we do not know whether that was an actual misrepresentation or it was misleading because it omitted issues at the time they made that representation. [00:39:33] Speaker 01: That's what I'm not understanding. [00:39:34] Speaker 01: How is his failure to disclose that, in fact, it's a huge gray area? [00:39:42] Speaker 01: Maybe he'll end up [00:39:44] Speaker 01: eking out a win in state court if they can go there. [00:39:50] Speaker 01: Does the board really think that even if they were to go to state court, and if a state court were to adjudicate this and go, bad, bad, this is not how you do deeds, there's nothing valid, but for whatever combination of circumstances, we're going to hold our nose and say at the end of the day, [00:40:08] Speaker 01: It was somehow enough back in GNP's hands to be executed through the bankruptcy process. [00:40:14] Speaker 01: Is the board ready to say that's fine? [00:40:16] Speaker 01: His filing with us for the exemption was fine. [00:40:20] Speaker 01: It wasn't misleading. [00:40:21] Speaker 01: It was fine that he didn't disclose any of these problems to us. [00:40:24] Speaker 01: This is all that we expect of attorneys is when they file an exemption is just to say their bottom conclusion and not disclose these issues. [00:40:32] Speaker 01: Is that the board's position? [00:40:34] Speaker 00: County did not ask for relief based on [00:40:38] Speaker 00: angle not disclosing a question. [00:40:40] Speaker 01: I'm just asking you, because the board went out of its way, as I read it, to say, what are you doing filing stuff like that with us? [00:40:48] Speaker 01: And we've got precedent that says failure to disclose ownership issues can lead to something being vacated as false or misleading. [00:40:57] Speaker 00: But again, until a court with the expertise to address these... Why do you need the state court to tell you whether you were misled? [00:41:05] Speaker 00: because we don't know at this point either the nature of whether we were misled or how we were misled. [00:41:12] Speaker 01: Then why did you scold Mr. Engel if you didn't mislead him? [00:41:15] Speaker 00: The reprimand to Mr. Engel was for failing to, I believe, for failing to come to the board for authority for these transfers, which any transfer of... Which is yet another problem with the... [00:41:28] Speaker 01: which is another problem. [00:41:30] Speaker 00: If those transfers happened, that is a potential problem. [00:41:33] Speaker 01: There's no factual question that these things happened. [00:41:37] Speaker 00: We don't, well, if the order was for his references to transferring to, again, to his wife and to his father, whom again, we do not know if that transaction was valid. [00:41:50] Speaker 00: We do not, so we don't know if the easement was ever even transferred from GNP. [00:41:57] Speaker 00: These are, and again, [00:41:58] Speaker 01: Wait, you don't know. [00:41:59] Speaker 01: I mean, the one thing we all know is there is a recorded valid deed translated from GNP to dad and wife. [00:42:09] Speaker 01: There is a recorded deed. [00:42:10] Speaker 01: Right. [00:42:11] Speaker 00: Whether that transfer was valid or not, we do not know. [00:42:14] Speaker 01: It was valid because the trustee didn't claw it back. [00:42:17] Speaker 00: We don't know if the trustee clawed it back. [00:42:19] Speaker 01: The trustee didn't claw it back. [00:42:19] Speaker 02: Well, there's no evidence on the other side. [00:42:22] Speaker 02: That's why I looked at summary judgment standard, rather than you don't have to do fact finding. [00:42:27] Speaker 02: But it seems like to say that there's a dispute. [00:42:30] Speaker 02: As lawyers, we only say there's a dispute not because someone says, oh, that's so much egg garbage, but because somebody says, well, you see evidence A. Let's look at evidence not A. And that creates a dispute. [00:42:41] Speaker 02: And so if we have a deed, and it's not in GMP, and therefore it couldn't have been affected by GMP's bankruptcy, then how is there a factual dispute about that deed? [00:42:53] Speaker 00: Well, the issue is there's both a factual and a legal dispute. [00:42:56] Speaker 00: And yes, there is a deed. [00:42:58] Speaker 00: Whether that was legal, whether, for example, Mr. Engel had the authority to unilaterally transfer the only primary asset of GNP without the knowledge or sign-off of the president of the company, I think is a valid question. [00:43:14] Speaker 01: But that doesn't change the legality of a deal under state law. [00:43:16] Speaker 01: It might mean GNP can sue Mr. Engel for damages. [00:43:20] Speaker 01: But that doesn't change the property. [00:43:23] Speaker 00: If it does or does not, that would be a question of state law. [00:43:26] Speaker 00: And that it is the fact that if we look at this as summary judgment question and weighing of the evidence, you not only look at the facts, you have to look at the state law question. [00:43:38] Speaker 00: And Washington property law. [00:43:40] Speaker 05: Can I jump in here? [00:43:43] Speaker 05: I'm trying to understand what the board's position was when it issued its order. [00:43:51] Speaker 05: Are you saying that the board, at the time that it issued its order, [00:43:58] Speaker 05: construed the county's petition to be making a claim that the notice contained false information and that the county did not make a claim that the notice contained misleading information? [00:44:19] Speaker 00: The contention by the county was that it was false or misleading because GNP did not own the property. [00:44:27] Speaker 00: The question where I was saying earlier about misleading was the fact that the county never claimed that because the ownership dispute or the gray area or the fact that there was a question was never disclosed was misleading. [00:44:43] Speaker 00: Their claim was limited strictly to GNP didn't own the easement and that is the basis of their petition to revoke, whether it's characterized as concretely false or misleading. [00:44:55] Speaker 00: That was the crux in their sole contention. [00:44:59] Speaker 00: No ownership, that was the sole basis. [00:45:01] Speaker 05: Because when I look at the board's decision on page seven, this is at JA 482, the board says in that first full paragraph on that page that the entire petition turns on [00:45:18] Speaker 05: the basically the whether GMP owned the easement when ECR filed the notice and that that's something that, you know, the state court or maybe a bankruptcy court is going to have to determine. [00:45:40] Speaker 05: It seems to me that the board never did any sort of separate analysis [00:45:46] Speaker 05: to say whether the filings themselves were misleading. [00:45:52] Speaker 05: The board just said the only thing that really we care about is whether it was true or not that they owned this property and a court has to decide that. [00:46:06] Speaker 05: But there was no separate analysis of whether in the totality of circumstances what was filed [00:46:15] Speaker 05: before us was incomplete or misleading. [00:46:20] Speaker 05: I don't see that analysis as having taken place. [00:46:25] Speaker 00: And that is because what the basis for the county's petition to revoke was. [00:46:30] Speaker 00: GNP did not own the easement when it said it did. [00:46:33] Speaker 00: Whether you characterize that again as misleading or [00:46:37] Speaker 00: or outright false, that was the only question that they were asking for relief based on. [00:46:42] Speaker 00: And so that is the question that we addressed. [00:46:44] Speaker 05: So do you agree with me that that analysis of whether it was misleading for any other reason was not conducted? [00:47:00] Speaker 00: I don't believe it was. [00:47:05] Speaker 05: If we disagree with you about how to construe the county's petition, wouldn't the appropriate thing for us to be to grant the petition for review and remand? [00:47:19] Speaker 00: Well, no, because again, whether you're talking about misrepresentation because of questions as to ownership or misrepresentations because it was outright false, it still comes down to [00:47:35] Speaker 00: whether there was a question as to ownership, whether the representation was fault requires application of state property law and the board has consistently and reasonably held. [00:47:52] Speaker 00: We do not decide these questions. [00:47:54] Speaker 05: Here's, I guess, kind of the conceptual difficulty I'm having that I asked you to help me with is that this whole exemption process [00:48:04] Speaker 05: was part of Congress wanting to avoid excessive regulation. [00:48:11] Speaker 05: And so it's allowing the carrier to kind of skip a step. [00:48:20] Speaker 05: Why isn't the right way to look at this? [00:48:23] Speaker 05: And if the carrier is playing fast and loose with that application, they don't get to skip a step. [00:48:30] Speaker 05: They got to go through the full process. [00:48:34] Speaker 05: And the burden should be on them and not the burden on the county to try to figure out how to unscramble this. [00:48:42] Speaker 05: Why isn't that the right way to kind of look at it as far as like the way that this ought to work or the equities of how this ought to work? [00:48:52] Speaker 00: I think there's a couple of issues there. [00:48:54] Speaker 00: One, when you are asking to revoke a petition, the burden is on the county. [00:49:00] Speaker 00: And that is consistent, longstanding board precedent [00:49:04] Speaker 00: And so they are saying, board, you need to revoke the authority that you granted six years ago or however long ago it was. [00:49:14] Speaker 00: The county has the burden to show that revocation is appropriate. [00:49:23] Speaker 00: And here, again, the county did not come to us saying, Engel is a shady character. [00:49:33] Speaker 00: done all of these possible transactions, you don't want him to have a board authority here. [00:49:40] Speaker 01: They said... I don't know how you can read anything they filed without understanding it to say that Engel engaged in a lot of shady self-dealing here. [00:49:50] Speaker 00: But again, you know, there were references to that, but the basis, again, but the board decided the issue that was before it, and the issue that was before it was [00:50:02] Speaker 00: Did GMP, has the county proven that GMP absolutely did not own the easement when it made that representation to the court? [00:50:12] Speaker 00: And the board determined that to make that decision, it required state law, [00:50:20] Speaker 00: expertise and possibly federal bankruptcy law expertise that the board simply does not have. [00:50:25] Speaker 00: The board is not an expert in the state laws of all 50 jurisdictions. [00:50:30] Speaker 01: I just, so that's I think a separate question I have for you and that is as they sort of more honestly acknowledged in their or more forthrightly or explicitly acknowledged in their reconsideration decision they said it may well be you're right that [00:50:46] Speaker 01: State courts can't adjudicate this because of preemption. [00:50:51] Speaker 01: Oh, well. [00:50:52] Speaker 01: And the board has settled precedent that trespass actions cannot be adjudicated in state and quiet title actions. [00:51:04] Speaker 01: At least when someone asserts an adverse possession, I don't know why it would be any different because the whole point of the quiet title action is that it's going to disrupt who has title and in this case who can [00:51:16] Speaker 01: do what along this line? [00:51:17] Speaker 01: Is it the board's position that states can adjudicate quiet title actions over property on which a railroad is running? [00:51:25] Speaker 00: Yes, because the question as to ownership, as Mr. Montaigne correctly said, is separate from that as to whether you have authorization from the board. [00:51:38] Speaker 01: And there was a railroad line running and someone said, I think it's running over my property. [00:51:44] Speaker 01: I'm filing in state court a quiet title action to obtain the remedy of ejection of that railroad line. [00:51:53] Speaker 01: The board's position truly is that that's not preempted? [00:51:57] Speaker 00: I misunderstood your question. [00:51:59] Speaker 00: When the question is who owns the property, the board has said, [00:52:05] Speaker 00: we do not prompt, we do not preempt a determination as to who owns the property. [00:52:11] Speaker 00: If you look at the cases that we cited, they, in our brief, VNS, General Railway, Allied and Allegheny, they all involved property disputes. [00:52:22] Speaker 00: Were they quiet title actions? [00:52:24] Speaker 00: One of them, I believe, was a quiet title action and the... It wasn't just a contract dispute. [00:52:30] Speaker 00: I don't believe so, no. [00:52:32] Speaker 01: They have said, I am shocked to hear that quiet title actions [00:52:36] Speaker 01: with a remedy of ejectment can happen for property? [00:52:40] Speaker 00: As I said, board authorization is separate from apply title action. [00:52:45] Speaker 00: I get that. [00:52:46] Speaker 00: So in other words, when we provide authorization, the party then has to go obtain the property rights and contractual rights to engage in those authorized activities. [00:53:04] Speaker 00: So here, [00:53:05] Speaker 00: Now the state court can answer the question of which of these transactions were valid under state law and who actually owns the easement. [00:53:17] Speaker 00: And once we know that, then the question of board authorization over the easement can be addressed. [00:53:24] Speaker 00: So an adjudication of the state property question does not remove board authority. [00:53:31] Speaker 00: and its licensing over that easement, they are separate questions. [00:53:35] Speaker 01: So is the theory here that the state court will simply say, you have title or you don't have title, or let's say East Coast, you don't have title, but not afford any remedy because they have to come back to the board for a remedy? [00:53:53] Speaker 01: Is that the theory? [00:53:54] Speaker 01: That is correct. [00:53:55] Speaker 01: And what authority do you have that Washington state courts will adjudicate disputes [00:54:01] Speaker 01: where they cannot give the necessary remedy that comes with a quiet title action. [00:54:08] Speaker 01: They could bring a trespass action then without any remedy. [00:54:11] Speaker 01: I understand Washington Courts not to do that. [00:54:14] Speaker 01: Does the Board have any precedent, I assume not given the footnote it dropped, any authority that the Washington Courts [00:54:21] Speaker 01: will do what it wants here, and that is issue an advisory opinion as to who has title, but there's nothing we can do to enforce it. [00:54:29] Speaker 00: But I don't think it's an advisory opinion, because they will in fact be adjudicating those state property rights. [00:54:34] Speaker 02: No, but they can't adjudicate. [00:54:35] Speaker 02: It's very odd. [00:54:35] Speaker 02: I mean, this is, I get back to my, I'm not fixated on the semi-judgment posture framework. [00:54:42] Speaker 02: If you had a different [00:54:46] Speaker 02: You know, they brought in an expert on, you know, who traced the title and this and that and the other. [00:54:52] Speaker 02: You could have had a different expert saying, no, no, no, no, no. [00:54:56] Speaker 02: We understand under state law, you know, that actually it never went out of GMP in the first place. [00:55:04] Speaker 02: you know, Engel had no authority to do that and his claim that it was, you know, given back promptly, that's just a fantasy. [00:55:11] Speaker 02: And in fact, it was with the bankruptcy estate and then it went to ECR and all is well and good. [00:55:19] Speaker 02: Like that, it seems to me, is rather than seeking advisory opinion, that would be the way to at least give the board an ability to say, you know, is this colorably true or is this, [00:55:34] Speaker 02: misleading and maybe even false for purposes of the exercise of the board's regulatory authority. [00:55:39] Speaker 02: Not for purposes of adjudicating a state law outcome, but for purposes of respect for the board's regulatory authority. [00:55:46] Speaker 02: But we don't have that. [00:55:48] Speaker 00: Well, I think that before the board can determine what was misleading and what potentially would be the appropriate remedy for that if there were misleading statements made to the board. [00:56:01] Speaker 00: would be what, in fact, was misleading. [00:56:04] Speaker 00: What is the scope of that? [00:56:05] Speaker 00: And then at that point, it would be appropriate for the board to address it. [00:56:08] Speaker 02: And it wouldn't be a ground for voiding an exemption that the Colder never reports acknowledged deed transfers, easement transfers. [00:56:24] Speaker 02: Because that's part of the initial decision saying, look, we have a little fire method whenever [00:56:31] Speaker 02: property on which a railroad is running is transferred. [00:56:35] Speaker 02: We're supposed to authorize that. [00:56:39] Speaker 02: But the failure to fulfill that requirement is not a ground for avoiding. [00:56:44] Speaker 00: Well, again, until we know which of those transfers were valid, we don't know which of those transfers actually required our authority. [00:56:54] Speaker 00: And so we can't fully address the question. [00:56:57] Speaker 02: But if there were, if it was [00:57:00] Speaker 02: undisputed that there was a transfer and it was done without the requisite board authorization. [00:57:05] Speaker 02: Would that be a ground to void an exemption? [00:57:16] Speaker 00: I don't want to get ahead of what the board would do in a hypothetical situation. [00:57:21] Speaker 00: I think there are circumstances in which it might be, but there are also circumstances in which [00:57:30] Speaker 00: transactions occur where the parties do not obtain prior authorization and they come back to the board and we give retroactive authorization. [00:57:41] Speaker 00: And so I think that would, that fact situation, since we don't know what we're dealing with, it would be, I don't think I can say definitively here. [00:57:50] Speaker 02: And as a policy matter, clearly there's some stickiness to once the license top rate has been granted, [00:58:00] Speaker 02: you don't want to be taking it away. [00:58:02] Speaker 02: Can you just sort of give us a better sense of why that is? [00:58:06] Speaker 02: I mean, if I'm a licensing entity and an entity that I've licensed has thumbed its nose at me, I would think I would want to say, go away. [00:58:15] Speaker 02: You're grounded. [00:58:17] Speaker 02: I'm not going to give you this privilege anymore. [00:58:19] Speaker 02: It seems like there's something pushing on the other side for the board. [00:58:23] Speaker 02: And I'm just curious what [00:58:24] Speaker 00: And that is why the board admonished Mr. Engel for it. [00:58:29] Speaker 02: Right, I get that, but I'm asking about the other side. [00:58:31] Speaker 02: Why is it so reluctant to throw the book when it's authorities being disrespected in at least plausibly alleged to having been disrespected in so many ways? [00:58:48] Speaker 00: Because we, at this point, I think it would be premature at this point because we [00:58:52] Speaker 00: We truly don't know what happened. [00:58:55] Speaker 00: And so if the county comes back to the board after a state court looks at the state law property issues and issues a declaratory judgment or what have you adjudicating the property rights here, they come back to us and say, here we know what happened. [00:59:17] Speaker 00: then the board is in a different position. [00:59:19] Speaker 00: But again, we simply do not know who owns what here and what conduct could have been misleading or might not have been misleading. [00:59:30] Speaker 02: Was ECR not a party to the proceedings that the county's petitioned before the board? [00:59:38] Speaker 00: Mr. Engel filed [00:59:42] Speaker 00: purportedly on behalf of ECR in response to, in this proceeding, they filed a response, he filed two, one in August and one in September addressing the issues raised actually specifically in connection with a motion for default that the county filed. [01:00:02] Speaker 02: And that's the 383 to 413 in the record? [01:00:08] Speaker 00: Well, as I said, there's two responses. [01:00:10] Speaker 00: He filed two responses. [01:00:12] Speaker 00: And so give me a moment. [01:00:16] Speaker 00: I can give you the, I think the first response starts at 383 of the Joint Appendix. [01:00:24] Speaker 00: And his second response starts at 461. [01:00:29] Speaker 01: Thank you. [01:00:31] Speaker 01: Thank you very much. [01:00:31] Speaker 01: We've kept you up for quite a long time. [01:00:33] Speaker 01: Thank you, Your Honor. [01:00:34] Speaker 01: And if there are no more questions? [01:00:38] Speaker 01: Thank you. [01:00:38] Speaker 01: You've been very responsive. [01:00:40] Speaker 01: All right, Mr. Mantegna, we'll give you two minutes. [01:00:42] Speaker 04: Thank you, Your Honor. [01:00:47] Speaker 04: I will comment briefly on the merits, and then I would like to address very briefly the standard question. [01:00:56] Speaker 03: You've got two minutes. [01:00:57] Speaker 01: Oh, not the standard. [01:00:58] Speaker 01: I need the official. [01:00:59] Speaker 01: You've got two minutes. [01:01:02] Speaker 04: Hey. [01:01:02] Speaker 04: One thing that I could recommend to the court is to look at JA 389, which is one of Engel's responses. [01:01:09] Speaker 04: And he says in there that GNP, that is this entity in bankruptcy, did not follow through on reversing the title changes. [01:01:17] Speaker 04: And by that, I think the clear reference is to his deed out to Joanne, his wife, his then wife, and to Doug, his father, his deed out. [01:01:28] Speaker 04: And he says they did not follow through because it was not my concern at the time. [01:01:32] Speaker 04: In other words, [01:01:32] Speaker 04: He chose not to raise it with the trustee in bankruptcy. [01:01:36] Speaker 04: He did not make any attempt to reverse those title changes. [01:01:39] Speaker 04: I think the record's pretty clear that GNP never had any title to this during the course of that entire bankruptcy proceeding. [01:01:48] Speaker 04: There are other elements I could cite. [01:01:50] Speaker 04: I'll just leave it at that. [01:01:51] Speaker 04: Now on the jurisdictional point, as your honors very perceptively indicated, I think the contemporaneous evidence indicates very clearly [01:02:02] Speaker 04: We were desperate to get review of the original decision. [01:02:06] Speaker 04: I wrote in response to the motion dismissed, it would be a denial of due process to dismiss this petition for judicial review of the CIFRA 13 STB decision in finance DACA 35692 and FD 35730 if one STB subsequently denied the county's February 4 administrative appeal for failure to show material error. [01:02:27] Speaker 04: 2, SDB then contended the appeal was untimely under 49 CFRA 1115.3e or 3, and or 3, a reviewing court under brotherhood of locomotive engineers accordingly determined that the courts lacked jurisdiction to obtain meaningful judicial review of the agency's rulings in these two dockets. [01:02:45] Speaker 04: Snowmish County under the agency's regulations is entitled to a meaningful opportunity to seek timely reconsideration. [01:02:50] Speaker 04: It's intended to do so, it's not responsible to shut down, only conform, blah, blah, blah. [01:02:54] Speaker 01: All right, thank you very much. [01:02:55] Speaker 01: We will read that back to you. [01:02:57] Speaker 01: I'll give what I could.