[00:00:31] Speaker 01:
The next case is Paolo and Hon et al.

[00:00:45] Speaker 01:
v. the United States, 2015, 5028.

[00:00:48] Speaker 01:
Mr. Hill, when you are ready.

[00:01:13] Speaker 04:
May it please the court and counsel.

[00:01:20] Speaker 04:
The trial court in this case ended her decision below with the following language.

[00:01:29] Speaker 04:
The BLM has clearly decided to prioritize the recovery of Trona over the recovery of oil and gas in the MMTA.

[00:01:44] Speaker 04:
under the law, as we'll discuss today, this finding should have led to a determination in favor of the appellants who are the plaintiffs below.

[00:01:56] Speaker 04:
I'll break my argument today in two sections.

[00:02:02] Speaker 04:
The first section deals with breach of contract or the contract

[00:02:07] Speaker 04:
claims the repudiation, and the second part will deal with the taking aspect, which leads us to a discussion of rightness.

[00:02:18] Speaker 03:
Why didn't you just file an application for drilling with the BLM?

[00:02:22] Speaker 03:
I mean, you say you think it would be futile, but what would have been the harm in going through that exercise?

[00:02:28] Speaker 03:
Because that would have helped you a lot, both with respect to rightness and repudiation, would it not?

[00:02:33] Speaker 04:
Taking the case back in history, Your Honor,

[00:02:37] Speaker 04:
In 1992, that's exactly what led to the controversy.

[00:02:42] Speaker 04:
The industry at that time filed a unit application with the BLM and an APD was filed.

[00:02:52] Speaker 04:
That led to an uproar on the part of the Trona industry who came in to BLM.

[00:02:59] Speaker 04:
This is all reflected in the record, of course.

[00:03:03] Speaker 04:
The uproar by the Trona industry

[00:03:06] Speaker 04:
led BLM.

[00:03:07] Speaker 03:
Right, but that, when you say that the industry filed an application, you didn't file an application.

[00:03:12] Speaker 04:
Our predecessors did.

[00:03:14] Speaker 04:
And predecessors in interest.

[00:03:17] Speaker 04:
And so that led to the Joint Industry Committee, which BLM was a part of.

[00:03:24] Speaker 04:
My client attends no fewer than 45 meetings of that committee, which ultimately in the year 2000

[00:03:34] Speaker 04:
stated that they didn't think that concurrent oil and gas development should go forward.

[00:03:42] Speaker 04:
The BLM decides at that point, remember that the, and I'll take you one step back further in history, that the 1986 RMP indicated that there was no restriction on oil and gas drilling in the area, contained no restrictions that are pertinent.

[00:04:01] Speaker 01:
So in the year 2014, or 2004... Isn't your basic point that indefinite suspensions renewed and continued over a couple of decades basically amounts to a breach?

[00:04:14] Speaker 04:
Absolutely, Your Honor.

[00:04:16] Speaker 04:
I think that's clear from the Mobile Oil case, which was preceded by the Conoco case.

[00:04:22] Speaker 01:
Mobile dealt with a different statutory situation, didn't it?

[00:04:27] Speaker 04:
It did.

[00:04:28] Speaker 04:
It did.

[00:04:28] Speaker 04:
The Outer Banks Protection Act.

[00:04:31] Speaker 04:
And the government's argument in this case is that unless it is congressionally mandated, that the edict comes from Congress, that the case doesn't apply.

[00:04:42] Speaker 04:
I would say it does.

[00:04:43] Speaker 00:
But I take it that at least during the period of suspension, there have been some drilling permits that have been issued, right?

[00:04:50] Speaker 00:
The Soros permits?

[00:04:52] Speaker 04:
Soros permits preceded the

[00:04:55] Speaker 04:
final EIS by several years.

[00:04:57] Speaker 00:
Right, but there was a period of suspension.

[00:05:00] Speaker 00:
The suspension was on during that period, right?

[00:05:02] Speaker 00:
So there was nothing inconsistent between the suspension and actually granting the drilling permits, right?

[00:05:11] Speaker 04:
Nothing inconsistent.

[00:05:13] Speaker 04:
I would argue with that in the sense that the inconsistency comes through the final EIS.

[00:05:22] Speaker 04:
And the final EIS, which the trial court did not address,

[00:05:25] Speaker 04:
says that oil and gas drilling shall be prohibited until all terminal mining is completed.

[00:05:32] Speaker 04:
As you know very well, the BLM is statutorily required to go through the EIS process.

[00:05:39] Speaker 04:
That language can't be superfluous, can't be meaningless.

[00:05:42] Speaker 04:
They must mean what they say by that.

[00:05:44] Speaker 03:
What about the fact that the BLM said that it understood that it had to honor balance pre-existing rights?

[00:05:52] Speaker 04:
Your Honor, it was boilerplate language.

[00:05:55] Speaker 04:
that language, which I've just cited to you, Section 4.2.2.2, is the more specific application of the IS to this case.

[00:06:10] Speaker 04:
I'm sorry.

[00:06:11] Speaker 00:
I'm sorry.

[00:06:11] Speaker 04:
Go ahead.

[00:06:12] Speaker 04:
Well, they specifically addressed the issue through that language.

[00:06:18] Speaker 04:
The language that Judge O'Malley is talking about is generalized language.

[00:06:24] Speaker 04:
And as between the general and the specific, certainly the specific takes hold.

[00:06:29] Speaker 03:
But I guess you could have made it specific by applying, filing an application, having it be denied.

[00:06:36] Speaker 03:
And then you say, well, you're not honoring valid existing rights.

[00:06:42] Speaker 04:
Your Honor, we went through this process throughout.

[00:06:49] Speaker 04:
We understood what the statements were of the BLM.

[00:06:53] Speaker 04:
from 2004 on, which are highly, in a highly detailed way set forth in our briefing.

[00:07:01] Speaker 04:
We were participants in that process.

[00:07:03] Speaker 04:
BLM was saying, while we have not made a decision, it is our view that on gas should be prohibited.

[00:07:12] Speaker 04:
Then you have the 2008 final EIS, which firms that language.

[00:07:17] Speaker 04:
And so we're operating under that regimen.

[00:07:20] Speaker 04:
And that regimen says,

[00:07:22] Speaker 04:
no long guess is compatible with Trona area-wide.

[00:07:29] Speaker 04:
It's an area-wide determination.

[00:07:32] Speaker 04:
It's one that the BLM is bound to.

[00:07:35] Speaker 04:
to implement.

[00:07:37] Speaker 03:
Are all the leases that issue here, the 26, they're all in the MMPA, right?

[00:07:42] Speaker 03:
They are.

[00:07:43] Speaker 04:
I need to correct that, if you don't mind.

[00:07:49] Speaker 04:
Interestingly, at the time of trial, two leases, I'm indicating in the courtroom at trial,

[00:07:58] Speaker 04:
The BLM says, oops, two of those leases fall outside of the MMTA.

[00:08:05] Speaker 04:
We're pulling them out.

[00:08:07] Speaker 00:
Pulling them out?

[00:08:07] Speaker 00:
What do you mean by pulling them out?

[00:08:09] Speaker 04:
Well, drop the suspension.

[00:08:11] Speaker 00:
OK.

[00:08:12] Speaker 04:
So are you down to 24?

[00:08:14] Speaker 04:
Well, we contend we're still at 26, because the prohibition still applied through those years to the 26.

[00:08:22] Speaker 00:
Well, but truly, you could go back to them with respect to those two and say, OK,

[00:08:29] Speaker 00:
Well, honing up.

[00:08:31] Speaker 00:
You said you were taking it off the suspension.

[00:08:33] Speaker 00:
We want a drill.

[00:08:34] Speaker 00:
And then they give you a permit or they don't.

[00:08:36] Speaker 04:
Well, and as it worked out, the time left on those leases were so short that they expired.

[00:08:43] Speaker 00:
But they were suspended, so the time wasn't running during the period of suspension, right?

[00:08:48] Speaker 04:
No, but understand that when the suspension is lifted, you have only that amount of time that's left on the lease.

[00:08:55] Speaker 03:
So you're... I thought that wasn't true.

[00:08:59] Speaker 03:
I thought the suspension said that during the period of suspension, the leases can't expire.

[00:09:04] Speaker 03:
Are you saying that they can keep running?

[00:09:07] Speaker 03:
They just can't expire?

[00:09:09] Speaker 03:
I thought they were all held in the bay.

[00:09:11] Speaker 04:
That was my impression too.

[00:09:12] Speaker 04:
Right, right.

[00:09:13] Speaker 04:
Let me back up and try to make this a bit clearer, and I apologize if my discussion hasn't done that.

[00:09:21] Speaker 04:
Once the suspension is lifted,

[00:09:23] Speaker 04:
you are then left with the remaining primary term.

[00:09:28] Speaker 00:
So for example, if the suspension... So you go back to where you were in terms of time left at the moment that the suspension was implemented, right?

[00:09:36] Speaker 04:
Right.

[00:09:37] Speaker 04:
Right.

[00:09:37] Speaker 04:
And so those leases expire.

[00:09:39] Speaker 04:
That's the long short of it.

[00:09:42] Speaker 03:
So the... I'm so confused.

[00:09:45] Speaker 04:
Well, let me give you an example.

[00:09:46] Speaker 04:
Let's say that the suspension was implemented

[00:09:52] Speaker 04:
If it's a 10-year lease, it was implemented at the nine-year, six-month mark.

[00:09:59] Speaker 04:
Okay, when the suspension is lifted, you have six months to utilize that lease.

[00:10:03] Speaker 03:
Okay.

[00:10:04] Speaker 04:
And that's what happened.

[00:10:05] Speaker 03:
So that to the extent that there was any taking, to the extent you could argue there was a taking by the improper suspension, it wasn't much of a taking.

[00:10:14] Speaker 03:
I mean, did you ask the district court to separate out those two leases at that point and say that as to those, because the suspension had been by mistake, that there should have been a separate independent taking claim as to those?

[00:10:28] Speaker 04:
We did not.

[00:10:29] Speaker 04:
We treated them as part of our overall claim.

[00:10:33] Speaker 03:
So as to the repudiation, we believe... But let me go back to my question that got you off on that track.

[00:10:41] Speaker 03:
Is there any ability, have you ever asked the BLM to allow you to lease somewhere outside the MMTA and elsewhere in the KSLA?

[00:10:51] Speaker 03:
Or is there nothing valuable?

[00:10:53] Speaker 04:
And I'm going to need to understand your question a little better.

[00:10:55] Speaker 04:
I hear you saying, have we asked for a lease trade?

[00:11:01] Speaker ?:
Right.

[00:11:01] Speaker 04:
Right.

[00:11:02] Speaker 04:
These were all options that were discussed and the trial record is replete with these references that there were many options discussed along the way.

[00:11:12] Speaker 04:
Recommendations by BLM personnel that the leases be bought back.

[00:11:17] Speaker 04:
Recommendations that they be traded.

[00:11:22] Speaker 04:
And the BLM never saw fit to move forward with those recommendations.

[00:11:30] Speaker 04:
They, in fact, took the route that required only intra-agency review, which was to maintain the lease suspensions.

[00:11:41] Speaker 01:
Did you want to address takings?

[00:11:45] Speaker 04:
If I might, Your Honor, I'd like to just kind of summarize the remaining points on repudiation, which is we believe that there's no authority for the long-term suspensions under the congressional limited delegation of authority.

[00:12:00] Speaker 04:
for limited extension powers that comes under Conoco.

[00:12:04] Speaker 04:
We think that the mobile oil case talks about the fact that it would be an illusory bargain if you were to allow for unilateral right of control over the leases.

[00:12:15] Speaker 04:
And we've discussed the repudiation aspects in terms of the final EIS.

[00:12:25] Speaker 04:
And then I would just add, to finish this discussion out,

[00:12:30] Speaker 04:
that there was a new condition added, which was you're going to have to protect the Trona miners in order to use these leases.

[00:12:39] Speaker 04:
Never a basis of the bargain.

[00:12:41] Speaker 04:
Never something that was envisioned.

[00:12:43] Speaker 04:
This was something wholly new.

[00:12:46] Speaker 01:
Of course, these leases are all conditioned upon observance of regulations relating to safety and health, including subsequent regulations.

[00:12:57] Speaker 01:
There are all sorts of hedges in these leases.

[00:12:59] Speaker 04:
The hedges apply to drilling in a safe manner, ensuring that nobody on the surface in their drilling operations

[00:13:09] Speaker 04:
is injured, safe drilling operations, doesn't extend, never has, to a separate industry where you're required to protect a separate industry.

[00:13:18] Speaker 00:
Well, separate industry.

[00:13:20] Speaker 00:
The regulations we're talking about here I think are 43 CFR 3162, you're familiar with it, 1 and 5.

[00:13:27] Speaker 00:
They talk about protection and safety of property and persons.

[00:13:34] Speaker 00:
I mean suppose that you had a drilling technique that you wanted to use, let's just say fracking for lack of a better term, of a type.

[00:13:43] Speaker 00:
that would have polluted the groundwater in the entire area.

[00:13:49] Speaker 00:
You think that that would be not prohibitable by the BLM under the regulations?

[00:13:57] Speaker 04:
I think it would be.

[00:13:58] Speaker 00:
It would be.

[00:13:59] Speaker 04:
That's a far amount of concern.

[00:14:01] Speaker 00:
I think if you go... And then something that had such powerful effects that it would

[00:14:11] Speaker 00:
have an effect on the nearby town like Rock Springs and undermine houses and buildings, that would surely be prohibitable, right?

[00:14:21] Speaker 04:
I don't think so.

[00:14:22] Speaker 04:
I think that the agency needs... Really?

[00:14:24] Speaker 00:
That'd be fine.

[00:14:25] Speaker 00:
You could just go ahead and drill and that's the problem of the people of Rock Springs and BLM couldn't do anything about it?

[00:14:30] Speaker 04:
I think that Congress has provided for the situation through the multiple mineral development mandate, the statute we decided to, which is to say

[00:14:41] Speaker 04:
These multiple mineral conflicts are dealt with by the multiple mineral conflict language in the leases, where the BLM and its multiple mineral mandate lays out a procedure where both mineral states will be utilized.

[00:14:59] Speaker 04:
One will not be sacrificed to the other for decades, long beyond my client being on the earth.

[00:15:05] Speaker 04:
And so Congress is provided for this.

[00:15:10] Speaker 04:
that approach was not taken here.

[00:15:13] Speaker 04:
Remember that the BLM studied this area before the 1986 RMP was issued.

[00:15:21] Speaker 04:
It found that the area was both eligible and available, which is a determination that went into issuing the leases.

[00:15:27] Speaker 01:
Mr. Herriot, your time is almost up.

[00:15:30] Speaker 01:
We'll give you two minutes for rebuttal.

[00:15:33] Speaker 04:
Thank you, Your Honor.

[00:15:34] Speaker 01:
Ms.

[00:15:35] Speaker 01:
Krantz?

[00:15:48] Speaker 02:
Thank you.

[00:15:48] Speaker 02:
May it please the court?

[00:15:49] Speaker 02:
Erica Kranz for the United States and with me is Frank Sanger.

[00:15:55] Speaker 03:
What is the likelihood that any application to drill for oil and gas and the MMTA would ever be granted?

[00:16:01] Speaker 02:
Well, it's highly site-specific.

[00:16:03] Speaker 02:
For one thing, the APDs that were previously granted in the MMPA, while the leases were suspended, shows that it can be done.

[00:16:12] Speaker 03:
Those were for surface mining, though, weren't they?

[00:16:14] Speaker 03:
That's a dramatically different thing than these were.

[00:16:15] Speaker 02:
They were so shallow drilling above the level of a trunamine.

[00:16:20] Speaker 02:
If you take a look at the map that's in the supplemental appendix at 81, you can see that penis leases are scattered across a very wide area.

[00:16:28] Speaker 02:
So consideration of a particular APD is going to be highly site-specific.

[00:16:34] Speaker 02:
It's going to depend on where they want to drill, what methods they want to use.

[00:16:38] Speaker 03:
But with the environmental impact statement saying there should never be any drilling at all in the entire area, how do you ever get to the point where you could approve anything

[00:16:50] Speaker 03:
site-specific or not?

[00:16:51] Speaker 02:
What the environmental impact statement was doing was explaining the status quo and set.

[00:16:57] Speaker 02:
There's been a conflict that's been recognized.

[00:17:00] Speaker 02:
BLM has attempted to develop an area-wide process and rules for allowing drilling, and now we're in the RMP revision process and we're going to decide what to do.

[00:17:12] Speaker 02:
What the actual decision was coming out of that was to allow the suspension to remain in place, recognizing that BLM couldn't alter the existing leases, that those leases continue to have full legal effect, that it can cure requests to develop, and then it can impose conditions on approved requests to develop, just like it always can under the regulations and under the lease terms.

[00:17:40] Speaker 02:
Cleanup has suggested that these vices were essentially

[00:17:44] Speaker 02:
without condition or without restriction, but the leases themselves contain language requiring operators to protect other resources.

[00:17:54] Speaker 03:
But if a condition is that you can't mine while there's Toronto mining going on and Toronto mining is going to go on for 2,000 years, then how is that not an additional condition to the lease that is inconsistent with the fact that the leases were granted in the first place?

[00:18:12] Speaker 02:
I mean, there's nothing new about Trona mining or about the requirement that mining be, or that drilling be conducted safely.

[00:18:20] Speaker 02:
That's always been a condition of these leases, both in the lease language and through the regulations that are incorporated into those leases.

[00:18:29] Speaker 02:
We think BLM has imposed no new conditions here simply by requiring cleanup to go through the ordinary process that's been in place the entire time that these leases

[00:18:42] Speaker 02:
have been effective, whereby plaintiffs have to file a site-specific request to develop and allow BLM to consider an actual development request.

[00:18:53] Speaker 00:
I found the map a little hard to interpret.

[00:18:56] Speaker 00:
For one thing, the printing wasn't so great, but I did get the idea that the leases were kind of spread out.

[00:19:03] Speaker 00:
over the area.

[00:19:04] Speaker 00:
What I didn't see, and perhaps it wasn't indicated there, was where the trona mines are.

[00:19:10] Speaker 02:
That's right.

[00:19:11] Speaker 00:
Now, can you enlighten us on that?

[00:19:13] Speaker 00:
Are the trona mines throughout that area or are they concentrated in a particular area?

[00:19:17] Speaker 02:
I don't believe they're throughout their area.

[00:19:20] Speaker 00:
Well, do we have some kind of evidence that we can look to rather than picking your supposition?

[00:19:25] Speaker 02:
I can look in the record and

[00:19:29] Speaker 02:
point you to something additional, perhaps in a 28-J letter, but I don't have something else to point you to at this moment.

[00:19:36] Speaker 00:
I will say... Well, I guess what I'm going, obviously, is are we talking about some of the leases being sufficiently far away from toner mines so that even though, as a general matter, the EIS may say we don't want mining to conflict with the drilling, nonetheless, there would be no significant or even

[00:19:57] Speaker 00:
plausible argument that there's a conflict with respect to some of the leases.

[00:20:01] Speaker 00:
Is that the state of play?

[00:20:03] Speaker 02:
Well, there was testimony at trial that at the very least, some of the leases that are in the fringe areas along the edge of the MMTA should in theory be developable.

[00:20:16] Speaker 02:
We talked earlier about how there were two leases that were found to be outside the MMTA and the suspension was terminated at

[00:20:24] Speaker 02:
Earlier in this case, there were six additional leases that were found to be outside the MMTA.

[00:20:29] Speaker 02:
The suspension was terminated and the leases had since expired.

[00:20:33] Speaker 03:
But the other 24 are in the MMTA.

[00:20:36] Speaker 02:
They are either fully in the MMTA or there are quite a few of them that straddle the border.

[00:20:42] Speaker 03:
And you can see that on the final resource management plan.

[00:20:46] Speaker 03:
in its totality is administratively unavailable for new fluid mineral leasing.

[00:20:52] Speaker 03:
And so, I mean, the final resource management plan says we're not going to grant it.

[00:20:57] Speaker 03:
I mean, they can apply, but it says right there that they're not going to be granted.

[00:21:00] Speaker 02:
Well, I think it's an important distinction to make is that language you just quoted is talking about new fluid leasing.

[00:21:07] Speaker 02:
And indeed, through the resource management plan revision process,

[00:21:11] Speaker 02:
you want to find out that it would not issue any new leases.

[00:21:15] Speaker 03:
So you're talking about new leases versus drilling on... So you'll allow them to drill in a way that puts the Toronto miners at risk?

[00:21:23] Speaker 02:
No.

[00:21:24] Speaker 02:
But if plaintiff can submit an application and show that its proposed activities will not put the Toronto miners at risk, then that should be approved with conditions.

[00:21:35] Speaker 03:
Why didn't BLM just buy out these leases or swap them out for someplace else in the area?

[00:21:41] Speaker 02:
I'm not certain of why they made that policy decision.

[00:21:45] Speaker 02:
I suppose they felt that they were able to adequately protect the other resources and safety and the environment using the existing procedures that are defined by the leases and by the regulations in them.

[00:21:59] Speaker 03:
Was it your understanding that Atlantic Ridgefield was a predecessor interest to the plaintiff?

[00:22:06] Speaker 02:
At least some of cleanest leases were subject to the original suspension in 1992, I believe.

[00:22:15] Speaker 02:
It was not my understanding that the APDs filed by ARCO in the 90s applied to these leases, but it could be.

[00:22:26] Speaker 00:
had ownership of the leases at one point, they sold them, and then they reacquired them in the 2000s, right?

[00:22:34] Speaker 00:
That's correct.

[00:22:34] Speaker 00:
Probably maybe a little earlier in some cases.

[00:22:36] Speaker 02:
They had reacquired most of these leases in the last, the five years before they filed their claim, after the suspension was in place.

[00:22:45] Speaker 00:
Does that matter for purposes of either the contractor taking claims, the fact that they reacquired them during the pendency of the suspension?

[00:22:54] Speaker 02:
I'm not sure that it's legally determinative.

[00:22:57] Speaker 02:
I think it's interesting context for plaintiff's claims.

[00:23:01] Speaker 02:
If plaintiff believes that the suspensions meant they were never going to be able to develop, it is curious that they were reacquiring the leases.

[00:23:10] Speaker 00:
Well, maybe they were buying the cause of action.

[00:23:13] Speaker 00:
That's possible.

[00:23:16] Speaker 02:
Okay.

[00:23:17] Speaker 02:
Much of what we've been talking about goes to the repudiation claims.

[00:23:20] Speaker 02:
I want to remind you about the standard for repudiation.

[00:23:23] Speaker 02:
It's quite high.

[00:23:26] Speaker 02:
This court has at times enunciated in two different ways, either a distinct and unqualified intent to not perform, or in another case,

[00:23:42] Speaker 02:
positive, definite, unconditional, and unequivocal manifestation of an intent to breach a contract.

[00:23:49] Speaker 02:
I think at the worst what we have here is some ambiguity about how drilling applications are going to be treated.

[00:23:56] Speaker 02:
We don't have BLM saying we're never going to be able to approve an APD.

[00:24:02] Speaker 02:
That's really what distinguishes this case from Mobile Oil and Amber Resources is that in those cases the agency had no discretion.

[00:24:10] Speaker 02:
It was barred from even considering requests.

[00:24:13] Speaker 02:
Here, the agency hasn't been barred.

[00:24:17] Speaker 02:
The factual situation is difficult, but the agency still can entertain an application.

[00:24:24] Speaker 01:
What relevance does Whitney Benefits have here?

[00:24:29] Speaker 02:
Whitney Benefits, I think, is distinguishable.

[00:24:43] Speaker 02:
And that case was a, this is one of the cases that plaintiff has cited arguing that they have a takings claim in this case.

[00:25:00] Speaker 02:
And we responded saying that Sun Oil is quite clear that where

[00:25:08] Speaker 02:
rights are created through contracts and where the government acts within the framework of that contract, the only remedy can be in the field of contract.

[00:25:20] Speaker 02:
We think Sun Oil and Hughes Communications Galaxy clearly say that a taking claim is simply inappropriate here.

[00:25:28] Speaker 02:
Whitney Benefits

[00:25:30] Speaker 02:
was similar to mobile oil in that there was a later enactment of a statute that as a legal matter prohibited coal mining under a federal lease.

[00:25:46] Speaker 01:
You're saying here there was a prior enactment?

[00:25:50] Speaker 02:
Here there's been no action that has legally barred the agency from

[00:25:56] Speaker 02:
from fulfilling its duties.

[00:25:58] Speaker 02:
Its duties under the lease aren't to approve drilling requests in every case.

[00:26:03] Speaker 02:
It's to consider drilling requests and apply the terms of the lease and the regulations incorporated into the lease.

[00:26:12] Speaker 02:
We've talked a little about why the geographic uniqueness of the individual leases requires this site-specific review.

[00:26:24] Speaker 02:
The Supreme Court precedent on taking law also explains that

[00:26:31] Speaker 02:
you always have to give the agency the opportunity to make a site-specific determination.

[00:26:36] Speaker 02:
Now, in the takings context, that's important because we simply don't know whether and to what extent there has been a restriction until we have a site-specific determination.

[00:26:47] Speaker 02:
The Supreme Court has said this over and over again in Palo Zolo, in Williamson County,

[00:26:56] Speaker 02:
And this court in Boise Cascade said the rule they're taking does not ripen until a permit is applied for and denied has been consistently followed.

[00:27:05] Speaker 02:
So for all these reasons, we believe that the United States has not repudiated Plaintiff's Leases.

[00:27:13] Speaker 02:
Plaintiffs have not shown that this action meets those high standards for repudiation

[00:27:19] Speaker 02:
the government has not imposed new conditions on plaintiff's leases.

[00:27:23] Speaker 02:
It's simply asking plaintiffs to comply with those leases by submitting a drilling application.

[00:27:29] Speaker 02:
And plaintiffs have never right been to taking claims for the same reason.

[00:27:34] Speaker 02:
And the court has no further questions.

[00:27:37] Speaker 02:
I will ask you to affirm.

[00:27:39] Speaker 01:
Thank you, Ms.

[00:27:40] Speaker 01:
Krantz.

[00:27:41] Speaker 01:
Mr. Hill has two minutes for rebuttal.

[00:27:53] Speaker 04:
Your Honor, the danger of allowing a unilateral right of suspension is that that unilateral right by the agency would, which by the way doesn't exist in the law.

[00:28:09] Speaker 01:
Do you mean unilateral or indefinite?

[00:28:11] Speaker 04:
What did I, I didn't hear you.

[00:28:12] Speaker 01:
You said, do you mean unilateral as you stated or indefinite?

[00:28:17] Speaker 04:
It's unilateral in the sense that the agency takes on that power.

[00:28:21] Speaker 03:
But that was within the scope of the lease.

[00:28:24] Speaker 03:
You understood that.

[00:28:26] Speaker 04:
Not a indefinite suspension.

[00:28:28] Speaker 04:
We never had that understanding at all.

[00:28:29] Speaker 03:
Right.

[00:28:29] Speaker 03:
So that's exactly Judge Laurie's question.

[00:28:32] Speaker 04:
And if I didn't detect question correctly, I apologize.

[00:28:35] Speaker 04:
But no, we never anticipated that, any more than the

[00:28:39] Speaker 04:
the court in Conoco or mobile oil.

[00:28:41] Speaker 03:
Is there a lot of time left on all of these leases or many of them?

[00:28:44] Speaker 04:
There's various times.

[00:28:47] Speaker 03:
Okay, when you say various times, so did any of the leases run for quite a while before the suspensions were put in place?

[00:28:55] Speaker 04:
Some of them did.

[00:28:57] Speaker 03:
So why were there no applications during those early periods of time if these were such valuable leases?

[00:29:02] Speaker 04:
Well, and that goes back to the way the industry develops leases.

[00:29:06] Speaker 04:
And there's quite a few steps that goes into developing a lease.

[00:29:10] Speaker 04:
And before suspensions were put in place, the holders of the leases were forming a unit, trying to get the BLM to approve a unit, putting an APD in place.

[00:29:24] Speaker 04:
And so all these steps are contained within the running of that initial term on the lease.

[00:29:30] Speaker 04:
So this case is not

[00:29:33] Speaker 04:
one where the agency hasn't had an opportunity to study the issue, examine what the decision should be.

[00:29:43] Speaker 04:
It's examined, put it into its statutory prescribed process, and it made a very clear decision that oil and gas drilling was to be barred.

[00:29:53] Speaker 04:
Thank you very much.

[00:29:54] Speaker 01:
Thank you, Mr. Hill.

[00:29:55] Speaker 01:
We'll take the case under advisement.