[00:00:00] Speaker 04: Case for argument this morning is 15-5069 Shields v. [00:00:04] Speaker 04: U.S., Mr. McNeil. [00:00:07] Speaker 01: Thank you, Your Honor. [00:00:10] Speaker 01: And I reserve two minutes. [00:00:16] Speaker 01: The trial court made three legal errors when it interpreted the Cobell lease to unambiguously apply to the two Shields' facts. [00:00:26] Speaker 01: The first is a kind of a court and horse error [00:00:30] Speaker 01: The court held that law absolutely did not require the trial court to look at context evidence before determining the plain meaning of the language. [00:00:42] Speaker 01: That is shown on pages 23 and 24 of the trial court opinion. [00:00:47] Speaker 01: And that's contrary to established horn book law in the courts on precedent as restatement second of contract section 212 makes clear. [00:00:58] Speaker 01: The trial court then compounded that first error by rejecting the reasonableness of the Two Shields interpretation that the Cobell release does not cover the Two Shields facts. [00:01:10] Speaker 00: Do you have any arguments, if the Cobell release does cover all actions up and through September 30th of 2009, do you have any arguments that the government breached the trust in any way after [00:01:26] Speaker 00: September 30, 2009, so that if you lose on the interpretation of the settlement argument, is there still any case here? [00:01:34] Speaker 01: Yes, two. [00:01:36] Speaker 01: First of all, the government has a fiduciary duty to have disclosed information under the Shoshone case that Judge Hewitt had established several years ago in a case that's almost on all fours. [00:01:53] Speaker 01: And one of the problems there was that it was a hidden type of complaint. [00:01:57] Speaker 01: It was a hidden scheme. [00:01:59] Speaker 01: And this complaint goes into great length on the hidden nature of that scheme, which literally depressed the price of the market. [00:02:07] Speaker 01: The government, furthermore, stamped on this lease to Ms. [00:02:12] Speaker 01: Tuchel and others, this lease is in the best interest of the Indian mineral interest owner and never changed that language. [00:02:21] Speaker 01: Therefore, by the time of the release, [00:02:23] Speaker 01: The information, the hidden nature of it, and the continuing nature of it had not been revealed. [00:02:29] Speaker 01: So yes, I think that there is language to that effect and, indeed, evidence to that effect. [00:02:36] Speaker 01: that clearly raises. [00:02:37] Speaker 00: And apart from that, is there any other argument, were there any other government actions after September 30, 2009 in this case? [00:02:47] Speaker 00: It seems like everything, all the actual affirmative actions like the BIA approvals and things like that of the transfers all took place prior to September 30, 2009. [00:02:56] Speaker 00: I just want to make sure I'm not missing any of the facts. [00:02:59] Speaker 01: Between 2009 and the announcement of this huge billion dollar transaction by Williams, [00:03:06] Speaker 01: who had been behind the scenes all along according to our pleadings through metal man, the government continued to ratify and do normal work on those leases. [00:03:16] Speaker 01: That is the evidence. [00:03:18] Speaker 04: Yeah, but I thought there was an argument that you were relying on the subsequent. [00:03:23] Speaker 04: In other words, you were saying that post that date in 2009, there was this acquisition by Williams of Dakota III. [00:03:33] Speaker 04: And somehow, that was when your claim arose based on that acquisition. [00:03:37] Speaker 04: So you were trying to get this out from under COBEL in terms of the time frame. [00:03:41] Speaker 04: Is that not your argument? [00:03:43] Speaker 01: Yes. [00:03:44] Speaker 01: And as our pleading says, [00:03:46] Speaker 01: The culmination of the scheme, the events in the scheme did not culminate until that huge roll-up occurred. [00:03:53] Speaker 04: Yeah, but the question there and the government will, you know, I think it's the government's position that you can't use that date because the government had no authority over that acquisition that you are tied to the date in late 2009. [00:04:07] Speaker 04: You can't transcend that and say, no, the facts didn't arise till the acquisition because the government had no authority over that acquisition, right? [00:04:15] Speaker 01: We're arguing that the government, one, could have stopped it. [00:04:20] Speaker 01: They have the right to revoke consents. [00:04:23] Speaker 01: They could have revoked assignability. [00:04:25] Speaker 01: And they could have done something. [00:04:27] Speaker 01: Yes, they did not. [00:04:28] Speaker 04: And on that basis, you're arguing that, therefore, they shouldn't come under COBEL because the claim didn't arise till those actions occurred? [00:04:38] Speaker 01: I'm arguing that that's one reason, but there are others, including the fact that the government did not give full information under Shoshone of what the situation was so these folks could make an informed choice. [00:04:51] Speaker 04: When and what exactly were they supposed to disclose? [00:04:55] Speaker 01: In our complaint, we've mentioned a number of things. [00:05:00] Speaker 01: The paragraphs of our complaint deal with the government's inside information on these reserves. [00:05:04] Speaker 01: The US Geological Survey others knew this was huge. [00:05:08] Speaker 01: The magnitude of the difference between strip oil prices that were paid for this oil and the fact that these are literally the richest oil and gas reserves in American history is just dramatic. [00:05:22] Speaker 01: And the government knew that. [00:05:24] Speaker 01: It wasn't a matter of finding them. [00:05:26] Speaker 01: They were already there. [00:05:27] Speaker 01: It was a matter of technology. [00:05:29] Speaker 01: And the government was well ahead of the curve on knowing what that technology could do. [00:05:33] Speaker 01: They just did not. [00:05:35] Speaker 01: They were just rolled over and continue to be rolled over. [00:05:38] Speaker 01: by this improper influence, which they could have easily have stopped. [00:05:43] Speaker 04: And at what point would they, when did this duty to disclose arise? [00:05:48] Speaker 01: I think the duty disclosed was clearly prior to Comel's settlement. [00:05:55] Speaker 01: It should have been before the, but that's clearly before that period. [00:06:03] Speaker 01: Because as Judge Hewitt points out in the Shoshone case, [00:06:08] Speaker 01: where the folks had been paid royalty interest for years, but the government failed to disclose full information that the oil and gas companies were undervaluing them, and nevertheless signed a release saying they wouldn't go after that. [00:06:25] Speaker 01: That release was not valid because the government had not provided full information. [00:06:32] Speaker 01: The government has listed in our complaint. [00:06:35] Speaker 04: When you say release, you're talking about the release under COBEL, that they didn't retain their right to do, that they didn't opt out of the class? [00:06:42] Speaker 04: Is that what you're talking about? [00:06:43] Speaker 01: I'm saying that prior to the COBEL settlement, all this information should be revealed. [00:06:51] Speaker 01: We cite, for example, in the complaint details about, as April of 2012, one official expressly said in the government, [00:07:01] Speaker 01: I didn't have time to do anything. [00:07:03] Speaker 01: There's other information that didn't do any due diligence. [00:07:06] Speaker 01: There was absolutely no due diligence. [00:07:08] Speaker 01: There are others that said that we were pressured and pressured, and there was a land run, and we just folded. [00:07:14] Speaker 01: There's another superintendent of the PIA on Fort Berthold that said, I wanted to get it staffed up, but I never had time to do it. [00:07:21] Speaker 01: There's a lot of information that was said later after this lawsuit was actually filed. [00:07:28] Speaker 01: And after we had had a chance in 2011 to do the actual due diligence required after this big sale was announced, that was never revealed ahead of time. [00:07:38] Speaker 01: Those are factual inquiries. [00:07:41] Speaker 01: The problem here is it's way too premature to come to a decision as a matter of law on those issues. [00:07:47] Speaker 01: Ultimately, the court, after hearing the factual record, might decide that there was not enough [00:07:55] Speaker 01: or that enough information was disclosed, but it's a heavy argued factual dispute. [00:08:01] Speaker 01: And it's heavily documented in this complaint, which really, if true, is quite a horror story on what happened. [00:08:10] Speaker 03: Is there someplace specific in your brief that you make an argument that the government, though it didn't take an action with respect to the ultimate transfer to Williams, [00:08:24] Speaker 03: had the authority and obligation to review and intervene? [00:08:30] Speaker 01: Yes. [00:08:31] Speaker 01: And we cite the various provisions. [00:08:34] Speaker 01: I will get you the site, Your Honor, but we talk about their strong authority. [00:08:39] Speaker 03: Just to be clear, I asked about your brief. [00:08:41] Speaker 03: I didn't ask about your complaint. [00:08:43] Speaker 01: Oh, I'm sorry. [00:08:44] Speaker 01: Yes, sir. [00:08:45] Speaker 01: I'll get that to you in just one second, sir. [00:08:49] Speaker 01: Just briefly, let me mention the third error [00:08:52] Speaker 01: And that is the court erroneously concluding the government didn't have a duty to disclose that full information, as I've already mentioned in the Shoshone case. [00:09:03] Speaker 03: Can I ask, is there any aspect of, I don't have this Shoshone opinion with me, that's from 2003, right? [00:09:10] Speaker 01: Yes. [00:09:11] Speaker 03: Is the analysis there consistent with Navajo to Chickarilla and our Hopi tribe? [00:09:19] Speaker 01: Yes. [00:09:19] Speaker 03: In terms of the demand [00:09:21] Speaker 03: really quite stringent demand for specificity of the particular duty that is being relied on. [00:09:28] Speaker 01: Yes, it was this court. [00:09:29] Speaker 01: I mean, the Court of Federal Claims, it did not come to you. [00:09:32] Speaker 01: But the Court of Federal Claims didn't make that ruling. [00:09:34] Speaker 01: It was a... Right. [00:09:36] Speaker 03: But again, what I want you to focus on is the date, 2003. [00:09:39] Speaker 03: The law has substantially tightened the requirement of specificity for the asserted duty since then. [00:09:49] Speaker 01: OK. [00:09:50] Speaker 01: If I might respond to that, I think, number one, the common law duty that's inferred even by those later cases, once there's a money-mandating fiduciary duty, is a common law duty. [00:10:05] Speaker 01: And this court has established that economy as well as the Supreme Court in its cases. [00:10:10] Speaker 01: A common law duty, by definition, includes a fiduciary duty. [00:10:14] Speaker 01: But here we have one fact that goes one step further. [00:10:18] Speaker 01: The fact that the argument of the government is, well, we didn't have a duty to disclose, even though that's a common law duty. [00:10:26] Speaker 01: The problem is the government did disclose. [00:10:29] Speaker 01: They did tell these Native Americans, this is in the best interest of the mineral interest owner. [00:10:35] Speaker 01: They stamped the lease. [00:10:36] Speaker 01: Once that disclosure occurred, it has to remain accurate, and it needs to be changed if the government knows it's not. [00:10:43] Speaker 01: We have pled information that the government knew it's not. [00:10:46] Speaker 01: and continue to learn information that it was wrong before the Cobell settlement occurred. [00:10:51] Speaker 01: That's why we have asked in rule 56 what the government knew, what negotiations it had, because as I was going to get into on my first point, the restatements. [00:11:05] Speaker 01: Second, contract section 212, which is on interpretation of contracts, [00:11:12] Speaker 01: cited approximately 475 times by this court in interpreting contracts, has paragraph B, or comment B, on plain meaning and extrinsic evidence. [00:11:25] Speaker 01: And it says that, like the trial court said, it sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain, can almost never be plain, except in context. [00:11:42] Speaker 01: In fact, the next sentence said, this principle is not limited to cases where ambiguity is already established. [00:11:49] Speaker 01: And then it goes on to say there are four types of evidence right here in the comment. [00:11:54] Speaker 03: Can I just ask, that kind of language which you were just reading from the American Law Institute's non-authoritative summary of principles, and it's a mix of prescription and description, have we as a court said those things? [00:12:11] Speaker 01: It's a good question. [00:12:13] Speaker 01: You have followed it in metrics and in rockies. [00:12:17] Speaker 01: Let me give you the example. [00:12:19] Speaker 01: The four types of evidence were looking at the nature of the relationship, which here was a fiduciary one, at the subject matter of the transaction, which is a release, preliminary negotiations and statements made by therein, which we were trying to get from the government and have cited some issues here, and the course of dealing between the parties. [00:12:41] Speaker 01: In metrics, this court said the course of dealings between the parties was critical. [00:12:49] Speaker 01: And indeed, even though the language was straightforward, in the metrics case, there was this issue about lamps being replaced just before a NASA contract was completed. [00:13:04] Speaker 01: The government here, as in here, took to the isolated position that lamps [00:13:10] Speaker 01: met all lamps in this big NASA project. [00:13:13] Speaker 01: And the government said, wait a minute. [00:13:15] Speaker 01: We want to go back and look at the context and the negotiations. [00:13:18] Speaker 01: It was found out that the government proposed that the custom and usage in the lamp case was that you only replace lamps that were out. [00:13:29] Speaker 01: Common sense, but not what the plain language appeared to say at first glance. [00:13:33] Speaker 01: Rockies, the more recent case, which the trial court didn't even address because it had just come out, [00:13:40] Speaker 01: is a case where the preliminary negotiations were critical to the case as well. [00:13:49] Speaker 01: And therefore, the court overruled. [00:13:54] Speaker 01: Here was the issue there. [00:13:56] Speaker 01: There was a policy that the government could change the contract if policy changed. [00:14:03] Speaker 01: But looking at negotiations, that didn't happen. [00:14:10] Speaker 01: Those two cases applied the restatement second. [00:14:14] Speaker 04: OK. [00:14:14] Speaker 04: We're into your rebuttals, so why don't we hear from the government? [00:14:17] Speaker 01: Well, thank you very much. [00:14:25] Speaker 02: Mr. Oakley? [00:14:25] Speaker 02: Yes. [00:14:26] Speaker 02: May it please support, my name is Robert Oakley. [00:14:28] Speaker 02: I'm here on behalf of the United States. [00:14:31] Speaker 02: Your Honor, the Cobell versus Salazar case was a very big deal for the Department of Justice and for the United States as a whole. [00:14:39] Speaker 02: It was very hard fought litigation. [00:14:41] Speaker 02: It went on for years, I believe there are 10 appeals to the DC Circuit. [00:14:47] Speaker 02: And so the government wanted a clean slate here. [00:14:50] Speaker 02: So when it finally reached a settlement with the Cogall plaintiffs, it wrote broad releases. [00:14:55] Speaker 02: And those releases clearly encompass the claims Ms. [00:14:58] Speaker 02: Two Shields and Defender Wilson want to bring here. [00:15:02] Speaker 02: Those claims include claims that the government mismanaged land assets, [00:15:09] Speaker 02: held in trust. [00:15:10] Speaker 04: But why isn't there still an open question, at least Warren's review, with regard to what they knew and when they knew it and what the government knew about it? [00:15:18] Speaker 02: Well, actually, I thought I heard counsel. [00:15:20] Speaker 02: Because again, if you look at the language of the settlement agreement, land administration claims apply to both claims that are known and unknown. [00:15:31] Speaker 02: Now, if that language was wrong or unacceptable or unconscionable, someone should have raised that in the Cobell decision. [00:15:39] Speaker 02: But my recollection is there's no mention of that in the district court decision. [00:15:44] Speaker 02: There's no mention of it in the DC Circuit decision. [00:15:46] Speaker 02: Supreme Court denied cert. [00:15:48] Speaker 02: And so that's the end of the matter. [00:15:50] Speaker 02: Maybe we can't speculate, well, what if that issue had been raised? [00:15:55] Speaker 02: But it was both known and unknown. [00:15:57] Speaker 04: Secondly, I heard- In a circumstance, a hypothetical circumstance, if the government had intentionally hidden or kept away information to allow plaintiffs to know that they might have had a cause of action, are you suggesting that nonetheless, Cobell would bar that cause of action? [00:16:16] Speaker 02: That's interesting, Your Honor, because I [00:16:18] Speaker 02: I have in the back of my head, but I'm reluctant to state it as a firm principle of law, because it is in the back of my head, that there's a difference between intentional concealment, and I, that, in other words, that someone took active measures. [00:16:35] Speaker 02: to not inform someone of information that they had a duty to do so. [00:16:40] Speaker 04: But that suggests that perhaps there is some ambiguity in the language of the Cobell settlement with respect to what it means to say known or unknown. [00:16:48] Speaker 02: Well, they have never developed in their briefs any argument that the government actively was hiding information [00:16:56] Speaker 04: And in fact, they say in their... Well, you say... I mean, the problem is you use the word they've never developed. [00:17:02] Speaker 04: Okay. [00:17:02] Speaker 04: And your friend would say, well, yeah, and we want an opportunity to develop it through discovery and otherwise. [00:17:08] Speaker 02: And also, though, my friend alleged in his complaint over several pages how much information there was out there, including some information that Ms. [00:17:18] Speaker 02: Tushiel's participated in, where there was a belief in this area and in Indian country in particular [00:17:25] Speaker 02: But particularly in this area, that leases were going for below market rates. [00:17:30] Speaker 02: And that's the ultimate of their claim. [00:17:32] Speaker 02: And by the way, counsel conceded that those claims could have been brought before the Cobell settlement in his argument. [00:17:41] Speaker 02: And so again, if you look at the language, they say of both the way the claims are defined, the key date being September 30, 2009, [00:17:54] Speaker 02: it's claimed known or unknown that could have been asserted. [00:17:57] Speaker 02: And he's agreeing those claims could have been asserted. [00:18:00] Speaker 02: As to having to, for the government to have to prove that they either did know or that they're, well in any event I would fall back on, to the extent that he says it's in the complaint, I don't see [00:18:20] Speaker 02: It certainly wasn't argued in the brief and I don't think it's been alleged with the kind of particularity which is required for fraud because we would be talking about positive fraud. [00:18:30] Speaker 02: Their approach has been more to stress the government or to allege that the government has been negligent. [00:18:36] Speaker 02: Actually, I shouldn't say been more so. [00:18:38] Speaker 02: It's really been their approach. [00:18:39] Speaker 02: They say that they use the illustration of a rubber stamp, I think, in the reply brief that that's all the government did. [00:18:46] Speaker 02: It just ignored, it didn't do anything. [00:18:49] Speaker 02: Again, counsel said they did no due diligence. [00:18:52] Speaker 02: So if they didn't do any due diligence, the only thing I could say is something about the USGS having some knowledge, which I'm not recalling that complaint either. [00:19:02] Speaker 04: But we don't know. [00:19:03] Speaker 04: We don't know what the government knew and when it knew it. [00:19:06] Speaker 04: And do you concede then that if they knew something before the September 2009 date, they did have a duty to disclose? [00:19:14] Speaker 02: No. [00:19:16] Speaker 02: that the government, if the government actively concealed it. [00:19:19] Speaker 02: But when we talk about the government, for example, you're talking about USGS, we're talking about a huge institution. [00:19:25] Speaker 02: Somebody who may know something somewhere who has no power in terms of approving their leases. [00:19:32] Speaker 04: But I think you started off 30 seconds ago by saying, we don't know. [00:19:35] Speaker 04: And I think your friend would agree. [00:19:37] Speaker 04: We don't know. [00:19:38] Speaker 04: That's why we need to. [00:19:38] Speaker 02: No, I'm sorry. [00:19:39] Speaker 02: I can't. [00:19:41] Speaker 02: I don't mean to develop instant amnesia. [00:19:43] Speaker 02: When I say we don't know, I'm just kind of bold over by the concept that if they can allege that the United States, anybody in the United States, whether they were in charge of approving this lease or not, knew something, then they have a duty to disclose. [00:20:02] Speaker 02: I mean, this goes to their duty to disclose argument. [00:20:05] Speaker 02: They don't identify a statutory argument here that would make that, mandate that as a duty. [00:20:12] Speaker 02: They waived known and unknown claims. [00:20:14] Speaker 02: So if the claims were unknown, that's unfortunate, but they could have raised it in Cobell. [00:20:21] Speaker 02: They could have opted out of Cobell. [00:20:23] Speaker 03: Those are two separate things they could have done. [00:20:26] Speaker 03: Yes, those are two separate things. [00:20:29] Speaker 03: We are suspicious, but we don't know enough, so we're not going to. [00:20:33] Speaker 03: join and we simply opt out, or they could have made an objection to approval of the settlement on the ground. [00:20:40] Speaker 03: There's too much unknown. [00:20:41] Speaker 02: Exactly. [00:20:42] Speaker 03: Am I understanding right? [00:20:44] Speaker 03: There's no dispute here about adequacy of notice to the particular plan. [00:20:48] Speaker 02: No. [00:20:49] Speaker 02: They have never argued that they didn't get notice. [00:20:51] Speaker 02: They are not on the list of people who will opt out. [00:20:54] Speaker 02: And let me just go back again to this duty, this known or concealment. [00:20:59] Speaker 02: This is an argument that could and should have been raised [00:21:03] Speaker 02: into the Cobell settlement that the scope of the release is too large, but no one did. [00:21:10] Speaker 00: Are there any actions that the government took after September 30, 2009 that were specifically identified here? [00:21:18] Speaker 02: No, but one was for the first time an oral argument. [00:21:21] Speaker 02: I want to go to that. [00:21:23] Speaker 02: I think it was Judge Post asked counsel whether the government could have disallowed [00:21:30] Speaker 02: the Williams Company's acquisition of these leases through its purchase, and this is important, its purchase of all the Dakota III assets. [00:21:39] Speaker 02: And the answer is no. [00:21:40] Speaker 02: Now, this argument is not addressed in our brief because they never raised it. [00:21:44] Speaker 02: That's why he said he was going to get you the citation to it in his brief. [00:21:47] Speaker 02: He can't. [00:21:48] Speaker 02: It's not there. [00:21:49] Speaker 02: If you want to hear now, we'd have to do supplemental briefing. [00:21:53] Speaker 02: But the reason the government can't is this was not an assignment of leases to the Williams Company. [00:21:59] Speaker 02: The Williams Company just bought up everything associated with these Dakota III companies, including things like pipelines. [00:22:06] Speaker 00: So there was no BIA approval of transfer from Dakota to Williams. [00:22:12] Speaker 00: There was no BIA approval of that. [00:22:16] Speaker 02: No, because there was no transfer from Dakota [00:22:19] Speaker 02: to Williams, Williams bought Dakota. [00:22:23] Speaker 00: Are any of the leases at issue in this case entered into by the government after September 30, 2009? [00:22:29] Speaker 02: Not these leases as we show. [00:22:32] Speaker 02: The leases were approved I believe in February and the assignment which we could approve to the Dakota III companies occurred in late April 2009. [00:22:44] Speaker 03: Can I just ask, I don't know if it makes a difference, but you have variously said that Williams bought the company? [00:22:53] Speaker 02: Yes. [00:22:53] Speaker 03: And on the other hand, you have said that it bought all of the company's assets. [00:22:58] Speaker 02: Which is it? [00:23:00] Speaker 02: My understanding is they bought the company, including all of its assets. [00:23:04] Speaker 02: And I believe there are companies. [00:23:07] Speaker 02: There are various Dakota III. [00:23:08] Speaker 02: It's a little confusing. [00:23:10] Speaker 02: There seem to be various Dakota III. [00:23:12] Speaker 03: Conceivably, one would actually require an assignment and one would not. [00:23:17] Speaker 02: Yes, I suppose if it were a transfer of assets as opposed to an acquisition of the entire company, I could see the argument. [00:23:26] Speaker 02: But again, they've never raised this point. [00:23:29] Speaker 02: And I believe there are documents they cite in the appendix news articles showing we have just went out and bought the companies. [00:23:41] Speaker 02: What they did with them after they bought them, I don't know, but that's different from an assignment of a lease. [00:23:46] Speaker 02: Had the lease been assigned, yes, approval would have been required. [00:23:53] Speaker 02: Now, with reference to the Shoshone case, and this somewhat gets back to the dialogue that we've had on knowledge, in addition to Shoshone being pre-Navajo 1 and 2 and Hikariya and the other cases, it didn't have at issue [00:24:11] Speaker 02: a settlement agreement approved by Congress. [00:24:14] Speaker 02: There was a tremendous due process here. [00:24:15] Speaker 02: Approved by Congress, which allowed parties to opt out, which was approved by the D.C. [00:24:22] Speaker 02: District Court and then by the D.C. [00:24:23] Speaker 02: Circuit. [00:24:24] Speaker 02: Certain positions were filed and denied. [00:24:29] Speaker 02: It's a final judgment. [00:24:30] Speaker 02: And that language did refer to known or unknown. [00:24:33] Speaker 02: It addressed it. [00:24:34] Speaker 02: And no decision by this court saying that, and even if there were language in this court disapproving in general of the use of release of unknown claims, the Shoshone case cannot be a basis for undoing a final judgment that we have in the Covell case. [00:24:55] Speaker 02: On the question of extrinsic evidence, I think counsel has misread the decisions of this court. [00:25:03] Speaker 03: As we point out in- What was the contract language in metric? [00:25:09] Speaker 03: You quoted the contract, but they did, in Rockies. [00:25:12] Speaker 02: I don't- Yeah, Rockies clearly had an ambiguity because it referred to a change in government policy. [00:25:17] Speaker 03: Right, that's why I asked about metric. [00:25:19] Speaker 02: What's the language there? [00:25:20] Speaker 02: Yeah, I don't think so. [00:25:21] Speaker 02: My recollection is that- Metric. [00:25:27] Speaker 02: is in line with this court's decision, when you actually read it, is in line with this court's decision holding that absent an ambiguity in the language. [00:25:45] Speaker 02: There's no basis for allowing use of extrinsic evidence. [00:25:50] Speaker 02: And actually, what metric held was that [00:25:57] Speaker 02: In one of the, it held that evidence of a trade practice, and that's been one of the few areas that this board has been willing to go beyond the plain language of a contract, cannot be used to quote, to create an ambiguity where a contract was not reasonably susceptible of differing interpretations at the time of contract. [00:26:19] Speaker 03: But you don't, as you stand there right now. [00:26:21] Speaker 02: No, I'm sorry. [00:26:21] Speaker 02: I don't have the case with you. [00:26:22] Speaker 02: You don't have the language of metrics. [00:26:23] Speaker 02: No, I'm sorry. [00:26:24] Speaker 02: I do not. [00:26:26] Speaker 04: But again, I think if you look at the case... Will you spend a minute talking about the takings claim? [00:26:30] Speaker 02: Yes. [00:26:31] Speaker 04: And I think one of the arguments you make is this is just like the due process claim in front of the D.C. [00:26:35] Speaker 04: Circuit. [00:26:36] Speaker 04: How is that so? [00:26:37] Speaker 02: Well, that is the basis that the CFC ruled on. [00:26:41] Speaker 02: One of the basis, I should say, is that this is really a complaint about the class certification process and that that improperly occurred because [00:26:54] Speaker 02: You had really two forms of class. [00:26:56] Speaker 04: That's not a basis for rejecting or taking this claim, right? [00:26:58] Speaker 04: I mean, that's just. [00:26:59] Speaker 02: Well, I think, I mean. [00:27:00] Speaker 04: I mean, it may be a comment on what one thinks of what's going on. [00:27:05] Speaker 02: It is, Your Honor. [00:27:08] Speaker 02: Well, I think it's right. [00:27:08] Speaker 02: It's a more difficult argument. [00:27:09] Speaker 02: A much easier argument is opt out. [00:27:13] Speaker 02: The government, the best cases that they can come out up with from this court, which indicate any kind of case such as this, [00:27:21] Speaker 02: is where, arguably, Congress took away claims but provided no alternative for them. [00:27:26] Speaker 02: Here, they could have opted out. [00:27:27] Speaker 04: And so it's- But I think, on that point, I think you only cite to us one case. [00:27:31] Speaker 04: The Little Wolf case is the only one you cite. [00:27:34] Speaker 02: The Little Wolf case. [00:27:35] Speaker 02: But again, well, the Little Wolf case is pretty much on point, because they had a very short statute of limitations. [00:27:42] Speaker 02: They could either go through an administrative process. [00:27:44] Speaker 04: Yeah, but you haven't cited cases other than that case. [00:27:47] Speaker 02: No, I haven't. [00:27:47] Speaker 02: But they haven't cited a case where the opt-out provision [00:27:51] Speaker 02: exist. [00:27:52] Speaker 02: And I think that's crucial because as long as you have a mechanism to preserve your claims, there can't be a taking. [00:28:00] Speaker 02: There's arguably a taking in these other cases where the government allegedly cuts off your right to recover and gives you no other alternative means of litigating the matter. [00:28:14] Speaker 02: And there's case law from the Ninth Circuit. [00:28:16] Speaker 02: I realize it's the Ninth Circuit. [00:28:17] Speaker 02: It's not the Court of Federal Claims. [00:28:19] Speaker 02: Or it's not the Federal Circuit. [00:28:21] Speaker 02: But that property interests don't exist in a non-final litigation judgment. [00:28:29] Speaker 02: And that's what these clearly are not final litigation judgments. [00:28:34] Speaker 02: So I guess if the panel has nothing else. [00:28:37] Speaker 02: Thank you. [00:28:37] Speaker 02: Thank you. [00:28:44] Speaker 04: Two minutes. [00:28:46] Speaker 01: Two things, Your Honor. [00:28:48] Speaker 01: There's further ambiguity. [00:28:51] Speaker 01: Because the trial court cited on page 25, the visit basis of the plain language, the land administration claim definition, which had all claims that could have been asserted. [00:29:04] Speaker 01: However, the release language, and that's on a 653 of the record. [00:29:10] Speaker 01: However, the release language itself, which you never addressed on page a 686 says, [00:29:17] Speaker 01: claims only that claims that should have been asserted. [00:29:22] Speaker 01: Should implies must. [00:29:25] Speaker 01: Could implies possible. [00:29:27] Speaker 01: And I think that's why these cases along the line of the accrual cases are very important for you to consider. [00:29:35] Speaker 01: Because the accrual cases and the should concept, you must do it. [00:29:41] Speaker 01: tie-in or delayed when there is some sort of hidden scheme, as in Bowen, the US Supreme Court case, where the beneficiaries knew their benefits had been cut, but didn't know about the scheme underlying it. [00:29:55] Speaker 01: And it also fits the idea that this court has established in Cacahuata that all events necessary to that scheme apply. [00:30:03] Speaker 01: It should have to run in order to define the ultimate injury, which only could have been done through that [00:30:10] Speaker 01: scheme that started in 2007 with Williams behind the scene using as a puppeteer other folks until it wrapped all this massive thing up in late end of 2010. [00:30:24] Speaker 01: As to our pleading, yes, our pleading of firsts among other things to [00:30:32] Speaker 01: in page 26, starting at page 109 and following, that the government went ahead and actually allowed assignability without any government check and never took that power back when it realized it was being, even though there was a scheme afoot to take advantage of that, to allow that ultimate rollout. [00:30:53] Speaker 01: And despite some protests, the government went ahead and did that anyway. [00:30:59] Speaker 01: So I really appreciate your time today, Your Honor. [00:31:02] Speaker 01: We argue that this is just a little premature. [00:31:05] Speaker 04: Thank you. [00:31:06] Speaker 04: Thank you. [00:31:06] Speaker 04: We thank both parties and the cases submitted.