[00:00:39] Speaker 04:
Okay, we have Council for the United States here.

[00:00:54] Speaker 04:
You can sit down for the moment because we're going to need.

[00:00:59] Speaker 04:
Oh, here comes somebody.

[00:01:06] Speaker 04:
Our final case this morning is number 18-2227, Moody v. United States.

[00:01:22] Speaker 04:
Ms.

[00:01:22] Speaker 04:
Maddow, you're supposed to be in the courtroom so that we don't have to wait for you.

[00:01:29] Speaker 04:
Not in the lobby.

[00:01:30] Speaker 04:
That's not good enough.

[00:01:34] Speaker 04:
Okay, Mr. Pashota.

[00:01:40] Speaker 02:
Your Honor, this is a case involving a five-year lease that started in 2011 and was going to expire in 2015.

[00:01:52] Speaker 02:
Are there four leases here?

[00:01:55] Speaker 02:
Is that right?

[00:01:56] Speaker 02:
There's five leases, actually.

[00:01:59] Speaker 02:
Five leases?

[00:01:59] Speaker 04:
Well, your complaint seems to be inconsistent about that.

[00:02:03] Speaker 04:
One of the things you say is that it's not clear who the other party is.

[00:02:09] Speaker 04:
That is, the tribal party.

[00:02:11] Speaker 04:
But I look at the appendix here, and I find that at least in the modifications, it's quite clear that the other party is the Oglala Sioux, and the modifications are signed by a tribal representative.

[00:02:26] Speaker 04:
So in that sense, we know who the contracting parties appear to be on the face of the contract.

[00:02:34] Speaker 02:
OK.

[00:02:35] Speaker 02:
I agree with that, Your Honor.

[00:02:39] Speaker 02:
And I'm going to jump to what I think your point is.

[00:02:43] Speaker 02:
Your point is under Algama and under O'Brien by this court that this court has no jurisdiction.

[00:02:50] Speaker 02:
But in this case, we're dealing with a termination.

[00:02:54] Speaker 02:
leases and in termination of leases only the bureau can terminate the lease it's not the tribe the tribe has no responsibility or no power in terminating the lease they can recommend but they don't go through they don't send the letters they don't take the action to terminate the lease as was done in this particular case it was all bureau employees there is not one tribal

[00:03:23] Speaker 02:
Person involved?

[00:03:24] Speaker 04:
This is a sensible argument.

[00:03:26] Speaker 04:
And under the restatement, if we were dealing with common law, the trustee would probably be considered to be a party to the contract, and you'd be in good shape.

[00:03:37] Speaker 04:
But our difficulty is we've got the Algama case in the Supreme Court, which seems to tell us that the tribal entity should not be

[00:03:47] Speaker 04:
considered, either the United States should not be considered to be a party to the contract between the third party and the tribal entity.

[00:03:59] Speaker 02:
If I may, Your Honor, I'd like to cite a quotation out of Algama.

[00:04:05] Speaker 02:
It says,

[00:04:06] Speaker 02:
The exercise of the power to safeguard the disposal of property, quote, does not necessarily involve the assumption of contractual obligation, end of quote.

[00:04:19] Speaker 02:
And, quotation, is not to be presumed in the absence of any action taken by the government or on its behalf, indicating such a purpose.

[00:04:30] Speaker 02:
So I think that ALGAMA, while maybe

[00:04:35] Speaker 02:
some precedent for the dismissal of this action, certainly leaves that narrow possibility that if the government somehow has assumed the responsibility, as it has in terminating this lease, then they can be held responsible for the breach of that contract.

[00:04:59] Speaker 02:
The Indians didn't- Where's the language that you're reading from Mount Carmel on page- That's at page 271 of El Gama.

[00:05:06] Speaker 04:
No, there's no 271.

[00:05:08] Speaker 04:
This begins on 415.

[00:05:12] Speaker 04:
Yeah.

[00:05:16] Speaker 04:
I don't know what the... You're not even going to be the U.S.

[00:05:19] Speaker 02:
reporter?

[00:05:21] Speaker 02:
Yeah, it could be the wrong report.

[00:05:24] Speaker 02:
But I am stating that quotation accurately, Your Honor.

[00:05:31] Speaker 01:
And I think that's what we have in this particular... Probably around page 422 or 423 of the Supreme Court reporter.

[00:05:38] Speaker 01:
Yeah.

[00:05:42] Speaker 01:
How does that sentence start again, the neutral reading?

[00:05:45] Speaker 01:
How does the paragraph start?

[00:05:49] Speaker 02:
The exercise of the power to safeguard the disposal of property, quote, does not necessarily involve the assumption of contractual obligation.

[00:05:59] Speaker 02:
end quote, is not to be presumed in the absence of any action taken by the government or on its behalf indicating such a purpose.

[00:06:16] Speaker 02:
And the other thing, Your Honor, when you're talking about... I can't find it.

[00:06:21] Speaker 04:
I mean, I don't know.

[00:06:22] Speaker 04:
I don't want to spend a lot of time trying to look at it.

[00:06:25] Speaker 04:
It would be helpful to me to know where that language appears.

[00:06:34] Speaker 02:
The government has wide responsibility... For 21?

[00:06:44] Speaker 03:
In – is it at 421?

[00:06:46] Speaker 03:
Yeah.

[00:06:46] Speaker 03:
Which paragraph?

[00:06:49] Speaker 03:
Late in 421.

[00:06:52] Speaker 03:
Paragraph begins, the action of Congress, but it's way down.

[00:07:03] Speaker 04:
So what is your argument here, that there's action by the government indicating a purpose that the United States is a party to the contract?

[00:07:10] Speaker 02:
Yes.

[00:07:10] Speaker 04:
I think— How did it indicate that?

[00:07:13] Speaker 02:
I think by the government's—it was a government officials.

[00:07:20] Speaker 02:
It wasn't the Indians that terminated this lease.

[00:07:23] Speaker 02:
They had nothing to do with it.

[00:07:25] Speaker 02:
I mean, as the facts of this case are, that after the farming was done in 2012, my clients are trying to settle up so that they can- That's what trustees do.

[00:07:38] Speaker 04:
They act on behalf of the beneficiary.

[00:07:41] Speaker 04:
And surely, that government contemplates that the United States' trustee is going to take actions that reflect its independent judgment.

[00:07:53] Speaker 02:
Well, I think, Your Honor, that when you have the government only taking the responsibility, only undertaking every action that terminated this lease, that they can have some responsibility for what happened in this particular case.

[00:08:12] Speaker 02:
Now, understand the facts.

[00:08:18] Speaker 02:
After the 2012 lease was completed, they were trying to get ready to proceed with the lease in 2013.

[00:08:31] Speaker 02:
So they start about November 12 trying to ascertain, trying to get a number from the Bureau that they had to pay in terms of what to settle up for 2012.

[00:08:43] Speaker 02:
They make some checks out.

[00:08:47] Speaker 02:
The checks come back because they have to be certified checks.

[00:08:51] Speaker 02:
They spent about six months back and forth on that.

[00:08:53] Speaker 02:
And then, on 4-22, after the Bureau told them that they owed $43,465 and had to be in a certified check, my client... Does it always have to be in a certified check?

[00:09:07] Speaker 01:
Certified.

[00:09:08] Speaker 01:
That's the standard procedure for everybody?

[00:09:11] Speaker 02:
No, it's not.

[00:09:11] Speaker 02:
There's nothing requiring that.

[00:09:14] Speaker 02:
But that's what they told them.

[00:09:16] Speaker 02:
So my client goes to the BIA office and he says, all right, here's a certified check.

[00:09:28] Speaker 02:
He gets his call from his wife.

[00:09:31] Speaker 02:
While he's in the office and she says Vernon we have we got four letters here saying that they're going to terminate our leases because we haven't paid and for some other reasons So he says mr. Superintendent mr. Robert actually what should we do?

[00:09:50] Speaker 02:
Robert actually says forget about it.

[00:09:52] Speaker 02:
Go farm here.

[00:09:54] Speaker 02:
You got the check and

[00:09:57] Speaker 02:
Go farm.

[00:09:58] Speaker 02:
He says, should there be something in writing?

[00:10:01] Speaker 02:
Mr. Act V, the bureau says, no, you don't need anything in writing.

[00:10:05] Speaker 02:
So we have a letter of 418 terminating the leases.

[00:10:11] Speaker 02:
And now we have him telling them to go ahead and farm the land.

[00:10:18] Speaker 02:
So they proceed.

[00:10:20] Speaker 02:
And you have to understand.

[00:10:24] Speaker 02:
This is springtime in South Dakota.

[00:10:27] Speaker 02:
You have to get your crops in or you're not going to have any crops.

[00:10:32] Speaker 02:
And they knew that at the time.

[00:10:37] Speaker 02:
So they go out and they spend thousands of dollars in planting

[00:10:45] Speaker 02:
This corn and wheat and other things on this land invested substantial monies.

[00:10:54] Speaker 02:
And then about six weeks later on June 3, two tribal officials come out and tell them they're trespassing.

[00:11:08] Speaker 02:
And Moody goes to the Pine Ridge office again

[00:11:12] Speaker 02:
And he says, what's this all about?

[00:11:14] Speaker 02:
And then there was a new superintendent, Cleve Hermenie Horses, and Mr. Hermenie Horses says, well, he says, I'm going to follow the decision that was made by Mr. Actby.

[00:11:29] Speaker 02:
You go ahead and continue to farm the land.

[00:11:33] Speaker 02:
So my client then, he says, well, I better call the Aberdeen area office, which is a supervisory office over Pine Ridge.

[00:11:46] Speaker 02:
And he talks to a lady.

[00:11:48] Speaker 02:
And she says, no, go ahead.

[00:11:50] Speaker 02:
I've got nothing on record showing that you've been terminated from this lease.

[00:11:54] Speaker 02:
Go ahead and farm the land.

[00:11:57] Speaker 02:
So he goes back, starts farming it again.

[00:11:59] Speaker 02:
And then a few days later, they come out and they say, no, get off of the land.

[00:12:05] Speaker 02:
Get your stuff out of here.

[00:12:07] Speaker 02:
Remove yourself or

[00:12:10] Speaker 02:
You will remove you.

[00:12:14] Speaker 02:
You can't be on the land.

[00:12:16] Speaker 01:
Now... What happened to the land and the crops after that?

[00:12:20] Speaker 02:
The crops, Your Honor, stayed in the ground.

[00:12:25] Speaker 02:
They were harvested and they were sold by the Bureau.

[00:12:33] Speaker 02:
And we got nothing.

[00:12:35] Speaker 02:
That was our

[00:12:38] Speaker 02:
Thousands of dollars that were taken to plant that crop which we got nothing back in return For that particular crop and that's one of the one of the primary arguments in this particular case.

[00:12:53] Speaker 02:
I So if you just look at the face of the contract the original contract like you've looked at judge Yeah, you could

[00:13:06] Speaker 02:
If you don't think that the quotation that I talked about is sufficient and the facts don't show that the Bureau did this, you have to then go on to whether or not the letters on 418 terminated.

[00:13:22] Speaker 02:
They terminated the lease.

[00:13:25] Speaker 02:
So if they terminated the lease then, when they told them to go back out there, that had to be a revival

[00:13:34] Speaker 02:
of the lease in this particular case.

[00:13:39] Speaker 01:
What about the argument that the written agreement was already in existence and the law says that if there's a written agreement in existence, there can't be an implied contract?

[00:13:55] Speaker 02:
I don't know how the written lease could have been in existence since it was terminated.

[00:14:01] Speaker 02:
And I need to say that the leases, at least some of these leases in this case, say that if the lease is terminated, it will be terminated effectively immediately.

[00:14:11] Speaker 02:
They don't have to wait 30 days, as the government argues in this case.

[00:14:17] Speaker 02:
But the lease then was terminated.

[00:14:22] Speaker 02:
We have the 418 letter.

[00:14:24] Speaker 02:
If we're going to go back out and operate, which we did in this case, then there's got to be something.

[00:14:34] Speaker 02:
There's got to be a revival.

[00:14:35] Speaker 02:
That lease was terminated, and then it was revived for six, seven, or eight weeks there before they finally threw us off the land on June 3rd.

[00:14:47] Speaker 02:
So there really is.

[00:14:49] Speaker 02:
There really is, Your Honor, a lease, a written lease in existence.

[00:14:54] Speaker 03:
I thought the claims court pointed to a regulation that indicated that the government doesn't have the authority or the power to enter into contracts without the pre-approval of the tribe.

[00:15:07] Speaker 02:
When you're talking about an initial approval of a lease, that's probably right.

[00:15:15] Speaker 02:
But then once you take a lease and you start administering the lease, the Bureau has a lot of responsibility.

[00:15:27] Speaker 02:
And not only can they terminate leases, they can make leases on behalf of Indian people, especially in this case.

[00:15:37] Speaker 04:
Who argued that the lease was improperly terminated?

[00:15:41] Speaker 02:
Well, the lease was.

[00:15:45] Speaker 02:
Yeah, we had a contract.

[00:15:53] Speaker 02:
We were deprived of not only... Does the complaint allege that the lease was improperly terminated?

[00:16:00] Speaker 02:
Yeah, not improperly terminated, it was breached.

[00:16:05] Speaker 02:
Yeah, they didn't have the right to breach the contract.

[00:16:11] Speaker 04:
You want to save your rebuttal time?

[00:16:13] Speaker 04:
We'll give you two minutes, and let's hear from the government.

[00:16:15] Speaker 04:
Yes, yes.

[00:16:15] Speaker 04:
All right.

[00:16:22] Speaker 04:
Ms.

[00:16:22] Speaker 04:
Martell.

[00:16:32] Speaker 00:
May it please the Court?

[00:16:34] Speaker 04:
Let me tell you what I think the problem is here.

[00:16:37] Speaker 04:
Putting aside the Algoma case, which

[00:16:41] Speaker 04:
is important, but let's put it to one side for a moment.

[00:16:44] Speaker 04:
The restatement is pretty clear that a trustee is personally liable on a contract made by him in the course of the administration of the trust.

[00:16:55] Speaker 04:
There are plenty of Supreme Court cases and cases in our court saying that in the context of Indian law that we look to restatement principles.

[00:17:06] Speaker 04:
So if putting aside Algama, why wouldn't the United States, by virtue of the restatement, be treated as a party to this contract with personal liability?

[00:17:19] Speaker 00:
Your Honor, the government would not be treated as a party to the contract because these leases were entered into pursuant to the American Indian Agricultural Resource Management Act and Congress enacted that act with the specific purpose that the United States would carry out its trust responsibility and reflecting that the United States has a very unique relationship with the Indians and it is, it is a very unique relationship and the Supreme Court discussed this distinct relationship in Hickory Apache Nation

[00:17:46] Speaker 00:
where in that case the Indians did try to argue that common law principles, the common law fiduciary rule should apply in an evidentiary issue.

[00:17:56] Speaker 00:
And the Supreme Court said that the trust relationship between the United States and the Indians is very distinct, and we can't actually just apply regular rules of evidence or regular common law rules or all restatement rules.

[00:18:08] Speaker 04:
Yeah, but your problem is that there are restatement rules which the Supreme Court has applied in the context of India.

[00:18:15] Speaker 00:
Yes, that's true, Your Honor.

[00:18:17] Speaker 00:
But in this particular case, because in the ARMA, the Congress has specifically said that when the United States is managing and enforcing these kinds of leases, agricultural leases to be specific, they really are only acting in their role as a fiduciary and a trustee.

[00:18:32] Speaker 00:
They are not acting on the United States' behalf.

[00:18:36] Speaker 04:
Well, that's certainly true.

[00:18:37] Speaker 04:
But that doesn't mean that they can't be liable as trustee.

[00:18:41] Speaker 04:
What's the language of the statute you're relying on here?

[00:18:44] Speaker 04:
Where do we find that?

[00:18:45] Speaker 00:
It's so it's in the ARMA, so it's 25 USC number with is it quoted in your brief or what?

[00:18:52] Speaker 00:
In the brief note that will the brief discusses all of these sections of the ARMA yes, but it doesn't quote it um It quotes part of it or probably paraphrase as much of the ARMA your honor Well, what's the specific provision you're relying on?

[00:19:09] Speaker 00:
So it's 3701 in the findings.

[00:19:12] Speaker 00:
Congress finds and declares that the United States has a trust responsibility to protect, conserve, utilize, and manage Indian agricultural lands consistent with its fiduciary obligation and its unique relationship with Indian tribes.

[00:19:26] Speaker 00:
And then in the second part, which is the purposes under Section 3702, it says the purposes of this chapter are to carry out the trust responsibility of the United States and promote the self-determination of Indian tribes by providing for the management of Indian agricultural lands.

[00:19:41] Speaker 04:
That doesn't seem to me to say the United States' trustee is not a party to the contract.

[00:19:48] Speaker 00:
Well, I think this court is held in cases like Seneca Gardens and when it affirmed O'Brien that when we are looking at whether there is privity of contracts, so whether a plaintiff can bring a case for breach of contract against the United States, there must be privity.

[00:20:01] Speaker 00:
And the only way you can determine whether the United States is a party to a contract is by looking at the actual document itself.

[00:20:07] Speaker 00:
The United States said that in Algoma, and this court discussed it in Seneca Gardens and said that.

[00:20:13] Speaker 01:
The Seneca Gardens, that doesn't involve

[00:20:17] Speaker 01:
the United States acting as a trustee.

[00:20:19] Speaker 01:
That was the case involving HUD, right?

[00:20:21] Speaker 00:
It was.

[00:20:22] Speaker 00:
But the plaintiffs in that case tried to allege a breach of contract claim against HUD because HUD was heavily involved in the oversight of this low-income housing project.

[00:20:31] Speaker 00:
And the arguments were very akin to the plaintiff's argument in this case, which is that the United States should effectively be held a party to this contract.

[00:20:39] Speaker 01:
But there was no statute in that case that talked about the United States being a trustee, right?

[00:20:44] Speaker 00:
No, Your Honor.

[00:20:46] Speaker 00:
But the arguments were very similar as far as plaintiffs really desire that the United States should be held a party to the contract such that they can be sued for breach.

[00:20:55] Speaker 04:
Do you agree that if we applied section 261, 262 of the restatement here, the United States would be treated as a party to the contract?

[00:21:05] Speaker 00:
If you applied

[00:21:07] Speaker 00:
I don't, Your Honor, only because Congress has specifically spoken.

[00:21:12] Speaker 04:
No, put that aside.

[00:21:13] Speaker 04:
I'm just saying, let's assume that we were to hold, or the Supreme Court were to hold, that 261 and 262 govern the relationship here.

[00:21:25] Speaker 04:
Just looking at the restatement, would that make the United States a part of the contract?

[00:21:32] Speaker 00:
I don't think it would, Your Honor, because even though the United States acts in its role as a trustee, I don't think that role as a trustee would make them a party to this contract, such that there is privity of contract.

[00:21:44] Speaker 00:
Because?

[00:21:46] Speaker 00:
Because the way you determine who is a party to a contract is by looking at the document itself.

[00:21:51] Speaker 00:
And in this particular case, the leases are, as you can see on Appendix 18, they're between the Moody's and the Indian landowners.

[00:21:59] Speaker 00:
And the regulations define a lease as a written agreement between Alessi and Indian landowners.

[00:22:04] Speaker 03:
Well, then when would Restatement 262 ever apply?

[00:22:09] Speaker 00:
Maybe in another.

[00:22:10] Speaker 03:
You're saying that only if you're a named party, but that seems to go right against the content of Section 262 of the Restatement.

[00:22:20] Speaker 00:
Well, I think the Indians can always sue the United States for violation of a trust relationship.

[00:22:25] Speaker 00:
But outside the context of a contract that plaintiffs entered into with a party that's not the United States.

[00:22:31] Speaker 03:
I mean, I would think maybe your argument would be that in Algoma, the Supreme Court, at least for purposes of trustee relationships between the United States and the tribes, has effectively displaced restatements 262.

[00:22:45] Speaker 03:
Or alternatively, the government's just never given any indication of a waiver of sovereign immunity in this particular context.

[00:22:55] Speaker 00:
Absolutely, Your Honor.

[00:22:58] Speaker 00:
A waiver of sovereign immunity must be explicitly alleged, as Your Honor was indicating.

[00:23:03] Speaker 00:
And we have not waived sovereign immunity, either under the Act.

[00:23:05] Speaker 00:
The Act explicitly states that the United States does not waive its sovereign immunity.

[00:23:09] Speaker 00:
And the only way that there could be privity of contract in this case or that the United States has waived its sovereign immunity is if they are a party to the contract and they are not here.

[00:23:17] Speaker 03:
The facts of this case really bother me.

[00:23:22] Speaker 03:
And it looks like the government, the BIA, really messed around with the Moody's.

[00:23:30] Speaker 03:
And so what should Mr. Moody have done?

[00:23:35] Speaker 03:
I mean, obviously you want to say that they have no recourse to go to the Court of Federal Claims to sue the government who is acting as a trustee.

[00:23:45] Speaker 03:
But then what should have Mr. Moody done at the time when he was getting these cancellation notices, but then being told, don't worry about those cancellation notices, and then ultimately being evicted off the land?

[00:23:58] Speaker 03:
What was his recourse?

[00:24:01] Speaker 03:
What was the reasonable thing that was entirely foreseeable for Mr. Moody to do at that point in time?

[00:24:07] Speaker 00:
Well, Your Honor, the cancellation notices that were sent to him do indicate that he had a right to appeal.

[00:24:12] Speaker 00:
And that is what Mr. Moody should have said.

[00:24:14] Speaker 03:
Appeal where?

[00:24:15] Speaker 00:
It would have been appeal to the regional director.

[00:24:17] Speaker 00:
Yes, if you are appealing a decision, in this case, the cancellation of the lease.

[00:24:21] Speaker 01:
So he shouldn't have listened to what the BIA

[00:24:25] Speaker 01:
employees were telling him about, don't worry about it.

[00:24:29] Speaker 01:
You don't have to appeal.

[00:24:31] Speaker 00:
Assuming those allegations to be true, Your Honor, if a BIA official did to- We are to assume those are to be true.

[00:24:36] Speaker 00:
Absolutely.

[00:24:36] Speaker 01:
Given the procedural posture of this case, right?

[00:24:38] Speaker 00:
Absolutely.

[00:24:39] Speaker 00:
Assuming those to be true, those statements by a BIA official do not overcome what the regulations state and what the notices of cancellation told Mr. Moody.

[00:24:47] Speaker 00:
And that was that they informed him of his appeal rights, and that's what he should have done in this case.

[00:24:52] Speaker 00:
He should have appealed to the regional director, which then he could have appealed that decision to the Interior Board of Indian Affairs, or Indian Appeals, I'm sorry.

[00:25:00] Speaker 00:
And then if he didn't like that decision, he could have then appealed to district court under an APA standard of review.

[00:25:05] Speaker 00:
So he is not left entirely without a remedy, but he did not timely pursue it in this case.

[00:25:10] Speaker 00:
And fairness considerations aside, this is what Congress seems to have intended under the ARMA.

[00:25:17] Speaker 00:
They did intend that the United States be heavily involved.

[00:25:20] Speaker 04:
How do we know that they intended under the statute that the United States not be treated the way a trustee would usually be treated, and that is to be liable personally for acts in breach of a contract?

[00:25:34] Speaker 00:
Well, I think throughout the statute and the findings and the purpose portion that I cited earlier, they specifically state that to the extent the United States is acting, they are only acting in their relationship as a trust.

[00:25:46] Speaker 04:
Well, that almost cuts the other way.

[00:25:49] Speaker 04:
I mean, they're saying they should be treated as though they're a trustee.

[00:25:53] Speaker 04:
It doesn't say we're going to not apply the usual trust law in this situation.

[00:26:00] Speaker 00:
But the Act does explicitly state that the United States does not waive sovereign immunity.

[00:26:04] Speaker 00:
And that doesn't change the fact that in any given case, the United States must unambiguously waive sovereign immunity to be sued for damages.

[00:26:11] Speaker 00:
And if the Act doesn't waive it, and in this case it doesn't, it must be the contract.

[00:26:15] Speaker 00:
And the contract in this case doesn't, because the United States is not a party.

[00:26:18] Speaker 04:
Well, there's a waiver of sovereign immunity if they're a party to the contract, right?

[00:26:21] Speaker 00:
Absolutely, if they are a party to the contract, which in this case, they are not.

[00:26:28] Speaker 00:
To get to plaintiff's next claim, which is their oral and implied in fact lease, your honors were asking about aren't there regulations in this case that the trial court relied on, and the trial court did rely on regulations in this case.

[00:26:40] Speaker 00:
Opposing counsel said that on April 18th, when the plaintiffs received cancellation notices,

[00:26:45] Speaker 00:
Those were effectively cancellations, but they were not.

[00:26:48] Speaker 00:
The regulations in this case state that a cancellation notice is just a notice.

[00:26:53] Speaker 00:
The cancellation does not become final until 30 days after the plaintiff receives that notice.

[00:26:58] Speaker 00:
And then on the 31st day, if they do not appeal, that's when that decision becomes final, and that's when the leases are canceled.

[00:27:04] Speaker 00:
So on April 22, when the Moody's went in and spoke to a BIA official, an oral lease or a new lease could not have been entered into.

[00:27:11] Speaker 03:
The cancellation notice make reference to the regulation?

[00:27:14] Speaker 00:
Yes, Your Honor.

[00:27:16] Speaker 00:
So in this particular case, because the written leases were in effect at this time, an oral lease could not be created.

[00:27:23] Speaker 00:
And beyond that, no BAA official had the authority to enter into a new, unilaterally enter into a new oral lease on behalf of the Indians or the United States in this case.

[00:27:34] Speaker 00:
Because as I indicated, the United States has never, any waiver of sovereign immunity must be explicit and cannot be implied from the actions of the parties in this case.

[00:27:44] Speaker 00:
And then finally to plaintiff's third claim.

[00:27:46] Speaker 00:
Plaintiffs have failed the state of takings claim in this case, Your Honor, because plaintiffs explicitly allege that they are entitled to prevail on their takings claim because the BIA acted unlawfully or because the BIA acted contrary to their regulations.

[00:27:59] Speaker 00:
And this court's decisions in Lyon, Raisins, Del Rio, Rith Energy explicitly state that if a plaintiff claims that they

[00:28:08] Speaker 00:
that they should prevail on their taking claim because the agency acted unlawfully, that is not a takings claim.

[00:28:14] Speaker 00:
And that is what plaintiffs amended complaint explicitly says here.

[00:28:17] Speaker 00:
So the plaintiffs have failed to state a takings claim.

[00:28:21] Speaker 04:
OK.

[00:28:21] Speaker 04:
Thank you, Ms.

[00:28:22] Speaker 04:
Smarto.

[00:28:23] Speaker 00:
Thank you, Your Honor.

[00:28:25] Speaker 04:
Mr. Pichotta, you have two minutes here.

[00:28:29] Speaker 02:
Just briefly, Your Honor.

[00:28:33] Speaker 02:
The United States is a title holder to this land.

[00:28:36] Speaker 02:
It holds a legal title.

[00:28:37] Speaker 02:
We know that.

[00:28:40] Speaker 02:
They're the ones that wrote the letter on April 18th terminating the lease.

[00:28:48] Speaker 02:
They're the ones that revived the lease.

[00:28:50] Speaker 02:
When they revived the lease, however you look at it, there had to be something that came over, that took precedent over that April 18th.

[00:29:03] Speaker 02:
termination letter.

[00:29:05] Speaker 02:
And so it was revived by the Bureau in this case on behalf of the Indians.

[00:29:13] Speaker 02:
They did it.

[00:29:14] Speaker 02:
It was Bureau people, not the Indians.

[00:29:17] Speaker 02:
So they made that particular agreement.

[00:29:20] Speaker 02:
Now they have authority, as I said, and I cited the various provisions of the regulations in my brief about the authority of the Bureau to take

[00:29:33] Speaker 02:
extraordinary actions to protect and make sure that the land is feed generating.

[00:29:41] Speaker 02:
And that's what they were doing in this particular case because they had to make sure that this land was farmed and

[00:29:50] Speaker 02:
there was some money generated for it for the owners of the land to have when the farm products were harvested in the fall in this case.

[00:30:03] Speaker 02:
So clearly, they took the action here in this case.

[00:30:12] Speaker 02:
As far as what we could have done,

[00:30:19] Speaker 02:
The April 18th letter, if that's the termination letter, we had 30 days to appeal.

[00:30:25] Speaker 02:
When we were thrown off the land on June

[00:30:31] Speaker 02:
Soon after June 3rd there was 30 days that expired couldn't appeal that and so we didn't have any we didn't have any Solution to to Try to get some recompense for the money that we were out in this case