[00:00:00] Speaker 02: All right. [00:00:01] Speaker 02: Our final case for argument today is 24-1884 Chinook Landing versus United States. [00:00:09] Speaker 02: Mr. McCoy, please proceed when you're ready. [00:00:12] Speaker 04: Thank you, Your Honor. [00:00:13] Speaker 04: May it please the court. [00:00:14] Speaker 04: Jeff McCoy for Chinook Landing. [00:00:17] Speaker 04: The Bonneville Power Administration admitted that it did not have the right to use rear road across Chinook Landing's property. [00:00:26] Speaker 04: It was only after negotiations to acquire that right failed [00:00:30] Speaker 04: that the agency took the position that it had the right all along. [00:00:34] Speaker 00: Well, you're talking about the conversations that you outlined in your brief of statements made by the employees during the 2014 period, right? [00:00:43] Speaker 00: When you say they admitted. [00:00:45] Speaker 00: Yes. [00:00:45] Speaker 00: You're not admitting it here, officially. [00:00:48] Speaker 04: Yes, but in 2011 and 2014, they did admit it both to Mr. Lund in saying that we need to get this done. [00:00:56] Speaker 04: This was on excerpts of record. [00:00:59] Speaker 02: OK, the government has a million employees. [00:01:01] Speaker 02: Like, actually, probably something like 40 million or 50 million employees, all right? [00:01:05] Speaker 02: So if some random employee says, oh, gosh, it looks like we don't have an easement to this. [00:01:09] Speaker 02: We got to get you to give us one. [00:01:10] Speaker 02: But in fact, the government all along had an easement to that. [00:01:13] Speaker 02: What difference does it make that that employee said that? [00:01:15] Speaker 04: Well, these are the employees that are in charge of acquiring rights and assessing it. [00:01:19] Speaker 04: And it wasn't just one. [00:01:20] Speaker 04: It was the project surveyor, the right-of-way agent who's in charge of knowing where there's right-of-ways. [00:01:28] Speaker 04: And the field realty specialists all confirmed that they did not have. [00:01:33] Speaker 04: And I think this is where the Wable Ranch's case is instructive, which I submitted under 28J, where there, same thing, low-level Forest Service employees posted the signs or made a statement, we don't have this. [00:01:51] Speaker 04: And then the Ninth Circuit held that that was enough to [00:01:58] Speaker 02: But what if I conclude that there was an easement granted to use that road and that it was consistently used throughout the decades prior to your client's acquisition of his property? [00:02:11] Speaker 02: What does it matter that a couple of employees many decades later came along and said, oh, I don't know if we have an easement for this? [00:02:22] Speaker 04: That goes to the merits of the claim, and I'm happy to address the merits of the claim. [00:02:26] Speaker 02: If you want to address something else. [00:02:28] Speaker 00: Well, no. [00:02:29] Speaker 00: I mean, I just, on that point, I mean, the district court here outlined, he credited, he believed, the director of the BPA said, it's our practice years later, decades later, to try to minimize any conflicts by just trying to avoid exercising the power of eminent domain. [00:02:48] Speaker 00: And that does not sound like an unreasonable way to proceed, having your employees not go over to a landowner and say, hey, we've got these rights. [00:02:59] Speaker 00: You're out of there. [00:02:59] Speaker 00: We're in here. [00:03:00] Speaker 00: Forget it. [00:03:01] Speaker 00: To come in and just, I mean, they had had these rights since 1955. [00:03:06] Speaker 00: Right. [00:03:06] Speaker 00: Your Honor. [00:03:07] Speaker 00: So I'm just taking your point that you started off by making an assertion that the government admit, not the government, but that there was an admission. [00:03:15] Speaker 00: Yes, Your Honor. [00:03:16] Speaker 00: And I don't think that's clear from the record. [00:03:19] Speaker 04: Well, in the internal emails, Your Honor, they said, we don't have this. [00:03:23] Speaker 04: We need to get this done. [00:03:24] Speaker 04: We do not have an easement. [00:03:25] Speaker 04: I mean, again, the field reality specialist, Monica Stafflin, said, this is a historical way of travel and not an easement. [00:03:35] Speaker 04: But again, I think that there is. [00:03:37] Speaker 04: So in terms of the merits, the question is, can they bring the case? [00:03:44] Speaker 04: Because if it's outside the Quiet Title Act, then no title is quieted. [00:03:50] Speaker 04: If it's affirmed, if this court affirms on the basis of outside the statute of limitations, as the Supreme Court said in Block versus United States, no title is quieted for it. [00:04:00] Speaker 00: So is your only defense to the statute of limitations argument that [00:04:05] Speaker 00: there we, the government admitted 30 years later or however many years later that you don't have, that we didn't, we said we didn't have an easement. [00:04:15] Speaker 00: So that means that there was no, that is dispositive of whether or not the clock started running in 1955. [00:04:21] Speaker 00: Yes, the statute of limitations. [00:04:24] Speaker 04: As the, the Ninth Circuit said in Michael and then reaffirmed, yes, it was an unpublished decision, but reaffirmed in Wable Ranch's cases. [00:04:34] Speaker 02: That statement it opens if it appears that they have abandoned any claim to it and which they said when they say we don't have an easement No, that's completely wrong The the Ninth Circuit law is that they're not that if it appears they may have abandoned which is what you just said the Ninth Circuit law quote clear and unequivocal abandonment of a government interest Clear and unequivocal so your argument that if it appears they may have abandoned. [00:04:58] Speaker 04: Oh no that water I'm saying we do not have an easement [00:05:01] Speaker 04: We don't have an easement is clear and unequivocal. [00:05:04] Speaker 04: And this is a very similar situation to wable ranches. [00:05:09] Speaker 04: But Your Honor, you wanted to address the merits of the claim. [00:05:17] Speaker 04: Because yes, whether or not they can bring it is going to be separate from the merits of the claim. [00:05:22] Speaker 04: You said if you believe that they had the easement all along. [00:05:30] Speaker 04: Sites two, it starts at the transmission easement. [00:05:32] Speaker 04: And page eight shows from the deed the transmission line easement. [00:05:39] Speaker 04: And then there is an access easement, which comes here. [00:05:43] Speaker 04: It's about 50 feet off of Wilson River Highway, Highway 6 in Oregon. [00:05:53] Speaker 04: And it goes up to the transmission line, and then transmission line goes across. [00:05:56] Speaker 04: So it kind of creates sort of a semicircle of access up here. [00:06:00] Speaker 04: and then over this side. [00:06:03] Speaker 04: So it grants transmission line, and then it grants the access easement. [00:06:08] Speaker 04: Now they never built the access easement. [00:06:11] Speaker 01: Didn't they? [00:06:12] Speaker 01: What about BPA Road? [00:06:15] Speaker 01: Isn't that what people understood to be the access easement? [00:06:18] Speaker 04: This is the BPA Road, Your Honor, on the west side of it. [00:06:23] Speaker 04: That has been built. [00:06:25] Speaker 01: Isn't that the 14-foot road? [00:06:28] Speaker 01: that they talk about in the express grant of the easement, that they're going to build this road? [00:06:33] Speaker 04: There is two roads because it grants on one side, from the west side up, and then they did not build this side on the east side. [00:06:46] Speaker 04: Because if they did build it on the east side, there would be no issue here because rear road, this road is the road that goes across Mike Pond's property. [00:06:55] Speaker 04: That's the one that they assert they have a right to use. [00:07:01] Speaker 04: So the express terms of the easement have an access right. [00:07:04] Speaker 04: Under Oregon law, the express terms of the easement control. [00:07:11] Speaker 04: But even beyond that, the court looked to reasonable necessity. [00:07:15] Speaker 04: That is a question of fact. [00:07:16] Speaker 04: And again, so at a minimum, this court should remand because the BPA, right of way agent, again, the person who is in charge of securing rights [00:07:26] Speaker 04: assessing rights, said that there is another way to access the poles, but it would be difficult. [00:07:31] Speaker 04: Difficult is not necessity, and that's a tribal issue of fact. [00:07:36] Speaker 04: Maybe it is so difficult that they do need to use rear road, but we would counter with evidence that they do, I mean, that there is another way to access, and just because they don't want to build this road, [00:07:53] Speaker 04: isn't the same as reasonable necessity. [00:07:55] Speaker 01: Another way to access across the original parcel, or across some parcels that have never been involved in this? [00:08:02] Speaker 04: Yeah, so this was one parcel, and then it was subdivided. [00:08:06] Speaker 04: And so in 1955, it was granted. [00:08:10] Speaker 04: The transmission line easement was granted. [00:08:13] Speaker 04: And the transmission line easement, again, my client's property is near the center of this. [00:08:18] Speaker 04: Transmission line easement goes across the property. [00:08:21] Speaker 04: There's no dispute about that. [00:08:22] Speaker 04: And certainly they can drive up and down the transmission line easement because it is longer than the poles. [00:08:28] Speaker 04: But in order to access it, the road on the southeast side, the easement on the southeast side, the access easement where they did not build a road, goes up to the transmission line easement. [00:08:44] Speaker 04: And then it goes across and then on the west side, there is a road that they did build. [00:08:47] Speaker 04: There is also another access. [00:08:49] Speaker 00: OK. [00:08:49] Speaker 00: The district court did a pretty thorough analysis. [00:08:52] Speaker 00: And he concluded that when the December easement was granted in 1955, the original parties understood and intended that BPA would use the subject road as a reasonable route of entry to accomplish the purposes of the easement. [00:09:08] Speaker 00: So that was as of 1955. [00:09:12] Speaker 04: But Your Honor, the 1955, going to the easement, which is on [00:09:17] Speaker 02: excerpt of record 99 the subject road refers to but it doesn't matter if the court found that the parties intended it to be and if it was consistently used from 1955 on which there doesn't seem to be a dispute about I don't see you disputing or I don't see the district court resolving a dispute of fact over whether it was or was not used right but your honor that it was used for with permission [00:09:44] Speaker 04: And so it was not with right. [00:09:46] Speaker 04: It was a license or closer to a license than a right. [00:09:48] Speaker 00: You have nothing to support that. [00:09:50] Speaker 00: As I was scouring your brief to try to find if there was, in fact, some sort of factual dispute, the only dispute that you create is as of 2014, which is way beyond the statute of limitations if the statute of limitations started to run in 1955. [00:10:06] Speaker 04: Your Honor, the [00:10:11] Speaker 04: But the fealty realty specialist who went back and looked at the historical use said that this is a historical way of travel not an easement. [00:10:21] Speaker 04: Mr. Lund testified that because he grew up here that the owner of the property let them along. [00:10:31] Speaker 04: I would like to go back to the question of subject road. [00:10:33] Speaker 04: The subject road again on page 99 is the easement and so historical use [00:10:41] Speaker 04: with, as the Court of Federal Crimes has held, if it's with permission, then it's not a taking because you have the permission. [00:10:49] Speaker 04: So just because they used it doesn't mean that they had necessarily a right to use it. [00:10:54] Speaker 04: This is rural Oregon. [00:10:56] Speaker 04: I mean, until disputes come up, people are usually generally pretty casual or pretty friendly and allow them to use it until an issue came up. [00:11:09] Speaker 04: But in terms of the [00:11:10] Speaker 04: So the subject road, the subject road refers to the... So if you look on page Exit to Record 98, transmission line easement and access road easement. [00:11:25] Speaker 04: And the subject road refers to the access road easement saying that the subject road that... Do you have to get when that the adverse requirement has to apply here for you to prevail? [00:11:39] Speaker 04: The adverb? [00:11:40] Speaker 02: Well, in terms of... The only cases you cite to us are cases in which plaintiffs want to use government land. [00:11:49] Speaker 02: And this is the opposite. [00:11:52] Speaker 04: But again, Your Honor, Wable Ranches was the case where it was a government owned easement, alleged government owned easement, across private property. [00:12:00] Speaker 04: And in Werner versus United States, which is the 11th Circuit case, they drew no distinction between whether the government owns the fee or the property owner owns the fee. [00:12:15] Speaker 04: They decided to, a District of Wyoming case, in analyzing it, elk mounts are walked far. [00:12:23] Speaker 04: So in that terms, there's no difference. [00:12:25] Speaker 04: And I would say the Wavell Ranch is [00:12:28] Speaker 04: Yes, again, it is unpublished. [00:12:30] Speaker 04: But I find it especially persuasive because that panel was the same panel that decided wable ranches as the same panel that transferred this case here, Your Honor. [00:12:40] Speaker 04: So we can infer that if my client did not have a takings claim, then we can infer that they would apply the same standard that they applied to wable ranches for the question of whether this was outside the statute of limitations. [00:12:55] Speaker 02: OK. [00:12:55] Speaker 02: You think you're into rebuttal time? [00:12:59] Speaker 02: Mr. Martin. [00:13:10] Speaker 03: Good morning. [00:13:10] Speaker 03: May it please the court. [00:13:12] Speaker 03: Sean Martin for the United States. [00:13:14] Speaker 03: This court should affirm the district court's grant of summary judgment to the United States. [00:13:20] Speaker 03: I'll start on the merits. [00:13:21] Speaker 03: The district court got it right that the 1955 easement encompassed BPA use of rear road, also known as the subject road. [00:13:30] Speaker 03: based on two key factors. [00:13:31] Speaker 03: First, the undisputed circumstances surrounding the 1955 easement. [00:13:37] Speaker 03: And secondly, the undisputed fact of BPA's continuous use of Rears Road starting in 1950. [00:13:43] Speaker 02: But your opposing council suggested that was with permission, not through the easement. [00:13:47] Speaker 03: Well, that's [00:13:49] Speaker 03: The only evidence of any kind of permission requirement is what Mr. Lund said in 2014 in an email. [00:13:55] Speaker 02: Where he says he's revoking the permission. [00:13:56] Speaker 03: Right. [00:13:58] Speaker 03: That's the only evidence. [00:13:59] Speaker 03: There's no evidence of any kind of permission requirement going back to the circumstances surrounding the easement. [00:14:05] Speaker 03: In fact, it's undisputed that this easement in 1955, Your Honor, involved a right of entry and that the only way to get to the BPA road, which was [00:14:16] Speaker 03: The right to construct that road was given in the 1955 easement. [00:14:20] Speaker 03: The only way to get to the starting point of the BPA road to construct it and to access it was Rears Road. [00:14:26] Speaker 02: Well, that part, OK, now you just touched on a little difficult issue for me, because that feels like a fact finding. [00:14:33] Speaker 02: Because I feel like that issue was disputed. [00:14:36] Speaker 02: And we're on summary judgment. [00:14:37] Speaker 02: And so if the court made that fact finding, that would be improper. [00:14:41] Speaker 03: Well, there wasn't any dispute about it, Judge, that BPA put up evidence. [00:14:44] Speaker 02: The only way to get to it is? [00:14:46] Speaker 03: Well, the BPA Road, the 14-foot road that was constructed in 1955 per the grant of the right to construct it in 1955, that road starts at Rears Road. [00:14:58] Speaker 01: So BPA Road was completely on the subject parcel, and it starts on Rears Road on the parcel when it was built. [00:15:07] Speaker 03: Right. [00:15:07] Speaker 03: Its origin point is on Rears Road, several miles up hill and up from the Wilson River Highway, and then that [00:15:15] Speaker 03: 14 foot wide, wide BPA road goes up to the transmission facilities. [00:15:21] Speaker 03: It's a way to access the high line, which is quite a bit higher. [00:15:25] Speaker 01: And is that the road that the easement is talking about? [00:15:28] Speaker 01: Is this BPA road? [00:15:29] Speaker 01: I think I heard opposing council to say that there was some other road that never got built. [00:15:33] Speaker 01: Is that? [00:15:34] Speaker 03: I think my friend is incorrect. [00:15:36] Speaker 03: The district court correctly recognized that there was a right to build the road in the 1955 easement. [00:15:44] Speaker 03: And there was testimony, there was evidence undisputed that BPA followed up on the easement grant for that road and built the road. [00:15:51] Speaker 01: And it's called BPA Road. [00:15:52] Speaker 03: It's called BPA Road. [00:15:53] Speaker 03: Yeah. [00:15:56] Speaker 03: So the district court thought that was a really key fact on the merits of the claim that it [00:16:04] Speaker 03: It was elemental to reach the BPA Road. [00:16:06] Speaker 03: You had to use the Rears Road. [00:16:08] Speaker 03: So the right of entry had to encompass Rear Road. [00:16:12] Speaker 00: I don't want to sideways you if you have more to say in response to the question. [00:16:16] Speaker 00: But I don't think it matters. [00:16:19] Speaker 00: But I'm having a hard time distinguishing between the merits case and the statute of limitations case. [00:16:25] Speaker 00: To me, it's the same questions are asked and answered to get to both places. [00:16:31] Speaker 00: Right? [00:16:35] Speaker 03: Yeah, I suppose. [00:16:36] Speaker 00: Everything you said goes to not just the merits, but it would go to the issue of whether the statute of limitations had run. [00:16:44] Speaker 03: I think you're right, Judge. [00:16:45] Speaker 03: There is some overlap. [00:16:47] Speaker 03: Because I think the fact that the circumstances in 1955 and the immediate use of Rears Road beginning in 1955, I think that does get to notice. [00:16:55] Speaker 03: That overlaps over with the notice requirement. [00:16:57] Speaker 03: under the statute of limitations. [00:16:59] Speaker 03: But I believe the district court correctly looked at the two issues, the merits of what the easement encompassed or not, and the statute of limitations separately. [00:17:08] Speaker 00: Well, they did in separate pages. [00:17:10] Speaker 00: But a lot of the second part on the merits refers back to the kind of factual analysis they did in the first part. [00:17:18] Speaker 00: Anyway. [00:17:18] Speaker 03: Yes. [00:17:19] Speaker 03: Right, right. [00:17:20] Speaker 03: But again, Judge, there wasn't a dispute with regard to those circumstances in 1955. [00:17:26] Speaker 00: So is it your view with respect to the statute of limitations, so everything that your friend is raising with respect to 2014 is just too little, too late? [00:17:37] Speaker 00: I mean, under the statute of limitations? [00:17:39] Speaker 00: Yes. [00:17:40] Speaker 00: One, are you saying it doesn't matter what they said or that what they said wasn't sufficient evidence of anything? [00:17:49] Speaker 03: Both. [00:17:50] Speaker 03: I mean, it doesn't shed light on the circumstances in 1955, and it doesn't negate the decades of use of rear road to get to the BPA road. [00:18:01] Speaker 03: So it's not illuminative of the circumstances in 1955. [00:18:07] Speaker 03: And I think it's quite clear that [00:18:10] Speaker 03: It's not enough because it's not on the statute of limitations because it's not a formal, unambiguous abandonment of any right. [00:18:20] Speaker 03: I think the fact that there were some employees who were confused and don't know [00:18:24] Speaker 03: the ins and outs of easement. [00:18:25] Speaker 00: Well, is that sufficient? [00:18:26] Speaker 00: You know, the chief alluded to the fact, like, if there are reasonable factual disputes, summary judgment would not be appropriate. [00:18:33] Speaker 00: So you don't see that as a reasonable factual dispute. [00:18:40] Speaker 03: Right. [00:18:40] Speaker 03: I think any confusion is immaterial to the merits, because it doesn't illuminate the scope of the easement as it was understood in 1955 and as it was used beginning in 1955. [00:18:58] Speaker 03: I do want, I think it was you Judge Hall, you briefly mentioned that, well, Mr. Lund said there were some other, other roads that he thought would be alternatives, but I think, you know, you raised a good point that those are on other people's property. [00:19:11] Speaker 03: And we're talking about this easement that is Chinook's predecessors in interest and gave a right of entry. [00:19:18] Speaker 03: And so that's what we're talking about. [00:19:20] Speaker 03: And the fact is there is a reasonable right of entry. [00:19:23] Speaker 03: It's a historic use using this Weir's Road. [00:19:26] Speaker 03: It's irrelevant to go look and require BPA then to have to acquire 3,000 feet, linear feet, of other roads and somebody else's private property because the right of entry somehow doesn't mean it's a right of entry after all. [00:19:45] Speaker 03: My friend raised the Weibel Ranch's case from the Ninth Circuit. [00:19:50] Speaker 03: I think that's quite distinguishable. [00:19:51] Speaker 03: That was a Rule 12 matter, not a Rule 56 case after the completion of discovery. [00:19:57] Speaker 03: That only involved the statute of limitations. [00:20:00] Speaker 03: It didn't involve the merits. [00:20:06] Speaker 03: In addition, the facts in Weigel were quite a bit different. [00:20:08] Speaker 03: That wasn't a low-level forest service employee doing something. [00:20:11] Speaker 03: It was an official BLM press release issued by the same office that signed an original easement in the 1960s. [00:20:18] Speaker 03: So at least for Rule 12 purposes, in the circumstances of that case, the Ninth Circuit and its unpublished panel thought that there wasn't enough to dismiss the case. [00:20:29] Speaker 03: Here, you may have stray remarks in the 2010s by some lower-level employees, but you don't have anything [00:20:36] Speaker 03: on the same level of the formality as a recorded easement that gave the EPA a right of entry. [00:20:43] Speaker 01: Can a government employee ever do something that would cause the United States to lose right to property through abandonment? [00:20:54] Speaker 01: Isn't that [00:20:55] Speaker 01: Could that ever happen? [00:20:57] Speaker 03: Can the United States abandon property? [00:20:58] Speaker 01: Yes. [00:20:59] Speaker 03: It can. [00:21:00] Speaker 03: It can, but there have to be formalities, because it's not something to be taken lightly. [00:21:06] Speaker 01: Can it do it through the actions of government employees without authority? [00:21:11] Speaker 03: I would say no. [00:21:14] Speaker 03: I would say no. [00:21:14] Speaker 03: A really salient case here is the Kingman Reef case from the Ninth Circuit, where it was an ownership dispute. [00:21:23] Speaker 03: And as in here, the plaintiff claimed a fee title interest. [00:21:27] Speaker 03: And the United States did, too. [00:21:29] Speaker 03: And the Ninth Circuit opinion, this is from 2008, went through various confusing communications from some government employees, but held, I would also add at Rule 12, that that didn't rise to the level of a formal and unambiguous relinquishment. [00:21:45] Speaker 03: That government interests in here, BPA running the Pacific Northwest power grid, [00:21:49] Speaker 03: is an important public interest. [00:21:51] Speaker 03: And BPA bargained with the predecessors decades ago to get these rights so it could run the grid safely and effectively. [00:22:01] Speaker 03: And that is something that we should protect and require formalities before the United States is going to be deemed to have formally abandoned that interest. [00:22:10] Speaker 00: Just a factual question. [00:22:12] Speaker 00: Was the original owner from 1955 the same owner until Mr. Wan took the property in 2004? [00:22:19] Speaker 00: No. [00:22:19] Speaker 00: They were intermittent. [00:22:20] Speaker 03: There were others. [00:22:21] Speaker 03: There were others. [00:22:23] Speaker 00: And I assume we don't have any cases involving those other people. [00:22:26] Speaker 00: Pardon me? [00:22:27] Speaker 00: I assume there are no cases of challenges. [00:22:30] Speaker 03: There's no evidence that they disputed. [00:22:31] Speaker 03: And gosh, if anybody knew that BPA was using Rears Road and they didn't like it, they'd be the ones, because they're the ones who [00:22:40] Speaker 03: wrote up that easement and gave BPA right of entry and knew that BPA needed to use Rear's Road to build the BPA road, but they didn't have any objection. [00:22:51] Speaker 02: Okay. [00:22:51] Speaker 02: Anything further? [00:22:53] Speaker 03: Nothing further. [00:22:54] Speaker 03: Thank you. [00:23:04] Speaker 04: Thank you, Your Honor. [00:23:04] Speaker 04: I think the Chief got to the main question here, is that there are disputed facts. [00:23:09] Speaker 04: And as evidence of the disputed facts, you can look at Mr. Lund's declaration, also the declaration of trial counsel, that submitted evidence in order to cause disputed facts. [00:23:20] Speaker 04: Again, so this is on page excerpt of record. [00:23:24] Speaker 02: Is there a disputed fact over whether they needed to use this road to access the BPA road? [00:23:29] Speaker 04: Yes. [00:23:30] Speaker 04: There is. [00:23:31] Speaker 02: Where is that evidence of that? [00:23:33] Speaker 02: This is, in fact, a dispute of fact. [00:23:35] Speaker 04: Well, so attached to it, excerpts of record 65, the BPA right of way of agent, which I would argue is not a low-level employee because she had the authority to acquire an easement. [00:23:48] Speaker 04: So certainly, I think it is reasonable to believe that she has the right to assess whether or not there is an easement. [00:23:55] Speaker 04: This was attached to Mr. Lund's declaration. [00:23:59] Speaker 04: It was an email to Mr. Lahn that there, and she said, there is another way to access the polls. [00:24:04] Speaker 02: And that is because- To access the what? [00:24:06] Speaker 04: There is another way to access the polls instead of across rear road. [00:24:10] Speaker 02: Yeah, but was there another way to access the BPA road? [00:24:14] Speaker 02: That's a different question. [00:24:15] Speaker 04: Yes, Your Honor, because. [00:24:16] Speaker 02: But no, where is the evidence? [00:24:17] Speaker 02: I don't want to hear your attorney argument about it. [00:24:19] Speaker 02: I want to hear, where is the evidence in this record that creates a dispute of fact about whether there is another way to access the BPA Road? [00:24:27] Speaker 04: OK, Mr. Lund's declaration on page. [00:24:30] Speaker 04: Page and paragraph. [00:24:31] Speaker 04: Yes. [00:24:32] Speaker 04: So on page excerpts of record 64, he drew this map. [00:24:37] Speaker 04: And the black lines on that map are the access easements as defined by the detail. [00:24:43] Speaker 02: that isn't i'm not asking you what mister one thinks the easements are and i'm i'm i think i'm on page sixty-four but maybe a different sixty-four SCR sixty-four what do you want me to look at? [00:24:53] Speaker 04: Exit the record sixty-four. [00:24:55] Speaker 02: Where is that? [00:24:59] Speaker 04: here sixty-four and comparing this to the deed they have an access road there is [00:25:12] Speaker 02: What is 64? [00:25:13] Speaker 02: Exhibit 4? [00:25:15] Speaker 04: Yes, Exhibit 4. [00:25:15] Speaker 04: This is a map that Mr. Lund created that shows the red [00:25:20] Speaker 04: blue and purple lines are old timber roads. [00:25:24] Speaker 04: But the black lines are the access easements that they have. [00:25:29] Speaker 02: But this is what he thinks are the access easements. [00:25:31] Speaker 02: That's not my question. [00:25:32] Speaker 02: My question to you is what she found, or what this district court found, and what the government argued is there's no dispute of fact that to access the BPA road, you have to use this reacher road. [00:25:45] Speaker 02: So you're saying that is, in fact, disputed. [00:25:48] Speaker 02: Where is the dispute about that? [00:25:50] Speaker 02: Where are the facts that show that's in dispute? [00:25:53] Speaker 04: All right. [00:25:55] Speaker 04: If you turn to Mr. Lund's declaration. [00:26:03] Speaker 04: What page? [00:26:05] Speaker 04: On page 51. [00:26:11] Speaker 04: Paragraph 8, a BPA road engineer, who I recall as Chad Maxwell, told me during a meeting on July 23rd. [00:26:17] Speaker 02: Page 51, what paragraph number? [00:26:19] Speaker 04: Sorry. [00:26:19] Speaker 04: 8. [00:26:20] Speaker 04: BPA road engineer, who I recall was Chad Maxwell, told me during a meeting on July 23, 2014 that he used another road to access the Eastman area. [00:26:29] Speaker 02: Well, the Eastman area is a big area. [00:26:32] Speaker 02: So maybe there was some other road to access the Eastman area. [00:26:35] Speaker 02: What I'm asking you is very specific. [00:26:38] Speaker 02: Is there evidence that there's a dispute of fact over the need to use Reacher Road to access the BPA road, not the whole Eastman area? [00:26:46] Speaker 02: The Eastman area is larger. [00:26:47] Speaker 02: There might have been other ways to get to the Eastman area. [00:26:49] Speaker 04: But the BPA Road. [00:26:54] Speaker 04: First, you can use the Eastman area. [00:26:58] Speaker 04: It is wide. [00:26:59] Speaker 04: And the Eastman area connects from the Southeast Access Road to BPA. [00:27:04] Speaker 02: I'm asking a very specific question. [00:27:05] Speaker 02: Answer me yes or no. [00:27:06] Speaker 02: Is there evidence that there is a dispute of fact over whether you need to use Reacher Road to access the BPA Road? [00:27:15] Speaker 04: Yes, Your Honor. [00:27:16] Speaker 02: Where is the evidence? [00:27:20] Speaker 04: Because your honor, they can use their easement, the transmission line easement to access the BPA road. [00:27:27] Speaker 01: There's no road there though, right? [00:27:29] Speaker 04: Right. [00:27:30] Speaker 04: They haven't. [00:27:31] Speaker 04: They could. [00:27:32] Speaker 04: They have a right to build on the southeast. [00:27:35] Speaker 00: Yeah, and what the court relied on was not that it was impossible to get there through airplane, helicopter, or whatever. [00:27:42] Speaker 00: He said since 1955 is the most reasonable route of access to the transmission line. [00:27:49] Speaker 04: But there is a difference between what is the easiest or most reasonable to what is reasonably necessary. [00:27:56] Speaker 04: And that is a question of fact under Oregon law. [00:27:59] Speaker 00: What is reasonable? [00:28:02] Speaker 00: He concludes on the next page that Lund does not dispute the evidence of these original circumstances and uses. [00:28:09] Speaker 00: Instead, he brings us to the 2014 statements. [00:28:13] Speaker 00: So that's where the district court said there's no disputed fact with respect to those initial. [00:28:22] Speaker 04: And Mr. Lund's declaration brings those disputed facts into play. [00:28:28] Speaker 02: Okay, thank you, counsel. [00:28:30] Speaker 02: I think with counsel, this case is taken under submission.