[00:00:00] Speaker 01:
One submitted.

[00:00:01] Speaker 01:
But before we do, I have a motion for admission to the bar.

[00:00:09] Speaker 01:
And since I'm making the motion, of course, I can't decide it.

[00:00:15] Speaker 01:
So Judge Toronto will preside.

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And assuming I prevail, I move the admission of Laura Elizabeth Powell.

[00:00:29] Speaker 01:
was a member of the bar, as I won't discuss, and is in good standing with the highest courts of Georgia and the District of Columbia.

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I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

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Ms.

[00:00:45] Speaker 01:
Powell has a law degree from Vanderbilt University in Nashville, Tennessee.

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And she has a, this is particularly impressive to me, a Bachelor of Science in Public Policy where she specialized in science and technology, technology policy and energy systems at the Georgia Institute of Technology in Atlanta.

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And she also spent some time at Oxford, which of course is not Cambridge, but it's pretty good.

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And she also clerked for Judge Sleet in the District of Delaware, which is as patent heavy a place as you can be.

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So I move her admission to the bar of this court.

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I support the motion.

[00:01:38] Speaker 05:
OK, well then the motion is granted.

[00:01:40] Speaker 05:
And you want to stand up and get sworn in?

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Welcome to the bar.

[00:01:47] Speaker 00:
Thank you.

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Please raise your right hand.

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Do you solemnly swear that you will support yourself as an attorney and counselor in the support of writing and according to law, and that you will support the Constitution of the United States of America?

[00:02:01] Speaker ?:
Thank you.

[00:02:01] Speaker 01:
Welcome to the Bar of the United States of America.

[00:02:06] Speaker 01:
Please raise your right hand.

[00:02:11] Speaker 01:
I won my first motion.

[00:02:14] Speaker 01:
OK.

[00:02:14] Speaker 01:
That's in an industrial park.

[00:02:17] Speaker 01:
Mr. Levikoff?

[00:02:20] Speaker 02:
Good morning, your honor.

[00:02:21] Speaker 01:
You want to keep four minutes for your revival?

[00:02:24] Speaker 02:
I would like to, please.

[00:02:25] Speaker 02:
I'm not sure I can top that presentation, but I shall do my best.

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May it please the court, my name is Edward Levikoff with the Levikoff Law Firm.

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I appear before your honors on behalf of the appellant, Gadsden Industrial Park.

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I will refer to them as GIP, I'm sure.

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So if I refer to them as GIP, that's who I'm referring to.

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The Fifth Amendment to the Constitution of the United States states in the express letter, nor shall private property be taken for public purpose without just compensation.

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And in the cases that we cite in our principal brief, that amendment and the notion of just compensation is described as a fundamental component of equal justice under the law.

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GA 26263, GIP, references donations of slag for parking lots and so on.

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Did they claim a monetary benefit?

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and value it?

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Candidly, I'm not sure.

[00:03:35] Speaker 02:
I'm not sure that appears in the evidence.

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And I frankly don't know the answer.

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I believe that might give a valuation.

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Let me answer you this way.

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Whatever the tax requirements might have been, I'm sure my client complied with them.

[00:03:50] Speaker 05:
Can I just ask you, it seems to me a number of issues have been raised here, mostly on the government side.

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But let me just so you know what I'm

[00:04:00] Speaker 05:
focused on.

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One is as to their argument about the non-metallic material, namely the slag.

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The question, why isn't all of your interest in that still on site and therefore not taken?

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420,000 cubic yards.

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And then on the other side,

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What case would stand for the proposition that a trial court in a takings case is obliged to, having rejected the plaintiff's evidence of a calculation of damages,

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obliged to do the work himself, in this case, to create his own damages here.

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Either one, I don't care the order, but those are the two that I come in focused on.

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Two excellent questions.

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I'll answer them in the order in which they were presented.

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I think they get to the heart of many of the matters.

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As to the slack, the answer is twofold.

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Number one,

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The lower court found that all of the slag was taken because it has been what he called embalmed permanently.

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What is the record support for that?

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The record support for that is also twofold.

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Number one, Don Casey testified that the slag has been mixed with trash and therefore is unusable.

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And second of all... Did you have a site for that?

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I do.

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I do.

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Please.

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We will.

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It's your time.

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I have to get that.

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You can do that on your response.

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Thank you.

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I appreciate that.

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And there's testimony to that effect.

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We do cite it in our brief, and I will find that for my rebuttal time.

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I will get you a cite to this.

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So there's a cite that it was mixed with trash, and therefore it can no longer be obtained?

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Correct.

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What about, I believe there was a question, the court below said that it wasn't capped

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But they did say that it was encapsulated.

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What is encapsulated?

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What is capped?

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Are they different things?

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Cap refers to placing a cap cover on top of it.

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And that was the stated intent of the EPA at the inception of the project.

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And in fact, that was never done.

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I don't recall the word encapsulated.

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I'm not saying it's not in the opinion.

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He does say embalmed.

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And what he means by that is that it's unusable.

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And again, I will locate Don Casey's testimony to that effect.

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It is cited in our brief.

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We make the point that the government takes issue with that factual finding.

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But not only is it supported by the record, but in further answer to your question,

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The court visited the site and saw it with his own eyes.

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The court did not cite any record evidence to support that finding.

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Correct.

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And so I would just say these sites are, to me, very important.

[00:07:47] Speaker 02:
Sure.

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In its opinion, it did not.

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I will find you the record citation.

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And again, I will be ready with that on rebuttal.

[00:07:53] Speaker 01:
Capping is designed to prevent percolation and leaching of substances out of the heap, right?

[00:08:03] Speaker 02:
Correct, which was the principles, the stated concern of the EPA and wasn't done in this case.

[00:08:11] Speaker 01:
That's going on, is it not?

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One would think, to the extent that was ever a bona fide environmental hazard, that one would think that, indeed, that is still occurring.

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And further to your point, the offensive leachate comes from slag, which is the slag that the EPA's project

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intended all along and did leave on site.

[00:08:35] Speaker 02:
All they took away was the non-hazardous, valuable, saleable metallics, which gets to Judge Taranto's second question, which if you would remind me what your second question is.

[00:08:47] Speaker 05:
Your case in your affirmative appeal says that even though the Court of Federal Claims rejected your calculation

[00:08:58] Speaker 05:
It was error to stop there.

[00:09:00] Speaker 05:
He should have gone on and created his own, because the materials were there to do so.

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And my question is, if he had gone on, I don't think anybody would dispute his discretion.

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Anyway, I wouldn't dispute his discretion.

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But you're disputing his discretion to stop there and say, it's your job.

[00:09:19] Speaker 02:
You failed in your job.

[00:09:21] Speaker 02:
I'm done.

[00:09:21] Speaker 02:
It strikes at the heart of this case, your question.

[00:09:25] Speaker 02:
Here's the answer.

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The court didn't.

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credit the defense presentation that this material was valueless.

[00:09:32] Speaker 02:
Quite to the contrary, as the court had to do, given the body of record evidence, the court repeatedly found that this material has value.

[00:09:43] Speaker 02:
He just couldn't figure out exactly how much.

[00:09:45] Speaker 02:
No, he said you didn't figure out exactly how much.

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He said we didn't prove with mathematical precision.

[00:09:52] Speaker 03:
He said with reasonable certainty.

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And in so doing, he made a number of errors in why he rejected Mr. Gleason, and I'm happy to discuss those errors.

[00:10:01] Speaker 03:
But the question is this.

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What case or cases do you have for the proposition that the district court had an obligation to figure out the amount of damages if there is such a thing?

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Did he have an obligation, or is it more that

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If he's able to, he can.

[00:10:18] Speaker 03:
And then the other question is, I guess, well I have other questions, specific questions, but why don't you answer that first question?

[00:10:26] Speaker 02:
First and foremost, the principles that inform the discussion of just compensation all say that it's a flexible concept, that the idea is to do substantial justice.

[00:10:37] Speaker 02:
That's quoting from the United States versus Miller Supreme Court case in 1943.

[00:10:42] Speaker 02:
The just compensation principle.

[00:10:45] Speaker 05:
I guess just to put a finer point on it,

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That doesn't seem to me to answer the question.

[00:10:51] Speaker 05:
Do those principles override normal litigation procedural principles whereby if a plaintiff with the burden on the issue, which is undisputed, fails to make a case that the trial court can say

[00:11:06] Speaker 05:
you're done, I'm not going to, even if I could, make the case for you.

[00:11:10] Speaker 02:
Because this case involves a constitutional right, the answer is yes.

[00:11:16] Speaker 01:
Are you saying, OK, what authority?

[00:11:18] Speaker 01:
Because I couldn't find anything.

[00:11:19] Speaker 01:
I'm getting there.

[00:11:19] Speaker 01:
Yep.

[00:11:20] Speaker 01:
What authority says that there is a constitutional obligation on the part of a court when there's a failure of evidence

[00:11:28] Speaker 02:
obligated to move forward, not ability.

[00:11:32] Speaker 02:
I'm going to cite you two important cases.

[00:11:35] Speaker 02:
One is, in our brief, we cite the Whitney case, which relies on Almada Farmers, which is a 1973 United States Supreme Court case, which says that the concept of just compensation imposes on the court the duty of determining what compensation is just.

[00:11:53] Speaker 02:
Second of all, this court,

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in the Otay Mesa case that we cite.

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That case really is the case, in my view.

[00:12:02] Speaker 03:
But isn't that a case where both parties presented evidence on what the damages would be and the district court or the lower court in its discretion fashioned a different amount of damages?

[00:12:18] Speaker 03:
No doubt about it.

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There's nothing in here that says that the court has to.

[00:12:22] Speaker 03:
It says that it may.

[00:12:23] Speaker 02:
Well, actually, there's a very critical quote in that decision that says, where the parties presented extreme and divergent positions, which is certainly the case in this case, and the court rejected both of them, which is also the case in this case.

[00:12:39] Speaker 02:
This court says the trial court had, and I quote, few options but to fashion its own award.

[00:12:47] Speaker 02:
What that is saying is that the text of the Fifth Amendment states

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You can't take a private citizen's property without paying just compensation.

[00:12:57] Speaker 02:
And what that's saying is, if the government seizes private property, offers nothing, tenaciously litigates, the plaintiff prevails on every issue except the technical quality of some of its damages evidence, the court has few options but

[00:13:15] Speaker 02:
But if it disagrees with Mr. Gleason, who was GIP's damages expert, the court was duty bound to go into the record and afford just compensation.

[00:13:25] Speaker 02:
Because a zero award under circumstances like these, where the government seizes property and sells it for $13.5 million, a zero award under that circumstance is unjust.

[00:13:38] Speaker 02:
And justice is built into the text of the Constitution.

[00:13:41] Speaker 03:
Can I ask you something specific?

[00:13:42] Speaker 02:
Am I going into my time?

[00:13:44] Speaker 03:
Oh.

[00:13:45] Speaker 03:
You're going?

[00:13:46] Speaker 03:
Yeah.

[00:13:47] Speaker 03:
I don't want to eat up your time, but I do have questions that I want to ask you.

[00:13:51] Speaker 03:
Please, go ahead.

[00:13:52] Speaker 03:
So I want to ask you, what about the avoided costs?

[00:13:56] Speaker 03:
It seems to me, I mean, I look through all the record evidence.

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I look through the testimony of Mr. Gleason and the government's damages expert.

[00:14:05] Speaker 03:
And how would you calculate avoided costs in a way that's different than the way Gleason did?

[00:14:15] Speaker 03:
I mean, it seems to me that that's where the real problem is.

[00:14:18] Speaker 02:
Yeah, well, interestingly, to me, that's really the only variable.

[00:14:22] Speaker 02:
I mean, we know the amount of material that was taken and sold.

[00:14:25] Speaker 02:
We know what it's sold for.

[00:14:27] Speaker 02:
We even know the pricing, which... I agree with you, but that's why I'm focusing in on this.

[00:14:31] Speaker 02:
The variable is the cost.

[00:14:33] Speaker 02:
At the outset, that is the government's burden.

[00:14:36] Speaker 02:
Once the value of the material is established,

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It would be the government stream.

[00:14:43] Speaker 03:
You mean the revenue?

[00:14:44] Speaker 03:
Once you established the revenue stream, then they had to show what you would have...

[00:14:50] Speaker 03:
the costs you would have incurred in order to get that revenue?

[00:14:52] Speaker 02:
Absolutely.

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I think that makes them.

[00:14:54] Speaker 03:
What case do you have to support that?

[00:14:56] Speaker 02:
Well, there isn't a case that stands for that precise proposition.

[00:14:59] Speaker 02:
But it's not surprising.

[00:15:01] Speaker 02:
Well, but once you establish that the government seized private property and sold it for millions and millions of dollars, that makes a prima facie showing.

[00:15:11] Speaker 02:
If the government has evidence that would mitigate damages and show that that compensation would be unjust, that's the government's burden.

[00:15:18] Speaker 03:
But your damages would not be the revenue.

[00:15:20] Speaker 02:
But not withstanding that, the court, in its opinion, says, well, I think the costs are more like $7 million plus freight.

[00:15:29] Speaker 02:
And freight would have been about a million and a half.

[00:15:31] Speaker 02:
So if you take the $13.5 million in revenues, subtract what the court thought was $7 million in costs instead of the $4.9 that Gleason said, you add freight, you end up with an award of $5 million.

[00:15:46] Speaker 02:
That is the precise inquiry that the court should have made.

[00:15:50] Speaker 02:
Or the court's empowered to take more evidence, to order more evidence, or even to appoint its own expert.

[00:15:58] Speaker 02:
But the court can't throw up its hands.

[00:16:01] Speaker 02:
It can't just throw up its hands and say, there's a constitutional duty that when the government seizes property, and I just can't figure it out, and therefore you get nothing.

[00:16:12] Speaker 02:
This isn't the case.

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where GIP came in and thrust itself on the court and said, you figure it out.

[00:16:18] Speaker 02:
It made a comprehensive damages analysis.

[00:16:21] Speaker 02:
The court just had qualms with this component and that component.

[00:16:28] Speaker 01:
You want to reserve your time?

[00:16:29] Speaker 01:
Please.

[00:16:30] Speaker 01:
I'll give you a couple of minutes.

[00:16:51] Speaker 04:
May it please the court.

[00:16:53] Speaker 04:
And I'd like to start off with where?

[00:16:55] Speaker 01:
Well, let's start off with some questions.

[00:16:56] Speaker 04:
OK, yes.

[00:16:57] Speaker 01:
On page four of the red brief, the government refers to the North and South piles as, quote, enormous, undifferentiated garbage dumps.

[00:17:06] Speaker 01:
Yes, Your Honor.

[00:17:07] Speaker 01:
Other than leftover food from the army, does the government often sell garbage for profit?

[00:17:15] Speaker 04:
So if you're talking about when it was sold in bankruptcy,

[00:17:17] Speaker 04:
No, I'm talking about when you sold the contents for mining purposes.

[00:17:23] Speaker 04:
The piles were undifferentiated garbage.

[00:17:25] Speaker 04:
That's undisputed.

[00:17:27] Speaker 04:
These were their waste piles.

[00:17:28] Speaker 04:
They actually found a railroad car buried in these piles.

[00:17:32] Speaker 04:
Nobody knew what was in it.

[00:17:33] Speaker 04:
What we did with Harsco was we had a contractor out there, and they let Harsco dig.

[00:17:39] Speaker 04:
And Harsco paid the contractor who was doing the environmental remediation part of what they were earning from the dig.

[00:17:46] Speaker 04:
But ultimately, there were no profits.

[00:17:48] Speaker 04:
This was done at a loss.

[00:17:50] Speaker 04:
The whole point here was not to make profits for the government, but to try to remediate this pile as cheaply as possible.

[00:18:02] Speaker 05:
This was about a four and a half year Harsco project.

[00:18:05] Speaker 04:
Yes, it was.

[00:18:05] Speaker 05:
2009 to 2013.

[00:18:06] Speaker 05:
That's correct.

[00:18:07] Speaker 05:
And it turned unprofitable in roughly the last year.

[00:18:11] Speaker 04:
The first year and a half was profitable.

[00:18:12] Speaker 04:
The testimony, I believe, Your Honor, the first year and a half was profitable.

[00:18:15] Speaker 04:
Then it became less profitable, unprofitable.

[00:18:18] Speaker 04:
And the testimony from our expert was that if you put it all together, it was a losing proposition for Harsco.

[00:18:24] Speaker 05:
Right, but why wouldn't one ask the question from GIP's perspective?

[00:18:32] Speaker 05:
Maybe it would have turned unprofitable, but if GIP were running it, it would have stopped

[00:18:39] Speaker 05:
its own mining before it turned unprofitable.

[00:18:43] Speaker 05:
So there might have been, what did you say, a year and a half or two years worth of profitable digging, and at least it could have gotten that because as soon as it saw it was unprofitable to continue, it would have just stopped.

[00:18:56] Speaker 04:
Well, respectfully, Your Honor, two things.

[00:18:58] Speaker 04:
One, the plaintiffs claimed the revenue from everything that was pulled out of it.

[00:19:02] Speaker 04:
So the argument that you're making, they didn't make that.

[00:19:06] Speaker 04:
They wanted every last piece of metal done for the four years.

[00:19:09] Speaker 04:
That means that they had to eat the costs for the four years.

[00:19:11] Speaker 04:
The second thing, Your Honor, is because they said that the taking happened on June 4, 2008, that was their claim.

[00:19:17] Speaker 04:
They had to value the property before the property was cracked open.

[00:19:22] Speaker 04:
Takings law says, and this is under the Miller case and the Kirby case, that you value the property on the date of the taking as it is.

[00:19:31] Speaker 04:
And as it was on that date, nobody knew what was in there.

[00:19:34] Speaker 04:
So the proper method of valuation was to say, OK, willing buyer, third party, come up.

[00:19:41] Speaker 04:
What would you pay for the right, nobody knows what's in there, to dig in these piles?

[00:19:45] Speaker 04:
We do know it's a superfund site.

[00:19:47] Speaker 04:
But to dig in these piles and to pull out what you're going to pull out, you take all the risk, you get to keep it.

[00:19:52] Speaker 04:
What would you pay for that right on this date?

[00:19:55] Speaker 04:
And the trial court said that is the way to do it.

[00:19:58] Speaker 04:
And he said that the plaintiffs didn't try to do it that way.

[00:20:00] Speaker 04:
The quote was, plaintiff's expert, quote, did not attempt to reconstruct what a willing buyer would have paid for materials in the piles using what was known and knowable at the time.

[00:20:10] Speaker 04:
That was the fundamental error of the methodology.

[00:20:12] Speaker 04:
And the reason was they were swinging for the fences.

[00:20:15] Speaker 05:
They wanted $10 million, and so they wanted- But this swinging for the fences, I forget you used a similar phrase two minutes ago, isn't that what the quote from Ote Mesa addresses, namely, it's, you know, one could say that on your side, you too were swinging for the fences, or in Ote Mesa, one extreme on one side, another extreme on the other.

[00:20:38] Speaker 05:
Isn't there, as long as the material, the evidence,

[00:20:43] Speaker 05:
is in the record and not too far-fetched that if the trial court could make a reasonable estimate, why shouldn't the trial court have to do that?

[00:20:55] Speaker 04:
Your Honor, we don't believe the trial court should have to, but we don't believe the trial court could.

[00:20:59] Speaker 04:
The trial court rejected every aspect, methodology, the revenue, the cost, the expert himself.

[00:21:07] Speaker 04:
The trial court rejected every aspect of the plaintiff's efforts to prove compensation.

[00:21:13] Speaker 04:
And there is simply no way, absent another trial and letting them bring in a new theory and new experts and basically have a reading.

[00:21:20] Speaker 03:
What about the court's reference to Harsco's revenue, I guess, of like, what, $13.7 million?

[00:21:27] Speaker 03:
And then also estimating, although loosely, the avoided costs at $7 million.

[00:21:35] Speaker 03:
Why couldn't that satisfy the...

[00:21:39] Speaker 03:
Why couldn't the court of claims have relied on those amounts in order to calculate the amount of damages?

[00:21:46] Speaker 04:
Respectfully, Your Honor, that was everything that Harsco dug out of the pit, out of these piles.

[00:21:52] Speaker 04:
Nobody knew on the date of the alleged taking how much they were going to get it.

[00:21:56] Speaker 04:
So to give the plaintiffs the benefit of knowledge that nobody had would be like, if the government took your lottery ticket before the lottery, and that's a dollar.

[00:22:06] Speaker 04:
We took something worth a dollar.

[00:22:08] Speaker 03:
The Court of Federal Claims did mention that 13.7 number as being a better number than the one that Mr. Gleason provided, right?

[00:22:16] Speaker 04:
He mentioned that number, but that number was an ex post number, a number that was derived four and a half years after the alleged taking.

[00:22:23] Speaker 04:
So respectfully, Your Honor, we don't believe that could be any part of any valuation based on- Why wouldn't that fall under

[00:22:33] Speaker 05:
going back to the 1930 Supreme Court decision in Sinclair, be called information you get from the book of wisdom that is written after the date in question but tells you something about what somebody might do on the date in question.

[00:22:53] Speaker 04:
You know what I'm referring to?

[00:22:54] Speaker 04:
I do understand what you're referring to, Your Honor.

[00:22:56] Speaker 04:
In taking this law, what that would be doing is you'd be giving somebody who owns property

[00:23:01] Speaker 04:
value that did not exist at the time that they owned the property.

[00:23:04] Speaker 05:
No, you would just be using that as evidence of what somebody might have paid for the mining right that Harsco, in fact, bought itself.

[00:23:17] Speaker 04:
But nobody driving up on the day of the taking would know that information.

[00:23:20] Speaker 04:
So the Supreme Court in Miller, for example, said, under this standard, the owner is entitled to receive, quote, what a willing buyer would pay in cash to a willing seller

[00:23:29] Speaker 04:
at the time of the taking.

[00:23:30] Speaker 04:
It has to be what a third party would drive up on that day.

[00:23:34] Speaker 04:
The amount of stuff in these trash piles, the environmental risk that existed with these trash piles meant that at that time you can't go ahead and keep, unlike the book of wisdom,

[00:23:46] Speaker 04:
You're not allowed to do that in takings law.

[00:23:48] Speaker 04:
In the Kirby case, the Supreme Court was very clear that you have to use, it's the knowledge only at the time.

[00:23:55] Speaker 04:
We don't peek ahead based on valuation principles.

[00:23:58] Speaker 04:
And if I can go to what Your Honor asked earlier.

[00:24:00] Speaker 04:
I have some questions I want to ask.

[00:24:02] Speaker 01:
Oh, please, Your Honor.

[00:24:03] Speaker 01:
On page 8 of the Red Brief, the government asserts that Gadsden, quote, represented

[00:24:10] Speaker 01:
that it had already used its allotment of slag and indicated that it was amenable to treating the reasonable period of time language as ending whenever the EPA needed to go to work on the solid waste piles.

[00:24:22] Speaker 01:
Yes, Your Honor.

[00:24:23] Speaker 01:
And then it proceeds to provide six separate sites which purportedly support this assertion.

[00:24:30] Speaker 01:
Let me take you to JA 2400, please.

[00:24:36] Speaker 01:
Yes, Your Honor.

[00:24:41] Speaker 01:
That's some handwritten notes.

[00:24:43] Speaker 04:
Yes, Your Honor.

[00:24:43] Speaker 04:
Those were notes made at a meeting with Mr. Casey.

[00:24:46] Speaker 04:
And there was testimony about the contents of these notes where the author expressly said, well, the notes actually, I think, speak for themselves.

[00:24:55] Speaker 04:
Yes, I think so.

[00:24:56] Speaker 04:
If you'll turn to that page.

[00:25:01] Speaker 04:
McGip, that's the plaintiff, still saying they don't own the slag until they take it.

[00:25:08] Speaker 04:
Do you see where I'm pointing, Your Honor?

[00:25:10] Speaker 04:
Or do you see where I'm referring to?

[00:25:12] Speaker 01:
No, I want to go where I'm pointing.

[00:25:14] Speaker 01:
Oh, yes, Your Honor.

[00:25:14] Speaker 01:
If you see in heavy lettering, oh, 1, 2, 3, 4, 5, 6, or so up, GIP and heavy lettering on the left.

[00:25:25] Speaker 05:
Six lines from the bottom.

[00:25:26] Speaker 01:
Yeah, six lines from the bottom.

[00:25:28] Speaker 01:
Yes.

[00:25:29] Speaker 01:
OK.

[00:25:29] Speaker 01:
And the line above that.

[00:25:30] Speaker 01:
The word kish there?

[00:25:34] Speaker 04:
I just want to make sure.

[00:25:35] Speaker 04:
Is that where your court's referring?

[00:25:36] Speaker 04:
Yes, it begins at cash.

[00:25:37] Speaker 04:
Yes, Your Honor.

[00:25:38] Speaker 01:
The sentence at the end of that line that says, in plain English, they own piles.

[00:25:45] Speaker 01:
Yes.

[00:25:46] Speaker 04:
If that was their position.

[00:25:49] Speaker 04:
So let me just take you back to this point, because that's very important.

[00:25:52] Speaker 04:
At this point, the EPA wants to know who owns the piles because it wants to establish environmental liability.

[00:25:58] Speaker 04:
If the plaintiffs had said, we own the piles, EPA would have been thrilled.

[00:26:02] Speaker 04:
Because at that point, EPA doesn't have to pay for the cleanup.

[00:26:05] Speaker 04:
The plaintiffs do.

[00:26:06] Speaker 04:
In fact, the trial court expressly said that the plaintiffs were vague every time they talked about this.

[00:26:11] Speaker 04:
They didn't want to take liability for the piles.

[00:26:13] Speaker 04:
So Your Honor, I see that it says that.

[00:26:15] Speaker 04:
But if the plaintiffs had said, we own the piles and everything that's in them.

[00:26:20] Speaker 04:
You see that it says that.

[00:26:21] Speaker 04:
It does.

[00:26:22] Speaker 04:
And if that had been the position of GIP at the time as opposed to now, then the EPA, the next thing would have been writing, then you are financially responsible for all of the environmental problems in this pile.

[00:26:35] Speaker 04:
You cited me to that page.

[00:26:38] Speaker 04:
I did.

[00:26:38] Speaker 04:
And the next sentence says, and this person's taking notes,

[00:26:41] Speaker 04:
And I don't remember if there was testimony about that line or not, but the next line says they don't own the slag until they take it.

[00:26:48] Speaker 04:
And so we do believe, and the trial court cited some of these documents and said that, more or less if you read between the lines, more or less said they were intentionally vague because they wanted to avoid liability.

[00:27:00] Speaker 04:
And Your Honor, I would say that my counsel at the bar said, my colleague at the bar said that justice requires this if the plaintiffs

[00:27:07] Speaker 04:
hadn't played games with the EPA and basically denied ownership of these materials that they now claim ownership of, the EPA never would have gone out there.

[00:27:15] Speaker 04:
They would have told the plaintiffs to go out there that they had to do the cleanup.

[00:27:18] Speaker 04:
So to come in here, I won't say unclean hands, but to come in here and basically after twisting things with the EPA and undermining so that the EPA felt they had to go out there and do the cleanup to now say, oh, we're being denied justice, that's not fair.

[00:27:32] Speaker 04:
If they had just said, we own everything in that pile, we're responsible for that pile, then we wouldn't be here because they would have been out on the piles cleaning them up.

[00:27:41] Speaker 05:
Even today, their position is not that they own everything in the pile, rather that they own

[00:27:45] Speaker 05:
all the metal, let's call it, and 420,000 cubic yards of slag.

[00:27:52] Speaker 04:
But under environmental regulations, the slag was the thing that was actually causing the leachate.

[00:28:00] Speaker 04:
And anybody who digs in those piles becomes responsible for them, which is why they said... Even a non-owner?

[00:28:07] Speaker 04:
Even a non-owner, unless, unlike the government's contractors, they had waivers from the EPA, but no private owner.

[00:28:14] Speaker 04:
No private person who went out there to try to make money would have those waivers.

[00:28:18] Speaker 04:
I mean, those piles are sitting there.

[00:28:20] Speaker 04:
The testimony... Were they capped?

[00:28:22] Speaker 04:
No, they're not capped.

[00:28:23] Speaker 04:
And the testimony was very clear that they never... In fact, the trial court found that they were never capped.

[00:28:28] Speaker 01:
I understand.

[00:28:28] Speaker 04:
So the point is, why not?

[00:28:30] Speaker 04:
Because what they did instead was they curved them like this so that the rainwater would pour off them.

[00:28:35] Speaker 04:
And the truth is also that they ran out of money.

[00:28:38] Speaker 04:
And so they curved them.

[00:28:40] Speaker 04:
They believed that that was as good as they could do.

[00:28:42] Speaker 04:
And they left.

[00:28:42] Speaker 03:
The testimony... And that's the embalming?

[00:28:45] Speaker 04:
There's no testimony about embalming.

[00:28:47] Speaker 04:
And the trial court never made factual findings in any way about anything being bombed.

[00:28:51] Speaker 04:
In fact, the testimony was that anybody could go out there and dig right now.

[00:28:56] Speaker 03:
What are your sites for that?

[00:28:57] Speaker 04:
Okay, so the... Nothing stopped me from thinking A1064, 1065.

[00:29:04] Speaker 04:
They were only contoured.

[00:29:08] Speaker 05:
Mr. Levikoff, I think, said that there was testimony from Mr. Casey.

[00:29:14] Speaker 04:
It's mixed with trash, yes, Your Honor.

[00:29:15] Speaker 05:
It's mixed with trash, and I think the implication was we couldn't effectively separate the slag from the trash.

[00:29:23] Speaker 04:
Or garbage, in your words.

[00:29:25] Speaker 04:
Can I have the time to answer, Your Honor?

[00:29:28] Speaker 04:
Go ahead.

[00:29:31] Speaker 04:
These were waste piles.

[00:29:33] Speaker 04:
The citations, these were licensed waste piles.

[00:29:38] Speaker 04:
Everything was mixed with trash before anybody went out there.

[00:29:41] Speaker 04:
So to say that the slab was mixed with trash now, it's factually correct, but only because everything they found

[00:29:49] Speaker 04:
bins.

[00:29:50] Speaker 04:
They found, like I said, a railroad car.

[00:29:52] Speaker 04:
They found all kinds of trash out there.

[00:29:54] Speaker 04:
There were weeds growing on top of it when it first started.

[00:29:57] Speaker 05:
So to say that there was no trash.

[00:29:59] Speaker 05:
So the point is that even from the beginning, they must have known that there was going to be a lot of sifting to be done.

[00:30:06] Speaker 04:
Yes, sir.

[00:30:07] Speaker 04:
And that how they exist now is no different than how they were when Harsco found them in the beginning.

[00:30:14] Speaker 04:
And with that, I'll say it.

[00:30:44] Speaker 02:
Judge Stoll, to answer your earlier question, the appendix site is Appendix 265 and 266.

[00:30:55] Speaker 02:
Don Casey said, it's all mixed and trashed.

[00:30:57] Speaker 02:
They didn't size it.

[00:30:58] Speaker 02:
They just threw it in a pile.

[00:31:00] Speaker 02:
You can't sell it as slag.

[00:31:02] Speaker 02:
And then he goes on to repeat that.

[00:31:05] Speaker 02:
You can't sell it as slag.

[00:31:07] Speaker 05:
But if sifting is possible, why doesn't which, particularly

[00:31:12] Speaker 05:
Everybody knew from the very start that sifting was going to be needed.

[00:31:16] Speaker 05:
Why does that negate the idea that it's still there for the taking in a non-constitutional system?

[00:31:23] Speaker 02:
The contours of it has been changed since before the EPA did its project.

[00:31:27] Speaker 02:
So Mr. Opposing Council's representation

[00:31:32] Speaker 02:
that it's the same as it ever was is interesting, but it's not faithful to the record and it's not what the court below found as fact.

[00:31:39] Speaker 02:
Now this court needs to defer to that court's factual findings supported by the record.

[00:31:45] Speaker 02:
I mean, it used to be more mesa-like, with a flat top?

[00:31:51] Speaker 02:
It wasn't mixed with trash.

[00:31:52] Speaker 02:
It wasn't mixed with chemicals and trash.

[00:31:55] Speaker 05:
And therefore, it was- Does the citation that you provided to 6566 say that it didn't used to be mixed with trash?

[00:32:03] Speaker 02:
Well, other testimony, Don Casey's testimony is when he purchased it, it was reclamable.

[00:32:09] Speaker 02:
And the testimony I cited says that now it's not, and the court's so found.

[00:32:15] Speaker 02:
The notion that opposing counsel said that had GIP just expressed an interest and ownership interest in these materials, the EPA just would have backed off and let GIP have it is.

[00:32:31] Speaker 05:
Oh, I'm sorry.

[00:32:31] Speaker 02:
That's not what he said.

[00:32:32] Speaker 05:
He said that had you expressed an interest, then it would have, as a shorthand, succeeded in its CERCLA claims against you to make you clean it up.

[00:32:43] Speaker 02:
Well, I was going to say, what in fact the government did was threaten to GIP when GIP asserted rights in those piles and did file a circular action, and did file the circular action based on GIP's asserted ownership of the piles.

[00:33:00] Speaker 02:
that action was resolved in your favor?

[00:33:03] Speaker 02:
It was dismissed at the motion to dismiss stage.

[00:33:06] Speaker 02:
On what ground?

[00:33:07] Speaker 02:
That you weren't the owner?

[00:33:09] Speaker 02:
No, on the grounds that by owning slag it's not a site under the circle of statute.

[00:33:15] Speaker 02:
But the point is that the government, you need to wrap up, the government didn't intend to back off if GIP asserted ownership.

[00:33:26] Speaker 02:
GIP asserted a right, whether it called it ownership or a right to mine,

[00:33:30] Speaker 02:
or whatever, whatever Don Casey and his lay speak called it, he clearly asserted a right to go into those piles and get the value that he had purchased.

[00:33:40] Speaker 02:
And the notion that the government, if they had known that was his take, they would have approached this thing differently is, I hate to use the word, but it's facetious.

[00:33:50] Speaker 02:
I mean, they continue to contest.

[00:33:51] Speaker 02:
They continue to hotly contest ownership, whether there was a taking, whether there was value.

[00:33:58] Speaker 02:
Thank you.

[00:34:09] Speaker 04:
Thank you, Your Honor.

[00:34:11] Speaker 04:
So this is our cross appeal where we ask the court to reverse the award that was already made.

[00:34:17] Speaker 04:
What was the ground for the dismissal of your circle action?

[00:34:23] Speaker 04:
You know, Your Honor, in all honesty, I don't recall.

[00:34:26] Speaker 05:
I should have that in front of me, but I don't have that in front of me.

[00:34:28] Speaker 05:
If it was that to be an owner you need to own the land, then what you said before about the criticality of whether they owned the pile might not be terribly material.

[00:34:40] Speaker 04:
Well, if they claim to own the pile,

[00:34:43] Speaker 04:
And especially if they dug in the pile.

[00:34:46] Speaker 04:
So to get the stuff out, they had to go on the pile and dig it.

[00:34:49] Speaker 04:
If they were going to remove anything from the pile, my understanding of the EPA and the EPA told them this, which is why they kept saying that they didn't own.

[00:34:58] Speaker 04:
I mean, just to trace the record, Mr. Casey said,

[00:35:06] Speaker 04:
My understanding, A2832, in an email.

[00:35:12] Speaker 04:
My understanding is GIP does not own the two remaining slide piles, but does have the right to mine them.

[00:35:17] Speaker 04:
Mr. Casey in an email, February 0808, who bought the right to mine 400,000 cubic feet, which we may have already used.

[00:35:26] Speaker 04:
So he's saying that they may have already used it up, which gets to a second point that the court has asked about, whether they had any left.

[00:35:33] Speaker 04:
They did not keep any records.

[00:35:35] Speaker 04:
As far as, I mean, whether they were entitled to any more slag than what they'd already kept, they couldn't make the basic proof of how much they'd already taken off.

[00:35:43] Speaker 04:
And of course, the burden of proof was on them to show that they hadn't taken 420,000 cubic yards already.

[00:35:50] Speaker 05:
Can I ask you one very specific question having to do with the idea that the 420,000 that I'm going to assume they own is still there for the taking?

[00:36:00] Speaker 05:
It is.

[00:36:02] Speaker 05:
On page 8, appendix 8 of the Court of Federal Claims opinion, there's a sentence at the end of the first full paragraph.

[00:36:11] Speaker 05:
It says,

[00:36:13] Speaker 05:
In total, Mr. Casey estimated that GIP used or sold approximately 15,000 cubic yards of slag, which he estimated was 10% of the slag on the Eastern excluded property.

[00:36:27] Speaker 05:
So he estimated that there would be only 150 of slag?

[00:36:33] Speaker 04:
I know what you're talking about, John.

[00:36:36] Speaker 04:
Let me just pull it up, because as I understand what the point is.

[00:36:39] Speaker 04:
Six of the original.

[00:36:40] Speaker 04:
Yes.

[00:36:41] Speaker 04:
The last sentence of the immediately paragraph.

[00:36:49] Speaker 04:
In total, Mr. Casey estimated that Gibbs used or sold that one, which he estimated 10% of the slag on it.

[00:36:56] Speaker 04:
He may have estimated that, but I don't actually recall that testimony, but the testimony

[00:37:03] Speaker 04:
a number of people was that there were thousands and thousands of cubic yards.

[00:37:07] Speaker 04:
You said three to four million.

[00:37:12] Speaker 04:
When it started, it was 70 to 80 feet high and 10 acres wide.

[00:37:18] Speaker 04:
And there's two piles of it.

[00:37:19] Speaker 04:
And a lot of that was slag, the stuff that it was filtering through.

[00:37:22] Speaker 04:
So the site that I gave earlier was to Mr. Brady.

[00:37:28] Speaker 04:
OK.

[00:37:30] Speaker 04:
I'm sorry, I want to make sure that I answered you.

[00:37:35] Speaker 04:
When he was asked, question, do you have an opinion about whether there's significant slag left out in the pile?

[00:37:41] Speaker 04:
Answer, sure of it.

[00:37:43] Speaker 04:
So that's unrefuted testimony that there is slag out there to be taken.

[00:37:47] Speaker 04:
And of course, slag is fungible.

[00:37:49] Speaker 04:
So thank you.