[00:00:02] Speaker 02: The next argument of the morning is 18-1726, Bassett, New Mexico, LLC, versus United States. [00:00:13] Speaker 02: Good morning, Your Honor. [00:00:14] Speaker 02: Good morning. [00:00:15] Speaker 03: Roger Marzullo, appearing on behalf of Appellant. [00:00:18] Speaker 03: The resolution of this case, in our view, turns on a single legal issue. [00:00:24] Speaker 03: And that is whether the Bureau of Land Management had the authority, has the authority, to grant to Bassett, New Mexico, [00:00:32] Speaker 03: and access right of way to its property, which is surrounded by federal land, federal land that is doubly designated as a wilderness area, formerly a wilderness study area, and secondly also as a national monument. [00:00:50] Speaker 03: If the Bureau of Land Management cannot grant that easement as we contend, [00:00:56] Speaker 03: then Bassett is left with property that is surrounded by federal land that has no access and, we allege then, constitutes a Fifth Amendment taking. [00:01:08] Speaker 03: Case arises to this court on a Rule 12b1 motion to dismiss for lack of rightness. [00:01:17] Speaker 03: And the decision was made that the court lacked jurisdiction based on an alleged lack of rightness. [00:01:27] Speaker 03: Ambassador New Mexico owns a single parcel of property in rural Doña Ana County, New Mexico. [00:01:34] Speaker 03: It's surrounded by federal land. [00:01:37] Speaker 03: It's about 66 acres. [00:01:39] Speaker 03: And it has no physical access at this time. [00:01:43] Speaker 01: Mr. Merzula? [00:01:44] Speaker 01: Yes, ma'am. [00:01:46] Speaker 01: I have a question about the map that was provided in the material. [00:01:53] Speaker 01: So I understand there's Cherry Stem Road. [00:01:56] Speaker 01: that would lead from Bassett's property through the wilderness study area, through the federal land. [00:02:03] Speaker 01: And then it would go to state land. [00:02:06] Speaker 01: And then from there, it ends at private land. [00:02:10] Speaker 01: Do I understand that correctly? [00:02:12] Speaker 03: Yes, with one minor alteration, Your Honor. [00:02:16] Speaker 03: And that is that it actually dead ends at private property owned by Mr. Hopkins. [00:02:23] Speaker 01: But before it gets to that private property, it goes through state land. [00:02:28] Speaker 03: It goes through state land as well. [00:02:30] Speaker 03: That is correct. [00:02:31] Speaker 03: OK. [00:02:32] Speaker 03: So the problem with the Cherry Stem Road is that it dead ends. [00:02:39] Speaker 03: That is, it doesn't get Bassett to a public road. [00:02:46] Speaker 03: So it's not an access to a public road. [00:02:49] Speaker 03: It leaves the property still isolated, still surrounded, [00:02:52] Speaker 03: by the federal lands and by the indebtedness into private lands. [00:02:59] Speaker 03: So that's not access. [00:03:00] Speaker 01: When Bassett purchased the land, there was access through that road because the private landowners had not foreclosed access. [00:03:12] Speaker 01: Do I understand that correctly? [00:03:13] Speaker 01: It wasn't until 1995? [00:03:16] Speaker 01: that the private landowners foreclosed access? [00:03:19] Speaker 03: That's correct, Your Honor. [00:03:20] Speaker 03: That was the physical access that was then used. [00:03:26] Speaker 03: BASIC had another right of access. [00:03:29] Speaker 03: It hadn't been built yet. [00:03:31] Speaker 03: And that is the right of access over the federal lands by a reasonable route. [00:03:37] Speaker 02: Can I ask you a question about Cherry Stem Road? [00:03:40] Speaker 02: How long was Cherry Stem Road there? [00:03:44] Speaker 02: I think it had been there for quite some time, Your Honor, for many years. [00:03:48] Speaker 02: I guess, what, 50s, 60s, 40s? [00:03:52] Speaker 03: Probably. [00:03:53] Speaker 03: Maybe even earlier than that, because there was once upon a time a mineral mine on this property. [00:03:59] Speaker 02: Okay, and then I guess you're saying in 1995 Cherry Stem Road, at least access to the main highway, got cut off by... [00:04:10] Speaker 02: private landowners that controlled a portion of Cherry Stem Road? [00:04:16] Speaker 03: Well, yes. [00:04:17] Speaker 03: That's exactly right, Your Honor. [00:04:18] Speaker 03: And the state of New Mexico also rejected Bassett's application for an easement over the state land. [00:04:28] Speaker 03: When was that rejection? [00:04:29] Speaker 03: That was back in about 1998, thereabouts. [00:04:33] Speaker 03: All of this testimony came out in the trial of the first case, which dealt with the fact that the government had, in the course of a superfund cleanup process, collected mining waste and dumped it onto the Bassett property. [00:04:52] Speaker 03: And the court of federal claims held that that was a Fifth Amendment taking. [00:04:55] Speaker 03: Then the issue became, what was the value of the property? [00:04:59] Speaker 03: And the answer to that question, [00:05:02] Speaker 03: given by the Court of Federal Claims, and which has raised Judicata in this case, was why Bassett has access over federal land by a reasonable route under the existing interpretation of the Federal Land Policy Management Act, which was incorporated into the interim management policy. [00:05:23] Speaker 03: So we have a court determination that up to 2012, Bassett had [00:05:29] Speaker 03: the right to cross federal lands. [00:05:32] Speaker 02: I guess I understand that the Federal Claims Court in 2002 was interpreting the then existing, but interim, guidance. [00:05:41] Speaker 03: Is that right? [00:05:42] Speaker 03: That's right. [00:05:43] Speaker 03: The interim guidance, which actually, Your Honor, I think it was the third of the manuals that BLM had promulgated, [00:05:50] Speaker 03: but it actually dated back to the adoption of the Federal Land Policy Management Act in 1976. [00:05:57] Speaker 02: Here's, I guess, the real crux of the issue. [00:06:01] Speaker 02: We're hearing from the other side, from BLM, the Bureau, that this case that you're bringing is just simply premature and you first have to file a formal application and then give BLM an opportunity [00:06:16] Speaker 02: to consider the merits of it and really figure out all the facts underlying what a possible right of way would look like and what the possibility is from BLM's side on the viability of Cherry Stem Road or some version of Cherry Stem Road. [00:06:35] Speaker 02: If we take the government at its word that all its communications to you and your client so far are not definitive denials, but only suggestions that it simply needs to see a true application from you before it can reach the merits, then [00:06:54] Speaker 02: On that score, why wouldn't it be correct for the claims court to deem this lawsuit to be premature? [00:07:02] Speaker 02: Because we still need to have all the fact-finding done at the administrative level before we figure out to what extent, if at all, there has been some form of a taking of your property. [00:07:14] Speaker 03: Yes, Your Honor. [00:07:14] Speaker 03: I think that is the crux of the appeal. [00:07:18] Speaker 03: And the issue then, as I indicated at the start, comes down to, [00:07:23] Speaker 03: does the wilderness act or the wilderness designation allow BLM to issue such an easement? [00:07:31] Speaker 03: And why wouldn't, and secondarily, of course, does the designation as a national monument allow BLM, secondly, to issue such an easement? [00:07:45] Speaker 03: And our answer to both those questions is no. [00:07:47] Speaker 03: We think that's an issue of law. [00:07:49] Speaker 03: Now, why wouldn't Bassett go through the process [00:07:53] Speaker 03: It's because it's a very complicated and expensive. [00:07:55] Speaker 04: Can you explain why? [00:07:58] Speaker 04: Because there are exceptions. [00:07:59] Speaker 04: I mean, the policy is in the appendix. [00:08:00] Speaker 04: I can look at it. [00:08:02] Speaker 04: And you both cited it in your briefs. [00:08:04] Speaker 04: There are exceptions to the Wilderness Act that allow the Bureau to grant easements. [00:08:12] Speaker 03: There are, Your Honor. [00:08:13] Speaker 03: It shows you that none of those exceptions apply as a matter of law? [00:08:17] Speaker 03: As a matter of law. [00:08:18] Speaker 03: Absolutely. [00:08:18] Speaker 03: If you read those exceptions, they deal with, [00:08:22] Speaker 03: situations where it is necessary to maintain environmental values, where there is an emergency, where there is a health and safety issue. [00:08:33] Speaker 04: What about valid existing rights? [00:08:35] Speaker 04: Let me finish my question. [00:08:38] Speaker 04: If you bought this property under a regime where you were allowed to get a right away, why can't they grant you an exception based upon that as a valid existing right? [00:08:51] Speaker 03: Valid existing right is a technical term. [00:08:53] Speaker 03: It's defined in the Federal Land Policy Management Act, which Congress enacted in 1976, as a general means of regulating the use and disposal of federal lands. [00:09:07] Speaker 03: Valid existing right is an existing use of federal lands as of the adoption of that statute. [00:09:15] Speaker 03: In effect, it's a grandfathering, Your Honor. [00:09:18] Speaker 04: Well, it's not just a grandfathering, because the next exception in the manual is grandfathered uses. [00:09:25] Speaker 03: Well, that is a use that was not recognized, if you will. [00:09:30] Speaker 03: Yes, I agree that the policy identifies both of those. [00:09:35] Speaker 03: But my point is that valid existing right, and this court has interpreted that term. [00:09:40] Speaker 04: So it's not just your view, is that clause doesn't provide an exception for the grant of a new easement. [00:09:47] Speaker 04: It only grandfathers in pre-existing easements. [00:09:51] Speaker 03: Yes, pre-existing uses. [00:09:53] Speaker 03: It also deals with mining operations that were in effect at the time with certain grazing operations, I believe. [00:10:00] Speaker 02: It's those kinds of things. [00:10:01] Speaker 02: So although it's not a valid existing right, it's still nevertheless a cognizable property interest that's been taken? [00:10:09] Speaker 03: The property interest that has been taken, Your Honor, is the fee ownership of 66 acres. [00:10:15] Speaker 01: What about, why, I'm sorry for interrupting you. [00:10:19] Speaker 01: Not at all. [00:10:19] Speaker 01: I think that if you actually had applied for the right of access sometime during 1995 to 2012, that's when you would say, yep, you got that right of access. [00:10:32] Speaker 01: And now you have a valid existing right. [00:10:34] Speaker 01: I think that's what I hear you to be saying. [00:10:36] Speaker 01: So for me, this begs a little bit the question of why, during that time period, 1995, 2012, did Bassett not apply for a right of access? [00:10:49] Speaker 03: The surrounding economic circumstances were not such that the property was in demand for residential use. [00:10:59] Speaker 03: It now is. [00:11:00] Speaker 03: It was. [00:11:02] Speaker 03: 2014, and that's why Bassett then made the application, Your Honor. [00:11:07] Speaker 02: Where is this land exactly located? [00:11:10] Speaker 02: What makes it attractive for people to want to live all the way out there? [00:11:16] Speaker 03: I guess it depends on your perspective. [00:11:19] Speaker 02: I'm sure it's beautiful, but my understanding is that it's very remote. [00:11:23] Speaker 03: Well, it's outside Las Cruces. [00:11:27] Speaker 03: There was actually testimony at [00:11:30] Speaker 03: the prior takings trial about the demand for residences in the Las Cruces area. [00:11:39] Speaker 03: This was sort of outside of the scope, but Las Cruces has expanded over the time. [00:11:46] Speaker 03: And I believe that that, although this is not in the record, that that has created this demand. [00:11:52] Speaker 03: How many miles is it from Las Cruces? [00:11:55] Speaker 03: I'm afraid I don't know. [00:11:56] Speaker 03: I would only have to guess, Your Honor. [00:12:00] Speaker 03: So in addition to the Wilderness Act, and Your Honor, you asked about the valid existing right. [00:12:06] Speaker 03: I think valid existing right, as I understand it, is a term defined by the statute, by the Federal Land Policy and Management Act. [00:12:14] Speaker 03: And that definition is that it had to be a use existing as of 1976. [00:12:20] Speaker 03: Now, I think you're right about this question. [00:12:26] Speaker 03: And this, I think, is a second issue, as you'll note from [00:12:30] Speaker 03: the letter that Mr. Ellis sent to BLM, the Environmental Protection Agency, in the course of the cleanup, had actually created a road on a reasonable access across this land. [00:12:43] Speaker 03: But when they finished the cleanup, the EPA erased that road. [00:12:48] Speaker 03: They went back and took it out to try to return the land to its wilderness characteristic, which is, of course, [00:12:58] Speaker 03: areas of more than 5,000 acres that are roadless. [00:13:01] Speaker 03: So they took the road out so that this would revert to its character, its designated character, as a wilderness study area, and most recently, designated as an actual wilderness area. [00:13:14] Speaker 02: That is the- Ms. [00:13:15] Speaker 02: Zula, you're into your rebuttal. [00:13:17] Speaker 02: Yes. [00:13:18] Speaker 02: But Judge Stoll would like to ask a quick question. [00:13:21] Speaker 01: Yes, sir. [00:13:22] Speaker 01: I just want to ask you about there's a footnote nine in the [00:13:27] Speaker 01: former Bassett opinion by the Court of Federal Claims. [00:13:31] Speaker 01: And I just was curious about what it meant. [00:13:34] Speaker 01: I wasn't sure. [00:13:35] Speaker 01: And so I want to tell you what it says, and maybe you can help me understand it. [00:13:39] Speaker 01: So it refers to plaintiff claims that it could have purchased an easement through state lands from private property owners. [00:13:54] Speaker 01: The access thus purchased would have allowed Bassett to traverse state land to reach the Baylor Canyon Road [00:14:01] Speaker 01: but most likely would have come a great expense to plaintiffs. [00:14:05] Speaker 01: Can you tell me what that's talking about? [00:14:08] Speaker 03: Yes. [00:14:11] Speaker 03: The bifurcated taking case first found a taking and then secondly went into valuation. [00:14:18] Speaker 03: In the valuation phase, Your Honor, the government argued that the property was landlocked, had no access, therefore had no value. [00:14:25] Speaker 03: And the plaintiff, Bassett, was attempting to prove, yes, it did have value. [00:14:29] Speaker 03: They made two arguments. [00:14:31] Speaker 03: One was that BLM was required to grant access under the existing manual. [00:14:38] Speaker 03: And number two, that they could have acquired, they could have gone to the adjacent property owners and tried to purchase access and could have gone to [00:14:50] Speaker 03: the state and attempted to get access from the state. [00:14:54] Speaker 03: As I indicated, there was also evidence, and I believe the court's opinion says this, that the state actually brought a witness to testify that they would not have granted access. [00:15:05] Speaker 03: I'd like to reserve the rest of my time. [00:15:07] Speaker 03: Thank you. [00:15:10] Speaker 02: Let's hear from the government. [00:15:16] Speaker 00: Good morning, Your Honors. [00:15:18] Speaker 00: May it please the court, my name is Viru Chulukumari for the United States. [00:15:22] Speaker 04: I'd like to use my time to respond to some of the points that were made and to correct the record on the- Could you just get right to the policy and explain to me where in it you have the discretion to grant a right of way? [00:15:33] Speaker 00: Sure, I want to first make sure, though, that the 28-J letter that we submitted, as we noted, that part of the land surrounding the area is no longer a wilderness study area. [00:15:43] Speaker 00: Part of it is a wilderness designation. [00:15:45] Speaker 00: Part of it is not. [00:15:46] Speaker 00: And the part over which Bassett wants the road between his parcel and the highway is no longer a wilderness study area. [00:15:53] Speaker 00: It remains a national monument. [00:15:56] Speaker 01: But that doesn't make a difference here, right? [00:16:01] Speaker 01: You know, the part where they want to have the road, it's still a national monument. [00:16:04] Speaker 01: So the analysis is not going to change from BLM's point of view. [00:16:10] Speaker 01: How will it change from BLM's point of view? [00:16:12] Speaker 00: Of course, we think that the arguments we made in our brief are correct because it's still right. [00:16:16] Speaker 00: But in terms of whether or not when BLM processes the application and whether or not there's a valid existing right, [00:16:21] Speaker 00: The BLM, we're no longer looking at that prior wilderness policy or the new wilderness policy. [00:16:26] Speaker 00: We're now looking at the monument policy. [00:16:28] Speaker 04: How does the monument policy differ? [00:16:30] Speaker 00: The monument policy, also in the proclamation, make an exception for valid existing rights. [00:16:35] Speaker 00: The monument policy, which is- But isn't that the same? [00:16:37] Speaker 04: Is it different from the valid existing rights policy we have before us? [00:16:42] Speaker 00: So the monument policy, and this is BLM Manual 6220 that's cited in the 28-J letter, [00:16:47] Speaker 00: It on the last page defines valid existing rights as existing rights are defined in section 701 of FLPA as any valid lease, permit, patent, right of way, or other land use right or authorization and must be in existence at the time of the designation. [00:17:03] Speaker 00: And the designation is the monument designation. [00:17:05] Speaker 00: That's the relevant designation for determining whether or not there's a valid existing right. [00:17:10] Speaker 02: I'm sorry. [00:17:11] Speaker 02: I just want you to answer Judge Hughes's question. [00:17:13] Speaker 02: Is it the same rules for how to define what a valid existing right is for both situations or not? [00:17:21] Speaker 00: It's different for the monument because you look to whether or not the valid existing right exists at the time of the monument designation. [00:17:26] Speaker 00: So it's a timing issue. [00:17:27] Speaker 01: So instead of looking at 1976, [00:17:31] Speaker 01: You'd be looking at 2012. [00:17:32] Speaker 00: We'd be looking at 2014. [00:17:34] Speaker 00: I mean 2014. [00:17:36] Speaker 00: Yes. [00:17:37] Speaker 00: But in other respects, you'd be looking at whether there is any kind of land use right. [00:17:42] Speaker 00: And that's not a term that is limited to necessarily having a document. [00:17:46] Speaker 00: That could include implied rights. [00:17:48] Speaker 00: That's something that the BLM would have to decide during its [00:17:52] Speaker 00: It's a process. [00:17:53] Speaker 04: What do you mean by implied rights? [00:17:55] Speaker 00: And again, we don't know because the facts haven't developed here. [00:17:58] Speaker 00: But if there was some type of historic road access, if there is some type of the cases that he cite to talk about, [00:18:05] Speaker 00: implied easements, if there's any kind of right that they want to raise in that respect, then the term valid existing right doesn't preclude that. [00:18:12] Speaker 00: That is something that they could raise to BLM, and they'd have to bring the historic documents to demonstrate that actually this road, the Cherry Stem, or another road that they have. [00:18:21] Speaker 02: Well, I guess that's what I'm trying to figure out. [00:18:23] Speaker 02: I'm trying to figure out theoretically, if we were to speculate, what set of facts would satisfy BLM such that BLM would grant [00:18:35] Speaker 02: a new right of way across federal lands to Bassett here. [00:18:43] Speaker 02: If you want to use the theory of valid existing right, go ahead. [00:18:46] Speaker 02: But as I understand it, the valid existing right is tied to Cherry Stem Road. [00:18:52] Speaker 02: And a brand new right of way going across other portions of this federally protected land or this monument land would be [00:19:04] Speaker 02: Well, you'd be barred from getting granted that kind of a right of way, unless you can tell me, no, that's not necessarily true, because dot, dot, dot. [00:19:13] Speaker 02: What is that because? [00:19:14] Speaker 00: So I think that the burden is on the plaintiff to present the historic facts. [00:19:18] Speaker 00: Now, you're right that what the elem- No, no, no, no. [00:19:21] Speaker 04: You're right that the burden on the plaintiff to present the facts. [00:19:25] Speaker 04: But it has to be a scenario that you can legally accept. [00:19:30] Speaker 04: I mean, the rightness doctrine. [00:19:33] Speaker 04: The futility exception is very, very narrow. [00:19:36] Speaker 04: But it is applicable where, under any set of facts, you will never grant them permission. [00:19:43] Speaker 00: And I don't think we can say that with certainty that the alum was not going to grant them permission. [00:19:48] Speaker 00: Because number one, there is a possibility of the cherry stem road. [00:19:51] Speaker 04: And I think that's not what- Can we set this cherry stem road aside? [00:19:54] Speaker 04: Because I think that's a different- I mean, it's part of this brightness inquiry, but I think it's a different inquiry about whether [00:20:02] Speaker 04: If we conclude that that's not good enough, do they have the right or can they ask you for an entirely different new right of way across federal land? [00:20:15] Speaker 04: And is there any legally permissible way that they can get an entirely new right of way across federal land? [00:20:22] Speaker 00: I think it's difficult to answer that question without knowing what the theory would be for their property interest. [00:20:28] Speaker 00: And I don't mean to avoid that. [00:20:29] Speaker 00: Well, let me give you a hypothetical. [00:20:31] Speaker 00: Sure. [00:20:31] Speaker 04: The theory is they are in a landlocked area surrounded by federal land. [00:20:38] Speaker 04: that under general principles of property law, and I claim no expertise here, I'm making all this up, but you know, go with me. [00:20:46] Speaker 04: You generally have an easement or a right of way to get access to public roads. [00:20:51] Speaker 04: That's their theory. [00:20:51] Speaker 04: There is no historical usage of other roads. [00:20:55] Speaker 04: They're going to have to build a new road [00:20:57] Speaker 04: or they're gonna make you build a new, well, they'll build it, I assume, but there's gonna be a new road across federal land, whether it's through the monument or through the wilderness area, I think it doesn't matter if the height of that hill. [00:21:08] Speaker 04: Is there any scenario where you would grant permission to build a new access road across federal land that's unconnected in any historical usage? [00:21:18] Speaker 04: And where in the manual does it allow you to do that? [00:21:21] Speaker 00: So it would have to be about existing right and in terms of whether or not they have a whether or not a landlocked property. [00:21:26] Speaker 04: Does what I just talked about sound like a valid existing right? [00:21:28] Speaker 00: I think I don't know of any cases that say that if you are if you purchase a landlocked parcel and you don't have any kind of pre-existing easement by necessity or there wasn't some type of easement by necessity given to you when you were given that parcel. [00:21:41] Speaker 00: that you have a right to create a new road across a third party's land. [00:21:45] Speaker 00: I don't know of a case that says that. [00:21:47] Speaker 00: So if that's the case, they purchased a parcel with no factual, historical right of way out before, then I don't know of any cases that say that you can create a road across a third party's land. [00:22:01] Speaker 02: What about the 2002 Court of Federal Claims opinion here? [00:22:05] Speaker 00: So that opinion did not hold that they have a cognizable property right. [00:22:09] Speaker 00: What it said was that when evaluating the fair market value, [00:22:11] Speaker 00: of that property that they could reasonably secure at that time a new road from the government. [00:22:19] Speaker 00: But what's important is had Bassett applied under that policy, then they would be able to get that road. [00:22:25] Speaker 00: Bassett didn't apply over the decade that passed. [00:22:29] Speaker 00: That policy is obsolete. [00:22:31] Speaker 00: And that policy is particular to wilderness review. [00:22:33] Speaker 00: It's exceptions to the non-impairment standard. [00:22:36] Speaker 00: It doesn't talk about the monument policy. [00:22:39] Speaker 00: So there's a difference here. [00:22:41] Speaker 00: There's no residue to kind of affect based on that Bassett I decision, because the Bassett court didn't decide that there was a cognizable property interest. [00:22:48] Speaker 00: It was simply making evaluation determination. [00:22:51] Speaker 04: I'm still in a little trouble, because I don't really understand your position on whether there's a valid existing right for a right of way that never existed previously. [00:23:02] Speaker 04: I mean, it seems to me like the sum of your argument is, [00:23:06] Speaker 04: We can't tell whether they're a valid existing right until they apply. [00:23:11] Speaker 04: And so they have to go through this burdensome process. [00:23:15] Speaker 04: But to some extent, that has to be a legal question, doesn't it? [00:23:21] Speaker 04: Whether they have a valid existing right. [00:23:23] Speaker 04: And if valid existing right consists of categories A, B, and C, and they don't have any arguments about why they fall on A, B, and C, [00:23:35] Speaker 04: Isn't it futile for them to go through that? [00:23:37] Speaker 00: I don't think it is futile, Your Honor. [00:23:39] Speaker 00: I think that they, you're right, that the question is. [00:23:42] Speaker 04: But why is that true? [00:23:44] Speaker 04: Let me make it very, very simple. [00:23:45] Speaker 04: If you have a policy, you're only going to grant a right of way if they have reasons A, B, or C. They agree completely that they have only A, B, or C. Their reason is D. And your policy doesn't permit D. Wouldn't it be futile then? [00:24:02] Speaker 00: Under that hypothetical, yes, I think that there is a question, though. [00:24:06] Speaker 00: A valid existing right is not purely a legal question. [00:24:08] Speaker 00: It is a factual question as well. [00:24:10] Speaker 00: And what it depends upon is whether or not you could have an easement by necessity. [00:24:15] Speaker 00: I mean, they throw out these various potential grounds for a property right. [00:24:21] Speaker 01: What are those besides Cherry Stem Road? [00:24:24] Speaker 01: What are these other potential things that you're referring to? [00:24:27] Speaker 00: The cases that they cite to initially in their briefs, they cite to sort of ways of necessity doctrine, which we don't think applies here, but they haven't really shown that they have been, that the government has cut them off to an access road. [00:24:39] Speaker 00: It's the third parties that have done that. [00:24:41] Speaker 00: They also cite to cases that say that the government can't sort of fence you in into your property. [00:24:45] Speaker 00: Again, we don't see that happening. [00:24:47] Speaker 00: They cite two cases talking about an easement by necessity. [00:24:50] Speaker 00: There's a historic fact that would need to be discovered there. [00:24:53] Speaker 00: If there's a parcel that's granted, and we've given them a road out, and then subsequently there's additional sale of that, severance of that parcel, there might be a historical easement by necessity for the dominant tenement. [00:25:06] Speaker 01: But as of right now, they haven't presented any facts of these kinds that you're referring to, right? [00:25:11] Speaker 00: Exactly. [00:25:12] Speaker 01: So the only thing that they're relying on [00:25:14] Speaker 01: is that do they have a valid existing right? [00:25:18] Speaker 01: Because they previously, from 1995 to 2012, could have asked for easement. [00:25:24] Speaker 00: Under that theory, we would say no. [00:25:26] Speaker 00: The Bassett 1 decision does not create a valid existing right. [00:25:30] Speaker 00: If there's something else underlying that, they can explore that with BLM. [00:25:34] Speaker 00: But the Bassett 1 decision and that prior policy standing alone do not create a, that's our position, it does not create a property interest. [00:25:43] Speaker 02: Can we go back to [00:25:45] Speaker 02: the matter of Cherry Stem Road, because I'm trying to piece through what we're supposed to think about it at this point in time, in that they always had access through federal lands on Cherry Stem Road. [00:26:00] Speaker 02: But for a long, long time, it's now been a road to a brick wall, because private landowners on the back end of Cherry Stem Road have blocked any access to public highways. [00:26:14] Speaker 02: If the government were to say in response to an application for a right of way, well, you can have Cherry Stem Road. [00:26:23] Speaker 02: Congratulations. [00:26:25] Speaker 02: Is that really a meaningful right of way? [00:26:29] Speaker 02: Isn't that just a road to a brick wall? [00:26:32] Speaker 00: I think two points, Your Honor. [00:26:33] Speaker 00: I do think it is something that would have to be considered in terms of a takings analysis, because we need to know how much we are giving them. [00:26:40] Speaker 00: And as Your Honor pointed to in that footnote, in footnote nine of the Bassett One decision and what the CFC said below, is that the cherry stem coupled with something else might give them a way to the county road. [00:26:52] Speaker 01: Are you saying coupled with something else being some sort of road through the state land prior to getting through the brick wall? [00:26:59] Speaker 00: either a road through the straight land or purchasing an easement. [00:27:02] Speaker 00: There are a variety of potential options, but it's important to know, for a takings analysis, to know how much access the government is going to give them. [00:27:09] Speaker 00: And I want to make sure one thing is clear, because opposing councils said that they have physically no access, and that's simply not true. [00:27:16] Speaker 00: First of all, these are public lands. [00:27:18] Speaker 00: They are open to [00:27:19] Speaker 00: pedestrian access, the property is two-thirds of a mile away from the county road. [00:27:24] Speaker 00: So they have pedestrian access to their property and the federal government has done nothing over the last 20 years to disturb their access to the property or to prevent them from coming and going. [00:27:34] Speaker 00: They also have, of course, access on the Cherry Stem Road, pedestrian as well as vehicular. [00:27:38] Speaker 00: So it's not that any action by the federal government has stopped them from entering or exiting the federal lands. [00:27:44] Speaker 02: At this point in time, [00:27:45] Speaker 02: Is there a way a car from their property can get to the public road? [00:27:51] Speaker 00: All we know is that they can get through the Cherry Stem. [00:27:53] Speaker 00: Wait, wait, wait. [00:27:55] Speaker 02: They can get through the Cherry Stem? [00:27:56] Speaker 02: My understanding is, and I don't think you're disputing, that they can't get to the public road on Cherry Stem Road because their access is blocked to the portion of Cherry Stem Road that is controlled by private landowners. [00:28:07] Speaker 02: Is that right? [00:28:08] Speaker 00: Based on the declaration. [00:28:08] Speaker 02: So right now, there's no way for a car to drive from Bassett's property to the public [00:28:15] Speaker 02: highway, is that fair to say? [00:28:16] Speaker 00: That is fair to say. [00:28:18] Speaker 00: But what I want to make clear is that there's the physical access. [00:28:21] Speaker 00: This is not a physical taking claim. [00:28:22] Speaker 00: This is not a claim of them not being able to access their property at all. [00:28:27] Speaker 00: It's a question of them wanting to get an improved another type of route. [00:28:31] Speaker 00: And that's why, to your question about what good does cherries them, it is important to consider, if we were to consider a regulatory taking claim, we would have to know the amount of access that the government would give. [00:28:42] Speaker 00: And giving them a paved road [00:28:44] Speaker 00: Because right now, Cherry Stem is an unimproved road. [00:28:47] Speaker 00: So giving them a right of way, first of all, over that road and paving that road would give them a better way out of federal lands. [00:28:53] Speaker 00: I understand it's not what they're asking for, but that's the kind of thing that we would have to consider in a regulatory takings analysis. [00:29:00] Speaker 00: We can't get to that without knowing what the BLM is going to actually provide. [00:29:05] Speaker 02: My understanding from what I just heard from Mr. Marzula is that, one, the state denied an application to move [00:29:13] Speaker 02: off of Cherry Stem Road through State Lands to get to the public road back in 1998. [00:29:18] Speaker 02: And then secondly, during the trial and the lead up to the Claims Court 2002 opinion, some state official testified that they would not be granting any additional access to Bassett through State Lands. [00:29:31] Speaker 02: Is that fair? [00:29:32] Speaker 02: Are those accurate statements, as you understand them? [00:29:34] Speaker 00: As I understand them, that's what they've presented. [00:29:36] Speaker 00: Those are things that happened 20 years ago. [00:29:38] Speaker 00: I don't understand us to have any information about what would happen now or that they've asked [00:29:43] Speaker 00: that they've attempted to challenge that state decision, or that they've attempted to challenge the third parties who are blocking their road. [00:29:51] Speaker 00: I mean, it's quite possible that the road, the cherry stem, and then the road that's going through the private properties was some type of public road, or they have some type of easement to use that road. [00:30:00] Speaker 00: And it's actually not the government, but the third parties who are blocking their access. [00:30:05] Speaker 00: So that's the kind of analysis as to whether or not they actually have a property interest in that road. [00:30:10] Speaker 02: Are you suggesting that Basidata sue those private landowners for some kind of easement? [00:30:15] Speaker 00: No, what I'm saying is that there's a lot of facts here that we don't know and those facts are necessary to know whether or not they have a property interest in this Cherry Stem Road or in any other type of access route. [00:30:26] Speaker 01: Are you suggesting that in their application to BLM they would need to reassess [00:30:33] Speaker 01: whether they could successfully get an easement from the state or get some sort of access through the private land by doing it any more current time frame since the last time they tried to do so was 20 years ago. [00:30:46] Speaker 00: I mean, that might be something that you would analyze in a regulatory takings case. [00:30:50] Speaker 00: But what they would provide to BLM, BLM would look to see whether these exceptions, whether there's a valid existing right. [00:30:56] Speaker 00: And BLM would likely ask for kind of the historical fact, when was this property conveyed? [00:31:01] Speaker 00: What were the roads in existence at the time that the property was conveyed? [00:31:04] Speaker 00: What was the background of that? [00:31:05] Speaker 01: Would they look at attempts to gain access otherwise, for example, through state land or through private land? [00:31:13] Speaker 00: I think they could. [00:31:14] Speaker 00: I mean, that's part of it. [00:31:15] Speaker 00: But do they? [00:31:15] Speaker 01: I'm just asking you. [00:31:16] Speaker 01: Would they do that as a normal course? [00:31:18] Speaker 01: You're saying they could. [00:31:19] Speaker 01: Do you have more specific answers? [00:31:21] Speaker 00: So under the prior, the wilderness policy that we've been talking about, under that policy for reasonable access, they do look at the facts on the ground and whether there's alternative means. [00:31:31] Speaker 00: Before they build a road through the national monument, they are going to look at alternative routes. [00:31:35] Speaker 00: They would look at that as well when they do a NEPA analysis to check the environmental impacts. [00:31:40] Speaker 00: They would see whether there are alternate routes available. [00:31:43] Speaker 00: So that is something that the BLM has the authority and would look at in terms of alternate roads. [00:31:49] Speaker 00: One other point I want to make is that, Judge Stowe, you asked the question about how long has this land been blocked by the private owners? [00:31:59] Speaker 00: And it actually is much longer. [00:32:00] Speaker 00: It goes back way before they purchased the property. [00:32:03] Speaker 00: In the original Bassett 2002 opinion, [00:32:06] Speaker 00: at page 70, they note that in 1983, the Mondays, a prior landowner of this parcel, had been blocked by private owners. [00:32:16] Speaker 00: And we say that in our brief at page 8. [00:32:18] Speaker 00: So it's not that the Bassett purchased this property and had this right of way, and then suddenly they were blocked. [00:32:24] Speaker 00: This is the historic context of this parcel, is that it had been blocked before, way beyond a statute of limitations here in a normal takings case. [00:32:33] Speaker 00: Way before basset purchased the parcel, so that's the condition in which we have thank you your honor. [00:32:39] Speaker 02: Thank you very much Okay Just I'm sorry. [00:32:47] Speaker 03: Let's give mr.. Marzula's three minutes of your bottle. [00:32:51] Speaker 03: Thank you your honor just a point or two I think [00:32:57] Speaker 03: First of all, the Bureau of Land Management made none of the suggestions that the government is offering today. [00:33:06] Speaker 03: You can look at the letter that Mr. Wallace sent, which is at Appendix 90. [00:33:11] Speaker 03: You can look at Mr. Ellis's declaration of a telephone conference that involved both counsel for the Justice Department and myself, as well as the BLM employees in Albuquerque, [00:33:25] Speaker 03: who would be handling this application, in which Mr. Childers said, we cannot give you an easement over any area other than the Cherry Stam Road. [00:33:37] Speaker 03: You can look at Mr. Ellis's letter at appendix 34, in which he recites, and this was uncontradicted as well, his conversation with a Mr. Noonan from the Albuquerque office [00:33:51] Speaker 03: back in 2014, in which Mr. Noonan said that there was no way that this permit would be issued to Basset, New Mexico. [00:34:02] Speaker 03: So when you wonder, well, why is it that we haven't come up with all of these other ideas, the response has always been that you can go through this. [00:34:12] Speaker 03: You can spend all this money doing surveying and environmental impact statements and archaeological studies and paleontological studies and all the rest. [00:34:21] Speaker 03: But you are not going to be able to obtain a right of way. [00:34:28] Speaker 03: Finally, the government seems to switch back and forth between the determination. [00:34:35] Speaker 03: And I would remind the court that what is before this court is a determination that the court lacks jurisdiction because the case isn't right, because Bassett hasn't applied for this permit. [00:34:48] Speaker 03: Now, whether these other arguments about [00:34:51] Speaker 03: pedestrian access. [00:34:52] Speaker 03: You could walk 2 thirds of a mile up a hill to your house and have no auto access. [00:34:58] Speaker 03: Whether those would prevail in a taking case, I think, only arise once the court determines that, in fact, there is jurisdiction in this case, as we believe. [00:35:09] Speaker 03: Thank you, Your Honor. [00:35:10] Speaker 03: OK, thank you. [00:35:11] Speaker 03: The case is submitted.