[00:00:00] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:02] Speaker 01: My name is Benjamin Leonard. [00:00:03] Speaker 01: I'm a third-year law student at the University of Virginia, and I'm arguing on behalf of Mr. James Grill. [00:00:08] Speaker 01: My colleague Lauren Emrick will be arguing the rebuttal, and we'd like to reserve seven minutes for her. [00:00:14] Speaker 01: Mr. Grill's property is surrounded by the Tahoe National Forest. [00:00:19] Speaker 01: For about 10 years, from 1998 through 2007, Mr. Grill possessed a right of access through a Forest Service-issued special use permit. [00:00:27] Speaker 01: That permit expressly stated that it will be reissued for successive periods of 10 years, so long as he still needs the road for the purposes for which the permit is granted. [00:00:37] Speaker 01: But in 2008, the Forest Service refused to reissue that permit. [00:00:41] Speaker 01: Mr. Grill brought this Quiet Title Act suit to vindicate and clarify his access rights. [00:00:46] Speaker 02: We have three- Well, it refused to reissue it or put conditions on reissuing it. [00:00:54] Speaker 01: No, Your Honor, I understand the government's position to be that they refuse to reissue the permit, which they made clear in their April letter when they said that any. [00:01:01] Speaker 01: Well, unless you do X. Yes, Your Honor, but in grills, in grills, our submission, [00:01:09] Speaker 01: is that the Forest Services permit vested in grill an easement that was subject to conditions. [00:01:14] Speaker 01: One of those conditions was that he complied with the various regulatory schemes. [00:01:19] Speaker 01: And he did that, Your Honor, throughout this whole period of time. [00:01:22] Speaker 02: Do you think it was the permit that vested the easement rather than the ANILCA right of access and the other rights of access? [00:01:28] Speaker 01: Yes, Your Honor. [00:01:29] Speaker 01: Our theory of this case is that Anilka grants Grill a statutory right of access to his land, but that the permit is the embodiment of that easement, which makes sense based on the text of the permit, which grants him a right of way over this road. [00:01:43] Speaker 03: I don't understand that. [00:01:44] Speaker 03: I mean, I thought your argument was that Anilka recognized maybe a right that just exists in the world in property, but at least it statutorily exists under Anilka. [00:01:55] Speaker 03: But you would have said that existed without the permit too, right? [00:01:58] Speaker 03: I don't understand why the permit creates the easement now. [00:02:01] Speaker 03: It seems like Anilka creates the easement. [00:02:04] Speaker 01: Anilka, we agree, creates an easement. [00:02:06] Speaker 01: But our theory of this case is that the permit granted to grill an easement that was subject to reissuance every 10 years. [00:02:14] Speaker 03: But if he already has the easement, what does that add? [00:02:17] Speaker 01: It adds an irrevocable right that the Forest Service can't take away this easement. [00:02:24] Speaker 03: But Anilka already gave him that, right? [00:02:26] Speaker 01: Anilka gave him that right, but it's the Forest Service's position that they have taken away this easement and they've denied that he has a right to that. [00:02:32] Speaker 03: Well, I think they took away the permit. [00:02:34] Speaker 01: They took away the permit. [00:02:35] Speaker 01: And I guess that is kind of the core issue in this case. [00:02:38] Speaker 01: Our theory is that the permit was an easement. [00:02:41] Speaker 01: The government says that it's not. [00:02:42] Speaker 01: But if the permit's not an easement, I don't understand how Mr. Grill could have a right of access to his land, given that he would have to go through this whole other process now that they've terminated his... Well, right now. [00:02:56] Speaker 03: He doesn't have the permit right now, but I assume he's allowed to walk to and from his land right now. [00:03:00] Speaker 03: Is that right? [00:03:01] Speaker 01: That is our understanding that he's allowed to walk, but Anilka, the statute and the implementing regulations make clear that end holders have a right of access that's similar to how, that includes vehicle access, and that the court made that clear in Adams. [00:03:17] Speaker 01: For Grill to reasonably enjoy and access his land, he has to be able to go to it with a vehicle. [00:03:25] Speaker 03: And so you may have an argument that that's actually the scope of the easement, but I think this, [00:03:31] Speaker 03: appeal, as I understand it, is only asking us to say you have some easement. [00:03:35] Speaker 03: Is that right? [00:03:37] Speaker 01: That is certainly part of this appeal. [00:03:39] Speaker 01: I mean, I think the core issue in this appeal, Your Honor, goes to the statute of limitations issue and not so much the merits. [00:03:46] Speaker 02: Well, aren't they intertwined? [00:03:48] Speaker 02: Because at the bottom, this single question goes to both of them. [00:03:54] Speaker 02: That is, is there a right of access that's separate from the permit? [00:04:01] Speaker 02: If so, did the government ever deny it? [00:04:06] Speaker 02: Or did it deny it within a limitations period? [00:04:09] Speaker 01: Yes, Your Honor. [00:04:10] Speaker 01: I grant that these questions are intertwined. [00:04:13] Speaker 01: But on this motion to dismiss, Mr. Grill has adequately pled that the government did not deny his access or the existence of an easement until an April 2008 letter. [00:04:22] Speaker 01: The magistrate judge took judicial notice of two letters back when this issue was jurisdictional. [00:04:29] Speaker 01: And those letters, by their plain text, just don't make clear that the Forest Service was either not going to reissue his permit, or that they denied that he had a right of access to his land. [00:04:39] Speaker 01: That didn't come much later. [00:04:40] Speaker 03: But so if we agree with you, and we think that it's not till the later letter that there's some question about whether he still has an easement. [00:04:45] Speaker 03: I mean, I have a question for the other side about whether there's even adversity here, because I think maybe they actually agree there's an easement. [00:04:50] Speaker 03: But let's put that aside. [00:04:52] Speaker 03: Assuming we agree with you, there's no statute of limitations problem. [00:04:55] Speaker 03: All that you get from that is you can assert some claim to an easement. [00:04:58] Speaker 03: But you're not asking us to determine the scope of it, are you? [00:05:01] Speaker 01: No, Your Honor. [00:05:02] Speaker 01: We would urge the court to remand for the district court to conduct that review in the first instance. [00:05:08] Speaker 01: And the government actually agrees with that. [00:05:10] Speaker 01: In its initial opening brief in this case, it said that, ordinarily, appellate courts don't find facts in the first instance. [00:05:17] Speaker 03: And so if we agree with you, the case isn't time barred so you can seek some [00:05:21] Speaker 03: And maybe we could even say you have some easement under Anilka, and then remand to figure out everything else. [00:05:26] Speaker 03: Is that what we should do? [00:05:28] Speaker 03: Yes, Your Honor, I think so. [00:05:29] Speaker 03: And if we were going to do that, do you need any of your other theories? [00:05:33] Speaker 03: Like, if we say there is some easement under Anilka, and it's not time-barred to go back down to the district court to figure out everything else, do you need us to reach any of the other theories of easement? [00:05:43] Speaker 01: Yes, Your Honor. [00:05:43] Speaker 01: Well, I would not urge this court to find any other theories of easement. [00:05:48] Speaker 02: I mean, we think that- No, not yes. [00:05:51] Speaker 02: No, you don't need us to do anything else. [00:05:53] Speaker 01: Oh, apologies. [00:05:54] Speaker 01: Yes, I misunderstood. [00:05:55] Speaker 01: We do not need this court to do anything else other than reverse and remand for the district court to figure it out. [00:05:59] Speaker 02: One other thing is you seem to say that it was the license or the permit that created the easement and that it was essentially in perpetuity. [00:06:14] Speaker 02: But it says at the time of reissuance, the terms and conditions may be modified. [00:06:18] Speaker 02: and the conditions or stipulations added at the discretion of the Forest Service. [00:06:21] Speaker 02: So it's not that they're going to reissue the same permit. [00:06:24] Speaker 02: They never promised that. [00:06:26] Speaker 01: Yes, Your Honor, but they terminated the permit and refused to reissue it at all. [00:06:30] Speaker 02: Because he wasn't willing to comply with our condition, which was to have further IPA inquiries, NEPA inquiries. [00:06:39] Speaker 01: No, Your Honor, and I think that Mr. Grill's attorney's letter from February 2008 makes this clear. [00:06:46] Speaker 01: In 2006 and 2007, Mr. Brill was actively working with the Forest Service to go through the various regulatory processes to get this bridge built. [00:06:56] Speaker 01: The Forest Service ultimately approved those plans and then decided all of a sudden in October that they would require additional environmental analysis. [00:07:05] Speaker 01: The record does not reflect what actions Mr. Grill took after that point, but it's our submission that he was going to build the bridge. [00:07:14] Speaker 01: They cut it off. [00:07:15] Speaker 01: And they did not clarify until much later that they didn't think he had an easement or a right of access at all. [00:07:21] Speaker 01: And that's why there are so many facts in this case that have not come out. [00:07:25] Speaker 01: And that's why we think it was. [00:07:26] Speaker 02: Where did he, where in the complaint is there an allegation [00:07:33] Speaker 02: as to when the government actually denied that there was an easement at all. [00:07:44] Speaker 01: So that's at supplemental excerpts of record, I believe, 32 paragraph 36 on April 2nd. [00:07:50] Speaker 01: The defendants denied plaintiff the use of his amilka permit. [00:07:53] Speaker 02: That's the much later. [00:07:54] Speaker 02: It's just six months later. [00:07:55] Speaker 01: That's right. [00:07:55] Speaker 01: But that means that this action is not time barred and that it should be remanded for further consideration by the district court. [00:08:03] Speaker 04: I had one completely off-point question. [00:08:05] Speaker 04: What goes on – what does he do? [00:08:07] Speaker 04: Does he have a house there, a cabin, or what's going on? [00:08:09] Speaker 01: Yes, Your Honor. [00:08:09] Speaker 01: He lives on the property. [00:08:10] Speaker 01: Okay. [00:08:11] Speaker 01: Just curious. [00:08:11] Speaker 01: Thanks. [00:08:11] Speaker 01: Yes. [00:08:13] Speaker 01: I see that amount of time. [00:08:14] Speaker 01: If Your Honors don't have further questions, we ask for a reversal and a read-in. [00:08:18] Speaker 01: Thank you. [00:08:18] Speaker 01: Thank you. [00:08:29] Speaker 05: Good morning and may it please the Court. [00:08:31] Speaker 05: Kevin McCardell on behalf of the United States. [00:08:34] Speaker 05: The district court correctly held that Mr. Grill's QTA claim is time-barred. [00:08:39] Speaker 05: That decision can be affirmed under Rule 12b-6 standards, and the district court's judgment should be affirmed in any event, because Mr. Grill has failed to state a viable easement claim that's cognizable under the QTA. [00:08:53] Speaker 02: No, just to interrupt for a minute. [00:08:55] Speaker 02: I found it interesting that you haven't claimed any issue or claim preclusion, despite the fact that this is actually a thorough litigation. [00:09:02] Speaker 05: Well, I think the first lawsuit was dismissed for lack of standing. [00:09:08] Speaker 02: Lack of standing because he was found not to have been foreclosed upon. [00:09:13] Speaker 02: That's a fact. [00:09:15] Speaker 02: I don't actually know whether the rules about how lack of standing and preclusion interact apply to essentially facts. [00:09:24] Speaker 05: Potentially there could be an issue preclusion, not a claim preclusion. [00:09:28] Speaker 04: The foreclosure thing ended up being wrong, right? [00:09:30] Speaker 04: At least half wrong. [00:09:32] Speaker 05: I wouldn't say that, no. [00:09:33] Speaker 05: There's no evidence that he owns any of the property. [00:09:37] Speaker 05: Even now? [00:09:38] Speaker 05: We've not seen any evidence that he owns any of the property in his own name. [00:09:43] Speaker 05: At a minimum, that's a factual issue. [00:09:45] Speaker 05: But he's alleged that. [00:09:47] Speaker 03: For purposes of the complaint, we have to assume he has some of this property, right? [00:09:52] Speaker 05: Well, yeah. [00:09:53] Speaker 05: He alleges that he holds some unspecified title and titled interest in the property without specifying what it is. [00:09:59] Speaker 05: I think that's paragraph 11. [00:10:02] Speaker 05: He says he holds a titled interest in the property, but he's careful not to say what it is because all of the records suggest that even Lot 1 is owned by an LLC, which is a distinct entity under California law. [00:10:15] Speaker 05: But again, that's an issue that, you know, would come into play if there are going to be even more proceedings in this case. [00:10:24] Speaker 02: Go ahead. [00:10:28] Speaker 05: So the key issue for determining statute of limitations and when the claim accrued is adversity or a conflict. [00:10:36] Speaker 05: It depends when the government first takes an action that's inconsistent with the claimed easement rights. [00:10:41] Speaker 05: So if you go through some of the key cases like Mitchell, in that case, the government said, hey, your claim is time-barred because you've known for decades that we own the servient estate. [00:10:51] Speaker 05: And the court said, but that doesn't necessarily conflict with his claim that he holds an easement. [00:10:57] Speaker 05: If you go to McFarland 1, [00:10:59] Speaker 03: We know what the case is saying, I think. [00:11:02] Speaker 03: So today, we can put aside everything that people have said in the past. [00:11:06] Speaker 03: But today, the position is he has some easement. [00:11:11] Speaker 03: Are you disagreeing with that? [00:11:14] Speaker 05: Our position is not that he has an easement. [00:11:16] Speaker 05: We've stated this in the April 2008. [00:11:17] Speaker 03: Not that he does or not that he does not. [00:11:19] Speaker 05: No, he doesn't have an easement. [00:11:21] Speaker 05: What he has is a conditional right of access. [00:11:23] Speaker 05: If he's still an in-holder and has no other adequate means of access. [00:11:27] Speaker 05: If he meets those things, he has a statutory right of access. [00:11:31] Speaker 02: Doesn't our case law treat those statutory rights of access as easements? [00:11:36] Speaker 02: Property rights? [00:11:37] Speaker 05: I think there's some language along those lines in Adams 1. [00:11:39] Speaker 05: But in Adams 2, the court was very careful to say he has only a conditional right of access. [00:11:45] Speaker 05: He has to comply with the rules and regulations. [00:11:47] Speaker 03: Right, but he still has an easement for access. [00:11:51] Speaker 03: It might be regulated, but he has an easement, right? [00:11:53] Speaker 05: He only has it if he complies with the applicable permitting requirements. [00:11:57] Speaker 05: He doesn't have a property right now because he hasn't complied with the condition of getting a permit. [00:12:03] Speaker 03: Okay, so you're saying, let's just assume for these purposes that he owns some bit of land that he lives on. [00:12:09] Speaker 03: I know you might disagree with that, but I think if we construe the complaint that way, he lives on a bit of land that's surrounded by Forest Service. [00:12:15] Speaker 03: Are you saying he can't even walk to it? [00:12:18] Speaker 05: No, he can walk to it. [00:12:19] Speaker 03: OK, so he has an easement. [00:12:21] Speaker 03: Some sort of easement. [00:12:23] Speaker 05: No, because you can walk through a national forest without having an easement. [00:12:26] Speaker 03: OK, well, but the Forest Service could put up fences for other people, but they can't put up fences for him. [00:12:32] Speaker 05: That's true. [00:12:33] Speaker 05: Let's put it this way. [00:12:34] Speaker 05: He has the same right as any other member of the public to walk across Forest Service land. [00:12:38] Speaker 03: But an even bigger one, because for other people you could put up fences, but you can't stop him from getting to his bit of land. [00:12:47] Speaker 05: If there's no general restriction on crossing Forest Service property, he's free to walk across it. [00:12:51] Speaker 05: The problem comes in when he needs greater access than what's available to the public, like he does here. [00:12:57] Speaker 05: He wants to build a bridge. [00:12:58] Speaker 05: He wants to develop the road. [00:13:00] Speaker 05: then I understand that you might have reasons you can't develop a bridge or a road but he has are you really denying that he has some easement to get to this land he does not have an easement to get to the land he has a statutory right of access that's conditioned on compliance with the permitting requirements he has a conditional right of access the right of access is he I mean this kind of sounds like you say tomato I say tomato to me right of access that's [00:13:28] Speaker 04: That's easement. [00:13:29] Speaker 04: I mean, that's what that is. [00:13:31] Speaker 04: Whether it's statutory or whether it's common law, it's an easement if you have a right of access, right? [00:13:35] Speaker 04: Perhaps, but if... It's like a first-year property. [00:13:38] Speaker 05: If the statute says you have an easement or a right of access if you do X, you need to do X to get the easement. [00:13:44] Speaker 05: I mean, maybe it's just... He's got a regulated easement. [00:13:47] Speaker 04: Okay. [00:13:47] Speaker 05: Yeah. [00:13:48] Speaker 05: Well, okay. [00:13:50] Speaker 05: That raises another issue. [00:13:51] Speaker 05: If there's no dispute, and you might have been getting at this, Judge Friedland, if he agrees now, if his claim is, [00:13:58] Speaker 05: I have a right of access under ANILCO, call it an easement, call it a statutory right of access, so long as I get a new permit. [00:14:05] Speaker 05: If that's his claim, then there's no adversity, because that's what we've been saying since 2007. [00:14:09] Speaker 03: But it seems like at some point along the way you started using this confusing language that you're using today. [00:14:15] Speaker 03: He thinks he has an easement. [00:14:17] Speaker 03: At one point, you said, yes, you have an easement, but you have to regulate it. [00:14:20] Speaker 03: Then you started saying, you don't have an easement, which you just said to us. [00:14:22] Speaker 03: So no wonder he's confused. [00:14:24] Speaker 05: I don't think our position's been consistent in every single document. [00:14:27] Speaker 05: We've said, you have a right of access, but you have to comply with the permitting requirements and the regulations. [00:14:32] Speaker 05: That's entirely consistent in every document. [00:14:34] Speaker 03: Well, it seems like they're agreeing with that now. [00:14:36] Speaker 03: Maybe he didn't agree with that before, but it seems like everyone is agreeing with that. [00:14:39] Speaker 03: But now we've got to figure out the scope of it. [00:14:41] Speaker 03: And you were saying it's time for him to even figure that out. [00:14:45] Speaker 05: Well, I'd be astonished if he agrees that he has to seek a new permit. [00:14:48] Speaker 05: I mean, that's been the problem for the last 17 years. [00:14:50] Speaker 03: Well, I think his briefs now say he realizes he needs to do that. [00:14:53] Speaker 05: Yes, his claim is yes. [00:14:56] Speaker 05: It appears to go very far in that direction. [00:14:59] Speaker 05: And if that's true, if he's here today saying, I hold an easement provided that I comply with permitting requirements, then he may have an adversity problem. [00:15:07] Speaker 05: There may be no adversity that's necessary for a QTA claim. [00:15:11] Speaker 05: But that's not what he pled in the complaint. [00:15:14] Speaker 05: The complaint is very clear. [00:15:15] Speaker 05: It came on the heels of his takings claim when the court said, you don't have a takings claim because you haven't applied for a new permit. [00:15:24] Speaker 05: It hasn't been denied. [00:15:25] Speaker 05: At that point, he had two options, apply for the permit or bring this QTA claim. [00:15:31] Speaker 05: And he brought the QTA claim, the entire point of which is to establish this alleged property right to use the historic road and to cross Scotchman Creek without getting a new permit. [00:15:42] Speaker 05: And without any form of management by the Forest Service, that's clear from virtually every paragraph of the complaint. [00:15:49] Speaker 05: That's the claim that he brought. [00:15:50] Speaker 05: Now that claim is time barred, because we denied access in October 2007. [00:15:58] Speaker 05: That letter denied him access over Scotchman Creek with vehicles until he got a new authorization. [00:16:03] Speaker 05: And that letter wasn't vague. [00:16:05] Speaker 05: It wasn't confusing, because it was the centerpiece of both of his prior lawsuits. [00:16:09] Speaker 05: He came in the CFC, the Court of Federal Claims, and said, [00:16:12] Speaker 05: that letter by denying me access without a new authorization. [00:16:16] Speaker 02: How was the court's conclusion? [00:16:17] Speaker 02: It didn't, because it didn't deny him access. [00:16:19] Speaker 02: I wonder why you don't have a preclusion problem. [00:16:22] Speaker 05: No, it did deny him access until he got a new permit. [00:16:25] Speaker 02: But he said there wasn't a final decision denying him access. [00:16:28] Speaker 02: That was the conclusion. [00:16:29] Speaker 05: Because we gave him the option of applying for a new permit. [00:16:33] Speaker 05: And in fact, in Adams, too, the court made the same point. [00:16:36] Speaker 05: said, when the Forest Service subjects your land to a permitting requirement, it's not a taking because of the possibility that you might get the permit. [00:16:43] Speaker 05: So going back to the initial point of adversity, there was clearly adversity in October 2007. [00:16:50] Speaker 02: Let me read from the federal claims decision. [00:16:53] Speaker 02: The court concludes that Groh never received a final decision from the Forest Service regarding the extent of permissible access to the property. [00:17:01] Speaker 02: None of the agency's actions imposed definable limits on Groh's access [00:17:05] Speaker 02: or foreclose the possibility that he permitted access if he applied with the applicable procedures and conditions. [00:17:12] Speaker 02: So why isn't that conclusion binding on you as well now and says that there was no denial of access as such? [00:17:27] Speaker 02: up to this point. [00:17:28] Speaker 05: Well, I think the last sentence is pretty important. [00:17:32] Speaker 05: It says, provided that he complies with applicable permitting requirements. [00:17:36] Speaker 05: And the court also said, you know, we reimposed the permitting requirements with which he was always required to comply. [00:17:43] Speaker 05: So the adversity here all comes down to the issue of whether he has to get a new permit or not. [00:17:49] Speaker 05: That's been the problem to get access back. [00:17:51] Speaker 05: That's been the problem since 2007. [00:17:53] Speaker 05: And we told him that he needed to get a new permit in that letter. [00:17:58] Speaker 02: At most, the Forest Service eliminated a single bridge design, which did not narrow the scope of gross access in a definable manner. [00:18:07] Speaker 02: The Forest Service exercise of discretion rejected a single bridge design, not an entire right of access. [00:18:13] Speaker 02: So I mean, I started by asking you about preclusion. [00:18:17] Speaker 02: And why isn't this preclusion? [00:18:18] Speaker 05: Well, because the court goes on in that case. [00:18:20] Speaker 05: And we quote from it in our brief. [00:18:22] Speaker 05: It says, they denied access. [00:18:25] Speaker 02: The officer has never terminated Grills' alleged easements, to the extent that they existed. [00:18:30] Speaker 05: Right. [00:18:31] Speaker 05: It reimposed the permitting requirement, though. [00:18:35] Speaker 02: It reimposed the what requirement? [00:18:37] Speaker 05: The requirement that he get a new permit. [00:18:39] Speaker 05: I mean, there's no question that the letter denied him access. [00:18:44] Speaker 05: That's what it says. [00:18:45] Speaker 05: And that's what it did. [00:18:46] Speaker 05: He hasn't accessed the property since then. [00:18:48] Speaker 05: And there was no subsequent denial of access in April 2008. [00:18:51] Speaker 05: He denied him access until he got a new authorization. [00:18:56] Speaker 05: And it's interesting, because if you look at that April 2008 letter, it doesn't really add anything new. [00:19:03] Speaker 05: It reiterates that his permit expired at the end of 2007. [00:19:08] Speaker 05: It says he's going to need a new [00:19:10] Speaker 05: EA, which is what the October 2000 letter said, it said the EA would have to address the amended forest plan and new species, which the October letter said. [00:19:20] Speaker 05: And that's basically it. [00:19:21] Speaker 05: It was the October letter that denied access and first imposed the requirement that he get a new authorization. [00:19:28] Speaker 05: And because that conflicts with his claim, you have the necessary adversity at that point. [00:19:33] Speaker 05: Now, it would be different [00:19:35] Speaker 05: If he had some other easement claim, if he agrees, like I said initially, if he agrees that he needs to get a permit, then it's a different story. [00:19:42] Speaker 05: But we have to go with the claim that's pled. [00:19:44] Speaker 05: And the claim that's pled is, I have a right to use this road without getting a new authorization and without subject to your management approval. [00:19:52] Speaker 03: And he was on notice that we... If we read the complaint as saying that, but also just saying, I have some easement and somehow the government is denying that. [00:20:02] Speaker 05: We're saying that his right of access is conditional. [00:20:05] Speaker 05: If he's an in holder, we've never denied that if he's an in holder, it may just be a semantic thing, but if he's an in holder and has no other right of access, he does have access where the house is on plot one. [00:20:16] Speaker 05: He has an easement to the road there. [00:20:18] Speaker 05: Whether that's insufficient and if he still owns the property, he has a conditional right of access provided he complies with the regulations. [00:20:26] Speaker 05: And the regulations require a permit. [00:20:28] Speaker 05: The statute says that [00:20:30] Speaker 05: Secretary shall grant a right of access subject to. [00:20:34] Speaker 03: So I guess this is another way of asking the adversity thing, but if he wins or loses this case, does it make any difference? [00:20:40] Speaker 03: I mean, he still has the Anilka right and has to get a permit. [00:20:45] Speaker 05: He has to get a permit no matter what. [00:20:47] Speaker 05: So the litigation from if his objective is to get a ruling that he has a right of access without a permit, the litigation is pointless. [00:20:55] Speaker 03: If so, he needs a permit to build a bridge. [00:20:58] Speaker 03: But is there any [00:21:00] Speaker 03: consequence right now to like whether he can walk to his land, to where he says is his land. [00:21:07] Speaker 05: No, I don't think there's ever been any restriction on walking through public property like any other member of the public can. [00:21:12] Speaker 02: What about using the historic road until you get to the bridge? [00:21:17] Speaker 05: With vehicles that would that would trigger the permitting requirements because you need to modify it. [00:21:23] Speaker 02: But the letter only talks about the bridge. [00:21:27] Speaker 05: I mean [00:21:28] Speaker 05: He says he has access. [00:21:30] Speaker 02: He says you can't cross the bridge. [00:21:31] Speaker 02: He doesn't say you can't use the road. [00:21:33] Speaker 05: Well, you can't use the road to get to the property without crossing Scotchman Creek. [00:21:37] Speaker 02: And he says there was a historical... You can't get all the way there, but he can get part way there, right? [00:21:42] Speaker 05: I don't know if he can get part way there in a car, but let's assume so. [00:21:45] Speaker 05: I mean, that doesn't give him access to the property, which is the essence of his claim. [00:21:49] Speaker 05: He doesn't want to drive down to Scotchman Creek. [00:21:51] Speaker 05: He wants to cross it to get to what was formerly his property. [00:21:56] Speaker 05: And we said in the letter, you can't do that until you get a new permit. [00:21:59] Speaker 05: That was a conflict. [00:22:01] Speaker 05: That conflicts with the claim that he's pled in the complaint. [00:22:04] Speaker 05: It started the clock. [00:22:05] Speaker 03: And do you deny that he's using this property right now? [00:22:12] Speaker 05: I don't know. [00:22:13] Speaker 05: Based on the facts that I know, he has a house on lot one on the other side of the South Yuba River with a separate easement that gives him access to public roads. [00:22:24] Speaker 03: So you think he's getting there a different way right now? [00:22:27] Speaker 05: If he still lives in that house, he definitely has access to the property. [00:22:31] Speaker 05: He's trying to get to the part of Lot 2 that's, I'm not sure if I have my directions right, but let's say it's south of the South Yuba River, which runs through Lot 1. [00:22:41] Speaker 05: He definitely has access to his house on the north side of the river. [00:22:45] Speaker 05: He's trying to get to that part. [00:22:47] Speaker 05: on the south side. [00:22:49] Speaker 04: I want to kind of step back and look big picture just for a second. [00:22:52] Speaker 04: So the district court did not decide whether he states a claim for denial of an easement. [00:22:58] Speaker 04: It just decided the statute of limitations question, right? [00:23:01] Speaker 04: Right. [00:23:01] Speaker 04: So if we disagree with you in the statute of limitations question, on the rest of it, you're basically asking us, it's your alternative argument that we should dismiss it for failure to state a claim based on the pro se complaint that he filed before he had counsel, right? [00:23:16] Speaker 04: Because that's the only complaint there is. [00:23:17] Speaker 04: It's the pro se complaint that filed before counsel came in on appeal to represent. [00:23:20] Speaker 04: Right? [00:23:21] Speaker 05: That's the only complaint. [00:23:22] Speaker 04: So I mean, wouldn't it be fairer, honestly, if we disagree with you on the statute of limitations question to send it back to the district court to give him a chance to do it again with a lawyer this time now that he's got one? [00:23:34] Speaker 05: I don't know. [00:23:34] Speaker 04: He's never requested me. [00:23:36] Speaker 04: Because you're trying to read this complaint in a way that's in the light least favorable to him, which is, of course, the opposite of the standard. [00:23:43] Speaker 05: I would respectfully disagree. [00:23:44] Speaker 05: I think every single paragraph of that complaint nearly. [00:23:48] Speaker 05: That's an overstatement. [00:23:49] Speaker 05: Large portions of it make the point that he has an alleged right to use the historic road without... My whole point about pro se, though. [00:23:57] Speaker 04: I mean, the district court didn't deal with this. [00:23:59] Speaker 04: The magistrate judge, whoever it was, didn't deal with this. [00:24:02] Speaker 04: If we disagree with you on the statute of limitations, isn't the right thing to do to send it back and give him a chance to try again with counsel this time, when somebody maybe gives him legal advice on what the right way to allege it is? [00:24:12] Speaker 05: It might be if we knew what he was planning to allege. [00:24:14] Speaker 05: I mean, he has counsel. [00:24:15] Speaker 05: You never know somebody's planning to allege until they do it. [00:24:17] Speaker 05: Well, what is the claim that he wants to pursue? [00:24:19] Speaker 05: Is it the claim that he has a statutory right of access? [00:24:22] Speaker 04: Here's my answer to that. [00:24:23] Speaker 04: I don't know, and neither do you. [00:24:25] Speaker 04: And that's why the district court should deal with it in the first instance. [00:24:28] Speaker 05: The remand to the district court [00:24:30] Speaker 05: to address an unspecified complaint. [00:24:32] Speaker 05: To give him a chance to amend. [00:24:34] Speaker 05: But the district court already gave him a chance to amend once. [00:24:37] Speaker 05: But he's got a lawyer. [00:24:39] Speaker 04: I don't know how many pro... 20% of my caseload is pro se, okay, as a district judge. [00:24:44] Speaker 04: 20% of it is pro se. [00:24:45] Speaker 04: The difference between a pro se complaint, even a detailed one like this, and one by a lawyer, it's not night and day. [00:24:51] Speaker 04: It's like Jupiter and Alpha Centauri. [00:24:58] Speaker 05: Right. [00:24:58] Speaker 05: I would also point out that in the first case when he moved for reconsideration, the district judge even there said, we're not talking about your average pro se litigant. [00:25:06] Speaker 05: He's a pretty savvy litigant. [00:25:07] Speaker 04: And he's even more savvy now because we've been at this for- I'm just going to tell you, I got way more experience with you than pro se litigants. [00:25:13] Speaker 04: And the way more savvy pro se litigant is still eons behind a litigant with a lawyer. [00:25:19] Speaker 04: I think- Even an average lawyer. [00:25:20] Speaker 04: Fair enough. [00:25:21] Speaker 04: He doesn't have average lawyers now. [00:25:22] Speaker 05: Fair enough. [00:25:22] Speaker 05: But I think it's also fair to say, well, why are we remanding? [00:25:25] Speaker 05: To plead what? [00:25:26] Speaker 05: Just to give him another chance to do what? [00:25:30] Speaker 05: Because as we talked about initially, no matter what, even if he wins on a common law easement, he's got to get a permit. [00:25:36] Speaker 05: That's what Fitzgerald Living Trust says. [00:25:38] Speaker 05: It says, I see I'm over time. [00:25:40] Speaker 05: I'll just finish up if I may. [00:25:43] Speaker 05: It says, your common law easement claim is subject to the permitting requirements. [00:25:48] Speaker 05: He always has to get a permit. [00:25:49] Speaker 05: So why are we remanding? [00:25:53] Speaker 05: What would be the point? [00:25:54] Speaker 05: He should apply for the permit. [00:25:55] Speaker 05: That's what we've been saying, and that's [00:25:57] Speaker 05: what I think would be the fairest result for everybody. [00:25:59] Speaker 04: I'll give you just a short answer to that. [00:26:01] Speaker 04: It's that the government's various positions on this over the years have not been a model of consistency, as Judge Priemann was discussing before. [00:26:08] Speaker 04: That's why. [00:26:09] Speaker 04: That's the reason. [00:26:11] Speaker 04: So you asked me a question, I've answered it. [00:26:14] Speaker 04: My time is now up. [00:26:15] Speaker 04: Thank you. [00:26:17] Speaker 03: Thank you. [00:26:17] Speaker 03: So we have time for rebuttal. [00:26:28] Speaker 00: Good morning, Your Honors. [00:26:29] Speaker 00: May it please the Court, Lauren Emerick, also a third-year law student at the University of Virginia for Mr. Grill. [00:26:36] Speaker 00: I want to start by clarifying that Mr. Grill does own the property. [00:26:38] Speaker 00: He alleges it at paragraph 4 in his complaint. [00:26:42] Speaker 00: He even lists the parcel numbers, 83 and 84, that this is residing within the Tahoe National Forest in Washington, California. [00:26:50] Speaker 00: And it's clear, actually, that if you look at the map that he attached to his complaint, that there are these two parcels, 83 and 84, [00:26:58] Speaker 00: 84 is allegedly where he resides and might have outside access. [00:27:04] Speaker 00: But 83, in order to have a reasonable access to that parcel, you have to cross over Forest Service land. [00:27:10] Speaker 00: And so that is the basis for his easement claims here. [00:27:13] Speaker 03: So paragraph four says he resides there. [00:27:15] Speaker 03: I don't know that it actually says he owns it. [00:27:17] Speaker 03: Does that matter for an easement? [00:27:20] Speaker 03: I don't actually know the answer to whether he needs to own it or whether living there is enough. [00:27:26] Speaker 00: Well, frankly, in order for him to have a reasonable use and enjoyment of his property, that's what's required under Anilka. [00:27:33] Speaker 00: And because he resides there, in order to have reasonable use and enjoyment of that property, he would have to have reasonable access to get there. [00:27:41] Speaker 04: Paragraph 5 says he has a titled interest. [00:27:43] Speaker 04: Now, I'm not sure I know what that means. [00:27:45] Speaker 04: But if you give the complaint the extra liberal reading that's required for a pro se, letting it at least suggest ownership. [00:27:51] Speaker 00: That's right, Your Honor. [00:27:52] Speaker 00: And he has maintained to this day that he owns the property. [00:27:55] Speaker 00: and that that has not changed throughout the course of this litigation. [00:27:58] Speaker 00: And I also want to address the question about preclusion, because this, he had brought the APA suit previously, but that reached to no final judgment on the merits. [00:28:08] Speaker 00: Before yourself, Judge Berzon, in his previous lawsuit, that was about a procedural process claim, but now here he is trying to vindicate his property rights properly within the quantitative act. [00:28:19] Speaker 02: Why that language I was reading from, the Court of Claims action, [00:28:23] Speaker 02: which would run against the government with regard to whether or not there was ever an actual denial of his right of access. [00:28:33] Speaker 02: It's clear that there was no final judgment and therefore no takings claim because there was never a denial by the agency of his right to access or his easement. [00:28:48] Speaker 02: So why isn't that preclusive against the government? [00:28:50] Speaker 00: That's right, Your Honor. [00:28:51] Speaker 00: That came from his taking his time in the Court of Federal Claims. [00:28:56] Speaker 02: He never argued a preclusion. [00:29:01] Speaker 00: No, we didn't initially argue that this was a preclusive issue. [00:29:05] Speaker 00: But in thinking about it here today, it is directly contrary to the Forest Service's current position, which is that they terminated his right of access in April of 2008. [00:29:14] Speaker 00: The government appears to maintain that he does not have an easement. [00:29:19] Speaker 02: In fact, the government was just speaking to the fact that he might try to distinguish, as I understand it, between a statutory right of access and an easement. [00:29:29] Speaker 02: And there may be something to that. [00:29:32] Speaker 02: An easement is usually an ascertainable, not just some right of access, but an ascertainable matter of access. [00:29:39] Speaker 00: Yes, that's right, Your Honor. [00:29:40] Speaker 00: And that's why Mr. Grill's theory here is that under Anilka, he has a guaranteed right of access. [00:29:46] Speaker 00: But it's the permit process, which he is required to go through, according to the Forest Service's own regulations. [00:29:52] Speaker 00: It's getting that special use authorization that is codifying his rights under ANILCA. [00:29:57] Speaker 00: That is saying, here is your property right. [00:29:59] Speaker 00: Here is your right to access your property in this manner, subject, yes, to reasonable regulations. [00:30:05] Speaker 00: But that's why his theory is that that permit that he was issued was effectively an easement document. [00:30:10] Speaker 00: And that's where the adversity in this case comes from. [00:30:13] Speaker 00: Because as we just heard from the government, that's not true. [00:30:15] Speaker 02: But if that's true, then why don't you lose the limitations issue? [00:30:17] Speaker 02: Because the October letter did seem to deny that he would continue to have the permit. [00:30:30] Speaker 02: Unless he did certain things. [00:30:33] Speaker 00: The October 2007 letter was discussing the regulations that are being imposed on him throughout this permitting process, such as getting more environmental assessments done, such as when he can and can't take vehicles across that bridge. [00:30:46] Speaker 00: But as this court has held in McFarland, that sort of mild interference with his use of the right of way, that's not enough to start the accrual of the statute of limitations. [00:30:56] Speaker 00: There has to be an assertion of an adverse property interest by the government [00:31:02] Speaker 00: And on Mr. Girl's theory of his permit as an easement, that didn't come until the April 2, 2008 letter when the government said, your permit is not being reissued. [00:31:12] Speaker 00: You have to file for a new one subject to a new non-existing use. [00:31:17] Speaker 00: And so I would reiterate that this court does not even need to reach the merits here today. [00:31:22] Speaker 00: Judge Kennelly, you were perfectly right to point out that this was a pro se complaint and that we should be drawing inferences in his favor. [00:31:29] Speaker 00: And the district court here [00:31:31] Speaker 00: failed to do that with regard to the statute of limitations and did not even reach the merits in the first instance. [00:31:36] Speaker 00: And so the proper course of action would be to remand to allow assessment of the merits in the first instance on 12b6. [00:31:44] Speaker 03: Do you think we should be remanding to allow him to amend or just remanding? [00:31:49] Speaker 03: What should we say when we remand? [00:31:51] Speaker 00: We would ask that you remand to hear from his complaint on the face of his pro se complaint with perhaps the possibility of amendment [00:32:01] Speaker 00: but to hear properly on 12b6 the plausibility of his claims. [00:32:06] Speaker 00: And we maintain that he has plausibly pled theories of an easement here, but it would be proper for this to be heard in the first instance on the district court. [00:32:15] Speaker 00: And even with regard to the statute of limitations, it's our position that these claims are not time barred. [00:32:21] Speaker 00: We're in the post-Wilkins era where this is not a jurisdictional question. [00:32:25] Speaker 00: and so on 12b6, all that matters is whether it's plausible that his claims are timely, and we submit that they are, for the reasons stated above. [00:32:33] Speaker 00: So if there are no further questions, we ask that you reverse and remand. [00:32:37] Speaker 00: Thank you. [00:32:39] Speaker 03: Thank you, both sides, for the helpful arguments, and thank you to the students for taking this case pro bono. [00:32:43] Speaker 03: We really appreciate your excellent advocacy. [00:32:46] Speaker 02: Very challenging, too, so thank you. [00:32:49] Speaker 03: Okay, we are going to take a five-minute break before the next case.