[00:00:03] Speaker 01: The first case for argument this morning is 16-1981, Petro Hunt versus United States. [00:00:10] Speaker 03: Mr. White, whenever you're ready. [00:00:22] Speaker 03: I would like to start by saying that this is a very, I think this is a very unique case. [00:00:28] Speaker 03: It's a very interesting case. [00:00:31] Speaker 03: The 1950 Fifth Circuit decision in the Nebo case did several things. [00:00:39] Speaker 03: It found that the government's representatives from the Department of Agriculture represented to my class predecessors entitled that if they sold the surface of this property to the government, that the ordinary rules of prescription in Louisiana law to mineral servitude would not apply. [00:00:56] Speaker 03: and that they could keep their mammals in perpetuity. [00:00:59] Speaker 01: Yeah. [00:00:59] Speaker 01: No, it is an interesting case. [00:01:00] Speaker 01: And we've all read the long history of it. [00:01:03] Speaker 01: Let me just ask you a process question, which is we've got the issue of the statute of limitations that involves a lot of these claims. [00:01:11] Speaker 01: And then we've got these Tohono questions based on the Tohono case. [00:01:16] Speaker 01: If we were to hypothetically agree with the government's position and the court of claim's position on the statute of limitations questions, what is left? [00:01:26] Speaker 01: Are there other claims that fall within the statute of limitations but were dismissed based on Tohono? [00:01:34] Speaker 01: Yes. [00:01:34] Speaker 01: Or does the statute of limitations issues resolve everything here? [00:01:39] Speaker 03: No, the statute of limitations did not dismiss the temporary takings, the takings based on the issuance of the leases by the government. [00:01:49] Speaker 04: That was on the leases that were entered into within the safe period of the [00:01:55] Speaker 04: of the statute of limitations. [00:01:57] Speaker 03: Well, there's an argument there we have as well. [00:01:59] Speaker 03: But there's, yeah, within the six years. [00:02:01] Speaker 04: Leases that had been entered into pre-93 would fall, I believe, fell under the statute of limitations. [00:02:09] Speaker 04: There was a pattern of leases that were entered into within the six years period. [00:02:14] Speaker 04: Those were the ones that, absent a 1500 ruling, you would prevail. [00:02:21] Speaker 03: Right. [00:02:22] Speaker 04: I mean, you would prevail and be able to go to trial. [00:02:23] Speaker 03: And then we have an argument that the [00:02:26] Speaker 03: The group of leases should be bigger because the accrual date should be the end of the 10-year lease, not the beginning of the 10-year lease, for a number of reasons, the most important of which is if your claim is gone in six years and someone decides to drill one of those leases during the last four, you have no remedy, at least under the Tucker Act. [00:02:45] Speaker 03: So it doesn't make any sense to say, [00:02:47] Speaker 04: Well, your timing on that issue on the statute of limitations, if you were correct, would protect all of the temporary physical takings from the statute of limitations. [00:02:58] Speaker 04: Yes, I appreciate that. [00:02:59] Speaker 04: That's a question about at what point in time does the approval bite, as of the date of the lease, or as of the lease, I guess it's what we call it, or at the completion. [00:03:09] Speaker 03: They're 10-year leases, and so there's no vagary. [00:03:12] Speaker 03: There's no doubt about when they're going to end. [00:03:14] Speaker 03: 10 years is 10 years. [00:03:17] Speaker 04: I appreciate, I mean, then your argument on that particular point is borrowing, if you will, the analysis, which is clear for regulatory takings and applying it to a permanent physical takings. [00:03:28] Speaker 03: Yes, Your Honor. [00:03:29] Speaker 03: That's correct. [00:03:29] Speaker 03: We think they should be the same. [00:03:30] Speaker 04: The briefing actually is, both sides, is very clear and quite helpful to the court. [00:03:35] Speaker 04: So it's not as if, like some cases we have here, the panel has to sort of try to figure out what's really in front of us. [00:03:44] Speaker 04: And I don't think we have that problem now. [00:03:46] Speaker 03: We have, with respect to the permanent taking, the accrual date was found by the Court of Federal Claims to be somewhere in the 90s. [00:03:56] Speaker 03: We think that the Samish line of cases, I believe Judge Cleverner was on that panel, that that line of cases provides the correct rule here. [00:04:08] Speaker 03: Petro Hunt did not, if Petro Hunt had title to this property as it thought it did because [00:04:15] Speaker 03: the Nebo decision, the Louisiana statute, the long 40, 50-year history of use and possession of the property. [00:04:22] Speaker 03: If it had title, it had no permanent takings claim. [00:04:28] Speaker 03: So until it could determine that it didn't have title, which was a big surprise to everyone, until it could do that, it didn't know that it had a claim to pursue in the court of claims. [00:04:41] Speaker 03: that that's the rule that should determine the accrual date for the permanent taking. [00:04:46] Speaker 04: And then... Although, in your view, you might have viewed that you weren't certain you had title, and you knew that there was an adversary who claimed they did have title. [00:04:57] Speaker 04: We knew that someone else... Isn't that a fair assessment of the letter that was sent to you in 92, 93? [00:05:02] Speaker 03: I think those letters would put anyone on notice that there was a competing title. [00:05:08] Speaker 04: Somebody walking on your property. [00:05:10] Speaker 03: But I think it was an issue of title, not a taking. [00:05:12] Speaker 03: The government didn't say, we're taking this property. [00:05:14] Speaker 03: The government said, we own this property. [00:05:17] Speaker 03: And my predecessor said, no, you don't. [00:05:19] Speaker 04: Correct me, sir, if I'm wrong. [00:05:21] Speaker 04: It was in the context of the government wanting to put a mineral lease, if you'll call that out, to somebody else. [00:05:27] Speaker 04: And you're protesting them to do it because you can't do that to my land because I own the mineral rights. [00:05:36] Speaker 03: That's correct. [00:05:37] Speaker 03: And then they filed a suit. [00:05:38] Speaker 04: So there is some footprint. [00:05:40] Speaker 04: being put on your property by the government at the time that they are saying, we want to lease this to somebody else, you registered an objection, and we reject your objection. [00:05:54] Speaker 03: But I'd still say for the prominent taking, you go back to the idea that if they have title, if it's determined they have title, they don't have a claim. [00:06:01] Speaker 03: So you have to know that before you have a claim. [00:06:04] Speaker 03: Appreciate that. [00:06:05] Speaker 03: And what I was going to say is that we filed a suit in 2011 that's not affected by section 1500. [00:06:11] Speaker 03: So if you found that the accrual date for the permanent taking was when we said it is in March of 2007, then that claim is timely in the 2011 suit, which is just like the suit filed in 2001. [00:06:29] Speaker 04: If by chance you wanted to help, was that going to be a great way to do it? [00:06:35] Speaker 04: If 2011 obviates or makes the 1,500 to Hanover issue go away. [00:06:39] Speaker 04: Yes, Your Honor. [00:06:41] Speaker 04: But you have a hurdle you've got to cross first, which is whether or not statute of limitations is snipping you on the earlier one. [00:06:47] Speaker 03: Right. [00:06:47] Speaker 03: But we think the better reasoning is that the Samish line of cases should determine the accrual date for that permanent take. [00:06:56] Speaker 04: I think it's clear. [00:06:57] Speaker 04: I mean, the court has to decide. [00:06:59] Speaker 04: This is the binary choice here. [00:07:02] Speaker 04: I certainly, in my little mind, couldn't find a third alternative analysis somewhere in between where you are and where the government is. [00:07:12] Speaker 04: And the court has aided. [00:07:18] Speaker 04: You don't like the result from the opinions below. [00:07:25] Speaker 04: I think both Judge Allegra and his colleague gave us thoughtful, careful, well-written opinions to work with. [00:07:34] Speaker 03: I think, yeah, I think Judge Allegra was a... Well, I think he's a very smart man, for one thing, and I enjoyed knowing him. [00:07:44] Speaker 04: We didn't disagree with him. [00:07:45] Speaker 04: He's passed away, but I was feeling myself that he... [00:07:49] Speaker 04: He did himself justice and honor. [00:07:51] Speaker 04: I mean, he obviously cared a great deal about these cases. [00:07:54] Speaker 04: And he certainly understood the factual circumstances that make this case a difficult one. [00:08:01] Speaker 03: I'm sure he did. [00:08:02] Speaker 03: And we do still disagree with some of his conclusions. [00:08:06] Speaker 03: But that's why we're here. [00:08:07] Speaker 03: But I think he was interested in this case and was certainly taking it very seriously. [00:08:17] Speaker 03: There are at least two things that differentiate this case from Central Pines, which I know the chief judge wrote that opinion. [00:08:26] Speaker 03: Central Pines didn't argue that the reference to the taking in the district court case was not a pending claim, as we have. [00:08:34] Speaker 03: And Central Pines did not make a constitutional argument saying that if Section 1500 prevents someone from having a Fifth Amendment taking, that it has to give way [00:08:46] Speaker 03: The statute has to give away to the Constitution. [00:08:49] Speaker 03: It didn't raise either one of those two things. [00:08:51] Speaker 03: So those alone would distinguish it, we think, from Central Pines. [00:08:58] Speaker 03: Going further, Central Pines was not the successor to Nebo. [00:09:02] Speaker 03: And there's no representation. [00:09:03] Speaker 04: Those are really preliminary issues that we have to agree before we get to the Central Pines applicability. [00:09:10] Speaker 04: If we disagree with you on both of those points, then I think Central Pines does have some viability. [00:09:16] Speaker 04: I don't think you could disagree with that. [00:09:18] Speaker 03: We would. [00:09:20] Speaker 04: But no, you've done a very good job to try to put at least two data points in front of getting right to the question at all about whether or not the cases are similar facts. [00:09:32] Speaker 03: If I'm hurrying, it's because I'm sensitive to my 10 minutes. [00:09:38] Speaker 03: And I'd still like to say something about the judicial taking. [00:09:42] Speaker 03: It looks like I still have some time. [00:09:44] Speaker 03: Yeah, well, you can go into your rebuttal. [00:09:47] Speaker 03: OK. [00:09:50] Speaker 03: This is the poster child for a judicial taking, I think. [00:09:55] Speaker 03: If this is not a judicial taking, there may not be one. [00:09:59] Speaker 03: Here's what you had. [00:10:00] Speaker 03: You had the decision in 1950 establishing these property rights. [00:10:06] Speaker 03: And then you've got this course of conduct following that, where the government records says this property, that these minerals are owned by others in perpetuity. [00:10:16] Speaker 03: use and possession of the property, the drilling of a number of wells on the property with no interference from the government over a period of years. [00:10:26] Speaker 03: You've got all of that. [00:10:27] Speaker 03: And all of that, I think, goes to show an established property right, which is what Stop the Beach says you have to show that you had. [00:10:37] Speaker 03: So I think the evidence would show that Petrol Hunt had an established property right in the minerals. [00:10:45] Speaker 03: Then the same Fifth Circuit that decided they owned the manor 15 years later. [00:10:51] Speaker 04: Is the judicial taking the Fifth Circuit's final decision after Sir denied in the quiet title action, or is the judicial taking in the Supreme Court's little Lake Miser decision? [00:11:03] Speaker 03: Well, the rules of race judicata, as they used to exist at least, said that anything that was or could have been litigated was [00:11:15] Speaker 03: was precluded. [00:11:17] Speaker 04: And that sort of seemed to be in the mix of things, what the Supreme Court did, and it's sort of, you know, like, misère in French means misery. [00:11:28] Speaker 04: Yes, yes, you are. [00:11:29] Speaker 04: And it seemed to me that's what it means to you and to the case, because the Supreme Court says, well, the attempt of the Louisiana legislature to engraft into Louisiana law the government's promise in this case failed. [00:11:46] Speaker 04: That's what Lake Missouri said. [00:11:49] Speaker 04: That's what it says as to that case, but... And then the subsequent holding the little Nemo is reserved to the facts of its case. [00:11:58] Speaker 04: It's only good for the 800-digits that were involved there. [00:12:01] Speaker 04: Well, there's no... It seems to me that two of those things put together like sliding the noose around your client's neck. [00:12:08] Speaker 03: Well, that's only if you buy the government's view of how this works. [00:12:13] Speaker 03: And what the Fifth Circuit said the second time [00:12:16] Speaker 03: is where the taking comes into play. [00:12:19] Speaker 03: And the first NEBO judgment said that Act 315 applied to all such land. [00:12:27] Speaker 03: It referenced a 25,000 acre conveyance, of which the 800 acres was a part. [00:12:32] Speaker 03: It was a very broad ruling, very broad judgment. [00:12:36] Speaker 03: And then you've got to remember, too, that in the district court in the second [00:12:42] Speaker 03: series of litigation, we won. [00:12:44] Speaker 03: The district judge agreed with us until that we owned all 180,000 acres in perpetuity. [00:12:51] Speaker 04: Well, I was just trying to figure out, in the sort of race-junicata argument, what is it that deserves race-junicata? [00:12:58] Speaker 04: I mean, the first decision in NEMO or what happens when the dust all settles? [00:13:05] Speaker 04: Because when the dust all settles, the Supreme Court has said you can give no force and effect to that Louisiana statute, period. [00:13:12] Speaker 03: Well, no, they said it was good as a matter of going forward, actually, to transactions that occurred after 1940. [00:13:17] Speaker 03: So it wasn't stricken. [00:13:19] Speaker 03: And you've got to also remember, NEBO's never been reversed. [00:13:22] Speaker 03: It's never been reversed. [00:13:23] Speaker 03: It wasn't reversed in Little Lake. [00:13:25] Speaker 03: Footnote 4 says that in Little Lake. [00:13:27] Speaker 03: It wasn't reversed by Central Pines because it couldn't be. [00:13:30] Speaker 03: It's never been reversed. [00:13:31] Speaker 03: It's still, the case has just never been reversed. [00:13:35] Speaker 02: Isn't the main problem with your judicial takings argument is the Shinnecock Indian Nation case? [00:13:41] Speaker 02: That seems to read pretty clear to me. [00:13:44] Speaker 02: And the court said we cannot review the decision of a district court in the Fifth Circuit. [00:13:51] Speaker 03: You don't have to do that. [00:13:52] Speaker 03: In fact, that's not what we're asking you to do at all. [00:13:55] Speaker 03: We're not saying it doesn't matter to us at this point whether the Fifth Circuit was right or whether they were wrong. [00:14:02] Speaker 03: All we want you to do is look at it like they say and stop the beach. [00:14:05] Speaker 03: Look at it. [00:14:06] Speaker 03: Look at it. [00:14:06] Speaker 03: Look at the status of things before to see if there was an established property right [00:14:11] Speaker 03: look at the effect of that decision to see if that established property right changed. [00:14:16] Speaker 03: Specifically, did private property become public property as a result of that decision? [00:14:23] Speaker 03: That's the only inquiry that we think you have to make. [00:14:25] Speaker 04: And then the only other question- Isn't that the effect of that decision? [00:14:29] Speaker 03: I'm sorry? [00:14:29] Speaker 04: Isn't that the effect of the certain decision, converting your private property to public property? [00:14:35] Speaker 03: That's exactly the effect of it was converting private property to public property. [00:14:39] Speaker 04: And that's to what you object? [00:14:42] Speaker 03: Well, we're saying that we're entitled to compensation for that because the property was taken. [00:14:47] Speaker 03: Private property became public property without compensation. [00:14:51] Speaker 03: How do we know there's no compensation? [00:14:53] Speaker 03: Nebo says so. [00:14:54] Speaker 04: Well, what happens if we agree with the circuit that they are correct, ultimately, in saying that your client did not have title? [00:15:04] Speaker 03: Well, I don't think under Stop the Beach you can look at it that way. [00:15:08] Speaker 03: I think you have to look at what was the [00:15:12] Speaker 03: What was the status of the property before the 2007 litigation ended? [00:15:20] Speaker 03: In other words, what changed? [00:15:23] Speaker 04: I've never seen it actually. [00:15:25] Speaker 04: The question we have in front of us, which we're discussing and which we'll obviously hear from the government on, is whether or not, as Judge Raina helpfully put his finger on, whether the court of federal claim would have to [00:15:41] Speaker 04: second guess or review the circuit. [00:15:45] Speaker 04: So you have an interesting question. [00:15:46] Speaker 04: What standard of review do we apply to that question? [00:15:49] Speaker 04: Is it a fact question or is it a law question that suggests to me that it's our duty as a matter of law to interpret what the federal claims would have to do in this case? [00:16:02] Speaker 03: Well, I think you just have to look at what, I mean, I'm sorry to keep repeating myself, but just look at what the status of the property was before and look at what it was after. [00:16:10] Speaker 03: And I just remember that Judge Arena was on the Smith case. [00:16:15] Speaker 03: When the Smith case says, stop the beach, didn't create this law, it just applied it. [00:16:20] Speaker 03: The law existed before that time. [00:16:22] Speaker 03: So this court's already recognized in the Smith case that there can be a judicial taking. [00:16:28] Speaker 03: And I don't think it's dictated because, [00:16:30] Speaker 03: It was the basis for determining the cruel date for the statute of limitations, and the claim was dismissed based on statute of limitations. [00:16:36] Speaker 04: We really haven't fairly had the precise question in front of us. [00:16:40] Speaker 04: Is there such a thing as a judicial taking yes or no? [00:16:45] Speaker 04: I think we're here to... I mean, for example, I mean, there was an assumption below [00:16:53] Speaker 04: the Boise Cascade was a judicial takings case. [00:16:57] Speaker 04: I know that case came out of the opinion. [00:16:58] Speaker 03: I know you wrote that opinion. [00:17:00] Speaker 04: But sure the matter is that the word judicial taking is nowhere in the briefs and nowhere in the opinion in that case. [00:17:07] Speaker 04: The whole question of whether or not the Court of Federal Claims would authorize to review another court was being used by the government in that case as a ground to say there was no jurisdiction over the takings case, and perhaps sub selenio there was a [00:17:21] Speaker 04: judicial taking concept floating in the atmosphere, but it was never nailed down in the case. [00:17:27] Speaker 03: That's the case that we'd ask you to apply to our case. [00:17:29] Speaker 03: That's the one. [00:17:30] Speaker 03: I don't know if I'm into my rebuttal time. [00:17:32] Speaker 01: You've exceeded everything you have, but that's all right. [00:17:38] Speaker 03: Boise Cascades. [00:17:40] Speaker 04: Not your genial response to our question. [00:17:43] Speaker 03: That's our case. [00:17:45] Speaker 03: Boise Cascades is where we want you to go with this. [00:17:48] Speaker 03: That's exactly our case. [00:17:50] Speaker 03: And I think that that interpretation was correct. [00:17:52] Speaker 03: There is jurisdiction for that claim. [00:17:55] Speaker 01: OK. [00:17:55] Speaker 01: Thanks. [00:17:56] Speaker 01: Let's leave it at that. [00:17:57] Speaker 01: We'll restore three minutes of rebuttal. [00:17:59] Speaker 01: Thank you. [00:18:06] Speaker 00: May it please the court, Katherine Barton, for the United States, with me at council tables, Emily Meeker, also from the Department of Justice. [00:18:14] Speaker 00: I think this case [00:18:17] Speaker 00: The court should affirm all three decisions, all three of the court of federal claims, each of which is based on well-established precedent and unexceptional principles. [00:18:30] Speaker 00: The statute of limitations decision dismissal is based on the common approach that the claim accrues when the plaintiff knew or should have known. [00:18:46] Speaker 00: of the government's exercise of control. [00:18:48] Speaker 04: Newer should have known, but at a time when you were unsure what the title was. [00:18:55] Speaker 04: Well, of course. [00:18:57] Speaker 04: If you take the lay of the land, you start off with the original promise by somebody in the Department of Interior where it was, wrote the letter and said, don't worry, state law won't apply. [00:19:09] Speaker 04: And then you have the statute is passed. [00:19:12] Speaker 04: Then you have NEEMO. [00:19:14] Speaker 04: which is a data point very much in favor of your adversary, first Nemo, right? [00:19:19] Speaker 04: And then you have these there. [00:19:20] Speaker 04: So somebody scratches their head. [00:19:21] Speaker 04: Maybe somebody says, I don't know who has the title. [00:19:23] Speaker 04: It's blowing in the air. [00:19:28] Speaker 04: And then the uncle comes along and says, it's ours. [00:19:33] Speaker 04: So your view is that Petro-Hunt was stuck with the [00:19:39] Speaker 04: Had to believe that you were right when you said it was yours. [00:19:42] Speaker 04: That means it can't be theirs. [00:19:43] Speaker 04: Therefore, they should go to court. [00:19:45] Speaker 00: But that's first we were exercise. [00:19:48] Speaker 00: We had mineral leases on the land. [00:19:50] Speaker 00: They we were exercising control over it. [00:19:53] Speaker 00: They their takings claims are based in part on those mineral leases. [00:19:58] Speaker 00: And it's just common for somebody to say, hey, we think that's ours. [00:20:02] Speaker 00: You're doing something on it. [00:20:04] Speaker 00: That's a taking. [00:20:04] Speaker 00: You should come to this court. [00:20:05] Speaker 04: And you think of a case where the statute of limitations accrual date was laid up against this question about title. [00:20:14] Speaker 04: I couldn't find any case where the precise argument that Petro-Hud is making here had been made in another case. [00:20:21] Speaker 04: That is to say, where there was doubt in the mind of the would-be landowner as to whether he actually did or did not own. [00:20:28] Speaker 04: therefore wanted to avail himself of a statutory available judicial remedy, that is to say the quiet, tight election in the district court, and didn't want to trouble the world with courts whether taking claim until they knew whether they did or did not own the property. [00:20:43] Speaker 00: I'm not aware of a case like that, but the point is, I think here that there are limitations in the CFCs. [00:20:54] Speaker 04: Your adversary didn't address what I'm talking about now, but it seems to me as to what your adversary is saying is in a setting where you are juxtaposing on the one hand the statute of limitation and what I would call, for your benefit, normal accrual rules, he's saying it should be a little different when you've got a quiet title situation on the other side of the scale. [00:21:15] Speaker 00: But here, I mean, all those title issues, the question that's relevant for the statute of limitations in the CFC [00:21:23] Speaker 00: is whether it's a necessary element of the claim. [00:21:26] Speaker 00: Otherwise, they're required to come to the CFC within the statute of limitations. [00:21:31] Speaker 04: The statute of limitations doesn't prove until there's a necessary element. [00:21:41] Speaker 04: Ownership and property in order to file a court of federal claims, otherwise you'd file a frivolous claim. [00:21:45] Speaker 00: But they absolutely believed they owned the property. [00:21:48] Speaker 00: I mean, they definitely thought they owned it. [00:21:50] Speaker 00: They say they thought they owned the property until the Fifth Circuit litigation was done in 2007, that they thought it was theirs based on Nibel Oil. [00:21:59] Speaker 00: So that's a typical takings claim where they should have come to the CFC directly. [00:22:06] Speaker 00: And all those, the same, the CFC would have had to say, well, do you own the property? [00:22:11] Speaker 00: Has the government taken your property? [00:22:12] Speaker 00: Do you own it? [00:22:13] Speaker 00: Are these mineral leases on the government's property or yours? [00:22:16] Speaker 00: And in order to do that, they would say, well, you say you have a perpetual right to these servitudes. [00:22:23] Speaker 00: Do you? [00:22:23] Speaker 00: And they'd have to go through the analysis that the Fifth Circuit did. [00:22:25] Speaker 00: Is Nebo oil, is it race judicata? [00:22:28] Speaker 00: And then if it wasn't, as the Fifth Circuit said, they'd have to say, well, have they prescribed? [00:22:32] Speaker 00: So it would be the exact same. [00:22:34] Speaker 00: analysis, and there would be, just as there is now, and with regard to the quiet title, having litigated those issues between the two parties, you know, there would have been a preclusive effect. [00:22:47] Speaker 04: Moving to the temporary physical takings argument based on the execution of the leases. [00:22:55] Speaker 04: The argument there is, on your behalf, that the statute of limitations begins to run as of the date of the lease. [00:23:03] Speaker 04: That's when the landowner knows that you've exercised your claim to ownership of the property. [00:23:10] Speaker 04: His argument is that no, statute shouldn't start to accrue until the end of the lease. [00:23:16] Speaker 04: So what's wrong with his argument? [00:23:18] Speaker 04: He has some interesting state law requirements and assessments and state law things that affect the value of the lease that suggest that you should wait until the end. [00:23:30] Speaker 00: Well, the first thing that's wrong with it is this court's decision in Caldwell, which held that the government action is when a claim accrues. [00:23:44] Speaker 00: It's something that arises out of the same government. [00:23:46] Speaker 00: A claim that arises out of the same government action accrues at the time of the government action, regardless of whether it's a temporary or permanent taking claim. [00:23:53] Speaker 04: Let me put it to you this way. [00:23:55] Speaker 04: Just assume, for purposes of argument, this was a regulatory takings claim. [00:24:01] Speaker 04: And that what had happened here was that, oh, I don't know, some department of the federal government had decided for itself it would sort of drill on the property and take up the resources for the benefit of some government agency. [00:24:17] Speaker 04: So Susan says this was a regulatory taking that the government exercised various regulatory authority. [00:24:24] Speaker 04: In that case, he'd be right, wouldn't he, about when the statute of limitations accrues? [00:24:31] Speaker 04: see why, you know, I mean that just sounds like a typical... Part of the argument was borrowed from regulatory takings cases where you wait to see what the effect of the regulation is before you decide because you don't know, for example, it's, you know, flooding my land and we don't know until at some stage in the game after the initial flooding began before the property owner should be deemed to have run into court. [00:24:57] Speaker 00: The flooding cases are a special class, that there's sort of this stabilization principle. [00:25:02] Speaker 00: Flooding and erosion are kind of a special class. [00:25:04] Speaker 04: He isn't making that distinction. [00:25:06] Speaker 04: And those are physical. [00:25:07] Speaker 04: He's sort of saying that regulatory taking his law as a general proposition grants you a date for the accrual of the statute of limitations when the landowner was [00:25:18] Speaker 04: when the invasion of the right regulatorially was far enough in that you could kind of know that that's what they really meant to do. [00:25:25] Speaker 00: That's not correct. [00:25:26] Speaker 00: That's not this court's precedent. [00:25:28] Speaker 00: That's not correct. [00:25:29] Speaker 00: The only case that said that is Crippel, which they cite. [00:25:33] Speaker 00: But it was dicta because it didn't matter whether they was outside of the statute of limitations, whether it was at the beginning or the end of the time period in question. [00:25:46] Speaker 00: And Caldwell came after that in a case that actually holds with regard to actually a situation where we believed, at least, this court decided differently in the end. [00:25:57] Speaker 00: But we believed the temporary taking that was given rise to by the government action was a regulatory taking, and that the permanent taking was a physical taking. [00:26:07] Speaker 02: Can you address your Tohono position, 1500? [00:26:13] Speaker 00: Yes, it seems to me that aside from the arguments that we actually think are waived, but their arguments regarding that they didn't have a pending claim or their constitutional arguments in Tohono, that it's on all forests with central pines. [00:26:30] Speaker 00: Central pines arose out of the same national forest and the same servitudes and all this, and they did the same thing of filing a quiet title action with a takings claim in it that they then realized [00:26:42] Speaker 00: was going to be subject to a $10,000 limit and file the claim in the CFC. [00:26:46] Speaker 02: What happens if we rule in your favor with respect to the Tejon argument? [00:26:50] Speaker 02: Does that pretty much settle everything? [00:26:53] Speaker 00: No. [00:26:54] Speaker 00: It would settle everything except the judicial takings claim with respect to the 2000 action, but not with respect to the 2011 action, which they filed in order to avoid Tejon. [00:27:03] Speaker 00: Right. [00:27:03] Speaker 00: So I think it was discussed at the beginning about how the, asked about how that's sorted out, and I, counsel was correct. [00:27:12] Speaker 00: about how it sorts out this, that the taking this, the statute of limitations arguments are what the dismissal of the 2011 claim rests upon. [00:27:27] Speaker 04: So if those are removed... The legions that aren't that aren't snared by the statute of limitations. [00:27:34] Speaker 00: Right. [00:27:36] Speaker 04: The handful, however many there are, there are a batch of leases that would be snagged by the statute of limitations if you teed the statute off of the date of the lease. [00:27:46] Speaker 04: And then there are a bunch of leases. [00:27:47] Speaker 04: A bunch of leases, I'd say they're remaining leases. [00:27:50] Speaker 04: So they're alive from a statute of limitations purpose. [00:27:53] Speaker 04: And unless you're 1,500 them, they get to go to court. [00:28:03] Speaker 00: Yes, I think, yes, that, wait. [00:28:06] Speaker 00: Yes, that is, so the statute of limitations, section 1500 and the 2011, so everything is in the same sense. [00:28:12] Speaker 04: You're making an over-arguing 1500 argument, saying if we agree with you on Tohono O'odham and just wipe the whole thing out, just write a 1500. [00:28:19] Speaker 04: Right, that on the judicial point, but it's the... But then we still got the 2011 case to deal with because it's free of any Tohono disease. [00:28:29] Speaker 00: I think they effectively conceded that the [00:28:33] Speaker 00: Temporary takings claims that were dismissed on the basis of 1500 were also out of time. [00:28:39] Speaker 00: The 2011 complaint was dismissed based on their concession that if there was final judgment entered in this case with regard to the 2000s. [00:28:52] Speaker 04: concession event in front of Judge Horne, a little hard to kind of follow exactly who was giving up what. [00:28:57] Speaker 04: But it looked to me as if the statute of limitations knocks out the permanent claim, and if the statute of limitations knocks out all the leases that are pre-93, 94, and if 1500 knocks out all the leases that were after that date, and if the judicial takings claim is gone, then there's nothing left to litigate in the 2011 litigation. [00:29:21] Speaker 00: Right, I'm just saying that actually the section 1500 wouldn't apply to the 2011 litigation. [00:29:25] Speaker 00: So I think there's an assumption in their concession that those were also barred by the statute of limitations. [00:29:31] Speaker 00: But I can't say that why they made the concession. [00:29:34] Speaker 04: Right, but the 2011 case isn't barred by 1500. [00:29:37] Speaker 00: Exactly, that is my point. [00:29:39] Speaker 00: But anyway, there's no dispute that the 2011 case continues on beyond, based on the original, the way it was dismissed by the CSU. [00:29:49] Speaker 00: I'm sorry. [00:29:49] Speaker 00: That's a little confusing. [00:29:50] Speaker 00: But in terms of our alternative argument that you could dismiss all the statute of limitations, the claims that were dismissed under the statute of limitations under Tohono, that would take care of the 2000, but all those would come back in the 2011. [00:30:07] Speaker 02: In Smith, we said that judicial taking was a theory. [00:30:13] Speaker 02: In your view, is it a theory or is it an actual [00:30:18] Speaker 02: legal doctrine. [00:30:21] Speaker 00: It's not a legal doctrine that has been accepted by a Supreme Court decision that was in majority. [00:30:31] Speaker 00: There's a plurality on the Supreme Court that described in Stop the Beach that there was a judicial taking claim. [00:30:38] Speaker 00: Justice Kennedy in his concurrence, as they did not find a judicial taking anyway, [00:30:45] Speaker 00: focused on due process, or a substantive due process approach. [00:30:49] Speaker 00: I do think there's a general sense that there could be a way a court goes too far that might require some kind of a deal, probably by the Supreme Court. [00:30:58] Speaker 04: But there is no existing precedent of a judicial takings case that went to trial? [00:31:03] Speaker 00: No. [00:31:04] Speaker 00: On the merge? [00:31:04] Speaker 00: Not right. [00:31:06] Speaker 00: I mean, the best, Stockley Beach is the case. [00:31:09] Speaker 00: And it was a plurality. [00:31:11] Speaker 00: And it defined that there was a distinction. [00:31:13] Speaker 04: Hasn't cert been denied? [00:31:14] Speaker 04: I mean, cert denied doesn't mean anything. [00:31:16] Speaker 04: But hasn't cert been denied in some of our cases in which we hold that or held that we wouldn't entertain the theory on the grounds that we would have to invade or review another court's work? [00:31:29] Speaker 00: Oh, I mean, there's no. [00:31:32] Speaker 00: Yes. [00:31:33] Speaker 00: Yes. [00:31:34] Speaker 00: There is certainly precedent, Shinnecock. [00:31:37] Speaker 00: and other in this court that and confirmed by the Supreme Court, I mean, affirmed by the Supreme Court that the CFC doesn't have jurisdiction over to assess another court, but certainly the Supreme Court might. [00:31:49] Speaker 00: The Supreme Court has held that? [00:31:50] Speaker 00: No, no, no, I'm just saying, I'm sorry, I'm a little confused by the question of [00:31:54] Speaker 00: Yes, there is. [00:31:55] Speaker 00: I'm not sure. [00:31:56] Speaker 04: The Court of Federal Claims, from time to time, will say, we're not going to greet this case because it would require us to review the work of another court. [00:32:04] Speaker 04: This is the argument the government made in Boise Cascade without using the words judicially. [00:32:10] Speaker 04: And they made that argument, and the argument was rejected. [00:32:12] Speaker 04: They said, no, no, we wouldn't have to do that. [00:32:14] Speaker 04: So that's why that could go on. [00:32:16] Speaker 04: But I'm unaware of any Supreme Court case that has [00:32:20] Speaker 04: that have said that we are correct when we say that the Court of Federal Claims can't greet a case in which they would have to look at another court's work. [00:32:33] Speaker 00: No, it hasn't gone up. [00:32:34] Speaker 00: the issue has not gone up. [00:32:36] Speaker 04: It would be useful if the Supreme Court would give us a ruling on that issue at some point. [00:32:40] Speaker 00: I think this court's law on that is very solid and need not do that. [00:32:44] Speaker 04: You're in a better position to ask the Supreme Court to do things than we are. [00:32:51] Speaker 04: We could use the help. [00:32:55] Speaker 04: Okay, thank you. [00:32:56] Speaker 00: Thank you. [00:33:02] Speaker 01: Yes, three more minutes please. [00:33:05] Speaker 03: With respect to the Caldwell versus Cropel, the Arkansas case, the Supreme Court case ruled that you should look at all these factors in the flooding case. [00:33:15] Speaker 03: And we think that flooding cases, I don't think they're anything special about flooding cases, but we think that that kind of over tacitly at least overrules Caldwell. [00:33:26] Speaker 03: I want to talk about the GM cases in the judicial takings context. [00:33:34] Speaker 03: The GM, like A&D auto sales, that's a decision from this court. [00:33:41] Speaker 03: And you found that there was jurisdiction. [00:33:43] Speaker 03: The court didn't address it in terms of judicial takings. [00:33:47] Speaker 03: But the parties did in their briefs. [00:33:49] Speaker 03: They called the claims judicial takings. [00:33:51] Speaker 03: Those were the automobile dealers that lost their franchises because of the bankruptcy. [00:33:57] Speaker 03: And so there was jurisdiction found there. [00:33:59] Speaker 03: There was jurisdiction found in Boise. [00:34:02] Speaker 03: And as I understand Judge Horne's ruling, she just dismissed this case, that claim, the judicial taking claim, on the basis of no jurisdiction. [00:34:09] Speaker 03: So if you reverse that, it goes back. [00:34:12] Speaker 03: And we get to maybe have that trial. [00:34:15] Speaker 04: But it, again, reduces itself down to answering the question of whether or not to greet the case would require the court of our claims to relook or review the work of the Fifth Circuit. [00:34:30] Speaker 04: I mean, we made the decision in Boise Cascade. [00:34:34] Speaker 04: No, no, no, they wouldn't have to do that. [00:34:35] Speaker 04: Therefore, you can proceed. [00:34:37] Speaker 03: That's what I was going to say. [00:34:38] Speaker 03: I think that's what you do. [00:34:39] Speaker 04: But if you lose on that first question, oh, we're sorry, we disagree with you. [00:34:43] Speaker 04: We think the department would have to look at the Fifth Circuit, then you have to sit down. [00:34:48] Speaker 03: No, I think Boise controls, Boise certainly is what we're asking you to do here. [00:34:54] Speaker 03: We're asking you to do exactly that. [00:34:55] Speaker 03: Look at the [00:34:57] Speaker 04: Right, but the reason why we look at the merits of that case was because we decided that to do so did not require us to look into or look behind the district court action. [00:35:07] Speaker 03: And the same thing's true here. [00:35:10] Speaker 04: When you say that, that's the big question in the case. [00:35:14] Speaker 04: If you're assuming that the court of federal claims can proceed here without having to make a judgment about whether they agree or disagree with this circuit, that's your point. [00:35:26] Speaker 03: Boise didn't. [00:35:27] Speaker 03: didn't say the injunction was wrong. [00:35:29] Speaker 03: Boise just said the injunction kept us from logging this property. [00:35:33] Speaker 03: And now once the injunction is lifted, OK. [00:35:37] Speaker 03: But then Boise said, well, we had a taking because we couldn't log this property for a period of time. [00:35:44] Speaker 03: So all we're asking you to do is look at the effect of the Fifth Circuit's decision in 2007 when that litigation was over. [00:35:55] Speaker 03: Look at the effect. [00:35:57] Speaker 03: We don't care whether it's right or wrong. [00:35:59] Speaker 03: We're lost. [00:36:01] Speaker 03: We're way beyond that. [00:36:02] Speaker 03: So we're saying, look at the effect of it. [00:36:05] Speaker 03: It doesn't matter whether it was right or wrong. [00:36:07] Speaker 03: The only thing that matters is, did private property become public property as a result of that decision? [00:36:16] Speaker 03: Right or wrong? [00:36:17] Speaker 03: Doesn't matter. [00:36:18] Speaker 03: Just, did it happen? [00:36:20] Speaker 03: And then, has it ever been paid for? [00:36:22] Speaker 03: The answer is no. [00:36:25] Speaker 01: That concludes our proceedings. [00:36:26] Speaker 03: We thank both sides.