[00:00:00] Speaker 03:
The last case for argument today is appeal number 22-2182, Graves versus U.S.

[00:00:07] Speaker 03:
Counsel for Appellant Mr. Dunn.

[00:00:09] Speaker 00:
Yes, Your Honor.

[00:00:10] Speaker 03:
You have reserved five minutes of rebuttal time, correct?

[00:00:12] Speaker 00:
Yes, Your Honor.

[00:00:13] Speaker 03:
You may proceed.

[00:00:15] Speaker 00:
Good morning.

[00:00:15] Speaker 00:
May it please the court, counsel?

[00:00:18] Speaker 00:
My name is Blair Dunn and I represent the appellants.

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The Graves is in this matter.

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I'd like to jump right into what I think the legal issue in this case is, which is ultimately what the claims court did with

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the Martinez line of cases, the Mendez line of cases.

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The court will note that in the opinion of the claims court, she jumps to the inherently unknowable prong of those cases, but doesn't look at the mixed signals.

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I think that if I were to drive at the crux right off the bat, that's where I would go to point to one of the reasons why the claims court got ahead of itself.

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All of what was in the record on a preponderance, and as a trial lawyer I love to use the Queen X analogy when I'm talking to a jury, I think that it's applicable here, that there's a preponderance.

[00:01:07] Speaker 00:
It's just that 51% rough mark where the graves has put enough at issue to show that the government had either concealed, intentionally concealed what they were doing or

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The government changed their mind along the way.

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Do you agree that any alleged taking occurred no later than 2012?

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No, I don't.

[00:01:30] Speaker 00:
Tell me why.

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I don't think we can know when the government decided to take the property.

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Certainly in 2012, what we have put at issue is that they were telling the graves that they weren't taking the property.

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I don't know if the government was telling the truth.

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That's part of the issue that we have here.

[00:01:48] Speaker 04:
What is it that you rely on for the proposition that they were not telling the graves that they were?

[00:01:57] Speaker 04:
Well, we say it sort of loads the dice to say taking the property.

[00:02:00] Speaker 04:
But the government lays out in 2009 and subsequently in 2012, where they modified the easement, that they lay out what the rights of the respective parties are.

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And what struck me as fairly

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fairly extensive and fairly clear terms, the right of use of the graves upon paying a fee and the right on the part of the Forest Service to use the road and to allow others to use the road.

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That sets the starting point, let's say, for the respective rights of the party.

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I don't see that anything that happened in 2012

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modify that in a substantial way, and that we're still operating under the regime that was created in 2012, right?

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I'm not seeing how anything changed in a way that either they would have been misled in 2012, or that something happened later that would change that.

[00:03:04] Speaker 00:
Well, I think that that's kind of the issue that the District Court of Claims ran into.

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I think that the regime, as the court aptly puts it, started well before 2009 and 2012.

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And the regime that the graves were operating under is that they created this road.

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This isn't a road that the forest service created with the forest reservation.

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This is a road that ultimately predates the forest.

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And so if that's the regime for, let's just say, 110 years, 115 years,

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And then the Forest Service comes in to reasonably regulate, as they're allowed to do under FLIPMA and the ANWR cases.

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And they say, OK, well, yeah, it's your road, but we're going to require a special use permit.

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And I argued the Martin case, where this was actually an issue as well.

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In that situation, absolutely, the Graveses understood that they were subject to a reasonable regulation by the Forest Service.

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Including allowing the Forest Service and the Foreign Service's licensees to use the road.

[00:04:03] Speaker 04:
Exactly.

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So why isn't that?

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When that happened, why wasn't that the point at which they should have said, wait, wait, wait, that's taken?

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Because FLIPMA and the unconstitutional conditions doctrine says that they don't have to surrender their interest in that road in order to allow that reasonable regulation to occur.

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They're not exclusive.

[00:04:22] Speaker 04:
that right uh... they have right to use the road they don't have an exclusive right as in of right to exclude others from use of the right but a but a property interest in an easement is not necessarily an exclusionary interest it's a right of use it's a use of property right they still have that don't think

[00:04:39] Speaker 00:
Well, no, according to the Forest Service, and this is where... They don't have an easement to use the road?

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They have their special use permit easement to use the road.

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That's correct.

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They do have that.

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They don't have a property interest, which is what the Forest Service told them finally in 2016.

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The easement is a property interest.

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It's not a fee simple interest, but it's a property interest.

[00:05:03] Speaker 00:
It is, but it's not the ownership interest.

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And that gets to the unconstitutional.

[00:05:08] Speaker 04:
They didn't have the ownership interest as of 2009.

[00:05:11] Speaker 04:
No, I disagree with that, your honor.

[00:05:17] Speaker 04:
What was the indication in either the 2009 or the 2012 document that indicates that they still had a property right, as in fee right, to the road?

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Because by law, FLIPMA says that that property right is not extinguished.

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An RS-2477 road is not extinguished by a later FLIPMA permit, and that's explicit in the statute.

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And why didn't they raise that at the time that they signed the agreements in 2009 and 2012?

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We allege they did.

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We allege that the understanding, at least the verbal understanding between them and the Forest Service in 2009, 2012,

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And up until the Forest Service finally told them in 2016 this wasn't the case.

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And well before that was that they had a property interest.

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Are you saying they didn't understand the actual language of the easements when they were executing them?

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Is that part of your contention?

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No, I don't think so.

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I think that they had an understanding that the document said one thing and the Forest Service verbally says, we're not taking your property interest.

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And they relied on the government telling them the truth when the government says, go ahead and sign this.

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This is what this says.

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FLIPMA says that we don't actually extinguish your property interest.

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So go ahead and sign it, and we're not actually taking it from you.

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I think you're allowed to rely on the government at that point to be telling the truth.

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And it goes to the crux of this issue.

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The easement says that the road is owned by the United States, correct?

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The easement says that the road is owned by the United States and then the Forest Service repeatedly told them, well that's just what the form says, go ahead and sign it.

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And you're saying when we apply the objective standard of whether they knew or should have known that they didn't own the road, that clock did not start running upon the signing I think as far back as 1996, but certainly 2012 of a document that says yes, the government owns it.

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They shouldn't even have known

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at that point that they may have a claim.

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Right, because it's also an objective fact taken as true at this stage that they were told that even though it says that, that's not the way the government's applying it.

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and not extinguishing their rights.

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That's ultimately what we're here for.

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What about the sign on the road and the fact that they were made to pay a usage fee and that they had no ability to stop other people from using the road?

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None of that should have led them to think that they did not own the road?

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No, that's consistent with reasonable regulation under a special use permit, whether or not they've given up their rights.

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This isn't the only case where the Forest Service does this.

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There are several cases.

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The Martin case was ultimately

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though it was dismissed as not right, we were in the same position that there was an argument that the Forest Service had taken the Martins and several other people's roads on another forest in the west.

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Our argument was that they were taking that property by requiring the special use permit.

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This court said, no, the special use permit isn't actually a taking.

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You can't consider it a taking because that's just reasonable regulation.

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So if we're going to use Martin,

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as a standard for when they should have been noticed, the taking of a special use permit is not a taking.

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Do you agree that the 2012 easement differs only slightly from the 1996 easement that was executed?

[00:08:35] Speaker 00:
I agree, and I think that supports the idea that this has been a regime where they were allowed to retain their property interest on the explicit statements of the government.

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It goes well beyond 2009 even.

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It goes way back.

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I think that's the issue.

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It's their road.

[00:08:51] Speaker 04:
Just out of curiosity, this road, how long is this road?

[00:08:55] Speaker 00:
Very short, like less than 10 miles.

[00:08:56] Speaker 00:
It's not a very long stretch of road.

[00:08:59] Speaker 04:
They have property, I take it, at the end of the road, and the road is accessed at 250 Forest Road, 252, I think, right?

[00:09:05] Speaker 04:
Yes, sir.

[00:09:06] Speaker 04:
And does anybody else have property on that road?

[00:09:10] Speaker 00:
There is another family with a property that is also now served by that road.

[00:09:15] Speaker 00:
I see.

[00:09:15] Speaker 04:
How long has that family had property there?

[00:09:20] Speaker 00:
I don't know how long the property has been there, how long this family has had it.

[00:09:23] Speaker 00:
I know that there were recent improvements and that was part of the issue as to why there was some tension between the Forest Service and the graves is that ultimately the road was damaged and the agreement in conjunction with all this was that the Forest Service was going to do some, because they were going to

[00:09:39] Speaker 00:
reasonably regulated, we're also going to reasonably maintain and do some things with gates and things like that, and close it at certain times of the year so the road wasn't destroyed.

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That didn't happen, and that's what led to a lot of the tension between the graves and the Forest Service.

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What is the concealment evidence that you allege?

[00:09:55] Speaker 00:
Where can I see the allegation of concealment?

[00:10:04] Speaker 00:
It was brought to the district court's attention in the transcript.

[00:10:08] Speaker 06:
Okay, but in the complaint.

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I have to credit the well-planned factual allegations in the complaint.

[00:10:14] Speaker 06:
So where do you allege concealment?

[00:10:19] Speaker 00:
In the complaint at page 19 paragraph... Okay, about appendix 19 then?

[00:10:26] Speaker 00:
Or... Oh, I'm sorry.

[00:10:32] Speaker 06:
i don't think there's a question so i have to think i might have the wrong date okay if you tell me the paragraph that's fine i'm looking at uh... complaint for just compensation uh... appendix eighteen i'm assuming that's the operator of nineteen on page seven of the complaint and uh... looking at that it's page eight twenty four in our appendix

[00:10:56] Speaker 06:
What is the allegation in here that something material is concealed from your clients?

[00:11:01] Speaker 00:
Well, that gets to the interesting timing of this particular situation.

[00:11:06] Speaker 00:
So if the Forest Service intended to take this property by the 2009 or the 2012, let's just use the 2012, because if I can't get there, I can't get to 16, I'm sure, or up to nine, I mean.

[00:11:20] Speaker 00:
If the Forest Service said, well, take this permit, they were actually intending to extinguish the property interest, not just the use interest in the property.

[00:11:31] Speaker 00:
And they went beyond that, and they didn't tell the graves that that's what they were doing.

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They're concealing a material fact of, well, hey, we're taking this by virtue of this permit.

[00:11:40] Speaker 06:
Are you saying the government had an affirmative obligation to tell your clients the legal impact of what they were signing?

[00:11:47] Speaker 00:
If they were intending to condemn it by virtue of this permit, yes.

[00:11:51] Speaker 06:
If I thought instead that the government, you needed to allege at least that the government did something affirmatively misleading, have you alleged that?

[00:11:59] Speaker 00:
No, because it wasn't necessarily a positive concealment in that regard.

[00:12:05] Speaker 00:
It was just an omission rather than a commission.

[00:12:08] Speaker 06:
Just one quick, if I might.

[00:12:10] Speaker 06:
You mentioned unconstitutional conditions.

[00:12:13] Speaker 06:
I think that was part of your claim originally, but that's not on appeal before us, is it?

[00:12:18] Speaker 00:
We brought it up, and the District Court, I'm sorry, the Court of Claims does discuss the Kuntz case, and I think that that is here.

[00:12:24] Speaker 00:
So ultimately, again, if in 2012 the government

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is going to take this property and they're exacting as a fee the property interest in the road in order to get the special use permit, then the unconstitutional doctrine takes it.

[00:12:38] Speaker 06:
Have you appealed the dismissal of an unconstitutional condition claim?

[00:12:43] Speaker 00:
I don't think we had to.

[00:12:44] Speaker 00:
It kind of gets to the idea of the... And the government raises in their brief this idea that there is no compensable property interest, but the court of claims did not get to

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that specific point.

[00:12:54] Speaker 03:
In fact, the Court of Claims specifically... Do you agree that the answer to Judge Snart's question is no?

[00:12:59] Speaker 00:
I'm sorry, I misunderstood the question.

[00:13:01] Speaker 06:
You did not appeal it, but your contention is you didn't have to appeal it.

[00:13:05] Speaker 06:
Essentially, yes.

[00:13:05] Speaker 06:
I'm sorry.

[00:13:07] Speaker 04:
Help me with... You keep referring to their property interest.

[00:13:12] Speaker 04:
What is your definition of the property interest in the road that was taken?

[00:13:19] Speaker 00:
So as part of the bundle of sticks,

[00:13:22] Speaker 00:
There are use of fruct rights to the use of property.

[00:13:25] Speaker 04:
The use of the road.

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Is that the property right that was taken?

[00:13:30] Speaker 00:
That's right.

[00:13:31] Speaker 04:
But not the exclusive use of the road?

[00:13:33] Speaker 00:
No, because necessarily a dominant estate is not exclusive.

[00:13:38] Speaker 04:
The property right that you say the government took was their right to use the road.

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while allowing others to use the road as well.

[00:13:49] Speaker 00:
That's right.

[00:13:49] Speaker 04:
Why do they not still have exactly that property right?

[00:13:53] Speaker 00:
Because all they have now is a revocable permit.

[00:13:56] Speaker 00:
They don't have that.

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Permits are not the same thing as a right, obviously.

[00:14:00] Speaker 00:
So they don't have the right to require the government to do it.

[00:14:03] Speaker 00:
So the government could then cut them off from the rest of their property, and they no longer have a right to end a right.

[00:14:08] Speaker 00:
They have the ability.

[00:14:09] Speaker 00:
They still have the permit.

[00:14:11] Speaker 04:
But as long as the permit is in effect,

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They really haven't had any derogation of their property right, which you've defined as the non-exclusive right to use the road.

[00:14:26] Speaker 00:
Not in a physical sense, but certainly in a legal document paper sense.

[00:14:31] Speaker 00:
It's essentially an extinguishment of a paper right.

[00:14:35] Speaker 00:
This is the issue with use of drugs, like water rights and those things.

[00:14:38] Speaker 00:
The government has canceled out their paper right to use that, even though they still have the physical ability to use that right because of the permit.

[00:14:57] Speaker 02:
Mr. Peterson, you may proceed.

[00:15:00] Speaker 01:
Thank you, Your Honors.

[00:15:01] Speaker 01:
May it please the court?

[00:15:02] Speaker 01:
My name is Ezekiel Peterson here on behalf of the United States.

[00:15:06] Speaker 01:
I'd like to start with Judge Stark what you were alluding to as to what is actually in or not in the complaint here.

[00:15:12] Speaker 01:
And there are no allegations in the complaint as to any contemporaneous extrinsic statements made by the government in 2012 when the grave signed the easement that would support any finding of concealment.

[00:15:28] Speaker 01:
They can't proceed on that purely on the basis of attorney proffer because there's nothing in the record about concealment in 2012.

[00:15:35] Speaker 06:
What about their suggestion, at least today, that the government was under an affirmative obligation to disclose something to them perhaps about the impact of the rights they were giving away when they signed the easements?

[00:15:47] Speaker 01:
I think all the information was clear from the text of the easement.

[00:15:51] Speaker 01:
And the easement itself could not have actually extinguished any underlying property rights.

[00:15:56] Speaker 01:
because the easement was promulgated under FLIPMA, the Federal Lands Policy Management Act, which under that statute preserves pre-existing rights.

[00:16:06] Speaker 01:
So insofar as there are any pre-existing rights, those rights still exist and were not extinguished by that easement.

[00:16:12] Speaker 01:
I think there's been some confusion here about what the graves are claiming that the taking actually is.

[00:16:18] Speaker 01:
Because in the complaint, it certainly seems that they're asserting an exclusive right to use this right of way or use this easement to access this property, exclude others and not have to pay an annual use fee.

[00:16:32] Speaker 01:
But now they're saying that they just have the right to use that and that that right can be regulated.

[00:16:39] Speaker 01:
We agree that that right can be regulated.

[00:16:40] Speaker 01:
And we think that if that is the case, then all of

[00:16:45] Speaker 01:
But they haven't actually lost anything here, I suppose.

[00:16:48] Speaker 04:
Well, Mr. Dunn says, well, what they've lost is they've gone from having an actual right to the easement with its conditions of non-exclusive right to having a permit right, which is subject to the extinction of the permit.

[00:17:07] Speaker 04:
So what do you say to that, Ari?

[00:17:09] Speaker 01:
I think any conditions that they're complaining about now in the permit were clearly stated in the permit in 2012.

[00:17:15] Speaker 01:
and, as such, are time-borrowed by the jurisdictional six-year statute of limitations.

[00:17:20] Speaker 01:
All the events that were needed.

[00:17:22] Speaker 04:
Do you agree?

[00:17:22] Speaker 04:
Just to make sure I understand the argument you made about flip-flip mon.

[00:17:28] Speaker 04:
Previously, would you agree that the Forest Service cannot now simply revoke the permit on a swim and say,

[00:17:40] Speaker 04:
We gave you this permit up to now, but we're terminating it.

[00:17:43] Speaker 04:
You can't use the road.

[00:17:44] Speaker 01:
I think there are conditions in the permit that possibly address that.

[00:17:47] Speaker 01:
We certainly agree that in-holders in the forest have the right to access their property subject to reasonable regulation.

[00:17:54] Speaker 01:
We don't think that that has been taken away from the graves here.

[00:18:00] Speaker 04:
But when- Had to the end of time or just as long as the permit is in place?

[00:18:07] Speaker 01:
I think under the general mining laws of the late 1800s that right is not contingent on the specific permit, but the terms of that permit can still be negotiated and there can be reasonable regulation of their right to access the property like there was here.

[00:18:25] Speaker 01:
Insofar as their complaint alleges, which we think it does, that they have an exclusive right to use this road that was clearly

[00:18:37] Speaker 01:
contradicted by the plain terms of the 2012 FLIPMA easement and the claim would have accrued at that point.

[00:18:43] Speaker 01:
Like the consent decree in San Carlos Apache tribe, the 2012 easement fixed the government's alleged liability at that date.

[00:18:51] Speaker 01:
And that is the date for claim accrual.

[00:18:54] Speaker 01:
So they argue that the accrual suspension rule should excuse their untimely complaint.

[00:18:59] Speaker 01:
But there are problems with that argument.

[00:19:01] Speaker 01:
First, as I mentioned,

[00:19:03] Speaker 01:
Nothing in their complaint alleges that the Forest Service actually concealed any requirements to pay an annual use fee and to let other land it.

[00:19:10] Speaker 03:
They seem to contend that with respect to some of the statements that were made to them, they basically somehow would override or contradict the plain language of the usements.

[00:19:20] Speaker 03:
Can you respond to that?

[00:19:22] Speaker 01:
We think that even if that was in the record, it wouldn't be the case because

[00:19:28] Speaker 01:
The statute of limitations is judged from an objective perspective.

[00:19:32] Speaker 01:
And looking at the objective language of the 2012 FLIPMA easement, it's very clear that the conditions that they complain about in their complaint were imposed clearly on their right to use the road.

[00:19:44] Speaker 01:
Their right to use the road was clearly regulated at that point.

[00:19:49] Speaker 01:
As I mentioned, if their complaint is instead that they didn't realize that

[00:19:55] Speaker 01:
their underlying property interest had been taken until 2016 because of a single Forest Service employee's statement at that point.

[00:20:04] Speaker 01:
That argument fails primarily because the Forest Service could not have extinguished any underlying private right through the 2012 easement.

[00:20:11] Speaker 01:
And also because single statement by a Forest Service employee cannot by itself constitute a taking.

[00:20:19] Speaker 01:
And that's what this court said in the Katzen case.

[00:20:22] Speaker 01:
A government employee's assertion of ownership is not in and of itself

[00:20:26] Speaker 01:
a taking, and the government employee here at issue did not have the actual authority to unilaterally impose a taking purely by their statement.

[00:20:33] Speaker 04:
What is the difference of substance other than the change in the amount of the fee between the 1996 easement and the 2012 easement?

[00:20:43] Speaker 01:
Almost nothing, Your Honor.

[00:20:46] Speaker 01:
I think there's some minor language changes.

[00:20:48] Speaker 04:
Help me out with this, because I got lost in the details here.

[00:20:53] Speaker 04:
But there was a change.

[00:20:55] Speaker 04:
which I take it was provided for in the 1996 easement, that it could be converted into a different form of easement, which conversion occurred in 2012.

[00:21:08] Speaker 04:
Am I right about that?

[00:21:10] Speaker 01:
I don't think that's right, Your Honor.

[00:21:12] Speaker 01:
I think the term that you're looking at.

[00:21:15] Speaker 04:
They used different terms for the two easements.

[00:21:17] Speaker 04:
And it wasn't clear to me if there was any substance to the difference.

[00:21:21] Speaker 01:
That's where I'm going with this.

[00:21:22] Speaker 01:
Your Honor, we don't think there is any substance to the difference.

[00:21:25] Speaker 01:
And we think that at the latest, the Graves should have been aware of this regulation of their right to use the road in 2012.

[00:21:33] Speaker 01:
But really, they should have been aware of it much prior to that, because their immediate predecessor in interest, which is Mr. Graves' mother, executed this 1996 easement, which was subject to the exact same terms.

[00:21:44] Speaker 01:
Right.

[00:21:44] Speaker 04:
And the fact that it was a predecessor in interest

[00:21:50] Speaker 04:
who agreed to the easement.

[00:21:51] Speaker 04:
If the easements were the same, then the graves, I gather, took possession of the property subject to the original 1996 easement.

[00:22:01] Speaker 04:
Yes, Your Honor.

[00:22:02] Speaker 01:
They should have been aware of it, really, at the point they took possession of the property.

[00:22:07] Speaker 01:
This is not a case like Holmes v. United States, where in that case the government had promised to take certain actions, had conveyed that it had taken those actions.

[00:22:17] Speaker 01:
even though there was no way for the plaintiffs to understand that they actually had not taken those actions.

[00:22:22] Speaker 01:
Here, the government's conduct has always been very clear, has been explicitly laid out in these easements since at least 2012, but really going back to 1996.

[00:22:30] Speaker 01:
So plaintiffs' purported injury was not concealed or inherently unknowable, and now their claim is time barred.

[00:22:38] Speaker 01:
I'd just briefly like to touch on the underlying merits of the property interest at issue here.

[00:22:44] Speaker 01:
This court in the alternative could affirm the court of federal claims if it finds that it does have jurisdiction because the plaintiffs have failed to allege Takings' claim as a matter of law.

[00:22:55] Speaker 01:
They allege that their interest was created through revised statute 2477, but that statute only granted rights of way as to the construction of public highways, not private roads.

[00:23:05] Speaker 01:
So private parties do not have private property interests in those public highways.

[00:23:10] Speaker 01:
Nor can they allege a cognizable property interest under the general mining laws, because as I mentioned, those laws establish a statutory right of access, not the right to use any sort of particular right of way exclusively to access an inholding.

[00:23:24] Speaker 01:
Plaintiffs don't address these issues in their reply brief, but instead argue that the court isn't even allowed to consider them.

[00:23:30] Speaker 01:
But it's well-settled law that this court may affirm on any grounds supported by the record and the law, so long as it will not expand the scope of the relief granted.

[00:23:37] Speaker 05:
unconstitutional conditions or do we have to be concerned with that?

[00:23:41] Speaker 05:
Is that part of the appeal in front of us?

[00:23:43] Speaker 01:
No, we don't think it is.

[00:23:45] Speaker 01:
But even if it was, any conditions would have been put forth in that 2012 easement or the 1996 easement.

[00:23:52] Speaker 06:
So even if the conditions were unconstitutional, it's too late to challenge them?

[00:23:57] Speaker 01:
Yes, Your Honor.

[00:23:57] Speaker 01:
It's jurisdictionally barred by the statute of limitations.

[00:24:01] Speaker 04:
Is it clear, I know I've forgotten the law on this, although I should remember it, but is it clear that the limitations problem is a jurisdictional bar?

[00:24:13] Speaker 04:
That's undisputed.

[00:24:14] Speaker 01:
That's undisputed.

[00:24:15] Speaker 01:
And that's what the Supreme Court said in, I believe, the John R Sand and Gravel case.

[00:24:20] Speaker 01:
Okay.

[00:24:21] Speaker 01:
Yes.

[00:24:22] Speaker 01:
All right.

[00:24:22] Speaker 01:
Thank you.

[00:24:23] Speaker 01:
Ultimately, the plaintiffs use this road to access their property.

[00:24:28] Speaker 01:
Just like the other landowners that live in the area in their complaint, at least they state that they should have the exclusive right to use this road.

[00:24:36] Speaker 01:
But that

[00:24:38] Speaker 01:
was clearly contradicted by the text of the 2012 easement.

[00:24:41] Speaker 01:
So at the very latest, when they signed the 2012 easement, they knew or should have known that they did not have the exclusive right to use this road.

[00:24:49] Speaker 01:
And at that point, their claim accrued.

[00:24:51] Speaker 01:
The Court of Federal Claims correctly dismissed for lack of subject matter jurisdiction.

[00:24:55] Speaker 01:
And unless this court has any further questions, we ask this court to affirm.

[00:24:59] Speaker 01:
Thank you.

[00:25:00] Speaker 03:
Thank you.

[00:25:00] Speaker 03:
Give me a bottle.

[00:25:02] Speaker 00:
If I may.

[00:25:03] Speaker 00:
Very quickly.

[00:25:05] Speaker 00:
The complaint discusses

[00:25:07] Speaker 00:
not an exclusive use.

[00:25:08] Speaker 00:
I want to make sure we clear that up.

[00:25:09] Speaker 00:
What it discusses is that part of the terms of the permit were that there were times in the year where the road was supposed to be closed to the rest of the public so that they didn't tear up the road.

[00:25:18] Speaker 00:
That's part of the agreements verbal between the Forest Service and the Graves' that were not met that we're arguing.

[00:25:26] Speaker 00:
are part of what they lost as part of having their property right as the ability to negotiate that with the Forest Service.

[00:25:33] Speaker 00:
I want to be really very clear.

[00:25:35] Speaker 00:
Judge Bryson, you touched on this idea between 1996 and 2012, the distinction between the permanences.

[00:25:42] Speaker 00:
Subsequently, probably not all that different, except for one important point.

[00:25:46] Speaker 00:
One was a reasonable regulation that recognized that it was a permanent easement.

[00:25:52] Speaker 00:
The permanent part of that is very important, because ultimately, that's a recognition of a property right as a permanent interest in that property until taken away.

[00:26:02] Speaker 00:
So to say that the Forest Service hasn't given mixed signals at all here, and the Gravesmen should have just been able to figure this out, I think today's argument alone goes to show that those mixed signals are there.

[00:26:14] Speaker 00:
In 1996, it's a permanent easement.

[00:26:16] Speaker 00:
That's the regime.

[00:26:17] Speaker 04:
So you're saying the difference is that the 96 was a permanent easement, and it was converted

[00:26:22] Speaker 04:
into an easement at sufferance in 2012.

[00:26:25] Speaker 00:
Precisely, Your Honor.

[00:26:27] Speaker 00:
And I think that's the main point of this, is that when you get down to it, between 1996 at least and 2016, what was the understanding of the Graves is that they hadn't surrendered a property right.

[00:26:37] Speaker 00:
And it was not until 2016 that the Forest Service finally acknowledged that they had taken it.

[00:26:43] Speaker 00:
How would the Graves have known that between that period of time?

[00:26:45] Speaker 00:
And that's the question.

[00:26:47] Speaker 03:
Can you point us to where in the 96 East Mint it supports up your statements about kind of the differences between 96 and 2012?

[00:26:53] Speaker 03:
Do you have access to the appendix?

[00:26:57] Speaker 00:
I do.

[00:26:58] Speaker 00:
I will apologize.

[00:26:59] Speaker 00:
That was not part of the... I can't give you a page site, Your Honor.

[00:27:02] Speaker 00:
I'm sorry.

[00:27:03] Speaker 00:
I don't have the full attachments to the complaint with me.

[00:27:07] Speaker 03:
Do you have the appendix with you?

[00:27:09] Speaker 00:
I have part of the appendix, and I realized I was missing a significant part of it when I got here to DC.

[00:27:14] Speaker 00:
I apologize for that.

[00:27:15] Speaker 04:
Well, there is a provision on page 79 of the appendix number 6 of the 96 easement, which says, the right to terminate this agreement if the grantor, that's the Forest Service, assumes jurisdiction and control of the road as a forest development road and issues a replacement easement providing only for use of the road.

[00:27:38] Speaker 04:
So it sounds as if they're anticipating that one of the rights given to the grantor, the Forest Service at that point, was to convert it into the easement that ultimately arrived in 2012.

[00:27:51] Speaker 04:
In which case this is only permanent in the sense that it's permanent until the Forest Service decides to convert it.

[00:27:57] Speaker 00:
agreed and then the Forest Service never gave notice that they were converting it instead what they told them was no we're just going to change this to a special use permit we're not going to extinguish your right and that's what we're saying is that how would they know in 2012 when the Forest Service converted this that they were when they were taking the right when there's the objective fact that the Forest Service told them at that time that that's not what they were doing.

[00:28:18] Speaker 04:
But this provision says that at that point

[00:28:22] Speaker 04:
If they do convert it, it is into issuing a replacement easement providing only for use of the road.

[00:28:29] Speaker 00:
And therefore, the taking would occur at that point in time.

[00:28:32] Speaker 00:
I agree with the court.

[00:28:33] Speaker 00:
I think that's where the court's leading.

[00:28:35] Speaker 06:
But that's 2012.

[00:28:37] Speaker 00:
It is.

[00:28:38] Speaker 00:
It is.

[00:28:39] Speaker 06:
And then we have- So you're too late.

[00:28:42] Speaker 06:
If the conversion occurs in 2012, you're too late.

[00:28:45] Speaker 00:
But for the statements by the Forest Service,

[00:28:47] Speaker 00:
Reference again in 2016 saying, well, we may have told you that then, but we're telling you now we're taking it as property.

[00:28:52] Speaker 00:
All of which are not alleged.

[00:28:53] Speaker 00:
No, we do allege that there was a conversation where the Forest Service employee said that they were taking it now, that it had been taken as property.

[00:28:59] Speaker 00:
In 2016.

[00:28:59] Speaker 00:
In 2016, that was when the notice was given.

[00:29:01] Speaker 06:
No allegations, sorry, that in or around 2012 that something was said to contradict what the plain language of the easement says.

[00:29:12] Speaker 00:
Your Honor, other than the Forest Service were saying that the first time that they told them that they were taking it,

[00:29:17] Speaker 00:
We have an affirmative statement that the first from the graves is alleged in the complaint that in 2016 was the first time the Forest Service told them.

[00:29:23] Speaker 00:
So this gets to your point about whether or not there's an affirmative statement.

[00:29:26] Speaker 00:
Thank you.

[00:29:27] Speaker 03:
Thank you.

[00:29:28] Speaker 03:
This case is taken under submission.

[00:29:30] Speaker 03:
That concludes the arguments for today.