[00:00:00] Speaker 04: argument is 162636 Katzen versus United States. [00:00:05] Speaker 04: Mr. Gray, whenever you're ready. [00:00:07] Speaker 01: Good morning. [00:00:08] Speaker 01: May it please the court. [00:00:09] Speaker 01: My name is Michael Gray and I'm here on behalf of the United States. [00:00:12] Speaker 01: The court of federal claims concluded that the statute of limitations had not run and that the United States affected a permanent physical taking of 10.01 acres of the plaintiff's property by sending a fax restating the United States' [00:00:29] Speaker 01: long-standing assertion of ownership of a coastal strip and a 2.25-acre gun mount site. [00:00:35] Speaker 01: That judgment should be reversed on any one of three grounds. [00:00:39] Speaker 01: First, the six-year statute of limitations bars the plaintiff's claim, because the takings claim here accrued no later than 1987, when the plaintiff's... I understand what your argument is. [00:00:50] Speaker 04: Can I take a piece, Mill, before you give us the whole summary? [00:00:54] Speaker 04: This is just a factual question. [00:00:56] Speaker 04: I thought the stuff in 1986 in the markers had to do with the gun mount. [00:01:02] Speaker 04: The property we seem to be talking about now, whether or not it's a valid allegation of a taking, is much broader than that, includes the peninsula and maybe parcel four, which is even broader than the peninsula. [00:01:13] Speaker 04: So even if you were right that that was a sufficient basis for concluding, for putting the plaintiffs on notice, why would that notice extend to anything beyond the gun mount? [00:01:26] Speaker 01: I have two responses to that. [00:01:29] Speaker 01: The first is that the claim that they brought here was that the actions of the United States in sending the facts in 2006 was the source of the taking. [00:01:41] Speaker 01: If you look at that facts, which is page 3115 of the appendix, the facts says three things and includes these documents. [00:01:50] Speaker 01: It says, I'm including the 1887 survey map. [00:01:53] Speaker 01: I'm including in from a map that shows property 1E, which is the coastal strip, and property 1F, which is the gun mount site. [00:02:03] Speaker 01: And I'm including the Federal Register notice about that. [00:02:06] Speaker 01: And so the source of the taking that they claim pertained only to those 2.25 acres. [00:02:13] Speaker 01: And so that claim is barred. [00:02:16] Speaker 01: Now what they said was, by sending that fax, you've taken the entire property. [00:02:20] Speaker 01: in the Court of Federal Claims said, no, I don't think it's the entire property. [00:02:23] Speaker 01: I think it's 10 acres. [00:02:24] Speaker 04: But the source- It's still all broader than just the gun mount. [00:02:29] Speaker 01: It is, but the source of the claim pertained only to the gun mount. [00:02:33] Speaker 01: So it's the claim that's barred, I think, because that's what they said affected the taking. [00:02:38] Speaker 01: And the survey is exactly the same thing that the facts pertain to. [00:02:43] Speaker 04: So the survey and marking of the gun mount- So all of the discussion about the facts and how it was construed and how it affected the [00:02:50] Speaker 04: potential purchasers and stuff. [00:02:53] Speaker 04: They were only talking about the 2.5 acre gun mount. [00:02:57] Speaker 01: If you look at the facts, again, it says, I'm about to fax you a copy of the portion of the original 1887 subdivision map, a tracing of that map with Fish and Wildlife Parcel Service added. [00:03:11] Speaker 01: One E is the maritime zone, one F is the old gun mount site. [00:03:14] Speaker 04: So is it clear to you that the government has no claim, title, or otherwise, or no argument or dispute with respect to the plaintiffs on anything beyond the gun mount? [00:03:25] Speaker 01: I think that there was some evidence that in the 1940s, the Navy had, there's a concrete marker that is broader, I think, than the gun mount site. [00:03:34] Speaker 01: But all the Navy transferred to the Fish and Wildlife Service was the coastal strip and the gun mount site. [00:03:41] Speaker 02: Are you saying that Fish and Wildlife Service had none of the rights that they asserted when they wrote to the potential purchaser? [00:03:50] Speaker 01: No, I'm not saying that. [00:03:51] Speaker 01: I'm saying that what they wrote to the potential purchaser was only the rights that they asserted were to the 2.25 acre gun mount site and to the coastal strip. [00:04:01] Speaker 01: And no other rights, no rights to the peninsula, no rights to... They certainly did not assert in this fax, again, and you can look at it, any rights to the peninsula. [00:04:10] Speaker 04: I know you tried to answer my question, but maybe a yes or no would have been helpful. [00:04:14] Speaker 04: Is it the government's view currently and at all times that they are not asserting any right to any property other than the gun model? [00:04:24] Speaker 01: I think that at this point, that's correct because what the Navy transferred [00:04:30] Speaker 01: to the Fish and Wildlife Service. [00:04:31] Speaker 01: And I don't want to say just the gun mount site because also the coastal strip, which is undisputed, which is property 1E on there. [00:04:38] Speaker 04: And was that included, was the coastal strip part of what went down in the 80s too? [00:04:42] Speaker 01: Yes. [00:04:43] Speaker 01: And maybe it's helpful to talk about that a little bit. [00:04:45] Speaker 01: But ultimately, even if you concluded that the statute of limitations barred only a claim to the gun mount site, I don't think it would matter because [00:04:55] Speaker 01: I think it's clear that sending the facts, even if it did state some broader claim, at that point, you really are left with no taking because there's no other indicia of any sort of physical occupation or its functional equivalent. [00:05:09] Speaker 01: But I think if you look at that fact, you'll see it's not stating a claim to anything more than the coastal strip and the gun outside. [00:05:16] Speaker 04: I know we weren't equivalent. [00:05:17] Speaker 04: Happily, this appeal didn't dispute anything with respect to damages. [00:05:21] Speaker 04: And there is a number with respect to damages. [00:05:24] Speaker 04: So that number was purely based on the value of the gun mount and not a parcel forward. [00:05:30] Speaker 01: What the Court of Federal Claims concluded, so the initial complaint here said by saying this fact, you've taken the entire property, some 70 some acres. [00:05:41] Speaker 01: What the Court of Federal Claims concluded was that, well, there's some ambiguity and we don't know exactly where the 2.25 acres is on the peninsula. [00:05:52] Speaker 01: you know, indications on the record that maybe the claim is broader. [00:05:55] Speaker 01: And so I'm going to find that the government's taken the full peninsula and that's what the value was based on, the full peninsula. [00:06:01] Speaker 01: What I'm saying is that was incorrect. [00:06:02] Speaker 02: The government has prevented sale or transfer of the peninsula with that letter from Fish and Wildlife. [00:06:09] Speaker 02: So are you now saying that that was a mistake, what they said, and the government is just claiming any rights other than wherever that 2.5 acres [00:06:21] Speaker 02: may be placed. [00:06:24] Speaker 01: I'm saying that the Court of Federal Claims was mistaken in concluding that we have... I'm asking for the government's position. [00:06:29] Speaker 01: Our view is that the 2.25 acres and the coastal strip, which is not the entire peninsula, is what was asserted in this facts. [00:06:37] Speaker 02: And that there is no right, no asserted right, no cloud on the title, in which case it would have to be clarified, as to anything except the gun mount and the coastal strip. [00:06:49] Speaker 01: I believe that's correct based on this. [00:06:51] Speaker 02: The entire... Well, the problem with this asserted in the Court of Federal Claims, the problem is this presumed property owner was prevented from the transfer of property. [00:07:05] Speaker 02: And as far as the paper record looks so far, it's clear enough that some potential purchaser might be deterred from spending several million dollars [00:07:17] Speaker 02: in this context. [00:07:18] Speaker 01: Well, perhaps maybe I'll address whether there was a taking at all here, which would get us out of this sort of the statute of limitations box and where it applies because I don't think it ultimately matters because I don't think there could be a taking based on that ground because what the facts says is exactly what the government has maintained since 1903, that we have [00:07:43] Speaker 01: rights to this coastal strip and to the gun mount site. [00:07:46] Speaker 02: Why do they write to the purchaser and say, look what you're getting into? [00:07:50] Speaker 01: Well, that's not what happened. [00:07:52] Speaker 01: The purchaser sent an email to the Fish and Wildlife Service that says, I would greatly appreciate any information you could provide with respect to Parcel 4. [00:08:03] Speaker 01: Of course. [00:08:04] Speaker 01: And we responded to the purchaser with a federal register notice, which of course [00:08:10] Speaker 01: was a public notice already that the Fish and Wildlife Service had a federal register notice from 1982. [00:08:16] Speaker 01: So the purchase, the idea that the Fish and Wildlife Service did anything here that affected the sale, I think is wrong because all the Fish and Wildlife Service did was send what was already a public notice and of course a federal register notice. [00:08:30] Speaker 02: One thing that's clear is that there is a cloud somewhere. [00:08:34] Speaker 02: One can understand why they court a federal claims [00:08:38] Speaker 02: appreciated that since the government has declined to resolve that cloud, that they're stuck, they can't sell the property. [00:08:48] Speaker 02: It was, in which case, due to government action, if you go back to whenever, there may be a question as to when that action occurred, but obviously it's ongoing because of the response of the Fish and Wildlife Service. [00:09:03] Speaker 01: Well, if the facts itself and what was asserted in the facts is enough, [00:09:08] Speaker 01: then that's the same exact assertion that's been made at least since nineteen eighty two uh... in the federal register notice and so that would clearly bar any claim uh... but i think that really does far too broad a standard for what was asserted here which is a physical taking yeah there was there was never a regulatory taking press in this case is that right that's correct this was always a physical taking case in the only thing that the united states has done is assert its ownership and i think [00:09:38] Speaker 01: it's clear that you need something more than a mere assertion of ownership. [00:09:41] Speaker 01: You can have an assertion of ownership for a quiet title act case, but not for a takings case. [00:09:46] Speaker 04: What about the Yaste case? [00:09:47] Speaker 04: I mean, it's troubling on you. [00:09:48] Speaker 04: There's a footnote in your brief that says, well, you may have to repudiate Yaste because it's inconsistent with subsequent Federal Circuit decisions. [00:09:58] Speaker 04: As I'm sure you know, that's not the way it works. [00:10:01] Speaker 04: A panel cannot repudiate an unbonk earlier decision. [00:10:05] Speaker 04: They would have to take it unbonk. [00:10:07] Speaker 04: And even if subsequent cases can be construed as being inconsistent, we go back to the first as being the guiding principle. [00:10:16] Speaker 01: I don't quarrel with any of that, but I'll say two things about Yaste. [00:10:20] Speaker 01: The first is I think the whole line of cases from that time period, Yaste and the Borges case and Yuba Goldfields, they all sort of predate what this court has now said is the sharp divide between regulatory and physical takings. [00:10:36] Speaker 01: In the Borges case in particular, you see a site to Penn Central saying, well, you don't have to have physical occupation, and then going on with a physical case. [00:10:45] Speaker 01: So I think that not only this court's case law, but the Supreme Court's case law has sort of moved on. [00:10:49] Speaker 01: And when you look at those cases in that context, and now we're clearly in a physical takings context here, it's not enough. [00:10:56] Speaker 01: But the second thing is even in Yaste, you had more than you have here. [00:11:01] Speaker 01: Because in Yaste, this was the Everglades case where [00:11:07] Speaker 01: They had sold the property to two different entities, one of which was the United States. [00:11:14] Speaker 01: And the United States had filed the deed and had sent a letter saying, this is our land because we bought it and filed the deed, which I think is much more an official filing of a deed. [00:11:26] Speaker 02: You had a congressional act saying... There's no counterpart here. [00:11:29] Speaker 02: There's no filing of a deed by the government. [00:11:32] Speaker 02: All there is is this cloud. [00:11:34] Speaker 02: And what would be very helpful to me is to understand [00:11:37] Speaker 02: that you're saying is that the government has the rights to the two and a half acres. [00:11:45] Speaker 02: There may be uncertainty as to where those two and a half acres are, but no other rights in this property, this peninsula. [00:11:56] Speaker 01: I think based on this record that that's all at this point that we've claimed, and that's all the fish and wildlife service. [00:12:02] Speaker 02: The debate, as before the federal claims, is trying to clarify and still [00:12:08] Speaker 02: before us. [00:12:09] Speaker 02: I'm not interested in hedging as to maybe we'll say something else in a quiet title action or whatever, but to understand if the government's position is, yes, there was the oceanfront claim from the Spanish ownership. [00:12:28] Speaker 02: There is the gun mount, which doesn't seem to be in dispute as far as ownership rights are concerned. [00:12:35] Speaker 02: There may be some argument as to where it's located, but that it's limited to the two and a half acres. [00:12:41] Speaker 02: And as to the rest of this debate, going back in history, there is no assertion of ownership by the United States. [00:12:51] Speaker 01: At this point, we have not, in this case, asserted that ownership now exists. [00:12:57] Speaker 02: That's the issue that was raised in this case, is the rights because this asserted [00:13:03] Speaker 02: A reported property owner was prevented from transferring the property. [00:13:08] Speaker 01: Prevented from transferring his entire property. [00:13:10] Speaker 01: It was the only the peninsula. [00:13:12] Speaker 02: Except for the two and a half acres. [00:13:14] Speaker 01: And much of this confusion, I think, is a product of the way the case was brought and tried, where you have this sort of physical takings claim that's based on a claim to two acres that you say you physically took the entire property. [00:13:26] Speaker 01: And then the Court of Federal Claims says, well, I'm going to cut it back some. [00:13:29] Speaker 01: But that's all based there. [00:13:31] Speaker 01: There are definitely historical documents in the record where the United States has at times said the 10-acre property, but that's not what was transferred to the Fish and Wildlife Service and that's not what we're claiming here. [00:13:43] Speaker 02: So the Fish and Wildlife Service was in error, was incorrect when they told the purchaser that there's a problem with this property? [00:13:52] Speaker 01: No, what I'm saying is the problem that the Fish and Wildlife Service identified, and it's right there in the tract, [00:14:00] Speaker 01: or in the facts is, you know, track 1E is a maritime zone and 1F is an old gun mount site purchased by the Navy in 1903. [00:14:08] Speaker 01: That's all they asserted. [00:14:09] Speaker 01: That wasn't incorrect. [00:14:10] Speaker 01: What was incorrect was the Court of Federal Claims, you know, saying that it went farther. [00:14:15] Speaker 01: Now, we didn't appeal. [00:14:16] Speaker 01: We could have, I think, appealed on the grounds that the Court of Federal Claims had a broader taking, found a broader taking than we did based on this fact. [00:14:27] Speaker 01: We didn't appeal on that ground because [00:14:30] Speaker 01: This is a National Wildlife Refuge. [00:14:32] Speaker 01: If we were to lose the case entirely, I think the Fish and Wildlife Service would be happy to have the land, but we've not claimed that land yet. [00:14:39] Speaker 02: So what are you saying? [00:14:40] Speaker 02: You say they'd be happy to have it. [00:14:42] Speaker 02: Or are you saying that in some sort of quiet title action, the government is going to come back in and say, no, it's ours? [00:14:50] Speaker 01: I don't believe we would. [00:14:52] Speaker 01: Well, I don't want to restrict whatever happens in a future quiet title action. [00:14:55] Speaker 01: I don't think that's what we would do, but there may be a [00:14:58] Speaker 02: a condemnation action, you know, we could bring in just... No, it may be that the court or federal claims heard the same double talk that we're hearing and decided to put an end to it. [00:15:09] Speaker 01: I'm really not attempting to give any double talk. [00:15:12] Speaker 01: I am just relying on what the record is. [00:15:15] Speaker 01: And I would encourage the court to take its own look at what this fact says, which is restricted. [00:15:22] Speaker 01: The only taking they found was based on the facts. [00:15:25] Speaker 01: And the fax is restricted to the 2.25 acres and the coastal strip. [00:15:30] Speaker 04: So you're telling us that if, let's assume you were to prevail on that. [00:15:37] Speaker 04: Yes. [00:15:37] Speaker 04: That the government is not going to come back if they file another takings claim with respect to the rest of the area five years from now, you're not going to assert where your statute of limitations is run because that so-called taking of everything was already known to you. [00:15:53] Speaker 01: I guess it depends on what the actions are that they claim takes the land. [00:16:03] Speaker 01: I'm hesitant to speculate about what [00:16:06] Speaker 01: We might say, I guess it depends on what they identify and what we've done. [00:16:10] Speaker 04: In order to agree with you on this division, like this was the only thing that stayed and going back to the 1980s, there was fact finding by the Court of Federal Claims, right? [00:16:18] Speaker 04: That there was a lot of ambiguity in terms of what the government was saying in terms of survey markers and stuff in the 1980s. [00:16:25] Speaker 01: How do we dislodge that? [00:16:30] Speaker 01: I'm glad you raised that because I do want to address it because what the Court of Federal Claims said [00:16:34] Speaker 01: in a footnote without a citation was perhaps the posting of these signs could have related only to the maritime zone. [00:16:40] Speaker 01: But that's inconsistent with the Court of Federal Claims' own findings. [00:16:45] Speaker 01: If you look at page 23 of the appendix, the Court of Federal Claims says .606 forms one of the points of the gun mount site. [00:16:53] Speaker 01: And then the Court of Federal Claims says that the Fish and Wildlife Service employee found marker and sign at .606. [00:17:01] Speaker 01: And he testified to that page 1000, 1001 of the appendix that he found the marker and sign at .606. [00:17:08] Speaker 01: That sign says unauthorized entry prohibited. [00:17:10] Speaker 01: So even in the Court of Federal Claims own fact finding, there's findings of fact that there was a sign posted at one of the points of the gun mount site. [00:17:20] Speaker 01: So I think it is clearly erroneous for the court to then later say it could have related [00:17:25] Speaker 01: only to the Maritimes. [00:17:26] Speaker 04: Let me bring you to the broader question of takings, leaving aside what parcel we're talking about, which is the sort of notion of the non-possessory physical taking. [00:17:39] Speaker 04: We've got to do line drawing here, even under your theory. [00:17:43] Speaker 04: So I'm trying to discern where the line would be drawn. [00:17:46] Speaker 04: If the government tells all prospective purchasers [00:17:50] Speaker 04: of a parcel of property, if it goes to them and say, don't buy this because we have a pretty good, what we think is a very strong title claim to this property. [00:18:02] Speaker 04: Would that be sufficient to be a non-processor of taking? [00:18:06] Speaker 01: I don't think so. [00:18:07] Speaker 01: I mean, that's what happened when they published a Federal Register notice. [00:18:12] Speaker 01: I mean, that's essentially notice to the world that the United States claims the property. [00:18:16] Speaker 01: I mean, they published a Federal Register notice [00:18:20] Speaker 01: maps that showed this is the property we're claiming. [00:18:23] Speaker 01: I don't think that that mere assertion of title is enough. [00:18:26] Speaker 01: I think under this court's case law, like Washoe County, you need some physical occupation or its functional equivalent of a practical ouster. [00:18:36] Speaker 04: But if it's a practical matter, one could fairly conclude on the record, or it's even not disputed, but that when the government goes to purchasers and tells them, we have a very strong claim to the entire parcel, [00:18:48] Speaker 04: that it effectively will preclude the sale of the parcel and detract or obviate any value to that parcel for purposes of the owner. [00:18:59] Speaker 01: Well, I'm not sure that that's a fair assumption because even on the facts here, which I don't think is necessary for the court to get to, but you have Mr. Colon and the entity Jim who were both willing to proceed with the sale even with knowledge of the United States claim here. [00:19:12] Speaker 01: So I don't think [00:19:13] Speaker 01: that it's fair to say just because the United States... Well, we might know that or have some evidence of that. [00:19:17] Speaker 04: We don't know if that would have resulted in the value of the property significantly being undermined. [00:19:23] Speaker 01: Well, I think the offer from Jim was... I mean, the previous sale was 4 million. [00:19:29] Speaker 01: The Claver purchase price was 4 million and the offer from Jim was 3.8 something. [00:19:34] Speaker 01: So I don't think that... I think even on this evidence that there wasn't a major impact. [00:19:40] Speaker 01: to value there from that. [00:19:43] Speaker 01: And I still think under this court's case law, the correct line of draw is you need some assertion of title plus something else. [00:19:48] Speaker 01: So you have like the erection of offense in the Manet case, which is the court federal claims case, or you have in Yuba Goldfields, that's a case where you're dealing with mineral rights and the United States possessed the land that the mineral rights were on and said you're prohibited [00:20:10] Speaker 01: from entering and the court said, well, you don't have to go actually be physically ejected. [00:20:16] Speaker 01: That's enough to say, well, you're prohibited from entering, but you don't have any sort of indication like that at all here from the facts. [00:20:23] Speaker 01: I mean, there's nothing on the ground. [00:20:24] Speaker 04: Well, it's just my own life experiences, which are not dealing with exchanges of large parcels, but anybody, any one of us that buys a house or a condo, you have a title search. [00:20:36] Speaker 04: everybody is assuming that this only goes through if there's no cloud on the title. [00:20:40] Speaker 04: If there's a cloud on the title, the transfer of the property is not going to go through and it's going to be a big to do and it's going to undermine or obviate the sale. [00:20:52] Speaker 04: Why is this circumstance like, is not comparable to that kind of circumstance? [00:20:56] Speaker 01: Well, I think what I would say is that whatever cloud on the title existed, existed long before [00:21:02] Speaker 01: the Fish and Wildlife Service sent the facts. [00:21:04] Speaker 01: All they did was restate the same claim they've had since 1903. [00:21:10] Speaker 01: From the Navy, if you're doing a title search, one of the things you're going to search for, regardless of whether the Fish and Wildlife Service ever sent a fact, if there are any clouds, you'll see the Federal Register notice. [00:21:23] Speaker 02: That was just the border along the sea and the gun mount shortly after the property was acquired from the Spanish. [00:21:31] Speaker 02: I didn't see that that purported to change any of the private rights that had been vested and that were explicitly preserved after the United States treaty with Spain. [00:21:45] Speaker 01: And I don't think that the facts did anything more than restate exactly what that claim has always been. [00:21:52] Speaker 01: And I, again, I encourage her to look at the language of the facts. [00:21:56] Speaker 01: All it says is the coastal strip and the gun mount site. [00:21:59] Speaker 01: So it's the exact same claim. [00:22:01] Speaker 01: I mean, arguably, the sellers would be under an obligation themselves to disclose this claim, which was known to their predecessors in 1987, the Court of Federal Claims found. [00:22:13] Speaker 01: So the idea that there was any action here by the United States in sending a fax that did anything to change what the purchaser would have done, I think is incorrect, because the claim existed, the plaintiffs knew about it, [00:22:28] Speaker 01: uh... in nineteen eighty seven if they're going to sell their land and they know about it uh... cloud on the pilot i think that you know at least arguably they're under a good faith duty to disclose that it was in a public document of in a federal register notice so the idea that just to reiterate where we started which is it's the government's position that the only [00:22:48] Speaker 04: or argument with respect to title or anything with regard to this land is exclusively the gun mount and that peninsula. [00:22:58] Speaker 04: It did not involve anything, any other land. [00:23:02] Speaker 01: That's right. [00:23:03] Speaker 01: Yes, that's correct. [00:23:04] Speaker 01: We didn't assert that the Court of Federal Claims found that it was broader, but that's the claim that we brought, yes. [00:23:10] Speaker 01: That's the claim the United States made to title, yes. [00:23:14] Speaker 04: Okay, why don't we hear from you? [00:23:17] Speaker 04: Thank you. [00:23:26] Speaker 00: Good morning. [00:23:27] Speaker 00: May I please the court? [00:23:28] Speaker 00: Roberto Berrios-Falcón for the Appellees. [00:23:33] Speaker 00: First of all, Your Honors, I'm surprised to hear from the United States that they've abandoned their 10.01 acres claim of the peninsula. [00:23:44] Speaker 04: Where was the claim made? [00:23:46] Speaker 04: Okay, give us the specificity of where [00:23:48] Speaker 04: you concluded that that claim was made? [00:23:51] Speaker 00: The claim? [00:23:52] Speaker 00: The 10.01? [00:23:52] Speaker 00: For the first time? [00:23:53] Speaker 04: For all of the acres. [00:23:54] Speaker 04: Is the 10.1, is that the peninsula or? [00:23:57] Speaker 00: Yeah, that's what the Court of Federal Claims refers to as the peninsula. [00:24:01] Speaker 04: Okay, where is the evidence that that was the assertion they were making? [00:24:05] Speaker 00: Well, that assertion was first made in October 2010, and as we progressed in the negotiations to exchange land with the government, [00:24:19] Speaker 00: failed, we had to bring this claim to the Court of Federal Claims. [00:24:23] Speaker 00: And at that point in time, we filed it in accordance to what they had actually asserted, which was the 2.25 acres, the maritime zone, and the other documents that were included in that communication from June 22, 2006, by the Fish and Wildlife Service. [00:24:44] Speaker 03: However, the... Do any of those other documents refer to the entire peninsula? [00:24:49] Speaker 03: 10.01 acres. [00:24:52] Speaker 03: That's what they refer to in the peninsula. [00:24:53] Speaker 03: The other documents do refer to the 10 point... Yes. [00:24:56] Speaker 03: Okay. [00:24:57] Speaker 04: Now, tell me again which... And the facts... Do you agree with your friend that the facts is limited to the gun mount and the little... Yes, but the facts includes certain documents. [00:25:09] Speaker 00: Okay, can you point us in the record? [00:25:10] Speaker 00: Do we have that stuff in there? [00:25:12] Speaker 00: Sure, I can. [00:25:12] Speaker 00: I don't have the actual... I think it's like the third page in the facts. [00:25:18] Speaker 00: Let's see. [00:25:19] Speaker 00: 3120? [00:25:20] Speaker 00: 3120. [00:25:28] Speaker 04: So again, we're talking about this facts sent in response to the Breyer's request. [00:25:32] Speaker 00: Right. [00:25:33] Speaker 00: And then in the documents that were filed in the court of federal claims, the... [00:25:39] Speaker 00: The Fish and Wildlife Service in the United States made inconsistent claims at different times. [00:25:45] Speaker 04: Let's start with the document. [00:25:47] Speaker 04: What in the document tells us whether we're just talking about the gun mount or whether we're talking about more than that? [00:25:54] Speaker 00: Well, in the actual facts, they claim 2.25 acres as registered in the registered property. [00:26:01] Speaker 00: It's property 120. [00:26:02] Speaker 00: You're going to have to show me. [00:26:05] Speaker 04: You don't have a copy of this with you? [00:26:07] Speaker 04: In the first page are the facts. [00:26:08] Speaker 03: 3115. [00:26:13] Speaker 00: The actual communication. [00:26:17] Speaker 03: But that fax in paragraph 2 of that fax refers to track 1E. [00:26:24] Speaker 03: That's the maritime zone, right? [00:26:26] Speaker 00: That's where they refer to maritime zone. [00:26:28] Speaker 03: And then 1F is the gun mount. [00:26:30] Speaker 03: That's where they refer to the gun mount, right. [00:26:35] Speaker 03: Is there anything else? [00:26:38] Speaker 00: Not in the 3115 page, no. [00:26:42] Speaker 03: I see on page 3120 there is what purports to be some sort of a chart showing the peninsula. [00:26:53] Speaker 03: How does that relate to anything that was said in the facts? [00:26:56] Speaker 00: No, it's not related to what was said in the facts. [00:27:00] Speaker 00: It was just included with the facts. [00:27:02] Speaker 00: However, the position was taken by the government [00:27:05] Speaker 00: During the trial, before and after trial, that they also have a claim for 10.01 acres. [00:27:12] Speaker 03: Does it, they took that position verbally, orally? [00:27:16] Speaker 00: No, no, they took that position in writing. [00:27:18] Speaker 03: In writing where? [00:27:20] Speaker 00: In the pleadings in the Court of Federal Claims. [00:27:24] Speaker 00: Can you point us to something in the appendix? [00:27:27] Speaker 00: Let me see, hold on. [00:27:28] Speaker 00: Let's see if I can have something in the appendix. [00:27:39] Speaker 00: I don't have the number. [00:27:48] Speaker 04: But even if that's true, the tripwire here, the complaint here, is with respect to what the government was telling prospective buyers. [00:27:58] Speaker 04: That's what resulted in the injury. [00:28:01] Speaker 04: And if you're pointing us to [00:28:03] Speaker 04: everything that was said to the buyers and it seems only to be a reference to the gun mount and that other strip and not to the entire 10 acres, then isn't that a problem for this case going beyond that? [00:28:17] Speaker 00: When we started negotiating with the government, we took the position it was only 2.25 acres because we do admit that the government has rights to the maritime zone pursuant to [00:28:32] Speaker 00: state law. [00:28:32] Speaker 00: So you ought to be happy what you heard today, right? [00:28:35] Speaker 00: Yeah. [00:28:37] Speaker 00: So we admit that they have their maritime rights. [00:28:40] Speaker 00: I mean, according to law, it's not actual ownership. [00:28:44] Speaker 00: However, in regards to the 2.25 acres, our research demonstrated and the evidence proffered in the court of federal claims demonstrated that the 2.25 acres, although we agree with the government that they own it, [00:29:00] Speaker 00: we prove that the actual government is located somewhere else and not within the confines of the boundaries of the plaintiff's property. [00:29:10] Speaker 00: And that's what the court of federal claims found. [00:29:14] Speaker 00: However, due to the inconsistent claims of the government, then the court of federal claims had to find that [00:29:24] Speaker 00: what any prudent person would do. [00:29:26] Speaker 00: I mean, that the actual claim was for the 10.01 acres. [00:29:30] Speaker 00: Because once we demonstrated to the government that it was somewhere else, they made the actual claim for the 10.01 acres. [00:29:40] Speaker 04: Well, if we were to conclude, hypothetically, an opinion like that you are time barred, and that's because we think the only claim at issue here [00:29:51] Speaker 04: And the only thing that's at stake and the only thing that the government has ever asserted a right to was this gun mount thing and this other thing. [00:30:00] Speaker 04: And that the other portions of parcel four, the government hasn't asserted any rights. [00:30:06] Speaker 04: So it ought not to affect, it couldn't have, and it wouldn't affect, at least as of this time, any ability for you to sell it. [00:30:15] Speaker 04: Wouldn't you be happy with that opinion? [00:30:16] Speaker 04: I mean, in a way you would lose the appeal, but [00:30:21] Speaker 04: At least that would give you what you want, right? [00:30:24] Speaker 04: Where there's no dispute on that. [00:30:25] Speaker 04: You have no dispute on that, that the government owns those portions of it. [00:30:29] Speaker 04: And the government owns which portions? [00:30:31] Speaker 04: Just the gun mount and that little, I don't know. [00:30:34] Speaker 00: No, there has never been a dispute that they own the gun mount. [00:30:37] Speaker 00: It's off to the location of the gun mount. [00:30:40] Speaker 00: That's the dispute. [00:30:43] Speaker 00: Because the government claims that the government is located within the boundaries of the plaintiff's property. [00:30:49] Speaker 03: That was the same dispute that was the subject of some correspondence and some interaction in 1987, correct? [00:30:59] Speaker 00: No. [00:31:00] Speaker 00: In 1987, the record demonstrates [00:31:05] Speaker 00: that the correspondence that was exchanged between the predecessor of one of the plaintiffs, Dr. Katzen, and the Fish and Wildlife Service asserts that there is a controversy similar to the one asserted by their neighbor, by his neighbor. [00:31:26] Speaker 00: And if you look at the controversy asserted by the neighbor, [00:31:32] Speaker 00: is only as to the maritime zone or the establishment of the maritime zone or the high water mark. [00:31:39] Speaker 00: There is no mention of any other controversy. [00:31:43] Speaker 03: Furthermore... Was it their discussion about the markers and the various points on various maps? [00:31:50] Speaker 00: Right, yeah. [00:31:51] Speaker 03: But all those markers... The points relating to the gun mount. [00:31:54] Speaker 00: All those markers and points are on the coastline of the property, on the maritime zone. [00:32:00] Speaker 00: There are none [00:32:02] Speaker 00: coming into inland of the property. [00:32:05] Speaker 00: So basically they delineate the maritime zone. [00:32:09] Speaker 03: There's at least one chart that showed some sort of a parallelogram or some polygon that showed property within the peninsula. [00:32:23] Speaker 00: You mean that polygon? [00:32:25] Speaker 03: Yes. [00:32:26] Speaker 00: The thing is that if you look at that polygon, you look at it closely, it's a really narrow [00:32:32] Speaker 00: piece of land as demonstrated in the depicted. [00:32:36] Speaker 03: It's not a strip of land along the coast. [00:32:38] Speaker 00: No, no, no. [00:32:39] Speaker 00: I'll get to that. [00:32:40] Speaker 00: It's a really narrow, I guess, little peninsula that's as depicted in that map or that drawing, right? [00:32:51] Speaker 00: The thing is that the strip of the maritime zone could very well become just one. [00:33:01] Speaker 03: See what I mean? [00:33:04] Speaker 03: I don't see that at all. [00:33:06] Speaker 03: I think you're making my point because that's what the parties were arguing back then. [00:33:15] Speaker 00: No, because no assertion of any separate and distinct property as to 2.25 acres located within the boundaries of the plaintiff's property was ever made [00:33:32] Speaker 00: to the upper leagues? [00:33:34] Speaker 04: I don't understand. [00:33:35] Speaker 04: We started this discussion, and I really do apologize, because maybe it's me and not you. [00:33:40] Speaker 04: But we started this discussion looking at the facts. [00:33:43] Speaker 04: The facts is key. [00:33:44] Speaker 04: It's like, what was referred to in the facts? [00:33:48] Speaker 04: That ought to set the parameters for what is at stake in this case, because it's your complaint about what the government's, the level and the parameters of the government's interference. [00:34:00] Speaker 04: So if this... Do we agree? [00:34:02] Speaker 04: What do you think this fax covers? [00:34:04] Speaker 04: It doesn't cover all of parcel four. [00:34:06] Speaker 04: It doesn't cover all of... No, no, no. [00:34:08] Speaker 00: Right. [00:34:09] Speaker 00: Basically, the assertion at that point, which interfered with the sale, was the ownership of Maritime Zone and the ownership of a 2.25 acre property that was sold in 1903 by Mr. Mulero to the United States Navy and was registered in the registry of property. [00:34:30] Speaker 00: on the property number 120, which we do not dispute. [00:34:34] Speaker 03: And that's all. [00:34:37] Speaker 03: It's just the maritime zone and the gun mount in the facts. [00:34:42] Speaker 00: But they do include the 10.301 Acre joint, which later they state that they have a claim, and now they abandon the claim, it seems. [00:34:57] Speaker 03: Where did they later say that was part of the claim? [00:35:00] Speaker 00: In the court of focus, in the pleadings. [00:35:02] Speaker 04: But how can that be part of your claim? [00:35:04] Speaker 04: Because your claim is dealing, to the extent you have one, and that's a legal question, is interference with your property right by the government going out and telling the purchasers that they have this claim. [00:35:18] Speaker 04: And that's your claim. [00:35:21] Speaker 04: So if all they told the purchasers in response to their request [00:35:26] Speaker 04: only involve these small pieces. [00:35:29] Speaker 04: In a way, what does it matter? [00:35:30] Speaker 04: I mean, I'm not happy. [00:35:32] Speaker 04: I'm a little troubled by what representations would have been made at the trial and what consequences. [00:35:38] Speaker 04: But why does that really matter to your claim? [00:35:43] Speaker 04: Your claim has to be limited. [00:35:45] Speaker 04: Your claim is based entirely on the interference by communicating with the buyers that the government had some sort of title claim [00:35:54] Speaker 04: to certain aspects of the property. [00:35:59] Speaker 00: How can the dispute go any farther than that? [00:36:03] Speaker 00: It went farther than that once we established that the location of the gun mount was not within the confines of the plaintiff's property, then it became something else. [00:36:16] Speaker 00: Then it became a 10.01 acres claim. [00:36:18] Speaker 00: And those inconsistencies [00:36:20] Speaker 04: OK, that's what I don't know. [00:36:21] Speaker 04: Can you give me a little more on that? [00:36:22] Speaker 04: Because I completely don't understand how the gun mount became 10.8. [00:36:27] Speaker 00: We didn't understand it either. [00:36:29] Speaker 00: That's exactly the point. [00:36:30] Speaker 00: And that's why. [00:36:31] Speaker 04: Well, can you point us to what went down? [00:36:34] Speaker 04: Who said what when? [00:36:35] Speaker 04: How did this become part of the debate? [00:36:37] Speaker 00: Well, in October, I can't remember the appendix number, but in October 2010, I was sent a fax from the solicitor's office, the general's office. [00:36:49] Speaker 00: And they claimed that they had reason to believe that they also owned the 10.01 acres. [00:36:55] Speaker 00: And after that, in our complaint, we included that actual... What was the date of that letter, did you say? [00:37:04] Speaker 00: October 2010. [00:37:05] Speaker 00: And that was a fax? [00:37:09] Speaker 04: That was an email. [00:37:12] Speaker 04: What was going on in that timeframe? [00:37:16] Speaker 00: In June 9, 2010, [00:37:18] Speaker 00: The plaintiff sent a communication to the Fish and Wildlife Service stating that we have done extensive research all the way to the 1800s that demonstrated that the 2.25 acre gun mount was not located within the confines of the property. [00:37:34] Speaker 00: Therefore, we were requesting that they surrender the claim and let us continue with our sale of property to other third parties, and that would be it. [00:37:46] Speaker 00: However, that's when the government [00:37:48] Speaker 00: said that we didn't understand that they also were claiming the 10.01 acres. [00:37:54] Speaker 03: So are you saying that at that point when the government communicated to you that they were also claiming rights in the 10-point acre peninsula, that's another taking, a separate taking apart from the facts? [00:38:10] Speaker 00: Well, that's when we understood that the claim from the government was not just limited. [00:38:16] Speaker 00: to the 2.25 acres, and now that they were claiming a 10 acre... But that didn't relate back to the facts. [00:38:21] Speaker 03: This was a separate communication. [00:38:24] Speaker 00: It did relate back to the facts in the sense that the communication from October 2010 included, once again, the 3120. [00:38:37] Speaker 00: Which is the depiction of the 10.01 acre peninsular. [00:38:41] Speaker 04: I hate to interrupt your remark, but I just wondered if the government has a citation in the appendix to this June 2010 letter of communication. [00:38:51] Speaker 01: I don't have that handy. [00:38:52] Speaker 01: I'm not sure what it is. [00:38:55] Speaker 01: Or if it's in the appendix. [00:38:58] Speaker 04: All right. [00:39:10] Speaker 04: Let me just sort of move over a little. [00:39:12] Speaker 04: Sure. [00:39:12] Speaker 04: We're still talking the same thing. [00:39:13] Speaker 04: To the extent that your argument, let's forget what we're talking, the parameters of the land we're talking about. [00:39:19] Speaker 04: Let's just talk about the communication by facts. [00:39:24] Speaker 04: And whether or not there's enough on this record to establish the level of interference that had the use of the property. [00:39:31] Speaker 04: So there's evidence in the record, is there not, that there was a potential seal going on to, I guess, a Mr. Colon where [00:39:40] Speaker 04: he didn't care about the little stuff that you, you backed out of a sale. [00:39:45] Speaker 04: It's not, you would agree on the record. [00:39:47] Speaker 04: It's not crystal clear that this completely eliminated your ability to sell the property. [00:39:54] Speaker 00: The problem with that assertion is that in the actual document that was sent by, by, um, Mr. Collot, even though the, the, um, the broker stated, um, [00:40:06] Speaker 00: that he didn't have a problem. [00:40:08] Speaker 00: The actual document, the offer, stated that the actual parcel had to have clear title. [00:40:14] Speaker 00: And that could not be offered, especially to the part that Mr. Colon wanted, which was the part that on the east side of the parcel, which is basically the peninsula. [00:40:27] Speaker 00: So since we could not offer clear title, we could not sell it to him. [00:40:36] Speaker 00: That was his offer. [00:40:39] Speaker 00: He wanted it. [00:40:40] Speaker 00: He didn't want it to bill, but he wanted a clear title. [00:40:44] Speaker 04: But do you think the interference, if to the extent there is a taking under some legal theory, that would be limited, that would exclude the gun mount property and the other stuff we've been talking about because you acknowledge the government has a right to that? [00:41:04] Speaker 00: To a maritime zone. [00:41:06] Speaker 00: Yeah, Norman has the right to the maritime zone, doesn't have rights to the gun mount as located within the plaintiff's property because it's located somewhere else. [00:41:18] Speaker 02: That location is still being argued about as to which side of which boundary the two acres are? [00:41:25] Speaker 00: Yeah, it was decided by the Court of Federal Claims in their opinion that the 2.25 acres is located to the north [00:41:34] Speaker 00: of the plaintiff's property in a separate and distinct property, not nowhere near the plaintiff's property. [00:41:42] Speaker 04: And is the government appealing that? [00:41:44] Speaker 04: I mean, I guess we'll ask that. [00:41:45] Speaker 04: I don't think so, but you can ask the government. [00:41:52] Speaker 04: Well, maybe I'm just overly optimistic or stupid, but it seems to me that we really maybe really don't have a real dispute here. [00:42:00] Speaker 00: Well, the dispute was originally [00:42:04] Speaker 00: that the location of the gun mount and then the assertion of the 10.01 acres. [00:42:09] Speaker 00: As it kept going, we tried several times to come to an agreement with the government, and we actually almost did. [00:42:18] Speaker 00: But at the end, it didn't happen. [00:42:23] Speaker 00: So that's why we're here today. [00:42:25] Speaker 02: I wonder if what's needed is some sort of quiet title action and actually [00:42:33] Speaker 02: within under the laws of Puerto Rico to resolve the cloud which the court of federal claims resolved? [00:42:45] Speaker 00: Well, I mean, you could, I mean, I'm not really sure if you have the same type of action. [00:42:50] Speaker 00: I mean, of course you might. [00:42:52] Speaker 00: However, the... Nobody's filed a quiet title action. [00:42:57] Speaker 04: No, no, there's no quiet. [00:42:59] Speaker 04: both parties have the ability or is there a statute of limitations problem with that to argue? [00:43:03] Speaker 00: Well, the statute of limitations of the quiet title action is, I think, 12 years. [00:43:08] Speaker 00: Yes. [00:43:09] Speaker 00: And from memory, it seems to me that the quiet title action, the acquittal of the action actually is triggered by the publication in the register of the claim, if I remember correctly. [00:43:28] Speaker 00: However, it's not the same case in a takings action. [00:43:31] Speaker 00: So you're saying you would be barred under a quiet title. [00:43:36] Speaker 00: I think so. [00:43:37] Speaker 00: I think there's case law that states that the quiet title action commences to accrue once it's published in the federal register. [00:43:46] Speaker 00: However, that's a mere assertion of title, which is not the case in this case. [00:43:53] Speaker 00: Here, we're talking about interference. [00:43:55] Speaker 00: with the plaintiff's property rights to exercise the right to sell their property, which they couldn't do without the claims of the government. [00:44:04] Speaker 04: Can I ask you, what if, hypothetically, when this buyer went to the government and solicited their views, the government just didn't respond? [00:44:14] Speaker 04: The facts got lost in the paper. [00:44:15] Speaker 00: Well, we would have sold, probably. [00:44:17] Speaker 00: We would have sold, probably, because what the registrar property in Puerto Rico [00:44:22] Speaker 04: In order to effectuate the sale, wouldn't somebody be doing some search of the records in terms of appropriate titles? [00:44:31] Speaker 04: So wouldn't this come up anyway? [00:44:34] Speaker 04: No. [00:44:40] Speaker 00: I'll explain to you why it wouldn't. [00:44:45] Speaker 00: In a title search, in this case, [00:44:48] Speaker 00: If you do a title search of the plaintiff's property, of partial four, it would come up free and clear. [00:44:55] Speaker 00: No, I'm not titled on title. [00:45:01] Speaker 00: You could do another search for property 120 and that would come up free and clear. [00:45:10] Speaker 00: Since property 120 was acquired in 1903 and it has never been sold or nothing has ever been done with [00:45:17] Speaker 00: It basically sits there as it did in 1903. [00:45:19] Speaker 00: So if you lost track of that property once the other properties changed their configuration, then you don't know exactly where it is. [00:45:29] Speaker 00: So you would need to track it down, which is what we did once the government claimed that that property was located within the boundaries of the plaintiff's property. [00:45:39] Speaker 00: And when we ended our research, we found [00:45:45] Speaker 00: that the property was located somewhere else. [00:45:47] Speaker 00: And that's what we communicated for the government. [00:45:49] Speaker 00: So it wouldn't come up in the title search just per se. [00:45:53] Speaker 04: OK. [00:45:53] Speaker 04: I get your point. [00:45:54] Speaker 04: All right. [00:45:54] Speaker 04: Well, thank you very much. [00:45:55] Speaker 04: Let's hear from the government. [00:45:57] Speaker 04: Thank you. [00:46:05] Speaker 04: Would you start by clearing up just the question of the location of the gun mount? [00:46:10] Speaker 04: Because we were talking with you earlier about we all agree the gun mount is yours, but there seems to be a second dispute about the location. [00:46:17] Speaker 01: The Court of Federal Claims concluded that the gun mount should have actually been located in a property just to the north. [00:46:25] Speaker 01: We didn't appeal that conclusion. [00:46:27] Speaker 03: Do you have any dispute with that conclusion at this point? [00:46:32] Speaker 01: No, I think we do. [00:46:35] Speaker 01: maintained since 1903 that the gun mount site is on the peninsula. [00:46:39] Speaker 01: But this is their takings claim. [00:46:42] Speaker 01: So it doesn't particularly matter where the gun mount site is as a title matter. [00:46:50] Speaker 01: We've located it and mapped it and surveyed it and everything else on the peninsula since 1903 and then 1985. [00:46:59] Speaker 01: So their claim is that those actions took the property. [00:47:02] Speaker 01: And that's what we quarrel with. [00:47:04] Speaker 01: where it should be located would have to be resolved somewhere else. [00:47:09] Speaker 04: Well, why hasn't where it's located been resolved? [00:47:13] Speaker 04: The Court of Federal Claims made a finding. [00:47:16] Speaker 04: You haven't appealed it to us. [00:47:18] Speaker 04: We're not going to dislodge that finding. [00:47:21] Speaker 04: So you're going to have a final opinion. [00:47:26] Speaker 04: making that statement. [00:47:27] Speaker 04: You're suggesting that that doesn't matter. [00:47:30] Speaker 01: Well, perhaps it will. [00:47:30] Speaker 01: But the claim here is that our actions with respect to the peninsula took their property. [00:47:35] Speaker 01: And that's what we've appealed. [00:47:36] Speaker 01: And so those are the facts that matter for this appeal. [00:47:42] Speaker 01: And the effect of that can be resolved there. [00:47:45] Speaker 01: I just want to make two very brief points. [00:47:50] Speaker 01: And I hope I can maybe clear up some of the source of the confusion on the claim to the whole peninsula. [00:47:55] Speaker 01: I think what's going on here is, and I don't want to get into the substance of it because we didn't talk about it in my opening or in his response, but we have contended that they didn't prove their own ownership of the full peninsula because the survey and the quantity, the survey plat and the quantity don't show the peninsula. [00:48:19] Speaker 01: And so I think, and there's some evidence that [00:48:23] Speaker 01: The larger survey was bordered by property of the Navy. [00:48:28] Speaker 01: So I think that's where that confusion comes from. [00:48:32] Speaker 01: But that's really based on our assertion more that they haven't proven that they own the peninsula, not so much that we own the whole thing, which I think maybe is the source of some of the confusion there. [00:48:44] Speaker 04: Can you think that's the reference to June 2010 or whatever communication? [00:48:48] Speaker 01: I don't remember that particular communication, so I don't want to speculate about it. [00:48:53] Speaker 01: But I think the way the case proceeded was, you know, this thing goes back more than 100 years. [00:48:58] Speaker 01: We've offered up everything we could find, which included, you know, the map showing the 10 acres, which included the Navy marker, which included their surveys of their properties, which don't show the peninsula. [00:49:10] Speaker 01: And so I can understand why. [00:49:12] Speaker 01: There's a lot of confusion. [00:49:14] Speaker 04: Do you think, and I haven't consulted with my colleagues, so I... Is there some possibility of resolving this case now that it appears that some of what's going on here and that the government is really asserting is there's been some misunderstandings? [00:49:29] Speaker 04: Would it behoove us to at least give the parties a precise timeframe in which to resolve it? [00:49:37] Speaker 04: Do you think that based on what you've heard today, [00:49:41] Speaker 04: that we don't want to waste everybody's time, and our job is to decide this case, and we're more than happy to do our job. [00:49:47] Speaker 04: But I'm just wondering if you think there's a possible worthwhile settlement. [00:49:52] Speaker 01: Yeah. [00:49:53] Speaker 01: I want to be careful. [00:49:54] Speaker 01: I will say that we've engaged in extensive settlement discussions in the past. [00:50:00] Speaker 01: I don't think that anything I've heard today would lead me to believe that there would be some breakthrough on those, but we're always willing to try again if the court thinks that would be the best route. [00:50:11] Speaker 03: Well, picking up on what the Chief Judge just said, it seems to me that you don't seem to have a dispute with the finding that the gun mount is in plot 25 and not plot 24, and that there's no dispute about the maritime zone. [00:50:32] Speaker 03: So it almost seems to me that the government would not be adverse [00:50:39] Speaker 03: to communicating to the property owner that the government makes no claim to your property except with respect to the maritime zone. [00:50:49] Speaker 03: If that's the case, it would seem to me that that resolves it. [00:50:55] Speaker 01: It's difficult because I think what happens in the context of litigation and what they might want outside of the context of litigation may be different. [00:51:03] Speaker 01: The Fish and Wildlife Service has [00:51:06] Speaker 01: a wildlife refuge in this area that it has maintained since it acquired these properties since the 80s. [00:51:14] Speaker 01: I think they would want to maintain the wildlife refuge in that area. [00:51:19] Speaker 01: And if we were [00:51:20] Speaker 01: going back to have more discussions with the plan so we'd still be focused on the peninsula. [00:51:24] Speaker 04: I thought you had discussions about some of that stuff early on and they went well, but the parties resolved some of their disputes or whatever. [00:51:31] Speaker 01: No? [00:51:32] Speaker 01: They've resolved disputes with respect to other properties in ways that I think as time has worn out, the Fish and Wildlife Service hasn't been all that particularly happy with. [00:51:43] Speaker 04: But I don't know how those disputes are going to be resolved by whatever we do in this case in any of that. [00:51:49] Speaker 01: And they may not be, and that's part of the difficulty here is that if you conclude there's no taking, there's still going to be this dispute out there. [00:52:00] Speaker 01: But I think it was important for us both on the general principles of law and the particular facts here where we believe we shouldn't be required to pay for land that we've already acquired to bring this to the court. [00:52:16] Speaker 04: Can I just ask you one more question? [00:52:17] Speaker 04: I alluded to this earlier on, but I don't know what's confidential, so I don't want to throw out the number. [00:52:23] Speaker 04: But there's a number we all have that you're not appealing the actual damages calculation. [00:52:29] Speaker 04: Does that coincide with the value of the entire property? [00:52:35] Speaker 04: Because now we've narrowed it to just really being about the small matters. [00:52:39] Speaker 01: That coincides with the value of the 10.01 acres, which is [00:52:45] Speaker 01: you know, a part of their entire property. [00:52:48] Speaker 01: Their entire property is much larger than just that 10 acre peninsula, which is... The 10 acre is larger than what you're saying dispute was over in the past. [00:52:56] Speaker 01: Yeah, and part of the problem here is the Coroferro claims, said we took the 10 acres, but it's not a separately defined 10 acre property. [00:53:05] Speaker 01: There's no meets and bounds description of what exactly we took. [00:53:08] Speaker 01: It just says it's the 10 acre peninsula. [00:53:11] Speaker 01: So there's, I think, still some confusion on that point to be [00:53:14] Speaker 01: resolved. [00:53:16] Speaker 04: I do think... But you never repealed that, so that's not going to be resolved. [00:53:20] Speaker 01: No, I mean, well, I think, you know, the court issued a 54B judgment. [00:53:24] Speaker 01: I think we could go back to the court of federal claims and say we need more assistance to know exactly what we took if we were found to have taken the property. [00:53:31] Speaker 02: Again, I don't think that's the right result here for all the reasons I've explained, and I think the last point I want to make is just that... The record is full of maps as to the peninsula, the Calabria, and the area [00:53:44] Speaker 02: as well as the uncertainty as to the gun mount and as to the maritime easement or whatever it is. [00:53:52] Speaker 01: You're telling us that none of that was, that that's clouded as well as to... The one map which is that 3120, you know, that shows the 10.01 acres, I mean, it just... No, there's... It's not meets and bounds. [00:54:06] Speaker 01: There's no meets and bounds description. [00:54:08] Speaker 01: There's no... You don't know exactly where. [00:54:09] Speaker 01: I mean, I think [00:54:10] Speaker 01: And we could take a guess based on where that old Navy marker was as to one point of it. [00:54:15] Speaker 01: But we don't know exactly how to draw the line to get to the 10.01 acres. [00:54:21] Speaker 01: Those are matters that haven't been resolved. [00:54:23] Speaker 01: I do think that the court's intuition here that this is really a quiet title act dispute is the right one. [00:54:33] Speaker 01: And I think that what's happened here is they can't bring a quiet title act claim. [00:54:40] Speaker 01: And so they brought this takings claim on facts that would only give rise to a quiet title act and not to a taking because there's no action by the government to physically possess. [00:54:50] Speaker 04: Couldn't the government bring a quiet title action? [00:54:54] Speaker 01: The government could, and we may need to do that should we win this case to finally clear this all up. [00:54:59] Speaker 02: You're saying only the government can act to quiet this title? [00:55:03] Speaker 01: I think that that's right. [00:55:03] Speaker 01: I think they're time barred at this point, yes, which is not unusual. [00:55:08] Speaker 04: And they're not disputing that, right? [00:55:11] Speaker 04: I think your friend acknowledged that he was time limited. [00:55:14] Speaker 01: Yes. [00:55:15] Speaker 01: So yeah, I think that that's where the future of this dispute lies, if we can't figure something out. [00:55:21] Speaker 01: But yeah, I think that that intuition is the correct one, that this is really a quite title-like dispute, because there's no action by the government to physically possess the property through the sinning of a fax. [00:55:33] Speaker 01: Thank you. [00:55:35] Speaker 04: Thank you. [00:55:35] Speaker 04: We thank both sides. [00:55:36] Speaker 04: The case is submitted. [00:55:41] Speaker 04: The next two cases for argument are 17-2244-1108.