[00:00:00] Speaker 02: panel this morning and uh... when we finished with that case will recess and the panel will be reconstituted and that case is number fourteen fifty fifteen shinnecock indian nation versus united states mister byxam is that how you pronounce it? [00:00:33] Speaker 00: Your honors, my name is Stephen Lawson. [00:00:36] Speaker 00: I am appearing here this morning on behalf of my client, the Appellant in Plaintiff, the Shinnecock Indian Nation. [00:00:43] Speaker 00: May it please the Court. [00:00:45] Speaker 02: Could you tell us what is going on with the appeal in the Second Circuit? [00:00:51] Speaker 02: Yes, Your Honor. [00:00:51] Speaker 02: Has that started to move forward now? [00:00:55] Speaker 00: Yes, Your Honor. [00:00:56] Speaker 00: The appeal has been constituted, the initial appeal back in 2006, [00:01:01] Speaker 00: was a protective appeal because of an interaction of district court appellate rules. [00:01:07] Speaker 00: The true appeal, if you will, was filed several months ago. [00:01:10] Speaker 00: Our opening brief is due March 5th. [00:01:14] Speaker 02: And that was being held up in part because of something that was happening at the Interior Department? [00:01:19] Speaker 02: Is that right? [00:01:20] Speaker 00: There were some post-judgment motions, 59E motions. [00:01:24] Speaker 00: But as I indicated, because of the interaction between local practices and the appellate rules, [00:01:30] Speaker 00: It was necessary to file the initial appeal and then have it stayed. [00:01:33] Speaker 00: Well, I understand that. [00:01:35] Speaker 00: But what was happening at the Interior Department? [00:01:37] Speaker 00: Anywhere. [00:01:38] Speaker 00: Interior Department? [00:01:40] Speaker 02: Am I misunderstanding? [00:01:41] Speaker 00: No, it has nothing to do with what was going on in the Interior Department, Your Honor. [00:01:44] Speaker 00: Oh, OK. [00:01:45] Speaker 00: What it had to do with is that there remained a, well, strike that. [00:01:49] Speaker 00: It did in a roundabout way. [00:01:51] Speaker 00: The nation had a motion for leave to amend the complaint that was still pending before the court. [00:01:59] Speaker 00: The nation withdrew that at the end of October of last year, 2014. [00:02:03] Speaker 00: One of the reasons that it was continued to be stayed that motion is that the tribe was attempting to get the United States to come in on behalf of the nation under its trust responsibility. [00:02:18] Speaker 00: The United States had only begun to actually actively acknowledge its trust responsibility once the Shinnecock Indian Nation had been federally recognized at the end of 2010. [00:02:30] Speaker 00: So is the United States filing a brief in the Second Circuit? [00:02:35] Speaker 00: Not that I'm aware of. [00:02:37] Speaker 00: The United States declined to make a decision on whether it would or would not come in in the district court in this matter, rather than bring suit against the United States, which was the nation's right. [00:02:50] Speaker 00: But nonetheless, rather than do that, we elected to simply withdraw our motion for leave to amend, bring it later as a independent [00:02:59] Speaker 00: new cause of action, if necessary, what we propose to bring as an amended complaint, and proceed with the appeal. [00:03:07] Speaker 02: Okay. [00:03:07] Speaker 02: Why don't you go ahead with this case? [00:03:09] Speaker 00: Thank you, Your Honor. [00:03:12] Speaker 00: As Your Honors are aware, in 2005, a three-judge panel of the United States Court of Appeals for the Second Circuit announced a fundamentally new rule of law applicable to Indian land claims, what were called ancient Indian land claims. [00:03:26] Speaker 00: Now, these are basically claims that accrued in the late 18th [00:03:29] Speaker 00: to early 1800s. [00:03:30] Speaker 00: That new rule barred ancient Indian land claims brought under the Federal Non-Indian Intercourse Act, and they were barred by the passage of time and the natural consequences of that passage of time. [00:03:46] Speaker 00: The following year, in December of 2006, the U.S. [00:03:50] Speaker 00: District Court for the Eastern District of New York dismissed the Shinnecock Indian Nation's land [00:03:56] Speaker 00: based on the Non-Intercourse Act, based on this ruling of the Second Circuit Court of Appeals from 2005. [00:04:02] Speaker 02: Well, you have this theory that somehow the district court breached a trust obligation under the Non-Intercourse Act, which gives rise to this cause of action. [00:04:14] Speaker 00: Well, that is true, Your Honor, but if I might. [00:04:16] Speaker 00: Our view is that, first off, there is only one case or controversy. [00:04:22] Speaker 00: What we've expressed in the complaint and in the brief [00:04:25] Speaker 00: are three separate legal theories for recovery. [00:04:29] Speaker 00: Our view is that viewing the nation's claims through the vantage or the context of taking jurisprudence provides the best analytical structure to analyze the Shinnecock Indian Nations claims in this case. [00:04:45] Speaker 00: Because there is existing case law that answers the various questions that have been [00:04:53] Speaker 00: put forth by the United States, such as who can affect a taking, when does the cause of action accrue for such a taking, and whether it's right. [00:05:08] Speaker 00: While it is true that there is considerable Indian trust precedent in this court and in the US Supreme Court, it basically does not go to the question [00:05:22] Speaker 00: of when a cause of action accrues, who is it that can be responsible for taking that action for a cause to accrue. [00:05:30] Speaker 02: We have a whole series of cases saying you can't bring a takings claim in the court of federal claims based on the action of another federal court. [00:05:40] Speaker 02: How do you get around that? [00:05:42] Speaker 00: Well, Your Honor, you also have jurisprudence that indicates that such claims do accrue and that they can be brought. [00:05:50] Speaker 00: I think that the distinction [00:05:52] Speaker 02: The case is- Which cases are those? [00:05:54] Speaker 02: Pardon? [00:05:55] Speaker 02: Which cases are those? [00:05:56] Speaker 00: I think that the most important cases in particular involving, the one case involving an Indian land claim case is the case involving the Catawba Indian tribe of South Carolina versus the United States. [00:06:12] Speaker 00: That is cited in our brief. [00:06:14] Speaker 00: In that case, as your honors are aware, Congress had announced [00:06:19] Speaker 00: the new rule of law that had made applicable the adverse possession law in the state of South Carolina. [00:06:25] Speaker 00: That then was applied to an existing non-intercourse act land claim that the tribe had. [00:06:33] Speaker 00: Basically, 10 years following the enactment of the congressional legislation, the statutory prescriptive period under South Carolina had accrued. [00:06:42] Speaker 00: No one knew at the time for sure that South Carolina applied as a result of the congressional legislation. [00:06:49] Speaker 00: That case then went to the US District Court where the tribe brought its claim, at which point it was dismissed based upon the application of South Carolina law as a result of this change in law by Congress. [00:07:01] Speaker 00: It went to the Fourth Circuit Court of Appeals and to the US Supreme Court. [00:07:06] Speaker 00: Thereafter, the tribe, once it was clear, having gone to the US Supreme Court, that application of this rule of law and the decision that it did apply, [00:07:17] Speaker 00: to borrow the tribe's land claim by the district court and having been upheld by the Supreme Court, the tribe brought a takings claim. [00:07:24] Speaker 02: But that wasn't based on the action of the court. [00:07:28] Speaker 02: It was based on the action of Congress, right? [00:07:30] Speaker 00: Well, it was. [00:07:31] Speaker 00: That's correct, but what I wanted to emphasize, Your Honor, is that in the context of when it accrued, there were alternative accrual dates and alternative dates upon which the statute of limitations, which eventually borrowed the claim, this court held [00:07:47] Speaker 00: to have accrued. [00:07:49] Speaker 00: And one of those was, assuming that there had been equitable tolling because it was unknowable what the effect of that congressional legislation was, making applicable a new rule of law, this court held that it would have accrued at the time of the dismissal of the Indian Non-Intercourse Act land claim by the district court. [00:08:10] Speaker 00: In addition, I think that the logic of taking cases, [00:08:16] Speaker 00: which is always emphasized with respect to the other branches of government, that it matters not who it is that affects an inverse condemnation type taking, but rather what the effect of the authorized action by a government official is on the property rights of the plaintiff at issue that is the deciding factor. [00:08:40] Speaker 00: There should be no difference between a court and the executive branch in this regard. [00:08:45] Speaker 00: Neither has the authority to directly condemn property, the executive occasionally when he's authorized by Congress or his agencies are. [00:08:53] Speaker 00: But if authorized action by an executive agency or official results in an adverse impact sufficient on protected vested property interests, it's the consequence that drives whether a taking has occurred or not, not who has done it, and not whether they're authorized to engage in condemnatory action. [00:09:16] Speaker 00: Now, it is true that this court has indicated that it could not review what, and the Court of Federal Plains has indicated that it could not review what other federal courts have done. [00:09:30] Speaker 00: But it's also true in the Boise Cascade case, which has been cited in our briefs, that this court explained what it meant to not be able to review or to be able to review. [00:09:41] Speaker 00: And what it was speaking of is that this court, or the Court of Federal Claims, doesn't have authority to sit in direct review of what another federal court does. [00:09:52] Speaker 00: But it doesn't mean that it cannot determine whether what that court has done, Boise Cascade doesn't speak to whether it's a court or not, but whether it's an agency, whether the effect of what it has done has constituted a taking. [00:10:06] Speaker 00: Now, I would cite your honors to two other cases. [00:10:09] Speaker 00: One of which was not cited in the brief, but is an underlying case for cases that are cited in the brief, which are the Rails to Trails cases. [00:10:17] Speaker 00: In the original Rails to Trails case, in Prezzo versus Interstate Commerce Commission, the United States Supreme Court indicated that with respect to an agency, the ICC, which had no authority to condemn, when it took an action that adversely affected property rights, affected a taking, [00:10:37] Speaker 00: under the Rails to Trails Act. [00:10:40] Speaker 00: Now, it didn't have to always constitute a taking. [00:10:42] Speaker 00: Congress did not say go out and condemn. [00:10:44] Speaker 00: And the ICC had no authority to condemn. [00:10:46] Speaker 00: It had ruled. [00:10:48] Speaker 00: Direct appeal from that decision went to the same Second Circuit Court of Appeals as from the District Court in our case. [00:10:56] Speaker 00: It then went to the US Supreme Court, which had ruled that while Congress under the Rails to Trails Act had exercised its commerce authority lawfully, [00:11:06] Speaker 00: that if the alleged effect of the exercise of that authority by an official authorized by Congress to do so was to affect the taking of property, that it was premature to take that to the Court of Appeals. [00:11:19] Speaker 00: The proper course, it said, was to take that to the Court of Federal Claims, which, in fact, the plaintiffs in that case did. [00:11:27] Speaker 00: And this court, a few years later in Prezzo versus the United States, which is cited in our brief, ruled that, in fact, the taking had occurred. [00:11:35] Speaker 00: But only by the time it got to this panel en banc did the full court realize that, in fact, the taking had occurred and was in the jurisdiction of this court. [00:11:45] Speaker 00: Now, I would suggest, Your Honor, that whether it is a court that makes a decision or an executive agency who is making an adjudicated decision, appeal from each of which lies to the Second Circuit Court of Appeals and then to the US Supreme Court on certiorari, it makes no difference [00:12:06] Speaker 00: whether the decision that applies the rule of law that it itself did not make has the effect on property rights that if affected by anyone else, Congress or the executive, that it would in fact be a taking. [00:12:21] Speaker 02: Your whole theory is that the taking occurred because the district court rendered an incorrect decision. [00:12:28] Speaker 00: No, not at all, Your Honor, not at all. [00:12:30] Speaker 00: On the contrary, we think that the district court was bound to rule as it did. [00:12:34] Speaker 00: And it's not a question of whether it made a mistake or not. [00:12:36] Speaker 00: We're not saying that any court made a mistake. [00:12:38] Speaker 00: What we're saying is that if Congress... Well, I think that they're wrong, Your Honor. [00:12:45] Speaker 00: But that's not the point, because it's not relevant to whether the new rule of law was announced. [00:12:50] Speaker 00: The question is, did it announce a new rule of law? [00:12:53] Speaker 00: I think unequivocally the answer is yes. [00:12:55] Speaker 02: If Congress had done what the Second Circuit did... The Second Circuit and the District Court have said you don't have a property clause. [00:13:03] Speaker 02: You don't have any cause of action here. [00:13:06] Speaker 02: And you're saying, in the Takings case, that we did have a cause of action that was taken away from us by the ruling that we didn't have a claim. [00:13:15] Speaker 02: That's basically your theory. [00:13:16] Speaker 00: Well, Your Honor, even the Second Circuit never indicated that these cases weren't otherwise valid other than the rule of law. [00:13:21] Speaker 02: Isn't that your theory, that you had a cause of action here that was taken away by the District Court in the Second Circuit, right? [00:13:30] Speaker 01: Correct. [00:13:31] Speaker 02: So in order for us to decide [00:13:33] Speaker 02: that you had a property right that was taken, we'd have to disagree with him and say, yes, you did have a property right. [00:13:38] Speaker 00: No, not at all. [00:13:39] Speaker 00: Neither court had indicated that we didn't have a cause of action. [00:13:42] Speaker 00: What they held was that it was barred. [00:13:44] Speaker 00: Let me suggest that if Congress had announced the rule of law that the Second Circuit did and the district court were to have applied it, it would have been a taking. [00:13:52] Speaker 00: Even Congress, notwithstanding what the United States argues, cannot impose a statute of limitations to time bar a claim [00:14:01] Speaker 00: for the compensation for the taking of an interest in land and have it apply immediately without a fair chance for someone to actually bring a claim before that statute runs. [00:14:14] Speaker 01: You're not saying that Congress couldn't have a statute of limitations on these claims. [00:14:19] Speaker 00: Congress, in fact, has statute of limitations on these claims. [00:14:21] Speaker 00: And in fact, our claim is within that statute prescribed by Congress. [00:14:25] Speaker 00: That is one of the reasons that it's an entirely new rule of law. [00:14:28] Speaker 01: The statute of limitations doesn't have any limit on it. [00:14:32] Speaker 00: Well, that's not quite true. [00:14:33] Speaker 01: What would happen if Congress had at some point in time imposed a clear statute of limitations, six years on your cause of action? [00:14:46] Speaker 00: Well, the point is that it would be six years from the time that the statute took effect. [00:14:53] Speaker 00: In this case, what we're talking about is if Congress passed a claim, a statute of limitations, [00:14:58] Speaker 00: and said that all claims under the Indian Non-Intercourse Act that arise 100 years ago, including ones that are pending in a district court right now, are hereby barred by the passage of time. [00:15:08] Speaker 00: That, when applied to a cause of action, would constitute a taking. [00:15:14] Speaker 00: Yes. [00:15:15] Speaker 00: And it would command just compensation. [00:15:18] Speaker 00: And we cite, if I recall, for that result, [00:15:26] Speaker 00: On page five of our reply brief, we cite a rivers versus something, I can't remember the case, I'm sorry, but we do cite a U.S. [00:15:34] Speaker 00: Supreme Court authority for that proposition on the page five of our reply brief. [00:15:40] Speaker 00: I'll come up with it later. [00:15:41] Speaker 02: If I have a chance to... Okay, Mr. Block, you're out of time. [00:15:47] Speaker 02: We'll give you two minutes for a bottle. [00:15:51] Speaker 02: Thank you. [00:15:55] Speaker 03: the short morning may please the court and jennifer newman from the united states i'm sorry that's okay little two names it makes it easy to get confused uh... the court of federal claims properly dismissed the nation's breach of trust claims here both because the court had no jurisdiction over them under the indian tucker act the claims were not right the court was also correct in denying the nation the [00:16:23] Speaker 03: permission to amend their complaint to add a judicial takings claim. [00:16:27] Speaker 03: Given that the nation focused on the judicial takings issue, I'd like to begin there. [00:16:30] Speaker 03: But of course, if the court have any questions about the other issues, I would be happy to answer them or even start there. [00:16:38] Speaker 02: The theory seems to be that if Congress had enacted the latches rule that was applied by the Second Circuit, that that would be a taking and that [00:16:49] Speaker 02: when that rule was judicially created, it had the same effect, right? [00:16:54] Speaker 03: Yes, that is their theory. [00:16:56] Speaker 02: You want to address that? [00:16:57] Speaker 03: Of course. [00:16:59] Speaker 03: So as sort of a threshold matter, the CFC did not address whether a digital takings claim would be right. [00:17:06] Speaker 03: But of course, here, the nation had not exhausted its direct review in the courts of appeals. [00:17:11] Speaker 03: And so for that reason alone, it would have been proper to refuse their request to amend the complaint because the claim simply was not right. [00:17:20] Speaker 03: But on the substance of the claim, there are two problems with their theory. [00:17:26] Speaker 03: The first one is that they do not have a property interest in their cause of action because their claim, their cause of action has not yet been vested. [00:17:33] Speaker 03: The second problem is that [00:17:36] Speaker 03: They're alleging that the action of the government that took their property interest was this decision by the Eastern District of New York. [00:17:44] Speaker 03: And this court has a long line of cases that say that the Court of Federal Claims does not have jurisdiction here, claims that challenge the correctness of the holding of the district court in another case. [00:18:02] Speaker 03: this fall squarely within. [00:18:04] Speaker 01: I don't think you're answering the question the presiding judge put you to, which is, if Congress had enacted the Latches Rule, would that have been a taking? [00:18:16] Speaker 03: We made an argument in our brief that that would not have been a taking, that Congress can, in fact, change the rule of law in the middle of the case. [00:18:25] Speaker 03: Remind me what that argument is? [00:18:30] Speaker 03: Please. [00:18:31] Speaker ?: Sure. [00:18:33] Speaker 03: Basically that Congress has plenary authority to change the cause of action and change all sorts of rules in the middle of a case and those rules apply immediately. [00:18:43] Speaker 03: The nation has cited some cases to the contrary that seem to indicate that no, in fact, Congress would have to give a reasonable amount of time for claimants to bring their claims if it were shortening the cause of action. [00:18:55] Speaker 03: This court did not need to address that question. [00:18:59] Speaker 03: because there are several other reasons why such a claim would fail. [00:19:04] Speaker 03: So to the extent that it's messy, you don't need to address it. [00:19:08] Speaker 02: And those other reasons are apart from rightness? [00:19:11] Speaker 03: Apart from rightness, that there is no vested property interest yet in the nation's claims because their cause of action against the state of New York has not been reduced to final judgment. [00:19:21] Speaker 03: So their property interest in their claim has not vested. [00:19:25] Speaker 02: I don't understand that. [00:19:26] Speaker 02: I mean, if somebody has a claim and it's wiped out, why isn't that wiping out property? [00:19:33] Speaker 03: The reason is, I think it basically comes down to that property interest is too uncertain. [00:19:37] Speaker 01: That's rightness, right? [00:19:40] Speaker 01: What's the difference between that and rightness? [00:19:43] Speaker 03: The rightness argument that I'm making is a little bit different than that. [00:19:46] Speaker 03: I suppose you could put rightness labels. [00:19:48] Speaker 01: Why isn't it a rightness consideration? [00:19:51] Speaker 03: I suppose it could be put in that box, but I think it makes more sense. [00:19:55] Speaker 03: The presiding judge was asking you what issues aside from rightness. [00:19:58] Speaker 03: Well, I thought that he was asking aside from the rightness argument that I had articulated, which was that in this particular case, the nation's claims, it has claimed, it's alleging that the [00:20:10] Speaker 01: second-circuit precedent on latches is incorrect. [00:20:18] Speaker 03: The next point is that the Court of Federal Claims does not have jurisdiction over claims challenging a decision of another [00:20:28] Speaker 03: federal district court. [00:20:29] Speaker 01: Those cases... That's our body of case law. [00:20:32] Speaker 03: That's correct. [00:20:33] Speaker 03: That's the alibiarte in that line of cases. [00:20:37] Speaker 03: It's quite clear that it's simply not within the jurisdiction of the Court of Federal Claims. [00:20:41] Speaker 03: Whether or not you could conceive of what happened... Are those anonymous issues? [00:20:47] Speaker 03: I don't think so, no. [00:20:50] Speaker 03: But of course, this panel would be bound by those, regardless. [00:20:57] Speaker 03: And so given that, you know, even if you could conceive of what the nation is complaining of as a takings claim, the jurisdiction is not proper in the Court of Federal Claims because it would require review of the decision of the Eastern District of New York. [00:21:15] Speaker 02: But if a congressional enactment [00:21:18] Speaker 02: of a latches rule would be a taking, let's assume that hypothetically, I understand that you don't agree with that and you say there's authority on both sides. [00:21:29] Speaker 02: Why wouldn't a judicial creation of a latches doctrine have the same effect? [00:21:46] Speaker 03: I think the best way to think about it is what the nation is asking for is something that is really unprecedented in the federal courts. [00:21:58] Speaker 03: To say that an action of a court as opposed to the executive or Congress could constitute a taking. [00:22:06] Speaker 03: And the reason for that is traditionally we conceive of the courts as the branch of government that declares what the law is. [00:22:15] Speaker 03: It's not a body that creates law, that prescribes new law. [00:22:18] Speaker 02: So the theory is that the Laches limitation was always inherent in the cause of action, and it isn't creating a new limitation. [00:22:29] Speaker 03: Essentially, yes. [00:22:30] Speaker 03: To the extent that the tribe had a property interest in their cause of action, it was always subject to limitations such as Laches or other equitable or common law doctrines that courts have always applied to these sorts of claims. [00:22:43] Speaker 03: Now, if you get into the question of whether or not the Second Circuit and the Eastern District of New York essentially created a new rule, then that brings you to reviewing the decision of those courts, which is something that this court has said repeatedly. [00:22:58] Speaker 03: The Court of Federal Claims does not have authority to do. [00:23:02] Speaker 03: Another way to think about it, I don't believe counsel for the tribe discussed the Stop the Beach renourishment case from the Supreme Court where four justices suggested that there could be such a thing as institutional taking. [00:23:14] Speaker 03: But even those four justices would not have said that the proper course was to go to the Court of Federal Claims or in that case a state tribunal and bring a separate takings claim, which is what the tribe is attempting to do here. [00:23:29] Speaker 03: But instead, it would be to make the argument on direct review that the rule of law announced by the state court was a taking of a property interest. [00:23:40] Speaker 01: And so even there, that gives a distinction without a difference. [00:23:46] Speaker 03: I think it makes a great deal of difference because if the four justices in Stop the Beach who would have recognized judicial takings claim theory, if they were correct, what they would have said should have happened [00:24:07] Speaker 03: is that the decision of the Supreme Court of Florida should have been reversed. [00:24:11] Speaker 01: Not in that case. [00:24:13] Speaker 01: Not that the... The whole subject of possibly bringing a takings case from the Court of Federal Claims wasn't on the table, was it? [00:24:21] Speaker 01: No. [00:24:21] Speaker 01: The Supreme Court justices who thought there might be such a takings claim didn't say, oh, yeah, and by the way, there is no such takings claim by going directly to the Court of Federal Claims. [00:24:31] Speaker 03: Well, certainly there it was the state that was alleged to have taken it. [00:24:35] Speaker 03: But they did not suggest that the proper course was to go into the state court system, whatever their equivalent of the CFC might be, and allege a takings claim and try to get money damages for the change in the rule of law. [00:24:48] Speaker 03: And so to the extent that that authority is something that we're thinking about. [00:24:52] Speaker 01: If Senecax are not going to sue the federal government in the state court, right? [00:24:56] Speaker 03: No, no, no. [00:24:56] Speaker 03: But the parallel would be that they would sue, as they have done, sue the government in the CFC. [00:25:03] Speaker 03: It's a question of, [00:25:05] Speaker 03: Those two cases are a little bit difficult to think about because you have one case being a state court system that was alleged to have done the taking in here with the federal court system. [00:25:14] Speaker 03: So the question is, where should that claim go? [00:25:17] Speaker 03: The Stop the Beach plurality suggested that it should go up through the direct review process in that case all the way to the state court. [00:25:24] Speaker 02: So you're saying they should have argued or they should argue in the district court case in New York that the Latches limitation is unconstitutional because it amounts to a taking. [00:25:34] Speaker 03: Certainly that's what the Stop the Beach Florality would suggest that they do, rather than bringing a separate claim for takings by a court. [00:25:44] Speaker 03: Unless there are more questions. [00:25:47] Speaker 01: Interesting twist. [00:25:48] Speaker 01: I mean, because ordinarily, when you're arguing something is a takings, you don't have to say what the Corps of Engineers did was unconstitutional. [00:25:57] Speaker 02: Or you can't defeat what the Corps of Engineers did by claiming that it's a taking. [00:26:02] Speaker 03: That is correct. [00:26:03] Speaker 03: It is, in fact, a very strange way to look at takings jurisprudence. [00:26:07] Speaker 03: And I think that- Yes. [00:26:08] Speaker 01: And only four people, four justices, have said they might, on some nice spring day, look at things that way. [00:26:15] Speaker 03: That is correct. [00:26:16] Speaker 03: But of course, the other justices of the court didn't even suggest that there could be such a thing as the judicial takings, which is, to my research and knowledge, no court has ever held that the judicial branch could affect the takings. [00:26:32] Speaker 03: stop the beach as close as we've come. [00:26:34] Speaker 03: And I think that the difficulty that you identified comes from the mental knots you would have to twist yourself into to try to conceive of what a proper judicial takings claim could be if there were, in fact, such a thing. [00:26:54] Speaker 03: However, I think that really what this comes down to is [00:26:59] Speaker 03: the CFP would have to review the judgment of the district court for the Eastern District of New York if it were to hear. [00:27:05] Speaker 02: I'm not sure that's true because they say we have no problem for federal claims with that ruling. [00:27:12] Speaker 02: But to the extent that it was correct, it eliminated [00:27:16] Speaker 02: our cause of action based on latches, and that that's the same as though Congress had stepped in and eliminated our cause of action based on latches. [00:27:25] Speaker 02: So they're not saying the decision was wrong. [00:27:28] Speaker 02: They're saying that it was arguably correct, but that that results in a taking, which is not uncommon when you're talking about legislation. [00:27:38] Speaker 02: You first determine that the legislation had the claimed effect, and then if it did, then you bring a taking spot. [00:27:47] Speaker 03: Right, but Your Honor, even you yourself said it. [00:27:51] Speaker 03: If that decision was correct, that is what the CFC would have to be reviewing. [00:27:56] Speaker 03: Was that a departure from previous precedent to say that latches applied in this sort of situation? [00:28:03] Speaker 03: That's exactly the question that the CFC would have to look at. [00:28:07] Speaker 03: And that is just what this court has said it does not have jurisdiction to do. [00:28:12] Speaker 03: It's to review the correctness of those decisions of other district courts, other courts in the United States. [00:28:19] Speaker 03: And so for that reason, I think that the district court, I'm sorry, the CFC was absolutely proper in denying the request to amend the complaint. [00:28:29] Speaker 03: With respect to the other claims, [00:28:33] Speaker 03: I'd like to speak first to the Indian Tucker Act because the tribe made an argument in their brief that their claims should have been dismissed without prejudice. [00:28:42] Speaker 03: The dismissal with prejudice was proper because the Indian Tucker Act goes to the jurisdiction of the Court of Federal Claims and it lacked jurisdiction under that act and it lacked restriction for two reasons. [00:28:54] Speaker 03: First, there's nothing in either the Non-Intercourse Act or in federal common law. [00:29:02] Speaker 03: that imposes a specific fiduciary duty on the courts of the United States makes them fiduciaries to tribes. [00:29:09] Speaker 03: As opposed to the executive. [00:29:12] Speaker 03: Certainly as distinct from the executive, we would argue that there's also no fiduciary duty of the kind required by the Indian Tucker Act on the executive either, but this court obviously doesn't need to reach that question because that's not the tribe's theory. [00:29:25] Speaker 03: Their theory is that the courts owed them a fiduciary duty to hear their claims on the merits. [00:29:31] Speaker 03: But the Indian Tucker Act does not set forth such a specific fiduciary duty, nor does it indicate that if such duty existed that it would be money-mandating. [00:29:40] Speaker 03: And for those two reasons, there's no jurisdiction under the Indian Tucker Act. [00:29:46] Speaker 03: In addition, those two claims are also not ripe, because as I indicated, of course, the tribe still has an ongoing appeal process in the Second Circuit. [00:29:55] Speaker 03: It could also seek review from the Supreme Court until those actions are completed [00:30:01] Speaker 03: it would be unknown whether it would ever be necessary for the Court of Federal Claims to get involved in, frankly, any of the claims that the tribes have asserted, because it could very well be that the Second Circuit will decide to abandon the Latchett Doctrine that they have set forth in their prior cases. [00:30:20] Speaker 01: Do you want the underlying drivers in the Rightness Doctrine that the Constitution doesn't want us giving advisory opinions? [00:30:29] Speaker 01: Yes. [00:30:30] Speaker 01: Well, why doesn't that rightness consideration go to both of the trust theories here? [00:30:37] Speaker 01: You say we should reach the merits? [00:30:41] Speaker 01: I'm saying that you could reach the merits, because both of those... But then, in the next breath, you tell us that those two things are not right, because events could occur in the Second Circuit that make the controversy go away. [00:30:55] Speaker 03: Certainly the CFC could have stopped after addressing rightness. [00:30:59] Speaker 03: Or it could have addressed the Indian Tech Act argument first and then stopped. [00:31:04] Speaker 03: Because they're both jurisdictional? [00:31:06] Speaker 03: Correct. [00:31:06] Speaker 03: They're both jurisdictional. [00:31:09] Speaker 03: I see my time is up unless there are further questions. [00:31:13] Speaker 02: OK. [00:31:13] Speaker 02: Thank you, Ms. [00:31:14] Speaker 02: Newman. [00:31:15] Speaker 02: Mr. Block, some of you have two minutes. [00:31:19] Speaker 02: Thank you, Your Honor. [00:31:20] Speaker 00: Your Honor, the case I was referring to that I couldn't remember the name of on page five of our reply brief is Rivers v. Roadway Express, U.S. [00:31:28] Speaker 00: Supreme Court. [00:31:29] Speaker 00: cited in the brief. [00:31:32] Speaker 00: Let me also address the question of whether cause of action for the taking of compensation for the taking of land is property. [00:31:39] Speaker 00: This court and others have held that it absolutely is. [00:31:42] Speaker 00: We would cite and have cited Alliance of Descendants, also Catawba Indian Tribe versus United States, both of which are Federal Circuit cases cited in our briefs. [00:31:52] Speaker 00: And I would also cite Shanghai Power Company versus the United States for claims court 237 at 241. [00:32:00] Speaker 00: Not binding on this court, but nevertheless, I think, good precedent. [00:32:04] Speaker 00: There are others as well, but those are the ones that we have cited. [00:32:08] Speaker 00: With respect to this Latchez rule, it was in fact akin to a statute of limitations, although the court called it Latchez, a claim that it was applying a equitable defense doctrine that the US Supreme Court earlier in the City of Sherrill case earlier that year had announced. [00:32:29] Speaker 00: Subsequently, in Petraea v. MGM, which we cite on page 6 of our reply brief, the U.S. [00:32:35] Speaker 00: Supreme Court has completely denied that it ever created or authorized or has approved or upheld any rule of law that a cause of action can simply be eliminated at the outset, at the motion to dismiss stage, on the basis of an equitable doctrine. [00:32:55] Speaker 00: Relief might be able to be, but the cause of action, if it's within the congressionally prescribed statute of limitations, absolutely cannot be, from the U.S. [00:33:06] Speaker 00: Supreme Court's point of view. [00:33:07] Speaker 00: The point I'm getting at is that this Court of Federal Claims did not have to sit in direct review. [00:33:13] Speaker 00: It did have to do one thing, and that was determine whether a new rule of law had been created. [00:33:18] Speaker 00: I would suggest that that is no more difficult nor unusual. [00:33:21] Speaker 00: and determine whether Congress has created a new rule of law or whether an executive agency has created a new rule of law. [00:33:27] Speaker 02: Okay. [00:33:27] Speaker 02: Thank you, Mr. Locks. [00:33:29] Speaker 02: I'm running out of time. [00:33:29] Speaker 02: The case is submitted. [00:33:30] Speaker 02: We thank both counsel and the court will recess for a brief period. [00:33:35] Speaker 02: Thank you, Your Honor.