[00:00:34] Speaker 04:
All rise.

[00:00:40] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:47] Speaker 03:
Proceed, please.

[00:00:52] Speaker 03:
We have three argued cases this morning.

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The first of these is number 161330, Hay versus United States.

[00:01:02] Speaker 03:
Mr. Pollard, is that how you pronounce it?

[00:01:11] Speaker 02:
May it please the court.

[00:01:12] Speaker 02:
My name is Mark Pollard.

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I'm counsel for appellants herein.

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We're here today because the appellants are entitled to compensation awarded them by the U.S.

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Court of Federal Claims for a taking of irrigation water found in ditches.

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These waters are specifically different class of waters.

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There were three classes of water involved, which I'll mention in a moment.

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that were affected by the court's regulatory decision, the waters affected by the physical takings decision.

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And the finding of that taking was not appealed by the United States and was not reversed.

[00:01:50] Speaker 01:
Is that claim based on footnote 13 of the Heg 5 opinion?

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Are you basing your argument on that footnote?

[00:02:02] Speaker 02:
Not at all, Your Honor.

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The court itself specifically in several places noted, for example, in page five that in page four it had found that there was a physical taking based on a practical physical ouster and having discussed the standards that applied to that.

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He reinforced that in page five.

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And if it were ambiguous that he had found that... He commented on page four.

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Now that was

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That was footnote 13.

[00:02:33] Speaker 01:
That's right.

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But he, Judge Smith, referred back to that to say, I already found that there had been a physical taking.

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And when he did that in page five, he, they restated.

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I mean, if there was any question... I just want to be clear that your claim position relates back to footnote 13.

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It relates back to footnote 13.

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It also relates all the way back to the complaint itself, because we alleged each one of these kinds of taking in the original complaint.

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And as the trials progressed, there were multiple trials.

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These issues were refined.

[00:03:12] Speaker 02:
It's the same water, isn't it?

[00:03:14] Speaker 02:
I'm sorry?

[00:03:14] Speaker 03:
It's the same water that was alleged to be the subject of the regulatory taking and that you now claim is the subject of physical taking.

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No, there were three classes of water discussed by the... I have a problem with that because it seems to me that you consistently up until this court said that it was the same water that you were seeking to recover for on two different theories.

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You refer to it as alternative theories, et cetera, et cetera.

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What is the evidence that it's different water?

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I know you have a chart in your brief.

[00:03:48] Speaker 03:
The court suggests that it's different water, but I didn't see any basis for that suggestion.

[00:03:54] Speaker 02:
The court itself, your honor, distinguished three classes of water, waters that were carried in ditches to the private lands, irrigation waters, livestock watering rights, which were enclosed by the fences that had been at issue.

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And then there were waters that flowed to the hage lands, but not through the ditches.

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The court discussed all of these and

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seems to have treated the waters that flow not through ditches as the primary target of the regulatory takings claim and the waters that flowed through the ditches as a result of the physical ouster claim.

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I don't see that that's the case or that there was a separate award for ditch water, if you will, and other water flow.

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What is the

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What's the basis for suggesting that there was a separate judgment with respect to two different items of water on two different theories?

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If that were the case, you might have an argument here, but I don't see that the record supports that notion.

[00:05:04] Speaker 02:
Your Honor, the court calculates... This is not a lump sum judgment, although he obviously, Judge Smith then, added it all together in the final judgment.

[00:05:12] Speaker 02:
But he specifically looked at the information provided him by the state water engineer and said these waters flowed in ditches here, here, here and here.

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Show us where there was two different components of the judgment.

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One based on water that was alleged to involve regulatory taking and one that was alleged to be a physical taking.

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Because I don't see that.

[00:05:38] Speaker 02:
Uh, Your Honor, I would refer the court to the H-5 decision at page 208, which is, this was separately calculated.

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But in addition to that, Your Honor... Wait, wait, wait, wait.

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Where?

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Where, where do we find this?

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Uh, page 208.

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I don't have the actual decision in front of me.

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But he also, on page 451, fed claimed at 578.

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Also identifies the specific waters that were at issue.

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So we're on 578, as he said.

[00:06:25] Speaker 02:
Your Honor, I do not have that decision in front of one moment, please.

[00:06:39] Speaker ?:
Okay.

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He lists various allotments here, but I don't see where he says that it's different water for the regulatory and physical takings theory.

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He uses Claire Mahan's report to identify this.

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That report doesn't divide it between physical and regulatory takings, does it?

[00:07:28] Speaker 02:
No, but Judge Smith, I believe, when he did his calculations.

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But may I, Your Honor, the additional

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point on this however is that it is weird is your evidence that it's different water uh... i don't have the case in front of your honor but we have cited to the pages that i believe demonstrate uh... that but you're in it is an additional point agree that if it's not different water that you lose uh... i wouldn't i wouldn't respectfully not agree what it was not a different water because the actions of the government of in different places in the world so i'm asking to assume

[00:08:07] Speaker 03:
Let me ask you to assume that you're wrong, that we find that it's the same water.

[00:08:12] Speaker 03:
You lose that.

[00:08:13] Speaker 02:
Your Honor, I would disagree with that as well.

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And the reason being that both the physical taking claim and the regulatory takings claim, regardless of which waters they are aimed at, are two different ways in which a taking could have occurred.

[00:08:27] Speaker 02:
By analogy, if the question, for example, is whether I'm entitled for damages to my car,

[00:08:35] Speaker 03:
it doesn't matter whether the court has found that my car was negligently damaged by the defendant or my car was intentionally damaged by the defendant, even though the same car... Well, that's true, but if you had a court of appeals decision saying you can't recover for damages to the car, you can't very well later on say that the court of appeals ignored one of your theories and you should be able to re-litigate it, can you?

[00:08:59] Speaker 02:
I'm not sure.

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Well, first of all, I would not agree with the characterization the court found that there was no

[00:09:06] Speaker 02:
taking under the regulatory claim.

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It simply determined that because no attempt to obtain a permit had been made, which Judge Smith found was based on futility and the court disagreed, the court said the matter was not ripe for litigation.

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That is a different thing than saying that you would not be entitled to compensation under that.

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However, there was no exhaustion requirement for the physical takings claim

[00:09:33] Speaker 02:
out there, and so there nevertheless could be a takings judgment on it, even though it affected only the same water.

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And so the court, your honor, respectfully, this court did not find as we read that opinion that it was in fact not taken.

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It just simply said the trial court should not have tried to reach that question because it lacked jurisdiction, because the case was not yet right for adjudication on that claim.

[00:10:02] Speaker 02:
The physical takings claim itself is different.

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And so it is quite possible for the court to reach that claim because there was no prerequisite to the court's jurisdiction and finding a separate taking because different legal standards apply.

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There was no balancing act.

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The physical taking standard says that if it is a physical, practical physical ouster or some other physical taking,

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The government's interest doesn't matter.

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There's no question about investment-backed expectations.

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There is no question about the importance of the government's policy in that.

[00:10:41] Speaker 02:
If the water was physically taken, it was a per se taking.

[00:10:45] Speaker 02:
And the only question then becomes what the amount of that taking is.

[00:10:52] Speaker 01:
If we go back to the... Your claim is that the

[00:10:59] Speaker 01:
physical taking is with respect to water rights that accompany the ditch right-of-ways, correct?

[00:11:07] Speaker 01:
The ditch right-of-ways and the forage rights.

[00:11:09] Speaker 02:
Well, it was not just that, Your Honor.

[00:11:12] Speaker 02:
There was a whole host of conduct that Judge Smith found.

[00:11:15] Speaker 01:
Well, I'm trying to help you here because in Hague 5, the way I see it, the court found three distinct analysis of government takings.

[00:11:27] Speaker 01:
And you're trying to add a fourth.

[00:11:30] Speaker 02:
I'm not sure I follow, Your Honor.

[00:11:38] Speaker 02:
If you look at this court's decision, the ultimate holding in the last paragraph of the decision, the court says, to the extent the physical takings claim relies on the erection offenses at a certain date, we reverse because of the statute of limitations.

[00:11:52] Speaker 02:
To the extent that the physical takings claim relies on the erection offenses,

[00:11:56] Speaker 02:
At a different date in time, we find that you have not shown that sufficient water did not escape for the livestock to have access to that water.

[00:12:06] Speaker 02:
But there was a third finding by Judge Smith out of a physical taking that was based on the physical ouster claim.

[00:12:12] Speaker 03:
This court's decision... You argued that to the panel, right, at the time of the oral argument.

[00:12:17] Speaker 02:
I was not the person who presented that oral argument, Your Honor, so... The H counsel argued that, right?

[00:12:27] Speaker 02:
I can't say or I recall that he did.

[00:12:30] Speaker 02:
I have not looked at the transcript of that argument.

[00:12:34] Speaker 02:
I'm not sure there is, in fact, a transcript of that argument.

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But when the, no, in fact, Your Honor, I have to say that he couldn't have argued that because the decision had not yet been issued.

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The question came up when the court issued the decision.

[00:12:50] Speaker 02:
and referred to it was reversing the physical taking claim only to the extent that... I think you're mistaken.

[00:12:55] Speaker 03:
You should look at the oral argument.

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In the oral argument, Hage's counsel argued specifically that it was a physical taking because they weren't allowed to maintain the ditches.

[00:13:09] Speaker 02:
Well, that, Your Honor, is

[00:13:14] Speaker 02:
true in the sense that the court, the threats, the intimidations, and the harassment by the government, as found as a factual matter by the trial court, independent of the regulatory scheme, because the ultimate prosecution in Mr. Hage

[00:13:36] Speaker 02:
that really capped off and summarized the whole course of conduct.

[00:13:41] Speaker 02:
And by the way, Your Honor, it not only had to do with ditches.

[00:13:44] Speaker 02:
For example, there was a situation cited to by Judge Smith in reference to the transcript where the government officials took livestock that were being walked down a road, removed them, pushed the cattle off the road into the field, took a photograph of the livestock, and then claimed that there was trespass on the part of H. It wasn't just

[00:14:06] Speaker 02:
ditch maintenance that was at issue.

[00:14:08] Speaker 02:
But the final prosecution of Mr. Hage was when he went up to the White Sage ditch and using hand tools and hand tools only, and I know the United States has argued without citation to the record that heavy equipment was used, but heavy equipment was not used.

[00:14:27] Speaker 02:
So that when the United States prosecuted him.

[00:14:29] Speaker 03:
You're well into your rebuttal time.

[00:14:31] Speaker 02:
I'm sorry, Your Honor?

[00:14:32] Speaker 03:
You are well into your rebuttal time.

[00:14:34] Speaker 02:
Yeah, I don't want to use that all up, Your Honor, but just on the thing was he did do something that even the United States admitted did not require a permit, and yet he was prosecuted.

[00:14:44] Speaker 02:
And that's part of the physical ouster claim.

[00:14:51] Speaker 03:
OK.

[00:14:51] Speaker 03:
Thank you.

[00:14:52] Speaker 03:
Ms.

[00:14:52] Speaker 03:
Peterson?

[00:14:57] Speaker 00:
May it please the court?

[00:14:58] Speaker 00:
Elizabeth and Peter from the Court of the United States.

[00:15:01] Speaker 03:
In 2012, this... Is this the same water?

[00:15:05] Speaker 00:
Yes, Your Honor.

[00:15:06] Speaker 00:
I think if you want to refer to page 5 as to whether this water was included within the regulatory taking that this court vacated, at page 213, that court describes what

[00:15:25] Speaker 00:
it held was an ouster of the pages from there.

[00:15:28] Speaker 03:
I'm sorry, 213?

[00:15:29] Speaker 00:
Yes, this is 82 fed claims at 213.

[00:15:35] Speaker 03:
You're not talking about the prior decision by this court.

[00:15:38] Speaker 00:
No, but this court vacated the... Is it the same water?

[00:15:43] Speaker 00:
Yes.

[00:15:43] Speaker 00:
And this court held that the United States appealed each component of the taking for which compensation was awarded by the by the Court of Federal Claims and

[00:15:55] Speaker 00:
Because that's the case under the mandate rule, which governs this appeal, any issue encompassed within the judgment that was appealed is deemed incorporated in the mandate and the mandate included no instruction to further consider any claim.

[00:16:14] Speaker 00:
That means further consideration of any claim is precluded under the mandate rule.

[00:16:18] Speaker 00:
So there really is no further need to argue what water was what.

[00:16:24] Speaker 00:
That water

[00:16:25] Speaker 00:
Even if Page is correct that there was a holding with respect to different waters, the entire judgment was this court's jurisdiction on appeal in 2012.

[00:16:40] Speaker 00:
Its mandate did not instruct the Court of Federal Claims to further consider any claim.

[00:16:44] Speaker 03:
Well, we don't know what exactly the mandate means in that respect.

[00:16:49] Speaker 03:
If there had been a separate component of the judgment,

[00:16:53] Speaker 03:
attributable to a physical and not a regulatory taking with respect to the ditches, it seems to me they might have an argument that the mandate did not preclude that because it wasn't something that the government appealed.

[00:17:07] Speaker 00:
Both because there's no reasonable reading of the Court of Federal Claims decision that could lead to the conclusion that there was a separate component holding that there was a second taking of the same water in the

[00:17:23] Speaker 00:
ditches that is addressed as a regulatory taking at page 230.

[00:17:26] Speaker 03:
But you might be wrong about that.

[00:17:28] Speaker 03:
It may be that Judge Smith articulated an alternative physical taking theory.

[00:17:33] Speaker 03:
But if he articulated that theory with respect to the same water, then it would seem to be that it's covered by the mandate.

[00:17:42] Speaker 03:
But if a component of the judgment was an award for physical taking of different water,

[00:17:49] Speaker 03:
then the argument would be that you didn't bother to appeal that, and argue it on appeal, and that they still have a right to pursue it.

[00:17:57] Speaker 00:
Even if that is the law here, Your Honor, that is not the case here.

[00:18:01] Speaker 00:
At page 213 of the Court of Federal Claims decision at 82 Fed Claims, it specifically addresses the water in the ditches under the regulatory takings analysis.

[00:18:13] Speaker 00:
That is the only place it addresses and analyzes the claim for

[00:18:19] Speaker 00:
water in the ditches.

[00:18:21] Speaker 00:
So there is no separate component laid out.

[00:18:24] Speaker 03:
The only analysis... Suppose we disagree with you about that.

[00:18:27] Speaker 03:
Suppose we view Judge Smith as having made alternative holdings based on physical and regulatory takings.

[00:18:35] Speaker 00:
Then we would submit, Your Honor, that that second component was in front of this court in the 2012

[00:18:44] Speaker 00:
and is incorporated and deemed incorporated within the mandate, which did not instruct further consideration of that.

[00:18:50] Speaker 00:
This court carefully considered all of the Court of Federal Claims findings and conclusions in its very carefully constructed decision in 2012.

[00:19:00] Speaker 00:
There is no reasonable application of the mandate rule that would allow a second opinion.

[00:19:06] Speaker 01:
That may be true, but your opponent is arguing that there's still an outstanding issue here with respect to the

[00:19:13] Speaker 01:
the water pertaining to the ditches.

[00:19:16] Speaker 00:
I understand that, Your Honor, but under angle any issue that is within the scope of the judgment that was on appeal in 2012 is deemed incorporated in the mandate in 2012.

[00:19:31] Speaker 03:
But if you had a judgment that said a million dollars for A and a million dollars for B and the government appealed the judgment but only argued that the award

[00:19:44] Speaker 03:
of a million dollars on theory A was wrong and didn't bother to address the other one, then you'd have a problem in saying that a mandate that sent it back or remanded it encompassed both theories when the second theory relating to different property wasn't argued on appeal, wouldn't you?

[00:20:05] Speaker 00:
Well, if that were a completely separate and collateral holding,

[00:20:10] Speaker 00:
Potentially, yes, your honor, but that certainly isn't the case here.

[00:20:13] Speaker 00:
There is no separate collateral holding there.

[00:20:15] Speaker 00:
It's nothing even remotely resembling such a thing in this decision.

[00:20:19] Speaker 00:
So in this case, it's clear that every issue that is within the scope of the judgment here, which was for a taking of the Hage's water rights, both on the federal lands and running off the federal lands onto their private pastures,

[00:20:38] Speaker 00:
is within the scope of this judgment, and therefore is deemed incorporated in this court's mandate.

[00:20:44] Speaker 00:
I believe that's the only way to read the Engel decision as it applies here.

[00:20:49] Speaker 01:
And as to- What is in footnote 13 in Hague for addressing physical taking with respect to the ditch water?

[00:21:00] Speaker 00:
Well, footnote 13 merely explains that the Hages contend that their physical ouster

[00:21:08] Speaker 00:
or that the actions of the United States resulted in a physical ouster that is tantamount to a physical taking.

[00:21:13] Speaker 01:
Well, the court says that this is a physical taking.

[00:21:16] Speaker 00:
It says it's a physical taking claim.

[00:21:18] Speaker 01:
And then later in, it says this court has already held in Hague for that the government actions which physically prevented plaintiffs from accessing their 1866 act ditches amounted to physical taking.

[00:21:33] Speaker 00:
I understand that, Your Honor.

[00:21:34] Speaker 01:
Isn't that a distinctive or separate finding of a physical taking?

[00:21:39] Speaker 00:
No, Your Honor.

[00:21:41] Speaker 01:
Within the structure of that decision... Why would we consider that that's rolled up into the mandate?

[00:21:49] Speaker 00:
That is within the mandate because it's within the scope of the judgment.

[00:21:53] Speaker 01:
But I don't see where the court addresses that at a later time.

[00:21:57] Speaker 00:
It does not.

[00:21:58] Speaker 01:
Looks like it just leaves it on the table.

[00:22:01] Speaker 00:
It leaves it on the table, Your Honor, because it is addressed only in the standard of review portion of the decision that outlines the standards for what constitutes a physical taking and what constitutes a regulatory taking.

[00:22:14] Speaker 00:
The court then goes on to analyze each claim under the appropriate standard.

[00:22:21] Speaker 00:
And it analyzes the claim that waters in irrigation ditches were taken.

[00:22:26] Speaker 00:
under the regulatory taking standard.

[00:22:29] Speaker 00:
And that's what that page 213.

[00:22:32] Speaker 01:
But not under the physical taking standard.

[00:22:34] Speaker 00:
Correct, Your Honor.

[00:22:34] Speaker 00:
It never does that.

[00:22:35] Speaker 00:
It never holds that the water was taken.

[00:22:38] Speaker 00:
And the only reference it makes to its purported earlier holding is both to a footnote that does not purport to be a holding and is incorporated in a decision that expressly says it is not a holding.

[00:22:51] Speaker 03:
Suppose we reject that.

[00:22:52] Speaker 03:
Suppose we say that Judge Smith

[00:22:55] Speaker 03:
rendered a decision on two alternative grants, one on a physical taking and one on a regulatory taking, and that the government only argued about the regulatory taking theory on the first appeal.

[00:23:08] Speaker 03:
What is the consequence of that?

[00:23:10] Speaker 03:
Is this bill covered by the mandate?

[00:23:12] Speaker 00:
Yes, Your Honor.

[00:23:12] Speaker 00:
I believe under Yeevy Escondido, City of Escondido, which is cited in our brief at page 35.

[00:23:18] Speaker 00:
Those two alternative ways of looking at the same conduct to take the same property cannot be regarded as two separate holdings.

[00:23:25] Speaker 00:
So it seems to me that even if there are two separate ways, alternative theories for... But there's not two separate holdings here.

[00:23:35] Speaker 01:
There's only one.

[00:23:37] Speaker 01:
And your opponent's arguing that what's missing here

[00:23:41] Speaker 01:
It's a final decision on the physical taking of the property rights with respect to the Ditches Act, 1866 Act, Ditches.

[00:23:52] Speaker 00:
Your Honor, there is no reasonable interpretation, I believe, of the Court of Federal Claims opinion that could assess

[00:24:10] Speaker 00:
that opinion to have held that the water in the ditches was taken by physical occupancy.

[00:24:17] Speaker 00:
It instead analyzes the water in the ditches and the so-called intimidation threats, limitation to hand tools, the various limitations on what the cages could do to maintain their ditches under a regulatory takings analysis.

[00:24:33] Speaker 00:
And I might add that even if this court could reach the merits of that question, it

[00:24:40] Speaker 00:
It is without merit.

[00:24:42] Speaker 00:
Under that same case, Yi against the city of Ascondito, the Supreme Court made clear that without a physical occupation of the property, either by the government or mandated by the government, by others, there is no physical taking.

[00:24:59] Speaker 00:
It's a regulatory taking.

[00:25:01] Speaker 00:
So the court was correct to that extent.

[00:25:03] Speaker 00:
It applied the correct analysis by analyzing the

[00:25:08] Speaker 00:
claimed taking of water in the irrigation ditches under the regulatory taking standard.

[00:25:14] Speaker 00:
The physical taking standard could not have applied to the so-called... Why didn't the court rule that?

[00:25:20] Speaker 01:
That's not what the court said, though.

[00:25:22] Speaker 01:
What?

[00:25:23] Speaker 01:
Excuse me?

[00:25:23] Speaker 01:
That's not what the court said.

[00:25:25] Speaker 01:
The court said, we've already held in Hague 4 that the government actions would physically prevent the plaintiffs from accessing their 86 act ditches amounted to a physical taking.

[00:25:36] Speaker 00:
Yes, it did say that, Your Honor.

[00:25:37] Speaker 00:
It said that under

[00:25:38] Speaker 00:
standard of review.

[00:25:39] Speaker 00:
And as we explained in our brief, the best understanding of that is that it's a loose use of the word held, because it references a footnote that does not report to be a holding in a decision that expressly says it does not address takings, but addresses only property ownership, what the interests in the property were.

[00:26:01] Speaker 00:
So there is no reasonable interpretation of the

[00:26:06] Speaker 00:
Court of Federal Claims' final judgment.

[00:26:08] Speaker 03:
But if you're wrong about that, it's still the same claim, isn't it?

[00:26:14] Speaker 03:
Even if there are two alternative theories.

[00:26:16] Speaker 03:
And that the resolution of the claim, even though our court might have failed to address one of the theories, is still a resolution of the claim.

[00:26:28] Speaker 00:
That is correct, Your Honor, and that is why the mandate rule is the final answer to this appeal.

[00:26:33] Speaker 00:
This appeal is precluded because that

[00:26:36] Speaker 00:
claim was within the scope of the judgment that this court addressed carefully in its 2012 opinion and vacated.

[00:26:45] Speaker 00:
So further adjudication of that claim is precluded under the mandate.

[00:26:52] Speaker 00:
If there are no further questions, we submit that the dismissal of the complaint here should be affirmed.

[00:26:58] Speaker 03:
Thank you.

[00:27:06] Speaker 02:
Just going to hit very quickly, Your Honor, the government's contention, first of all, that it was in the scope of the judgment.

[00:27:15] Speaker 02:
The judgment, of course, being simply stated that there had been a taking of water.

[00:27:22] Speaker 02:
The court of claims pointed to do different court... Well, it's going to be easier to put it this way.

[00:27:27] Speaker 02:
When the court said, I have already found, it didn't actually stop just there.

[00:27:33] Speaker 02:
It went on.

[00:27:34] Speaker 02:
and essentially restated that conclusion, and then said, I will now turn my attention to issues that I have not already addressed.

[00:27:44] Speaker 02:
That's when the court gets into the red dictatory takings claim.

[00:27:48] Speaker 02:
But it doesn't stop there.

[00:27:49] Speaker 02:
It then goes on to contrast the physical ouster takings claims and the conduct of the United States that

[00:27:57] Speaker 02:
that gave rise to that decision of the court and contrasted that with the decisions it was making with respect to the regulatory claims.

[00:28:06] Speaker 02:
For example, in the physical takings claims, it basically says these were based on actions not based on public purpose or regulatory purpose, but out of hostility toward the Hages.

[00:28:19] Speaker 02:
And he points to the prosecution.

[00:28:21] Speaker 02:
He points to the harassment and the hostility that he showed by references to the transcript.

[00:28:27] Speaker 02:
Then when he talks about the regulatory taking say, now under the regulatory takings claim, it involved the proliferation of willows and other things upstream from the ditches.

[00:28:39] Speaker 02:
Okay.

[00:28:39] Speaker 02:
That's a reason why it's different.

[00:28:40] Speaker 02:
The water carrying the ditches is not the water that was upstream that the Hages sought to clean and clear that area so that stuff could get down there.

[00:28:50] Speaker 02:
He characterizes those as legitimate regulatory goal, not based on hostility

[00:28:56] Speaker 02:
toward the Hages.

[00:28:57] Speaker 02:
So he distinguishes.

[00:28:58] Speaker 03:
This is excessive.

[00:29:00] Speaker 03:
I think we're out of time.