[00:00:00] Speaker 05:
The final argument of the morning is appeal number 22-2031, Barry v. United States.

[00:00:11] Speaker 03:
Mr. Left, whenever you're ready.

[00:00:13] Speaker 03:
Thank you, Your Honor.

[00:00:14] Speaker 03:
May it please the Court.

[00:00:17] Speaker 03:
My name is Don Lep.

[00:00:18] Speaker 03:
I represent the appellate in this case, Holly Berry, who's present in the courtroom today.

[00:00:23] Speaker 03:
We're here today on an appeal from the granting of a 12b6 Motion to Dismiss by the Court of Federal Claims on a taking case in Oklahoma.

[00:00:36] Speaker 03:
The Court of Federal Claims

[00:00:40] Speaker 03:
determined that Miss Berry didn't have a viable claim because the action

[00:00:46] Speaker 03:
that she was challenging, that she claimed resulted in a taking of a portion of her property was in fact not action, but that we were challenging inaction, a failure to act.

[00:01:00] Speaker 03:
However, that is not the case.

[00:01:02] Speaker 03:
And I think if the court read the transcript and looked at the hearing and looked at the pleadings, what actually Miss Berry is pointing to is actually the affirmative action

[00:01:15] Speaker 03:
the United States government, the BIA, approving taking land of the Cherokee Nation into trust for the specific purpose of building a 350 square foot casino adjacent to Ms.

[00:01:31] Speaker 03:
Berry's property, which would also include enough parking for 2,100 cars.

[00:01:37] Speaker 03:
So that's actually the

[00:01:39] Speaker 05:
The action that we claim resulted in the taking of a large portion of... Mr. Lepp, I'm just curious, have you considered an action, civil action against the Cherokee Nation?

[00:01:53] Speaker 03:
It has been considered, but the Cherokee Nation is a sovereign nation.

[00:01:59] Speaker 03:
It is our opinion.

[00:02:00] Speaker 03:
We don't have recourse to sue that.

[00:02:03] Speaker 03:
the Cherokee Nation.

[00:02:05] Speaker 03:
So Ms.

[00:02:06] Speaker 03:
Berry's only option was to bring this takings claim.

[00:02:10] Speaker 03:
Certainly if

[00:02:11] Speaker 03:
If the Cherokee Nation had waived its sovereign immunity with respect to these types of claims, then she could proceed in that manner.

[00:02:20] Speaker 03:
But this is where we are.

[00:02:22] Speaker 03:
So we've got this takings claim.

[00:02:24] Speaker 03:
We're alleging that the action of taking this land into trust caused the flooding was the direct natural

[00:02:33] Speaker 01:
The flooding was the direct, natural, and probable result of taking the land into trust.

[00:02:48] Speaker 03:
No, we've never alleged that the Cherokee Nation was the specific agent.

[00:02:54] Speaker 03:
What we have raised in the briefing is that we've got a unique relationship where the tribe is

[00:03:03] Speaker 03:
acts as sort of a quasi-agency of the government.

[00:03:08] Speaker 03:
Just think about this.

[00:03:09] Speaker 03:
We've got the sovereign nation, the United States government has treaties with the Cherokee Nation where it's going to protect the Cherokee Nation.

[00:03:19] Speaker 03:
It's got statutes,

[00:03:23] Speaker 03:
for gaming and other things that with the goal of fostering the self-sufficiency of the tribe.

[00:03:29] Speaker 03:
So basically why the tribe isn't a legal agent, they're a different animal.

[00:03:37] Speaker 03:
They really are.

[00:03:37] Speaker 03:
The tribe is effectively in this relationship more like a ward, like a guardian ward situation.

[00:03:46] Speaker 03:
The reason the government took the land into trust

[00:03:49] Speaker 03:
was to protect the tribe and to help the tribe.

[00:03:53] Speaker 03:
The tribe is a sovereign nation, but it's not like England or Mexico or Canada coming over here to deer.

[00:04:01] Speaker 03:
So they're a little different animal.

[00:04:05] Speaker 03:
But in this case, specifically the reason we believe the court erred in granting the motion to dismiss is one, that it basically twisted our complaint and said, oh, you're actually

[00:04:19] Speaker 03:
challenging the failure to act as if we said okay the government didn't come in and stop the flooding

[00:04:26] Speaker 03:
Therefore, that's the taking.

[00:04:27] Speaker 03:
That's not the nature of our claim at all.

[00:04:30] Speaker 03:
The nature of our claim is that there's land next to Miss Barry's that was undeveloped and owned by the Cherokee Nation.

[00:04:40] Speaker 03:
The Cherokee Nation decides to build this huge casino and change the nature of the land.

[00:04:47] Speaker 03:
And under this unique relationship between the tribe and the government,

[00:04:52] Speaker 03:
The government has to take that land that was owned in fee by the Cherokee Nation.

[00:04:58] Speaker 03:
And now the United States government owns this property, has legal title to this property.

[00:05:05] Speaker 03:
And it says, OK, tribe, go ahead and build this 350 square foot.

[00:05:10] Speaker 02:
Can I ask you a question?

[00:05:12] Speaker 02:
Sure.

[00:05:12] Speaker 02:
OK.

[00:05:12] Speaker 02:
So my question is this.

[00:05:14] Speaker 02:
If the flooding was the direct natural cause of the US government taking the land into trust,

[00:05:21] Speaker 02:
then were you aware of the taking claim as of the time that the United States took the land into trust?

[00:05:28] Speaker 02:
Is that your allegation as well?

[00:05:31] Speaker 03:
No, I don't believe at the time on the date in January 2017 when the government decided to take the land into trust immediately.

[00:05:41] Speaker 03:
No, we were not aware of the taking claim at that time.

[00:05:45] Speaker 03:
The taking claim occurred.

[00:05:47] Speaker 02:
Why would the government, if the government's taking

[00:05:51] Speaker 02:
is the direct natural cause, if the taking claim is, sorry, if the flooding is the direct natural cause of the government putting the land in trust, then that's your, I think you're saying that the taking occurred then, right?

[00:06:08] Speaker 03:
No, that was the action that caused the taking.

[00:06:11] Speaker 02:
And what is the taking?

[00:06:13] Speaker 03:
The taking is the construction of the property, which results in... This is my problem here.

[00:06:19] Speaker 02:
The government's action seems to be indirect, right?

[00:06:23] Speaker 02:
It's indirect.

[00:06:24] Speaker 02:
There's something else that happened in the building of the casino in which the government was not... in which the tribe was not the government's agent, right?

[00:06:36] Speaker 02:
That's where the flooding occurred.

[00:06:39] Speaker 02:
So what I'm saying is, if I think of the claim as you're saying it now, which is that the flooding is the natural cause of putting the land in trust.

[00:06:48] Speaker 02:
Everybody should have known that that's what would have happened.

[00:06:51] Speaker 02:
Then why wouldn't you have known it?

[00:06:53] Speaker 02:
And why wouldn't your taking claim have arisen at that time?

[00:06:57] Speaker 03:
Well, as Your Honors reframed the issue.

[00:07:01] Speaker 02:
No, I thought that was your argument.

[00:07:04] Speaker 02:
I don't mean to reframe your argument by any means.

[00:07:06] Speaker 02:
So if I'm saying your argument wrong, please correct me.

[00:07:09] Speaker 03:
Well, I think we're getting on the right path.

[00:07:12] Speaker 03:
I think Ms.

[00:07:13] Speaker 03:
Berry has identified the government action.

[00:07:16] Speaker 03:
And then the next question is, if you look at the briefing that's occurred, in the lower court, there was a lot of discussion about whether it was action or inaction.

[00:07:26] Speaker 03:
But if you look at the briefing here, really the question is, was that action, was the taking the direct, natural, and probable result?

[00:07:35] Speaker 03:
And what I'd like to implore the court is to think about, this is a 12b6 motion.

[00:07:42] Speaker 03:
And I think the court could have made the decision that the taking of the property into trust was not the direct, natural, or probable result.

[00:07:55] Speaker 03:
But that decision should have been made after the record was developed.

[00:07:59] Speaker 03:
There was discovery.

[00:08:00] Speaker 03:
I think if you look at the cases briefly, the cases cited in this particular case, St.

[00:08:06] Speaker 03:
Bernard's is one, Ridgeline is another case, where there are cases where it turns on whether an action or a taking was a direct, natural, or probable result, you'll see that all of those cases were not disposed of on a motion to dismiss.

[00:08:24] Speaker 03:
Those cases were disposed of after a bench trial,

[00:08:27] Speaker 03:
on summary judgment.

[00:08:31] Speaker 03:
The cases are replete with discussions about flooding cases are intensely factual type cases.

[00:08:38] Speaker 03:
And so what we're asking this court to do is to reverse and remand to the court to order the government to answer the case so we can develop the record and the court can go through this intensely factual analysis to determine

[00:08:54] Speaker 03:
whether the approval of taking the land into trust and the construction of this behemoth casino next to my property and the resultant flooding was the result.

[00:09:07] Speaker 01:
So that's... Did some of the flooding occur in 2016?

[00:09:12] Speaker 03:
Not to my knowledge.

[00:09:14] Speaker 01:
I guess what I'm trying to understand is what was the allegation in what I believe is paragraph 20 on appendix page 35?

[00:09:22] Speaker 03:
What was the appendix page?

[00:09:23] Speaker 01:
35.

[00:09:24] Speaker 03:
35.

[00:09:28] Speaker 01:
I was just trying to understand what you meant by that.

[00:09:31] Speaker 01:
I was maybe misreading, but trying to read it accurately.

[00:09:35] Speaker 01:
And it looked like you were talking about something that occurred in 2016, including potentially some flooding in 2016.

[00:09:42] Speaker 03:
That is an allegation in the complaint.

[00:09:44] Speaker 03:
And there was discussion at the hearing about whether construction had actually occurred.

[00:09:50] Speaker 03:
It started before the government had approved taking the land in trucks.

[00:09:55] Speaker 03:
And I don't have any reason to doubt that there was construction that began prior to 2016.

[00:10:01] Speaker 03:
But that's another reason why we can't dispose of this here.

[00:10:06] Speaker 03:
I don't know the answer as to what the nature of the construction was, whether that construction was related to something else.

[00:10:13] Speaker 03:
These are facts that need to be developed in the record before the court can make the determination that this

[00:10:21] Speaker 03:
that the government action did not or was not the direct, natural, and probable cause of the flooding.

[00:10:31] Speaker 03:
It looks like I've got rebuttal time left, so I'd like to reserve my time after my opponent speaks.

[00:10:38] Speaker 03:
Thank you, Ken.

[00:10:39] Speaker 05:
Thank you, Mr. Butt.

[00:10:44] Speaker 00:
Miss?

[00:10:44] Speaker 00:
Hanson Young.

[00:10:48] Speaker 00:
Good morning, Your Honors.

[00:10:49] Speaker 00:
May it please the court, my name is Tekla Hansen Young, and I represent the United States.

[00:10:53] Speaker 00:
The problem with Ms.

[00:10:54] Speaker 00:
Berry's claim here is that the facts that she has alleged, a crucial part of which is in paragraph 20 on page 35, which was discussed earlier,

[00:11:03] Speaker 00:
do not show two basic elements of a takings claim.

[00:11:07] Speaker 00:
First, she hasn't shown either that flooding was caused by an affirmative action of the United States or that the flooding was the intended or the direct natural and probable cause of the government's action.

[00:11:20] Speaker 00:
The real actions that she complains of are all actions that were taken exclusively by the Cherokee Nation, which act as an intervening cause

[00:11:29] Speaker 00:
consistent with this court's decision in the Carey case that would remove.

[00:11:33] Speaker 05:
So I'm trying to understand what is the meaning of when the government takes the land into trust.

[00:11:38] Speaker 00:
Sure.

[00:11:39] Speaker 05:
And then what is the government's responsibility at that time?

[00:11:43] Speaker 05:
Is it kind of like you buy this thing, including

[00:11:48] Speaker 05:
all benefits and liabilities that come with this thing?

[00:11:52] Speaker 00:
No, absolutely not.

[00:11:53] Speaker 00:
So what happens when the government takes land into trust for a tribe is that the legal ownership changes.

[00:11:59] Speaker 00:
The United States holds legal title to the property, but the Cherokee Nation here controls the use of the property with certain limitations.

[00:12:08] Speaker 00:
For example, the Cherokee can't alienate the property again.

[00:12:11] Speaker 00:
It's held by the United States.

[00:12:13] Speaker 00:
But the Cherokee retained exclusive control over how to develop its property here.

[00:12:17] Speaker 00:
The United States did not direct it to build a gaming facility.

[00:12:21] Speaker 00:
It didn't approve the development of a gaming facility.

[00:12:24] Speaker 00:
It didn't review or approve building plans.

[00:12:26] Speaker 05:
If the government did something like a landlord of the property,

[00:12:29] Speaker 05:
Sure, but that- Is the landlord somehow responsible for what the tenant is up to?

[00:12:35] Speaker 00:
No.

[00:12:35] Speaker 00:
Even if it were more akin to a landlord-tenant relationship, our position would be no.

[00:12:40] Speaker 00:
The landlord wouldn't be liable for the takings that the tenant had caused.

[00:12:46] Speaker 00:
And that would be more of a tort action, which wouldn't fall under a takings claim in any event.

[00:12:52] Speaker 00:
But here, what the government did when it took land into trust is that the reason why it might seem a little odd here is because the government looked at the purpose for which the Cherokee Nation was proposing to use the land as part of the government's compliance with the Indian Reorganization Act, which grants the government statutory authority to take land into trust.

[00:13:13] Speaker 00:
And the government also evaluated the potential foreseeable environmental impacts of the proposed use under the National Environmental Policy Act.

[00:13:22] Speaker 00:
But neither of those two statutes impose a statutory duty on the United States to ensure, one, to protect a third party's property, or two, to ensure that development is occurring in a way that wouldn't damage or take another party's property.

[00:13:40] Speaker 05:
Then what's the purpose of the environmental assessment at all?

[00:13:43] Speaker 00:
The purpose of the environmental assessment, NEPA, the National Environmental Policy Act, is purely a procedural statute.

[00:13:51] Speaker 00:
The purpose is to allow the government to be informed of the potential environmental impacts of an action before it takes the action, and to inform the public of the potential environmental impacts to make sure the government makes a fully informed decision concerning.

[00:14:06] Speaker 05:
So the environmental assessment was of the casino itself, and what would happen to the land?

[00:14:11] Speaker 00:
Yes, the government separately conducted an environmental assessment of the Cherokee's proposed use of the land, the casino, the gaming facility, and looked at potential environmental impacts.

[00:14:23] Speaker 00:
And a letter discussing that environmental assessment was included in the record.

[00:14:28] Speaker 00:
It was cited by Ms.

[00:14:30] Speaker 00:
Berry's amended complaint.

[00:14:31] Speaker 00:
And that letter, in fact, did state that the proposed development could result in potential surface flow.

[00:14:40] Speaker 00:
It didn't state.

[00:14:41] Speaker 00:
that it would necessarily result in the flooding of neighboring property.

[00:14:45] Speaker 00:
And it also went on to state that mitigation measures were being implemented to ensure that there would be no changes beyond what was currently taking place.

[00:14:57] Speaker 00:
So there were detention ponds that were supposed to be built in the property

[00:15:01] Speaker 00:
There were best construction practices, stormwater mitigation measures that were put into place.

[00:15:07] Speaker 00:
And the government considered all of those elements of the Cherokee Nation's proposal before it

[00:15:15] Speaker 00:
ultimately decided to take the land into trust, which is the only affirmative action that Ms.

[00:15:20] Speaker 00:
Berry has pointed to that the government has done here.

[00:15:23] Speaker 00:
Now, that is far removed from the direct actions that she complains of that caused the flooding.

[00:15:29] Speaker 00:
And specifically, her complaint says, since the beneficiary, that's the nation.

[00:15:35] Speaker 00:
This is on page 35, paragraph 20, the second sentence.

[00:15:38] Speaker 00:
Since the beneficiary commenced construction in 2016, diverted water has substantially interfered with plaintiff's use of her real property by flooding several acres continuously and diminishing the usability and value of said real property, as well as adversely affecting her remaining real property.

[00:15:58] Speaker 00:
And then in a previous paragraph, paragraph 11 on page 33, she specifically lists the date that the government took the land into trust

[00:16:07] Speaker 00:
which was January 19, 2017.

[00:16:09] Speaker 00:
So even if you assume, which the CFC had to do on a motion to dismiss, that all of the facts alleged in her complaint are true, under her facts as alleged, the government's decision to take land into trust occurred after the Cherokee started construction on the site and caused flooding of her property, the flooding that she has complained of here.

[00:16:33] Speaker 00:
So there's no need to remand for further factual development or permit further factual development, because assuming these facts are true, she cannot establish that the United States decision to take the land into trust caused the flooding.

[00:16:51] Speaker 01:
What's your response to this quasi-agency theory that I heard before?

[00:16:56] Speaker 00:
Sure.

[00:16:57] Speaker 00:
As an initial matter, this argument has been forfeited because it was not raised.

[00:17:01] Speaker 00:
It wasn't alleged in the complaint.

[00:17:02] Speaker 00:
It hasn't been raised up until the reply brief.

[00:17:05] Speaker 00:
But to the extent the court is interested to show an agency relationship under this court's decision in A&D auto sales, and there's another decision that is useful

[00:17:18] Speaker 00:
that is along the, that has cited to A&E auto sales.

[00:17:21] Speaker 00:
It's the wealthy versus United States at 926 F3rd, 1319 that we didn't discuss in the brief, but the facts are fairly similar here.

[00:17:30] Speaker 00:
A party is an agent of the United States if it is hired or granted legal authority to carry out its business.

[00:17:38] Speaker 00:
That's the A&E auto sales case at page 1154.

[00:17:42] Speaker 00:
Here, there have been no allegations that the Cherokee Nation

[00:17:45] Speaker 00:
has either been hired by the United States or granted legal authority to carry out the business of the United States in constructing the gaming facility.

[00:17:54] Speaker 00:
And what's more troubling about these allegations is that this new argument that's been raised in the reply brief that there's some sort of quasi agency relationship here is that there's no statutory authority for that argument.

[00:18:07] Speaker 00:
There's no actual legal hook that would allow the court to premise a takings claim

[00:18:13] Speaker 00:
on this purported agency relationship between the United States and the Cherokee Nation.

[00:18:21] Speaker 00:
And if you look at this line of cases, and not directly on point here, but if you look at this court's line of cases, the Navajo Nation line of cases, where a tribe comes in and asserts that the United States has breached

[00:18:34] Speaker 00:
trust duty to the tribe and therefore must pay damages.

[00:18:38] Speaker 00:
All of those cases depend on the existence of a specific statutory or regulatory obligation that the United States owes to the tribe and that it creates the legal hook for liability for the United States.

[00:18:53] Speaker 00:
There must always be a statute.

[00:18:56] Speaker 00:
And here, we don't have such a thing.

[00:18:59] Speaker 00:
And in any event, any kind of benefit or any kind of legal duty owed would run from the United States to the tribe, not to a third party, Ms.

[00:19:08] Speaker 00:
Berry.

[00:19:08] Speaker 00:
So my first answer would be that argument is forfeited.

[00:19:14] Speaker 00:
And secondly, it also has no merit.

[00:19:17] Speaker 00:
I just want to get back to what

[00:19:24] Speaker 00:
The causation issue, just briefly, I think that the court's Kerry decision is really helpful here.

[00:19:32] Speaker 00:
And in that case, the government had authorized.

[00:19:37] Speaker 00:
So a private landowner brought a takings claim against the United States, alleging that fire had taken property and that the government's fire suppression policies and recreational use policies on forest service land had

[00:19:53] Speaker 00:
resulted in a situation where there was flammable material on the ground.

[00:19:59] Speaker 00:
A hunter came, smoked, set a fire, and that caused the taking.

[00:20:05] Speaker 00:
The court here said, even assuming that the government knew the possibility that there would be a fire and that its recreational policies and fire suppression policies increased the risk of fire, that there was no taking because there was an intervening cause.

[00:20:20] Speaker 00:
The Hunters Act.

[00:20:21] Speaker 00:
was the intervening cause here and broke the chain of causation as a legal matter.

[00:20:26] Speaker 00:
And so similarly here, the Cherokee's decision to construct the facility in the manner that it did, the Cherokee's decision to send its agents or its representatives onto the plaintiff's property to build a drainage ditch, which are allegations in her complaint, those were all decisions of the Cherokee Nation, not the United States.

[00:20:49] Speaker 00:
And there are no allegations in the complaint.

[00:20:51] Speaker 00:
that the United States directed the Cherokee Nation to do those things.

[00:20:56] Speaker 00:
I also just briefly wanted to touch on a question that Judge Shen, you asked about remedy here.

[00:21:04] Speaker 00:
There was a lawsuit brought by Ms.

[00:21:07] Speaker 00:
Berry against the Cherokee Nation and the United States in the Eastern District of Oklahoma in 2020, or maybe in 2021.

[00:21:17] Speaker 00:
But it was brought to 2020, but it was voluntarily dismissed a few months later.

[00:21:22] Speaker 00:
There is no information in the docket about why.

[00:21:25] Speaker 00:
And then shortly thereafter, this suit was filed in the CFC simply against the United States.

[00:21:31] Speaker 00:
So I think what could be troubling is, what is her remedy if there is some damage here that's occurring to her property?

[00:21:39] Speaker 04:
What's the answer?

[00:21:41] Speaker 00:
Well, it's hard for me to speculate on what her remedies might be, but I have done some thinking about this.

[00:21:46] Speaker 00:
And I just first want to say, even though I've invited this question myself, the lack of a remedy here wouldn't factor into this court's decision that she could bring a takings claim against the United States.

[00:21:58] Speaker 00:
But setting that aside, my understanding is that she is a citizen of the Cherokee Nation.

[00:22:03] Speaker 00:
And my friend, Mr. Leb, can speak to that potentially.

[00:22:07] Speaker 00:
there may be some political or administrative remedy with the Cherokee Nation that she could pursue through the courts there, or the Tribal Council, or the Cherokee Nation's Environmental Protection Commission.

[00:22:18] Speaker 00:
Even if she's not a citizen, she may have some recourse with the Cherokee Nation directly.

[00:22:22] Speaker 00:
And because we don't know, because that suit that she brought in the Eastern District of Oklahoma never was, you know, litigated or ultimately... Wouldn't sovereign immunity lock her out, though?

[00:22:35] Speaker 05:
from that Eastern District of Oklahoma action?

[00:22:38] Speaker 00:
Presumably.

[00:22:38] Speaker 00:
But that issue was never briefed.

[00:22:42] Speaker 00:
No court has ever ruled on that in that specific context.

[00:22:45] Speaker 00:
And so it's hard to speculate.

[00:22:46] Speaker 00:
I mean, I would think so.

[00:22:47] Speaker 00:
But I can't say definitively, because that issue has never been ruled on by a court in her factual circumstance.

[00:22:55] Speaker 00:
And then, you know.

[00:22:56] Speaker 04:
So as far as we know, there's no court cause of action that you can think of?

[00:23:01] Speaker 00:
Not in the federal courts.

[00:23:04] Speaker 00:
she for a takings claim.

[00:23:06] Speaker 00:
I mean, we could go further afield.

[00:23:08] Speaker 02:
We could go for a non-takings claim.

[00:23:10] Speaker 00:
Potentially.

[00:23:10] Speaker 00:
And she could bring a claim under the Administrative Procedure Act, challenging the government's decision to take the land into trust.

[00:23:21] Speaker 00:
That wouldn't result in monetary compensation for her, and it wouldn't necessarily get at the crux of her complaint, which is that the Cherokees Nation development and construction has caused flooding on her property.

[00:23:34] Speaker 00:
And I would also like to point out that the Cherokee Nation owned the property in fee before the government took it into trust.

[00:23:43] Speaker 00:
And that's why the nation started building on the site, because it owned the property.

[00:23:48] Speaker 00:
And so irrespective of whether the government owned the land in trust or not, the Cherokee could and did, in fact, start building on its site and causing the flooding that she alleged to have occurred here.

[00:24:04] Speaker 00:
There may be some remedy for her outside of taking claim in the CFC, but this particular remedy is not available to her on the facts that she has alleged.

[00:24:17] Speaker 00:
And unless the court has any further questions, I would ask the court to affirm the judgment of the CFC.

[00:24:24] Speaker 00:
Thank you.

[00:24:29] Speaker 03:
Thank you for additional time, Your Honor.

[00:24:31] Speaker 03:
I'd like to address some of these.

[00:24:33] Speaker 03:
One, I thought it was interesting.

[00:24:35] Speaker 01:
Can you address her point about a possible remedy outside of the federal courts?

[00:24:40] Speaker 01:
Sure.

[00:24:41] Speaker 03:
Yeah.

[00:24:41] Speaker 03:
OK.

[00:24:42] Speaker 03:
Well, I don't believe there is a remedy outside of federal courts.

[00:24:45] Speaker 03:
I know there was discussion about Ms.

[00:24:47] Speaker 03:
Barry being a citizen of the Cherokee Nation, and maybe she could go and talk to somebody.

[00:24:55] Speaker 03:
I can tell you that's not in the record.

[00:24:58] Speaker 03:
I know for a fact she has talked to everybody, including the chief, about some satisfaction.

[00:25:04] Speaker 03:
So I was at her counsel when this Eastern District lawsuit of Oklahoma lawsuit was filed.

[00:25:10] Speaker 03:
Frankly, I was the first I've heard of it.

[00:25:12] Speaker 03:
I was sitting there right there.

[00:25:13] Speaker 03:
But it's my understanding that she exhausted every remedy that she had before she brought this claim with the Court of Federal Claims.

[00:25:23] Speaker 03:
And as far as the APA claim,

[00:25:25] Speaker 03:
Again, I'm not sure there would have been an APA claim.

[00:25:31] Speaker 03:
One, if you look at the letter taking the land into trust, it makes it effective immediately.

[00:25:35] Speaker 03:
There's no evidence of any notice of appeal rights or anything along those lines.

[00:25:41] Speaker 03:
But as opposing counsel indicated, the crux of the matter is her land has been rendered unusable by the development of the casino.

[00:25:53] Speaker 03:
And so I want to get back to the issue that I hope I leave you with, is that there are still facts that need to be developed.

[00:26:03] Speaker 03:
And let me talk about some of these facts.

[00:26:05] Speaker 03:
There was an allegation that construction had happened in 2016 prior to the January 2017 decision to take the land into trust.

[00:26:17] Speaker 03:
I know from reading the transcript of the hearing that prior counsel for Ms.

[00:26:21] Speaker 03:
Berry

[00:26:21] Speaker 03:
believes on good basis that there was a verbal approval from the BIA that, yes, we are going to approve this.

[00:26:30] Speaker 03:
And the Cherokee Nation very well may have jumped the gun.

[00:26:33] Speaker 03:
But that's something that I think still needs to be explored that can address that issue.

[00:26:38] Speaker 03:
And I also want to focus on something that counsel said that I forgot to highlight, but she did that for me, that I think we really need to look at the totality of facts here on what happened.

[00:26:51] Speaker 03:
We have the government coming in, analyzing the design plans for the casino, looking into the environmental impacts.

[00:27:01] Speaker 03:
And in doing that, in the EA, the environmental assessment,

[00:27:05] Speaker 03:
They did state that the construction of this behemoth was going to increase the amount of impervious surfaces, mainly asphalt surfaces where water can't seep into the ground.

[00:27:19] Speaker 03:
And the government says, well, look, that's going to increase the surface flow rates on the property.

[00:27:24] Speaker 03:
It looks like they're going to have to do some stormwater detention to prevent the flooding.

[00:27:29] Speaker 03:
So clearly, government knew.

[00:27:32] Speaker 03:
of the potential, and I would say the probability that there was going to be flooding.

[00:27:37] Speaker 03:
So if the government approved this, took the land into title, and as Judge Chin mentioned, how is that any different than a landlord-tenant situation?

[00:27:52] Speaker 03:
I would say it's not much different.

[00:27:55] Speaker 03:
The government owns the property, holds it in title.

[00:27:58] Speaker 03:
The Cherokee Nation is the beneficiary of this trust relationship.

[00:28:04] Speaker 03:
The government comes in, looks at everything, and says, yes, build this casino, build these stormwater detention plans, and

[00:28:15] Speaker 03:
in furtherance of a public objective, which is the self-sufficiency of Indian tribes in America.

[00:28:23] Speaker 03:
And we believe, it's our opinion,

[00:28:26] Speaker 03:
that when we get back and we do discovery and the court looks at all the facts, that there will be a finding that the flooding was the direct, natural, and probable result of that decision.

[00:28:38] Speaker 03:
And so we would ask this court to reverse and remand, order the government to answer the lawsuit.

[00:28:48] Speaker 03:
We go through the process.

[00:28:51] Speaker 03:
If the government wants to move for summary judgment and I can't meet my burden, then we will have gotten our day in court.

[00:28:59] Speaker 03:
But to deny or to grant a motion to dismiss at this stage we believe is reversible.

[00:29:05] Speaker 03:
Thank you for your time.