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Case number 24-5011, Michael Hill, President et al.

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at balance versus United States Department of the Interior et al.

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Ms.

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Seilstad for the balance, Ms.

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Sprague for the appellees.

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Good morning, counsel.

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Is it Seilstad?

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Seilstad, yes.

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Thank you.

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Good morning, Your Honors.

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My name is Andrea Silestead.

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I represent the appellants, Michael Hill, who is present in the courtroom today, the Apsolica Allotes Alliance, and other named individual allotment landowners who are also members of the Crow Tribe.

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I would like to reserve four minutes for rebuttal.

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The appellants are challenging the Department of Interior's failed implementation of a compact approved by the State of Montana, the Crow Tribe, and the United States

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that sought to resolve litigation between the three governmental entities.

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The individual Alatis were not parties to the Compact, but are affected deeply by its terms and its implementation.

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Under the terms of the Compact, the United States agreed to waive the Alatis Winter's Doctrine water rights and place them within a collective tribal water right.

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Under the Acts, sections 410,

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B and E of the Settlement Act, the waivers were to take effect and the terms of the Compact become enforceable upon the Secretary of Interior's publication of a statement of findings.

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That took place on June 22, 2016.

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Ms.

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Lustig, could you, one of the things I wasn't sure going through the briefing and the record is why the winter's rights of these allotes are more valuable

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than the rights that are afforded under the act.

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Given that winter's rights would have to be adjudicated and, you know, in a lengthy process, the act seems to protect, you know, to give people the same rights that they have or greater.

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So if you could just explain that to me.

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I mean, obviously there's some sense in which these winter's rights are understood to be more valuable.

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Yes.

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Well, I mean, going to the definition of the winter's rights, they are,

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a paramount right that goes back in priority to the date of the reservation's creation under the treaty, which is May 7th, 1868, which is critically important in times of shortage.

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There's other rights that go along with it in terms of rights.

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They can be expanded.

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They can't be forfeited due to lack of use or abandonment as can equivalent state law rights and the like.

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So there's many different

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parameters that come along with that.

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The problem with the... And those parameters do not come along with the... Correct, correct.

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So under the terms of the compact and put into place with the legislation, the water is placed, taken, waived by the United States government who represented the Alatis without their participation or consent.

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The United States agreed to sign waivers of the individual Alatis-Winters Doctrine water rights

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which would be triggered upon that enforceability date.

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And then the water of the Alatis went into this collective amount of water that also was shared by the tribe and by other Alatis.

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And the way of accessing it, this is also critically important in terms of the impacts, the way of accessing that under the terms of the Compact and the Act was to apply for a permit

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which is a defeasible permit, which could be taken away or even argued about as to whether they were going to get this defeasible permit.

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And most significantly, which underlines our claims also, the permit was to be obtained through details of a tribal water code, which would set out the parameters for application, qualifications, and the like.

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and also a dispute resolution mechanism if it was denied.

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And that tribal water code to date has yet been approved by the secretary.

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So there's really no way for them to get their water rights.

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But even if there was a perfect implementation by Department of Interior, there's still an extinguishment of the actual right, followed by the possibility of applying for a permit.

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There are some other details in the, it's very complicated and this will be one of the things, but there's some other details.

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Thank you.

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This is, I mean, we are decade plus past the contact and approaching a decade since the statement of findings, something must be done to be allocating water rights in the meantime.

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I mean, the secretary is supposed to do that until there's a water code, right?

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So folks are getting water rights and have been getting water rights.

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Well, factually, and this would be something I wanted to emphasize that we're at the pleading stage and the case has been dismissed.

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So not all of these facts have been developed and we would suggest that the district court aired in that and we should be remanding it to develop the factual record.

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But the the through the Montana Water Court adjudication, the state water right holders effectively have their water rights, their claims submitted and adjudicated.

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several thousand of them with a precise amount of water that can be obtained and distributed.

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The tribal water users, it's not correct.

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We understand factually that they are able to get all their water.

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I mean, if somebody had water that happened to be flowing across their allotment, they might be able to get it.

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But if they needed it to be brought to them through the

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irrigation system or other means, it's quite likely that they wouldn't be able to do it.

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And furthermore, in the course of the Montana Water Court adjudications, which are one of the things that the Department of Interior was supposed to ensure happened before it published a statement of findings, there was never a point where the individual Allati's water right was submitted

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according to the detail that was supposed to be provided to give an individual recognition of it.

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The current use list was never prepared.

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So the non-Indian state law water rights holders have defined rights that were adjudicated.

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And the pro allotes do not have those equivalent rights defined.

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So many of them are not able to actually get the water.

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And they're not even able to figure out how they would go about applying for it.

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And so they are only able to get it if something was already flowing upon their land that was already working.

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Ms.

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Salstein, can I ask you about, so one of your arguments is that the tribal chairman did not have the authority to extend the deadline for the statement of findings.

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Yes.

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And so I've looked at the Crow Constitution and the other sources of law that have been cited, and it seems that the tribal chairman under the Constitution has all the sort of,

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authorities we would associate with an executive.

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The tribal chairman can implement the law, can negotiate with other governments.

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And so I'm wondering why those constitutional authorities don't include something as sort of ministerial as this, agreeing to moving the deadline.

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I'm wondering if there are any other sources of law

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that you can cite to.

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I mean, of course, I'm not an expert in the law of, you know, the Crow tribe.

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But I'm wondering if there are any other sources of law that you would point to that would limit the tribal chairman's authority?

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Well, I might push back a little bit on the idea that the extension was simply ministerial.

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But I do see your point that there has to be an ability for a tribe or any entity

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to kind of take some kinds of executive actions to take care of things.

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The question is which things are important to involve the larger decision-making authority of the sovereign entity and which things are purely ministerial.

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In this case, the extension, because the deadline was so significant of a triggering point.

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And by then, as I think you have pointed out, lots of years had passed since even to the point of June 22nd, 2016,

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Many things were not in place by then.

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The current use list had not been created.

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The water hadn't been quantified with respect to that doesn't go to the authority of the chairman.

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OK, well OK, so going specifically to the authority, I would say we cited in the brief to the federal authority that requires interior to know and to defer to the authority of the tribe.

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Part of that is to approve the to know and to

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the constitutions of the tribe.

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The secretary of interior actually approved and reviewed the constitution of the Crow tribe.

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If you look at, I mean, that's really the constitution of the Crow tribe would be the primary starting point.

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So reading that just from the way I understand, you know, constitutional authorities and executive power, it would seem that the tribal chairman has this authority.

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Well, the tribal, well, first of all, it's the exec, the tribal chairman himself has limited

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much more limited authority.

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The part about negotiating for things like mineral rights or water or things like that is delegated to the executive branch to be involved in the negotiation.

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That part is true.

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There's four government officials that comprise the executive branch.

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We didn't emphasize that point in the briefs, but that's another point that

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It's not just the tribal chairman that's making the executive decisions.

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It's a group of four other people.

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And in this case, there was only one that came forward.

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The second part is if you look at the authority of the legislative council in that same document, it's quite clearly laid out as needing to approve the negotiations of the executive branch, which in issues of this nature,

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And then the third goes to the ratification by the general council.

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Many tribes do have a more consensus-based form of governance that akin to referendums, but the whole community comes together of matters of importance.

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And this tribe found the issue of the water compact and the water rights to be of paramount importance.

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So the other documents that show that and really help interpret

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the Constitution itself are some of the documents that we submitted for that the tribal legislature passed, either by resolution or by- Resolution, I mean, from what I can tell, you know, looking online and how tribal resolutions are treated under the Crow Constitution, I mean, they're basically just like a, like what we would think of as like a sense of the Congress, they're not binding legal commitments.

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Are resolutions binding law under the pro-constitution?

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Well, the interesting thing, the resolution you're talking about, that 1207 from May 24th, 2012, protesting an earlier decision by the chairman.

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The thing that's significant about that is it summarizes, it's an interpretation really, and a good detailed summary of the law of the tribe.

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The law, is it?

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I mean, a resolution is not like a statute or binding on anybody.

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Is there, is it, it's not the law and the same thing as a constitution or like the election code, something like that.

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Like the ratification vote procedure is modifying the election code.

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So that is at a level of a

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a law or an amendment to a law.

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The resolution is different.

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That's true.

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But the thing that's significant is it's telling, it's putting the case.

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So what informs Department of Interior about what any tribe's laws are?

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They have to figure it out and look at the tribal governing documents that are there.

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I mean, with all due respect, I think that the Constitution is quite clear on this point.

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But if it wasn't clear, they were

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The resolution reminds Interior, no, this is serious.

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You have to pay attention to these things.

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The tribal chairman does not have these, this authority.

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So in case there was any doubt, it puts them on notice of the importance of following these, these provisions of the tribal constitution.

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And in the last sentence, one of the sentences, the Crow Tribe Legislature further gives notice that absolutely no waivers or releases of Crow Tribal rights and claims shall be considered until unless proposed settlement terms are fully reviewed and deliberated by the Crow Legislature and the Crow Tribal General Council.

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So it is an interpretive issue.

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It does probably, I'm not sure that it needs to be resolved at the level of appeal, like exactly which

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Branch had the proper governing authority, but I think there's significant.

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The allegation in the complaint, which is what we go by, is that the tribal chairman lacked authority.

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As one person to do that, that the tribe had been trying to through its legislature and its exercise of its resolution power to bring this to the attention of interior.

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Also, if you look at the the Settlement Act itself,

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Quite clear it needed a full referendum vote to start the whole process going.

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It had to be certified.

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A better interpretation is that when there was going to be a change that that was also significant that the United States needed to look to the tribal governing processes.

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So.

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Going to just a word about the pleading standards, because that's also that's like the fundamental issue.

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There's lots of things alleged.

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There was a very detailed complaint that was submitted.

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The notice pleading standard is what we go by.

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The things I would point out would be that we look at the factual allegations.

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We don't have to match each fact to each element of the legal claim.

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And we have established

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through a very detailed complaint, the provisions for claims under the Administrative Procedure Act, as well as for breach of trust and the three different constitutional claims.

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So I understand that had there not been an agreement to an extension, so if there had been no extension, and then its statement of findings were not filed, the statute says then,

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The statute goes away and I guess the compact would necessarily go away too, because it wouldn't be ratified by the United States.

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What is your authority that if an extension were, as I assume for purposes of this question, mistakenly granted, but there was an extension agreement by the chairman and the government went forward and filed the findings on the extended date consistent with the statute.

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What is the best authority that, because it was mistaken, we go back and the same consequence happens, that is that the statute ceases to exist, the compact ceases to exist, as opposed to good faith mistake, but the statement of findings are there.

[00:16:13] Speaker 05:
The trigger point is there.

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gone into motion.

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This is a legal question that we... I think the best authority for what happens in the event you don't reach the ending or you made a mistake in the approval process of an extension is in the act itself.

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The act itself... Well, first of all, if you look at the legislative history of the act... Tell me where the act itself says what to do.

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Well, the main thing is the act provides exit ramps

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The act wanted these things to be done in order for the Alatis to get the best recognition of their water rights and put it on Interior to do these series of steps.

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And it recognized

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that there are a few things that were essential to be done.

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And then if they couldn't be done.

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It said what those seven things were and there's no dispute that those were done and that those were done at the time the statement prior to and so completed by the time the statement of findings of fact were done.

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So the things that Congress wanted done were done.

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They were done by the time the statement of findings of fact was filed.

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And so, where is there indication that not even so, because the extension was perhaps mistakenly agreed to, as your argument, let's assume it's true for these purposes, was mistakenly agreed to by the chairman, that now, after the fact, everything falls apart?

[00:17:47] Speaker 03:
Well, those seven steps,

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plus the development of the tribal water code, we would posit.

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Congress did not say we do not want the statement of findings filed until there's a water code.

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It just didn't say that in the statute.

[00:18:01] Speaker 03:
Well, it did say that the water code had to be completed within three years of the act.

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It did.

[00:18:06] Speaker 05:
But those are separate legal claims when someone is untimely in their actions under a statute.

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They don't make the whole statutory scheme evaporate the way Congress said would happen if the findings weren't filed.

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abstinent extension okay two things about the seven steps the the seven steps the water court adjudication was completed by the montana water court we we alleged and we would we would emphasize that the rights of the individual croatis were not right adjudicated so that wasn't completed actually with respect to.

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The crow individual water rights with respect to your question about well let's say everything was done perfectly I still push back on the tribal water code and whether that needs to be completed by that time frame.

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But let's pause it as you suggested that everything was completed and the only thing wrong was this three month extension and how that came about.

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The timing, I guess I refer you to that section 415 that talks about the automatic repeal.

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This statute wasn't so written in stone that it's just gonna go forward come hell or high water.

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a number of things that had to go into place to make it work.

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Some of them were the funding issues about the projects, and some of them were about the identification, the quantification of these water rights.

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And there was a period of time, a rather extensive period of time in which these things could be done.

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And in the statute, there's three places that allow for kind of like we called it a fail safe provision or an exit ramp if they weren't done.

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Some of it had to do with the financing for the

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Water Act, which there's no guarantee of what's going to happen with that.

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But with respect to the funds were made available as promised.

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At the time, the statement findings was made.

[00:20:10] Speaker 03:
Yes, but not all of the funds have been appropriated yet.

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They have that 20.

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There's that 2030 date that is in this the act that would.

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Would be another triggering point for nullifying the terms of the act and the waivers as well.

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When you look at the legislative history that was presented to Congress, from the administration, there was high concern about the ability to quantify all those water rights and do all the steps that needed to be done to protect the water rights.

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Actually, the Department of Interior

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officials weighed in on that and actually asked that Congress delay the passing of the Act.

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Well, Congress didn't delay it.

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They put the burdens on Interior and then they did put these

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exit ramps in the statute.

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So 415 is one of them.

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So it's pretty clear Congress wanted things to be done correctly and they needed to be done correctly.

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Otherwise we end up where we are now with with an act where as we've alleged even with our equal protection claims, state water users have their rights happily

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adjudicated and can do what they want with them.

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They can sell their land knowing what they are.

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And tribal members can't, who are allotment owners can't do that.

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That's certainly not what Congress wanted.

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That's certainly not even what the Department of Interior wanted leading into it.

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And the solution for Congress is to provide that automatic repeal if things couldn't be done.

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And so if we posit that that is, that the

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statement of findings should be set aside under the Administrative Procedure Act and then the automatic repeal would be in place.

[00:21:51] Speaker 05:
My colleagues have any questions?

[00:21:53] Speaker 05:
Yeah.

[00:21:53] Speaker 05:
Thank you very much, Council.

[00:21:54] Speaker 05:
We'll give you a couple of minutes to rebuttal.

[00:22:05] Speaker 06:
May I please the court?

[00:22:06] Speaker 06:
I'm Mary Gabrielle Sprague representing the Department of the Interior.

[00:22:11] Speaker 06:
The allottees allege failures of implementation.

[00:22:19] Speaker 06:
If those are correct, they may well have claims to address those specific failures of implementation.

[00:22:28] Speaker 06:
But that is not what this lawsuit is about.

[00:22:31] Speaker 06:
This is not what their claims target.

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The linchpin is trying to leverage the statement of findings to invalidate

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the entire statute.

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They believe Congress made a bad deal.

[00:22:46] Speaker 06:
They wanted a different deal.

[00:22:48] Speaker 06:
But the Section 415, which calls for automatic repeal, simply does not go into effect in this situation because, as Judge pointed out, all seven of those tasks have been completed.

[00:23:07] Speaker 06:
You talk about this extension decision instead of ministerial, and that's often how... The publication of the statement of findings was ministerial.

[00:23:20] Speaker 06:
The extension agreement, Your Honor, we think is entitled to an abuse of discretion standard, but it did require discretion in deciding whether to enter into it.

[00:23:34] Speaker 06:
And our position on that is there has been no abuse of discretion.

[00:23:41] Speaker 05:
It hinged on this extension.

[00:23:44] Speaker 05:
I'm not sure whose discretion abuses.

[00:23:45] Speaker 05:
I don't even know what your abuse of discretion argument is as to agreeing to the extension.

[00:23:51] Speaker 05:
Your decision, the secretary's decision?

[00:23:53] Speaker 06:
The secretary's decision.

[00:23:55] Speaker 06:
I mean, it's the secretary's.

[00:23:58] Speaker 05:
The statute says you got to have the agreement of the tribe.

[00:24:00] Speaker 06:
Correct.

[00:24:01] Speaker 06:
Full stop.

[00:24:02] Speaker 05:
You have to have the agreement of the tribe.

[00:24:03] Speaker 05:
Right.

[00:24:03] Speaker 06:
And it does not define who the tribe is in this circumstance.

[00:24:10] Speaker 06:
The Settlement Act requires... So the Secretariat has to act reasonably.

[00:24:14] Speaker 05:
Correct.

[00:24:15] Speaker 05:
Okay.

[00:24:15] Speaker 05:
Well, that's not an abusive expression standard.

[00:24:17] Speaker 05:
That's a reasonableness standard.

[00:24:18] Speaker 05:
But I want to get back to, even if the ultimate finding itself, filing of the statement of findings was ministerial, when it would be filed was hinged upon

[00:24:28] Speaker 05:
this agreement to an extension, and it seems to me the argument about who could make this decision to extend the time, ordinarily it seems like something that's administrative, but in this case, the type of thing that an executive could do.

[00:24:47] Speaker 05:
when I say administrative.

[00:24:48] Speaker 05:
But in this case, the decision whether to extend the time to agree to an extension of time or not was really a decision whether to go forward with this compact or let it die on the vine.

[00:25:01] Speaker 05:
Because if they didn't agree to the extension, that's it.

[00:25:04] Speaker 05:
The settlement act's gone.

[00:25:05] Speaker 05:
The agreement's gone.

[00:25:07] Speaker 05:
That's a very substantive decision about whether to go forward with the agreement or not, which seems to be something that the Constitution puts squarely in the legislative branch.

[00:25:16] Speaker 06:
Yeah, Your Honor, we disagree with that.

[00:25:18] Speaker 06:
I mean, the reason, it's not even clear that an extension was required.

[00:25:23] Speaker 05:
out of an abundance of caution, the chair extended upon agreement by the tribe to a later date and you filed at the later date.

[00:25:33] Speaker 05:
So you had to have the tribe's agreement.

[00:25:35] Speaker 06:
The uncertainty was that the LRTs had challenged the judgment of the Montana Water Court.

[00:25:44] Speaker 06:
It was affirmed in the Montana Supreme Court in July of 2015.

[00:25:49] Speaker 06:
They then petitioned for certiorari

[00:25:52] Speaker 06:
in the United States.

[00:25:54] Speaker 00:
Right.

[00:25:54] Speaker 06:
And that petition was pending as of March 31st, 2016.

[00:26:01] Speaker 06:
So as they were approaching that deadline, there was a concern that the pending of the petition challenging the Montana Water Court judgment could mean that the judgment was not final, which is the first task that they needed to complete.

[00:26:16] Speaker 06:
So the chair and the secretary decided.

[00:26:20] Speaker 05:
If the secretary does not publish a statement of findings no later than March 31, 2016.

[00:26:26] Speaker 05:
or extended, so it could be extended, but extension, if you needed to go after that, whatever the reason, I'm not saying you had a bad reason, whatever the reason, you had to go forward to a later date for extension.

[00:26:39] Speaker 05:
It had to be agreed to by the tribe and the secretary.

[00:26:42] Speaker 05:
Correct.

[00:26:42] Speaker 05:
Secretary agreed, obviously, for the extension.

[00:26:45] Speaker 05:
Right.

[00:26:45] Speaker 05:
And then- The tribe had to agree.

[00:26:46] Speaker 05:
Now, the question is whether there was a reasonable belief that the chairman could agree to that.

[00:26:51] Speaker 05:
Yes, and- I'm going to finish my sentence, please.

[00:26:53] Speaker ?:
Sorry.

[00:26:54] Speaker 05:
All right, and if you look at it as well, it's just an extension of time, we all like that, it seems like something within the executive branch.

[00:27:01] Speaker 05:
But if you look at this statute, which attaches extraordinary consequences to the agreement to agree to an extension or not, that is, it is an off ramp from the whole agreement.

[00:27:16] Speaker 05:
Will we have the agreement or not?

[00:27:20] Speaker 05:
Will we have the agreement or not?

[00:27:21] Speaker 05:
Will we continue with this agreement

[00:27:24] Speaker 05:
or not because it's not working for us.

[00:27:26] Speaker 05:
That's a decision that the council or legislature had to make and it's not an executive decision.

[00:27:35] Speaker 05:
So this statute attaches such significance to this agreement to an extension.

[00:27:40] Speaker 05:
then how could the secretary recently think that the chair alone could decide that when it really is a judgment about whether we still want to have this agreement or not?

[00:27:49] Speaker 06:
Because, Your Honor, the Settlement Act provides for a general counsel vote only for the initial ratification of the compact, which happened in 2011.

[00:27:59] Speaker 06:
As of then, the tribe, as the full tribe, had voted to support this settlement.

[00:28:05] Speaker 05:
I understand that, but now the question is whether, as a matter of tribal law, not the Settlement Act,

[00:28:11] Speaker 05:
Who has the authority to decide whether to extend the time period?

[00:28:17] Speaker 05:
And if extending the time period is actually a judgment about, do we want to go forward with this compact, given where we are in 2016?

[00:28:26] Speaker 05:
That would be a legislative decision, not an executive one.

[00:28:30] Speaker 06:
Your honor, I think, I mean, I believe it's an executive.

[00:28:34] Speaker 06:
It was reasonable to conclude it was an executive branch.

[00:28:38] Speaker 06:
decision here, because the Constitution does afford to the tribal chairman the ordinary scope of executive duties.

[00:28:47] Speaker 05:
And here... This is ordinary.

[00:28:49] Speaker 05:
This is essentially the extension judge... It's difficult because we don't think of extensions as having these types of consequences.

[00:28:57] Speaker 05:
But if you think of the extension judgment as, do we want to go forward with this compact or not?

[00:29:04] Speaker 05:
Right.

[00:29:05] Speaker 05:
And we want to unsign or stick with it.

[00:29:09] Speaker 05:
But there was no indication legislative judgment.

[00:29:11] Speaker 06:
There was no indication from the legislature or the general counsel as a whole that they wanted to repudiate the settlement.

[00:29:19] Speaker 04:
There was a didn't ask them.

[00:29:22] Speaker 04:
That's why they were your honor.

[00:29:23] Speaker 06:
The general counsel gets to weigh in under the Constitution meets biannually.

[00:29:28] Speaker 06:
You can trigger the extraordinary procedures for initiative or referendum.

[00:29:33] Speaker 06:
those procedures take time.

[00:29:35] Speaker 06:
There was not even any thought that there was a need for an extension until the allottees filed their petition for Sir Sherrari.

[00:29:43] Speaker 05:
The legislative grants each is- What date did they file their petition?

[00:29:47] Speaker 06:
December, in December 2015.

[00:29:48] Speaker 05:
Okay, so you have seven months.

[00:29:50] Speaker 06:
Or five months, I guess.

[00:29:51] Speaker 06:
Three.

[00:29:52] Speaker 06:
I mean, I mean, March 31 was the deadline.

[00:29:55] Speaker 05:
OK, so yeah, you're right.

[00:29:56] Speaker 05:
Sorry.

[00:29:57] Speaker 06:
So the the undertaking of trying to just as a practical matter, apprise the didn't ordinarily meet between December and March.

[00:30:06] Speaker 06:
You said the general council typically meets twice every two years.

[00:30:11] Speaker 06:
The legislature meets quarterly under Article four, I believe.

[00:30:18] Speaker 06:
The second week in January, April.

[00:30:21] Speaker 05:
There was a meeting in January.

[00:30:24] Speaker 06:
You're right.

[00:30:24] Speaker 06:
And it was not presented to them at that meeting.

[00:30:28] Speaker 05:
I would point out that it was... I'm sorry.

[00:30:34] Speaker 05:
You started with, oh, we couldn't get feedback from them.

[00:30:37] Speaker 05:
But of course, they met in January.

[00:30:39] Speaker 05:
And we knew the cert petition would be filed by then.

[00:30:42] Speaker 05:
And the federal government's fully aware of the life cycle of a cert petition and how long it takes.

[00:30:47] Speaker 05:
And it presumably knew how long it would take for the US to respond to that cert petition.

[00:30:51] Speaker 05:
And so you had an opportunity to go to the legislative branch

[00:30:56] Speaker 05:
If we look at this extension decision as a, we want, we continue to agree or not with this compact, we look at it as a substantive decision, which seems to imbue it with.

[00:31:07] Speaker 06:
There was no reason to believe that the tribe as a whole wanted to repudiate the settlement.

[00:31:13] Speaker 05:
It's not anticipating what their answer is.

[00:31:15] Speaker 05:
The question is, who do you ask for the extension?

[00:31:18] Speaker 05:
And you have the opportunity to ask the legislature.

[00:31:21] Speaker 05:
And the nature of this very unusual extension decision is so substantive.

[00:31:28] Speaker 05:
and goes to the merits, the heart of whether they wish to go forward with this agreement.

[00:31:32] Speaker 05:
Right.

[00:31:32] Speaker 05:
And you didn't ask.

[00:31:33] Speaker 06:
And since then, there has been no indication that the tribe had a problem with the extension.

[00:31:39] Speaker 05:
They have met repeatedly afterwards.

[00:31:41] Speaker 05:
My question is, who decides about the extension?

[00:31:44] Speaker 05:
They might have said yes.

[00:31:45] Speaker 05:
My question is not asking you guess what the legislature would have said if you'd asked them.

[00:31:50] Speaker 05:
My question is, who gets to decide

[00:31:53] Speaker 05:
to agree to the extension or not, whether it's an executive judgment, just implementing a law, or whether it's a decision about what the law governing us is going to be.

[00:32:06] Speaker 05:
And given that Congress put this exploding

[00:32:12] Speaker 05:
provision into the Settlement Act, it was very much a decision about whether we're going to go forward with this agreement or not, given the state of things.

[00:32:23] Speaker 05:
And so you could have asked the legislature.

[00:32:25] Speaker 05:
You didn't.

[00:32:26] Speaker 05:
You asked the wrong person.

[00:32:30] Speaker 06:
It was reasonable, Your Honor, for the secretary to enter into this agreement with the tribal chairman.

[00:32:35] Speaker 05:
What was reasonable about that?

[00:32:37] Speaker 05:
given the nature of what the decision was.

[00:32:39] Speaker 06:
Because there is reason to believe in the Constitution and the way the executive branch operates in the Crow tribe as it, with the ordinary executive functions, that that was a reasonable procedure to enter into that agreement.

[00:32:56] Speaker 05:
You're saying it's reasonable, but if it's not viewed as all at all as just implementing a law, but deciding what the law will be,

[00:33:04] Speaker 05:
which is not the chair's decision, then it's not reasonable.

[00:33:07] Speaker 06:
But your honor, taking the flip side of it, if they couldn't, I mean, you assume that it all could have been presented to the legislature.

[00:33:14] Speaker 06:
I don't know whether it could have been by the second week in.

[00:33:17] Speaker 05:
I don't have the burden of showing reasonableness here, you do.

[00:33:20] Speaker 05:
All right.

[00:33:21] Speaker 05:
And you've made no argument whatsoever in the briefs that it was unreasonable to do so, given that the legislature met in January.

[00:33:30] Speaker 05:
You've given no, you can make stuff up now, but there's nothing in the record that shows that this was a reasonable judgment not to take this question to the legislature.

[00:33:39] Speaker 06:
Right.

[00:33:40] Speaker 06:
And your honor, the only point that a lot tease rely on is the resolution

[00:33:47] Speaker 06:
in 2012, which was a protest which did not even rescind the waivers that had been signed in 2012, and did not say that the other agreements under the Settlement Act.

[00:34:03] Speaker 05:
And I'm telling you, when I look at the settlement agreement, this exploding device in the middle of the statute makes the extension agreement very different than a normal agreement.

[00:34:14] Speaker 06:
That was intended to hold everyone's feet to the fire, but there is no indication.

[00:34:19] Speaker 05:
If they don't comply with the timelines, the tribe can get out of it.

[00:34:24] Speaker 05:
The tribe can say, we don't want to go forward.

[00:34:26] Speaker 05:
if you don't meet the timelines for the very reasons that have been argued to us today.

[00:34:30] Speaker 06:
But the tribes, the acts, the tasks that were the tribes' responsibility, they did complete.

[00:34:35] Speaker 06:
It was on track.

[00:34:36] Speaker 06:
And the tribe that had voted altogether in 2011, there was no indication that they did not want the settlement to go

[00:34:45] Speaker 06:
They did not want the settlement to disappear.

[00:34:47] Speaker 06:
They wanted to proceed with the settlement.

[00:34:49] Speaker 02:
Again, I mean, I'm not sure why you've shifted to focusing on whether it was reasonable here, because isn't it a question of law whether the tribal chairman has this authority?

[00:35:01] Speaker 02:
So I'm not sure where the reasonableness.

[00:35:04] Speaker 02:
So like, you know, you're saying it's reasonable for the secretary to think that the tribal chairman had the authority, right?

[00:35:10] Speaker 02:
But isn't this just a

[00:35:11] Speaker 02:
pure question of law under the Crow Constitution and other Crow laws, whether he had that authority.

[00:35:18] Speaker 02:
I'm not sure where the reasonable is.

[00:35:19] Speaker 06:
The secretary has the duty to maintain a government to government relationship with 574 tribes, which have very different governance structures.

[00:35:30] Speaker 06:
And it's the policy of the United States, the tribal self-determination policy to abide by tribal law wherever possible, but federal law,

[00:35:42] Speaker 06:
controls and federal law, it's a policy of federal law to defer to tribal law.

[00:35:49] Speaker 06:
And in this case, the secretary reasonably, so it is a reasonableness standard in determining whether to follow tribal law, how to follow tribal law.

[00:36:00] Speaker 06:
Her primary duty was to implement the Settlement Act

[00:36:04] Speaker 06:
that Congress had passed with the approval of the tribe and to keep that in effect by agreeing to a modest extension.

[00:36:16] Speaker 06:
In that case, the record doesn't reveal the background story of who talked to who about precisely how to get this done.

[00:36:26] Speaker 06:
But the tribal chairman, it was reasonable for her to accept his representation that he had authority based on the Crow Constitution, and we cite various provisions.

[00:36:40] Speaker 06:
Your Honor reviewed the Constitution.

[00:36:42] Speaker 06:
for a short-term extension.

[00:36:45] Speaker 06:
If the legislature disagreed, if the general counsel disagreed, they could weigh in later.

[00:36:50] Speaker 06:
The tribal court could have disagreed if somebody timely had brought it to their attention.

[00:36:56] Speaker 06:
But the alternative was because of a possible delay caused by a cert petition that the Settlement Act that everyone had worked for

[00:37:10] Speaker 06:
decades would simply disappear, there's no indication that the settlement act should be interpreted to provide that result.

[00:37:21] Speaker 06:
And if there were clear tribal law, then there would be a better argument, but there's not clear

[00:37:28] Speaker 06:
tribal law.

[00:37:29] Speaker 06:
The secretary all the time in acting for tribes.

[00:37:35] Speaker 05:
That's why cases have adopted it.

[00:37:37] Speaker 05:
You don't have to get it right.

[00:37:38] Speaker 05:
You have to make a reasonable determination because you can't always get it right.

[00:37:41] Speaker 05:
And the decision was reasonable.

[00:37:43] Speaker 05:
We maintain.

[00:37:44] Speaker 05:
Do my colleagues have any more questions?

[00:37:47] Speaker 05:
No.

[00:37:47] Speaker 05:
Okay.

[00:37:47] Speaker 05:
We're going to finish your sentence and wrap up.

[00:37:49] Speaker 06:
Um, your honor, we believe that the district court carefully reviewed the complaint, carefully reviewed the opposition to the motion to dismiss that the thrust of the claims are that the a la tease do not like the settlement.

[00:38:07] Speaker 06:
They wish there had been a different settlement.

[00:38:10] Speaker 06:
They maintain there were implementation failures.

[00:38:12] Speaker 06:
There are remedies that they likely could obtain to

[00:38:17] Speaker 06:
redress any of those implementation failures, but that they have not made out a claim that would result in the invalidation of the Settlement Act, and we ask that you affirm.

[00:38:29] Speaker 04:
Thank you.

[00:38:33] Speaker 05:
Ms.

[00:38:34] Speaker 05:
Eleted will give you two minutes.

[00:38:38] Speaker 03:
Thank you, Your Honors.

[00:38:41] Speaker 03:
Obviously, you've honed in on the key issue.

[00:38:43] Speaker 03:
One of the key issues in terms of the expiration of the

[00:38:47] Speaker 03:
deadline.

[00:38:49] Speaker 03:
And we agree that it is a legal, a hard and fast legal requirement of the act that if the publication can't be made by that March 31, 2016, the act is automatically repealed.

[00:39:04] Speaker 03:
About the issues of the approval and the engagement of the legislature or the general counsel, there's evidence and maybe the

[00:39:14] Speaker 03:
The resolution is best put in this light.

[00:39:16] Speaker 03:
Also the legislature was highly engaged in this and didn't like the way things were unfolded as demonstrated by that resolution.

[00:39:27] Speaker 03:
So they were highly engaged in this and inserting themselves in the process.

[00:39:30] Speaker 03:
Also with respect to the ratification, another- They didn't do anything in 2016.

[00:39:34] Speaker 03:
Pardon?

[00:39:35] Speaker 05:
They didn't do anything in 2016.

[00:39:38] Speaker 03:
They didn't do anything in 2016.

[00:39:39] Speaker 05:
The legislature didn't do anything in response to the extension agreement in 2016.

[00:39:43] Speaker 05:
They met in January.

[00:39:44] Speaker 05:
I assume they met again sometime between April, May, June.

[00:39:48] Speaker 05:
So they had another opportunity after the extension agreement to react to the chairman's decision to extend time, but didn't do anything.

[00:39:57] Speaker 03:
That may be correct.

[00:39:58] Speaker 03:
There's another point to emphasize here, however, that to the extent we're not clear about different aspects of the tribal legislative process and when they meet, because not all of this

[00:40:08] Speaker 03:
is clear the government is mentioning times of the year that they meet.

[00:40:12] Speaker 03:
but there's also evidence that we've submitted and alleged that when it came to the water compact, they did things in a different order and they put things forward in an emergency basis in other contexts.

[00:40:24] Speaker 05:
So given- What do we take from the fact that the legislature would have proceeded to normally or in an emergency basis to respond to the extension decision by the chairman in 2016 and didn't?

[00:40:35] Speaker 03:
Well, I would suggest that on that point, it's a different point, not within the scope of our claims.

[00:40:42] Speaker 03:
That to the extent that that would be important.

[00:40:44] Speaker 03:
It's another reason for the case to be remanded for further factual development, but based on what has been alleged.

[00:40:50] Speaker 03:
I think I think it's been clearly alleged and that's what we have to go by is the factual basis that is alleged that the tribal chairman didn't have that unilateral authority.

[00:41:02] Speaker 02:
Yes, question.

[00:41:04] Speaker 02:
Did did the all at ease go to the tribal courts to get a ruling about the tribal chairman's authority?

[00:41:14] Speaker 02:
Because that would give us a well that clear answer as to I mean, did they did they avail themselves of the of the tribal courts to challenge the chairman's action?

[00:41:25] Speaker 03:
The Tribal Court wouldn't have been an arena that would have jurisdiction for this kind of a decision about the Interior's responsibility for implementing the compact.

[00:41:35] Speaker 02:
Well, it's not Interior's responsibility.

[00:41:37] Speaker 02:
I mean, it would be a challenge to the Tribal Chairman's authority, the same way someone would come to a federal court and say, you know, the President exceeded his authority under the Constitution.

[00:41:46] Speaker 03:
I don't know that we've identified that there would be a cause of action or a claim for relief to do that under the Constitution that isn't part of the case.

[00:41:54] Speaker 03:
If to the extent it was relevant again that's something that should be put forth below so that there could be further actual development of the case from from from what I don't think that is their burden to do that in order to.

[00:42:08] Speaker 03:
Grant the relief that's requested in.

[00:42:10] Speaker 03:
with respect to the compact and the secretary's responsibilities.

[00:42:14] Speaker 03:
One other thing I wanted to point out with respect to the timeline of doing things.

[00:42:19] Speaker 03:
The legislature obviously showed itself that it could react and it did react.

[00:42:24] Speaker 03:
The Tribes General Council, which we also suggest should have approved this, showed it also could react very quickly.

[00:42:33] Speaker 03:
You address the issue with the government about

[00:42:35] Speaker 03:
the timeframe and they had plenty of time to anticipate this deadline coming and know the hard and fast consequences of the deadline passing.

[00:42:46] Speaker 03:
And it took less than one month from the ratification procedures that they implemented for the vote of the full general council on the water compact.

[00:42:55] Speaker 03:
It took them less than a month to draft those procedures and pass them in the legislature.

[00:43:03] Speaker 03:
to the day of the vote for the initial referendum.

[00:43:06] Speaker 03:
So there's plenty of time.

[00:43:08] Speaker 03:
The tribe was very nimble, unlike maybe some other places, to move forward on this.

[00:43:13] Speaker 03:
So that shouldn't have been an impediment to the government.

[00:43:15] Speaker 03:
You're over your rebuttal.

[00:43:17] Speaker 05:
My colleagues don't have any further questions.

[00:43:20] Speaker 05:
Thank you very much to both counsel.

[00:43:21] Speaker 05:
The case is submitted.