[00:00:00] Speaker 04: Before today, four argued cases. [00:00:03] Speaker 04: The first is Martin v. United States, case number 172224, an appeal from a decision of the United States Court of Federal Claims. [00:00:18] Speaker 04: Mr. Dunn, you want five minutes for rebuttal? [00:00:23] Speaker 04: Yes, ma'am. [00:00:29] Speaker 04: All right, you may begin. [00:00:35] Speaker 02: May it please this honorable court, my esteemed colleagues. [00:00:40] Speaker 02: I'm joined today by one of the appellants I'd like to make out of the fact that Sandra Knox-Mark is here in the courtroom. [00:00:46] Speaker 02: And I'm also joined by co-counselor Marshall Ray at table. [00:00:49] Speaker 02: I do believe that the correct place to start this discussion today with the court is two points from our opening brief. [00:00:57] Speaker 02: The first is the citation to the letter that we received, that our clients received from the U.S. [00:01:03] Speaker 02: Forest Service. [00:01:04] Speaker 02: And in that letter they discuss that when it comes to the vested property right easements that our clients both alleged in the complaint exist and that they possess, [00:01:14] Speaker 02: that they do not agree and that anybody attempting to utilize those easements does so under the threat of criminal prosecution or civil prosecution. [00:01:22] Speaker 02: I think that that is the threshold issue where the lower court went astray. [00:01:28] Speaker 02: Ultimately, that property interest, that compensable property interest taken as true in the complaint would have formed the basis for this case to continue on. [00:01:37] Speaker 04: So I understand it. [00:01:39] Speaker 04: So what you are then saying that your focus is on an unconstitutional conditions case. [00:01:47] Speaker 04: But I've read that letter, and yes, they say they don't agree that you have rights under 2477. [00:01:52] Speaker 04: And I think that's a debatable proposition as to whether private parties can ever have such rights or whether they're only governmental rights. [00:02:02] Speaker 04: But putting that question aside, [00:02:06] Speaker 04: Does it really say, it does say if you go ahead and use it, you could be subject to prosecution, but of course you haven't been subject to that prosecution yet, right? [00:02:16] Speaker 04: That's right. [00:02:17] Speaker 04: And it doesn't say, as far as I read it, that if you apply for a permit, that you would have to waive your ability to assert such rights separate and independent from a permitting process, does it? [00:02:32] Speaker 02: I believe it does, Your Honor, and the reason why is contained in that first part of the last paragraph of that letter that I discussed, which is that we do not recognize these rights. [00:02:42] Speaker 02: Basically saying, and making a determination, and we talked about this in our briefing, that under the omnibus public law, permanent law of 1997, section 108, that's a determination that they couldn't make, but they did. [00:02:54] Speaker 02: And upon that determination, what they're saying is there's no saving cause to your property interest. [00:03:00] Speaker 02: You can get a permit from us, and that's how you can access your property, but that is the only way that you could do this. [00:03:06] Speaker 02: Now, of course, that turns to the question of whether or not there can be reasonable regulation. [00:03:09] Speaker 02: And we're not arguing that they can't reasonably regulate. [00:03:12] Speaker 02: But they cannot condition that regulation upon agreeing with the allegation in that letter that we have no property right. [00:03:21] Speaker 02: That's why we get the letter. [00:03:22] Speaker 04: Well, I guess I'll ask your friend on the other side whether or not they believe they've conditioned that. [00:03:27] Speaker 04: Because the reality is you haven't filed for quiet title under 2477, have you? [00:03:32] Speaker 02: No, that's very true, Your Honor. [00:03:34] Speaker 04: Okay, but you understand that at least under New Mexico law it appears that you would have that right. [00:03:40] Speaker 02: That's correct, Your Honor. [00:03:41] Speaker 02: We do believe that. [00:03:41] Speaker 02: But ultimately what the action was to say we are occupying your easement and saying it is our easement was actually an occupation of that easement. [00:03:51] Speaker 02: And to say that they could not use that easement in the manner that they wanted to. [00:03:55] Speaker 02: without the threat of criminal prosecution or civil prosecution is ultimately where the taking became ripe. [00:04:01] Speaker 02: That's our argument. [00:04:02] Speaker 02: And we believe that that language, especially given the considerations from the St. [00:04:07] Speaker 02: John's case, is why this case is ripe at this juncture. [00:04:12] Speaker 02: And Your Honor mentioned whether or not it is or it is of property interest. [00:04:16] Speaker 02: I think that's a threshold question that ultimately the court would have to get to before they look at whether or not [00:04:22] Speaker 04: Well, certainly the government made alternative arguments. [00:04:26] Speaker 04: One is there's no right to take to the Court of Federal Claims, and that even if there were a right to take, your claim for a regulatory taking is not yet right. [00:04:38] Speaker 04: And the Court of Claims did not address the first question. [00:04:42] Speaker 02: That's right. [00:04:42] Speaker 04: And you didn't ask for the Court of Claims to declare that you had such a right, did you? [00:04:47] Speaker 02: No. [00:04:48] Speaker 02: We believe it's a compensable property interest. [00:04:49] Speaker 02: We believe that the facts and the law as their election complaint support that that is a compensable property interest, such that there was enough information for the court to take as true that we have that compensable property interest and proceed to that determination of whether or not it had been taken at that point. [00:05:04] Speaker 04: Well, I think that's the way the court approached it, that even assuming that you have that compensable property interest, your regulatory taking claim is not right. [00:05:14] Speaker 02: That's correct. [00:05:14] Speaker 02: And you'll see in the briefing from both the parties that that discussion of whether or not it is a property interest dominates the briefing for us and for the government. [00:05:22] Speaker 02: I think that is, in both the parties' mind, a more threshold question than the rightness issue. [00:05:28] Speaker 02: Of course, the government in their motion did move that it was not right and should therefore be dismissed. [00:05:34] Speaker 02: We believe that that letter saying, if you try to use your easement, you don't have one, and we will prosecute you is a final determination by the agency and is therefore right that they have assumed and taken that property or extinguished that property through their administrative action. [00:05:52] Speaker 01: OK. [00:05:52] Speaker 01: Does this mean that the letter that we're talking about makes Coons more applicable in this case? [00:06:00] Speaker 01: Yes, sir. [00:06:01] Speaker 01: In what manner? [00:06:03] Speaker 02: We believe that this goes to the unconstitutional conditions. [00:06:07] Speaker 02: And Coons very clearly sets out that if the government comes to you and says, OK, we'll give you a permit to continue to use this portion of your property. [00:06:16] Speaker 02: But in exchange, you have to agree with us that you're either giving up this property or you don't have this property right. [00:06:22] Speaker 02: That's on all fours, I believe, with Coons. [00:06:25] Speaker 01: Coons says that when the government extorts... But in Coons, they did apply for a permit. [00:06:29] Speaker 02: They did. [00:06:30] Speaker 02: They did. [00:06:30] Speaker 02: That's correct. [00:06:31] Speaker 02: And we believe that when we reached out to the government and said, we want to go ahead and use our property right, what do you need from us? [00:06:38] Speaker 02: And they were back and said, we don't think you have anything. [00:06:40] Speaker 02: Remember, it may not have been in the form of an application, but we initiated the communication with the government to say we're going to go use our property. [00:06:47] Speaker 02: What do you need from us? [00:06:48] Speaker 02: They were back and said, well, we need a permit from you, and we need you to understand you don't have that property. [00:06:53] Speaker 02: That's not your property. [00:06:55] Speaker 01: The initiation by our partners... Well, what's your authority that you would waive your property interest if you were to apply for a permit? [00:07:03] Speaker 01: I understand the argument, but I'm not quite sure I understand the authority upon which you base your argument. [00:07:10] Speaker 02: And this won't be readily available on the record. [00:07:14] Speaker 02: But in my background, and I have argued these issues with the BLM in past cases, this marks the second time I've had this discussion with the Forest Service. [00:07:24] Speaker 02: And ultimately, there was some discussion with the Forest Service and with the BLM that we did in the past that what's on their form, their form for a, I forget the form number, for a special use permit, [00:07:37] Speaker 02: It basically sets out that there is no way in there that you wouldn't. [00:07:41] Speaker 02: And I don't believe that there is a case that says that you wouldn't. [00:07:44] Speaker 04: Well, why wouldn't you then say, give me the permitting materials, and I'll look at them and see if you're imposing unconstitutional conditions upon either my getting a permit or as a prerequisite to receiving a permit? [00:08:01] Speaker 02: I believe we have the permitting materials. [00:08:03] Speaker 02: We've seen that. [00:08:03] Speaker 02: It's not contained on their form. [00:08:06] Speaker 02: your rights and reservations are not waived on this form or whatever that may be. [00:08:11] Speaker 02: That's fairly typical. [00:08:12] Speaker 02: I've seen those forms in numerous occasions. [00:08:14] Speaker 04: The letter says, we don't believe you have these rights. [00:08:19] Speaker 04: It doesn't say you don't have these rights. [00:08:21] Speaker 04: And did they supply you with that general counsel opinion? [00:08:25] Speaker 02: The Forest Service did. [00:08:26] Speaker 04: All right. [00:08:27] Speaker 04: And I read that general counsel opinion as sort of a classic, I kind of conclude that [00:08:33] Speaker 04: These rights are only public rights, but it's a close call, and there's lots of arguments on the other side. [00:08:39] Speaker 04: I mean, why isn't that enough for you to say they're not affirmatively saying that we are forever barred from making a challenge under 2477? [00:08:47] Speaker 02: I read the letter a little bit differently, Your Honor. [00:08:52] Speaker 02: I believe that when they cite, and this is apparent in their briefing as well, when they cite to the Kinsheriff case and when they cite to the Seward cases, it's very clear that they're saying that the only type of easement that exists is a public easement. [00:09:03] Speaker 04: Well, that's clear that that's what the government wants the answer to be. [00:09:07] Speaker 04: But even they are conceding that it's not very clear. [00:09:10] Speaker 02: I don't know that I've noticed that particular concession. [00:09:14] Speaker 01: Well, the letter does say, we caution that, and I'm quoting, we caution that anyone using the national force lands in an unauthorized manner may be subject to criminal civil liabilities. [00:09:29] Speaker 01: I don't see that as firm enough as it being the top of denial that you would like for us to believe this letter is. [00:09:37] Speaker 02: I believe read against the preceding sentences in that paragraph it is when they say, we've looked at what you say you have as easements, and we do not agree that you hold those easements. [00:09:47] Speaker 02: And then in the rest of the letter, they've discussed that under the law, as they see the law, that nobody holds a private easement under RS-2477. [00:09:57] Speaker 04: I have read the 10th Circuit cases that [00:10:00] Speaker 04: discuss this. [00:10:00] Speaker 04: And it appears that at least in the Tenth Circuit they either assume a private easement exists or conclude that under the appropriate circumstances it can. [00:10:10] Speaker 04: But it turns on a couple things, neither of which are in this record, which are at what point do you say that the right vested and how do you say that the right vested? [00:10:20] Speaker 02: And that gets to the propriety of a 12b6 motion. [00:10:24] Speaker 02: We've alleged what we believe are the facts sufficient to establish that this is a private easement. [00:10:29] Speaker 02: But the court did not get to that question. [00:10:31] Speaker 02: The appropriate remedy may be to remand. [00:10:33] Speaker 04: OK, but so help me on these specific answers. [00:10:35] Speaker 04: When do you say the right vested? [00:10:38] Speaker 02: Before the forest reservation ever became final. [00:10:44] Speaker 02: These roads, these properties, existed before the forest reservation was even there. [00:10:48] Speaker 02: They were set up by the original patent holders, the predecessors in interest to my clients. [00:10:53] Speaker 04: The properties in terms of just the land sitting there or? [00:10:56] Speaker 02: The roads as well. [00:10:57] Speaker 02: The ingress and egress to those patented mining properties was established by those mining companies at the time. [00:11:03] Speaker 01: This was established in 1870s, right? [00:11:05] Speaker 01: 1880s, 1870s. [00:11:07] Speaker 01: At that time, how was the transportation being conducted in and out of the property? [00:11:14] Speaker 01: Is it by foot or horse? [00:11:16] Speaker 02: Or wagon. [00:11:17] Speaker 01: Or wagon or mule? [00:11:19] Speaker 01: Not vehicular traffic. [00:11:21] Speaker 02: Sure, but there is other good case law when it comes to RS-2477s that discusses that whatever the purpose of that road was. [00:11:28] Speaker 02: In fact, that's in the U.S. [00:11:29] Speaker 01: versus 9941.71... The purpose of the road was to give you access to your landlocked property. [00:11:37] Speaker 02: To mining properties, it was a mine hall road. [00:11:40] Speaker 02: That was the reason the road was established, was to haul ore back and forth out of the mining districts. [00:11:44] Speaker 02: That's the reason for the establishment of these roads. [00:11:47] Speaker 02: Those people that placed those claims and worked those claims and established those roads to access those mansions... Is this in the San Pedro Wilderness area? [00:11:56] Speaker 02: This is in... Your Honorable, are you familiar perhaps with Bandelier? [00:12:00] Speaker 02: Yes. [00:12:01] Speaker 02: It's to the south and to the west of Bandelier. [00:12:05] Speaker 02: North of Cochiti Pueblo, there's the Cochiti Pueblo Golf Course where the Dixon Apple Orchard used to be before the fire. [00:12:12] Speaker 02: It's to the north of that. [00:12:14] Speaker 04: In the Batta case upon which you rely, one of the facts that the court relied upon is that those private entities actually helped build the road or contributed to either the monetary building of the road or the labor and building of the road. [00:12:30] Speaker 04: Do you have those facts here? [00:12:32] Speaker 02: We've alleged that these roads were established upon those facts, that these roads were originally established to serve those mining claims and that those mining companies established those roads. [00:12:43] Speaker 04: That they helped pay for them, helped build them? [00:12:46] Speaker 02: I don't know why else a mining company would actually do that, and nobody else would have built a road for a mine other than those mining companies. [00:12:52] Speaker 02: I think that's an inherent... Government didn't build the road? [00:12:55] Speaker 04: You don't know? [00:12:56] Speaker 02: I'm sorry, Your Honor. [00:12:57] Speaker 04: The government didn't build the road? [00:12:58] Speaker 02: No, I doubt seriously that the government built the road. [00:13:01] Speaker 02: There's no evidence of the government building this particular road. [00:13:03] Speaker 02: In fact, the government didn't have any interest in this property until [00:13:07] Speaker 02: the forest reservation. [00:13:08] Speaker 02: There was really no interest in the government building that road. [00:13:11] Speaker 02: Now, it was later maintained. [00:13:13] Speaker 02: And I don't think that we've disputed that after it was erected and constructed by the mining companies, that later on it was taken over by the state of New Mexico. [00:13:21] Speaker 02: And they established a public highway there as well. [00:13:24] Speaker 02: And the county of Sandoval maintains those roads for a long period of time as well. [00:13:29] Speaker 02: And we don't dispute that there is a public easement there, that the government could [00:13:37] Speaker 02: assert. [00:13:38] Speaker 02: They could have asserted a claim like this. [00:13:40] Speaker 02: They haven't. [00:13:40] Speaker 02: I don't think that they have an interest in keeping these roads open after the fire. [00:13:44] Speaker 02: But certainly our clients who wish to establish another mining operation potentially there and to understand the value of that property would like to reestablish these roads as private roads. [00:13:53] Speaker 04: Okay. [00:13:54] Speaker 04: You're almost out of time, so I'll restore three minutes for rebuttal. [00:13:57] Speaker 04: Thank you. [00:14:08] Speaker 03: Good morning. [00:14:09] Speaker 03: Erica Kranz from the United States. [00:14:10] Speaker 03: With me is Tyler Burgess, also from the Department of Justice. [00:14:14] Speaker 03: So I suppose you should start this 2015 letter. [00:14:17] Speaker 03: There simply is nothing in this letter that states that it is requiring these inholders to waive any kind of claimed rights that they have. [00:14:29] Speaker 01: It's simply stating the United States' opinion, which is- So what is the government's position on the argument that your opponent is making? [00:14:37] Speaker 01: If they apply for a permit, is the government going to then come back and say you waive the application or permit itself? [00:14:46] Speaker 01: No. [00:14:47] Speaker 01: Is that the government's position that you will not assert that type of defense? [00:14:50] Speaker 03: That's right. [00:14:51] Speaker 03: We're not saying that applying for a permit is any kind of waiver. [00:14:55] Speaker 01: There are cases that- Well, let's say that they do apply for a waiver. [00:14:58] Speaker 01: Let's say that- Apply for a permit. [00:15:00] Speaker 01: A permit, rather. [00:15:01] Speaker 01: They apply for a permit a couple months from now. [00:15:04] Speaker 01: Are you going to come back and say, well, you apply for a permit, we denied it, and in the process of applying for the permit, you waived whatever interest you may have had in the easement? [00:15:18] Speaker 03: No. [00:15:18] Speaker 04: Do you disagree with your friend on the other side who says that the actual forms that you use [00:15:23] Speaker 04: require them to indicate that there is no private right in the easement? [00:15:28] Speaker 03: Honestly, I haven't seen that form, but that is not the position of the United States that would be waiving any kind of interest here by applying for a permit. [00:15:36] Speaker 03: There are cases that we've cited in our briefs that show that even if a private entity holds an easement, [00:15:44] Speaker 03: It can still be regulated. [00:15:46] Speaker 03: That easement crosses Forest Service land. [00:15:47] Speaker 03: It's still subject to Forest Service regulation. [00:15:50] Speaker 03: That regulation does not require or constitute a waiver of any kind of private interest. [00:15:56] Speaker 04: What about the other onerous conditions that they say that you want to impose on them, such as the environmental impact studies and all of those other things? [00:16:06] Speaker 03: pardon parcel of the Forest Service Regulation here. [00:16:10] Speaker 03: So to give you a little bit of background here, so they're alleging, in their complaint, the only basis for a private interest here that they're alleging is RS-2477, right? [00:16:21] Speaker 03: That statute clearly states that it grants rights of ways for highways, which are public roads, right? [00:16:29] Speaker 03: A highway is not a private... Well, the term highway was [00:16:34] Speaker 04: contemplated much differently in 1866 than it is now. [00:16:37] Speaker 03: I actually, I was curious about that too. [00:16:39] Speaker 03: So I went and pulled up a couple old, the oldest dictionaries I could find at the Department of Justice. [00:16:47] Speaker 03: There's one from 1901, a highway, a public road open to all passengers. [00:16:53] Speaker 03: One from 1828. [00:16:55] Speaker 03: a public road open to all passengers. [00:16:58] Speaker 03: I went to your library this morning. [00:16:59] Speaker 03: I found one from 1911. [00:17:00] Speaker 03: It says essentially the same thing. [00:17:02] Speaker 04: Well, what do we do with all these 10th Circuit cases that seem to recognize that even if they are originally contemplated to be highways, that the point is that the easement is given not just to governmental entities, but to private parties under the appropriate circumstances? [00:17:23] Speaker 03: I'm not sure there's any cases saying that a private easement under RS-2477 can be held by private parties. [00:17:32] Speaker 04: The Nevada case doesn't say that? [00:17:35] Speaker 03: The condemnation case? [00:17:37] Speaker 03: That case is incorrect. [00:17:39] Speaker 03: So let me explain to you why. [00:17:40] Speaker 03: First of all, [00:17:43] Speaker 03: terribly muddles the law, sort of mixes up the mining law and RS 2477. [00:17:49] Speaker 04: OK, but you have to concede that you said you weren't aware of any case. [00:17:52] Speaker 03: Right. [00:17:52] Speaker 04: There was that case. [00:17:53] Speaker 04: But then there are several others who ultimately conclude that there is not such a right. [00:18:00] Speaker 04: But in each instance, they assume that there could be. [00:18:04] Speaker 04: And then they also say that whether such a right exists is defined by state law, not by the federal law. [00:18:12] Speaker 03: Even if they had a state law easement across Forest Service lands, I'm not even sure how that would work, but it would still be subject to Forest Service regulation. [00:18:24] Speaker 03: So what they, again, have pledged in their complaint is only RS-2477. [00:18:30] Speaker 03: And that condemnation case is simply wrong because it is entirely based on the premise that RS-2477 created some private interest and that those private individuals were excluding people and had [00:18:43] Speaker 03: basically taking control of a private road. [00:18:45] Speaker 04: It said it created a private easement. [00:18:48] Speaker 03: Right. [00:18:48] Speaker 03: If it created a private easement, maybe there was some other basis for an easement there, but it couldn't have been ours. [00:18:52] Speaker 04: What is the point of those, the creation of those new roads, if it wasn't to provide access to the parties who owned the land? [00:18:59] Speaker 03: They're public highways, right? [00:19:01] Speaker 03: So they're public ways for the public to generally have access across public lands. [00:19:09] Speaker 04: a private easement is different than a public highway. [00:19:11] Speaker 04: I mean, there can be easements along a railroad, there can be easements along a highway, and that doesn't take away the private right. [00:19:18] Speaker 03: Right, but they're again only alleging RS2477 is the basis for their alleged private easement here, and we're saying that can't be possible, right? [00:19:28] Speaker 03: Even if it were, even if they had an easement under RS2477, again, they don't, or some other theory, [00:19:36] Speaker 03: it would still be subject to reasonable regulation. [00:19:39] Speaker 03: And the mere application of regulation is not itself a taking. [00:19:43] Speaker 03: We know that from Riverside Bayview, obviously, it says just that. [00:19:49] Speaker 03: The mere application of regulation, it's not enough. [00:19:51] Speaker 03: You've got to go through it. [00:19:52] Speaker 04: Well, Coons says, depending on how onerous the regulation is. [00:19:56] Speaker 03: In Coons, right. [00:19:57] Speaker 03: So in Coons, two big problems with applying Coons to this place. [00:20:00] Speaker 03: First, in Coons, though that developer went through the work [00:20:04] Speaker 03: applied for a permit. [00:20:06] Speaker 03: And the water district in that case said, no, we're denying your permit. [00:20:11] Speaker 03: Here's how we would grant it if you deed us over some of your land. [00:20:16] Speaker 03: So these plaintiffs, of course, have not even begun to engage with the permit system. [00:20:23] Speaker 03: They're simply. [00:20:23] Speaker 04: But by definition, if you said we would grant it, if you agree that you have no private easement rights, then you would fit within Coons. [00:20:35] Speaker 03: I guess possibly, but there's nothing here like that. [00:20:39] Speaker 03: I mean, the Forest Service is not asking for anything from them beyond compliance with the regulations. [00:20:45] Speaker 04: But what are the regulations? [00:20:47] Speaker 03: So the regulations came under a statute called ANOCA, which was enacted in 1980. [00:20:53] Speaker 03: And the regulations are found at 36 CFR 251.110. [00:20:58] Speaker 03: And it says, well, ANOCA says the Forest Service has to [00:21:05] Speaker 03: Let me make sure I've got the language here. [00:21:07] Speaker 03: They have to provide access to non-federally owned land within the boundaries of the National Forest System as the secretary deems adequate to secure the owner in the reasonable use and enjoyment thereof, provided that such owner comply with rules and regulations applicable to ingress and egress. [00:21:22] Speaker 03: So the normal regulations. [00:21:24] Speaker 03: And then we have the regs that talk about the application requirements for getting that access. [00:21:28] Speaker 04: So what are the normal regulations when you say it? [00:21:33] Speaker 04: Clearly, Justice Alito said, or the majority said, in Justice Alito's opinion, that mere permitting fees are not problematic. [00:21:43] Speaker 04: He did not get into all other costs and burdens. [00:21:48] Speaker 04: He said in this particular case, if you get to the burden of deeding over some portion of your land, then that's too much. [00:21:54] Speaker 04: But he never addressed what the middle ground might be. [00:21:57] Speaker 04: So you can see that there are lots of other requirements, like environmental impact studies, et cetera. [00:22:03] Speaker 03: For the Forest Service to grant a right of access that would require something like building an entirely new road through the Forest Service, that would, of course, trigger NEPA. [00:22:15] Speaker 03: What level of NEPA review that would require is going to depend on what these plaintiffs want. [00:22:20] Speaker 03: And because they have never asked for anything in particular, the Forest Service can't even determine what level of NEPA review is going to be required. [00:22:28] Speaker 03: So it is a process. [00:22:31] Speaker 03: It could be expensive. [00:22:32] Speaker 03: But this is the cost of initially building a road to a remote area. [00:22:37] Speaker 03: I mean, it is expensive. [00:22:40] Speaker 03: Even if they had an RS247 right away, Forest Service isn't required to build that road for them, to maintain it for them. [00:22:51] Speaker 03: What we think really was happening here was these planets were simply using a forest road to access their inholdings. [00:22:58] Speaker 03: That's fine. [00:22:59] Speaker 03: Now that road has washed out. [00:23:01] Speaker 03: And the Forest Service can't justify the cost of repairing the road right now. [00:23:05] Speaker 03: I mean, either for two reasons. [00:23:06] Speaker 03: Right. [00:23:07] Speaker 04: So they're not trying to force the Forest Service to repair the road. [00:23:10] Speaker 04: They just want to repair it themselves. [00:23:12] Speaker 03: Do they, though? [00:23:12] Speaker 03: Because they've never really taken the first step towards that. [00:23:17] Speaker 03: They've simply said they want to, but they won't tell the Forest Service what it is they want to do. [00:23:21] Speaker 01: Well, they say they want to, but you won't let them unless they file for a permit. [00:23:24] Speaker 03: That's right. [00:23:25] Speaker 03: Yeah, they want to do earth disturbing activities in a national forest. [00:23:30] Speaker 03: They're going to have to tell the Forest Service what it is they want to do and get a permit. [00:23:33] Speaker 01: The problem I have with this case is that there seems to be an element of futility involved. [00:23:38] Speaker 01: You're requesting the landowners to undertake certain action, which it just looks, let me speculate here from the facts of this case, that you're going to deny the permit. [00:23:51] Speaker 01: You're not going to grant the permit. [00:23:54] Speaker 01: And they have a problem is that, [00:23:55] Speaker 01: Once we're down that road, the process of asking for a permit, now they're going to assert that we acknowledge that we were legally obligated to get a permit to begin with before we can do anything. [00:24:09] Speaker 01: And that's the waiver of the rights that they're talking about. [00:24:16] Speaker 03: That the Forest Service would deny a permit here is completely speculative. [00:24:21] Speaker 03: The Forest Service has actually affirmatively suggested to these plaintiffs a couple different ways that they could restore access to their property. [00:24:29] Speaker 03: So if you look in the appendix at 8687, this is from April 2012, the Forest Service says, look, this has been [00:24:40] Speaker 03: A really unfortunate situation for you guys. [00:24:43] Speaker 03: Terrible fire, terrible flooding, and now your roads have washed out. [00:24:46] Speaker 03: Or these roads have washed out. [00:24:48] Speaker 03: Excuse me. [00:24:49] Speaker 03: Here's two options we think. [00:24:52] Speaker 04: They're going to order the transfer. [00:24:54] Speaker 03: These roads are washed out. [00:24:56] Speaker 03: So here are two options by which we think you could reestablish vehicular access. [00:25:02] Speaker 03: You could build a new road over the existing alignment. [00:25:05] Speaker 03: Or you could build a new road over a new alignment. [00:25:08] Speaker 03: Either way, we'll help the in-holders organize and form a road association. [00:25:13] Speaker 03: We'll help you site the road if you want a new road. [00:25:16] Speaker 03: And guess what? [00:25:17] Speaker 03: We'll give you something extra. [00:25:19] Speaker 03: We'll give you a private road easement that you can go and record and have forever. [00:25:25] Speaker 03: That's something extra. [00:25:26] Speaker 03: That's not required. [00:25:27] Speaker 04: Well, they don't think they need that, I guess, unless we're talking about a road that's built after 1963. [00:25:34] Speaker 04: They didn't think they needed a private road easement because they think they have one already. [00:25:39] Speaker 03: And that doesn't, again, mean that they are free of regulation, right? [00:25:44] Speaker 03: So you can look at the SUA versus BLM case that we've cited. [00:25:51] Speaker 03: That's a case where counties have asserted RS-2477 easements. [00:25:55] Speaker 03: It affirms still subject for service regulation. [00:25:59] Speaker 03: In Jenks and Adams' case, those were both [00:26:03] Speaker 03: Cases where the courts found that in-holders were entitled to access under ANILCA, both still subject to Forest Service regulation. [00:26:13] Speaker 03: And Jencks went one further. [00:26:15] Speaker 03: It's quite similar. [00:26:16] Speaker 03: I think it's an important case here. [00:26:18] Speaker 03: It says, not only are they subject to Forest Service regulation, we're not going to opine on their takings claim. [00:26:26] Speaker 03: Even though they have a proposed permit from the Forest Service, we're not going to opine on that takings claim because it's not final yet. [00:26:32] Speaker 03: They don't yet have a final permit decision. [00:26:35] Speaker 03: So it would be improper for us to render an advisory opinion at this point. [00:26:39] Speaker 03: And that's exactly where we are here. [00:26:41] Speaker 03: We don't have anything close to knowing how the Forest Service regulations are going to apply to the possible future applications that these plaintiffs might one day file. [00:26:56] Speaker 03: which they are required to file if they want to do ground-disturbing activities in the natural forest, whatever the source of their rights may be. [00:27:06] Speaker 03: And there, once again, is nothing in this Forest Service letter that says they're requiring any type of waiver of rights or claims. [00:27:14] Speaker 03: It's simply reiterating the very consistent position of the Forest Service that the Forest Service laws and regulations are going to apply to these end holders. [00:27:25] Speaker 03: So if you have no further questions, there are two ways you can affirm here, of course. [00:27:29] Speaker 03: You could affirm the CFC's decision under its same reasoning that these plaintiffs have no right taking claim, or you can affirm for the additional reason we have identified that they do not have a compensable private property interest. [00:27:46] Speaker 04: Thank you. [00:27:48] Speaker 04: OK, you have three minutes. [00:27:55] Speaker 02: Thank you, Your Honor. [00:27:57] Speaker 02: I think that the best place to look at this, bearing in mind the Court's earlier questions, is again the process by which we engage the Forest Service. [00:28:08] Speaker 02: How we came to the point where they sent us the letter I think is critical. [00:28:11] Speaker 02: And in fact, if you look at the paragraph that I've been focused on, finally we note that your letter asserts that it is the intention of the landowners to utilize and repair the road association [00:28:22] Speaker 02: Road associated with the vested easement in the near future as stated above we do not agree your clients We basically went to them and said we'd like to use this road We're going to use our vested easement and they said okay Well get you can do that by going through our permitting process But they went one step further than they said but we don't agree that you have a vested easement. [00:28:43] Speaker 02: It's it's implicit that [00:28:45] Speaker 02: that if we went to them in that process, and the government can stand here and say now that they wouldn't take that property right away, or that we wouldn't waive it by going through their application process. [00:28:56] Speaker 02: But by virtue of their letter, even just this letter puts us in a position where if we then engage after asking them what we need to do, they say, you need to get a permit and recognize you don't have a property right. [00:29:06] Speaker 02: That's where this becomes an issue. [00:29:08] Speaker 02: This letter is the final agency action that sets what we want to do. [00:29:12] Speaker 00: Let me ask you a question. [00:29:15] Speaker 00: said, if you went all the way through successfully, would establish that this property was taken. [00:29:22] Speaker 00: And the remedy for that is compensation. [00:29:24] Speaker 00: You wouldn't have anything. [00:29:26] Speaker 00: You would have had money. [00:29:27] Speaker 00: You wouldn't have access through this lawsuit to your property, right? [00:29:33] Speaker 02: That's very true, Your Honor. [00:29:35] Speaker 00: So I don't understand how you're talking about all of these things that could happen and might happen and all of that, but the bottom line is you would [00:29:43] Speaker 00: I don't know how you would get to your property, but you would receive money and you'd be gone. [00:29:47] Speaker 02: Well, and Your Honor, that's exactly why we've alleged that it's not just the property and interest in the road that's been taken. [00:29:53] Speaker 02: Taking away that road, they've cut off the rest of the property. [00:29:56] Speaker 02: And part of what this really gets down to is our concern that the Forest Service does not want to have mining re-established in this area. [00:30:06] Speaker 02: So while they talk about giving a road association permit to access the property, [00:30:10] Speaker 02: You'll notice that the Forest Service never comes out and says, well, we'll let you establish a commercial mining operation again and use that as a mine hall road as it was originally established. [00:30:18] Speaker 04: Well, that's a political question. [00:30:20] Speaker 02: Absolutely, Your Honor. [00:30:21] Speaker 02: But unfortunately, that's part of what this is. [00:30:23] Speaker 02: As you noted, a standoff between landowners that have an interest, a commercial interest, in establishing their mined properties, which is what these are. [00:30:30] Speaker 01: Well, if that's a possibility, and you're saying it's a real possibility, then maybe you should go through the permitting process. [00:30:38] Speaker 01: And this whole thing fleshed out as to what the [00:30:40] Speaker 01: roads are actually going to be used for. [00:30:42] Speaker 01: I mean, if they're going to be used for the enjoyment of this landlocked property, surrounded by national forests, and you were originally granted some sort of right of way, ingress and negress from that property, then maybe that's what you should get if you win. [00:31:03] Speaker 01: But now you're talking about something else. [00:31:07] Speaker 01: Are these [00:31:08] Speaker 01: Are the petitioners here mining on that property? [00:31:12] Speaker 02: I see that my time has elapsed. [00:31:14] Speaker 02: Go ahead. [00:31:15] Speaker 02: Thank you. [00:31:17] Speaker 02: Our appellants wish to be able to use this property to whatever their enjoyment may be. [00:31:23] Speaker 02: That may be a mining operation. [00:31:25] Speaker 02: There are discussions about that. [00:31:27] Speaker 02: After the Lost Conscious Fire went through, there's not a lot of enjoyment of this property from a scenic or recreational value that's available. [00:31:33] Speaker 02: but it still has absolutely a commercial mining. [00:31:36] Speaker 04: So if you ask for a permit and they said as a condition of your permit, you can't use your property for commercial purposes, then you might be in a croons unconstitutional conditions circumstance, but we're not there yet. [00:31:47] Speaker 02: Perhaps. [00:31:48] Speaker 02: But my point is that also, and I believe we are, I really do believe that when they say you have to surrender your permit, that we're going to get into, and this goes to your question about whether or not they'd actually grant the permit, but more importantly the question about going through that process and the prohibitively expensive condition of getting a NEPA analysis and going through what the Forest Service would require in order to establish a mine haul road there under one of their permitting systems. [00:32:14] Speaker 02: That in and of itself is far and away more than just paying the permit fee. [00:32:19] Speaker 02: That is a much larger deal. [00:32:21] Speaker 02: And that gets to the Coons as well. [00:32:22] Speaker 02: It gets to that type of taking there. [00:32:24] Speaker 04: OK. [00:32:25] Speaker 04: Thank you. [00:32:25] Speaker 02: Thank you.