[00:00:00] Speaker 03:
for argument is 19-1-9-0-1, Taylor versus United States.

[00:00:07] Speaker 03:
Mr. Dunn.

[00:00:10] Speaker 02:
Yes, Your Honor.

[00:00:11] Speaker 02:
May it please the Court?

[00:00:14] Speaker 02:
This case is a takings case involving my clients or our clients, Mr. Ray and I's clients, the Taylors and the United States Air Force in a takings matter.

[00:00:25] Speaker 02:
As an initial matter, I would like to describe our argument to the Court as flowing through

[00:00:30] Speaker 02:
two veins that start when the court of claims essentially fell into what Judge Block of the court of claims in Hanson versus United States, which is 65, federal claim 76, described as a Serbonian bog.

[00:00:48] Speaker 02:
That Serbonian bog that we fell into in this case runs through two veins, as I said.

[00:00:53] Speaker 02:
One is that the court of claims in this matter

[00:00:57] Speaker 02:
part and parceled the claim into different pieces, which led to this quagmire concerning takings versus sounding in tort.

[00:01:11] Speaker 02:
The other way that we fell into this bog was that this decision was ultimately premature based upon the development of the factual record.

[00:01:21] Speaker 02:
In describing how the tailors came to end up in this situation, I think this is why we think that the case should be examined holistically.

[00:01:27] Speaker 02:
The tailors, of course, have a ranch in the area of Covis, New Mexico, close to the Air Force base.

[00:01:34] Speaker 02:
And after purchasing that ranch, and at some point, the United States Air Force began flying training routes across the ranch, sometimes very low levels, under 100 feet, very close to being just off the deck.

[00:01:50] Speaker 02:
That continued on for quite some time.

[00:01:53] Speaker 02:
but didn't really become a real issue and didn't really make the takings in this matter right until the Air Force took the actions to make this permanent.

[00:02:03] Speaker 02:
And they did that by, and this is where the confusion, I think, of the court between sounding in tort and takings comes to bear.

[00:02:11] Speaker 02:
They did this in some fashion.

[00:02:13] Speaker 02:
And then again, because the factual record is not very well developed, we don't know exactly what the Air Force said to the

[00:02:21] Speaker 02:
wind energy company did something to cause, whether they stepped into the shoes or used coercive force or coercive authority, not force, to cause the wind energy company to cancel the existing wind energy lease and to stop the development of the wind energy project just before it begins.

[00:02:42] Speaker 04:
Judge O'Malley, the complaint that you filed actually lays out

[00:02:49] Speaker 04:
the elements of a tort citing to New Mexico law.

[00:02:54] Speaker 04:
How it was, of course, wrong in concluding that at least that portion of your complaint sounded in tort?

[00:03:05] Speaker 02:
I think I would, again, refer back to the decision of Judge Block in Hanson versus United States.

[00:03:11] Speaker 02:
In that case, Judge Block said that the best that can be said is that not all torts are takings, but not all takings by physical invasion

[00:03:19] Speaker 02:
I'm sorry, but that all takings by physical invasion have their origin in tort law and are types of governmental nuisance or at times trespasses.

[00:03:30] Speaker 02:
We ultimately are relying on what appears to be tortious interference and yes, it is pledged that way because we really don't know

[00:03:38] Speaker 02:
what type of authority or how the U.S.

[00:03:40] Speaker 02:
Air Force went about this because we haven't had the opportunity to really get into any sort of discovery and talk to the wind energy company about how this came about or to the government about what actions they took.

[00:03:52] Speaker 02:
We haven't had that opportunity.

[00:03:54] Speaker 02:
So relying on best what we can, we described what is essentially a tort.

[00:03:58] Speaker 02:
But again, this isn't necessarily fatal to these claims.

[00:04:00] Speaker 02:
In fact, Justice Thomas recently in the Nick versus Township of

[00:04:05] Speaker 02:
Scott Case in his concurring opinion said, I do not understand the court's opinion to foreclose the application of remedial principles to take these claims and related common law tort claims such as trespass.

[00:04:17] Speaker 02:
This may sound in both, but that's not necessarily something that's fatal.

[00:04:21] Speaker 02:
And that gets to the point that ultimately the court of claims jumped the gun here and was premature in dismissing this case on that premise.

[00:04:30] Speaker 02:
I really believe that that's part of this Cervonian bog

[00:04:34] Speaker 02:
And that's why ultimately we brought up United Nuclear at oral argument and why we've in our briefing in this case now cited to A&E auto sales is that we're not quite sure what exactly the government did, but they were conducting low level over flights with a regular frequency.

[00:04:50] Speaker 02:
And in this instance, one a year of regular frequency would be enough to deprive the tailors of the use of their airspace.

[00:05:02] Speaker 02:
That's really what was going on.

[00:05:03] Speaker 02:
The Air Force is using this airspace.

[00:05:05] Speaker 02:
They've got a navigation easement established, and they wanted to make sure that nothing interfered with that navigation easement they'd taken.

[00:05:12] Speaker 02:
So they took actions, whatever they might have been, and we don't know yet, to make sure that that remained permanent by making sure that this wind energy project, which was going to interfere with that easement, never came to fruition.

[00:05:24] Speaker 02:
We believe that they used their coercive authority, whether it was stepping into the shoes or by giving some sort of quid pro quo to the wind energy company saying,

[00:05:31] Speaker 02:
We'll go do this here instead of here, and we won't fight you on it.

[00:05:35] Speaker 02:
But ultimately, that's where there's no hazard determination comes in.

[00:05:37] Speaker 02:
And that's why we bring that up, is that all we know is that that was mentioned.

[00:05:42] Speaker 02:
That's, at this point, somewhat anecdotal.

[00:05:45] Speaker 04:
Did you raise the argument below, counsel?

[00:05:50] Speaker 02:
Raise which arguments, your honor?

[00:05:52] Speaker 02:
I apologize.

[00:05:53] Speaker 04:
Did you cite AMD and argue coercion was a possible basis for your claim?

[00:06:00] Speaker 04:
to the Port of Plains?

[00:06:05] Speaker 02:
We did argue the United case, which is stepping into the shoes.

[00:06:09] Speaker 02:
We did argue that they had interfered with the contract in some form or fashion.

[00:06:13] Speaker 02:
But again, we didn't raise A&D below.

[00:06:15] Speaker 02:
We raised the issue of the fact that the contract had been terminated through some type of action by the government.

[00:06:22] Speaker 02:
And like I said, we used the United example.

[00:06:24] Speaker 02:
We didn't raise A&D, but we did point out

[00:06:27] Speaker 02:
that somehow the government had caused that contract to be terminated.

[00:06:30] Speaker 02:
And yes, that was preserved below.

[00:06:33] Speaker 01:
This is Judge Toronto.

[00:06:37] Speaker 01:
I think your complaint says that Wind Energy breached the contract.

[00:06:41] Speaker 01:
Have you sued Wind Energy for breach?

[00:06:47] Speaker 02:
No.

[00:06:48] Speaker 02:
If we didn't say breach, perhaps that was an artful.

[00:06:50] Speaker 02:
I think what we said is they terminated the contract.

[00:06:53] Speaker 02:
The argument isn't that they didn't correctly terminate the contract.

[00:06:57] Speaker 02:
The argument is that they did terminate the contract pursuant to the terms of the contract.

[00:07:01] Speaker 02:
I don't think that it was to the level of breach where it was actionable against wind energy.

[00:07:06] Speaker 02:
I believe that they did so pursuant to the terms of the contract, which is why we believe that somehow the government stepped in to the shoes of wind energy and said, hey, let's go ahead and exercise this part of the contract, the termination clause, to end the contract.

[00:07:20] Speaker 01:
And does your complaint allege insofar as, as I understand it, you have one kind of property that you say has been taken is the property consisting of such contract rights as you had under the contract with Wind Energy.

[00:07:43] Speaker 01:
And then the other is your property interest in

[00:07:50] Speaker 01:
use of the land free of the overflights, the kind of two separate things.

[00:07:58] Speaker 01:
But just on the contract right claim of a taking of property, does your complaint say something other than that the FAA's informal indication that there would likely be no

[00:08:20] Speaker 01:
certificate of no hazard or determination of no hazard was a cause of this or is that the government action, the informal notification that a no hazard determination is likely not going to be given if asked?

[00:08:39] Speaker 01:
Is that the sole causal mechanism of the termination of the contract?

[00:08:46] Speaker 02:
Yes, Your Honor, that's a very good question.

[00:08:48] Speaker 02:
I'd like to clarify, it's not that the FAA gave some sort of presumption of where this was going.

[00:08:54] Speaker 02:
It's that the Air Force said this is not going to be forthcoming.

[00:08:58] Speaker 02:
Again, this gets to the point of we don't know for sure how this came about.

[00:09:02] Speaker 02:
That's what we understand from the Air Force via my clients that they were told and that when Energy said that the Air Force said this is not going to get its FAA, no hazard designation.

[00:09:12] Speaker 02:
So we're not going to go forward with this contract because we think it's just going to end up in a regulatory quagmire fighting with the Air Force in order to try to get this no hazards determination that will never come to pass.

[00:09:21] Speaker 02:
And that caused ultimately the loss of the contract, which is the contract is for the use of that airspace that makes up the avocation easement that the Air Force is using.

[00:09:33] Speaker 02:
that would have been used for a wind energy project that they were being paid lease payments for, and that if the project had come to fruition, they would have been paid, of course, the royalty rates for the use of that, that, that abrogation easement airspace for wind turbines.

[00:09:47] Speaker 01:
And did, do, do you have an allegation or a position on whether the Air Force had a, had authority with acting in an authorized way

[00:10:00] Speaker 01:
to tell Wind Energy what the likely FAA action might be?

[00:10:07] Speaker 02:
No, that gets to our point that I don't think that they have authority over the FAA and that no hazard determination.

[00:10:13] Speaker 02:
They have input, but it's more that they were using their coercive authority to point out that they would make sure that the FAA didn't do that.

[00:10:22] Speaker 02:
We would use the power of government.

[00:10:25] Speaker 02:
And if the court doesn't have any immediate questions for me, I would reserve the remainder of the time for Mr. Ray.

[00:10:30] Speaker 04:
I have one last question.

[00:10:32] Speaker 04:
This is Judge O'Malley.

[00:10:34] Speaker 04:
Did anyone ever actually ask the FAA?

[00:10:40] Speaker 02:
Not to my knowledge, Your Honor.

[00:10:42] Speaker 03:
Okay.

[00:10:44] Speaker 03:
Okay.

[00:10:45] Speaker 03:
Mr. Yale.

[00:10:49] Speaker 06:
Thank you, Your Honor, and may it please the court to respond to a few of the issues that were raised on the regulatory taking claim that this

[00:11:00] Speaker 06:
The distinction and sort of the conflict that Mr. Dunn has brought up, the two cases that supposedly pose a conflict between the trial court's decision and what they're raising here on appeal.

[00:11:15] Speaker 06:
And those cases were not raised below.

[00:11:18] Speaker 06:
And coercion is not in this complaint either.

[00:11:21] Speaker 06:
It just simply isn't.

[00:11:23] Speaker 06:
And so the notion that somehow the trial court erred

[00:11:28] Speaker 06:
by not considering a theory.

[00:11:31] Speaker 01:
Mr. Yale, I'm afraid I'm not much taken with the idea that you can't cite new cases in support of the same idea.

[00:11:40] Speaker 01:
So what idea is it that you think was waived?

[00:11:44] Speaker 06:
Well, the idea of coercion, the argument that there was coercive conduct here, the only time that that was actually mentioned, unlike in A&D where it's actually put in those complaints,

[00:11:56] Speaker 06:
was in a brief where there was an allegation in the brief upon information and belief.

[00:12:05] Speaker 06:
But you're not pleading factual allegations in a brief.

[00:12:10] Speaker 06:
And so none of the course of conduct in A and D was whether or not monetary inducements to those car dealers would potentially be the basis for a coercion claim.

[00:12:25] Speaker 06:
I mean there's no conduct here that they have pointed to.

[00:12:28] Speaker 06:
There's no government action which you need for a takings claim to actually be the basis for either a coercion claim under A and D or just a normal takings claim.

[00:12:41] Speaker 06:
So all we have is this informal indication which has been pled, that factual allegation.

[00:12:47] Speaker 01:
And why as a matter of law should

[00:12:54] Speaker 01:
the informal indication, whether it came from the FAA or from the Air Force, not be amenable to being a taking under Penn Central?

[00:13:07] Speaker 06:
Well, because those are the cases that we cited to in our brief, Flowers Mills and Brenneman.

[00:13:14] Speaker 01:
Right, those are not cases from our court, so they're not binding precedent.

[00:13:18] Speaker 06:
They're not binding precedent, but DiMari Fresh is a case that is binding, and it examined those cases.

[00:13:25] Speaker 06:
And I stand for the proposition that when we're talking about whether or not a takings claim can be based, and the taking being the inability to construct essentially a wind turbine on property, the construction of that, whether or not that can be based on an FAA no-hazard determination.

[00:13:48] Speaker 06:
And this case is so far removed from that because there's, as just was acknowledged by Mr. Dunn, there was, they haven't even pointed to anything where they've actually talked to the FAA.

[00:14:00] Speaker 06:
They certainly didn't submit anything to the FAA to get a no hazard determination.

[00:14:06] Speaker 06:
And so how informal statements can be the basis, you know, based upon what's at least persuasive authority

[00:14:16] Speaker 06:
cannot be the basis for a taking.

[00:14:20] Speaker 06:
We just don't think, we don't think that the trial court erred in reaching that conclusion.

[00:14:25] Speaker 06:
And frankly, that was not challenged below.

[00:14:28] Speaker 06:
It's not even been challenged here.

[00:14:30] Speaker 06:
I'm sorry, what was not challenged?

[00:14:33] Speaker 06:
Our argument that the government action of denying a hazard, no hazard determination.

[00:14:41] Speaker 01:
There hasn't been, I'm sorry, that's not the,

[00:14:44] Speaker 01:
That's not the alleged action.

[00:14:46] Speaker 01:
The alleged action is an indication that if requested, a no hazard determination would not issue, whether that indication came from the Air Force or from the FAA.

[00:14:58] Speaker 01:
Well, that's even less of a government action.

[00:15:01] Speaker 01:
Well, why is that?

[00:15:04] Speaker 01:
Why is this a kind of lesser included?

[00:15:06] Speaker 01:
As I understand the complaint, they say the action is somebody, the Air Force or the FAA.

[00:15:13] Speaker 01:
I guess it's now the Air Force.

[00:15:14] Speaker 01:
said we will do what we need to or we do not think that there will be a no hazard determination coming out and they told Wind Energy that and Wind Energy exercised what I guess we're now told, contrary to the complaint, is it's right under the contract simply to terminate.

[00:15:38] Speaker 01:
notwithstanding that the complaint says that this was a breach.

[00:15:44] Speaker 01:
And at that point, the harm as to the contract is fully over and done, complete.

[00:15:51] Speaker 01:
Doesn't matter anymore what might happen if a formal proceeding in the FAA went forward.

[00:15:59] Speaker 01:
Why is that action not amenable to a pencentral three-factor analysis?

[00:16:07] Speaker 06:
Well, I mean, for the, we think the authority that we cited covers that, but also, I mean, when we're talking about the contract itself, I mean, the ability to, you know, obtain permits and all of that, I mean, that's, you know, that's part of whatever contract that is.

[00:16:25] Speaker 06:
And if, you know, those, I mean, that's sort of getting into property interest argument of whether you even, you know,

[00:16:33] Speaker 06:
you know, you have a property interest and having some contract be fulfilled to fruition if the government decides that for whatever reason that they're not going to issue the permit.

[00:16:48] Speaker 06:
But here, I mean, we haven't, I mean, how is this right?

[00:16:51] Speaker 06:
How has there been any final decision from the FAA?

[00:16:54] Speaker 01:
Well, let me just ask about that.

[00:16:56] Speaker 01:
I must say I'm not entirely skeptical of the idea that if you did a pencentral analysis on what,

[00:17:03] Speaker 01:
The actual claim is here that it, in fact, might not succeed as a matter of law by combining DiMari and the fact that there is no apparent impediment to wind energy walking away.

[00:17:17] Speaker 01:
But I'm not sure that that analysis has been done.

[00:17:20] Speaker 01:
But as to rightness, the rightness cases are about the situation where the harm has not yet been determined and is not complete.

[00:17:29] Speaker 01:
And you can't figure out

[00:17:31] Speaker 01:
whether until some further action is taken, what harm there will be.

[00:17:36] Speaker 01:
That's not this complaint.

[00:17:37] Speaker 01:
This complaint is the harm is fully done, complete over nothing.

[00:17:42] Speaker 01:
There is no new information.

[00:17:44] Speaker 01:
And so the only question is whether the government action that is alleged to have triggered that complete harm is actionable.

[00:17:52] Speaker 01:
I don't understand the rightness point.

[00:17:56] Speaker 06:
Well, I mean, the first point is whether or not, I mean,

[00:18:00] Speaker 06:
With regards to construction of the wind farm, there's the FAA no hazard determinations, whether or not those actually, the government is authorizing preventing construction.

[00:18:12] Speaker 06:
And so we would agree to the extent that, I mean, if there's sort of a situation where there actually had been a no hazard determination, we don't think that that's authorized

[00:18:28] Speaker 06:
conduct to prevent construction.

[00:18:30] Speaker 06:
But here, what is the authorized conduct here that's been alleged?

[00:18:36] Speaker 06:
There's an informal communication from the Air Force who is not even the ones who decide this.

[00:18:41] Speaker 06:
So if for the same reasoning about the authorization

[00:18:46] Speaker 06:
for a government action to support a takings claim, we think that, frankly, is even stronger.

[00:18:53] Speaker 06:
I don't remember.

[00:18:56] Speaker 01:
I mean, in thinking about the case, it did occur to me to think about the line of authority that goes back a long way from Del Rio and other cases that say one defense to a takings claim is that the government action that is cited as causing the harm was not actually authorized.

[00:19:13] Speaker 01:
And it may well be that

[00:19:15] Speaker 01:
that we heard that this morning.

[00:19:16] Speaker 01:
Is that in your brief?

[00:19:19] Speaker 06:
Well, that case is not in our brief, but part of that is because we argued that the no hazard determination is not authorized.

[00:19:30] Speaker 06:
And plaintiffs below and here have never argued against that point.

[00:19:37] Speaker 06:
So we had no reason to make the point about the informal communication frankly.

[00:19:43] Speaker 01:
Can I switch topics and just ask you about what I think was both the lead argument here and the lead point in the CFC that this is a tort and therefore can't be a taking?

[00:19:56] Speaker 01:
If the government comes in and with authority takes my car and takes it away, that's both a conversion and a taking, right?

[00:20:05] Speaker 01:
A tort conversion and a taking.

[00:20:08] Speaker 01:
Why is it that one can't, that the same government action

[00:20:12] Speaker 01:
cannot be both.

[00:20:15] Speaker 06:
Well, I mean, I think it depends on whether or not that's a taking or not.

[00:20:18] Speaker 06:
I mean, if it sees pursuant to police power or something like that, it's likely not going to implicate the takings clause.

[00:20:24] Speaker 06:
There can be state law conversion claims that it can be made.

[00:20:28] Speaker 06:
But part of it is, at some point, words have to matter.

[00:20:31] Speaker 06:
And at some point, what is pled needs to actually matter.

[00:20:36] Speaker 06:
And I don't think that really, when you look at the plain language of this complaint, that you could

[00:20:41] Speaker 06:
interpret, you could find error in the trial court's interpretation of what is being played here.

[00:20:49] Speaker 06:
So is there some sort of factual situation where your car, you know, if the government came in and, you know, seized the car or something under a factual situation, I mean, it may not implicate the taking of the cars.

[00:21:06] Speaker 06:
It may be a conversion under state law.

[00:21:08] Speaker 06:
Could there be a factual situation if it was properly pledged where there could be a taking claim?

[00:21:13] Speaker 06:
It may be that case, but that's not, I mean, that's not, if you go into court and you plead as a tortious interference with contract claim, then the trial court is perfectly within their authority.

[00:21:27] Speaker 06:
And it's not error to find that that is not within this court's jurisdiction.

[00:21:34] Speaker 04:
Counsel, before you sit down, I have a question.

[00:21:37] Speaker 04:
One of the things that troubled me is that both in your brief and in the Court of Claims opinion, you referenced this heightened pleading standard for abrogation-based takings claims.

[00:21:51] Speaker 04:
And I looked at the cases that you cite for that, and other than the Court of Claims itself, the cases you cite don't stand for that proposition.

[00:21:59] Speaker 04:
They stand for the proposition that you have to have.

[00:22:03] Speaker 04:
a certain quantum of activity in order to prove such a claim, but nowhere do we or the Supreme Court ever say that there's a heightened pleading requirement.

[00:22:15] Speaker 06:
Well, what that's referring to is in general, you know, when you have a physical taking, one, you know, if you go on for a certain period of time, for example, it's automatically going to be a per se taking, but abrogation easements are to own

[00:22:30] Speaker 06:
You know, it's been deemed a physical taking, but it's this own area of the law where there are certain elements that you have to plead.

[00:22:36] Speaker 06:
Frequency is one that we've pointed to.

[00:22:39] Speaker 04:
And so it's... Yeah, but you're arguing that you're arguing that you have to plead a certain precise detail with respect to frequency.

[00:22:49] Speaker 04:
And I don't think that that would be an appropriate requirement at the pleading stage.

[00:22:57] Speaker 06:
Respectfully, what we pointed to and what the trial court pointed to was Twombly and Iqbal.

[00:23:05] Speaker 06:
And what the trial court said was they're just parroting back the word regularly.

[00:23:11] Speaker 06:
I mean, we pointed to the fact that just going in and saying these happen frequently is not sufficient because when what we're talking about in general with when there is liability,

[00:23:22] Speaker 06:
Um, when you get to that stage, it's definitely the case that these are not just once a year.

[00:23:28] Speaker 06:
I mean, that's when you're talking about that, we're talking about very sporadic, um, you know, very sporadic overflights.

[00:23:35] Speaker 06:
And so we think that that's just a normal, you know, pleading legal conclusions or the exact element of the claim is not sufficient.

[00:23:44] Speaker 06:
And then we think that that's a straightforward application.

[00:23:47] Speaker 04:
There really isn't any dispute that we're not talking about once a year, right?

[00:23:54] Speaker 06:
Well, I mean, frankly, until until the oral argument where the number of three to 15 was thrown out, we didn't have any idea what they were talking about, because it's not as if these it's not as if there's an actual marked train route that flies over their property.

[00:24:13] Speaker 06:
So what we're talking about would have to be flights that go essentially where they're not supposed to.

[00:24:21] Speaker ?:
So

[00:24:21] Speaker 06:
you know, whether or not it's one or 10,000, that makes a big difference.

[00:24:29] Speaker 06:
And it makes a big difference in terms of how it's being pled.

[00:24:33] Speaker 06:
I mean, it regularly could mean, you know, on the dot, once every four years, there could be one flight.

[00:24:41] Speaker 06:
Now, at oral argument, there was mentioned three, you know, maybe three a year, which we certainly don't think would constitute

[00:24:51] Speaker 06:
in abrogation movement, but we do think that that's an element that needs to actually be pledged other than the statement that the flights were frequent.

[00:25:05] Speaker 01:
Can I just ask a question?

[00:25:08] Speaker 01:
I had understood you to be making two points about the insufficiency of the pleading as a matter of law.

[00:25:17] Speaker 01:
One was insufficiency as to

[00:25:19] Speaker 01:
frequency, but the other was the absence of an allegation that whatever the frequency was, it deprived the tailors of the use and enjoyment of the land, which is also part of the Cosby claim.

[00:25:41] Speaker 06:
Am I right that you're making... That's correct, but that wasn't...

[00:25:47] Speaker 06:
I don't think that the trial court specifically reached its decision on that grounds, but, you know, on appeal, certainly that is, you know, we have made that issue.

[00:25:59] Speaker 06:
You know, we argued it below, and we continue to believe that's the case.

[00:26:05] Speaker 03:
Any other questions from the judges?

[00:26:12] Speaker 03:
All right.

[00:26:13] Speaker 03:
Thank you, Mr. Yale.

[00:26:14] Speaker 03:
We'll turn to Mr. Ray for five minutes of rebuttal.

[00:26:19] Speaker 05:
Your Honors, can you hear me OK?

[00:26:23] Speaker 05:
Yes.

[00:26:23] Speaker 05:
Excellent.

[00:26:24] Speaker 05:
Well, first, I would like to just add to the colloquy that the Court just had about the pleading standards under Twombly and Iqbal.

[00:26:36] Speaker 05:
When the government is talking about the Cosby claims,

[00:26:42] Speaker 05:
It's focusing on the degree when that's really not an issue here.

[00:26:47] Speaker 05:
So in those avogation easement claims that they're talking about like Cosby, the idea is that there are flyovers happening so often that it's making the land not amenable to its use or enjoyment.

[00:27:01] Speaker 05:
I think in Cosby, it was causing the chickens to die or animals to panic on the property on a regular basis.

[00:27:08] Speaker 05:
But what is pled in the complaint here

[00:27:11] Speaker 05:
And this isn't a legal conclusion.

[00:27:15] Speaker 05:
It's that there are regular or frequent flyovers in a space that this landowner contemplates physically occupying himself with buildings that would preclude any more flyovers.

[00:27:31] Speaker 05:
It is our understanding that there is a marked training route through there, and the government

[00:27:38] Speaker 05:
knows exactly how many flyovers happen in that training route and, you know, they just won't tell us and we don't get to do discovery because we've been at the pleading stage.

[00:27:50] Speaker 05:
So from a standpoint of pleading, we don't need to plead that they fly over 10 times a year or once every five years because if the government insists on flying a plane,

[00:28:03] Speaker 05:
once every two years or once every year, you know, every now and then it needs to fly its planes in that training route, then our clients can't enter into contracts for energy extraction or wind turbines that occupy that same space that the Air Force wants to fly in.

[00:28:21] Speaker 01:
So it is... Can you... This is just for... Can you just point me... What are the paragraphs in the complaint that tie the overflight allegations to

[00:28:32] Speaker 01:
a harm to the potential building of windmills?

[00:28:38] Speaker 05:
Well, Judge, we're pulling that up right now, my co-counsel is, but where we say conduct regular flyovers, the inference that can be validly drawn under Rule 8 and under Rule 12 in favor of the non-moving party is that that sentence means that if the planes are flying over,

[00:29:01] Speaker 05:
They can't build there, your honor.

[00:29:05] Speaker 05:
And so I apologize that I don't have the paragraphs of the complaint right in front of me right now.

[00:29:12] Speaker 05:
Although if the court would refer to paragraph 14 and to paragraph 15, I think that that will help illuminate the situation.

[00:29:22] Speaker 05:
If the court doesn't mind, I'm going

[00:29:27] Speaker 05:
I want to move on because my time is short to the other point that was being discussed which is this idea of coercion with respect to the third part, the contract between the private parties which was tanked by government action and whether the government action was actionable.

[00:29:45] Speaker 05:
A really important case which interestingly is also arising out of energy extraction in New Mexico.

[00:29:56] Speaker 05:
was the United Nuclear case.

[00:29:59] Speaker 05:
And in United Nuclear, I think it's very instructive here on that point because in United Nuclear, you had this company, the United Nuclear Corporation, it had two leases with the Navajo Tribal Council to conduct uranium mining operations in Grants, New Mexico.

[00:30:20] Speaker 05:
The Department of the Interior came in and approved those leases

[00:30:24] Speaker 05:
And so the company starts doing exploration and doing the legwork and finds uranium.

[00:30:29] Speaker 05:
Well, then all of a sudden, United Nuclear submits its plans for approval to the Secretary of the Interior.

[00:30:36] Speaker 05:
And the Secretary of the Interior turns around and says, it's going to withhold approval until the Tribal Council approves it.

[00:30:43] Speaker 05:
And that just was never forthcoming for three years, I think.

[00:30:47] Speaker 05:
And in that situation, this court found that the taking had occurred because the Secretary had

[00:30:53] Speaker 05:
essentially interfered with the contract between United Nuclear and the Tribal Council by colluding with the Tribal Council to keep allowing them to not grant the approval for the uranium extraction.

[00:31:06] Speaker 05:
Here we're sort of talking about some analogies.

[00:31:10] Speaker 05:
You have a landowner who has contracts with a private company to do another type of energy extraction.

[00:31:20] Speaker 05:
the government comes in and doesn't take maybe a formal action, and we don't know if what the Air Force was telling the company was authorized or not, but that's something that's not appropriately dealt with at the pleading stage.

[00:31:34] Speaker 05:
It's something to be dealt with through evidence and maybe on summary judgment, but those conversations between the

[00:31:42] Speaker 05:
the wind development company and another government agency, you know, the Air Force and potential conversations between the Air Force and FAA which are implied in that allegation are exactly like what happened in United Nuclear.

[00:31:58] Speaker 05:
You have these entities that are tied to the Department of the Interior in United Nuclear and the Navajo tribe that are basically shutting this project down.

[00:32:07] Speaker 05:
And in our case, you have the Air Force

[00:32:10] Speaker 05:
saying to a private company, you're never going to get this project off the ground.

[00:32:15] Speaker 05:
It's dead because the FDA is not going to do that no hazard determination because we fly over that property and we intend to continue to do so.

[00:32:28] Speaker 05:
I'm out of time, judges.

[00:32:30] Speaker 05:
If you have any questions, I stand.

[00:32:32] Speaker 03:
Thank you.

[00:32:36] Speaker 03:
We thank both sides and the case is submitted.

[00:32:39] Speaker 03:
That concludes our oral argument proceeding for this morning.

[00:32:43] Speaker 03:
Thank you.

[00:32:44] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10 AM.