[00:00:01] Speaker 01:
Our next case is Rio Linda versus United States, 18-1761.

[00:00:36] Speaker 01:
Good morning, Your Honor.

[00:00:38] Speaker 01:
Good morning.

[00:00:39] Speaker 01:
You have reserved three minutes for rebuttal, correct?

[00:00:42] Speaker 01:
I have.

[00:00:42] Speaker 01:
Okay.

[00:00:43] Speaker 01:
You may begin, sir.

[00:00:45] Speaker 04:
Thank you, Your Honor.

[00:00:46] Speaker 04:
May it please the Court.

[00:00:47] Speaker 04:
I'd like to make three points.

[00:00:49] Speaker 04:
First, the Court below erred on the injury issue because the government caused a toxic substance, chromium 6, to enter the District's water systems at hazardous levels.

[00:01:03] Speaker 04:
This is a physical invasion

[00:01:06] Speaker 04:
of the district's property interests, which are known as use of fructuary interests, and was the direct, natural, and probable consequence of the Air Force's handling and disposal of Chrome 6 at McClellan Air Force Base.

[00:01:22] Speaker 01:
So a question here is whether you've adequately alleged an injury that's independent from the maximum contaminant level, the MCL of California.

[00:01:35] Speaker 04:
That's one of the questions that was raised in the briefs.

[00:01:39] Speaker 04:
But the issue was never briefed or argued below.

[00:01:44] Speaker 04:
It's raised for the first time by the judge in the court below.

[00:01:48] Speaker 04:
And if there is a need for amendment, we can certainly do that.

[00:01:52] Speaker 04:
But we believe that the pleadings adequately support the claim of injury and ripeness.

[00:01:58] Speaker 02:
Robertson.

[00:01:58] Speaker 02:
What paragraphs of the complaint sort of following up on Judge Reina's question?

[00:02:05] Speaker 02:
What paragraphs of the complaint do you say focus on injury and a taking or an invasion independent of the California MCL?

[00:02:17] Speaker 04:
Paragraph 12, Your Honor, refers to Chrome 6 as a dangerous contaminant linked to numerous health risks.

[00:02:25] Speaker 04:
Page 8 of the record.

[00:02:27] Speaker 02:
Nine of the appendix, right?

[00:02:28] Speaker 02:
Yes, Your Honor.

[00:02:29] Speaker 02:
Sorry.

[00:02:33] Speaker 02:
What I'm looking for in particular,

[00:02:35] Speaker 02:
What I was thinking about is what paragraphs show an allegation of a taking resulting from the leaching of CR6 into the substrata under your property independent of the MCL.

[00:03:00] Speaker 02:
In other words, what paragraphs stand alone

[00:03:03] Speaker 02:
apart from the MCL allegation at the end.

[00:03:06] Speaker 04:
Your Honor, in paragraphs 48 of both complaints, we allege, you know, it's in conclusory form, of course, but we allege that the actions of the defendants amount to an inverse condemnation of our property interests.

[00:03:21] Speaker 03:
And... But that doesn't make clear that you're alleging this as a physical taking when a lot of this discussion seems to be based upon

[00:03:31] Speaker 03:
California's regulations.

[00:03:33] Speaker 04:
Look at paragraph 49.

[00:03:33] Speaker 04:
Yes, Your Honor.

[00:03:35] Speaker 04:
That was cited in the brief.

[00:03:37] Speaker 04:
And that is an accrual date.

[00:03:40] Speaker 01:
And the testimony below, when we get back... You're alleging that the injury accrued, accrued as a result of the imposition of the MCL.

[00:03:52] Speaker 04:
No, Your Honor.

[00:03:52] Speaker 04:
We're alleging that the injury occurred when the MCL was adopted, because that's what put us on notice, started the investigation,

[00:04:00] Speaker 01:
and what triggered the reasonable... Is that not an allegation based on the MCL?

[00:04:05] Speaker 01:
It's not based on the invasion of the groundwater, the leaching of the contaminant?

[00:04:14] Speaker 04:
Your Honor, we believe that the date of, in July of 2014, is when the claim accrued.

[00:04:22] Speaker 04:
But that was because of when it put the district on notice of the hazardous nature of the material

[00:04:30] Speaker 04:
and led to the investigation that showed that it came from the government.

[00:04:34] Speaker 03:
So it's not the regulation that created the cause of action.

[00:04:37] Speaker 03:
That's just what led you to do further investigation and discover that the federal government had contaminated the groundwater.

[00:04:46] Speaker 01:
Correct, Your Honor.

[00:04:46] Speaker 01:
And every federal court of appeals... Prior to this time, was there any contamination?

[00:04:51] Speaker 01:
I mean, was there knowledge of contamination?

[00:04:53] Speaker 04:
There was knowledge of the presence of the contaminant,

[00:04:57] Speaker 04:
But the government affirmatively, repeatedly, and consistently asserted that it didn't come from the government.

[00:05:03] Speaker 04:
And in addition, there was not an appreciation of the risks associated with the presence.

[00:05:10] Speaker 04:
And these are all evidentiary issues that will come out alone.

[00:05:12] Speaker 01:
And just to be sure, Maxwell Air Force Base sits right on top of that aquifer?

[00:05:18] Speaker 04:
It does, Your Honor.

[00:05:19] Speaker 04:
And it's the same aquifer from which the wells draw.

[00:05:23] Speaker 03:
So all these accrual things, though, seem to go to

[00:05:27] Speaker 03:
the accrual date for purposes of statute of limitations.

[00:05:31] Speaker 03:
Correct.

[00:05:31] Speaker 03:
Which didn't really get adequately explored because the Court of Federal Claims dismissed for lack of subject matter jurisdiction, seemingly considering this only as a regulatory takings action.

[00:05:44] Speaker 03:
That's correct.

[00:05:45] Speaker 03:
Do you agree that you're not raising a regulatory takings challenge?

[00:05:49] Speaker 04:
Yes.

[00:05:49] Speaker 04:
Yes.

[00:05:49] Speaker 04:
We're raising a physical takings.

[00:05:51] Speaker 03:
I mean, your complaint could have been a lot more clear on this point.

[00:05:54] Speaker 04:
Perhaps it could have been.

[00:05:57] Speaker 04:
But we think that it is nonetheless the law is clear that what triggers the injury in a public water supplier's water supply and in their wells is the presence, the physical presence of a contaminant at hazardous levels.

[00:06:14] Speaker 04:
This is consistent with a cruel jurisdiction in this circuit which focuses on the plaintiff's knowledge.

[00:06:24] Speaker 01:
good in NACRA, but that's not what you allege.

[00:06:29] Speaker 04:
Well, it is, Your Honor.

[00:06:31] Speaker 04:
We allege, for example, in paragraph 40 that it's the presence of Chrome 6 in our wells that deprives us of our right to use and enjoy it.

[00:06:41] Speaker 03:
What page is that again?

[00:06:42] Speaker 04:
We don't... Your Honor, I apologize.

[00:06:44] Speaker 04:
All I have are the... 14.

[00:06:46] Speaker 04:
Appendix 14.

[00:06:47] Speaker 04:
Thank you.

[00:06:48] Speaker 04:
Thanks.

[00:06:48] Speaker 04:
It shall.

[00:06:49] Speaker 04:
You should bring your appendix.

[00:06:51] Speaker 04:
I should.

[00:06:55] Speaker 04:
We allege that we hold a property interest in our groundwater.

[00:07:00] Speaker 04:
We talk about it.

[00:07:02] Speaker 03:
So I gather then your argument is even though you don't expressly describe this as a physical takings, the factual statements you're describing throughout make clear that it's a physical takings claim, not a regulatory takings claim.

[00:07:16] Speaker 04:
Correct.

[00:07:17] Speaker 04:
And in our view, the complaint is written broadly enough to encompass this.

[00:07:23] Speaker 04:
particularly given that the law is very clear that the injury does not depend on the MCL.

[00:07:29] Speaker 03:
I know you didn't get here but I'm just curious how you think a you have a physical takings claim for contamination by the government of groundwater when that when those levels are within federal environmental levels.

[00:07:50] Speaker 04:
Well, Your Honor, the Second Circuit in the MTBE decision, which we discuss at some length, the Eleventh Circuit in the Aquafina, I'm sorry, Adamolfi decision, and the Ninth Circuit in the City of Pomona case all talk about how the MCL represents the worst water that a district is allowed to serve to the public before the State shuts the wells down, and that injury

[00:08:19] Speaker 04:
as we've been discussing, does not depend on exceedance of the MCL.

[00:08:25] Speaker 04:
In fact... You're saying there can be contamination independent of the level set forth in the MCL.

[00:08:32] Speaker 04:
Correct, Your Honor.

[00:08:33] Speaker 04:
And in fact, and the most in-depth discussion of that is in the... Did you allege this?

[00:08:40] Speaker 04:
Did you make that allegation that... Well, we alleged injury from the presence of the contamination.

[00:08:46] Speaker 01:
But then later, the problem is I see it, you later go on and say that this injury accrued at a certain date, and that's the date that's tied to the MCL.

[00:08:58] Speaker 04:
Correct.

[00:08:58] Speaker 04:
And the statute of limitations, which is the normal tort context or the accrual date, which is the issue for purposes of this court, is an intensely factual basis that depends on the plaintiff's knowledge of the severity of the contamination

[00:09:15] Speaker 04:
That is, you have evolving scientific knowledge.

[00:09:17] Speaker 01:
Well, the evolving problem here is that the MCO has been... What's the status of it now?

[00:09:22] Speaker 04:
Has it been... It's on remand to the agency.

[00:09:25] Speaker 01:
But the key point is that the district... Would that mean that your allegation of injury is also on remand?

[00:09:32] Speaker 01:
No, Your Honor, because... Not literally, but, you know, I mean, it's pending, right?

[00:09:36] Speaker 04:
No.

[00:09:36] Speaker 03:
The district has a contaminant that it now knows... What's your theory of a taking based upon this contamination?

[00:09:44] Speaker 03:
if it doesn't prohibit or limit your use of this water supply.

[00:09:49] Speaker 04:
There is an injury to our property interest, which is the same injury discussed in both MTBE and the City of Pomona case and indeed in the Hanson case, which was a takings case.

[00:10:00] Speaker 03:
But is it an injury compensable under the takings

[00:10:04] Speaker 04:
It is, Your Honor, and in fact... What's that theory?

[00:10:06] Speaker 03:
I mean, you can't just keep telling me you have an injury.

[00:10:08] Speaker 03:
Tell me your theory for why it's compensable under the Takings Clause.

[00:10:11] Speaker 04:
Well, among other things, Your Honor, in the absence of an MCL, the districts can be sued by their consumers for delivering poison water.

[00:10:20] Speaker 04:
So if, in other words, if there's an MCL, there's a safe harbor for the district for delivering water below it.

[00:10:27] Speaker 04:
If there's no MCL, then they're at risk because the reasonableness standard

[00:10:34] Speaker 04:
inures to the benefit of the consumers.

[00:10:36] Speaker 04:
And this is discussed in the in-rate groundwater cases by the California Supreme Court.

[00:10:40] Speaker 03:
And what's the theory for that suit of the consumers against you?

[00:10:43] Speaker 03:
Is it some kind of tort claim?

[00:10:45] Speaker 04:
Yes.

[00:10:46] Speaker 03:
Well, if it's some kind of tort claim against you, then why isn't it a tort claim from you against the government?

[00:10:53] Speaker 03:
Why isn't this handled under environmental laws versus taking laws?

[00:10:57] Speaker 04:
Because, Your Honor, contamination of drinking water is a well-established taking.

[00:11:02] Speaker 04:
In the Hanson case, which we discussed at length and the government ignored, they discussed that.

[00:11:08] Speaker 04:
What case is that and where is it from?

[00:11:11] Speaker 04:
It's from the Court of Claims.

[00:11:13] Speaker 03:
It is cited... What are the facts of that?

[00:11:16] Speaker 04:
The U.S.

[00:11:18] Speaker 04:
Forest Service buried wells on forest service ground and a hazardous contaminant called EDB leached through the soil and reached groundwater wells on the plaintiff's

[00:11:31] Speaker 04:
property which had joined the Forest Service.

[00:11:34] Speaker 04:
And interestingly, MCLs, which the court pointed to as evidence of the injurious nature of the contamination, do not apply to private parties.

[00:11:47] Speaker 04:
But the court nonetheless found a taking because the EDB is a dangerous chemical, while Chrome 6 is a dangerous chemical.

[00:11:58] Speaker 04:
Did it find the taking because it rendered

[00:12:00] Speaker 03:
the wells completely useless?

[00:12:03] Speaker 04:
It rendered, it was exactly the same as here, Your Honor, which is that in order to use the water from the wells, expensive treatment would need to be installed.

[00:12:11] Speaker 03:
Well, that's not exactly the same as here because that's not the facts of your case.

[00:12:15] Speaker 04:
It is the facts of our case, Your Honor.

[00:12:17] Speaker 04:
We have a dangerous compound.

[00:12:18] Speaker 03:
There's nothing that prevents you from using this groundwater under current level.

[00:12:23] Speaker 04:
Your Honor, the district owns the right to use the water

[00:12:28] Speaker 03:
And it has a hazardous contaminant that was put there by the government, and it cannot use that water without... I mean, I don't want to belabor this, because this is all merit stuff that probably needs to be explored on remand if we find you sufficiently alleged of physical takings.

[00:12:43] Speaker 03:
But I'm skeptical that when the federal government hasn't violated any environmental laws, that this can be construed as a physical taking.

[00:12:55] Speaker 04:
Well, that will be an issue to explore on remand, Your Honor.

[00:12:57] Speaker 04:
And we believe that we've adequately put it, but if there is a remand, we'd like a chance to amend.

[00:13:03] Speaker 03:
I think you were about to mention that you had a tort case pending.

[00:13:06] Speaker 04:
We do, Your Honor.

[00:13:06] Speaker 03:
Is that in district court?

[00:13:08] Speaker 04:
It is.

[00:13:08] Speaker 03:
Was it filed before or after this case?

[00:13:10] Speaker 04:
This case was filed first under the first file.

[00:13:13] Speaker 04:
OK.

[00:13:13] Speaker 04:
I'll reserve the rest of my time.

[00:13:15] Speaker 04:
Thank you.

[00:13:18] Speaker 01:
All right.

[00:13:19] Speaker 01:
Counselor Hazard.

[00:13:20] Speaker 00:
Yes.

[00:13:21] Speaker 00:
Good morning.

[00:13:21] Speaker 00:
May it please the court?

[00:13:23] Speaker 03:
Can I just ask you, their complaint is very unclear, but if we read it, and I think we're supposed to construe it, you know, in their favor, as alleging a physical takings claim, don't we need to send this back because Judge Hodges didn't seem to address a physical takings claim?

[00:13:41] Speaker 00:
I don't think so, because they haven't identified any taking or any harm to their use of water.

[00:13:49] Speaker 00:
In fact,

[00:13:50] Speaker 00:
And that's the basis on which the Court of Federal Claims addressed it.

[00:13:55] Speaker 01:
What about paragraph 40?

[00:14:03] Speaker 00:
Right.

[00:14:03] Speaker 00:
They say it deprives them of the right to use and enjoy the district's property interest.

[00:14:09] Speaker 00:
But Rio Linda in a report on June 19, 2017, which is four days before they filed this complaint,

[00:14:20] Speaker 00:
stated that it is unclear what level of chromium 6 will be allowed once the new MCL is adopted, and that the district might not need to remediate any of its wells.

[00:14:31] Speaker 03:
But that's the merits.

[00:14:32] Speaker 03:
It's not subject matter jurisdiction.

[00:14:35] Speaker 03:
It's, well, I... I apologize.

[00:14:39] Speaker 03:
Takings law is incredibly complex, and it depends on which box you put it in.

[00:14:44] Speaker 00:
Yes.

[00:14:45] Speaker 03:
But I read Judge Hodges' opinion as putting this in the regulatory takings box.

[00:14:50] Speaker 03:
And he's right that there's no regulatory takings claim.

[00:14:53] Speaker 03:
There can't be, because the federal government hasn't regulated anything.

[00:14:57] Speaker 03:
And your friend on the other side agrees with that.

[00:14:59] Speaker 03:
But if you look at this from a physical takings box, I know your view is the facts don't prove out that.

[00:15:06] Speaker 03:
But don't they make allegations in paragraph 40 and then even in paragraph 41 following it that there has been contamination that affects their property interests?

[00:15:17] Speaker 03:
And whether that amounts to a taking

[00:15:20] Speaker 03:
on the merits is something that would need to be explored on remand.

[00:15:24] Speaker 00:
I would agree with you that they make allegations, but for jurisdictional facts, when they're developed below, which they were to some degree here, they have a duty to show by a preponderance of the evidence that they satisfy jurisdiction.

[00:15:45] Speaker 00:
And they make no showing.

[00:15:47] Speaker 00:
And the only record here

[00:15:49] Speaker 00:
indicates that they are continuing to use all their wells.

[00:15:53] Speaker 03:
Can you explain to me then to wear and judge Hodges' decision that he's making, because it's a very short opinion, that he's making this as a factual jurisdictional conclusion rather than just on a 12b1?

[00:16:07] Speaker 03:
Because you would see, if he had converted this at least to some kind of factual findings, you would have thought he would have explained that in some way.

[00:16:18] Speaker 02:
His discussion is at page 4 of the appendix, and it does seem to be all focused on a regulatory taking.

[00:16:28] Speaker 00:
Well, I didn't read it as him concluding that it was a regulatory taking.

[00:16:34] Speaker 00:
I know that's how the plaintiffs describe it.

[00:16:37] Speaker 00:
I just understood that he was saying, you say that you were deprived of a property interest by the promulgation of a regulation that has now been vacated.

[00:16:49] Speaker 02:
So... He's hinging it on the regulation.

[00:16:51] Speaker 01:
So he's... In essence, he's saying there's no longer a case, there's no case of controversy.

[00:16:56] Speaker 01:
There's no case of controversy because you're claiming... Because my question is why, why was the district then not allowed to amend the complaint?

[00:17:03] Speaker 00:
Because they didn't move to amend their complaint.

[00:17:08] Speaker 02:
This has an end to it.

[00:17:09] Speaker 02:
There is that, what I'd call a very slender read on that at the end of its response to your motion to dismiss.

[00:17:17] Speaker 02:
But the fact of the matter is here,

[00:17:19] Speaker 02:
The Court of Federal Claims did go off on a different basis than was argued by the government.

[00:17:26] Speaker 02:
As I understand, correct me if I'm wrong, the government argued, one, no jurisdiction because of 18 U.S.C.

[00:17:32] Speaker 02:
3500, right?

[00:17:34] Speaker 02:
And two, this is a tort case, not a takings case.

[00:17:42] Speaker 02:
As I read your papers in the Court of Federal Claims.

[00:17:46] Speaker 02:
And the judge then came in.

[00:17:49] Speaker 02:
and didn't decide on either of those grounds, but rather went off on the ground that we've just been discussing at Appendix IV.

[00:17:58] Speaker 02:
So while I think there's a good argument for the proposition that in a normal circumstance, there wouldn't be enough for amendment here.

[00:18:11] Speaker 00:
There would not be enough?

[00:18:12] Speaker 02:
There would not be enough for amending here because they didn't argue enough.

[00:18:16] Speaker 02:
There are a lot of cases that weigh against them on that.

[00:18:19] Speaker 02:
But it does seem that they may have something to hang their hat on in the sense of the court going off on a ground that was not even asserted by the government or briefed or argued by the parties.

[00:18:31] Speaker 00:
Right.

[00:18:33] Speaker 02:
Was there an oral argument on this motion or just go off on the papers?

[00:18:40] Speaker 00:
Since I'm just an appellate counsel,

[00:18:42] Speaker 00:
I don't want to venture an answer to that.

[00:18:44] Speaker 00:
I don't think there was any.

[00:18:46] Speaker 00:
Yeah.

[00:18:47] Speaker 02:
I don't think there was in looking at the docket record.

[00:18:50] Speaker 00:
Right.

[00:18:50] Speaker 00:
I mean, they haven't even here presented any evidence showing that they are deprived of use of their wells.

[00:19:03] Speaker 00:
Now, if they want to volunteer.

[00:19:05] Speaker 02:
Evidence, that's the point, though.

[00:19:07] Speaker 02:
There hasn't been an evidentiary determination of any kind here.

[00:19:12] Speaker 02:
We're just looking at the pleadings.

[00:19:14] Speaker 00:
Right.

[00:19:15] Speaker 00:
And the pleadings say that they were deprived of the use of their wells on the promulgation of a regulation which, at the time they filed their complaint, had been vacated.

[00:19:27] Speaker 02:
Well, but the paragraphs that I think Judge Hughes and Judge Raina pointed to, 40 and 41, that were discussed, arguably go beyond the MCL.

[00:19:41] Speaker 02:
are independent of the MCO.

[00:19:43] Speaker 02:
I mean, it may very well be that, as Judge Hughes was suggesting, that this case will have problems if it's remanded.

[00:19:54] Speaker 02:
But we're at a pleading stage here.

[00:19:57] Speaker 02:
And we're faced with a situation where the judge ruled on a basis not argued by the parties, when there is seemingly enough in the complaint to suggest a takings claim that may fail.

[00:20:11] Speaker 02:
on remand, and there may be a statute of limitations issue if it goes back.

[00:20:17] Speaker 00:
Well, I just point out, I understand what you're saying, but I would just point out that the districts themselves have not stopped using the water.

[00:20:28] Speaker 00:
They have continued to use the water.

[00:20:30] Speaker 00:
And in that way, this is a very different case than in Hanson.

[00:20:35] Speaker 02:
But isn't that a good argument in your quiver on a fact issue?

[00:20:42] Speaker 03:
Again, that sounds like a merits issue.

[00:20:44] Speaker 03:
It doesn't sound like a subject matter jurisdiction issue.

[00:20:47] Speaker 00:
I think the subject matter jurisdiction issue, though, really comes down to have they stated that they are deprived of use of this water.

[00:20:57] Speaker 03:
Do they have to?

[00:20:58] Speaker 03:
This is what I'm a little confused about.

[00:21:00] Speaker 03:
I don't, frankly, know where I would come out on this, but do they have to allege that they're deprived of all use to power to be a physical taking?

[00:21:09] Speaker 03:
Or can it just be some limitation on their use because of the contamination?

[00:21:14] Speaker 03:
Because this isn't a regulatory taking, so it doesn't have to be deprived of all use.

[00:21:17] Speaker 03:
You can have partial physical takeover.

[00:21:20] Speaker 00:
Right.

[00:21:20] Speaker 00:
Well, as I understand the record here, the districts are continuing to use the water.

[00:21:28] Speaker 00:
And in fact, they've advocated to have the levels be- Right.

[00:21:31] Speaker 03:
Again, you're asking us to look outside the record to jurisdictional facts rather than just the complaint.

[00:21:39] Speaker 03:
I understand your arguments, but if we just look at the complaint and construe it most favorably to them, it seems as at least those two paragraphs go beyond just the impact of the regulation and talk about the physical invasion of the contaminants, which would normally be enough to make an allegation and have jurisdiction, even if not prevail on the merits.

[00:22:05] Speaker 03:
Yeah.

[00:22:05] Speaker 03:
Can I ask you, there was some reference to 1500 and the judge's decision

[00:22:09] Speaker 03:
And that's why I ask your friend about the order of the complaint.

[00:22:13] Speaker 03:
Is the government just keeping that alive because it wants to pursue its theory that it does – the order of the filing doesn't matter?

[00:22:21] Speaker 03:
Because it's pretty clear, isn't it, that our precedent suggests that the order of filing does matter.

[00:22:26] Speaker 00:
It is clear, and that's why we did not brief that issue.

[00:22:30] Speaker 03:
So we have to go on bonk and reverse that.

[00:22:33] Speaker 00:
Exactly.

[00:22:33] Speaker 03:
I know that's the Justice Department's long-standing position.

[00:22:36] Speaker 03:
It shouldn't matter.

[00:22:38] Speaker 00:
We just like to preserve it.

[00:22:44] Speaker 00:
I did want to just point out a few places in the record which led us to conclude that they have not established that they are

[00:22:56] Speaker 00:
not using the water.

[00:22:57] Speaker 00:
And that is primarily in the appendix at 135, where we, Linda Water District, stated that in a report that they filed just four days before the complaint was filed here, that they are not, they do not need to remediate any of their wells because they're all in compliance with the applicable regulations.

[00:23:23] Speaker 00:
and that they're postponing remediation.

[00:23:26] Speaker 00:
And on the basis that their complaint alleged that they were deprived of use by promulgation of a regulation that's no longer in effect, we think they didn't adequately describe an injury.

[00:23:48] Speaker 01:
Let me draw your attention to Appendix 190.

[00:23:52] Speaker 00:
190?

[00:23:52] Speaker 01:
Yes.

[00:23:54] Speaker 01:
They're at the end of that single paragraph.

[00:24:02] Speaker 01:
It says, plaintiff requests an opportunity to conduct discovery and or leave to amend.

[00:24:07] Speaker 01:
What was the result of that?

[00:24:12] Speaker 00:
They weren't granted that.

[00:24:15] Speaker 00:
I mean, the result was the dismissal of the case.

[00:24:18] Speaker 01:
I asked you before.

[00:24:20] Speaker 01:
And you told me they didn't move to amend.

[00:24:23] Speaker 00:
They did not.

[00:24:25] Speaker 00:
And they didn't follow rule 59E motion seeking to alter the judgment.

[00:24:33] Speaker 01:
It does say plaintiff requests an opportunity to conduct discovery and or leave to amend.

[00:24:40] Speaker 01:
And you're telling me that the court denied both the discovery.

[00:24:45] Speaker 00:
It didn't actually say anything about it.

[00:24:49] Speaker 00:
I mean, it didn't grant it.

[00:24:53] Speaker 00:
It was just silent on it.

[00:24:55] Speaker 00:
And so they never moved to amend their complaint.

[00:25:00] Speaker 03:
They didn't file a separate formal motion.

[00:25:02] Speaker 00:
What's that?

[00:25:03] Speaker 03:
They didn't file a separate formal motion.

[00:25:04] Speaker 00:
They didn't file a motion.

[00:25:05] Speaker 03:
Under the rules.

[00:25:06] Speaker 00:
Right.

[00:25:07] Speaker 03:
They just referenced it in a brief.

[00:25:09] Speaker 02:
Ms.

[00:25:09] Speaker 02:
Haddon, let me ask you, if this case were remanded, would they be able, at that point, to amend the complaint or move to amend the complaint?

[00:25:22] Speaker 00:
presumably they would be able to, they would have to go through the procedures, which I think means given the timing, they would have to, you know, notify or ask us.

[00:25:33] Speaker 02:
They'd have to, there'd have to be a motion, yeah.

[00:25:35] Speaker 00:
Yeah, they'd have to be, there'd have to be a motion.

[00:25:40] Speaker 00:
Right.

[00:25:40] Speaker 00:
So, in conclusion, as the court has shown, it's very well aware,

[00:25:48] Speaker 00:
There are many issues, complicated issues, raised by the takings claims here.

[00:25:54] Speaker 00:
And in our view, the Court of Federal Claims resolve the case on the most straightforward basis, which is a lack of injury and no right claim.

[00:26:02] Speaker 00:
And we would urge this court to affirm the decisions on that basis.

[00:26:09] Speaker 01:
Okay.

[00:26:09] Speaker 01:
All right, we thank you, Mr. Chair.

[00:26:11] Speaker 01:
We have a little under three minutes.

[00:26:13] Speaker 01:
You've got two and a half minutes.

[00:26:14] Speaker 04:
Thank you, Your Honor.

[00:26:15] Speaker 04:
There was no oral argument on the motion before.

[00:26:18] Speaker 04:
The action in the district court... Why didn't you follow up with a motion?

[00:26:23] Speaker 04:
Because, Your Honor, the judge issued the ruling on grounds that were not raised by anything in the government's brief and entered judgment the same day.

[00:26:34] Speaker 04:
So the case was dismissed and you didn't have the opportunity to... Correct.

[00:26:39] Speaker 04:
And the point I was going to make, Your Honor, is that the fight in the district court, in the

[00:26:44] Speaker 04:
lower court was over whether the contamination comes from McClellan, comes from the Air Force base, not over any of the issues on which the judge, over which the judge ruled.

[00:26:57] Speaker 02:
So.

[00:26:58] Speaker 02:
Robertson You said, or I misunderstood it.

[00:27:01] Speaker 02:
You said there was or was not oral argument?

[00:27:03] Speaker 04:
There was not.

[00:27:04] Speaker 04:
There was not.

[00:27:05] Speaker 04:
There was briefing on the motion to dismiss which focused on

[00:27:09] Speaker 04:
the assertion by the government that the contamination didn't come from them.

[00:27:15] Speaker 02:
The focus of their motion was the 1500 issue on the tort claim.

[00:27:19] Speaker 04:
Correct.

[00:27:19] Speaker 02:
Tort argument.

[00:27:20] Speaker 04:
Correct.

[00:27:20] Speaker 04:
So these issues weren't raised, they weren't briefed, we didn't have a chance to respond to the judge's ruling.

[00:27:28] Speaker 04:
And in response to the question, I believe from Your Honor Judge Schall,

[00:27:33] Speaker 04:
about whether you have to have a total loss of property or whether it can be partial.

[00:27:38] Speaker 04:
I think that the Ridgeline case... I think that was maybe Judge Hughes.

[00:27:41] Speaker 04:
I'm sorry, Judge Hughes.

[00:27:42] Speaker 04:
I apologize.

[00:27:43] Speaker 02:
I wouldn't want to steal someone's question.

[00:27:45] Speaker 04:
Well, the Ridgeline case discusses that and makes clear that you can have either a total deprivation or a partial deprivation.

[00:27:53] Speaker 04:
And let me just end by pointing out the importance of this case to the districts and to their ratepayers

[00:28:02] Speaker 04:
The lower court's ruling goes directly against the injury analysis of every federal appellate court that has looked at the issue in drinking water contamination cases.

[00:28:13] Speaker 04:
We haven't discussed the statute of limitations, a cruel issue today, but that's an intensely factual issue that's inappropriate for a motion to dismiss, much less being raised for the first time on appeal as it was here.

[00:28:26] Speaker 04:
Your honor should reverse, or at a minimum, reverse with leave to amend.

[00:28:30] Speaker 04:
Okay, we thank you.

[00:28:32] Speaker 04:
We thank the parties for their arguments.