[00:00:00] Speaker 01:
Case number 22-5185, Manda, Hidatsa, and Arikara Nation versus United States Department of the Interior at House, State of North Dakota at Ballot.

[00:00:12] Speaker 01:
Mr. Auslander for the at Ballot, Ms.

[00:00:15] Speaker 01:
Sprague for the Department of the Interior at Police, Mr. Pergan for the at Police, Manda, Hidatsa, and Arikara Nation.

[00:00:24] Speaker 07:
Morning, Council.

[00:00:25] Speaker 07:
Mr. Auslander, please proceed when you're ready.

[00:00:29] Speaker 06:
Thank you, your honor.

[00:00:30] Speaker 06:
Good morning.

[00:00:30] Speaker 06:
James Auslander, Special Assistant Attorney General for Appellant State of North Dakota.

[00:00:34] Speaker 06:
May it please the court.

[00:00:36] Speaker 06:
North Dakota asks only that it be allowed to continue its defense of this litigation, which the MHA nation seeks a final award of riverbed mineral revenues produced within the state.

[00:00:47] Speaker 06:
Intervention is liberally granted in the circuit.

[00:00:50] Speaker 06:
It's even rarer to deny intervention to a sovereign state given the special solicitude that it's entitled to given United Supreme Court rulings.

[00:00:59] Speaker 06:
But we're aware of no other instance where intervention's been denied to a state involving disposition of property located within that state and in which no other person has proven ownership.

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Given the uncertainties and the stakes in this litigation, including at the heart of the MHA nation's remaining claims

[00:01:20] Speaker 06:
The district court should render any merits determination with the full participation of the state as an interested intervener party.

[00:01:28] Speaker 06:
The historical riverbed lands and minerals are located within North Dakota.

[00:01:32] Speaker 06:
North Dakota has issued hundreds of leases covering these minerals and the royalties, rentals and bonuses from these leases exceed over a hundred million dollars.

[00:01:42] Speaker 06:
These are the same mineral revenues that the MHA nation demands through its remaining counts.

[00:01:48] Speaker 07:
So is that the

[00:01:49] Speaker 07:
the purposes of the text of rule 24, 24A12, I think is where we are, is it requires that they're, the intervener, the punitive intervener claim an interest relating to the property or transaction that's the subject of the action.

[00:02:05] Speaker 07:
And the property that's the subject of the action is the royalty revenues?

[00:02:10] Speaker 06:
Yes, your honor.

[00:02:11] Speaker 06:
There's the river bed lands themselves.

[00:02:14] Speaker 06:
There's the minerals underlying the river bed and there are the revenues that have

[00:02:18] Speaker 06:
been derived from production of those things.

[00:02:21] Speaker 06:
So our understanding of the M. H. A. Nation's count complain is that it seeks ownership.

[00:02:28] Speaker 06:
All this is an ultimately receipt of the revenues through the accounting and the payment and its remaining accounts.

[00:02:34] Speaker 04:
The state of North Dakota has issued mineral leases for the river bed.

[00:02:40] Speaker 04:
Is that true?

[00:02:41] Speaker 06:
Yes, your honor.

[00:02:42] Speaker 06:
We've submitted a declaration from David Shipman.

[00:02:46] Speaker 06:
There are over 255

[00:02:48] Speaker 06:
leases that have been issued by North Dakota over the years.

[00:02:52] Speaker 06:
Some of these, I believe all of these are active.

[00:02:57] Speaker 04:
Did those leases require approval of the Department of Interior?

[00:03:03] Speaker 04:
I know your honor, this is a sovereign state of North Dakota.

[00:03:07] Speaker 04:
Does the state of North Dakota or does the United States itself have had?

[00:03:15] Speaker 04:
Have they?

[00:03:16] Speaker 04:
Has the United States issued mineral leases for the riverbed?

[00:03:21] Speaker 06:
My understanding, your honor, is the answer is no.

[00:03:25] Speaker 06:
The MHA Nation, as I understand, is issued leases.

[00:03:27] Speaker 06:
Again, it's there's the reservation is right there, so there are a lot of leases issued by the MHA Nation.

[00:03:33] Speaker 06:
which include upland areas as well.

[00:03:36] Speaker 06:
But I believe the MHA nation and its complaint stated that it has issued certain leases, but the United States has not approved any of those leases because they weren't recorded in trust title.

[00:03:48] Speaker 07:
Okay.

[00:03:50] Speaker 07:
Can I ask one question?

[00:03:50] Speaker 07:
So you don't dispute the notion that the litigation could go forward and come to a conclusion without a resolution of the issue that you're intending to assert.

[00:04:02] Speaker 06:
Your Honor, I think we would, we would dispute that because the remaining counts present squarely the issue of ownership of the riverbed and the associated revenue.

[00:04:14] Speaker 06:
So the reason that we want to continue intervention in the case, and this is under NUS and other DC Circuit cases, it doesn't matter that we're not going to be bound by the, North Dakota would not be bound by the resolution.

[00:04:30] Speaker 06:
However, any

[00:04:31] Speaker 06:
final adjudication of ownership, including even if there were be an award of the revenues, which are finite, right?

[00:04:39] Speaker 06:
The lands and the revenues are fine.

[00:04:41] Speaker 07:
But I guess what I'm saying is it's possible.

[00:04:43] Speaker 07:
I'm not saying that this necessarily means you don't get intervention.

[00:04:47] Speaker 07:
But what I'm saying is it seems possible that the district court could resolve the case in a way that doesn't resolve the ownership entitlement because the district court could have other reasons for saying,

[00:04:57] Speaker 07:
the MHA nations are not entitled to prevail.

[00:05:02] Speaker 06:
Your honor, I think the court could decide against the MHA nation could deny them their relief without reaching the ownership issue, but I don't think the MHA nation can get the relief that it seeks in the case without establishing its ownership to the satisfaction of the district court.

[00:05:17] Speaker 03:
Right, depending on which way you look at it.

[00:05:20] Speaker 04:
Go ahead, Adrenal.

[00:05:21] Speaker 04:
All right, thank you.

[00:05:23] Speaker 04:
Wouldn't there be a problem with deciding the accounting issue, for example, without making a determination about ownership?

[00:05:31] Speaker 04:
Because then the court would be issuing an advisory opinion.

[00:05:35] Speaker 04:
And I have questions about whether that would even be proper under Article 3.

[00:05:41] Speaker 06:
Yes, Your Honor.

[00:05:42] Speaker 06:
We agree with you.

[00:05:42] Speaker 06:
The United States made an argument in Esprit that how does an accounting harm the state?

[00:05:48] Speaker 06:
I mean, besides sending notices to lessees that creates confusion that are already under state lease, it sets off a question regarding the state's relationship with its lessees, but also to your point, Your Honor, what uses the information?

[00:06:04] Speaker 06:
Not to say anything about discovery or means to get information other than an accounting claim if that's really what the MAJ nation is after.

[00:06:11] Speaker 06:
I can't speak to their litigation strategy or what they seek, but I agree with your point, Your Honor.

[00:06:17] Speaker 00:
You said that the property that is the subject of the action is the riverbed and the associated royalties, but I thought that issue was, at least as to the existing litigation, that issue is not

[00:06:35] Speaker 00:
at stake indicates that rather the transaction that's the subject of the pending litigation is the trust relationship between the tribe and interior.

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And I understand that their predicate assumption is, you know, includes ownership and that you can test that.

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But in terms of what is the subject of the pending litigation, I don't understand it to be

[00:07:05] Speaker 00:
any more any question about ownership title.

[00:07:09] Speaker 06:
Your Honor, again kind of through machinations in this case the United States and the MHA nation now view their their view the interior's view is the same as the MHA nation now but regardless of what relief that the government might afford outside of this litigation and they've been involved in

[00:07:30] Speaker 06:
settlement discussions, there's been a stay of the district court litigation for some time, I think, since the denial of intervention.

[00:07:36] Speaker 06:
Whatever arrangement they may seek and whatever might come out of that arrangement, I can't really speak to, but litigation speaks, and I think it's on the opening paragraph of the MHA nation's brief.

[00:07:50] Speaker 06:
You know, they say that this case involves issues between the MHA nation and the Department of the Interior regarding ownership of the bed of the Missouri River and underlying mineral estate within the Fort Birdhold reservation.

[00:08:03] Speaker 06:
Each of the four claims are variants on seeking the same relief, which is ultimately to walk away with money, a lot of which is held in escrow or held by lessees.

[00:08:14] Speaker 06:
It's not been paid out to the state.

[00:08:16] Speaker 06:
So for the court to step in and say, yes, we're going to give our perimeter to an award of relief, this money belongs to the MNJ Nation, our position is that the court can't do that without determining, yes, there is a trust responsibility, and yes, there is money we're owing to the MNJ Nation in the first place.

[00:08:37] Speaker 06:
So that's why we think that the judicial parties can't sidestep that on the convenience of the parties of sort of a general person's

[00:08:45] Speaker 04:
You want to argue basically a number of the points that the United States makes in its brief beginning on about page 32 or 31 and somewhere around in there that the court should not reach out and make any kind of an adjudication about title or anything

[00:09:07] Speaker 04:
about who actually owns it.

[00:09:09] Speaker 04:
The only question is whether the tribe does.

[00:09:11] Speaker 04:
And if the tribe doesn't, then maybe the United States does, maybe North Dakota does.

[00:09:17] Speaker 04:
But it seems to me that your point is we should have a right to make those arguments and not have to rely on the United States and the goodwill of the district court.

[00:09:28] Speaker 06:
Yes, your honor.

[00:09:30] Speaker 06:
And inadequate representation, which is the fourth factor under rule 24, was not the ground on which the district court denied intervention.

[00:09:38] Speaker 06:
That's an argument that was raised by the United States on appeal.

[00:09:41] Speaker 06:
We believe that the United States is right the first time that they do not adequately represent the state's interests.

[00:09:48] Speaker 06:
Denial of intervention was based on the United States, on the state of North Dakota not having an interest anymore.

[00:09:54] Speaker 06:
We just think it's strange fragility to say that the state does not have an interest in

[00:09:59] Speaker 06:
you know, hundreds of leases and hundreds of millions of dollars of minerals.

[00:10:04] Speaker 06:
Uh, in, in, in this case, we just see continued participation.

[00:10:08] Speaker 06:
That's really all that this bill concerns.

[00:10:09] Speaker 00:
So Mr. Asunder, you said that intervener's view is now, I mean, I'm sorry.

[00:10:15] Speaker 00:
Interior's view is now the same as the nations.

[00:10:18] Speaker 00:
And it would seem that North Dakota's is adverse to that shared view.

[00:10:22] Speaker 00:
And you know, an interior cannot represent

[00:10:27] Speaker 00:
North Dakota because it wouldn't robustly make these arguments.

[00:10:33] Speaker 00:
In fact, it doesn't agree with them as currently a position.

[00:10:37] Speaker 00:
So why isn't the Quiet Title Act an obstacle for you, given that, as you've described it, North Dakota's interest is adverse to the interests of the Interior.

[00:10:53] Speaker 00:
Also, as you've described it, the interest of North Dakota is an interest in title.

[00:11:01] Speaker 06:
Your honor, I mean, again, there's never been a quiet title case where an intervener has been not allowed to come in just to defend against the claims that have been brought by the plaintiff.

[00:11:10] Speaker 06:
And our position is that there's not a claim that we're making.

[00:11:14] Speaker 06:
And the Quiet Title Act was built so that it was enacted so that there wouldn't be a claim

[00:11:20] Speaker 06:
brought by a third party to cloud title.

[00:11:24] Speaker 06:
This is not a quiet title action.

[00:11:26] Speaker 06:
The state of North Dakota has not brought this lawsuit.

[00:11:30] Speaker 06:
We've been filed no claim.

[00:11:31] Speaker 06:
We filed no expansion of the existing issues that have been put in play by the MHA nation.

[00:11:39] Speaker 06:
Judge Randolph, I think in one of your cases a while ago in 2011, Patrick Salazar,

[00:11:49] Speaker 06:
you correctly say that the Quiet Title Act does not apply where a party is, quote, not seeking to apply a title, end quote.

[00:11:55] Speaker 06:
And the North Dakota is not seeking to apply a title here.

[00:12:00] Speaker 06:
If the case ends, MHA Nation doesn't prevail.

[00:12:03] Speaker 06:
If the issue goes to another day, that's a satisfactory outcome.

[00:12:09] Speaker 06:
But all that we're seeking is defense against this case that's in front of us right now that's brought by the MHA Nation.

[00:12:15] Speaker 00:
So if you're not seeking any

[00:12:19] Speaker 00:
to interject any claim that's not already in the case, spell out for me how your participation as an intervener would differ from your participation, let's say, as an amicus to make arguments about where the court should and shouldn't go as a remedial matter.

[00:12:41] Speaker 06:
Your honor, we did not move and the district court did not afford the opportunity for Amiki, but our position as Amiki is insufficient.

[00:12:49] Speaker 06:
You know, party status would give us the ability to file briefs in the normal course of briefing schedule, would give us a seat at the table.

[00:12:58] Speaker 00:
But more concretely, I mean, I understand in general.

[00:13:01] Speaker 06:
And appeal rights, most importantly, your honor.

[00:13:04] Speaker 06:
It would give the state a full seat at the table given the stakes in the case and just filing an amicus brief regarding how the state believes the ownership issue should go.

[00:13:17] Speaker 06:
I believe that that would be insufficient.

[00:13:20] Speaker 04:
Your position is not adverse, it seems to me, to the United States in one respect.

[00:13:29] Speaker 04:
Because the way I read the brief of the United States, it is that we're going to tell the district court not to make a determination about title.

[00:13:39] Speaker 04:
And that's your position too, I thought.

[00:13:43] Speaker 06:
If the district court, you're right, your honor, the, um, the United States, again, we're gratified by the United States arguments, um, casting down on the merits of the, of the claims.

[00:13:54] Speaker 06:
But again, where we sit here is United States arguments in an appellate brief on intervention.

[00:14:00] Speaker 06:
We can't say what the U S is going to argue or not argue ultimately on the merits of the case.

[00:14:06] Speaker 06:
And so,

[00:14:07] Speaker 06:
If we end up being lines, great, we will avoid duplication in that briefing.

[00:14:12] Speaker 06:
If we're not aligned, then it's important that the district court have the perspective of the state of North Dakota.

[00:14:17] Speaker 07:
I mean, your best case scenario is not in alignment with the United States because your best case scenario would be if the district court were required to decide title and decided it in your favor, which obviously the United States isn't making that argument.

[00:14:29] Speaker 06:
That would be the fine outcome, Your Honor.

[00:14:32] Speaker 07:
You're right, it might not be the way that it... You might also be in alignment if the district court doesn't reach that issue and still rules against MHA Nation, then you might be in alignment.

[00:14:40] Speaker 07:
But really, the reason you want to be in is to assert an issue as to which the United States is opposed to.

[00:14:47] Speaker 07:
I'm not saying that necessarily means you do or don't get intervention.

[00:14:50] Speaker 07:
I'm saying that's really what you want to do is to be able to make an argument about who's entitled to the proceeds that's in opposition to the position of the United States.

[00:15:02] Speaker 06:
Yes, Your Honor.

[00:15:03] Speaker 06:
We want to oppose the position of the MNC Nation that it should be denied an award.

[00:15:08] Speaker 06:
If there's a denial of the award, that's satisfactory outcome for this case.

[00:15:12] Speaker 00:
So one thing that I'm conscious of is what would be the implications of reversing and directing intervention be allowed for Indian law and trust obligations generally?

[00:15:29] Speaker 00:
It seems that almost every claim of holding lands in title for native tribes

[00:15:41] Speaker 00:
involves a lot of complicated questions of property.

[00:15:45] Speaker 00:
And so why isn't the implication of your position that every time there's some dispute in court about the Department of Interior's trust obligations, every single one of those cases would enable not just states, but private property owners to come in and say, stop right there.

[00:16:11] Speaker 00:
predicate issue to the asserted trust obligation is whether a land is appropriately held in trust in the first place.

[00:16:20] Speaker 00:
And we don't have a rash of cases like that.

[00:16:23] Speaker 00:
So I wonder if there's any limiting principle or what your view is on that.

[00:16:28] Speaker 06:
I appreciate your honest concern.

[00:16:29] Speaker 06:
I don't think that reversal of intervention would open the floodgates to a bunch of claims challenging trust title.

[00:16:37] Speaker 06:
Again, I think this is a very unusual posture.

[00:16:40] Speaker 06:
Given this case, the MHA nation didn't just bring this case against a solicitor, interior solicitor's M opinion.

[00:16:48] Speaker 06:
They brought it because they were dissatisfied with a long period of time that they had not been deemed to be owners and that the United States had not done things that they view consistent with ownership, including gathering all the revenues from mineral production and paying it over to the tribe.

[00:17:07] Speaker 06:
So this case was initiated by

[00:17:09] Speaker 06:
by a tribe.

[00:17:11] Speaker 00:
And many, many cases questioning interior's fulfillment of its trust duties would be initiated by Todd.

[00:17:20] Speaker 00:
So I'm not sure I see any meaningful distinction there between my hypothesized rash of cases and this case.

[00:17:28] Speaker 06:
Your honor, I think in the various cases that are cited in the briefs, there's no question about there being a trust obligation or trust title.

[00:17:36] Speaker 06:
It's really a question like

[00:17:38] Speaker 06:
the accounting cases that are cited, it's just a matter of what is, what's the amount?

[00:17:44] Speaker 00:
There's not an occasion to come in and dispute the actual- But if we were to rule in your favor, that would put the idea out and maybe we would see a lot of cases like that.

[00:17:57] Speaker 06:
I don't know that I would agree with that, Your Honor.

[00:18:00] Speaker 06:
I think that given the

[00:18:06] Speaker 06:
I think the fact we have not seen those cases is evidence that, and again, the Quiet Title Act is out there, the Indian Lands Extension is out there, the reasons for that remain upheld, regardless of the reversal of intervention here.

[00:18:26] Speaker 00:
How is that an assurance, the assurance that I'm looking for, that this isn't going to open up?

[00:18:32] Speaker 06:
Well, again, under the Quiet Title Act, the outcome of a Quiet Title Act action is that a sovereign immunity on Quiet Title Act grounds is not an adjudication that the tribe actually owns the land, right?

[00:18:51] Speaker 06:
It's that it remains undecided.

[00:18:54] Speaker 06:
So the state can assert its arguments

[00:18:59] Speaker 06:
the tribe can assert its arguments.

[00:19:03] Speaker 06:
But in a case like this, which is again unusual, tribes don't typically come in and argue that mandamus is required to dispense of revenues from lands in which title is contested.

[00:19:24] Speaker 06:
The United States has the option to bring a quiet title action if they really wanted to

[00:19:29] Speaker 06:
resolve this issue.

[00:19:32] Speaker 06:
But we don't see it because this issue of riverbed ownership is very narrow.

[00:19:39] Speaker 06:
It implicates a few states and several of the instances have already been adjudicated here.

[00:19:46] Speaker 06:
So again, there's quite a bit of land in the Fort Berthold Reservation.

[00:19:51] Speaker 06:
What we're talking about is the narrow

[00:19:55] Speaker 06:
historical riverbed that involves equal footing and state title and ownership.

[00:20:01] Speaker 06:
So it's a pretty narrow question.

[00:20:03] Speaker 06:
And these cases involving accounting and trust title and whatever do not involve typically the riverbed issue.

[00:20:11] Speaker 06:
It involves just broader issues of how the United States is discharging its trust obligations.

[00:20:16] Speaker 00:
So am I right that North Dakota doesn't really have any

[00:20:23] Speaker 00:
stake in count three, it's really when you get to the claim on the part of the nation that it believes that it's entitled to have Interior collect and pay funds to it.

[00:20:38] Speaker 00:
That's where the rubber hits the road from your perspective.

[00:20:42] Speaker 06:
Yes, Your Honor.

[00:20:42] Speaker 06:
I think the United States has characterized count three as a setup for count four.

[00:20:46] Speaker 06:
And I think Judge Randolph also kind of put his finger on there would be a question of an advisory

[00:20:53] Speaker 06:
uh, uh, opinion, um, in, in moving that way and also whether an accounting is the correct needs in order to obtain the information that the tribe wants to obtain.

[00:21:03] Speaker 06:
The state may have some views on those issues, but yes, I mean, ultimately, uh, you're, you're right, Your Honor.

[00:21:09] Speaker 06:
This is, this is regarding the disposition of the revenues, which is real property, um, that the state should be heard of before it's, it's something.

[00:21:22] Speaker 04:
You mentioned that there were settlement negotiations and I'm not sure I heard you correctly.

[00:21:29] Speaker 04:
It seems to me that in this situation, the responsible thing for the United States to do is initiate a quiet title action as they did in the United States versus Montana to get this thing settled.

[00:21:43] Speaker 04:
I don't think there was a quiet title problem when the tribe sued

[00:21:49] Speaker 04:
because the United States had waived immunity, and there was no claim by the United States that this was Indian trust land.

[00:21:58] Speaker 04:
So the tribe can sue the United States to quiet title, but the state can't.

[00:22:03] Speaker 04:
And that, under this situation, and that raises, I think, equal protection problems for me anyway.

[00:22:10] Speaker 04:
that the state is being barred from establishing its title to this property, whereas the tribe is not.

[00:22:21] Speaker 04:
So in settlement negotiations, as the United States indicated at all, that it's prepared to bring a quiet title action against North Dakota, as it did in the Montana case,

[00:22:36] Speaker 06:
Your honor, the only time the United States and North Dakota Council have discussed this, the United States declined to do that at this time.

[00:22:46] Speaker 06:
The state is not privy to any settlement negotiations because we're not a party to the case anymore.

[00:22:53] Speaker 04:
Who is it that supposedly the United States claims owns title to the riverbed?

[00:23:00] Speaker 04:
Is it the tribe or is it the United States?

[00:23:05] Speaker 06:
The United States, under its most recent solicitor's opinion, states that the United States owns title in trust for the MAJ nation.

[00:23:14] Speaker 04:
So it's the tribe that owns the riverbed, according to the United States?

[00:23:20] Speaker 06:
According to their most recent solicitor's opinion, yes, sir.

[00:23:24] Speaker 04:
Okay, so that raises a question in my mind, another question, because I think it's the tribe or the United States said, well, you can take and bring a Tucker act claim for takings.

[00:23:35] Speaker 04:
But if it's the tribe that owns the riverbed, then, and not the United States, I don't see how you can bring a takings action against the United States.

[00:23:45] Speaker 06:
But your honor, I mean, I think it's outside the scope of today.

[00:23:48] Speaker 06:
I share your concerns.

[00:23:50] Speaker 06:
The tribe has filed a Tucker Act action that's pending until this district court litigation is filed.

[00:23:57] Speaker 06:
The United States has indicated the state could file a Tucker Act case.

[00:24:02] Speaker 06:
I mean, of course, the predicate for a takings claim is you have to surrender any right to the property.

[00:24:08] Speaker 06:
All you'd be seeking is just compensation for that taking.

[00:24:11] Speaker 06:
So any future production would not be within the

[00:24:14] Speaker 06:
within the ambit of the state.

[00:24:16] Speaker 06:
So there's a lot of downsides to that as a viable source of relief.

[00:24:20] Speaker 06:
But regarding settlement negotiations, I have to ask Your Honors to ask counsel for the appellees about what's been discussed.

[00:24:31] Speaker 00:
So I hear you to be saying that North Dakota is entitled to intervene to contest

[00:24:42] Speaker 00:
the shared assumption between Interior and the nation that Interior holds title to the land's interest for the nation, and that that is not a claim barred by the Quiet Title Act.

[00:24:56] Speaker 00:
This is not a claim at all.

[00:24:58] Speaker 00:
It's simply, it's not asking for title to be decided in the state's favor.

[00:25:04] Speaker 00:
It's asking that it not be decided in the current party's favor.

[00:25:11] Speaker 06:
Yes, Your Honor, and Rule 24 states a claim or defense, right?

[00:25:15] Speaker 00:
An interior is arguing that this suit is only, and the tribe and the nation are arguing this is only a case about trust responsibilities, and you're saying, well, no, the predicate, the assumption that they're operating on is an assumption about title, so that's really what's at issue in the action.

[00:25:35] Speaker 00:
What's your best case, intervention case?

[00:25:39] Speaker 00:
that party can come in and, as your opponents would put it, enlarge the action in that way.

[00:25:46] Speaker 00:
Well, Your Honor, I would just quibble with the predicate because I don't think that we're... I know you would, but tell me a just case in terms of intervention to say, no, no, there's an assumption the existing parties share that I want to dispute.

[00:26:04] Speaker 06:
Your Honor, I think it's a...

[00:26:08] Speaker 06:
In terms of having a shared assumption, I have to go back to the briefing.

[00:26:12] Speaker 06:
I think the relevant question is just that the MHK nation needs to demonstrate all elements of its case, and that it can't demonstrate it via consent with the other party.

[00:26:29] Speaker 06:
So it has to prove, and it's not going to be an administrative procedure act,

[00:26:34] Speaker 06:
claim.

[00:26:34] Speaker 06:
It's unlike the one against the um against the George John and George on EM opinion which has now been rescinded.

[00:26:41] Speaker 06:
It's it's it's an evidentiary claim.

[00:26:43] Speaker 00:
It's a legal less evidentiary but their current case is limited to an administrative procedure act.

[00:26:50] Speaker 06:
I don't believe that's correct your honor.

[00:26:51] Speaker 06:
I believe that they're seeking a they're seeking an APA uh compel as well as a mandamus relief um as well as an accounting which is full of

[00:27:03] Speaker 06:
questions about facts and evidence.

[00:27:05] Speaker 06:
So I think that there could be a trial, not necessarily summary judgment motions on those other two claims.

[00:27:12] Speaker 00:
If this court were to deny intervention or say that the appropriate course is to deny intervention but without prejudice, should an issue of

[00:27:27] Speaker 00:
you know, a finding that the tribe is entitled to the revenues be in the picture.

[00:27:35] Speaker 00:
What would be wrong with that?

[00:27:37] Speaker 00:
In other words, if the district court fully cognizant of the points that you're making is already planning not to, in this case, order any payment of

[00:27:53] Speaker 00:
of the revenues, the royalties from the existing leases that the state issued.

[00:28:04] Speaker 00:
Why wouldn't it be fine to have North Dakota be out of the case, and only if and when that becomes an issue, allow North Dakota to participate?

[00:28:15] Speaker 06:
Well, Your Honor, for future casting and the district court rules against NHA Nation, I think that North Dakota would be

[00:28:22] Speaker 06:
fine, right, not being in the case.

[00:28:24] Speaker 06:
The problem is we have no sense of where the case is going to go, what the arguments are going to be made, what arguments are going to be made.

[00:28:32] Speaker 00:
But I'm saying if there were some provision that were that Rubicon to be crossed.

[00:28:36] Speaker 00:
I mean, you make a very persuasive case that that's not going to happen because we don't have precedent showing in a case like this one that the United Department of Interior ordering the payment

[00:28:52] Speaker 00:
of royalties collected by one party and taking them and somehow getting them and sending them to the nation.

[00:29:01] Speaker 00:
And so the very fact that you have a strong argument that that can't happen in this case, it seems to me in some ways is a barrier to your intervention.

[00:29:13] Speaker 00:
And I'm just trying to think through procedurally why that couldn't be protected in a narrower way.

[00:29:19] Speaker 00:
And in a sense, this goes back to my concern about the implications of saying any time the Department of Interior is interacting with a federally recognized tribe and there's some

[00:29:31] Speaker 00:
often just executive determination of title or we can invite everybody who ever thought that was their land just to gum up the works.

[00:29:42] Speaker 00:
And so I'm thinking about those lines and I'm looking for your help.

[00:29:46] Speaker 06:
Yeah, Your Honor.

[00:29:46] Speaker 06:
I mean, on the, again, I don't think this is a floodgates issue because involving any issue where there's like recorded trust title and the issue is what's the accounting or the extent of the trust responsibilities.

[00:29:59] Speaker 06:
There's already

[00:30:00] Speaker 06:
right?

[00:30:00] Speaker 06:
There's already alignment between the plaintiff, which would be the tribe and the defendant, which would be the United States.

[00:30:06] Speaker 06:
And so intervention or bringing another party in, right?

[00:30:10] Speaker 06:
It would be, um, would be, I mean, that, that, that would be introducing new issues, right?

[00:30:16] Speaker 00:
That seems like that's this case though.

[00:30:18] Speaker 00:
I'm not, I'm not sure I'm following exactly why that isn't this case.

[00:30:21] Speaker 06:
Well, this, this case was brought by, again, this case was brought by MHA Nation for

[00:30:27] Speaker 06:
determination of ownership of title as well as all of the fruits of getting that of getting that title determination.

[00:30:34] Speaker 06:
And so they've gotten a ministerial recordation by the by the and everybody agrees it's ministerial and it doesn't decide anybody's title legally.

[00:30:43] Speaker 06:
They got a ministerial recordation by the Bureau of Indian Affairs.

[00:30:47] Speaker 06:
Now they want

[00:30:48] Speaker 06:
a payment, they want the money.

[00:30:51] Speaker 00:
But assume, just dial back and assume the Georgian opinion never issued.

[00:30:54] Speaker 00:
Where before that time, and the tribe, as you say, has long been, the nation has long been frustrated about Interior's stewardship of these rights.

[00:31:04] Speaker 00:
And imagine at that time that a lawsuit encompassing what are in effect counts three and four of this case is brought.

[00:31:16] Speaker 00:
In that case, does North Dakota have an entitlement to intervene?

[00:31:20] Speaker 06:
Yes, Your Honor.

[00:31:21] Speaker 06:
I mean, in the case where there is an agreement, again, that's really what this case is.

[00:31:26] Speaker 06:
The MHA nation and the United States, the MHA nation's view is that the United States did not record a trust title and did not view it as the lands, and they wanted the United States.

[00:31:37] Speaker 00:
But imagine that the United States, in that prior case, had recorded a trust title, and the nation is saying, yeah, but that's not enough.

[00:31:44] Speaker 00:
We want you to actually

[00:31:46] Speaker 00:
go forward and take the actions that would flow from that to doing accounting for us.

[00:31:52] Speaker 00:
And when you realize that there's all this value flowing from these rights, make sure that that's collected and invested and kept for us.

[00:32:02] Speaker 06:
Yeah.

[00:32:02] Speaker 06:
Well, I think yes.

[00:32:03] Speaker 06:
I mean, I think we would have, we would have, you would have grounds to intervene in that case because again, it's, it's seeking built a zero sum game.

[00:32:10] Speaker 07:
I mean, you, you want the same revenues that the nation would be asking for.

[00:32:15] Speaker 07:
Isn't that what's at stake in count four for you?

[00:32:18] Speaker 06:
Yes, sir.

[00:32:18] Speaker 06:
Again, we've said the lands and the monies are fine.

[00:32:21] Speaker 06:
Right.

[00:32:21] Speaker 06:
So it is because you may not be ratioed to Connor and may be able to file another action somewhere.

[00:32:26] Speaker 06:
That, that, that's what the news case says that that's not really pertinent to whether you can intervene in this case.

[00:32:32] Speaker 06:
The other thing I say is if the act of granting the intervention to the state of North Dakota doesn't really change the.

[00:32:44] Speaker 06:
contours of the case.

[00:32:45] Speaker 06:
That's our position.

[00:32:46] Speaker 06:
We're not changing the contours of the case by coming in.

[00:32:49] Speaker 06:
We're seeking to participate as a party.

[00:32:51] Speaker 06:
We want to have a briefing.

[00:32:52] Speaker 06:
We want to be able to put our arguments in front of the district court.

[00:32:55] Speaker 06:
The district court can do what the district court would like.

[00:32:58] Speaker 06:
District court can issue a ruling, decide to proceed to trial or summary judgment or however it wants to proceed.

[00:33:03] Speaker 07:
The district court can mood claims.

[00:33:04] Speaker 07:
We've already had that happen in the course of litigation to date.

[00:33:06] Speaker 07:
Something can happen.

[00:33:07] Speaker 07:
that causes the district court to say, exclaim is moot.

[00:33:11] Speaker 07:
And that could have implications for whether you can intervene.

[00:33:13] Speaker 07:
It definitely could.

[00:33:14] Speaker 07:
I mean, the district court could do something that would get rid of count four.

[00:33:18] Speaker 07:
We don't know yet.

[00:33:19] Speaker 07:
But if the district court does that, then to the extent that your intervention is predicated on count four, that would be gone.

[00:33:24] Speaker 07:
and you wouldn't be allowed to intervene based on count one, then we'd be left with the question of whether count three alone would be enough for you to intervene.

[00:33:30] Speaker 07:
And that would be a different question.

[00:33:32] Speaker 03:
Yes.

[00:33:32] Speaker 07:
You don't disagree that things could happen that could affect whether you're entitled to be going forward.

[00:33:39] Speaker 06:
Uh, yes, your honor, litigation is unpredictable.

[00:33:41] Speaker 06:
And so we don't, we just want to see that the table so that we can, um, indicate our, our interest for the court's consideration and the court can,

[00:33:48] Speaker 06:
take whatever action it wants and if the court takes an action adverse to the state, we want to have an opportunity to appeal that as a party.

[00:33:55] Speaker 07:
Also, you may have a seat at the table and then your entitlement to have a seat at the table could change based on what the district court does.

[00:34:00] Speaker 07:
Yes.

[00:34:03] Speaker 00:
You may have already

[00:34:04] Speaker 00:
explain this, but the Shipman Declaration talks about royalty payments and that they haven't been paid.

[00:34:13] Speaker 00:
What's the current status?

[00:34:14] Speaker 00:
I guess maybe you directed us to ask Interior about that.

[00:34:18] Speaker 00:
The current status is you're aware of royalty payments that have been withheld from the lessees that are in escrow with the state and or elsewhere.

[00:34:32] Speaker 06:
And I'll admit, Your Honor, I don't have a dollar-per-dollar accounting of where things are.

[00:34:39] Speaker 06:
My understanding is the United States held directly something in the nature of $13-14 million that is what the United States calls drainage, that is production from tribal-issued

[00:34:57] Speaker 06:
leases for upland areas that may have involved minerals abstracted from Riverbed.

[00:35:02] Speaker 06:
And so there was a standstill agreement in the district court that was rescinded at the remaining parties request.

[00:35:11] Speaker 06:
And the United States is paying over those revenues.

[00:35:14] Speaker 06:
I believe it states so in its brief too.

[00:35:16] Speaker 06:
So those revenues, whatever the United States has held from Riverbed revenues have been paid now.

[00:35:22] Speaker 00:
And is that something you're seeking to unravel.

[00:35:25] Speaker 06:
Oh, we would.

[00:35:25] Speaker 06:
Yeah.

[00:35:26] Speaker 06:
I mean, again, just to be depending if those really weren't right.

[00:35:29] Speaker 06:
Riverbed revenues that should have flowed to the same.

[00:35:32] Speaker 06:
And yes, that would be monies that the tribe would not be.

[00:35:36] Speaker 04:
Is that a lean is that a lean under twenty twenty four ten.

[00:35:43] Speaker 06:
That may constitute a lien, Your Honor, yes.

[00:35:45] Speaker 06:
But there's no, the state has not filed a lien.

[00:35:49] Speaker 06:
Just our position is that if those really are riverbed revenues, and the United States has said they're not sure, they held them back to be safe, and paid them out once the court didn't require them to hold them back.

[00:36:04] Speaker 00:
And what about the revenues that the state?

[00:36:06] Speaker 06:
So there's a lot more money, Your Honor, that is being basically held in suspension.

[00:36:11] Speaker 06:
And I think there are various mechanisms for that.

[00:36:14] Speaker 06:
Some of those are being held directly by the producers in suspension accounts.

[00:36:19] Speaker 06:
Others are being held by third party sureties or banks in escrows or the like.

[00:36:26] Speaker 00:
Arranged by the state?

[00:36:27] Speaker 06:
Yeah.

[00:36:28] Speaker 06:
I believe the state may have had some involvement in setting those up.

[00:36:32] Speaker 06:
but they are principally, I don't believe the monies are within state custody right now.

[00:36:38] Speaker 06:
I believe they're within the power of a trustee or the producers themselves until the ownership issues resolve.

[00:36:47] Speaker 07:
Let me make sure my colleagues don't have additional questions for you this time.

[00:36:50] Speaker 07:
Thank you.

[00:36:51] Speaker 07:
We'll give you a little time for rebuttal.

[00:36:52] Speaker 06:
Thank you.

[00:36:52] Speaker 06:
Thank you, your honor.

[00:36:54] Speaker 07:
Sprague.

[00:37:01] Speaker 02:
Thank you, your honor.

[00:37:02] Speaker 02:
I want to start with the point whether the current case can go forward on the premise that the United States holds the bed in trust for the nation.

[00:37:15] Speaker 02:
And to clarify, the United States holds the bed, holds the title for the benefit of the nation.

[00:37:24] Speaker 02:
That's the way it was public lands that were reserved and the fee was never conveyed.

[00:37:32] Speaker 02:
Actions are brought against the United States all the time, alleging that there has been some mismanagement, breach of trust with respect to real property or other property held by the United States.

[00:37:49] Speaker 02:
And title is not litigated unless there is a dispute as to title.

[00:37:56] Speaker 02:
It's simply assumed the ownership and then you get down to the facts

[00:38:01] Speaker 02:
of whether there was mismanagement that gives rise to a claim.

[00:38:07] Speaker 02:
And the question of litigating title is a big deal.

[00:38:15] Speaker 02:
It requires a lot of factual inquiry.

[00:38:20] Speaker 02:
Experts are involved typically.

[00:38:23] Speaker 07:
So can I just take you to the text of Rule 24?

[00:38:28] Speaker 07:
One of the counts in the case right now, it's still in the case, is a claim by the nation that they're owed royalties from the mineral, from mineral.

[00:38:41] Speaker 07:
And if that's, I mean, you don't dispute that that's property.

[00:38:46] Speaker 07:
That's a subject of the action.

[00:38:48] Speaker 02:
That is, well, that's property in a high level of generality is the subject of the action.

[00:38:57] Speaker 02:
But what happened here is that the state restricted the arguments that it wished to make.

[00:39:05] Speaker 02:
It has been seeking intervention from the outset to litigate title.

[00:39:12] Speaker 07:
Right.

[00:39:13] Speaker 07:
So you agree that the royalties are property that's a subject of the action?

[00:39:19] Speaker 02:
I would, we argued it's not subject to the action because of the limitation of their arguments, but how is it?

[00:39:26] Speaker 07:
How is it not?

[00:39:26] Speaker 07:
How is it not?

[00:39:28] Speaker 07:
MHA nation, MHA nation has a complaint that seeks these royalty payments.

[00:39:34] Speaker 02:
That's correct.

[00:39:35] Speaker 07:
Right.

[00:39:35] Speaker 07:
And so how is it, a party can't argue its way out of something being a subject of action.

[00:39:41] Speaker 07:
It either, it's either a subject of the action or it's not, at least I don't understand how

[00:39:45] Speaker 07:
Somebody that's not even in the case in your perspective can determine what's the subject of the action.

[00:39:50] Speaker 07:
The MHA nation asked for royalties or DOI to send over money.

[00:39:57] Speaker 07:
That money is property that's the subject of the action.

[00:40:01] Speaker 07:
And if that's true, then why isn't the state claiming an interest relating to that property?

[00:40:11] Speaker 07:
And if they are, then why don't they come right within rule 24?

[00:40:15] Speaker 02:
Your honor, if we posited that because they limited their arguments, it's not the subject of the action, but taking your premise that it is the subject of the action, I think their limitation of what they wish to argue is nonetheless relevant because not only

[00:40:34] Speaker 02:
goes beyond what the parties wish to argue, but they actually can't litigate title in this case.

[00:40:40] Speaker 07:
Well, put aside the quiet title, I guess, for one second, and I'll get to that.

[00:40:45] Speaker 07:
But under Rule 24, I want you to fight the premise if you think it can be fought.

[00:40:51] Speaker 07:
What I don't understand is how it can be fought, because the royalties are property that's the subject of the action, a belief.

[00:41:01] Speaker 07:
If that's true, if that's wrong, tell me if it's wrong, but I don't understand how that's wrong.

[00:41:04] Speaker 02:
I think it's a too high a level of generality given the specific circumstances of this case.

[00:41:09] Speaker 07:
Then what is the property that's the subject?

[00:41:12] Speaker 07:
How are the royalties not a subject of the action?

[00:41:15] Speaker 02:
Because the state has defined its interest as to prove its title or to disprove the nation's title in this action.

[00:41:24] Speaker 02:
It is not suggested as any other.

[00:41:26] Speaker 07:
Who cares what the state, you don't even think the state should be a party, right?

[00:41:31] Speaker 07:
So if the state's not even a party, how are they defining whether something's property that's the subject of the action?

[00:41:39] Speaker 07:
That's defined by the action.

[00:41:40] Speaker 02:
Your honor, had the state come in at the supplemental motion to intervene and said, we want to oppose three and four, counts three and four, but they didn't.

[00:41:52] Speaker 02:
They very clearly said they wanted to litigate

[00:41:56] Speaker 02:
title, that that determines everything, nothing else matters.

[00:42:00] Speaker 07:
But I think what that confuses in my mind is the rule says claims and interest relating to the property that's the subject of the action.

[00:42:09] Speaker 07:
It doesn't say claims and interest that's the subject of the action.

[00:42:14] Speaker 07:
It's claims and interest related to the property that's the subject of the action.

[00:42:18] Speaker 07:
So the first question is

[00:42:20] Speaker 07:
Are they claiming an interest related to property that's the subject of the action?

[00:42:24] Speaker 07:
And if the property that's the subject of the action is the royalties, they are claiming an interest related to the royalties.

[00:42:30] Speaker 07:
They may not be claiming an interest that's the subject of the action because the interest they're claiming and the way you're looking at the action has been put to the side.

[00:42:38] Speaker 07:
But they are claiming an interest related to property that's the subject of the action if the property that's the subject of the action is the royalty.

[00:42:46] Speaker 02:
That's one way to look at it your honor.

[00:42:48] Speaker 02:
What's the other way to look at it?

[00:42:52] Speaker 02:
They have limited the level of generality.

[00:42:55] Speaker 07:
But they've only limited the level of generality in a way that goes to whether they're claiming an interest.

[00:43:01] Speaker 07:
But the first question is, are they claiming an interest related to property that's the subject of the action?

[00:43:08] Speaker 07:
And it seems to me that the royalties are property that's the subject of the action because MHA Nation is asking for that.

[00:43:13] Speaker 07:
And then the question becomes, well, if that's true, why isn't the state claiming an interest related to that property?

[00:43:19] Speaker 07:
They are, because they want the same property.

[00:43:22] Speaker 07:
They think the property shouldn't go, that property, the royalty shouldn't go to MHA Nation, that it should go to the state.

[00:43:27] Speaker 07:
And that seems like a classic case for intervention.

[00:43:30] Speaker 02:
Well, Your Honor, I can't say that that is an impermissible, unreasonable view.

[00:43:36] Speaker 02:
But I believe intervention was nonetheless properly denied because the district court said that adjudicating this case would not, as a practical matter, impair their interests.

[00:43:49] Speaker 00:
I'm sure there's a lot of obstacles to this, but just as a conceptual matter, if the issue about the existing royalties that were paid under leases looking back

[00:44:06] Speaker 00:
If it were an implication of the nation's claims that the very fact that those are in escrow accounts or as yet unpaid and that North Dakota is claiming an interest in them is as a result of mismanagement by Interior.

[00:44:25] Speaker 00:
If Interior had been on the ball for the nation's interests, those leases never would have been granted and the royalties would not be caught up in some account.

[00:44:37] Speaker 00:
At least conceptually, one can see, well, interior, whether it is ever able to collect that money that the state has its eye on, interior has to pay from somewhere.

[00:44:52] Speaker 00:
In other words, we're not now talking about unique real estate.

[00:44:56] Speaker 00:
We're talking about an amount of money.

[00:45:00] Speaker 00:
So you're not suggesting, I don't take it,

[00:45:06] Speaker 00:
that the reason that North Dakota is not really, doesn't have an interest in the property that's at issue is because interior could pay damages in the amount of the revenues and resolve the claim that way.

[00:45:19] Speaker 02:
No, that's really not our argument.

[00:45:22] Speaker 00:
Even conceptually.

[00:45:23] Speaker 00:
I mean, I understand your primary argument is that the court couldn't go there.

[00:45:27] Speaker 02:
Had North Dakota filed a supplemental motion to intervene that said there are lots of reasons why counts

[00:45:36] Speaker 02:
three and four, MHA nations should not be afforded relief, even assuming title.

[00:45:42] Speaker 02:
I'm not sure that we would have opposed intervention.

[00:45:47] Speaker 02:
We still have arguments that this case can proceed without impairing their interests, but the real sticking point as to the opposition to intervention is the clarity with which the state said, we want to intervene to litigate

[00:46:06] Speaker 02:
title, which we took as an effort to end run sovereign immunity.

[00:46:13] Speaker 02:
The state repeatedly says we're not filing a claim, we're just filing a defense.

[00:46:18] Speaker 02:
You don't have a case that says we can't do this.

[00:46:21] Speaker 02:
Well, no, we don't have a case because this is an extremely unusual situation.

[00:46:26] Speaker 02:
But the import of block and patch hack

[00:46:32] Speaker 02:
are that if you challenge the United States claim to title, it is barred by sovereign immunity.

[00:46:41] Speaker 07:
I'm not, I, I'm not aware of any situation in which sovereign immunity has successfully been asserted unless the party is seeking relief against the government.

[00:46:58] Speaker 02:
Well, your honor, they effectively are.

[00:47:02] Speaker 07:
I don't think they are because they can't get any relief against the government in this case.

[00:47:06] Speaker 07:
They do want to have an answer to an argument about title that's in opposition to the views of the government.

[00:47:15] Speaker 07:
That's definitely true.

[00:47:16] Speaker 02:
And they can't get it in this case.

[00:47:18] Speaker 07:
Well, we don't know that, I think.

[00:47:20] Speaker 07:
It depends on how the district court decides to proceed with the case.

[00:47:24] Speaker 07:
even regardless of whether they, if they can't get it, all the more reason there's not a sovereign immunity objection.

[00:47:29] Speaker 07:
Because then they're not seeking relief against the government in any form.

[00:47:33] Speaker 07:
But I guess my question is, if all they're asking for is the district court to address an argument, the upshot of which wouldn't result in any relief against the United States, it would mean that the United States would win in this case, if the state were right.

[00:47:51] Speaker 07:
It would mean the United States would win because the nation would lose.

[00:47:54] Speaker 07:
So I'm not aware of any situation in which sovereign immunity has successfully been asserted in order to prevent an argument from being made when the party against whom sovereign immunity would be asserted isn't seeking any relief against the sovereign.

[00:48:11] Speaker 02:
Your honor, I can't cite you a case because it's a very unusual situation where you have two parties that agree on title and a third party tries to come in and say, well, we don't agree.

[00:48:24] Speaker 02:
uh, again, because that is commandeering the entire case of the plaintiff.

[00:48:29] Speaker 07:
They have, if you can't cite a case and I don't, I, I, I, I'm not surprised you can't set a case because it is a unique situation.

[00:48:34] Speaker 07:
I don't think there's a case on either side that state couldn't set a case that supported either in these circumstances.

[00:48:40] Speaker 07:
So then just as a matter of theory or as a matter of first principles, why is it that sovereign immunity can be asserted when

[00:48:50] Speaker 07:
what's at stake is not relief against the sovereign.

[00:48:53] Speaker 07:
Usually sovereign immunity is asserted because somebody's bringing a case against the sovereign.

[00:48:56] Speaker 07:
There's a claim asserted against the sovereign.

[00:48:57] Speaker 07:
There's relief sought against the sovereign.

[00:48:59] Speaker 07:
Here, the government is asserting sovereign immunity.

[00:49:02] Speaker 07:
That's what you're doing in your brief.

[00:49:05] Speaker 07:
But I'm not aware of a situation or a theoretical foundation for asserting sovereign immunity where there's no relief being sought against the government.

[00:49:15] Speaker 07:
And in fact, the argument that would be asserted would actually help the government in the case.

[00:49:20] Speaker 02:
title is not an issue.

[00:49:22] Speaker 02:
If what they are asking for is not effectively a claim against the United States, then why go through what could be multi-year proceedings to come up with some decision by the district court as to whether it thinks who has the better argument about

[00:49:42] Speaker 02:
title, this case can be resolved on other grounds.

[00:49:47] Speaker 07:
But if I'm a party who thinks that money that's being asked for by somebody else should go to me, it doesn't give me that much solace to know that, well, there's an X percent likelihood that that party who's seeking the money that I think is owed to me is never going to go because there's all kinds of other ways in which the court can rule.

[00:50:08] Speaker 07:
against the party that's seeking the money.

[00:50:10] Speaker 02:
I'd still want to be in the case to make sure and again your honor had the supplemental motion to intervene said we wish to argue broadly against counts three and four but they think this is their best excuse me can I finish they think this is their best argument they just the state just thinks that I don't think the state

[00:50:31] Speaker 07:
The state just thinks, I don't want the money to go to another party that's asking for it.

[00:50:35] Speaker 07:
I think the money should go to me.

[00:50:36] Speaker 07:
Here's my best argument as to why the money should go to me.

[00:50:39] Speaker 07:
It's because the money is actually owed to me.

[00:50:40] Speaker 07:
And it's true.

[00:50:41] Speaker 07:
That's what they would like resolution of.

[00:50:43] Speaker 07:
But the fundamental point is there's a pot of money that's in the case that the party that brought the case wants access to.

[00:50:50] Speaker 07:
And this is another party who says, wait a minute.

[00:50:52] Speaker 07:
I don't want that money to go to that other party.

[00:50:54] Speaker 07:
I want the money to come to me.

[00:50:56] Speaker 07:
Here's my best argument as to why that is.

[00:50:57] Speaker 07:
My best argument is I'm the one who's actually entitled to it, not the other party.

[00:51:01] Speaker 02:
Well, your honor, I would say that the district court believes there was a path to resolve these issues.

[00:51:08] Speaker 02:
We acknowledge that any relief would have to take into account the fact that there remains an unadjudicated claim to title.

[00:51:16] Speaker 02:
So in this case, rather than taking this

[00:51:21] Speaker 02:
action and inserting the title question into it, it would be better to at least allow the case to proceed to see if the district court considers at some point, oh, I thought I could do it, but it turns out I really can't do it.

[00:51:37] Speaker 02:
And we would concede that under our view of the other arguments that can be made is that

[00:51:44] Speaker 02:
We don't think the district court could order the United States to collect monies.

[00:51:49] Speaker 02:
It could possibly order us, try to order us to like take action to collect the money.

[00:51:54] Speaker 02:
We don't think it can do that because we would have to file a lawsuit.

[00:51:58] Speaker 02:
And in that lawsuit, the state could assert its interest, again, not to title, but to say, no, you can't collect that.

[00:52:06] Speaker 02:
It needs to stay here until title is adjudicated or some other argument.

[00:52:10] Speaker 02:
But there are many paths that are preferable

[00:52:14] Speaker 02:
more protective of the interests of the parties, the judicial economy, than stopping this case for an adjudication of title.

[00:52:24] Speaker 07:
But it may never happen.

[00:52:25] Speaker 07:
That's the thing I'm not understanding is you're right.

[00:52:27] Speaker 07:
There's many paths that the court could take, the district court could take.

[00:52:30] Speaker 07:
And many of those paths would mean that the issue that the state wants resolved wouldn't get resolved.

[00:52:34] Speaker 07:
That's true.

[00:52:35] Speaker 07:
That could happen.

[00:52:36] Speaker 07:
But right now the state doesn't know.

[00:52:38] Speaker 07:
If the district court did something tomorrow in the litigation,

[00:52:42] Speaker 07:
that would mean that the title issue is just gone.

[00:52:45] Speaker 07:
That would probably change the state's entitlement to intervene.

[00:52:48] Speaker 07:
But right now, why is the default assumption that we wait until we know that that issue is in the case before we allow the state to intervene?

[00:53:00] Speaker 07:
I thought the way we usually do things is that

[00:53:04] Speaker 07:
we allow the party to intervene unless and until it becomes clear that the interest of the party seeking to intervene is no longer in the case, not the other way that we wait to allow them to intervene until we make sure that their interest is in the case because right now they don't know.

[00:53:20] Speaker 02:
Your honor, we believe that the state made a choice in its supplemental motion to intervene and had it.

[00:53:28] Speaker 02:
One reason we don't know how these issues will play out was because it restricted

[00:53:33] Speaker 02:
its involvement in the case.

[00:53:37] Speaker 02:
And that's what the parties focused on.

[00:53:38] Speaker 02:
Had the state said it wanted to argue more broadly than in connection with the motion to intervene, they could have been fleshed out.

[00:53:45] Speaker 02:
Or as I said... What are you referring to when you say they restricted their interest in the case?

[00:53:50] Speaker 02:
In the supplemental motion to intervene, the argument was they wanted to intervene to get

[00:53:58] Speaker 02:
To litigate title, and we believe that comes through in the opening brief as well.

[00:54:03] Speaker 02:
It's all about title.

[00:54:05] Speaker 02:
That's why they want in the case.

[00:54:07] Speaker 02:
They we believe are.

[00:54:10] Speaker 02:
exploring whether they can use their framework of a defense to a claim as something that would allow title to be adjudicated without running into the sovereign immunity.

[00:54:20] Speaker 00:
But isn't that exactly what the Supreme Court blessed in Pachak where a party's coming in and saying,

[00:54:29] Speaker 00:
Wait a minute, the premise here of this development of this gaming facility is that there's title and I'm going to argue that there isn't, that counts for purposes of IGRA.

[00:54:42] Speaker 00:
And why couldn't we understand the state's motion and briefing to be saying, I just want to kick out the kickstand on which

[00:54:52] Speaker 00:
the nation's claims rest.

[00:54:54] Speaker 00:
And yes, that is beneficial to my underlying, you know, belief that I have title, but that doesn't have to be litigated in this case for me, the state, uh, to, to have that interest and assert it here.

[00:55:10] Speaker 02:
Your honor, as I understand Patrick, what was allowed to go forward were claims in testing, taking title into land and trust apart from title.

[00:55:19] Speaker 00:
Well, OK, so it's the premise, though, of taking landed address that it couldn't be done and used for gaming because it wasn't of the right time.

[00:55:28] Speaker 00:
So why isn't this parallel in terms of the Quiet Title Act, where it's not seeking to establish title?

[00:55:38] Speaker 00:
It's contesting a premise in the action that the plaintiff is seeking.

[00:55:45] Speaker 02:
What we would see as a parallel to Patchett

[00:55:48] Speaker 02:
is if the state wanted to come in to bolster or make, if for some reason we don't proceed to make the arguments we suggest we're going to make in the district court about the inability of the district court to collect revenues from parties who aren't before the court, the inability of the court to order the United States to file actions against third parties that aren't before the court,

[00:56:16] Speaker 02:
So that's the analog we see, the patching, that those arguments would be permissible.

[00:56:23] Speaker 02:
And perhaps intervention is appropriate.

[00:56:27] Speaker 02:
Had that been made clear, then in the district court, we could have argued about whether the United States was an adequate representative or not for those points.

[00:56:36] Speaker 02:
Or as I said, had title been taken off the table, it's likely the United States would never even have opposed intervention.

[00:56:45] Speaker 04:
I think the United States would be well advised that consent to intervention here.

[00:56:50] Speaker 04:
I don't understand at all how the presence of North Dakota with their arguments, which parallel yours in any way, shape or form damages the position of the United States.

[00:57:05] Speaker 04:
I just do not understand what the basis is for your opposition.

[00:57:12] Speaker 02:
Your honor.

[00:57:13] Speaker 02:
Again, if title can be taken off the table, I believe that the United States would not oppose intervention.

[00:57:23] Speaker 02:
Because with the other arguments, there is no difficulty.

[00:57:29] Speaker 02:
I expect that those issues will be addressed through a motion to dismiss of some sort and a brief submitted by North Dakota.

[00:57:42] Speaker 02:
on those issues would not be burdensome for the parties or the court.

[00:57:48] Speaker 02:
However, litigating title would be burdensome because it can't be adjudicated.

[00:57:57] Speaker 02:
And it's not necessary to to establish that when there's no disagreement between the states.

[00:58:08] Speaker 04:
Excuse me.

[00:58:09] Speaker 04:
And the state says it's not going to seek a determination of title.

[00:58:15] Speaker 04:
All it's seeking is a determination that the tribe is not entitled to the mineral royalties.

[00:58:23] Speaker 02:
But I understand that it intends to make the kind of presentation you have to get into the historical record, which typically involves experts.

[00:58:36] Speaker 02:
Sometimes these are

[00:58:38] Speaker 02:
Decided on summary judgment after a long period of discovery.

[00:58:43] Speaker 02:
Sometimes they go to trial.

[00:58:47] Speaker 07:
I understood the state to be arguing what we can have state on rebuttal, but I thought the state state definitely arguing that the tribe is not entitled.

[00:58:53] Speaker 07:
Um, but I thought the state's argument is the reason the tribe is not entitled is because we are, because we do have time.

[00:58:59] Speaker 07:
So I, the state's argument is the reason it wants to come in, as I understood it was in order to show that the state is entitled to it.

[00:59:07] Speaker 07:
But in your, you'd be free and before the district court takes to make all the arguments you're just making now about why that issue doesn't need to be resolved.

[00:59:15] Speaker 07:
You could tell the district court and I'm sure you have a well,

[00:59:19] Speaker 07:
that there's all kinds of reasons this litigation can go forward and can be resolved against in favor of the United States and against the nation without having to address the underlying issue of who's entitled to the who has the who has ownership over the mineral estate and the royalties.

[00:59:36] Speaker 07:
Right.

[00:59:36] Speaker 07:
That's why you can make the arguments that

[00:59:39] Speaker 07:
that the nation can't possibly get the proceeds because that would involve the interests of third parties who are not or so the court wouldn't be allowed to get that kind of relief.

[00:59:48] Speaker 07:
The district court could decide, okay, well, then I'm taking that off the table for that reason without having anything to do with who's got the underlying ownership interest.

[00:59:54] Speaker 07:
All that could happen.

[00:59:56] Speaker 02:
It could happen.

[00:59:57] Speaker 02:
Your honor, we're concerned that if there were a blanket reversal, that would mean that title is an issue in the case and North Dakota would then

[01:00:08] Speaker 02:
proceed to want to litigate title, whether they're saying that they want to claim it or that the nation has improved it, that is the problem.

[01:00:20] Speaker 02:
So the Quiet Title Act, whether the Quiet Title Act bars that proceeding must be decided either by this court or we think a remand

[01:00:33] Speaker 02:
for the district court to decide that question.

[01:00:36] Speaker 07:
Yeah, definitely.

[01:00:37] Speaker 07:
It has to be decided because you've asserted sovereign immunity and somebody has somebody has to decide whether your assertion of sovereign immunity is well taken either us or the district court on remand if it goes to that.

[01:00:47] Speaker 02:
So if this court were to say, well, we just don't agree with the the articulated basis of the district court, that title is no longer a subject

[01:01:00] Speaker 02:
of the action and we recognize the whole Illinois bell principle is a credential constraint and it's to facilitate as I said, the competing interests of the.

[01:01:14] Speaker 02:
outside parties and judicial efficiency without commandeering the action.

[01:01:21] Speaker 04:
The district court could also say that I'm not going to decide the accounting issue.

[01:01:27] Speaker 04:
And I'm not going to decide count four with respect to royalties because a predicate in both of those counts is ownership of the mineral bed.

[01:01:37] Speaker 04:
And this is not a proper action any longer for determination of that issue.

[01:01:41] Speaker 04:
So therefore, I dismiss it.

[01:01:44] Speaker 04:
Now, if that's the argument that persuades the district court, and one that North Dakota basically makes, then I don't see how the United States is in any way, shape, or form impaired by that.

[01:01:59] Speaker 04:
You win on both counts, counts three and counts four.

[01:02:05] Speaker 02:
Well, I don't disagree with you, Your Honor, as to that issue.

[01:02:12] Speaker 02:
We have understood again, North Dakota to want to argue title primarily at this point, have they, I don't know that they've forfeited the right to raise other issues.

[01:02:23] Speaker 02:
There is a burden under 24 C to apprise the district court of the basis for your intervention.

[01:02:32] Speaker 02:
Uh, and you know, had North Dakota explained, but we want broader

[01:02:39] Speaker 02:
intervention, then the district court could have dealt with it and parsed out the issues, but it was so targeted to title, I think the district court understandably focused on that.

[01:02:51] Speaker 02:
So we think there's a good curvature argument.

[01:02:54] Speaker 02:
Now, whether they could go back and file a different, you know, motion to intervene and broaden it, I don't know, but.

[01:03:03] Speaker 07:
So if you, if the district court thought the title is not in the case,

[01:03:08] Speaker 07:
And then North Dakota intervenes and makes a bunch of arguments about title.

[01:03:12] Speaker 07:
And the district court presumably will say, interesting.

[01:03:18] Speaker 07:
Let's just hypothesize that they're allowed to intervene.

[01:03:20] Speaker 07:
You made a bunch of arguments about title.

[01:03:23] Speaker 07:
As I already said, I'm not worried about title in this case, because I'm ready to resolve the case on grounds having nothing to do with title.

[01:03:29] Speaker 07:
And kind of no harm, no foul, right?

[01:03:31] Speaker 07:
Because nothing would have happened that causes the United States any heartburn.

[01:03:36] Speaker 02:
except they can't make those arguments without a Quiet Title Act determination, so.

[01:03:42] Speaker 07:
Well, they can't make the arguments?

[01:03:43] Speaker 07:
I'm not sure about that.

[01:03:44] Speaker 07:
This gets back to the question of where you get to assert sovereign immunity, because all the Quiet Title Act does is waive sovereign immunity.

[01:03:51] Speaker 07:
So the Quiet, if we just take, we have to ask a predicate question, which is whether this is a, whether there's a basis for asserting sovereign immunity in the first place here.

[01:04:00] Speaker 07:
And because you have to be able to assert sovereign immunity, otherwise the Quiet Title Act doesn't implement it.

[01:04:07] Speaker 07:
And so I'm still stuck on how is it that the government asserts sovereign immunity as against an argument, as opposed to as against a claim for relief against the government.

[01:04:15] Speaker 02:
So my formulation is just slightly different because when I say we'd have to adjudicate the waiver sovereign immunity, the question is whether the particular procedural maneuver here

[01:04:30] Speaker 02:
is a challenge to United States title that then you have to get a waiver of sovereign immunity.

[01:04:44] Speaker 02:
I mean, yeah, I get you could split that question out to the next question, but it's quiet Title Act law that you would have to look at to see is this within the broad scope of interpreting 2409A that this is

[01:05:01] Speaker 02:
a challenge to the United States claim to title.

[01:05:07] Speaker 00:
You mentioned Illinois Bell, and I know you've relied on that in your Rule 24 arguments that North Dakota is trying to impermissibly enlarge the scope of the existing action.

[01:05:18] Speaker 00:
That case, as you know, arose in the context of a petition from an administrative agency, and I wonder, do you have

[01:05:24] Speaker 00:
uh, arguments or cases that apply that same principle appeals from district court.

[01:05:32] Speaker 02:
I could not find that in this court's precedent.

[01:05:37] Speaker 02:
Um, my review indicated that this court applies that rule in the context of petitions for review.

[01:05:45] Speaker 02:
But, um, the district court cites the seminal nation case.

[01:05:50] Speaker 02:
Uh, and I believe there are other

[01:05:53] Speaker 02:
district court decisions, DDC decisions that have looked to Illinois Bell for guidance.

[01:06:02] Speaker 02:
But the Seminole Nation case cited by the district court is one of them.

[01:06:09] Speaker 02:
And while the procedural context is not identical, I think Illinois Bell is concerned about

[01:06:19] Speaker 02:
uh, circumventing, um, other restrictions on, uh, litigation.

[01:06:26] Speaker 02:
Uh, and so the broad principle, um, of the balance of 24, uh, rule 24 a applies and the district court here has a look to it that way, but no, I'm not aware of any

[01:06:43] Speaker 02:
case by this court applying Illinois Bell outside the petition for review.

[01:06:48] Speaker 00:
Can you tell us what you understand about the status of the disputed royalties and including since 2020?

[01:06:58] Speaker 00:
Right.

[01:06:59] Speaker 02:
So, Your Honor, the royalties have to be separated out from those that are held

[01:07:10] Speaker 02:
by the United States pursuant to the leases it has approved and royalties that are being held by producers either in their own suspense accounts or having transferred it to an escrow agent.

[01:07:29] Speaker 02:
So, excuse me, the Department of the Interior has responsibilities under the Indian Mineral Development Act, Indian Mineral Leasing Act,

[01:07:39] Speaker 02:
to hold those monies and transfer them to the tribe.

[01:07:43] Speaker 02:
What happened here, the $13 million that's been talked about, the federally approved leases only grant authority to extract fuel and gas up to the border of the historic riverbed.

[01:07:59] Speaker 02:
When the district court entered an order that any monies... Meaning not in the disputed land.

[01:08:05] Speaker 02:
Correct.

[01:08:07] Speaker 02:
because there was a possibility that a well boar could be close to the riverbed, even though not extending into the riverbed.

[01:08:16] Speaker 02:
Interior had some concern, not wishing not to run afoul of the district court's order that they should hold back some amount of money that maybe is attributable from a well boar pulling

[01:08:32] Speaker 02:
some oil from under the historical river bed.

[01:08:36] Speaker 02:
That's been held back and not paid.

[01:08:38] Speaker 02:
And when you talk about that has now been paid once that injunction only lasted until count one was adjudicated.

[01:08:46] Speaker 02:
Once, um, count one was dismissed as moot, that, uh, injunction was terminated.

[01:08:52] Speaker 02:
And at that point interior did release those monies that might have come from under the river bed, but shouldn't have come from under the river bed.

[01:09:01] Speaker 02:
The biggest pot of money is the, I think it's pled over a hundred million dollars, I'm forgetting the details, that oil and gas producers have put aside because it is from, they think it is attributable to the minerals underlying the riverbed, but the part of the interior has,

[01:09:28] Speaker 02:
no better information as I understand it about those monies than the state does.

[01:09:34] Speaker 02:
Um, I mean, there's no, uh, administrative oversight, no statute requiring them to report to interior, uh, and because they're not related to the leases that you that correct.

[01:09:46] Speaker 02:
Correct.

[01:09:47] Speaker 02:
Um, so, you know, we haven't discussed, we didn't discuss in our brief precisely how the accounting claim

[01:09:55] Speaker 02:
would go forward with respect to monies that we have never held.

[01:10:00] Speaker 02:
So that's an issue.

[01:10:02] Speaker 02:
It wasn't necessary to present it because our argument is, however we do or don't do it, it can't hurt North Dakota.

[01:10:10] Speaker 02:
So then we focused on count four.

[01:10:12] Speaker 00:
And these licenses and royalties, are they all during the brief period of the Georgian opinion or did some of them proceed?

[01:10:21] Speaker 02:
I believe, I don't believe this is limited, because my understanding is that since then, they are still putting the revenues aside.

[01:10:33] Speaker 00:
But I mean, how did it happen, or did it happen, that even before the Georgiani opinion was issued, that the state was licensing

[01:10:47] Speaker 02:
extraction because it just took the position.

[01:10:49] Speaker 02:
I don't know when, I don't know when the time period for these monies that the oil and gas producers are putting aside started because again, we don't control that.

[01:11:05] Speaker 02:
So I don't know how long, how far back that goes.

[01:11:10] Speaker 02:
My understanding is it's continuing to the present that they're putting aside

[01:11:16] Speaker 02:
the monies they think are attributable to the riverbed.

[01:11:19] Speaker 00:
And it's not, you said you don't control that, but if you're holding these rights in trust for the nation, then don't you control that?

[01:11:30] Speaker 00:
And that was the position before the Georgiani opinion.

[01:11:34] Speaker 02:
Well, that may be part of their claim of mismanagement that would have to be litigated, but there's no statute

[01:11:46] Speaker 02:
that requires that.

[01:11:49] Speaker 02:
That's the United States position or regulations that require that.

[01:11:54] Speaker 02:
The Interior's duty is when the tribe asks Interior to approve a lease for a particular area, then Interior approves or disapproves the lease.

[01:12:10] Speaker 02:
And that's the scope within which Interior has been operating.

[01:12:16] Speaker 07:
Make sure my colleagues don't have additional questions for you.

[01:12:20] Speaker 07:
Thank you, Miss Greg.

[01:12:22] Speaker 07:
We'll hear from the nation now, Mr. Perdon.

[01:12:36] Speaker 05:
Please, the court.

[01:12:38] Speaker 05:
My name is Tim Burton.

[01:12:39] Speaker 05:
I represent the appellee here in the man and that's a record run nation.

[01:12:45] Speaker 05:
This court should affirm the district court's decision that North Dakota is not a proper party through intervention in the APA Act impending below.

[01:12:53] Speaker 05:
Block versus North Dakota holds that Congress intended that the Quiet Title Act provided the exclusive means by which an adverse claimant would challenge the United States title for real property.

[01:13:09] Speaker 05:
Clearly, under the Indian lands exception for that waiver of sovereign immunity,

[01:13:13] Speaker 05:
The Quiet Title Act bars North Dakota from initiating an APA case, a suit to contest where the United States holds title to the Missouri River as trustee for the MHA nation.

[01:13:24] Speaker 05:
It makes no difference here that North Dakota seeks to intervene as a defendant, party defendant, and assert this claim as a defense.

[01:13:35] Speaker 05:
North Dakota still seeks to use this APA suit as a vehicle

[01:13:40] Speaker 05:
to dispute the United States' title to the riverbed.

[01:13:44] Speaker 07:
This it cannot do.

[01:13:45] Speaker 07:
Why not?

[01:13:46] Speaker 07:
Because I think everything you said I don't disagree with.

[01:13:49] Speaker 07:
Descriptively, that seems right to me.

[01:13:51] Speaker 07:
But what underlies the limitation on trying to do that is sovereign immunity.

[01:14:00] Speaker 07:
And why is it?

[01:14:02] Speaker 07:
a problem of sovereign immunity to come in on the side of the United States to raise an argument when you're not seeking any relief against the unit.

[01:14:09] Speaker 07:
It'd be one thing if the if the state said I want to intervene against the United States putatively on the same side as the nation because I want to assert an affirmative claim to the proceeds that I see because then you're seeking relief against the United States.

[01:14:24] Speaker 07:
But here the state isn't doing that.

[01:14:26] Speaker 07:
Why is what they're doing

[01:14:28] Speaker 07:
bound up in sovereign immunity, where they're not seeking relief against the United States, they're not filing a claim against the United States.

[01:14:32] Speaker 07:
Those are the classic situations in which you see sovereign immunity.

[01:14:35] Speaker 05:
I would concur that the state's pleading here is quite artful, right?

[01:14:40] Speaker 05:
But Block says that it would defy description or something like that to allow artful pleading to allow an end run around the Quiet Title Act.

[01:14:55] Speaker 05:
The government is sovereignly immune.

[01:14:57] Speaker 05:
It is waived at sovereign immunity by passing, Congress has waived that sovereign immunity by passing the Quiet Title Act, except the Indian lands exception, which restores immunity.

[01:15:08] Speaker 04:
So I think that- The act says that the United States may be named as a defendant, but not with respect to Indian trust or restricted lands.

[01:15:24] Speaker 04:
Who named the United States as a defendant here?

[01:15:27] Speaker 04:
of the MIT Nation, my client.

[01:15:29] Speaker 04:
Right.

[01:15:30] Speaker 04:
The state of North Dakota didn't name the United States as a defendant.

[01:15:35] Speaker 04:
So I don't even see how the Quiet Title Act comes into play, because this is your case.

[01:15:40] Speaker 04:
And they're coming in, and they're not the ones that are seeking any kind of waiver of immunity.

[01:15:46] Speaker 04:
As a matter of fact, as my colleague points out, they're coming in on the side of the United States as a defendant again.

[01:15:54] Speaker 05:
The state of North Dakota's position in this case is that the MHA nation does not own the riverbed and therefore shouldn't get the royalties.

[01:16:03] Speaker 05:
But they're not a disinterested third-party landowner who doesn't want a casino next to them like in Pache.

[01:16:09] Speaker 05:
They are engaged in a zero sum game.

[01:16:12] Speaker 05:
The reason that the MHA nation doesn't

[01:16:15] Speaker 05:
shouldn't receive those royalties is because their position is the state of North Dakota, and that is the traitor of the court.

[01:16:24] Speaker 05:
That's what brings this case

[01:16:27] Speaker 05:
into the Indian lands exception to the Quiet Title Act.

[01:16:31] Speaker 07:
Again, I don't disagree with anything you said in your description, but I guess I still don't understand.

[01:16:36] Speaker 07:
The Quiet Title Act can't have anything to do with this case unless sovereign immunity has something to do with this case, because all the Quiet Title Act is is a waiver of sovereign immunity.

[01:16:46] Speaker 07:
So there has to be some reason as a matter of sovereign immunity law that the state can't come in for the reasons it wants to come in.

[01:16:53] Speaker 07:
And that's what I'm not understanding.

[01:16:56] Speaker 05:
Maybe we're talking, let me try my thoughts on this.

[01:17:01] Speaker 05:
The federal government is immune.

[01:17:03] Speaker 05:
It has waived its immunity to allow quiet title actions except obviously, right, where Indian lands are at issue.

[01:17:15] Speaker 05:
In that situation, it provides another path to remedy.

[01:17:18] Speaker 05:
or to analyze another path for the North Dakota to test its claim.

[01:17:24] Speaker 07:
But my point is an antecedent one.

[01:17:26] Speaker 07:
The United States as a default matter is immune.

[01:17:29] Speaker 07:
Correct.

[01:17:29] Speaker 07:
Right.

[01:17:30] Speaker 07:
Correct.

[01:17:31] Speaker 07:
But we've never thought of immunity as immunity by and based on an against an argument made by a party that's siding with the United States.

[01:17:41] Speaker 07:
That's what I don't understand.

[01:17:42] Speaker 07:
They're coming in.

[01:17:43] Speaker 07:
The state is coming in on the same side

[01:17:47] Speaker 07:
meaning against you, to assert an argument.

[01:17:50] Speaker 07:
And I've never heard of a case where the United States successfully asserts sovereign immunity to say, I'm asserting sovereign immunity to stop this putative party from coming in to make an argument against me, even though they're not filing a claim against me, even though they're not seeking relief against me, even though they're making an argument that would actually allow me to win this case.

[01:18:11] Speaker 07:
It is quite artful pleading.

[01:18:14] Speaker 05:
I concur with you.

[01:18:15] Speaker 05:
But I do think that I would say that they don't agree with the United States on the issue of title.

[01:18:24] Speaker 07:
The United States for I stipulate to that.

[01:18:27] Speaker 07:
That's definitely true that they disagree with the United States on the issue of title.

[01:18:32] Speaker 07:
What I don't understand is what that has to do with sovereign immunity if they're not using that argument as a basis to seek a claim against the United States to seek relief against the United States.

[01:18:41] Speaker 07:
We've never thought about sovereign immunity, meaning the government sovereign immunity doesn't mean the government doesn't have to answer a letter that sent to an agency.

[01:18:48] Speaker 07:
I don't think you assert sovereign immunity against a consumer inquiry.

[01:18:52] Speaker 07:
This just seems like there's no claim against the United States.

[01:18:56] Speaker 07:
There's no relief against the United States.

[01:18:57] Speaker 00:
There's an argument.

[01:18:59] Speaker 00:
I don't know if this is right and the chief can speak for himself, but one of the questions when we consider immunity is, is the immunity only immunity from ultimate relief or is it immunity from suit?

[01:19:13] Speaker 00:
You know, and there are some immunities where we say even engaging in the litigation on the issue and that doesn't deal with the adverseness.

[01:19:22] Speaker 00:
Maybe the heart of the juice question, but I'm interested in, you know, is there is part is a necessary part of the position you're taking that it has to be not just

[01:19:32] Speaker 05:
uh that the that the indian lands exception retains immunity from liability but that it that it implies immunity from suit i think i think it's implied immunity from suit and i think the answer to this is in the careful and thorough scheme as block called it of the quiet tidal line the the issue here is

[01:19:54] Speaker 05:
the inability of North Dakota to argue it's to test its claim of title in the DC District Court.

[01:20:01] Speaker 05:
The state of North Dakota is not without access to a federal courthouse to test its claim of title.

[01:20:12] Speaker 05:
Congress, again, in this careful and thorough remedial scheme of the Quiet Title Act provided that where Indian lands are at issue, a party wanting to contest title may use the Tucker Act and bring suit for compensation in the court of federal claims.

[01:20:25] Speaker 07:
So even if they can't, even if they have an alternate route, and I think there's questions about whether they do, but let's just suppose that they do.

[01:20:31] Speaker 07:
Okay.

[01:20:31] Speaker 07:
And even if I grant, I think it may well be an immunity from suit.

[01:20:34] Speaker 07:
There's already a suit as to which the government's not immune.

[01:20:37] Speaker 07:
You brought it.

[01:20:39] Speaker 07:
So what I don't understand is, we're past immunity from suit.

[01:20:44] Speaker 07:
The question is, is there an immunity from argument in a suit that can otherwise proceed?

[01:20:49] Speaker 05:
That's a good question.

[01:20:53] Speaker 05:
It's a good question, right?

[01:20:54] Speaker 05:
I'm with you.

[01:20:55] Speaker 05:
I would say, so how do we answer it?

[01:20:58] Speaker 05:
I would suggest that what we do is we go to the text of the Quiet Title Act and we look at block and we look at the Quiet Title Act.

[01:21:04] Speaker 05:
And what do they teach us?

[01:21:05] Speaker 05:
block says nor completing, you know, we got it.

[01:21:08] Speaker 05:
We have to treat these exceptions.

[01:21:09] Speaker 05:
Sovereign immunity is really important.

[01:21:11] Speaker 05:
You know, you got to we have to analyze it in differential way.

[01:21:15] Speaker 05:
All of those sorts of things.

[01:21:16] Speaker 05:
And we look at this case and we say that that that that this case and in it, paycheck is part of this, too.

[01:21:25] Speaker 05:
But but you look at that.

[01:21:29] Speaker 05:
That landscape.

[01:21:31] Speaker 05:
And that the ruling, the way through the thicket is to follow the Quiet Title Act, which says Indian land cases seeking arguments over title are exempt.

[01:21:40] Speaker 05:
And that the path that actually the Quiet Title gives us is that the North Dakota's path here is to file a claim.

[01:21:49] Speaker 05:
Let me step back and say this.

[01:21:52] Speaker 05:
Chief, you said a number of times that their position is they don't want to challenge ownership of the river, but they want the royalties.

[01:21:58] Speaker 05:
It's about money.

[01:21:59] Speaker 05:
That's right.

[01:22:00] Speaker 05:
And they should go seek that relief in the Court of Federal Claims because Indian land and the United States' trustee responsibility, Congress recognized in the Quiet Title Act by exempting Indian lands.

[01:22:14] Speaker 07:
So let's just suppose that they can go from the Tucker Act but proceed their own action under the Tupper Act.

[01:22:20] Speaker 07:
Let's just assume that.

[01:22:22] Speaker 07:
What they're faced with is a case that you brought.

[01:22:25] Speaker 07:
They want to be in that case.

[01:22:27] Speaker 07:
And do you think that immunity from suit under sovereign immunity means immunity from particular arguments in a suit?

[01:22:37] Speaker 07:
Is that the upshot?

[01:22:39] Speaker 07:
I think it kind of has to be the upshot.

[01:22:40] Speaker 07:
That may or may not be right, but I'm not aware of any support.

[01:22:45] Speaker 07:
I do think that in this case.

[01:22:46] Speaker 05:
And I would say that

[01:22:49] Speaker 05:
This North Dakota has chosen this path, which I think is foreclosed by the Quiet Title Act.

[01:22:57] Speaker 05:
Why have they chosen this path and why?

[01:22:59] Speaker 05:
I mean, they made a decision, they have made a decision, a pending decision, their existing decision not to go to the Court of Federal Claims.

[01:23:09] Speaker 05:
Why?

[01:23:10] Speaker 05:
That's the clear path for them under the Quiet Title Act.

[01:23:12] Speaker 07:
No, but why is that?

[01:23:13] Speaker 07:
Because they could go somewhere else.

[01:23:17] Speaker 07:
And then that other court, there's already one Tucker act claim that's being held.

[01:23:21] Speaker 07:
There's already one Tucker act claim that's being suspended pending this resident, right?

[01:23:25] Speaker 05:
You know all about that.

[01:23:26] Speaker 05:
Yes.

[01:23:27] Speaker 05:
Right.

[01:23:27] Speaker 05:
Right.

[01:23:27] Speaker 05:
Try to do that as well.

[01:23:30] Speaker 07:
But, but right now the state is faced with a situation in which you brought a claim seeking money that the state thinks should go to the state.

[01:23:37] Speaker 07:
The state just wants to be in the case to make sure that it gets to argue, wait a minute, that money shouldn't go to the nation.

[01:23:43] Speaker 07:
It should go to us.

[01:23:44] Speaker 07:
They may or may not be right about that.

[01:23:46] Speaker 07:
That argument may or may not be resolved in the case, but they just, all they're saying is the nation brought this argument.

[01:23:53] Speaker 07:
They're seeking money.

[01:23:54] Speaker 07:
I think the money should go to me.

[01:23:56] Speaker 07:
I just want to be in there so I can make my argument that I vote that not the nation.

[01:24:00] Speaker 05:
Unfortunately, Congress doesn't agree with that.

[01:24:02] Speaker 05:
Sovereign immunity is not about fairness, right?

[01:24:04] Speaker 05:
Sovereign immunity is about power and the government's waiver of power.

[01:24:08] Speaker 05:
And Congress did that through the quiet tie and lack, interpreted by Black, I'm going to repeat myself,

[01:24:14] Speaker 05:
Artful pleading's not enough, this is the sole method, and there is a mechanism available for them to go get the remedy.

[01:24:21] Speaker 07:
And that would be right if you think sovereign immunity goes to arguments, and that's I think the baseline issue here.

[01:24:28] Speaker 07:
Can I just clarify one item, which is, I don't understand the nation to be making the argument that even aside from the Quiet Title Act, Rule 24 would bar intervention by the state.

[01:24:42] Speaker 07:
I agree.

[01:24:43] Speaker 07:
Okay.

[01:24:43] Speaker 07:
I just wanted to make sure that you and the government are definitely situated.

[01:24:46] Speaker 00:
Let me just ask if in your view, if the district court granted all the relief that you've asked for in the case, what would, what would the district court order be to interior?

[01:25:01] Speaker 00:
What would it tell interior to do?

[01:25:04] Speaker 05:
Easy part first, right?

[01:25:06] Speaker 05:
It would order that.

[01:25:06] Speaker 05:
Please give us an accounting of the, of the, of our mineral rights going back again, uh,

[01:25:11] Speaker 05:
Let me digress just to answer one of your earlier questions, Judge.

[01:25:15] Speaker 05:
The mineral royalties were collected by producers pursuant to leases granted by the North Dakota before Georgiani.

[01:25:26] Speaker 05:
That leasing and collection by the state of the tribe's property goes back to the beginning of the Bakken oil boom in western North Dakota.

[01:25:36] Speaker 05:
To the 80s.

[01:25:37] Speaker 00:
To the 1980s.

[01:25:39] Speaker 05:
There was an earlier oil boom in the United States.

[01:25:42] Speaker 05:
I can't hear in Western North, but I can't speak to that.

[01:25:44] Speaker 05:
The oil boom started in the Western North in 2009, 2010.

[01:25:52] Speaker 05:
Your question was the relief that the judge would order on count four.

[01:25:57] Speaker 05:
We believe that our trustee, and it's no secret in our case, we believe our trustee has not lived up to its responsibilities and duties here.

[01:26:06] Speaker 05:
We're seeking the court's assistance with that.

[01:26:08] Speaker 05:
We have pled a request for collection, assistance with collection of these royalties from our trustee, are asking them to go take

[01:26:21] Speaker 05:
reasonable and prudent actions that a trustee would take to protect its words property.

[01:26:27] Speaker 05:
And that will be the scope of the fourth, the remaining part of account four in our complaint.

[01:26:33] Speaker 00:
And wouldn't that require some filing of litigation on interior's part?

[01:26:41] Speaker 00:
Those lessees and or escrow agents aren't going to give up the money if they think that

[01:26:48] Speaker 00:
it actually belongs to North Dakota if it thinks the title claim is baseless.

[01:26:53] Speaker 00:
So is the idea that it would nudge Interior, maybe Interior has a ground to resist, but that it would nudge Interior to file a court of title action?

[01:27:04] Speaker 05:
The court does have the authority, in my opinion, under the restatement and the kind of lackluster law of trust that it can,

[01:27:15] Speaker 05:
You know, I understand the United States to argue that it has discretion and whether or not it brings a lawsuit, those sorts of things.

[01:27:20] Speaker 05:
And in the Department of Justice, the court can't tell the Department of Justice what to do.

[01:27:23] Speaker 05:
But I think courts do tell trustees what to do as a matter of trust law going forward, or historical trust law.

[01:27:32] Speaker 05:
There may be other remedies by a potential Title Act is one.

[01:27:36] Speaker 05:
There may be other remedies as well.

[01:27:38] Speaker 04:
One other remedy would be for the mineral producer to bring an interpleader action and name the tribe and North Dakota and the United States and let them fight it out about who owns the mineral royalties.

[01:27:59] Speaker 05:
That is another possibility as well, Judge.

[01:28:03] Speaker 05:
I mean, I would

[01:28:05] Speaker 05:
want to think about how the Quiet Title Act applies to that, but that is another possibility as well.

[01:28:15] Speaker 00:
So is it part of your claim that Interior had an obligation that it failed to fulfill in somehow not preventing

[01:28:27] Speaker 00:
the pre-Giorgiani opinion of exploitation of these oil reserves?

[01:28:32] Speaker 00:
Like how did that happen on land that the nation thought belonged to it?

[01:28:37] Speaker 05:
I just didn't hear the last part of that.

[01:28:39] Speaker 00:
How did that happen on land that

[01:28:42] Speaker 00:
the nation believed was its own and that was obviously very valuable.

[01:28:47] Speaker 05:
I mean, I think those are important questions that we intend to ask our trustee or we are asking our trustee in the scope of the two lawsuits that we've brought.

[01:28:54] Speaker 05:
And so the answer to your question is yes.

[01:28:57] Speaker 05:
I mean, we have concerns about that, right?

[01:28:59] Speaker 05:
The nation's position is that the original controlling end of the people go back to the treaties in terms of the riverbed passing to the nation, of course,

[01:29:09] Speaker 05:
but even interior in 1836 and i'm not going to go through the merits here but yes we part of our claims is that our trustee has not protected the tribe's rights um as part of as it should have that's the most secret obviously we've sued them in two separate cases um i don't have a great deal more i would just know i would i would note that that the quiet title i mean just to put a fine point on this i

[01:29:34] Speaker 05:
In the quiet title act and denies the district court of jurisdiction over their intervention of of the doesn't have standing make these arguments to brief and then it also makes it a non justiciable issue under the rules of intervention as well and so that that's how I like highs.

[01:29:51] Speaker 05:
to our opposition to the North Dakota's quest for intervention.

[01:29:56] Speaker 04:
Is it your position?

[01:29:57] Speaker 04:
Is it is it your position?

[01:29:58] Speaker 04:
Well, I'm not sure whether it's your position or not, but is the Department of the Interior's opinion?

[01:30:07] Speaker 04:
Does that indicate that the United States owns the title to the riverbed or does it indicate that the tribe owns the title to the roof?

[01:30:18] Speaker 05:
Judge Randolph, the M opinion states that the United States holds title to the riverbed in trust for the trial.

[01:30:29] Speaker 05:
The standard sort of Indian country jurisdictional framework.

[01:30:32] Speaker 03:
I understand.

[01:30:35] Speaker 04:
But, you know, my question is, when the Treaty of Fort Laramie and the other treaties were executed, is the opinion of the Solicitor of Interior that the riverbed was conveyed to the tribe?

[01:30:53] Speaker 05:
The position of the current opinion is that the Riverbed was conveyed to the tribe, correct?

[01:30:59] Speaker 05:
Okay, that's okay.

[01:31:03] Speaker 05:
Final point just on the side.

[01:31:04] Speaker 00:
Okay, just before I want to let you wrap up without me having the last word, but I asked you what relief you thought the district court could give and then interior has argued that short of being

[01:31:19] Speaker 00:
required to file a lawsuit that there isn't an administrative process or other process by which it could gain control of the royalties that, as I understand it, are currently either being retained by the lessees or held in escrow.

[01:31:34] Speaker 00:
Do you disagree with that?

[01:31:35] Speaker 05:
This is a very complex issue.

[01:31:44] Speaker 05:
If I had, if I could tell you right now that, oh, we have found a statute that says the Department of Interior can do this, we would be pushing that.

[01:31:53] Speaker 05:
I'm not saying there's not some procedure out there.

[01:31:54] Speaker 05:
We're still analyzing this.

[01:31:58] Speaker 05:
The issue here is that this trust property is not subject to federal lease because it's erroneously subject to a state lease.

[01:32:05] Speaker 05:
And we're trying to analyze that.

[01:32:08] Speaker 05:
I don't have a statute to cite you to right now, but we continue to look and think about that.

[01:32:13] Speaker 05:
The last thing I want to say or I want to make sure I make this point is is that this idea that the United States could be sent to the to the Court of Federal Claims under the Tucker Act to rather than take title of the property, but rather be paid its value.

[01:32:28] Speaker 05:
That's not unusual, right?

[01:32:30] Speaker 05:
Under the Quiet Title Act, even

[01:32:33] Speaker 05:
When a non-Indian land situation, someone sues the United States to buy a title and they win.

[01:32:39] Speaker 05:
The United States doesn't have to give them title, they can pay them the value.

[01:32:43] Speaker 05:
And so again, it is a careful and thorough, thoughtful scheme put together by Congress to address these sorts of issues.

[01:32:51] Speaker 05:
The fact that North Dakota has chosen not to follow that path that's laid out by the Quiet Title Act,

[01:32:58] Speaker 05:
should not allow it to intervene as an APA case between the nation and its trustee.

[01:33:07] Speaker 04:
Was it the United States that's responsible for taking, but the title is in the tribe, you told me.

[01:33:14] Speaker 04:
And so how can it be that the United States is liable under the Fifth Amendment for something that the tribe's doing in negotiating the treaties?

[01:33:27] Speaker 05:
The title of the land is held by the United States in trust for the tribe.

[01:33:32] Speaker 05:
The United States owns this land in trust for the tribe.

[01:33:36] Speaker 05:
That is the, the, the.

[01:33:39] Speaker 05:
No, I know.

[01:33:42] Speaker 05:
Okay.

[01:33:43] Speaker 05:
Um, we would ask that you affirm the district court below.

[01:33:47] Speaker 07:
Thank you for the opportunity to argue here today.

[01:33:49] Speaker 07:
Thank you, Mr. Burton.

[01:33:51] Speaker 07:
Uh, Mr. Oslander will give you three minutes for rebuttal.

[01:33:56] Speaker 06:
Thank you, your honor.

[01:33:57] Speaker 06:
I'll be very brief and I appreciate the indulgence of the court well beyond the a lot of time.

[01:34:01] Speaker 06:
These are really important questions.

[01:34:03] Speaker 06:
I just want to say two things.

[01:34:06] Speaker 06:
The first point to Ms.

[01:34:09] Speaker 06:
Spring's point about the state restricting its supplemental motion to intervene.

[01:34:17] Speaker 06:
I think the court properly questioned that.

[01:34:25] Speaker 06:
We did put forward our best grounds.

[01:34:27] Speaker 06:
I think we clearly satisfied Rule 24C, which requires that we state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

[01:34:39] Speaker 06:
It doesn't require that we put out every single argument that we're going to make against counts three and four.

[01:34:45] Speaker 06:
Our bottom line is that counts three and four should be denied.

[01:34:47] Speaker 06:
And as an intervener, we reserve the ability to make

[01:34:50] Speaker 06:
arguments necessary to make that if the United States makes arguments, we will avoid duplication and making those same arguments in the district court.

[01:34:59] Speaker 06:
The other thing I want to again just taking a step back.

[01:35:02] Speaker 06:
This court views this interest prong of the rule 24 as a as a practical inquiry to look at the practical consequences of denying intervention.

[01:35:14] Speaker 06:
My

[01:35:15] Speaker 06:
opponent for the MHA nation suggested we go to other courts and we file other relief.

[01:35:22] Speaker 06:
I submit that practical consequence here is whatever happened in some other court, even though the law doesn't require us to go find a new lawsuit, this case is going to proceed and this case is going to be resolved and it could end up in enforcing the payment or double payment of

[01:35:39] Speaker 06:
of a significant of monies that are otherwise due due to the state.

[01:35:45] Speaker 06:
This court in in fun for animals, for example, said.

[01:35:50] Speaker 06:
Regardless of whether the intervener could reverse an unfavorable ruling by bringing a separate lawsuit, there's no question that the task of re-establishing the status quo, if the plaintiff succeeds, in this case, will be difficult in vertices.

[01:36:02] Speaker 00:
And what are you imagining other than a separate suit that could result in forcing payment or double payment?

[01:36:10] Speaker 06:
I'm not sure I understand your question, Your Honor.

[01:36:12] Speaker 00:
You just said that this suit could force payment or double payment of the amounts.

[01:36:17] Speaker 00:
And my question is, how in this suit would that come about?

[01:36:21] Speaker 00:
Short of another litigation by Interior?

[01:36:26] Speaker 06:
No, Your Honor.

[01:36:26] Speaker 06:
What I mean is that if this court were to give the MHA Nation their desired relief and basically an award of monies, $100 million or more through this litigation, that that would

[01:36:39] Speaker 06:
that would compel a payment of funds before the, and let's just say the additional court did so without resolving an issue of ownership.

[01:36:47] Speaker 06:
Right.

[01:36:47] Speaker 00:
Then Interior has an obligation to the nation, but that wouldn't necessarily, I mean, then Interior would have to pay that, but it doesn't necessarily license Interior.

[01:37:01] Speaker 00:
I mean, it couldn't under, you know, Taylor versus Sturgill, the state could not be bound by that.

[01:37:06] Speaker 00:
So again, you wouldn't have a dog in that fight unless and until it sounds like the existing parties think that there is no way that it could reach into the coffers of the money that the state says it has an interest in without any further litigation.

[01:37:23] Speaker 00:
If it requires further litigation, you could be there.

[01:37:27] Speaker 06:
Well, your honor, again, that's kind of requires forecasting for what's going to happen in this report.

[01:37:32] Speaker 00:
We agree that that's what I'm asking you is what is the worst case?

[01:37:36] Speaker 00:
What is the thing you imagine the district court could do?

[01:37:40] Speaker 00:
If you were not in the case, it could somehow take away that money without

[01:37:46] Speaker 06:
you being present well your honor if if this court were to affirm and the state was not a part of the litigation let's say and the litigation proceeds either a trial or summary judgment whoever to dispose of

[01:37:59] Speaker 06:
counts three and four, and the relief sought in the tribe's complaint is awarded of all the same monies that are covered by state leases today.

[01:38:07] Speaker 00:
Same amount of money.

[01:38:08] Speaker 00:
And then, as Judge Randolph was saying, if I were the lessee, I would file an interpleader right away.

[01:38:15] Speaker 00:
I don't want to pay this to the wrong party.

[01:38:18] Speaker 00:
So they file an interpleader, and you're in there saying, you know, look at this paper.

[01:38:23] Speaker 00:
This is a lease that we awarded, and this is land that we

[01:38:28] Speaker 00:
We have title to end of story and that would be litigated in that case.

[01:38:33] Speaker 06:
Yeah, but your honor, I think they're just getting back to the question is intervention in the case that's already been brought in.

[01:38:39] Speaker 00:
I'm trying to understand what the worst case for you is and whether that justifies you being in.

[01:38:44] Speaker 06:
Yeah, I think the worst case scenario, your honor, again, is that the case proceeds without the without the state.

[01:38:50] Speaker 06:
The district court either rules on ownership or doesn't rule on ownership, but grants the relief that the MHA nation seeks the United States

[01:38:58] Speaker 06:
goes along with that relief and pays out or compels or does whatever, files actions or whatever to compel the payment of the monies.

[01:39:06] Speaker 06:
Let's say interpleaders are filed, the tribe files quiet title action, immunity counts.

[01:39:10] Speaker 06:
And so those are never heard by the district court or wherever those interpleader suits are filed, right?

[01:39:15] Speaker 06:
So it's a sort of a series of how this might ultimately play out, but the state is not gaming the system here.

[01:39:23] Speaker 06:
All that we're trying to do is intervene in defense of the case that's been brought

[01:39:27] Speaker 06:
period.

[01:39:28] Speaker 07:
And in other words, the worst case scenario may not be that you have no ability to get money to which you think you're entitled because you there could be separate litigation that would give you the money that you think you're owed.

[01:39:40] Speaker 07:
But the worst case scenario still you think worse off than being involved in this case because you would still need to be involved in separate litigation.

[01:39:48] Speaker 07:
And that's worse than not having to separate litigation.

[01:39:51] Speaker 06:
Yes, your honor.

[01:39:52] Speaker 06:
I believe in, you know, in news and in fun for animals.

[01:39:54] Speaker 06:
This is this court has said that, you know,

[01:39:57] Speaker 06:
We may, it may not be braced you to caught up and you'd be severely hampered by adjudication.

[01:40:03] Speaker 06:
In this case, that would be at least, you know, heavily get heavy wage or be persuasive.

[01:40:07] Speaker 06:
Um, in another case, even if you were to, uh, vindicate your approach in another court, that's the fragmented approach to litigation that this court doesn't, it doesn't, um, doesn't sanction.

[01:40:18] Speaker 06:
And so it just makes all the sense in the world, or if MNJ nation is going to pursue these claims that the state be able to present its arguments in defense of those

[01:40:28] Speaker 07:
And is it a ground for denying intervention that you could still be made home in another piece of litigation?

[01:40:33] Speaker 07:
I actually don't know the answer.

[01:40:34] Speaker 06:
I believe the answer is no under this court's precedent, your honor, because again, it's not.

[01:40:38] Speaker 06:
I think that's what I'm just having news and fun for animals is two specific cases.

[01:40:42] Speaker 06:
But they say that the prospect of future litigation doesn't diminish your ability to intervene in the litigation that's that's here.

[01:40:49] Speaker 06:
And the reason for that, again, is the judicial economy, but also because

[01:40:53] Speaker 06:
So, you know, well respected judge in the in the in the district where here were issue ruling and another judge where to get it, you know, that judge obviously pay attention to what the what the first state party.

[01:41:07] Speaker 04:
There's the state is the state of North Dakota imposed severance taxes.

[01:41:16] Speaker 06:
Your Honor, I believe that

[01:41:18] Speaker 06:
I don't know the answer to that.

[01:41:20] Speaker 06:
I'm embarrassed that I don't.

[01:41:21] Speaker 06:
I believe that the state leases impose a royalty similar to what the federal leases do, and that is a basis for share of production rather than a tax.

[01:41:32] Speaker 06:
I may be wrong on that.

[01:41:34] Speaker 06:
I apologize.

[01:41:34] Speaker 06:
I don't know.

[01:41:35] Speaker 04:
Well, I'm just wondering if there's another loss involved here, that if the royalty takes into account what would otherwise be severance taxes, and then if the royalties are paid over to the tribe instead of to the state, that deprives the state of the royalties or of severance taxes

[01:41:59] Speaker 04:
And the Supreme Court and Cotton Petroleum held that the state of Utah, or New Mexico in that case, was perfectly entitled to tax mineral leases on Indian land.

[01:42:13] Speaker 04:
And I'm just wondering if that's another situation where the state suffers injury.

[01:42:20] Speaker 06:
Yes, your honor.

[01:42:21] Speaker 06:
We've alleged and argued in our briefs that the state has proprietary and financial interests, but also sovereign and property interests just by being the sovereign state of North Dakota.

[01:42:32] Speaker 06:
And so we agree, your honor, that the transformation of state land to the land held by somebody else is a diminishment of the state sovereign.

[01:42:44] Speaker 06:
rights.

[01:42:45] Speaker 00:
Mr. Aslan, did you have any insight different from what the nation told us about when these oil leases were granted?

[01:42:54] Speaker 06:
Um, yeah, your honor, I believe that some of them are quite old.

[01:43:00] Speaker 06:
I believe they may predate 2009 2010.

[01:43:03] Speaker 06:
I believe there is a an uptick around that time and that sort of coincides with the expansion of horizontal drilling

[01:43:11] Speaker 06:
Technology again, these lands were historical Missouri river bed.

[01:43:15] Speaker 06:
They're largely an undated now by lakes, I can go where the garrison damn.

[01:43:21] Speaker 06:
So, really those minerals is by drilling from upland locations and.

[01:43:28] Speaker 06:
producing them by a horizontal drilling.

[01:43:31] Speaker 00:
And you say some of them quite old, you mean going back before?

[01:43:34] Speaker 06:
Yeah, I believe so.

[01:43:35] Speaker 06:
I believe they go back.

[01:43:36] Speaker 00:
1980s?

[01:43:37] Speaker 06:
I think that's probably correct.

[01:43:38] Speaker 06:
I just don't have an accounting and I don't want to answer wrong on the record, but I do believe some of them.

[01:43:43] Speaker 07:
What was the state's basis for granting the leases if at that time the understanding was?

[01:43:48] Speaker 06:
That there are state lands.

[01:43:49] Speaker 06:
I mean, the state's position is that these have been lands that were granted when the state entered the union as part of the equal footing doctrine.

[01:43:57] Speaker 07:
So it was a, it's the, it was a state's position that was inconsistent with the United States' position at the time, but the state went ahead and granted the leases on the theory that the state is right.

[01:44:07] Speaker 07:
I'm not saying that was the wrong thing to do, but I'm just trying to understand.

[01:44:09] Speaker 06:
I believe that the federal position has been vacillating, Your Honor.

[01:44:13] Speaker 06:
Again, we just swivel with the, with the presentation and the intervention issue, but you know, about the background of the case, but the United States and federal agencies have taken different positions sometimes respecting the state's

[01:44:27] Speaker 06:
ownership, sometimes reflecting the MHA nation's ownership.

[01:44:31] Speaker 06:
The first comprehensive solicitor's opinion was in 2017, and that was replaced by the Tompkins opinion, replaced by the Georgiani opinion, replaced by the Andrews opinion.

[01:44:44] Speaker 06:
So we've had three opinions in just five years, but it took until 2017 to issue a comprehensive in one way or the other about it.

[01:44:53] Speaker 06:
So I don't think the state was flouting what the federal... You just thought it was ambiguous of me.

[01:44:58] Speaker 04:
In 1991, the Supreme Court decided United States versus Montana and clearly ruled against the United States claim of ownership of the riverbed and the Bighorn River.

[01:45:12] Speaker 04:
So I think from that point on, the state certainly had a justification for treating themselves as the owner of the riverbed.

[01:45:28] Speaker 07:
Thank you.

[01:45:29] Speaker 06:
Thank you.

[01:45:30] Speaker 07:
Thank you counsel.

[01:45:31] Speaker 07:
Thank you to all counsel.

[01:45:32] Speaker 07:
We'll take this case under submission.