[00:00:00] Speaker 01:
Ministerio Roca Salida versus U.S.

[00:00:07] Speaker 01:
Mr. Becker?

[00:00:08] Speaker 00:
Yes, Your Honor.

[00:00:09] Speaker 01:
Are you ready to proceed?

[00:00:10] Speaker 01:
Yes, I am.

[00:00:12] Speaker 01:
The government?

[00:00:20] Speaker 00:
Go ahead, Mr. Becker.

[00:00:21] Speaker 00:
Thank you.

[00:00:21] Speaker 00:
Good morning, Your Honors.

[00:00:22] Speaker 00:
May it please the Court?

[00:00:23] Speaker 00:
My name is Joseph Becker and I represent Ministerio Roca Salida Church, the appellant in this case.

[00:00:29] Speaker 00:
The court will have dismissed our complaint pursuant to 28 USC 1500 because.

[00:00:38] Speaker 01:
Mr. Becker in the blue brief at 12, you say Southern Nevadans have seen recently what exactly what self indication of rights may look like.

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And I'm emphasizing this judicial actions fostering such scenes should not be encouraged.

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Where in the record are you referring?

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What is that supposed to mean exactly?

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And is that a threat to murder police officers?

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Because it sure sounds like you're saying that if the courts follow the law, then riot and rebellion will follow?

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It certainly isn't a threat.

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I will say that the climate

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in the state where this action emerges is very... People are very conscious of what's going on.

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Let me put it this way.

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Are the courts open and in session?

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In Nevada?

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Yes.

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Yes.

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So the Great Red hasn't been suspended, for example?

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Correct.

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And just exactly what are you trying to tell us?

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I'm just trying to say that to the extent people perceive that they don't have their day in court, that... They may take up arms.

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Right.

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And if they take up arms, what's the responsibility of the judicial branch other than to report that to the competent authority?

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The responsibility of the judicial branch, of course, is laid out in the Constitution, but... And in our oaths?

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Correct.

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Supply law to rich and poor alike?

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Correct.

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Without favor or fear?

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I don't disagree.

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Go ahead.

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All right.

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As appellees concede over and over in their answer brief, the purpose of Section 1500 is to save government from the burdens of redundant litigation.

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However, applying Tahona to dismiss our church camp from the Court of Claims does nothing to reduce redundant litigation.

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First of all, at the Court of Claims, appellants only wanted to stay pending resolution of other claims at the District Court.

[00:03:16] Speaker 01:
You seem to be making an argument in your brief.

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for us to effectively either ignore or overrule Tehono?

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Well, to be clear, the appellants definitely see that as a very bad decision.

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It was heavily divided, as you're probably aware.

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It overturned the dissent and the concurrence.

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Right.

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It overruled 90 years of

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what has been the process here.

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And it's very, very unfavorable to appellants.

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We, of course, realize the way back to that decision is through the appeals process.

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And that's part of the reason why we're here.

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But stare decisis says, we follow what the court says.

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Right.

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Of course, stare decisis should have said that 90 years of precedent regarding

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Go argue with the Supreme Court.

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What's that?

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Go argue with the Supreme Court.

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If necessary, of course, as I said, that's part of the reason.

[00:04:25] Speaker 04:
Can I ask you this?

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I understand that there are potential arguments for the unconstitutionality of the combination of 1500 and the statute of limitations as applied.

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Right.

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Not quite yet.

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but maybe soon.

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You mean not quite yet in our case?

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Yes, that's right.

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But what, if any, argument do you have that under 1500 itself, all constitutional considerations aside, that dismissal is improper?

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Well, I guess I was headed in that direction.

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A case decision that was filed

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A couple of months after we argued this case below at the federal court of claims is Skokomish case.

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And, you know, I've been arguing from the beginning that this doesn't solve the problem of redundant litigation, this 1500 in our case, because we could win every other claim.

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We could win the torts claim, we could win the procedural substance of due process claim, the free exercise claim.

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We'd be right back here.

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Right, but I mean, I guess I do not see how that argument remains open as an interpretation principle under 1500 at this point.

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Okay, my answer to that question then is Skokomish and Klamath cases.

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I can cite those if you're not familiar, but

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The one I like best because it's sort of a condensation of 40 pages into 15 or 18 pages is Skokomish v. U.S.

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It would have to be persuasive authority here because it's the Federal Court of Claims, Judge Allegra below.

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Dating from when?

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Sorry.

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It's 2014.

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It was filed in March of 2014.

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And really what that case does I think is that

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It provides a technical legal explanation within the context of Tehono by dissecting carefully what are and what are not operative facts.

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I mean, part of the problem with Tehono from our perspective is it took the word claim from the statute and turned it into... You're wasting your time if you tell us about the problems with Tehono.

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Okay.

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We don't get to identify problems with Tehono.

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Okay.

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Well then, let's look at what Skutkomish says.

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we should be thinking about to answer your question as to what is my argument outside of Tohono O'odham and 1500.

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And according to Skokomish, there is a four part task to decide whether the operative facts justify dismissal under 1500 and Tohono or whether that dismissal is not justified.

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Was that case cited to us at all?

[00:07:36] Speaker 01:
No, it wasn't.

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You didn't file a notice of supplemental authority?

[00:07:40] Speaker 01:
I didn't.

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When did you become aware of it?

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About two days ago.

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When did it come down?

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In March of 2014.

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But under that case,

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And in Klamath Irrigation, which came out just a couple of months before it was condensed by Skokomish, there's four questions that the court is to look to to decide whether the operative facts justify dismissal or not.

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Because remember, Tehono concentrates instead of on claims on operative facts.

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Those four tests are the issues of fact and law raised by the four claims largely the same.

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in our case four claims, the multiple claims, is an adverse merits decision.

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If an adverse merits decision were rendered on the earlier claims, would the doctrine of res judicata bar a subsequent suit on the later filed claims?

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Third thing is, will the plaintiff rely on substantially the same evidence to support each of these claims?

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And then the fourth is sort of a catch-all, according to the Skokomish Court.

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Is there any logical relationship between the two claims?

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And that's

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They clarify that by saying, is there a logical relationship between the claims not revealed by the first three tests resulting in substantial duplication of efforts?

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When we look at those questions in the context of our facts, we shouldn't have been dismissed by 1500 or under Tohono O'odham.

[00:09:21] Speaker 00:
The first question, are the issues of fact and law raised by the four claims largely the same?

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I mean, we have negligent flooding, you know, duty breach proxies.

[00:09:31] Speaker 04:
I mean, you have in the Nevada litigation a little Tucker Act takings claim.

[00:09:37] Speaker 04:
How could that possibly be distinguished from the big Tucker Act claim in this case?

[00:09:45] Speaker 00:
Well, I would concede that point.

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I mean, that point's very well taken.

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We, you know, optimistically, in order to save the client,

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you know, coming out here hope to get a quick resolution of this case such that the temporary taking might have been less than $10,000 in damages, it's not.

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But the problem we're faced with now, and I guess I'm glad you brought this up because I was getting here anywhere.

[00:10:09] Speaker 04:
I mean, I guess what I'd like to emphasize before I... Look, I get the problem.

[00:10:13] Speaker 04:
Okay.

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What I don't see is how your problem is addressable by applying 1500, or rather,

[00:10:22] Speaker 04:
by deciding that 1500 is inapplicable.

[00:10:27] Speaker 04:
That's what I don't get.

[00:10:28] Speaker 00:
If we could agree that 1500 is inapplicable to our negligence case, in other words, let's assume hypothetically that I had not filed the Little Tucker Act claim in the district court.

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Let's assume that what I did is I filed the claim for, I mean this all comes about from the moving of a waterway, right?

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Let's assume I only did the Federal Tort Claim Act claim, the procedural due process claim, the substantive due process claim, and the religious freedom claim.

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I mean, if we can get to the point where under Skokomish and Klamath that those claims are not duplicate claims or those claims are not borrowed by 1500, then we could, because we're well past $10,000 now after five and a half, almost six years into this thing.

[00:11:18] Speaker 00:
uh, were well past the $10,000.

[00:11:20] Speaker 00:
We could, we could go to the district court.

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We could presumably, uh, say, you no longer have jurisdiction over the takings claim.

[00:11:27] Speaker 00:
But the problem is I can't do that unless I know that I can bring, uh, that takings claim again in the federal court of claims for 10,000 or more.

[00:11:37] Speaker 00:
And if the court is going to hold that, that's my, all my other claims, which have nothing to do, in fact, I mean, under, under Skokomish have nothing to do with,

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the takings claim as far as all that, the four tests I just said.

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If I can know that I can do, I can withdraw that and I can... Just so you know, you're under your rebuttal time.

[00:12:00] Speaker 00:
Yes.

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I understand.

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I see the clock.

[00:12:02] Speaker 00:
Thanks for pointing that out though.

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I mean, if I know I can do that, then... Then you could drop those and refile here.

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Right.

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And that would be fine, but it's not clear to me, you know, based on the sort of complications that we have from Tohono O'odham,

[00:12:17] Speaker 00:
that the court would rule that way.

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So I've got to preserve at least that $10,000.

[00:12:20] Speaker 02:
But all your claims in both lawsuits, it's based on the same property, the same water rights, and revolve around the same government conduct, which is the diversion, the water diversion project.

[00:12:34] Speaker 00:
That's right.

[00:12:34] Speaker 00:
That's right.

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But again, if you look at operating, that's the problem.

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That's the problem with the owner.

[00:12:41] Speaker 02:
Those sound like substantially the same operative facts.

[00:12:45] Speaker 00:
except if we look at Skokomish and Klamath as to what operative facts now are under the post-Tahono situation, then that's not true.

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So I guess I would encourage the court to do that, to write a decision that says, well, had he not done the Small Tucker Act claim, or Little Tucker Act claim in the district court, this wouldn't have been a problem, but because he did, it is.

[00:13:10] Speaker 02:
How close are you to the end game in the Nevada action?

[00:13:18] Speaker 00:
I'd like to say close, but cross motions for summary judgment filed late last year.

[00:13:24] Speaker 00:
I can't imagine that there aren't factual issues they're going to have to decide at this trial.

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We named the Refugee Manager of Individual Capacity.

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She appealed the non-dismissal of herself in Individual Capacity of the Ninth Circuit.

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That's been fully brief.

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We're waiting for an oral argument there.

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I think it's very realistic that we want, I mean, I'm the guy that started the Brandt case, right, in 2006.

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I filed a counterclaim in Wyoming.

[00:13:54] Speaker 00:
That just got decided in, what, the middle of 2014.

[00:13:57] Speaker 00:
That's eight years.

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The cases are similar in some ways.

[00:14:02] Speaker 00:
I can't see it happening.

[00:14:03] Speaker 00:
I think it's a real problem.

[00:14:05] Speaker 01:
Just in case you didn't understand my brethren, when they say Nevada, they mean Nevada.

[00:14:11] Speaker 00:
Right.

[00:14:12] Speaker 00:
Well, I did mention that to the trial court judge, but I'm going to tell my men if I can, just in case.

[00:14:25] Speaker 02:
Californians call it Nevada.

[00:14:28] Speaker 05:
I'll call it Nevada and Nevada.

[00:14:30] Speaker 05:
Good morning.

[00:14:31] Speaker 05:
May it please the Court to Anna Kasselis for the United States.

[00:14:35] Speaker 05:
The CFC's dismissal of this action for lack of jurisdiction under Section 1500 must be affirmed.

[00:14:42] Speaker 05:
As the Supreme Court recently clarified in Tohono, two suits are for or in respect to the same claim, precluding CFC jurisdiction if they are based on substantially the same operative facts.

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The relief requested is not relevant

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The CFC's conclusion that the incident action is based on substantially the same operative facts as Solid Rock's earlier filed lawsuit in the District of Nevada or Nevada is unassailable.

[00:15:08] Speaker 05:
In both suits, Solid Rock complains that it was injured by the same water diversion project that the Fish and Wildlife Service allegedly completed in late 2010 near its property.

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Solid Rock, in its brief, does not really dispute that its District Court action was filed first,

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or that both actions arise out of the same allegedly unlawful government conduct.

[00:15:32] Speaker 05:
Rather, based on a hypothetical possibility that Solid Rock's district court action may not be resolved before the statute of limitations runs on its Tucker Act claim, Solid Rock essentially argues that it should not have to choose between its two lawsuits.

[00:15:47] Speaker 05:
Can I ask you a minute?

[00:15:48] Speaker 04:
Mr. Becker says put aside the little Tucker Act claim.

[00:15:52] Speaker 04:
In your brief, you already do put aside the federal tort claims act flooding claim as not supporting a 1500 bar.

[00:16:01] Speaker 04:
So what's left are free exercise claims, a procedural due process.

[00:16:09] Speaker 04:
And is there also a substantive due process or maybe not?

[00:16:12] Speaker 04:
I believe that.

[00:16:13] Speaker 04:
What issue would be tried and explored and whatnot in the Nevada case?

[00:16:20] Speaker 04:
Putting aside the things I said to put aside.

[00:16:23] Speaker 04:
that would overlap with issues to be tried in this case.

[00:16:29] Speaker 05:
Your Honor, if you take aside the Little Tucker Act claim in the district court, you have complaints of unlawfulness and requests for injunctive and declaratory relief based on these other legal theories.

[00:16:46] Speaker 05:
It's been clear since Keen in 1993 that the legal theory isn't relevant.

[00:16:53] Speaker 04:
And now that's why I asked you about what issues factual, what factual issues would be relevant to the resolution of the Nevada Nevada claims other than the Little Tucker Act and Federal Tort Claims Act that would be relevant to the resolution of this case.

[00:17:16] Speaker 01:
And let me throw in, because it's pretty close, could the

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Could Solid Rock be made whole in either court alone?

[00:17:28] Speaker 05:
Yes, Your Honor, it could.

[00:17:30] Speaker 05:
So I think what Solid Rock wants to do, ideally, as they have explained it, is they want to proceed in the District of Nevada.

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And what they would hope for is declaratory relief and an injunction putting the water back to where they would like it to be.

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and then compensation for a temporary taking.

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If they obtain that, they would be made completely full.

[00:17:58] Speaker 04:
Right.

[00:17:58] Speaker 04:
But they also now say their temporary taking claim is worth more than $10,000.

[00:18:02] Speaker 04:
Correct.

[00:18:02] Speaker 04:
So that they cannot be made whole for the loss of the water during what's going to be more than six years.

[00:18:11] Speaker 05:
Right.

[00:18:11] Speaker 04:
OK.

[00:18:13] Speaker 04:
And I think this is actually a slightly different question from the issue question that I asked you.

[00:18:18] Speaker 04:
What issues would be tried in the Nevada case, putting aside the Little Tucker Act claim and putting aside the Tort Claims Act flooding claim that would overlap with issues here?

[00:18:30] Speaker 05:
The issues that, I think the issues that would be tried in the District of Nevada case.

[00:18:36] Speaker 04:
I don't mean tried in the, I don't care if it's summary judgment.

[00:18:38] Speaker 04:
What are the issues that would have to be resolved?

[00:18:42] Speaker 05:
Fair alleging.

[00:18:42] Speaker 05:
And then you have constitutional, alleged constitutional violations of whether the

[00:18:48] Speaker 05:
diversion of, I mean, you know, the factual issues are, I mean, the factual basis needs to be flushed out.

[00:18:54] Speaker 05:
We're only at the complaint stage here about, you know, the diversion of the water, water rights, et cetera.

[00:19:00] Speaker 05:
And that would be tried in the District of Nevada.

[00:19:04] Speaker 04:
Whether they had a certain kind of protectable property right in the water would be a common issue.

[00:19:11] Speaker 04:
Whether the government's reasons for moving the water would be an issue.

[00:19:15] Speaker 04:
Is that

[00:19:16] Speaker 05:
That's my understanding, Your Honor, correct.

[00:19:19] Speaker 05:
You would have, you know, the same, it would be the same facts, the same legally operative facts about, you know, their ownership of the property and the Fish and Wildlife Service's alleged aversion that would have to be flushed out.

[00:19:37] Speaker 05:
And the issues would be, they're alleging at this point then constitutional violations.

[00:19:43] Speaker 05:
So it would be, what would be tried is the validity

[00:19:46] Speaker 05:
ultimately of the government action would be the question in that case.

[00:19:51] Speaker 04:
That's a level of generality that I find a little bit too high.

[00:19:54] Speaker 04:
So for example, if it were completely undisputed that they had a protected property right in the water, then I'm having some trouble understanding whether the government was sort of motivated by

[00:20:06] Speaker 04:
a discrimination against religion or whether there was an adverse effect on their ability to exercise their religion.

[00:20:16] Speaker 04:
I'm having a little hard time seeing whether those issues would have any overlap with the issues in this case.

[00:20:22] Speaker 04:
But if there's a dispute about the underlying property, if there's a dispute about surrounding background regulatory authority,

[00:20:33] Speaker 04:
that affected the scope of the property, right?

[00:20:35] Speaker 04:
Then I understand that there's an overlapping issue, but not just the fact that water was diverted, period.

[00:20:45] Speaker 05:
I'm not sure I quite understand.

[00:20:50] Speaker 05:
And again, we're only at the stage where we're only at the complaint stage.

[00:20:56] Speaker 05:
You got a dismissal at the complaint stage.

[00:20:59] Speaker 05:
We are.

[00:21:01] Speaker 05:
We would encourage the court to look at the appendix at pages 13 and 14 and 36 to 39 and the factual allegations that are relevant are that this ownership of the ownership of the land and the alleged diversion of water in late 2010.

[00:21:19] Speaker 05:
The legal theories asserted are different.

[00:21:23] Speaker 05:
You have the constitutional

[00:21:25] Speaker 05:
They're additional.

[00:21:26] Speaker 05:
You have constitutional, alleged constitutional violations, the Federal Tort Claims Act violation, and also the Little Tucker Act claim.

[00:21:34] Speaker 05:
But based on exactly the same facts, Your Honor, they're alleging a Tucker Act claim in the CSC.

[00:21:41] Speaker 04:
Can I ask you, this is a doctrinal question, not a record-specific question.

[00:21:47] Speaker 04:
In any of the 1,500 cases, Tohono O'Keen and a lot from this court,

[00:21:57] Speaker 04:
In any of them was either the CFC action or the other action that raised the 1500 problem, one that involves constitutional claim.

[00:22:11] Speaker 04:
I don't think that was true in either Keene or Tohono, right?

[00:22:14] Speaker 04:
I think those were both non-constitutional claims on both sides, the CFC claim and the one... As far as I recall, Your Honor, that's correct.

[00:22:24] Speaker 05:
I don't think that changes the inquiry in any way.

[00:22:27] Speaker 05:
Um, you know, in, in both, in both instances and sort of, you know, what 1500 contemplates is that there may be a district court action as there is here, challenging the validity of the government action.

[00:22:39] Speaker 05:
Right.

[00:22:39] Speaker 05:
And so then, you know, if they, if, if, for example, you know, if, for example, they succeeded in the district court on this was an invalid diversion of water, um, equitable relief, declaratory reef, that's the end of the day because you don't get to compensation.

[00:22:57] Speaker 04:
But then... Well, no, not completely.

[00:22:59] Speaker 04:
They get the water back.

[00:23:00] Speaker 04:
But if it took eight years, they get eight years' worth of time.

[00:23:03] Speaker 04:
There's an issue that remains about whether there was eight years of temporary taking for which they get compensation now worth more than $10,000, which they presumably, under the statute, can't get in Nevada.

[00:23:15] Speaker 05:
Correct.

[00:23:16] Speaker 05:
And I think, yeah, correct.

[00:23:17] Speaker 05:
But I still think that the principle is the same, because I think in most of these cases, they're challenging the validity on other grounds.

[00:23:24] Speaker 01:
The government concedes.

[00:23:26] Speaker 01:
that the statute of limitations could eventually bar the takings claim.

[00:23:33] Speaker 05:
It's possible, Your Honor.

[00:23:34] Speaker 01:
So, under what authority can Congress prevent plaintiffs from asserting constitutional rights by declining the way of sovereign immunity?

[00:23:45] Speaker 05:
Congress has the general authority to define the jurisdiction of the courts as it has done in this case.

[00:23:52] Speaker 01:
And, you know, if Congress bar the courts from hearing a constitutional claim?

[00:23:57] Speaker 05:
They have the option of, they may face the choice of proceeding with the district court action to its completion, or at some point deciding to dismiss that and pursuing their Tucker Act claim in the Court of Federal Claims.

[00:24:13] Speaker 05:
They may have to face that choice, but the remedy for that lies with Congress and not this court.

[00:24:21] Speaker 05:
I think...

[00:24:23] Speaker 04:
Suppose we now move ahead to August of 2016, and the six-year statute has run.

[00:24:30] Speaker 04:
I assume you think that the accrual date on their takings claims, whether permanent or temporary, is the date of completion of the diversion project?

[00:24:40] Speaker 04:
Correct.

[00:24:40] Speaker 04:
OK.

[00:24:41] Speaker 04:
So it's six years now, and they can no longer seek a, make a Tucker Act takings claim here.

[00:24:49] Speaker 04:
At that point,

[00:24:50] Speaker 04:
Why is it not clear that both under the APA and under default injunctive power of district courts that they can litigate the takings claim in the Nevada court to get their water back?

[00:25:08] Speaker 04:
The Little Tucker Act claim?

[00:25:09] Speaker 04:
No, the Big Tucker Act.

[00:25:11] Speaker 04:
I don't care.

[00:25:11] Speaker 04:
Actually, it doesn't matter whether it's Big Tucker or Little Tucker.

[00:25:14] Speaker 04:
They have an APA action no longer barred by 704s

[00:25:20] Speaker 04:
adequate remedy somewhere else.

[00:25:22] Speaker 04:
They independently have a injunctive relief available and a argument that there is a taking for which there is no longer a just compensation remedy provided.

[00:25:40] Speaker 04:
So they can argue that this is a taking and get the water back if they win on the taking claim.

[00:25:45] Speaker 05:
If they're within the statute, there is no APA.

[00:25:48] Speaker 05:
They've made no APA claim in this case.

[00:25:50] Speaker 04:
In this case, I'm talking about the Nevada action.

[00:25:54] Speaker 04:
Why can they not?

[00:25:55] Speaker 04:
Until the statute of limitations runs, they have an available alternative remedy.

[00:26:01] Speaker 04:
So cases like Horn and the regional railroad reorganization cases say, as long as the Tucker Act remains available, there's no taking claim because all you're entitled to is just compensation on the assumption that there was a taking.

[00:26:16] Speaker 04:
Take away now the right to just compensation for the permanent

[00:26:20] Speaker 04:
water taking.

[00:26:21] Speaker 04:
At that point, I think that the regional railroad, Blanchette, I guess, is the name of the case, the Railroad Reorganization case talked about at Horn recently, going back to Larson and Lee and Malone against Bowdoin.

[00:26:39] Speaker 04:
I think they all make clear that you can litigate for injunctive relief, a taking claim, when there is no

[00:26:50] Speaker 04:
statutory compensation remedy still available to you.

[00:26:54] Speaker 05:
Within the statute of limitations?

[00:26:55] Speaker 04:
No, they don't say anything about the statute of limitations.

[00:26:57] Speaker 04:
Well, I'm not sure about that, Your Honor, but I mean, I think... They don't say anything about the statute of limitations.

[00:27:03] Speaker 04:
And what you have here is a statutory bar on their making their claim during the limitations period.

[00:27:13] Speaker 04:
Right?

[00:27:14] Speaker 04:
Without paying a price of giving up their other legal rights.

[00:27:17] Speaker 05:
I mean, possibly.

[00:27:18] Speaker 05:
At this point, still it is hypothetical.

[00:27:20] Speaker 05:
I agree it's premature.

[00:27:23] Speaker 05:
It's premature and it's hypothetical and it's not clear.

[00:27:26] Speaker 01:
Can the district courten of that enter equitable relief simply saying give them their water back?

[00:27:33] Speaker 01:
Not money.

[00:27:34] Speaker 01:
Water.

[00:27:35] Speaker 05:
Injunctive relief.

[00:27:36] Speaker 05:
Yes, I think so, Your Honor.

[00:27:37] Speaker 05:
I'm taking Scrivers.

[00:27:41] Speaker 04:
Not now.

[00:27:41] Speaker 04:
I think it can't now.

[00:27:44] Speaker 04:
August 8, 2016, why not?

[00:27:46] Speaker 05:
If they no longer have the claim pending in the CFC.

[00:27:49] Speaker 04:
Exactly, because Congress, by virtue of 1500, has said you may not sue while you're pursuing these other actions on roughly the same subject.

[00:28:00] Speaker 04:
I'm speaking informally.

[00:28:01] Speaker 04:
They can't get into, make a, file a timely claim for compensation under the Tucker Act.

[00:28:09] Speaker 04:
So by the time

[00:28:10] Speaker 04:
2016 and August comes around, they no longer have the remedy.

[00:28:15] Speaker 05:
I appreciate the question, Your Honor.

[00:28:17] Speaker 05:
I'm not 100% confident in my answer, but I believe that they can.

[00:28:22] Speaker 05:
I don't believe that they have a bar in the district of Nevada at this time.

[00:28:28] Speaker 05:
The problem is that they have the bar here.

[00:28:31] Speaker 05:
So I think that they can.

[00:28:32] Speaker 01:
Is there any implication of K-Park VUS?

[00:28:37] Speaker 05:
I'm not sure, Your Honor.

[00:28:40] Speaker 04:
And it may be that come August of 2016, they can pursue injunctive relief on takings grounds in the Nevada court to get the water back, assuming they can prove it was a taking.

[00:28:55] Speaker 05:
Again, Your Honor, I think that's possible.

[00:28:57] Speaker 05:
I'm not 100% sure.

[00:28:57] Speaker 04:
But what I want to add is that that would still leave the question of compensation if there was a taking for the period

[00:29:06] Speaker 04:
that a temporary taking and that claim would in fact appear to be barred by the combination of the Little Tucker Act and the limitations period in which case an interesting question I think would arise whether that combination is unconstitutional as applied by depriving them of a property right without just compensation.

[00:29:28] Speaker 05:
I appreciate that your honor as well.

[00:29:32] Speaker 05:
I will say this that the Supreme Court

[00:29:34] Speaker 05:
in both Keene and Tohono was very clearly aware of possible instances in which a plaintiff would not be able to pursue both suits sequentially within the statute of limitations problem.

[00:29:48] Speaker 05:
And they felt that Congress did not give them the room to craft an equitable exemption for that possibility.

[00:29:55] Speaker 04:
In a non takings context where there is no direct constitutional right to the compensatory remedy.

[00:30:05] Speaker 04:
And among other things, First English Evangelical in a footnote specifically says, no, the remedy is not just a matter of grace.

[00:30:15] Speaker 04:
Footnote six, I think it is.

[00:30:17] Speaker 04:
Specifically rejecting the SG's argument on this point.

[00:30:20] Speaker 01:
And I'm not at all sure that the Nevada District Court cannot order the government in the correct circumstances to restore all the water taken.

[00:30:32] Speaker 05:
I'm not sure of that either, Your Honor, which is

[00:30:35] Speaker 05:
So I think that's still open and, you know, again, we don't know at all what the resolution of the district court action will be, but I don't see a bar for them seeking the injunctive relief in that court.

[00:30:49] Speaker 01:
Wrap it up because your time's expired.

[00:30:53] Speaker 05:
Sure.

[00:30:53] Speaker 05:
I will say, you know, again, this case is like Tohono.

[00:30:59] Speaker 05:
I mean, Tohono is clearly controlling it.

[00:31:02] Speaker 05:
The operative facts are the determinative.

[00:31:04] Speaker 05:
And the operative facts are those alleged in the complaint minus the relief requested and minus the legal theory.

[00:31:11] Speaker 05:
And here it's the single act that is the basis of their complaint in both the District of Nevada and both in the CSC.

[00:31:19] Speaker 05:
And again, I will say that I appreciate your questions, the recognition of hardship.

[00:31:25] Speaker 05:
I think it's a possibility and it's something that the Supreme Court has acknowledged back in Keene in 1993 and in Tohono O'odham

[00:31:34] Speaker 05:
Congress is aware, Congress has not acted, Congress has spoken, has kept this on the books for 150 years, and the Supreme Court has spoken, and the answer on the facts of this case are very clear.

[00:31:48] Speaker 05:
I will sort of add, too, and... You missed your sentence.

[00:31:52] Speaker 04:
Thank you.

[00:31:52] Speaker 04:
I do want to ask you one more thing.

[00:31:55] Speaker 04:
In your Ninth Circuit brief on the Bivens claim, you specifically argue as a reason to reject a Bivens claim

[00:32:04] Speaker 04:
that the Tucker Act is available to provide reasonable, certain, and adequate provision that yields just compensation.

[00:32:13] Speaker 04:
How is that possible if, as is almost inevitable here, the Nevada litigation doesn't end before August 7, 2016?

[00:32:23] Speaker 05:
My answer to that, Your Honor, is that it's available within the statute of limitations period.

[00:32:33] Speaker 05:
We recognize that litigation takes a long time in instances, but they're also the facts of this case.

[00:32:40] Speaker 05:
I mean, the a diversion was alleged to have occurred in 2010.

[00:32:44] Speaker 05:
They brought both actions in 2012.

[00:32:48] Speaker 05:
So the hardship in this case is far from clear, as it was far from clear in Tohono O'odham.

[00:32:55] Speaker 05:
It's different facts, but it's not clear that there's hardship created by simply

[00:33:02] Speaker 05:
the period in which litigation takes in this case.

[00:33:06] Speaker 05:
So, you know, we recognize, you know, the Tucker Act's availability, but the Tucker Act... You've got another ten seconds.

[00:33:14] Speaker 05:
Sure.

[00:33:14] Speaker 05:
The Tucker Act is available for a six-year period.

[00:33:17] Speaker 05:
Thank you.

[00:33:21] Speaker 01:
I extend Mr. Becker's time to a total of five minutes.

[00:33:26] Speaker 00:
I don't even know if I'll use that much time.

[00:33:28] Speaker 00:
I don't think our case is at all like the Tohono

[00:33:32] Speaker 01:
Are you familiar with Capehart?

[00:33:35] Speaker 00:
I've heard the name.

[00:33:35] Speaker 00:
I'm sure I probably read it, but I don't... It's out of the Amargo-Savalli.

[00:33:38] Speaker 01:
It's a U.S.

[00:33:39] Speaker 01:
Supreme Court case involving water rights in that area, and that's why I asked.

[00:33:44] Speaker 00:
Okay.

[00:33:44] Speaker 00:
That's probably why I've heard of it.

[00:33:46] Speaker 00:
I can't think much about it here.

[00:33:49] Speaker 00:
I don't think our case is like Tohono O'odham.

[00:33:53] Speaker 00:
They were seeking relief in two ways that would have given them duplicative relief.

[00:34:01] Speaker 00:
There also was no statute of limitations in that case.

[00:34:06] Speaker 00:
And the fact that the court addressed that, we complain, of course, as dicta, and that this court shouldn't follow it.

[00:34:14] Speaker 00:
Someone mentioned earlier, I believe it was Judge Chan, that the language and the complaints are very much the same.

[00:34:21] Speaker 00:
I would refer him also to, or you, I should say, to Komish, because it says specifically that

[00:34:30] Speaker 00:
Side-by-side comparisons of complaints for common verbiage is inadequate.

[00:34:33] Speaker 00:
Rather, the court must isolate and compare the facts that must be proven to recover on a given claim.

[00:34:39] Speaker 00:
That's our whole idea that, which leads me to another point, that's our whole idea that if you set aside the Little Tucker Act claim, we would wind up with no common or redundant litigation because the elements and evidence.

[00:35:00] Speaker 04:
the nature of your property right, I'm speaking loosely here, in the water, present in the Nevada case?

[00:35:13] Speaker 00:
With respect to, let me just go through it, with respect to the tort, it doesn't matter, because I mean, it doesn't matter.

[00:35:18] Speaker 04:
They've agreed that the flooding, the tort claim is irrelevant to 1500.

[00:35:23] Speaker 00:
With, I mean, probably only with respect to standing, right?

[00:35:28] Speaker 00:
The substantive and procedural due process

[00:35:30] Speaker 00:
I mean, probably only with respect to standing, because the fact that they didn't get Clean Water Act permit, the fact that they didn't follow FEMA regulations is implemented by the county.

[00:35:40] Speaker 00:
This is our procedural due process claim.

[00:35:42] Speaker 03:
I mean, that doesn't have very much to do with... Have they made a standing objection in the Nevada case?

[00:35:49] Speaker 00:
I think they made all the objections at the beginning, which is part of it, which, you know, the Twombly-Iqbal situation is part of what makes this whole thing worse, because it adds a year of time and extension.

[00:36:00] Speaker 00:
So yeah, they probably did on their first motion to dismiss and their second motion to dismiss, you know, to get sort of those blanket things.

[00:36:08] Speaker 00:
I don't specifically remember, but I'd be surprised if they didn't.

[00:36:14] Speaker 00:
To the issue of whether can we be made whole in one court alone, I think the answer to that question is clearly no.

[00:36:20] Speaker 00:
You probably knew that when you asked the question.

[00:36:27] Speaker 00:
And unless you have any other questions, those are the points I wanted to make on my rebuttal.

[00:36:33] Speaker 01:
Let me just say to you, Council, to the extent that you're going to try to assert state or county implicated rights, you better take a look at Cape Heart.

[00:36:48] Speaker 01:
Thank you, Council.

[00:36:49] Speaker 00:
Since I got 140 and you said that, can I ask you why you think that's a concern here?

[00:36:57] Speaker 01:
The thing I'm thinking about... I'm not going to teach you a lot.

[00:37:01] Speaker 01:
Okay.

[00:37:02] Speaker 01:
Just take a look at it.

[00:37:03] Speaker 01:
Okay.

[00:37:04] Speaker 00:
Then I'm going to guess... Probably about 1979.

[00:37:11] Speaker 00:
FEMA regulations are implemented by the county, if that's what you're talking about, but that's a federal statute that has the FEMA regulations implemented by the county.

[00:37:21] Speaker 00:
And even without the Clean Water Act violation is we take a procedural to process problem.

[00:37:27] Speaker 00:
So thank you for your time.