[00:00:00] Speaker 06: Good morning and welcome to the Ninth Circuit. [00:00:03] Speaker 06: I'm Michelle Friedland and I'm very pleased to be sitting with Judge Bybee and Judge Miller. [00:00:07] Speaker 06: We're all very happy to be here in Alaska and thank you for joining us this morning. [00:00:12] Speaker 06: Our first case on calendar is Weibel Ranches versus United States 22-35703. [00:00:19] Speaker 06: Each side will have 15 minutes. [00:00:23] Speaker 00: Thank you, your honor. [00:00:23] Speaker 00: May it please the court, counsel. [00:00:26] Speaker 00: My name is Matthew Kelmanson, and I am representing the Weibel Plaintiffs. [00:00:30] Speaker 00: The issue on appeal as it pertains to my client concerns the Big Summit Ranch easement, which is an easement that was granted to the United States in 1966. [00:00:39] Speaker 00: It traverses my client's property to access some BLM grazing lands in Crook County, Oregon. [00:00:47] Speaker 00: I'm happy to answer any questions the court has about Wilkins or its impact on this case, but what I'd like to do in the short time I have is jump to the court's, excuse me, the government's arguments for affirmance, notwithstanding Wilkins. [00:01:04] Speaker 00: And as I read it, there are essentially two arguments that are being made. [00:01:08] Speaker 00: There's a broad argument and a more narrow focused argument. [00:01:11] Speaker 00: And the broad argument is that the mere recording of the easement in favor of the government created a cloud on title, which put any reasonable landowner on notice that any claim arising out of that easement had to be brought within the statute of limitations period, which is 12 years. [00:01:30] Speaker 00: The more focused version of that argument is that the word licensee in that easement put a reasonable landowner on notice that the government could take a position that it had never taken. [00:01:43] Speaker 00: And that position is that the big Summit Ranch easement could be open for public use. [00:01:49] Speaker 00: And I know your honors are familiar with the facts, but very briefly, [00:01:52] Speaker 00: This is an easement that was granted in 1966, and it has been alleged, and again, this is a pleading motion. [00:02:00] Speaker 00: We're past the idea that this is a jurisdictional issue. [00:02:03] Speaker 00: It has been alleged that that road has been closed to the public before, during, and after the creation of the easement. [00:02:12] Speaker 00: And the only time it was opened was in 2021 after a dispute arose regarding the Teters Road easement, which you'll hear about next. [00:02:20] Speaker 00: Now the problem with both versions of this argument is that they're based on the wrong accrual standard. [00:02:26] Speaker 00: They are based on fee simple cases where the court has correctly stated that if there is a cloud on title, that is enough to put a landowner on notice that there's this other entity that has a claim to that property. [00:02:44] Speaker 00: And so when we're talking about arguments over fee simple, a cloud on title could be enough. [00:02:50] Speaker 00: But this is not an argument about fee simple. [00:02:53] Speaker 00: This is an argument about the scope of an easement. [00:02:56] Speaker 00: And in this court's own words, in the McFarland case, an easement, of course, is different. [00:03:03] Speaker 00: And the reason the easement is different is because the landowner and the holder of the easement would understand there's a cloud on title, but that could be completely consistent with the party's understandings about the scope of that easement. [00:03:16] Speaker 00: For example, in this case, if everyone agreed that this easement did not allow for private rights, it doesn't matter that there is a quote unquote cloud on title because the landowner would have no reason to know that they have to bring a claim because there is no dispute at that point. [00:03:33] Speaker 06: So can I ask though, the government was using the access, right? [00:03:38] Speaker 06: The government was using the easement and so were what you would call licensees even, like people who were coming to fix things, is that right? [00:03:45] Speaker 00: The people who were using it according to the allegations and there were declarations that were submitted your honor because at the time this was a jurisdictional issue but according to the allegations it was used by the government for administrative purposes and essentially for fire access and that's it there was a gate that closed it there was no trespassing signs and it stayed that way for roughly 60 60 years so there were [00:04:08] Speaker 00: The lands were used for grazing purposes by the owner of the Big Summit Ranch, my clients. [00:04:14] Speaker 00: But other than that, it was just used for administration purposes. [00:04:17] Speaker 00: It wasn't used just generally for the public with open fences. [00:04:21] Speaker 02: And were there, to your knowledge, were there any licensees that ever came on the property? [00:04:27] Speaker 02: To my knowledge, no. [00:04:28] Speaker 02: It certainly wasn't alleged, your honor. [00:04:29] Speaker 02: And what do you think licensees meant? [00:04:32] Speaker 02: I mean, since obviously that grant was there, and that's been there since it was first granted in 1966. [00:04:38] Speaker 02: So what do we think licensees meant? [00:04:40] Speaker 02: And does Oregon law suggest anything about licensees? [00:04:45] Speaker 00: So to take those in turn, Your Honor, there is grazing that is going on on these island parcels. [00:04:51] Speaker 00: So arguably licensees could mean somebody who had a permit or a license to use these BLM lands for that specific purpose. [00:04:58] Speaker 00: They would need to get there. [00:05:00] Speaker 00: In this case, that is already my client who owns the land, but you could imagine a situation where maybe somebody else has a permit to cross that land. [00:05:09] Speaker 00: Again, that wasn't pled. [00:05:10] Speaker 00: The second question about does Oregon law have anything to say about this? [00:05:14] Speaker 00: The answer is the government hasn't cited any. [00:05:17] Speaker 00: Again, this is a question about the statute of limitations that was raised on a pleading motion. [00:05:22] Speaker 00: The word licensees in an easement doesn't have any particular meaning in Oregon? [00:05:27] Speaker 00: It doesn't have a particular meaning that would say open to the public that I'm aware of, Your Honor. [00:05:31] Speaker 00: I don't know of a single Oregon case that states that an easement in favor of the government means, excuse me, an easement in favor of the government that allows access to licensees means the public. [00:05:42] Speaker 02: Does Oregon have anything to say about licensees in a contract between two private parties? [00:05:47] Speaker 00: I'm unaware of any case, Your Honor, that would say licensees means the public. [00:05:52] Speaker 06: What about Curtis and Nevada Mines? [00:05:54] Speaker 06: United States versus Curtis and Nevada Mines? [00:05:56] Speaker 00: Yes, Your Honor. [00:05:56] Speaker 00: So Curtis Nevada Mines was a case where this court held that the word licensee as used in the Multiple Use Act in a specific statute was ambiguous. [00:06:08] Speaker 00: And that case had to do with lands held by the government in fee simple. [00:06:12] Speaker 00: So these are public domain lands. [00:06:14] Speaker 00: And the question was, does the public have access to those lands under the Multiple Use Act? [00:06:18] Speaker 00: The word licensees and permittees is in that statute. [00:06:21] Speaker 00: The court said the language is ambiguous. [00:06:23] Speaker 06: But then went on to say it's somewhat ambiguous, but then said the best interpretation is it includes the public. [00:06:31] Speaker 00: Correct, Your Honor. [00:06:31] Speaker 00: And it did that by looking at the legislative history, and it looked at the historical use of lands that are in the public domain over the last 100 some odd years. [00:06:41] Speaker 00: This is an easement. [00:06:42] Speaker 00: This is not lands in the public demands. [00:06:44] Speaker 00: But if we did the same kind of analysis here, [00:06:47] Speaker 00: And again, let's remember that this is a statute of limitations case. [00:06:50] Speaker 00: We're not talking about the merits, but if we did the same type of... Could we be talking about the merits though? [00:06:55] Speaker 06: Is there anything else that would be introduced? [00:06:57] Speaker 06: I mean, couldn't we affirm on any ground and why couldn't we affirm on the merits? [00:07:02] Speaker 00: Because if we found that licensee was ambiguous, as the court did in Curtis Mines, we would then have to look into what the parties intended. [00:07:10] Speaker 00: That's how Oregon would evaluate what this easement meant. [00:07:13] Speaker 00: So we would look at the language, if it's ambiguous, and Curtis Mines says the word is ambiguous, at least as used in a statute, and then looked at historical use, we would do the same analysis here. [00:07:23] Speaker 00: And that information is not in front of you, Your Honor. [00:07:24] Speaker 00: The government never put it in, because this was a pleading motion that was decided on jurisdictional grounds. [00:07:30] Speaker 00: So again, if we were to do the analysis that the court, excuse me, that the government asks to do, which is the Curtis-Mind analysis, we would need evidence. [00:07:39] Speaker 00: It would be a disputed factual issue. [00:07:41] Speaker 06: And is there evidence that you could put in? [00:07:43] Speaker 00: We could put in, in fact, we have put in evidence. [00:07:45] Speaker 00: We've put in evidence that the historical use was to prohibit public access. [00:07:49] Speaker 00: That's what we put in when this was a jurisdictional motion, Your Honor. [00:07:52] Speaker 06: And is there other evidence? [00:07:53] Speaker 06: I mean, I guess my question still remains. [00:07:55] Speaker 06: Is there more that the record would have if we send it back instead of just deciding it now? [00:08:00] Speaker 00: Perhaps, I mean, we would have to do a little bit more digging into what the parties intended at the time. [00:08:04] Speaker 00: So to the extent that those people are still around or the government has that type of evidence, there could be discovery. [00:08:11] Speaker 00: But we don't know. [00:08:12] Speaker 00: And is land being used today for public access? [00:08:15] Speaker 00: The government has opened up the fence. [00:08:18] Speaker 00: So the road can be used by public access. [00:08:21] Speaker 00: And that's what led to this lawsuit. [00:08:22] Speaker 00: My clients then brought this lawsuit because the public was using it. [00:08:25] Speaker 00: There was vandalism. [00:08:26] Speaker 00: There was hunting going on in their lands. [00:08:28] Speaker 00: There was trespass. [00:08:29] Speaker 00: It's essentially the same as Wilkins. [00:08:31] Speaker 00: And that's what got us to this point. [00:08:33] Speaker 00: And I'm going into my co-counsel's time, your honor. [00:08:35] Speaker 06: That's fine. [00:08:36] Speaker 06: We'll reset the clock. [00:08:37] Speaker 00: All right, thank you. [00:08:47] Speaker 05: May it please the court, I am Julie Smith, appearing on behalf of South Fork Ranch LLC. [00:08:53] Speaker 05: And an issue in my client's case is the Teeters Road [00:08:57] Speaker 05: easement and on appeal are two claims, the second claim and the first claim. [00:09:02] Speaker 05: And I'm going to start with the second claim and an issue in the second claim is whether that second claim states it is a quiet title action claim, whether jurisdiction lies under the Quiet Title Act. [00:09:15] Speaker 05: And the one little bit I would like to... [00:09:19] Speaker 05: in part, if I can, with the limited time we have here, is that that claim really is not materially different than the claim at issue in Wilkins or the Weibel claim, because it seeks the same essential declaration of easement rights. [00:09:36] Speaker 05: It seeks a declaration that the public access is not allowed. [00:09:41] Speaker 04: How does it differ from the relief that you're seeking in the first claim? [00:09:45] Speaker 05: How does it seek from the, it differs from the relief in the first claim because the first claim is limited just to the gap in the easement. [00:09:54] Speaker 05: It is a quiet title action just to the gap in the easement. [00:09:57] Speaker 05: And the second claim is seeking a declaration that the public access is not allowed. [00:10:02] Speaker 04: Well, it's seeking, I mean, I'm looking at paragraph 23, it's seeking a declaration that there was about a 2015 agreement, right? [00:10:12] Speaker 05: that as a result of that 2015 agreement, that public access is not allowed. [00:10:18] Speaker 04: So, I mean, in your view, is that equivalent to a declaration that the government does not have an easement on this road? [00:10:26] Speaker 04: Or is it something distinct from that? [00:10:29] Speaker 05: Well, the declaration that it is seeking is pretty narrow, that public access is not allowed as a result of that agreement. [00:10:38] Speaker 05: Part of that agreement was, I think, [00:10:42] Speaker 05: that the government would still have administrative access to the easement. [00:10:48] Speaker 05: I think that's more in the nature of a license, but I think that's what still needs to be sorted out as part of that. [00:10:53] Speaker 05: But the actual, the way the complaint is currently drafted, it only seeks a narrow declaration that public access is not allowed. [00:11:02] Speaker 04: And it's your view that the waiver of immunity that allows you to get that relief against the government is the Quiet Title Act? [00:11:07] Speaker 04: Yes. [00:11:08] Speaker 04: Is it important to the relief that you're seeking there that it reference the agreement? [00:11:22] Speaker 04: I understand the agreement is the reason that you think. [00:11:25] Speaker 04: the easement is limited to government access and not public access. [00:11:31] Speaker 04: But is it important to the ultimate declaration that you're seeking that it be about the agreement as opposed to just a declaration that whatever easement there is does not extend to public access? [00:11:43] Speaker 05: Well, it is the agreement that gives rise to the declaration. [00:11:49] Speaker 05: It is the reason for the declaration, the basis for the declaration, that it is based on this agreement that was reached in 2015. [00:11:58] Speaker 04: I guess what I think maybe I'm tripping up on is, [00:12:04] Speaker 04: If it's a declaration about an ... I mean, I understand that an agreement can be the basis for your claim of title, or your claim of title unencumbered by a particular kind of easement, and that's quite title relief. [00:12:17] Speaker 04: But if the declaration is a declaration about the government's contractual obligations under an agreement, that [00:12:26] Speaker 04: really resembles relief that is impliedly precluded by the Tucker Act. [00:12:31] Speaker 05: That is not the declaration that is sought. [00:12:33] Speaker 05: The declaration that is sought is that the public access is not allowed. [00:12:40] Speaker 05: That is the narrow declaration that is sought, that is public access is not allowed, and that is a declaration of property rights. [00:12:47] Speaker 05: And so, I mean, if you look at even the test under Matas, you look at the nature of the claim and the relief sought. [00:12:57] Speaker 05: And that's explained again in Wilkins, the same test. [00:13:00] Speaker 05: And the nature of the claim here is a dispute over the scope of the government's easement rights. [00:13:05] Speaker 05: And the relief that is sought is a declaration of property rights. [00:13:09] Speaker 05: and the declaration of property rights that is sought here is that the government does not have a right to allow public access over this road. [00:13:20] Speaker 05: And what the district court did was it drew a distinction between recorded and unrecorded instruments, but that distinction that the district court drew doesn't really make any sense because as this court made clear in Robinson, a Quiet Title Act claim can be made, [00:13:38] Speaker 05: can arise under questions that may affect the claim of title. [00:13:42] Speaker 05: This court's cases reflect that questions often are raised by actions and not recordings. [00:13:49] Speaker 05: Questions that affect title are often based on actions or conduct or statements and not recordings. [00:13:58] Speaker 05: The next issue is the first claim and the issue with respect to the first claim is whether it's beyond dispute that the first claim is time barred. [00:14:08] Speaker 05: And the one takeaway I would like to leave you with on that issue is that this is a very narrow claim. [00:14:14] Speaker 05: It only seeks to quiet title to the unrecorded gap, not to the recorded easement. [00:14:22] Speaker 05: And there are two things that must occur before a claim accrues [00:14:27] Speaker 05: and the statute of limitations begins to run on a quiet title action. [00:14:31] Speaker 05: There has to be a disputed title and then the plaintiff has to know or have reason to know of the disputed title. [00:14:40] Speaker 05: And the problem here is that there was no dispute over the unrecorded gap until 2015 when the government claimed for the first time that the recorded easement included [00:14:52] Speaker 05: the area that was not in the recorded instrument. [00:14:56] Speaker 04: Can I ask you, suppose, I understand you have some arguments as to why we shouldn't think this, but suppose we do think that the claim initially accrued back in the 60s and that you would need to show that there was an abandonment of the government's interest and then a reassertion in order to reset the clock. [00:15:17] Speaker 04: What do you think is the standard for abandonment that we should apply? [00:15:21] Speaker 05: Again, I would emphasize that this is a narrow claim and it is a claim to quiet title to the unrecorded gap. [00:15:30] Speaker 05: This would be an abandonment theory. [00:15:34] Speaker 05: that they abandoned the claim to the unrecorded interest in the gap. [00:15:40] Speaker 05: That would be a very low threshold because it's an unrecorded interest in a gap. [00:15:45] Speaker 05: An abandonment to something that they don't even have a recorded interest in would take very little, in my view. [00:15:54] Speaker 06: How do we know from the cases that the issue is whether it's recorded versus whether it's a full ownership interest as opposed to an easement? [00:16:02] Speaker 06: I mean, looking at Kingman and Schultz and Michelle, I'm trying to figure out what the rule is, and I'm not sure that it turns on whether something was recorded. [00:16:12] Speaker 05: I don't know that it does either, but I would say that when you don't even have a recorded interest, there's going to be less notice. [00:16:19] Speaker 05: So for one thing, so there's less clarity. [00:16:23] Speaker 05: And so when you don't have an official interest, I would say there's no official interest that the government has in this unrecorded gap. [00:16:31] Speaker 05: I would say it takes very little to abandon it because all we're doing is interpreting an instrument. [00:16:36] Speaker 05: We're not abandoning an instrument. [00:16:38] Speaker 05: They're not abandoning their recorded easement. [00:16:41] Speaker 05: They're merely interpreting, and I would say that that takes no official action. [00:16:45] Speaker 02: Council, as I read the BLM's letters, it looks to me like they dispute your claim that there even is a gap. [00:16:55] Speaker 02: Is that a dispute of fact between the government and the ranch? [00:16:59] Speaker 05: That's something that's going to have to be resolved on remand. [00:17:01] Speaker 02: Some surveyors, some experts are going to have to come in and draw the lines and say the property just doesn't close. [00:17:09] Speaker 05: Well, I think they have waffled on whether they dispute that. [00:17:13] Speaker 05: So I don't know what their current view is on that. [00:17:15] Speaker 05: But I think at some points they have disputed that, and at some points they have agreed with us on that. [00:17:19] Speaker 02: And so does your claim, so part of the claim then might be whether there even is a dispute of material fact over whether we have a gap, and it appears that there may be some question about that, although it looks like BLM then later took the position that irrespective of any gap in the original document, that it was clear that the eneasement was granted across the road because you couldn't get from A to B unless you crossed this 350 foot. [00:17:47] Speaker 05: Yeah, I would say there are a lot of questions that still need to be resolved. [00:17:50] Speaker 05: And I think that's the problem with with with the procedural posture that works for abandonment rests on what on the press release our claim for abandonment rests on [00:18:00] Speaker 02: What's the best evidence for? [00:18:02] Speaker 05: The best evidence is the communication that we received from the assistant director of the local office who told us that the BLM, as in the official BLM, not him himself, but the BLM had agreed that there was a gap in the easement and as a result, the easement was void. [00:18:26] Speaker 05: We don't need to take the extra step. [00:18:28] Speaker 05: because this is a narrow claim. [00:18:29] Speaker 02: And this was all an oral communication? [00:18:32] Speaker 05: This was during a meeting, yes. [00:18:34] Speaker 02: And I'm still curious. [00:18:35] Speaker 02: Was there a press release or wasn't there a press release? [00:18:38] Speaker 05: There was a press release. [00:18:38] Speaker 05: That is also in the record. [00:18:40] Speaker 02: OK. [00:18:40] Speaker 02: And where is the press release in the record? [00:18:43] Speaker 05: I am sorry. [00:18:43] Speaker 05: I don't have that at my fingertips. [00:18:46] Speaker 05: I don't have rebuttal time, or I would bring it to you in rebuttal. [00:18:52] Speaker 02: Because we had trouble finding it. [00:18:54] Speaker 05: Oh, I can find it for you. [00:18:56] Speaker 05: You want me to look for it now? [00:18:58] Speaker 05: I can do it right now, or I can bring it up after. [00:18:59] Speaker 02: I'd like you to bring it up. [00:19:01] Speaker 02: I'll ask for time so that you can bring it up. [00:19:03] Speaker 05: I'll find it and bring it up at rebuttal. [00:19:04] Speaker 05: I can do that. [00:19:06] Speaker 05: So I'll do that. [00:19:07] Speaker 05: And then I'm sorry I'm over time. [00:19:11] Speaker 05: OK. [00:19:12] Speaker 05: While we're asking questions, you can keep answering, so it's fine. [00:19:15] Speaker 05: Go ahead. [00:19:15] Speaker 05: OK. [00:19:17] Speaker 05: Sorry. [00:19:18] Speaker 05: Was there any more questions you wanted me to answer? [00:19:20] Speaker 05: I'm not sure. [00:19:21] Speaker 06: Well, I had a follow-up question. [00:19:24] Speaker 06: You say that the easement was abandoned, but was the government ever stopping using the 350 feet? [00:19:31] Speaker 06: Or is it only a question of whether the public could also? [00:19:34] Speaker 05: Let me make clear that the easement was abandoned in 2015 when the gates were put up and there was a [00:19:45] Speaker 05: There were gates put up in 2015 and there was an agreement that the government could use it for administrative purposes only. [00:19:52] Speaker 05: That was in the nature of a license. [00:19:56] Speaker 05: That was, but I am talking, I think we need to circle back and that's what I said at the beginning. [00:20:01] Speaker 05: We need to circle back and remember that the first claim is narrow and it's focused only on the abandonment of the gap. [00:20:09] Speaker 05: Any interest that the government might have had [00:20:11] Speaker 05: in the gap. [00:20:12] Speaker 05: And remember that abandonment claim, abandonment theory only restarts the clock on a statute of limitations. [00:20:17] Speaker 05: So it does not need to be a completed abandonment. [00:20:22] Speaker 05: It's not the merits. [00:20:23] Speaker 05: It doesn't have to be a valid abandonment. [00:20:25] Speaker 05: It only needs to be what a reasonable person in my client's shoes, or in Weibel's shoes, because Weibel was at the time, would have understood the government to have been doing. [00:20:35] Speaker 05: Because we're talking about statute of limitations. [00:20:36] Speaker 05: We're not talking about whether it was [00:20:40] Speaker 05: We're talking about the reasonable person standard. [00:20:43] Speaker 04: How can those be different? [00:20:45] Speaker 04: Why would it be reasonable for a person to rely on a purported abandonment that was not actually adequate to be an official abandonment? [00:20:54] Speaker 04: It seems like if it's not an official abandonment, it would not be reasonable for somebody to rely on it. [00:21:01] Speaker 05: Statute limitations are analyzed that way all the time. [00:21:03] Speaker 05: It's what a reasonable person would understand. [00:21:06] Speaker 05: And it's not about the validity of the claim. [00:21:09] Speaker 05: In other contexts, statute limitations don't rely on the validity of the claim at all. [00:21:14] Speaker 05: It's about what a reasonable person would have understood at the time. [00:21:18] Speaker 05: And a reasonable person in Weibull's shoes sitting in the office talking to a BLM official who says, we agree that we have no interest in that gap. [00:21:29] Speaker 05: that's not in the recorded instrument, we agree that we have no interest in that gap would have understood that they were abandoning any claim they might have had at one point to that gap. [00:21:39] Speaker 04: I mean, wouldn't a reasonable person know or suspect that low-level BLM officials can't in oral communications abandon property interests held by the United States? [00:21:52] Speaker 05: But this is not a recorded instrument either. [00:21:55] Speaker 05: This is just an interpretation. [00:21:57] Speaker 05: And this low level, I mean, not really that low level, but this official was saying the BLM has decided. [00:22:05] Speaker 05: So in this communication, he wasn't communicating his own thoughts about the easement. [00:22:13] Speaker 05: He was communicating what the BLM's position was on the easement. [00:22:19] Speaker 05: And this is all, sorry. [00:22:21] Speaker 06: It seems like you're saying, though, [00:22:23] Speaker 06: The easement changed from an easement to a license, but the government was never agreeing to stop using the 350 feet itself, right? [00:22:31] Speaker 05: But it did agree to stop allowing public access. [00:22:35] Speaker 05: And it did agree that it did not have an easement to the gap. [00:22:39] Speaker 05: It agreed that it had no rights to the gap. [00:22:41] Speaker 05: But it's pretty subtle because it was still going to be able to keep using the gap. [00:22:45] Speaker 05: For limited purposes under an agreement that was a separate agreement. [00:22:51] Speaker 05: all through this lower level person doing this. [00:22:54] Speaker 05: Communicating the BLM's views. [00:22:57] Speaker 05: And let me just make clear, this is all the question of fact. [00:22:59] Speaker 05: These are very, I mean, the problem I'm trying to impress upon is that when you rule so early on in a case on these issues, you can't develop the facts. [00:23:11] Speaker 05: And this is an issue that was decided, when you decide a jurisdictional issue so early on in a case, you can't develop these facts. [00:23:20] Speaker 05: These are all facts I would like to have much more development on, but it was decided too early. [00:23:28] Speaker 04: What kinds of facts would you have? [00:23:35] Speaker 04: Can you sketch out what kinds of additional facts you think could be developed? [00:23:39] Speaker 05: I think one thing I would like to develop more facts on is especially on the nature of the use of the roadway before the easement was recorded. [00:23:49] Speaker 05: That's one thing I would like to develop more facts on. [00:23:52] Speaker 05: It's touched on in some of the declarations. [00:23:56] Speaker 05: Cameron Teeter touched on it in his declaration, but he only sort of hints at it, but it seems like maybe the easement was used the same way before 1964 as it was after, and there was no real difference in the use before and after. [00:24:11] Speaker 05: And I think that goes to whether there was a dispute, the timing of the, whether there was a dispute before 2015. [00:24:19] Speaker 05: Okay, let's hear from the other side. [00:24:23] Speaker 05: Thank you for the extra time. [00:24:24] Speaker 05: I appreciate it. [00:24:26] Speaker 05: And I'll look for that in the record. [00:24:27] Speaker 05: That'd be great. [00:24:31] Speaker 01: Good morning, Your Honors. [00:24:32] Speaker 01: May it please the court, Sean Martin for the United States. [00:24:36] Speaker 01: asked that the panel from the district court's dismissal under you know there are as you know there are two appellants and four different claims so what i thought i would do is start with claims one and two currently held by south fork and i'll start with the first claim uh... it's appropriate that that this court affirm the district court's dismissal under a twelve b six standard and that's because [00:25:00] Speaker 01: In its discussion, the district court, this is at South Fork ER 15 through 17, the rationale the district court used for dismissal is entirely consistent with 12b6. [00:25:10] Speaker 01: The district court relied on two things. [00:25:13] Speaker 01: The recorded easement, a copy of which was attached to the operative complaint. [00:25:17] Speaker 01: And secondly, the district court relied on Weibull's, at the time, plaintiff's concessions regarding Teeters Road and regarding that claim. [00:25:28] Speaker 01: So why don't I go through those two bases? [00:25:31] Speaker 01: First, the recorded 1964 easement provided notice of a U.S. [00:25:36] Speaker 01: property claim over Teeters Road that clouded plaintiff's predecessor's fee title and supports 12b6 dismissal. [00:25:46] Speaker 01: Not only was that easement publicly recorded in 1964, but it's a full-use easement, it's a perpetual easement, and it provides the United States the right of control over Teeters Road to relocate it, to maintain, to construct, [00:26:02] Speaker 01: And I would also point out that plaintiffs' counsel admitted in the district court that the recorded easement, quote, would have put the owners on notice that the government had some interest in Teeters Road through Weibel Ranch, end quote. [00:26:14] Speaker 01: That's at South Fork ER 150, and the district court cited and relied on that and its rationale for dismissal. [00:26:22] Speaker 01: Part of the United States point is under the case law. [00:26:24] Speaker 01: It's not material to delve into the precise nature of what foot of the teeter's road easement is supposedly not valid and wasn't described in meets and bounds the proper way in the recorded easement. [00:26:37] Speaker 01: Instead, what's important is that the [00:26:41] Speaker 01: The whole world and plaintiffs predecessors agreed in 1964 to give up their exclusive right of fee control over their private property by providing an easement that the whole point of which is to provide public access through the ranch to the public lands that are on the other side. [00:27:01] Speaker 01: By the common sense of the easement which specifically mentions public access and the whole point of it is to provide access to those public lands, the only way the easement would work and would be understood to operate from the get go is as a way to get through the private lands to the Forest Service lands that are to the north. [00:27:20] Speaker 01: Beyond that, under 12b6, the district court properly looked to plaintiff's concessions. [00:27:26] Speaker 01: And I'll give three examples. [00:27:27] Speaker 01: One, plaintiffs conceded in their response to the government's motion to dismiss that at least a few trips a day, other than hunting season heavier, at least a few trips a day have occurred, quote, historically on Teeters Road, South Fork ER 133, 134. [00:27:41] Speaker 01: Secondly, plaintiffs represented to the district court in an attachment to their operative complaint. [00:27:46] Speaker 01: that Teeters Road has historically provided public access from the south to the public lands to the north. [00:27:53] Speaker 01: That's Weibel ER 111. [00:27:55] Speaker 01: Third, plaintiffs also acknowledged in that same attachment to their operative complaint that members of the public had access to Teeters Road through early 2015. [00:28:07] Speaker 01: My point being, it's not just [00:28:09] Speaker 01: the language of the recorded easement and that it was on the books as of 1964. [00:28:14] Speaker 01: It's this acknowledged public use through the ranch, regardless of a gap to the public lands. [00:28:21] Speaker 02: Okay, so what do we do with the events of 2015? [00:28:23] Speaker 02: Because I think that the claim is, that may be, but life changed in 2015 when the ranch came back to BLM and said, we've got a problem here and you've got a gap. [00:28:35] Speaker 02: And I've got, [00:28:37] Speaker 02: I feel like my head is banging between two walls here as I read the various communications from BLM. [00:28:43] Speaker 01: Right, right. [00:28:45] Speaker 01: Well, I'll point out to the panel first that the press release that you were asking about is in the record at South Fork ER 171, and that document was specifically referenced in the operative complaint. [00:28:57] Speaker 01: I believe that complaint site is South Fork ER 85. [00:29:01] Speaker 01: Now, yeah, a few points, Your Honor, about abandonment. [00:29:06] Speaker 01: We construe the operation of the statute of limitations in the Quiet Title Act strictly in the government's favor because the Quiet Title Act after all is a limited waiver of sovereign immunity and its conditions are construed in favor of the government. [00:29:22] Speaker 01: I would point out that some of plaintiffs' representations to the district court contradict their abandonment theory. [00:29:30] Speaker 01: Plaintiffs Below told the district court in 2016 that the U.S. [00:29:33] Speaker 01: quote, currently holds an easement on Teeters Road. [00:29:36] Speaker 01: That's at Weibel ER 114 and also stated that the U.S. [00:29:41] Speaker 01: presently holds an easement there, Weibel ER 118. [00:29:46] Speaker 01: There's also a problem in that U.S. [00:29:49] Speaker 01: property interests that are established by the formal actions of the executive branch through here, a formal recording exercise, right, and consideration between two parties. [00:30:01] Speaker 01: That kind of formal property interest is not, you know, lightly abandoned and it requires formal and unequivocal steps. [00:30:09] Speaker 04: I think you would have a very strong case if all it was was the, you know, sort of oral communications between BLM and the plaintiffs. [00:30:17] Speaker 04: But the press release says, you know, [00:30:20] Speaker 04: The landowner was able to proceed with the closure because the BLM's right-of-way obtained in 1964 did not cover the entire length of Teeters Road. [00:30:29] Speaker 04: A written document from the agency seems fairly definitive. [00:30:35] Speaker 04: Why isn't that enough? [00:30:36] Speaker 01: Well, a press release, judges, I don't think on the level of formality is a recorded public document that would take back what the United States already paid consideration for it as a perpetual easement. [00:30:51] Speaker 01: I don't think a press release is on that same level. [00:30:54] Speaker 01: It's also- What would we have to have? [00:30:56] Speaker 01: I think you'd have to have, well, obviously a recorded relinquishment. [00:31:01] Speaker 01: in public records that would be on the same level. [00:31:04] Speaker 02: Well, why would you need a recorded relinquishment if the claim is that the original document doesn't cover it? [00:31:09] Speaker 02: Why would you have to relinquish something that you didn't have? [00:31:14] Speaker 02: I understand that later on BLM changes its mind about that, but at the time, BLM seemed to acknowledge that there was a 350-foot gap. [00:31:21] Speaker 02: How could they possibly issue something relinquishing something they didn't own? [00:31:25] Speaker 01: Judge, I think all I can say, it's obvious there was some confusion. [00:31:29] Speaker 02: There's a great deal of confusion, and all this is about at this point is whether the statute of limitations resets. [00:31:35] Speaker 01: Right. [00:31:36] Speaker 02: That's all we're asking is whether they can go in and argue about all of these factual disputes about what you did or didn't tell them and what it does or doesn't mean, and whether there's even, I don't even know whether there's a 350-foot gap in this record or not. [00:31:49] Speaker 01: A couple of points, Your Honor. [00:31:50] Speaker 01: First is, you know, the press release was from a field office of the BLM. [00:31:54] Speaker 01: It's not the same as the United States of America. [00:31:57] Speaker 01: Wait, wait, wait. [00:31:57] Speaker 02: Who did it have to come from? [00:31:58] Speaker 02: Did it have to come from Washington, D.C.? [00:32:00] Speaker 01: I think it would have to be on behalf of the United States of America. [00:32:04] Speaker 02: You mean they would have to have, say, the United States of America up at the top, rather than the Bureau of Land Management, a part of the Department of Interior? [00:32:11] Speaker 01: Well, because the Forest Service also, you know, its lands are accessed through this easement, right? [00:32:15] Speaker 02: This is a United States easement held on the behalf of all of the public and on multiple... I mean, I'm just, I'm really confused as to sort of who's managing here, because BLM seems to be able to speak for you that it doesn't, that it's not relinquishing these rights when it's convenient for BLM to do that. [00:32:29] Speaker 02: On the other hand, it doesn't seem to be convenient for BLM to give it away. [00:32:33] Speaker 01: So now I'm really puzzled as to who's speaking for the United States here. [00:32:44] Speaker 01: It doesn't abandon any interest that the United States has. [00:32:48] Speaker 01: You know, it acknowledges there's a continuing right for the agency to access it and for local businesses to use Cheaters Road. [00:32:57] Speaker 01: So I don't, again, I would argue, Your Honor, that that is not a formal unequivocal abandonment of any interest by the United States because it, I would say at most, it's a limit. [00:33:09] Speaker 02: it's a constricted other people cannot use it now that's what the press release said that's what the press release says right okay so why doesn't that just reset the statute of limitations so that we can just figure this thing out because it [00:33:26] Speaker 01: I don't think it can be reasonably construed as an abandonment of the United States interest in the easement, in Teeter's Road. [00:33:34] Speaker 01: It obviously shows you there's disagreement or confusion about the precise parameters of who is going to use that easement, but I don't think it's a statement, there's no United States interest in this whatsoever. [00:33:48] Speaker 06: And is that because you think it didn't abandon the government's use, it only abandoned the public use? [00:33:55] Speaker 06: Is that what you're saying? [00:33:57] Speaker 01: Well, I would say, correct, correct. [00:34:03] Speaker 06: And do you think that that affects the level of formality that's needed, that there's something different? [00:34:11] Speaker 06: I mean, I'm still struggling with exactly what rule it comes out of these cases about when formality is needed. [00:34:17] Speaker 06: And can you help me with that? [00:34:18] Speaker 06: When do you think formality is needed? [00:34:20] Speaker 01: The United States view is formality is needed. [00:34:23] Speaker 01: You know, I look at Kingman Reef. [00:34:27] Speaker 01: I would also refer to the Gross case. [00:34:29] Speaker 01: This court decided in 1977 that when you have formal actions by the executive branch, those go through formalities and they're not likely to be dropped or disregarded. [00:34:41] Speaker 01: I mean, those are, after all, here, rights for the public to access public lands. [00:34:46] Speaker 01: So a formal, unambiguous abandonment. [00:34:50] Speaker 02: And that would have taken the form of what? [00:34:52] Speaker 02: A directive from the secretary? [00:34:54] Speaker 02: An EO from the president? [00:34:56] Speaker 01: I think a letter, it wouldn't need to be a recorded document, like I suggested earlier, it could be a recorded document, but I think a letter stating the United States position that it abandons its interest in the Teeter's Road. [00:35:10] Speaker 06: And that's how much, so I think your answer just now was how formal does the abandonment need to be, but how formal does the creation need to be, or what's the creation that then later triggers the formality of the abandonment? [00:35:23] Speaker 06: Does it have to do just with the formality [00:35:26] Speaker 06: of the creation or does it have to do with what is created? [00:35:29] Speaker 06: Like, is it about whether it's ownership or an easement? [00:35:31] Speaker 06: Is that different? [00:35:33] Speaker 01: I think it's more of the formality of just of the property, right, that was created on behalf of the United States. [00:35:39] Speaker 01: I think when we look to Kingmanry, if you've got a property right, a property interest the United States holds that was created through formal executive branch actions, so it's that, not fee title. [00:35:50] Speaker 06: But I'm having trouble, that doesn't work with Schultz and Michel, does it? [00:35:55] Speaker 06: Because in both of those, I mean, we had a military base and then we have public lands that were created. [00:36:00] Speaker 06: Both instances, they're created formally. [00:36:03] Speaker 06: So then if the government owns those things formally, the question whether they've given up some of that ownership, I don't understand how you're reading those cases then. [00:36:11] Speaker 01: Well, the United States looks at Michele and Schultz a different nature of case. [00:36:17] Speaker 01: And this court got to that in McFarland. [00:36:20] Speaker 01: Our point is Schultz and Michael involve when a plaintiff under the Quiet Title Act claims a non-possessory interest. [00:36:29] Speaker 01: Right, and so there isn't a question of notice from a formal executive branch action. [00:36:35] Speaker 01: It's basically almost like a prescriptive easement, a non-possessory prescriptive easement. [00:36:39] Speaker 06: But if the government owned that land and had full ownership, could exclude anyone, there's some aspect of that ownership that's being given up less formally, even though the ownership was created formally. [00:36:49] Speaker 06: So it can't have to do with the ownership being created formally. [00:36:53] Speaker 06: It seems like you're saying something is different about who wants to use it. [00:36:57] Speaker 01: I think the government would say it depends on who's, when we're under the Quiet Title Act, what is the plaintiff asserting? [00:37:04] Speaker 01: What kind of interest is the plaintiff asserting? [00:37:06] Speaker 01: And when, given the nature of what's being claimed, when did the clock start running? [00:37:11] Speaker 01: When did it accrue? [00:37:12] Speaker 01: And in this case, we point out that it accrued when these [00:37:18] Speaker 01: Plaintiffs had notice of a cloud on their title because their predecessors directly bargained with the United States to give that through access on Teeters Road in 1964. [00:37:31] Speaker 06: The plaintiffs in Schultz and Michelle, what do you think the rule is? [00:37:35] Speaker 06: Can you say again? [00:37:38] Speaker 01: And I think this is discussed in Kingman Reef, Your Honor, that Kingman Reef discussed Schultz and said, well, there when you have a plaintiff who claims a non-possessory interest, right, there's essentially a lower standard for abandonment. [00:37:53] Speaker 01: Right. [00:37:53] Speaker 06: But do you think that that's because the plaintiff there is not the government? [00:37:56] Speaker 06: I mean, so I'm trying to figure out if you think the issue is ownership versus nonpossessor interest, or whether you think the issue is government versus private people, or I don't understand still. [00:38:05] Speaker 01: I think it's because this court's observed that a nonpossessor easement that a plaintiff claims under the Quiet Title Act isn't necessarily inconsistent with government's fee title. [00:38:17] Speaker 01: And it's only when the government actually takes steps [00:38:20] Speaker 01: to block something that the plaintiff has already enjoyed, right, already enjoyed access through a federal land area to get to their residence. [00:38:29] Speaker 01: That claim would only accrue when the government starts to bar that use whatsoever. [00:38:36] Speaker 01: And that that's you know Michael Schultz McFarland that line of cases all about nonpossessory property interests, not from written documents, but asserted against the United States for nonpossessory property interests, whereas we think there's a big distinction when it's a. [00:38:54] Speaker 01: an actual easement or another formal, formally executed, formally acquired United States property interest in the first place. [00:39:01] Speaker 01: And we think that that starts when that cloud of title is a matter of public record or when that predecessor in interest would be on reasonable notice that the United States has some sort of property claim over the private property. [00:39:13] Speaker 04: But the claim here, I mean, the allegation is that the claim is with respect to [00:39:18] Speaker 04: a portion of the road that is not subject to the formally recorded easement. [00:39:24] Speaker 04: And so how does that affect your analysis? [00:39:27] Speaker 01: You know, as the district court doesn't, Your Honor, as the district court noted, I mean, when you have this acknowledged through use at Teeters Road for decades, you know, the district court, I think, correctly hesitated at this idea of a gap that [00:39:43] Speaker 01: Well, if use is happening through the gap for so long, right, the predecessors would have been on notice of that use and that there was a claim involving the entirety of Teeters Road that the public was using Teeters Road for the whole point of the easement to get to the public lands, regardless of that gap. [00:40:03] Speaker 01: And our view is that the gap is more of a question about the validity of the easement and, you know, [00:40:13] Speaker 01: There's nothing to establish that this gap couldn't have been uncovered earlier. [00:40:21] Speaker 01: Why did it have to be only 2015? [00:40:24] Speaker 01: They were surveyors. [00:40:25] Speaker 02: All of those are really good questions and would suggest the statute of limitations ran a long time ago until BLM talks out of two sides of its mouth. [00:40:35] Speaker 02: That's the problem. [00:40:37] Speaker 02: And that just raises the question as to whether that is sufficient to constitute abandonment of the claim so that we can now go back and do this thing on the merits. [00:40:46] Speaker 02: and sort of get it right. [00:40:47] Speaker 01: I'll say this, Judge. [00:40:47] Speaker 01: The United States doesn't think it rises to the level, you know, when we look at the Quiet Title Act and accrual and how the statute of limitations runs and my other points about, you know, the agency retaining access, it's not a complete abandonment. [00:41:00] Speaker 01: My point would be this. [00:41:01] Speaker 01: It doesn't rise to the level of an abandonment. [00:41:03] Speaker 01: However, there is a means for these plaintiffs to seek redress in federal court because after all, [00:41:12] Speaker 01: They've, you know, they've got essentially a breach of contract claim, the second claim for relief, and they're free to go pursue that in the court of claims. [00:41:24] Speaker 01: You know, the 2015 agreement is, after all, dovetails with the supposed abandonment. [00:41:31] Speaker 01: And our point would be, [00:41:32] Speaker 01: You got a claim about a breach of a contract, and the government said we don't have anything, and then the government changed its mind later in the same year. [00:41:40] Speaker 01: Well, that sounds as a breach of an express or an implied contract. [00:41:43] Speaker 06: What would the statute of limitations be on that contract claim? [00:41:46] Speaker 06: Have they missed that? [00:41:48] Speaker 01: I'm going to say six years, Your Honor. [00:41:51] Speaker 06: They've maybe missed that. [00:41:51] Speaker 06: It's too late for them to do that. [00:41:53] Speaker 01: Unless there's some sort of relation back. [00:41:55] Speaker 04: And why do you think it's a contract claim? [00:41:58] Speaker 04: Because I understood Ms. [00:42:01] Speaker 04: Smith to say that the claim is that [00:42:05] Speaker 04: Everybody agrees they own the land in fee, but they're claiming we want a declaration that we own it in fee unencumbered by the sort of easement that BLM claims to have. [00:42:20] Speaker 04: And the reason that it is unencumbered is maybe because of a contract, but the declaration they want is about ownership of the land. [00:42:29] Speaker 04: That sounds like a quiet title action. [00:42:31] Speaker 01: Well, but there's the first claim, right, which already is a quiet title action. [00:42:34] Speaker 01: And if we're talking about abandonment with regard to the first claim because of a supposed 2015 agreement, then it seems like it's one in the same. [00:42:43] Speaker 06: It seems like, if I understand correctly, they think the first claim is about whether the government can use the easement and the second one is about whether the government can let the public use the easement. [00:42:54] Speaker 01: I think that that's correct, Your Honor. [00:42:56] Speaker 06: And so then that could both be about the title, about the quiet title, right? [00:43:00] Speaker 01: Well, except that the trouble is that the plaintiffs have represented that this is a breach of contract claim. [00:43:09] Speaker 01: And when you construe these waivers of sovereign immunity as you have to in the government's favor, I mean, the plaintiffs told this court at Court of Appeals Dock at 17.1 that the second claim is for breach of a 2015 agreement. [00:43:22] Speaker 01: You know, sure, it has implications or it has tie-ins to title, but when it's brought as a breach of an agreement, express or implied, I mean, it really needs to be in a different court, not in this court. [00:43:35] Speaker 01: And I would also point out that as a district court... [00:43:41] Speaker 04: Suppose somebody buys a piece of land or has a contract to buy a piece of land from the government. [00:43:45] Speaker 04: They buy the land from the government. [00:43:47] Speaker 04: And then sometime later, the government starts encroaching on the land or doing something to it. [00:43:54] Speaker 04: And there's a dispute about who really owns it. [00:43:57] Speaker 04: And the purchaser goes to, [00:44:03] Speaker 04: district court and says, you know, I want a declaration that I own this land and it belongs to me and not the government. [00:44:11] Speaker 04: The reason I own it is I have this contract to buy it. [00:44:15] Speaker 04: Is that a quiet title action or is that barred by the Tucker Act in your view? [00:44:21] Speaker 04: Yes, it would probably depend, Judge, on the specifics. [00:44:23] Speaker 04: What specifics would it depend on? [00:44:28] Speaker 01: I mean, is this a question about the chain of title? [00:44:32] Speaker 01: Does it involve some other sort of side agreement? [00:44:36] Speaker 04: I thought in order to determine which court had jurisdiction over the action, for that kind of thing, we would look at the relief that's being sought. [00:44:49] Speaker 04: It seems odd. [00:44:51] Speaker 04: which court you file on would depend on lots of details to be developed later in the litigation. [00:44:58] Speaker 01: Well, I think the bottom line, if it truly is about a contract or an agreement, an expressed agreement or an implied agreement, then it needs to be in the court of claims. [00:45:09] Speaker 01: And the fact that someone wants a declaratory judgment [00:45:13] Speaker 01: You know, that is what it is, but that doesn't necessarily mean they get it when you are suing the United States under a contract theory. [00:45:19] Speaker 01: You know, you won't get it. [00:45:21] Speaker 01: You'll get monetary damages and it'll be in the court of claim. [00:45:23] Speaker 01: So that is what it is. [00:45:25] Speaker 01: So I think just focusing on what a plaintiff wants isn't the beginning and the end. [00:45:30] Speaker 01: You have to look to the essence of the claim. [00:45:34] Speaker 06: And I would point out this- And why isn't the essence of the claim what the plaintiff is asking for? [00:45:39] Speaker 01: In this case? [00:45:40] Speaker 06: Well, in general or and in this case, I guess. [00:45:46] Speaker 01: Well, again, Judge, I think it really just it depends. [00:45:49] Speaker 01: It depends. [00:45:50] Speaker 06: I mean, is there a case that says that we don't we don't look at whether what the plaintiff wants is a declaration about ownership. [00:45:58] Speaker 06: Instead, we look at whether they say something like this is about a contract. [00:46:02] Speaker 06: What case says that? [00:46:04] Speaker 01: It really depends so much on the circumstances of a case. [00:46:09] Speaker 01: I mean, here we have a supposed agreement in 2015, a supposed contract that the plaintiffs told the district court and they told this court is a breach of an agreement claim. [00:46:19] Speaker 01: It needs to be in the court of claims. [00:46:20] Speaker 01: There's no doubt about that. [00:46:22] Speaker 06: Well, I guess we have doubt about that. [00:46:23] Speaker 06: So do you have a case that says that we don't look at the fundamental thing they're asking for? [00:46:31] Speaker 01: Well, I think you... [00:46:35] Speaker 01: You look to what the waiver of sovereign immunity is, right, for the nature of the claim. [00:46:40] Speaker 01: And if someone's asserting a breach of a contract, right, what their relief is going to be, I think, is a separate measure, right? [00:46:49] Speaker 01: You look to the essence of that claim, and then you see, is there a waiver of sovereign immunity? [00:46:57] Speaker 01: strictly construed in the government's favor that allows that claim to proceed. [00:47:00] Speaker 01: And, you know, here the Quiet Title Act provides that if you've got a claim under the Tucker Act, you can't bring it under the Quiet Title Act. [00:47:08] Speaker 01: And I think a breach of contract claim, an asserted breach of contract claim is enough. [00:47:14] Speaker 01: I don't think the district court got it wrong. [00:47:15] Speaker 01: I'd also point out that for it to be a Quiet Title Act isn't [00:47:19] Speaker 01: too much because the Quiet Title Act has a mechanism that allows the United States at the end of the day to retain title to the property at issue by paying compensation through a district court process. [00:47:30] Speaker 01: So that's all part of the QTA scheme. [00:47:32] Speaker 01: So to seek a bottom line judgment through the QTA that there's no public access can't be obtained through the Quiet Title Act because the United States has the right to basically buy out the interest even if the district court were to hold against it and that the United States doesn't have that property interest at all. [00:47:52] Speaker 06: I think we've taken you way over your time. [00:47:55] Speaker 01: And I appreciate that very much. [00:47:56] Speaker 01: I haven't even gotten to the Weibull Ranch's fifth and sixth claims. [00:47:59] Speaker 01: If the panel has any questions, I'm happy to address those. [00:48:03] Speaker 02: I guess I'd like to hear the government's position on that. [00:48:08] Speaker 01: Why don't I start with the fifth claim, Your Honor? [00:48:10] Speaker 01: That alleges that the recorded 1966 easement at Big Summit Prairie [00:48:16] Speaker 01: did not allow public access, and this court should affirm dismissal under 12b6. [00:48:23] Speaker 01: The district court looked only to the 12b6 appropriate material, looked to the recorded easement that was attached to the operative complaint, and as the district court noted, [00:48:37] Speaker 01: there weren't any restrictions on the use of that easement. [00:48:41] Speaker 01: It was to access, it was a full-use easement, and it was to access federal lands for all lawful and proper purposes. [00:48:49] Speaker 01: The district court correctly looked to Cal Neva, a reported federal district court decision from 1999, that's 70 F sub second, 1151, and as the district court recognized under Oregon authorities, guiding Oregon authorities, that the public [00:49:06] Speaker 01: can access public lands as an implied licensee of the United States. [00:49:12] Speaker 01: Here, this 1966 easement doesn't explicitly say, in the clearest possible wording, that the public has that right. [00:49:21] Speaker 01: But what the district court recognized, you know, looking to Cal Nevo, extremely similar language for an Eastern Oregon [00:49:31] Speaker 01: access easement to public lands that at that, you know, it's been well established that the public is an implied licensee and that a reasonable landowner would have known in 1966 that the United States easement rights could be asserted in that way to include public access. [00:49:51] Speaker 01: And, you know, to this court, the plaintiffs haven't made any argument whatsoever about why Cal Neva was wrong or why the district court [00:49:59] Speaker 01: aired and relying on it. [00:50:00] Speaker 01: And I would point out on Curtis, Nevada, the district court was clear that it wasn't looking to that as controlling authority, but more to the point of Curtis, Nevada recognized, you know, going back to like 1911, 1923, I believe, like the United States and McKee v. Gratz, that it's been recognized since the early 20th century that the public is an implied licensee for public lands, including for recreational purposes. [00:50:28] Speaker 01: And, you know, looking to Calneva and the four corners of that easement, the district court didn't err under a 12b6 standard because it correctly found, as did the court in Calneva, that the language was unambiguous. [00:50:41] Speaker 06: And do you agree with the idea that there's nothing that we have before us that tells us whether anyone other than government employees were using it, using the easement? [00:50:53] Speaker 01: That's true, but the United States views it doesn't matter, and that sort of extrinsic parole evidence is immaterial. [00:51:01] Speaker 01: District Court recognized that, and the authorities it cited under Oregon law recognize that when the language is unambiguous, [00:51:10] Speaker 01: You know, the analysis, the question of law of studying the easement and what it means begins and ends with that language. [00:51:16] Speaker 01: And here, when you have no restrictions on the use, no restrictions on who can use, no reference to other. [00:51:21] Speaker 02: How far apart were the two easements granted? [00:51:26] Speaker 02: You're talking about Teeters Road and Biggs. [00:51:28] Speaker 02: A couple years. [00:51:29] Speaker 02: A couple of years. [00:51:30] Speaker 01: one with the teachers rose nineteen sixty four and uh... big summit prairie was nineteen sixty because the because the uh... the teachers road does does specifically say the public you're right it doesn't it's left out of the other one you're you're right i mean it that the teachers road easement use the clear as possible [00:51:48] Speaker 01: terminology, but the district court wasn't lost in the district court. [00:51:51] Speaker 01: It recognized that in its ruling on the motion to dismiss, but the district court also recognized that the Big Summit Prairie, its use of licensees and the lack of restrictions on the uses and the fact that it's for the full use of public lands was unambiguous and that it could be [00:52:11] Speaker 01: It could be construed by the easement holder as allowing for public use. [00:52:17] Speaker 01: And that would be known to a reasonable landowner. [00:52:20] Speaker 01: And if I may briefly turn to the sixth claim. [00:52:24] Speaker 06: Briefly. [00:52:24] Speaker 06: We're way over. [00:52:27] Speaker 01: You know, that claim, Your Honor, alleges that if the 1966 easement allowed public access, so it's premised on that, if it allowed it, then that was later abandoned by the United States. [00:52:37] Speaker 01: And we think the district court should be affirmed under 12B1. [00:52:40] Speaker 01: It recognized that as a matter of law that the government cannot abandon a property interest by inaction. [00:52:47] Speaker 01: And that's what the sixth claim for relief is. [00:52:50] Speaker 01: It allowed for public access, but then later the government didn't do anything or [00:52:55] Speaker 01: It didn't do enough. [00:52:56] Speaker 01: The district court got that right. [00:52:58] Speaker 01: Inaction isn't enough. [00:52:59] Speaker 01: Adverse possession doesn't run against the government. [00:53:02] Speaker 06: You said 12-B-1, but did you mean 12-B-6? [00:53:04] Speaker 01: Well, the district court looked at the sixth claim under 12, you know, dismissed it under 12-B-1, I think on the basis of it not being tenable as a matter of law. [00:53:21] Speaker 06: That would be usually 12-B-6, right? [00:53:24] Speaker 01: Well, 12b1 or 12b6, I believe the district court looked at it as 12b1. [00:53:31] Speaker 01: And we think, you know, the rationale the district court used for the sixth claim is either 12b1 or 12b6. [00:53:41] Speaker 06: Okay. [00:53:42] Speaker 06: Do you have a follow-up? [00:53:44] Speaker 06: Okay, we've taken you way over your time. [00:53:46] Speaker 06: So now we have time for rebuttal, but I think we have gotten the, but maybe we should give you both some time for rebuttal because we've gone way over. [00:53:53] Speaker 06: So how about we put three minutes on the clock and then we'll put two minutes on the clock and try to make this fair. [00:53:58] Speaker 00: Go ahead. [00:53:59] Speaker 00: Thank you very much, Your Honor. [00:54:00] Speaker 00: I very much appreciate it. [00:54:02] Speaker 00: And I just want to emphasize that my client is really just trying to get its foot in the door so that we can have this document interpreted. [00:54:11] Speaker 00: at least as it relates to the big summit ranch easement, the government, at least as alleged and the evidence that we put in when this was a jurisdictional issue, the government never took the position as alleged that this easement allowed for public access. [00:54:26] Speaker 00: And when we think about these, I'm going to call them abandonment cases, but I feel like the word abandonment is being misused here. [00:54:35] Speaker 00: As I understand the word abandonment as it's being used in the statute of limitations cases like Schultz and Michelle, they're talking about, is the government claiming an interest of some sort? [00:54:46] Speaker 00: And really what we're talking about is interpreting a document. [00:54:49] Speaker 00: So in Schultz, though, it wasn't interpreting a document, the language the court uses, this court is, the question is, there was a question about what's the standard, the question the court uses is, [00:54:58] Speaker 00: Would the landowner quote reasonably believe that the government did not continue to claim an interest in the roadway. [00:55:05] Speaker 00: So if we take this back to the allegations in this case. [00:55:09] Speaker 00: We have affirmative acts by the government prohibiting government access. [00:55:13] Speaker 00: We have affirmative acts by the government understanding that Weibull is prohibiting government access. [00:55:19] Speaker 00: So that is how the government is interpreting this document. [00:55:22] Speaker 00: So we're not saying that there needs to be a formal abandonment. [00:55:25] Speaker 00: We're saying that's enough to start the statute of limitations when it changes its view. [00:55:29] Speaker 00: When it changes its view in 2021, there is now a dispute. [00:55:33] Speaker 06: I think, so my question is, what a reasonable person would think about whether the government abandon is the level of formality for, you might not want to call it abandonment, but continued assertion or whatever you want to call it. [00:55:45] Speaker 06: I was asking, what at the beginning triggers that level of formality later? [00:55:49] Speaker 06: So do you have a theory on that? [00:55:50] Speaker 06: Like, is it because it's an easement that you think just something more informal is going to be okay later? [00:55:57] Speaker 06: Or do you think it's because it's, [00:55:59] Speaker 06: the government's use versus other people's use or something. [00:56:03] Speaker 06: What do you think? [00:56:04] Speaker 00: I think it's because we're talking about the statute of limitations. [00:56:07] Speaker 00: That's really the issue. [00:56:08] Speaker 00: And if I can explain, it's because we're talking about what a reasonable landowner would understand under the circumstances. [00:56:14] Speaker 00: And if we go back to when the statute of limitations would run in a QTA case, [00:56:20] Speaker 00: This court's cases say it doesn't even matter whether the government's interest is valid. [00:56:24] Speaker 00: It's just whether you are on notice. [00:56:26] Speaker 00: And so we're thinking about notice. [00:56:27] Speaker 00: And I think that's the point Ms. [00:56:28] Speaker 00: Smith was saying. [00:56:29] Speaker 00: In statute limitations, we often don't care about whether you have a claim or not. [00:56:33] Speaker 00: It's about what a reasonable person would know under the circumstances. [00:56:36] Speaker 00: So if we go to the allegations as it relates to the big summit easement, [00:56:40] Speaker 00: What a reasonable person would know is what's been alleged, which is the government prohibited public access why ball and its predecessors interest they prohibited government access and that's the way it was for almost 60 years until we had this other dispute and suddenly they opened it up for public use. [00:56:57] Speaker 00: They never took the position that their interest was broad enough to encompass public use. [00:57:04] Speaker 00: Of course, they had an interest. [00:57:06] Speaker 00: No one's disputing that. [00:57:07] Speaker 00: But the question is, how do we interpret that document? [00:57:09] Speaker 00: And can my client just get into court to develop the type of evidence necessary to interpret this document under Oregon law? [00:57:18] Speaker 00: Thank you. [00:57:18] Speaker 06: Thank you. [00:57:26] Speaker 05: Thank you for the extra time, Your Honor. [00:57:28] Speaker 05: So yes, the press release is at South Fork ER 171. [00:57:32] Speaker 05: And then I'll just cover really briefly a couple of points. [00:57:36] Speaker 05: Just to emphasize that the question on abandonment is whether, apparent abandonment, that is the test. [00:57:43] Speaker 05: So it's really just what a reasonable person would understand in [00:57:48] Speaker 05: in their shoes. [00:57:49] Speaker 05: And Schultz is a case where apparent abandonment was established by the government's inaction. [00:57:56] Speaker 05: So that is actually like a very low threshold. [00:58:00] Speaker 05: In this particular case, I think I want to point out that the easement itself was actually executed by a low-level BLM official. [00:58:09] Speaker 05: The local office executed this particular easement. [00:58:12] Speaker 05: So I think it would be reasonable in Weibel shoes to think that a low-level [00:58:18] Speaker 05: BLM official might be able to interpret the scope of this particular easement. [00:58:24] Speaker 05: And to respond further to the question about what we do on remand, I think we might want to depose the BLM manager [00:58:35] Speaker 05: who talked to us about what the BLM's decision was and to find out what his marching orders were so we could prove that there was an abandonment. [00:58:47] Speaker 05: But again, for statute of limitations purposes, all that matters is whether there was an apparent abandonment. [00:58:54] Speaker 05: which there was. [00:58:56] Speaker 05: Finally, in the 30 seconds I have left, on the second claim, you can't get a declaration of property rights under the Tucker Act. [00:59:06] Speaker 05: That is what we're seeking in the second claim. [00:59:09] Speaker 05: We can only get that under the Quiet Title Act. [00:59:13] Speaker 04: How is it different than what you get under... Why isn't it just duplicative of the first claim? [00:59:21] Speaker 05: because the second claim is related just to public access. [00:59:24] Speaker 05: The first claim is related to the gap, solely the gap. [00:59:30] Speaker 04: you could in principle lose on the first claim, and we would say, or someone would say, the district court ultimately would say there is no gap, but you might separately be able to say the continuous non-gapped road is not open to the public, and that would be what would happen if you prevailed on claim two. [00:59:51] Speaker 04: Correct. [00:59:51] Speaker 06: Okay. [00:59:51] Speaker 06: Correct. [00:59:52] Speaker 06: Thank you. [00:59:54] Speaker 06: Thank you both sides for the helpful arguments. [00:59:56] Speaker 06: This case is submitted.