[00:00:00] Speaker 00:
Mr. Chris, good morning.

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

[00:00:03] Speaker 00:
May it please the court, my name is John Crist.

[00:00:05] Speaker 00:
I'm here on behalf of the estate of Jack Halverson, actually.

[00:00:10] Speaker 00:
Jim Halverson is Jack's son, who's the PR of the estate.

[00:00:14] Speaker 00:
He's also a very fine lawyer who's watching this in Billings.

[00:00:18] Speaker 00:
So if you hear some yelling, it's not those well-behaved children in the hallway.

[00:00:21] Speaker 00:
It's Mr. Halverson because I'm not answering the questions the way he wished I would.

[00:00:26] Speaker 00:
Jack Halverson was alive in 2015 when this case started.

[00:00:31] Speaker 00:
He died in 2019 and the estate took his place.

[00:00:35] Speaker 00:
What we're asking you to do in this case is reverse the district court orders denying the motions for summary judgment and issue an order which requires the BIA to issue the deeds that it promised to issue when it signed the verified settlement agreement we've referred to as the VSA.

[00:00:51] Speaker 00:
grant the partition that was requested because they stated as a matter of law and fact.

[00:01:00] Speaker 00:
the application was proper, and the partition was proper and approved.

[00:01:05] Speaker 00:
This case is kind of all about the facts, so I'd like to spend a little time touching on some of the critical ones.

[00:01:12] Speaker 04:
Counsel, before you do that, we have some threshold concerns about jurisdiction in this case, and I understand that you're taking the position that

[00:01:22] Speaker 04:
that this is a mandamus action that sounds in breach of trust.

[00:01:28] Speaker 04:
And if that's the case, could you identify for me what treaty, statute or regulation that you are leaning on to argue that there is a breach of trust situation here?

[00:01:37] Speaker 00:
Well, the statute which allows the partition of the property is 28 USC 13, excuse me, the mandamus statute which allows jurisdiction is 28 USC 1361.

[00:01:53] Speaker 00:
The statute which allows the transfer of the property by partition is 25 USC 378.

[00:02:02] Speaker 02:
Is this an often used provision?

[00:02:04] Speaker 02:
Because in my research for the case, it doesn't seem like it comes up a lot.

[00:02:08] Speaker 00:
It does not appear to be, Your Honor.

[00:02:10] Speaker 02:
I didn't know if you had a perspective on that, if you do practice in this area more frequently, but the use of this partition authority doesn't seem to have arisen often.

[00:02:20] Speaker 00:
As I think is indicated by kind of the lack of dispositive authority,

[00:02:23] Speaker 00:
that we're able to present to you in terms of, in this case, this is how they handled it in that case.

[00:02:28] Speaker 00:
That is how they handled it.

[00:02:29] Speaker 00:
It is difficult.

[00:02:30] Speaker 00:
But to return to Judge Waters' jurisdictional case, this was thoroughly and, I think, properly analyzed by Judge Waters in response to their motion to dismiss the case.

[00:02:44] Speaker 00:
Judge Waters concluded that, well,

[00:02:51] Speaker 00:
Judge Waters concluded that Jack Hallerson had stated a breach of trust action against the defendants based upon the undisputed trust relationship that exists between the United States and Indian tribes, the fiduciary duty that arises between that.

[00:03:07] Speaker 00:
Critically, as Judge Waters found, the BIA had pervasive authority over the resource at issue, which is part of the Mitchell Doctrine.

[00:03:17] Speaker 00:
and that it had the exclusive power to partition Jack's land.

[00:03:21] Speaker 00:
And we have, of course, alleged that they have failed to exercise that.

[00:03:26] Speaker 04:
So we have the pervasive authority and all those other factors that you just mentioned.

[00:03:31] Speaker 00:
Yes.

[00:03:31] Speaker 04:
But what is the specific trust duty imposed by 25 USC 378?

[00:03:38] Speaker 00:
The trust duty under the statute is that the, well, the trust duty, of course, applies to all aspects of the federal government dealing with enrolled members and tribes.

[00:03:53] Speaker 00:
But they must, it says they shall, if the secretary shall find the inherited trust allotment or allotments are capable of partition to the advantage of the heirs, they may cause that land to be partitioned.

[00:04:06] Speaker 04:
Okay, and if that's the breach of the trust duty, then if this were really a breach of trust action, wouldn't it be a question of reviewing whether it had indeed been allotted to the advantage of the heirs?

[00:04:21] Speaker 04:
Basically, if this is a breach of trust action, where is the clear and certain claim coming from, or the clear and non-ministerial duty coming from?

[00:04:30] Speaker 00:
Sure.

[00:04:32] Speaker 00:
To the extent that the BIA had any discretionary authority, it exercised that discretion when it signed the VSA, when it concluded that as a matter of law and fact,

[00:04:44] Speaker 00:
The the partition that was requested the very specific partition putting you know 690 some acres of trust land into Jack Halverson's pocket if you will and leaving the remaining 108 acres and change with the other parties to the extent that had any discretion it exercised that discretion and and after that and I think the district court correctly found that once they had exercised that discretion

[00:05:10] Speaker 00:
Then they had a duty to exercise their trust duty, their trust responsibility in good faith to carry out precisely what they agreed to do.

[00:05:19] Speaker 00:
And precisely what they agreed to do was, having granted the partition based upon the certificate of survey that they agree is controlling, to then issue the deeds which would implement what they agreed to do.

[00:05:34] Speaker 02:
Where do you see the waiver of sovereign immunity here?

[00:05:36] Speaker 02:
Where are you locating that in?

[00:05:38] Speaker 00:
I am locating, well I don't know that I need to necessarily locate a waiver of sovereign immunity other than in the mandamus statute as it is applied by the Mitchell doctrine as I discussed before.

[00:05:51] Speaker 01:
Well mandamus isn't consent to suit.

[00:05:54] Speaker 00:
Correct.

[00:05:55] Speaker 01:
So I think we come back to Judge Bress's question of where do we get the waiver of sovereign immunity and where you have just described that the

[00:06:04] Speaker 01:
agency brought its discretion to bear in deciding to grant the partition that was applied for, and then it did so in, well, it memorialized its decision, its discretionary decision in a contract, and your client is here wanting the contract to be performed.

[00:06:25] Speaker 01:
How is that not morphing out of trust and into contract?

[00:06:31] Speaker 00:
It isn't in the sense that once they exercise their statutory authority to do precisely what we ask them to do, they are required by their fiduciary obligation to follow through and issue the deeds that they promised to issue.

[00:06:52] Speaker 00:
Their failure to do what they promised to do is a breach of trust.

[00:06:57] Speaker 00:
which is rooted, properly rooted in a mandamus action as I think Judge Waters found.

[00:07:04] Speaker 02:
But so you're basically saying to conclude that

[00:07:10] Speaker 02:
The United States can be sued for enforcement of this issue.

[00:07:16] Speaker 02:
What you're asking us to say is that through the statutory trust obligations in combination with the mandamus statute, that is the waiver.

[00:07:25] Speaker 02:
I'm not trying to put words in your mouth, but I just don't understand.

[00:07:27] Speaker 00:
No, no, I think, you know, and I'm perhaps not articulating as well as Judge Waters did in her opinion, which is document 40, denying their motion for summary judgment, but you have the essence of it, Judge.

[00:07:38] Speaker 02:
Okay, we have a whole new set of arguments, you know, being made and I don't know if they were made below, but they're not ones that Judge Waters really considered about, well, really this is a breach of contract action and we should be looking to our case law about the APA and the Tucker Act.

[00:07:53] Speaker 00:
And I know subject matter jurisdiction may be considered at any point, and it's a bit frustrating that the arguments continue to morph from our perspective.

[00:08:03] Speaker 00:
But we think you could simply return to the analysis that we've been discussing and the analysis of Judge Waters and determine that jurisdiction exists because once they agreed to

[00:08:17] Speaker 00:
grant the application, they had a duty under their trust obligation to deal fairly with Jack, preserve his assets, and that gives rise to a breach of a trust action which is properly rooted in a writ of mandamus.

[00:08:35] Speaker 04:
Are you arguing that the jurisdiction arises out of the breach of trust claims but the specificity of the relief arises out of the contract and that we can mix and match in that fashion?

[00:08:48] Speaker 00:
I mean, I think the trust obligation, they're kind of the same thing, Judge.

[00:08:53] Speaker 00:
I mean, I know it's rooted in the contract, but the trust obligation is to do what you agreed to do.

[00:08:59] Speaker 00:
I mean, they've got plenary authority.

[00:09:01] Speaker 04:
So you identified 378, and it says to do it to the advantage of the allottees.

[00:09:07] Speaker 00:
Correct.

[00:09:09] Speaker 04:
But for the specifics of the West Plot and the other plot and entering the deed, those specifics are coming from the contract.

[00:09:18] Speaker 00:
Well, the specifics for how they would be allocated ultimately are coming from the VSA and the certificate of survey which the BIA agreed was controlling.

[00:09:27] Speaker 00:
So those are going to be the specifics of how it is going to be allocated.

[00:09:33] Speaker 00:
But it is undisputed in this case that the BIA agreed that this was to the advantage of all parties.

[00:09:41] Speaker 00:
They testified to that in their deposition.

[00:09:43] Speaker 00:
And in fact, the minority share, the value of it was going to be $1,375 an acre.

[00:09:51] Speaker 00:
The share that Jackson State was going to keep was only $600 an acre.

[00:09:55] Speaker 00:
So it's clearly to the advantage of all parties involved to do this partition.

[00:09:59] Speaker 02:
That's not a dispute.

[00:10:03] Speaker 02:
If the parties here had not entered a settlement agreement and you were just kind of at the beginning of this process and saying, I want this partition, and the BIA was saying, yeah, we're not interested in talking to you, could you have brought a suit under Section 378 to essentially order them to act or to consider your request?

[00:10:23] Speaker 00:
You know, it's an interesting question, Judge.

[00:10:25] Speaker 00:
378 is sort of oddly written.

[00:10:29] Speaker 02:
The reason I'm asking is I'm trying to figure out

[00:10:32] Speaker 02:
where you think the waiver latches on.

[00:10:34] Speaker 02:
In other words, is it at the beginning or is it because you have this VSA that all of a sudden there has been a waiver and a duty?

[00:10:40] Speaker 00:
Yeah, I think in the case we have, ultimately it's because we have the VSA.

[00:10:43] Speaker 00:
I mean, once they've got an obligation to take a look at this, it's as a shell partition if it's in the interest of all the parties.

[00:10:53] Speaker 00:
My client goes through the process, files the application, gets the CLS, we go through all of that, and then they agree.

[00:10:59] Speaker 00:
They agree, and to the extent they're exercising discretion, they're saying, yeah, we're exercising our discretion to do exactly what's in the COS, and then all we have to do is just issue a couple of deeds.

[00:11:09] Speaker 00:
It's a purely ministerial act after that point in time.

[00:11:14] Speaker 02:
Right, of course, you know, even if we get past the sovereign immunity, they disagree

[00:11:19] Speaker 02:
that they have the authority to even do what you're asking.

[00:11:22] Speaker 02:
So how do you address that, especially from the standpoint of mandamus, where we do expect the legal obligation to be pretty clear?

[00:11:31] Speaker 00:
Right.

[00:11:32] Speaker 00:
I think that you start by

[00:11:37] Speaker 00:
But let me just focus in on what I think is their main argument, is that that small fee portion of property precludes the parties from engaging in what we're asking them to do.

[00:11:49] Speaker 00:
That small fee portion stayed in the remainder.

[00:11:52] Speaker 00:
It was not to be conveyed to any party.

[00:11:55] Speaker 00:
So the only conveyances that were to be made were conveyances of trust land to Jack Halverson.

[00:12:01] Speaker 00:
And so I guess by operation of law, and as stated in the COS, those fee interests remained in that small remainder held by the other parties.

[00:12:13] Speaker 00:
Now, the statute doesn't say that you can never partition a property if there happens to be a small fee interest involved someplace.

[00:12:20] Speaker 00:
As you've noted, there's no case that says that in any jurisdiction that I've been able to find.

[00:12:25] Speaker 00:
Um, the

[00:12:28] Speaker 00:
The overriding principle, I think, here in these partition actions, as indicated by some of the principles we've cited to you in the Department of Interior's own rules, are that they're supposed to be exercising their fiduciary duty to do this for the benefit of all parties and to do it in a way that is consistent with their trust responsibility.

[00:12:51] Speaker 00:
We've got a circumstance here where there is not a person who is objecting to this.

[00:12:55] Speaker 00:
The only people who are objecting to this are the BIA.

[00:12:58] Speaker 02:
What is it what is the real-world impact of this to your client in terms of being able to alienate or develop the property?

[00:13:06] Speaker 00:
Ultimately my client Jim Halverson would obtain a fee interest and would have the ability to to deal with that prop that property the remainder interest Remains in the joint are the

[00:13:20] Speaker 00:
undivided interest remains in that area.

[00:13:23] Speaker 00:
This is open prairie land in Montana.

[00:13:25] Speaker 00:
I'm not sure it's got a ton of actual value.

[00:13:28] Speaker 00:
The reason the parcel, the other parcel, is more valuable is because it's close to a road.

[00:13:34] Speaker 00:
I mean, so it's pretty basic stuff out in Montana.

[00:13:38] Speaker 02:
We'll put a little extra time on the clock for rebuttal, but let's hear from your opposing council.

[00:13:43] Speaker 02:
Thank you.

[00:13:43] Speaker 02:
Thank you.

[00:13:57] Speaker 03:
Good morning.

[00:13:57] Speaker 03:
May it please the court.

[00:13:59] Speaker 03:
My name is Abby Chuck, and I'm an Assistant United States Attorney from the District of Montana, representing the government in this case.

[00:14:06] Speaker 03:
Ultimately, appellants in this case ask that the United States convey to them someone else's fee property.

[00:14:13] Speaker 03:
And the United States cannot do this for a number of reasons, and I will start with sovereign immunity.

[00:14:19] Speaker 03:
Sovereign immunity has not been waived for the claims that the appellants bring in this case.

[00:14:26] Speaker 03:
As to the trust issues that my friend here addressed, I believe that plaintiffs are essentially conflating those trust duties with waiver of sovereign immunity.

[00:14:41] Speaker 03:
If we actually looked to the cases that address trust duties, there's an independent waiver of sovereign immunity in those cases.

[00:14:48] Speaker 03:
So, Mitchell 1, for example, the court discussed a waiver under the Tucker Act.

[00:14:54] Speaker 03:
In Cobell, there was an independent waiver under the APA, so there still needs to be an independent waiver of sovereign immunity.

[00:15:01] Speaker 03:
That also speaks to the fact that in those cases, there is an independent claim for breach of fiduciary duty.

[00:15:08] Speaker 03:
which we do not have in this case.

[00:15:10] Speaker 03:
Why not?

[00:15:11] Speaker 03:
Because it was not asserted in the complaint, Your Honor.

[00:15:14] Speaker 01:
Oh, so you're just standing on a pleading ground.

[00:15:16] Speaker 01:
Not that there couldn't be, there just wasn't.

[00:15:18] Speaker 03:
There was not in this case.

[00:15:20] Speaker 02:
What if there had been, would that change the sovereign immunity issue?

[00:15:24] Speaker 03:
No, Your Honor, it would not change the sovereign immunity issue.

[00:15:27] Speaker 03:
issue here because there's not a waiver under the Tucker Act as plaintiffs have not asked for monetary relief.

[00:15:35] Speaker 02:
Additionally... Could they have asked for monetary relief and that would not be subject to sovereign immunity?

[00:15:42] Speaker 03:
Yes, they could have asked for monetary relief and they would have had to go to the Court of Federal Claims though that does not appear to be the relief that they are seeking in this case.

[00:15:50] Speaker 03:
They are actually seeking relief in the form of ending up with this whole 1809A property

[00:15:56] Speaker 03:
is exclusively deeded to them, one over one.

[00:16:01] Speaker 01:
Could they have brought an APA claim?

[00:16:03] Speaker 03:
Your Honor, no.

[00:16:04] Speaker 03:
They could not have brought an APA claim at the time that they filed this complaint because they had not exhausted administrative remedies.

[00:16:12] Speaker 03:
About a month prior to their filing of a complaint in this case, they had

[00:16:18] Speaker 03:
Let me back up a little bit.

[00:16:19] Speaker 03:
So the deeds that are at issue in this case were recorded in January of 2021.

[00:16:24] Speaker 03:
It was just a month before that, or 2022, pardon me.

[00:16:28] Speaker 03:
It was a month before that the parties filed or came to their agreement with the settlement agreement.

[00:16:34] Speaker 03:
Then, so the deeds get filed in January of 2022.

[00:16:39] Speaker 03:
Parties then start to disagree about what should be in those deeds, and they seek relief from the IBIA.

[00:16:45] Speaker 03:
And ultimately, in April of 2022, the IBIA says, you know, we are just going to remand this to the BIA to address.

[00:16:52] Speaker 03:
So it was remanded to the BIA.

[00:16:55] Speaker 03:
And before the BIA could take any additional action,

[00:16:58] Speaker 03:
plaintiffs filed this complaint in federal district court.

[00:17:02] Speaker 03:
So there would not have been an exhaustion that would have allowed them to pursue an APA claim at that time.

[00:17:09] Speaker 01:
If they hadn't had an exhaustion problem, I guess my question is more getting at the merits of could you take the theory that they're trying to advance that they were, you know, the government agreed to do one thing, didn't do it.

[00:17:23] Speaker 01:
and they should have a claim to be able to say, government, do the thing that you said you were going to do.

[00:17:27] Speaker 01:
Can they do that under the APA?

[00:17:28] Speaker 03:
Pardon me, I didn't mean to interrupt.

[00:17:31] Speaker 03:
I don't believe with the specific remedy that they are seeking that the APA would provide the kind of relief that they're looking for, because they're not looking for rescission of what happened.

[00:17:41] Speaker 03:
They do not necessarily want to go back in time.

[00:17:44] Speaker 03:
They just want more land than was deeded to them.

[00:17:48] Speaker 03:
So I don't even know that the APA would be appropriate.

[00:17:50] Speaker 03:
And of course, they did not bring an APA claim.

[00:17:51] Speaker 02:
I understand your argument to basically be saying, this is a contract claim.

[00:17:55] Speaker 02:
They're asking for specific performance of the contract.

[00:17:58] Speaker 02:
We did not waive sovereign immunity for that.

[00:18:00] Speaker 02:
And so if that's how their claim is characterized, I understood your position to just be they can't sue us for that.

[00:18:07] Speaker 03:
Correct, Your Honor.

[00:18:08] Speaker 03:
And this was an issue that we raised in response to their motion for summary judgment below.

[00:18:12] Speaker 03:
And here, they are seeking specific performance of a contract.

[00:18:18] Speaker 03:
If you look to the Tucker Act, it doesn't say that a contract claim has to be pursued.

[00:18:23] Speaker 03:
Rather, it says that the claim has to be founded on a contract.

[00:18:28] Speaker 03:
And as this court has further expanded on that language in Northside Lumber case,

[00:18:35] Speaker 03:
A claim is founded on a contract if it seeks declaration of rights under the contract.

[00:18:41] Speaker 03:
And ultimately, what the parties disagree about here is what their rights are under the contract.

[00:18:46] Speaker 03:
So it is founded on a contract.

[00:18:48] Speaker 02:
There's also, I mean, hanging over all this is some aspect of the BIA's trust obligations.

[00:18:53] Speaker 02:
Does that matter?

[00:18:55] Speaker 02:
I mean, if one looks at this and says, really what's going on here is a breach of their trust duties, does that change the sovereign immunity analysis?

[00:19:04] Speaker 03:
No, Your Honor, it does not change the sovereign immunity analysis.

[00:19:08] Speaker 03:
Really, the trust analysis is a poor fit in this case, because if you look to mandamus in order to receive mandamus relief, you have to identify a specific statute that provides a duty that is non-discretionary and that is ministerial and so plainly prescribed as to be free from doubt.

[00:19:28] Speaker 03:
The mandamus analysis already requires this reference to a very specific duty-imposing statute.

[00:19:34] Speaker 03:
So somehow taking the trust analysis and importing it into the mandamus analysis really doesn't do any work in the analysis.

[00:19:43] Speaker 02:
What is the relevance, if anything, of the Quiet Title Act?

[00:19:48] Speaker 03:
Your Honor, that was a claim that the United States raised below and abandoned on appeal.

[00:19:56] Speaker 03:
I don't believe for purposes of this discussion that reference needs to be made to the Quiet Title Act.

[00:20:03] Speaker 03:
Instead, we are looking to the Tucker Act and any potential waiver of sovereign immunity under the Tucker Act, any potential of waiver of sovereign immunity under the APA, and neither in this case provide waiver of sovereign immunity.

[00:20:17] Speaker 03:
And of course, mandamus does not waive sovereign immunity.

[00:20:20] Speaker 02:
And why is the Quiet Title Act irrelevant here at this point?

[00:20:24] Speaker 03:
Your Honor, because... Your Honor, I haven't... I don't know that I have an appropriate answer for that at this time.

[00:20:40] Speaker 03:
That's not something that I can answer standing here now.

[00:20:43] Speaker 02:
I know it wasn't in the briefs.

[00:20:44] Speaker 02:
I mean, we have a district court decision that's talking all about it and then it's a non-issue in the briefing, which is a little unusual.

[00:20:52] Speaker 03:
Really what I think is a bigger issue here is this sovereign immunity issue is the threshold issue that gets us into the case.

[00:21:01] Speaker 04:
So going back to sovereign immunity, so you've answered for us very well why this trust construct is a poor fit for the mandamus action.

[00:21:11] Speaker 04:
But let's say if it was more of a typical breach of trust action, seeking some kind of specific performance relief, would there be a waiver of sovereign immunity?

[00:21:25] Speaker 03:
Sorry, Your Honor, I didn't mean to interrupt.

[00:21:26] Speaker 03:
No, go ahead.

[00:21:27] Speaker 03:
No, there would not be.

[00:21:28] Speaker 03:
Because there still has to be, even in those cases that have talked extensively about the trust duties, there still needs to be an independent waiver of sovereign immunity.

[00:21:38] Speaker 03:
In those cases, it's always under the Tucker Act or under the APA.

[00:21:42] Speaker 03:
So it still needs an independent waiver of sovereign immunity.

[00:21:45] Speaker 04:
So if this claim had been properly exhausted, could they have sought some type of specific performance relief under the APA and with the APA operating as the waiver of sovereign immunity?

[00:22:00] Speaker 03:
They could have pursued that if they had exhausted in this case, though, again, that's not maybe necessarily the relief that they are looking for, and they didn't ultimately pursue it.

[00:22:12] Speaker 02:
Exhausted in what way?

[00:22:13] Speaker 02:
What more would they have done?

[00:22:15] Speaker 03:
This case was remanded by the IBIA down to the BIA to address the question of the appropriateness of the deeds and the parties' disagreements about what were in the deeds.

[00:22:26] Speaker 03:
And so that was not something that actually had final agency action or decision.

[00:22:30] Speaker 03:
There was not an opportunity to confer about what was in those deeds and ultimately if the parties could reach a resolution on that issue.

[00:22:38] Speaker 03:
It's an independent issue from the reason that the case first went up to the IBIA.

[00:22:45] Speaker 03:
If after remand the parties were not able to agree, petitioners in this matter should have again appealed to the IBIA, received a decision from them, and then reappealed to the district court.

[00:22:59] Speaker 02:
What could they have asked for in federal court at that point?

[00:23:01] Speaker 02:
Let's imagine they did that.

[00:23:03] Speaker 02:
Could they have asked for what they're asking for here?

[00:23:05] Speaker 02:
I understand you'd be saying no.

[00:23:07] Speaker 03:
No, I think in that circumstance, they'd be essentially asking for a rescission.

[00:23:12] Speaker 03:
And so they don't want to go back to the original state of things.

[00:23:16] Speaker 03:
By striking the deeds that were recorded in January 2022, they're asking for something additional.

[00:23:22] Speaker 03:
And that something additional that they are looking for in this case is someone else's free-fee property.

[00:23:28] Speaker 03:
And ultimately, that is not something that the United States can give them.

[00:23:31] Speaker 01:
I mean, I understand the argument, but I have trouble with it.

[00:23:37] Speaker 01:
What the government did here is puzzling and troubling, because you have a party coming in and saying, we have this undivided interest in property.

[00:23:47] Speaker 01:
I want to now be divided.

[00:23:49] Speaker 01:
Here's how I propose it should be done.

[00:23:52] Speaker 01:
And in that proposal, it's very clearly, we're going to have two pieces.

[00:23:56] Speaker 01:
I get one of them all by myself, the other one everyone else will still have as co-owners.

[00:24:01] Speaker 01:
And the government receives that application, looks at it, and

[00:24:05] Speaker 01:
after a little bit of back and forth, says, OK, we'll do that.

[00:24:10] Speaker 01:
Your application is approved, and we agree.

[00:24:13] Speaker 01:
And then the government purports to perform, except for doesn't actually do what was asked for in the application.

[00:24:21] Speaker 01:
So it seems like there is an argument for the estate to say, you made an agreement, or you exercised your discretion pursuant to your trust obligations to do something.

[00:24:34] Speaker 01:
And we relied on that.

[00:24:35] Speaker 01:
And then you didn't do that thing.

[00:24:37] Speaker 01:
And that there should be a way for the estate to have somebody look at that and decide if the government acted appropriately or not.

[00:24:46] Speaker 03:
Your Honor, I have a response to this that really puts this case history in context.

[00:24:52] Speaker 03:
So the appellants in this case sought a petition for a partition in 2015 and submitted a survey to go along with that.

[00:25:02] Speaker 03:
And in the process of, there are a lot of moving pieces to accomplish a partition because there has to be evaluation of the land.

[00:25:12] Speaker 03:
The other trust owners have to be contacted.

[00:25:15] Speaker 03:
And in the process of this, the United States did tell the Halversons that they had no authority over fee land.

[00:25:23] Speaker 03:
And in fact, if you look at page SER69, they did tell

[00:25:30] Speaker 03:
the Halversons this, and Halversons acknowledged it in their own brief in writing.

[00:25:35] Speaker 03:
And the Halversons said, it was made clear by BIA that the minority feeholder interest would not be affected by partition.

[00:25:43] Speaker 03:
Instead, the minority fee holder could assert a claim against the entirety of allotment 1809 irrespective of partition.

[00:25:50] Speaker 03:
This was back in 2019.

[00:25:53] Speaker 04:
So there was ongoing communication between the parties about... I'm not sure if I'm missing something because I've read that same language too and I don't see how that gets us to that Mr. Halverson knew that after partition there'd still be a minority interest on his part of the land, not just in general, on the other part of the land.

[00:26:11] Speaker 03:
So what I read in that, Your Honor, is that they wrote, instead the minority fee holder could assert a claim against the entirety of allotment 1809.

[00:26:22] Speaker 03:
So that means all 799 acres, which they just now hold a trust title to, I guess, fee now to 690 acres.

[00:26:31] Speaker 03:
But that statement was acknowledgement that the fee holder would stay on the entirety of allotment 1809A.

[00:26:39] Speaker 03:
And so really the plaintiffs in this case had knowledge that this was not something that

[00:26:47] Speaker 03:
the government was able to do.

[00:26:48] Speaker 03:
And they also, in that same document, they explained that they were waiving the slight different valuation of 1809 and 1809A and 1809B.

[00:27:00] Speaker 03:
Land isn't fungible.

[00:27:01] Speaker 03:
It's not like widgets.

[00:27:03] Speaker 03:
Different land has different values and they were willing to accept a partition where they had slightly devalued land and that would still include a fee interest.

[00:27:14] Speaker 03:
And ultimately, the United States is not able to give away and has no authority over fee property.

[00:27:21] Speaker 03:
It only has authority over trust property.

[00:27:22] Speaker 01:
And I understand the argument, but in entering the settlement agreement and the settlement language that says, and I quote, Halverson's application is proper and is approved and granted.

[00:27:34] Speaker 01:
And then the government says, well, it's approved and granted to the extent we think it's lawful, except you didn't say

[00:27:42] Speaker 01:
There was no qualification to that language in the settlement agreement.

[00:27:45] Speaker 03:
Your Honor, I believe that this is really in the context of ongoing discussions between them and what the United States thought was an understanding based on statements even from the plaintiffs in this case that the fee would remain on both sides of the property.

[00:27:59] Speaker 03:
And ultimately, the plaintiffs in this case can seek partition of the fee property from their property in state court.

[00:28:10] Speaker 03:
So they could go and seek to be one over one owners.

[00:28:12] Speaker 01:
That was a question that I had.

[00:28:13] Speaker 01:
Would the state court have jurisdiction to be able to deal with land that... I mean, is it still trust land?

[00:28:23] Speaker 01:
I guess it's not.

[00:28:25] Speaker 03:
No, yes.

[00:28:26] Speaker 03:
It's no longer, especially now, it's no longer trust land because there's that fee holder interest and now the Halversons own the remainder of that in fee following the probate of the property.

[00:28:39] Speaker 03:
So as things stand right now, both of the owners of that property.

[00:28:43] Speaker 01:
But that also means that if they were to go to state court to get a partition, they're still stuck with what they think is the fundamental flaw of what they would be asking to partition because they think that they should get the whole in terms of acreage.

[00:28:55] Speaker 03:
Yes, that partition would still be on the 690 acres, not on anything over that partition line.

[00:29:05] Speaker 03:
So we request that this court affirm the district court.

[00:29:08] Speaker 03:
Thank you.

[00:29:09] Speaker 02:
Thank you, Ms.

[00:29:10] Speaker 02:
Chuck.

[00:29:12] Speaker 02:
Mr. Christ, let's put three minutes up, please.

[00:29:17] Speaker 00:
Thank you.

[00:29:18] Speaker 00:
Judge Forrest, as to your question, a state district court could not make determinations as to fee property that's on the Crow Indian Reservation.

[00:29:26] Speaker 00:
It has no jurisdiction to do so.

[00:29:29] Speaker 00:
Not that that's the remedy we're seeking here, but they could not do that.

[00:29:33] Speaker 02:
I want to talk a little... Just to pause you there and don't worry about the clock just for a second, but I want to... Could they bring that... Could your clients bring that kind of action in federal court then against the owner of this minority fee interest?

[00:29:47] Speaker 00:
in an attempt to partition that out of their property?

[00:29:50] Speaker 00:
Yes.

[00:29:51] Speaker 02:
Because the suggestion was made in the answering brief in a footnote saying, well, you can go to state court.

[00:29:55] Speaker 02:
You're saying, well, actually, you couldn't do that because it's on an Indian reservation.

[00:29:59] Speaker 02:
OK, but could you go to federal court to do that?

[00:30:02] Speaker 02:
Where the defendant here would essentially be the owner of the minority interest?

[00:30:09] Speaker 00:
I'm not sure on what basis you'd do that, Judge.

[00:30:11] Speaker 00:
I don't know that I've got an answer to you there.

[00:30:17] Speaker 00:
You're trying to, yeah, I just don't know that I have an answer for you.

[00:30:20] Speaker 00:
Go ahead and continue.

[00:30:20] Speaker 00:
Yeah.

[00:30:21] Speaker 00:
I want to go back and talk a little bit about the, just the process here, kind of the factual predicate.

[00:30:27] Speaker 00:
What happened here is the application was filed, the application was denied, my client appealed it up the chain, and in that process discovers that the basis for which they were originally denying it was false, that there was a solicitor's opinion in their own file, which we didn't discover until we got their file.

[00:30:46] Speaker 02:
Okay, but they corrected that piece of it.

[00:30:48] Speaker 00:
They did, but there was not then a decision that was made by the court.

[00:30:53] Speaker 00:
There was a settlement entered into between the parties.

[00:30:56] Speaker 00:
And so I believe we had fully exhausted all of the administrative remedies, settled the case, and what we're trying to do is get them to comply with what they agreed to do.

[00:31:13] Speaker 00:
Subject matter jurisdiction.

[00:31:14] Speaker 01:
Can I stop you for a second?

[00:31:15] Speaker 00:
Sure.

[00:31:16] Speaker 01:
Do you think that it was an obligation of the government under its trust duties

[00:31:21] Speaker 01:
to enter into the settlement or to, even if not, even if we don't say enter into the settlement, to basically do what the settlement was doing.

[00:31:29] Speaker 01:
Do you think that was a trust obligation?

[00:31:30] Speaker 00:
Absolutely.

[00:31:32] Speaker 00:
Absolutely.

[00:31:32] Speaker 01:
So it couldn't have exercised its discretion in any other way?

[00:31:36] Speaker 00:
Well, it, you know, correct, and I think maybe more to our point,

[00:31:42] Speaker 00:
Um, once they'd agreed that they need to set aside the agreement for a second.

[00:31:45] Speaker 01:
That's what I'm exploring.

[00:31:47] Speaker 01:
Set aside the agreement for step.

[00:31:48] Speaker 01:
Could they have exercised their discretion in any other way?

[00:31:51] Speaker 01:
And if your answer is no, why?

[00:31:52] Speaker 00:
Uh, I think, I think not.

[00:31:56] Speaker 00:
because the statute specifically says that they shall partition the property where they can do so to the benefit of the parties, and it's undisputed that it was to the benefit of all parties.

[00:32:07] Speaker 01:
Is there a possibility that they could have partitioned it a different way that also would have been to the benefit of the parties?

[00:32:13] Speaker 00:
I suppose in theory, but no one requested that it be partitioned in any other way, nor did anybody involved in the process object to the way in which it was being partitioned.

[00:32:23] Speaker 00:
So theoretically, I suppose yes.

[00:32:26] Speaker 00:
I think the subject matter jurisdiction in this case should turn on the claim that was actually pled in this case.

[00:32:34] Speaker 00:
And in that regard,

[00:32:37] Speaker 00:
Under what is commonly referred to as the Mitchell Doctrine, to create an actionable fiduciary duty of the federal government toward tribes, a statute must give the government pervasive authority over the issue, over the resource at issue.

[00:32:52] Speaker 00:
That is the case here.

[00:32:53] Speaker 00:
They have pervasive authority over the resource at issue.

[00:32:56] Speaker 00:
I think the most frustrating thing for my client at this point in time is, as I stand here, I'm not sure it has any remedy.

[00:33:03] Speaker 02:
And one other... About money damages, I mean, the government seemed to concede you could ask for that here.

[00:33:10] Speaker 00:
You know, they were not looking for money damages.

[00:33:12] Speaker 00:
They were looking for partition of property, some of which had been in Jack Halverson's family for years.

[00:33:19] Speaker 00:
And that's a unique thing on an Indian reservation.

[00:33:22] Speaker 01:
Why couldn't you bring an APA claim now?

[00:33:24] Speaker 01:
Like if we were to hold that there's no jurisdiction, why couldn't your clients pursue an APA claim under a theory

[00:33:32] Speaker 01:
agreeing to do one thing, at least under your theory, not doing the thing you agreed to is arbitrary and capricious.

[00:33:38] Speaker 00:
Well, I think they've said because sovereign immunity has not been waived for such a claim under these circumstances, is my understanding.

[00:33:47] Speaker 00:
So thank you for your time.

[00:33:50] Speaker 02:
Thank you.

[00:33:50] Speaker 02:
I want to thank both counsel for the helpful briefing and arguments, and also acknowledge both counsel of travel here from Montana to be with us today.

[00:33:57] Speaker 02:
We greatly appreciate that, and this case is submitted