[00:00:00] Speaker 04:
Our next case for argument is 23-2196.

[00:00:06] Speaker 04:
Eichen Goenberry, did I say that right?

[00:00:09] Speaker 02:
Etch Goenberry.

[00:00:10] Speaker 04:
Oh man.

[00:00:10] Speaker 02:
It's not easy.

[00:00:11] Speaker 04:
Etch Goenberry versus United States.

[00:00:13] Speaker 04:
Mr. Klein, please proceed.

[00:00:14] Speaker 02:
Thank you.

[00:00:15] Speaker 02:
Good morning, Your Honors.

[00:00:15] Speaker 02:
May it please the Court and thank you as well to the UNC Law School for hosting us.

[00:00:19] Speaker 02:
I'm Eric Klein on behalf of Plaintiff Appellants.

[00:00:22] Speaker 02:
I want to start with good news.

[00:00:24] Speaker 02:
This case has a complicated factual history, but I think it's actually easier on appeal than it seems.

[00:00:30] Speaker 02:
I want to use my time at the podium today to explain what I think are the simplest pathways through each issue.

[00:00:35] Speaker 02:
to a disposition.

[00:00:37] Speaker 02:
The Court of Federal Claims in 2023 made two big mistakes.

[00:00:41] Speaker 02:
I'll briefly address each in turn, and then with the rest of my time, I'd like to address the key issue that the court below did not reach in 2023, and that's whether the plaintiffs needed to allege affirmative lawful government acts and whether they did.

[00:00:55] Speaker 02:
Both parties today share the hope that this court will address this question now.

[00:01:02] Speaker 02:
and not wait for another year's long cycle.

[00:01:04] Speaker 03:
Wait, you think that we're going to address something that the lower court didn't rely on in making its opinion?

[00:01:09] Speaker 02:
Well, I think the court can do so.

[00:01:11] Speaker 03:
I suggest that you talk about the errors in the actual opinion and not ask us to issue an opinion that the lower court hasn't passed on yet.

[00:01:20] Speaker 03:
I mean, you can use your time however you want.

[00:01:22] Speaker 03:
But I'm interested in hearing why the lower court erred and what it actually did.

[00:01:27] Speaker 02:
Certainly.

[00:01:27] Speaker 02:
I have enough material on that to fill my time in, so I can certainly do that, Your Honor.

[00:01:32] Speaker 02:
The two errors below, one was procedural, one was on the merits.

[00:01:37] Speaker 02:
On the procedure, the court below in 2023 reconsidered its own highly detailed decision from 2013, Suis Ponte, because a newly assigned judge thought the outcome should be different.

[00:01:49] Speaker 04:
I know, but this is your problem with this.

[00:01:50] Speaker 04:
Look, time limits under the statutes of limitations are usually not jurisdictional nowadays.

[00:01:56] Speaker 04:
The Supreme Court has made that really clear over and over again in recent times.

[00:02:02] Speaker 04:
But this particular one in John R. Sand and Gravel, the United States Supreme Court said, is jurisdictional and not waivable.

[00:02:11] Speaker 04:
If this is jurisdictional and not waivable, it is not like your typical statute of limitations, which the Supreme Court has generally said are not jurisdictional.

[00:02:20] Speaker 04:
This is jurisdictional and not waivable.

[00:02:23] Speaker 04:
And here, the Court of Federal Claims has a rule just like the federal rules of civil procedure.

[00:02:28] Speaker 04:
Every court in the country has this rule, in fact.

[00:02:30] Speaker 04:
And that rule is when you have a question of subject matter of jurisdiction, you can address it at any time.

[00:02:35] Speaker 04:
You can address it suespante.

[00:02:37] Speaker 04:
You must address it.

[00:02:38] Speaker 04:
It is a threshold issue that must be addressed of jurisdiction before you can get to the merits.

[00:02:44] Speaker 04:
So I don't see what's wrong.

[00:02:47] Speaker 04:
I don't love it.

[00:02:48] Speaker 04:
I don't love that 10 years after this was thoroughly decided, another judge looked at it and went the other way.

[00:02:53] Speaker 04:
I think it's judicially inefficient and that's unfortunate.

[00:02:56] Speaker 04:
But the Supreme Court has held it jurisdictional, not waivable, which means it can be addressed at any time.

[00:03:03] Speaker 04:
So what's the problem?

[00:03:04] Speaker 02:
Your Honor, the decision accurately characterized the decision in John R. Stanton-Grabble.

[00:03:11] Speaker 02:
But there is a wrinkle here.

[00:03:13] Speaker 04:
I accurately characterized it.

[00:03:14] Speaker 04:
Thank you.

[00:03:14] Speaker 04:
I'm really glad that I have your affirmation on that.

[00:03:17] Speaker 04:
Please continue.

[00:03:18] Speaker 02:
There's a distinction, Your Honor, and that is to be found in this court's case Meissen versus McHugh.

[00:03:24] Speaker 02:
While John R. Sandingrabble did say that the Tucker Act statute limitation is jurisdictional and not waivable, it did not say that it therefore must be addressed at the front of the line like a constitutional standing issue.

[00:03:38] Speaker 02:
And so this court in Minison said the statutory statute of limitation is different than a constitutional standing issue.

[00:03:48] Speaker 02:
And for that reason, the holding in John R. Sand and Gravel did not mean that the court needed to address the stabilization issue, the statute of limitations issue, A, immediately, it did not, or B, to reconsider it in violation of the rules of this court on reconsideration.

[00:04:09] Speaker 00:
What is your other alleged error?

[00:04:12] Speaker 02:
The merits of the stabilization doctrine, Your Honor.

[00:04:15] Speaker 02:
Can you get to that?

[00:04:16] Speaker 02:
Of course.

[00:04:18] Speaker 02:
The Court of Federal Claims got stabilization right in 2013 and wrong in 2023.

[00:04:27] Speaker 02:
First of all, this is a stabilization case.

[00:04:30] Speaker 02:
It's a case about a taking by a slow and intermittent flooding, and that's a classic case.

[00:04:36] Speaker 02:
That was where the doctrine was invented in Dickinson, and that's still the classic use of the doctrine.

[00:04:41] Speaker 02:
So the doctrine does apply, and the question for the court is, and where largely were the crux of the disagreement between the court below in 2013 and 2023, was when?

[00:04:51] Speaker 02:
When did that stabilization occur?

[00:04:54] Speaker 03:
When you say it's slow and intermittent, what's intermittent?

[00:04:58] Speaker 03:
It's regular, right?

[00:04:59] Speaker 03:
They irrigate the fields and then the water doesn't drain away and the land gets inundated with salt water that makes the soil unusable.

[00:05:10] Speaker 03:
Am I getting that right?

[00:05:12] Speaker 02:
Respectfully, not quite, Your Honor.

[00:05:14] Speaker 02:
There's two points to consider there.

[00:05:16] Speaker 02:
First, the hydrogeology of the underwater flooding is more complex than that.

[00:05:20] Speaker 02:
It has not been a simple, straightforward, regular movement of groundwater over the years.

[00:05:25] Speaker 02:
It is ebbs and flows, salinity ebbs and flows.

[00:05:28] Speaker 02:
It's more complicated.

[00:05:30] Speaker 02:
But what also makes this a stabilization case is not just hydrogeology.

[00:05:35] Speaker 02:
It's also mitigation and the promises of mitigation.

[00:05:38] Speaker 02:
So on that level, this is.

[00:05:40] Speaker 03:
So when they created this water district or whatever we're talking about in the irrigation program back in the 60s, they knew there was going to be a problem if it didn't drain, right?

[00:05:50] Speaker 03:
Yes, they knew that there would be a problem if it didn't drain.

[00:05:53] Speaker 03:
They knew this problem would occur, that the salt would destroy the soil.

[00:05:58] Speaker 03:
And so it was intended from the outset that there'd be a solution to this.

[00:06:03] Speaker 03:
And they started down that path, and that path and the drain they started to build ultimately caused other problems, right?

[00:06:13] Speaker 02:
Yes.

[00:06:14] Speaker 03:
So they stopped.

[00:06:16] Speaker 02:
That's correct.

[00:06:18] Speaker 03:
What's the actual taking you're alleging here?

[00:06:21] Speaker 02:
It's the taking of seepage and flowage easements by the United States, which is to say a flooding taking.

[00:06:26] Speaker 02:
That's what the taking is in all flooding cases.

[00:06:28] Speaker 02:
And to that point, Your Honor.

[00:06:30] Speaker 03:
No, but I mean, in those cases, it takes some physical property.

[00:06:33] Speaker 03:
What is the physical property being taken and what is causing that property to be unusable for the owner's benefit

[00:06:41] Speaker 03:
and turned into basically public property.

[00:06:44] Speaker 02:
It's the taking of the agricultural land.

[00:06:46] Speaker 02:
The value of the agricultural land requires just compensation because it's being flooded from underground.

[00:06:52] Speaker 03:
So the stabilization doctrine would require that your clients file a suit

[00:06:57] Speaker 03:
as soon as they knew that their land was, because of the government's action or inaction, was going to become unusable for its purposes in farmland.

[00:07:09] Speaker 02:
Respectfully, no, that's not what the stabilization doctrine says.

[00:07:12] Speaker 02:
Under Applegate, for example, the stabilization doctrine applies when it's uncertain when the permanence of the taking

[00:07:19] Speaker 02:
is in effect when the taking has become permanent.

[00:07:22] Speaker 02:
It's not enough to say, for example, this dam will cause flooding.

[00:07:26] Speaker 02:
That's the case in all dam flooding takings cases.

[00:07:29] Speaker 02:
They know that the dams cause flooding.

[00:07:31] Speaker 03:
It sounds to me like you're arguing for an indefinite, never-ending statute of limitations because the government could always come in

[00:07:40] Speaker 03:
20, 30, 100 years down the road and say, look, we know we've done this.

[00:07:46] Speaker 03:
It's created a problem.

[00:07:48] Speaker 03:
We're going to give you a solution now.

[00:07:50] Speaker 03:
And then that solution proves unusable.

[00:07:52] Speaker 03:
And you come back and say, well, it didn't stabilize until they turned down the latest solution.

[00:07:59] Speaker 03:
Wasn't it true that at some point over the course of these years, it was pretty clear that the government wasn't going to solve this problem?

[00:08:08] Speaker 03:
They went back and forth and said, yes, we're going to, no, we're not going to, yes, we're going to.

[00:08:13] Speaker 03:
I believe it was sometime in the early 2000s in the litigation, they specifically said, we have no legal obligation to do that.

[00:08:21] Speaker 03:
Isn't that a firm enough statement that, one, you knew your land was going to be destroyed by the saltwater.

[00:08:28] Speaker 03:
You knew that from the outset in the 60s if the government didn't construct some kind of drain.

[00:08:33] Speaker 03:
And two, the government told you at least as early as the early 2000s that they had no legal obligation to do that.

[00:08:41] Speaker 03:
Isn't that statement enough to make the claim stabilized?

[00:08:45] Speaker 02:
Your Honor, on the facts as to your latter point about the early 2000s, that's not an accurate characterization.

[00:08:50] Speaker 03:
Let's just assume it was.

[00:08:52] Speaker 02:
If the government said we have no legal obligation in 2002, then arguably that would have stabilized the claim in 2002, but that isn't what happened.

[00:09:03] Speaker 02:
In 2000, the Ninth Circuit affirmed that the government does have that obligation.

[00:09:08] Speaker 02:
And in fact, the United States concedes

[00:09:11] Speaker 02:
that in the 2000s, that's not when this claim stabilized because they say we've been complying with the court orders in the Ninth Circuit.

[00:09:19] Speaker 02:
They've ordered us to study and provide drainage.

[00:09:22] Speaker 02:
We're doing it.

[00:09:23] Speaker 02:
We're in compliance.

[00:09:24] Speaker 02:
So they're not contending that this claim stabilized in 02 or 03.

[00:09:29] Speaker 02:
They think it stabilized at some point before or when that order came down.

[00:09:34] Speaker 02:
But that order was in order to provide drainage.

[00:09:39] Speaker 04:
So I guess I want to understand something.

[00:09:41] Speaker 04:
There's one thing I find these flooding cases, I find takings cases challenging and I find water related takings cases even more challenging.

[00:09:50] Speaker 04:
Let me ask you something.

[00:09:51] Speaker 04:
One of the things I've been thinking about is, isn't it possible that you could experience... I'm not saying what the facts of your case are.

[00:10:01] Speaker 04:
We're now going to talk hypothetical, so don't tell me these are not the facts of my case at any point in response to the series of questions.

[00:10:06] Speaker 04:
Okay.

[00:10:07] Speaker 04:
So, isn't it possible that you could... Forget about what we're going to call stabilization doctrine.

[00:10:12] Speaker 04:
Isn't it possible that you could have flooding, right, and that flooding could cause damage to your land?

[00:10:18] Speaker 04:
And then you wait too long to bring your suit.

[00:10:21] Speaker 04:
You're outside the six year statute of limitations.

[00:10:24] Speaker 04:
So you lose the right to sue the government for the damage that particular instance of flooding caused.

[00:10:31] Speaker 04:
But what if there was intermittent reoccurring flooding, let's say every three years, and it flooded again?

[00:10:36] Speaker 04:
at a later point in time, now within the six years, you might not be able to get the damage that was caused by the first flood because you didn't sue in a timely fashion.

[00:10:47] Speaker 04:
But can't you still get the damage caused by the second flood?

[00:10:50] Speaker 04:
So I guess where I'm going, I mean, this is actually a friendly question, though it would for sure not give you the damages going back all the way.

[00:10:55] Speaker 04:
I hope your brain is quickly processing.

[00:10:57] Speaker 04:
This is a friendly question, but it wouldn't give you damages going all the way back, right?

[00:11:01] Speaker 04:
But isn't it possible that in cases when you have flooding,

[00:11:07] Speaker 04:
that you may lose out on some period to claim damages if you don't act quick enough, but later floods that are within the six-year period that you could in fact get any damages for those specific acts.

[00:11:23] Speaker 04:
Isn't that possible?

[00:11:24] Speaker 04:
Couldn't that happen?

[00:11:26] Speaker 04:
It's not a tolling forever of your claim, but isn't it possible that later floods stand on their own as separate

[00:11:37] Speaker 04:
causal takings acts for which compensation could be.

[00:11:43] Speaker 04:
obtained respectfully your honor i don't agree with that oh my god that was a stupid answer go ahead and i think my colleague on the in the united states is going to agree with me about this that that is why no he's going to agree because i just created a rule of law that makes him forever liable i create i would create a rule of law that would help you not give you as much as you want but you're probably not getting that anyway so you should think about what i'm saying

[00:12:08] Speaker 02:
The stabilization doctrine under the Supreme Court's law in Dickinson, Your Honor, says that once the claim stabilizes from the taking… Right, that was a taking that occurred with the first flood.

[00:12:18] Speaker 04:
I'm saying why isn't a second flood that occurs three years later which causes additional damage above and beyond the first flood, why isn't that a separate taking?

[00:12:29] Speaker 02:
assuming in the hypothetical that it was the same taking, let's call it building of a dam, that caused the first flood and the second flood and the third flood.

[00:12:41] Speaker 02:
And if that's the case, that's a stabilization situation, and once the claim stabilizes, the statute runs and it doesn't, that bell can't be unrung.

[00:12:51] Speaker 02:
that claim for the taking associated with the building of that dam runs and the claim is no longer available for future floods.

[00:12:59] Speaker 04:
But that isn't your claim.

[00:13:01] Speaker 04:
Now I'm going to do what I said you couldn't do.

[00:13:03] Speaker 04:
So I'm going to say that's not your claim, but your claim is the government told us they were going to come in and do drainage.

[00:13:08] Speaker 04:
We've been waiting.

[00:13:09] Speaker 04:
We've been sitting here waiting for the government to come in and do its statutorily obligated drainage

[00:13:13] Speaker 04:
And they haven't done it.

[00:13:15] Speaker 04:
And so each time they fail to fulfill their obligation of drainage, it is a separate taking for us.

[00:13:22] Speaker 04:
So each time that water floods our land and they don't drain it and it causes more damage to our land, we should be allowed to sue each time because those are separate acts of taking.

[00:13:32] Speaker 02:
I wouldn't mind that ruling, but it wouldn't be consistent with the Supreme Court's Dickinson holding.

[00:13:36] Speaker 04:
How so?

[00:13:37] Speaker 02:
Because the Dickinson holding suggests that for one event... You are swinging for the fences.

[00:13:42] Speaker 04:
You do not understand baseball, my friend.

[00:13:43] Speaker 04:
Baseball is won by base hits.

[00:13:46] Speaker 04:
It is not won by home runs.

[00:13:48] Speaker 04:
Especially when you aren't going to get over that fence.

[00:13:50] Speaker 02:
I'm only trying to explain what I think the law is.

[00:13:53] Speaker 03:
I mean, it's the problem.

[00:13:54] Speaker 03:
Once the land is damaged by the salt, it's damaged.

[00:14:00] Speaker 03:
The continued irrigation is not going to change the damage.

[00:14:04] Speaker 03:
It's unusable.

[00:14:05] Speaker 03:
And that's the basis for your taking.

[00:14:07] Speaker 03:
It may be different than regular intermittent flooding based upon rainfall and stuff like that.

[00:14:15] Speaker 03:
If the land is polluted with salt, you can't use it.

[00:14:20] Speaker 03:
And that's at the very minimum when that land becomes unusable.

[00:14:24] Speaker 03:
starts the statute of limitations well first your honor i don't agree with that as a factual matter but i don't agree with anything can you just answer the questions i understand you don't agree with the way we're proposing the questions you are wasting all of your time by that the land isn't permanently damaged by the salinity that's important so this land is not barren and there has been no determination i know you want to ask a question that's where i'll go let you

[00:14:51] Speaker 04:
I know that you're telling me there is no fact-finding here that this land is barren and that it could not be rehabilitated with drainage in order to become, once again, fertile farmland.

[00:15:04] Speaker 02:
That's correct.

[00:15:04] Speaker 04:
Okay, I like that answer.

[00:15:05] Speaker 02:
I was happy to say that.

[00:15:06] Speaker 00:
So are pellets still able to grow crops on the land?

[00:15:11] Speaker 02:
Yes.

[00:15:12] Speaker 00:
And then what about, are you familiar with the Sumner Peck sort of complaint and kind of parallels there?

[00:15:18] Speaker 02:
I'm not a master of it, but I am familiar.

[00:15:20] Speaker 00:
You have some familiarity to at least answer the questions.

[00:15:23] Speaker 00:
Would it be fair to say that the Pellants Land would have been somewhat similar to what happened with the Sumner Peck?

[00:15:33] Speaker 00:
plaintiffs in terms of what happened with their land?

[00:15:36] Speaker 00:
Do you feel like there are distinctions between what happened with their land?

[00:15:38] Speaker 02:
I think we don't know yet because there hasn't been discovery in our case to build that record.

[00:15:43] Speaker 02:
I'm not comfortable as it stands here today saying yes or no to that.

[00:15:48] Speaker 02:
I don't know the answer respectfully.

[00:15:50] Speaker 00:
Was there certain discovery that you sought

[00:15:53] Speaker 00:
that would answer that question.

[00:15:55] Speaker 02:
We haven't sought a narrow jurisdictional discovery if that's what you mean.

[00:15:59] Speaker 02:
We have asked the court to allow the claim to proceed to discovery where these questions are typically answered in takings cases.

[00:16:06] Speaker 02:
This rule 12 disposition is unusual in a takings case.

[00:16:10] Speaker 02:
The Supreme Court has told us repeatedly that these are fact issues and so typically they should be resolved on a factual record that hasn't been built yet here.

[00:16:18] Speaker 00:
I thought that there were statements made by you, and tell me if I'm misunderstanding this, that said there were uncontested facts here that allow this issue to be resolved.

[00:16:27] Speaker 02:
The party submitted a joint stipulation of facts in 2013, 2012.

[00:16:30] Speaker 02:
There was, I think, 26 pages of agreed facts, but we haven't done discovery.

[00:16:35] Speaker 00:
And do you agree that those agreed facts would allow us to resolve this particular statute of limitations issue?

[00:16:41] Speaker 02:
I do.

[00:16:41] Speaker 02:
I think Judge Horn in 2013 got it right on that agreed stipulation of facts, yes.

[00:16:48] Speaker 00:
Let me ask the question again, because I just want you to answer my question.

[00:16:50] Speaker 00:
I know that you're trying to slide in your other stuff here, but... I'm doing my best to respond to your question.

[00:16:55] Speaker 00:
Okay.

[00:16:55] Speaker 00:
Do you agree that the uncontested facts that were submitted allow the answer to be provided with respect to the statute of limitations issue?

[00:17:03] Speaker 00:
Leave out what Judge Horn decided.

[00:17:06] Speaker 00:
Yes.

[00:17:07] Speaker 04:
Well, I need you to elaborate.

[00:17:08] Speaker 04:
I don't know what that means.

[00:17:10] Speaker 04:
What uncontested facts allow us to?

[00:17:12] Speaker 04:
Tell me what you think the uncontested facts are that allow this to be resolved.

[00:17:17] Speaker 02:
the facts regarding the decades-long back and forth about mitigation promises.

[00:17:23] Speaker 04:
Okay, so you're just focused on mitigation promises.

[00:17:26] Speaker 04:
The government came in and said, we're going to fix it, we're going to fix it, we're going to fix it, we're going to fix it, we're going to fix it, and then they never fixed it.

[00:17:31] Speaker 02:
In that sense, this case is Applegate.

[00:17:33] Speaker 02:
That's what this court held in Applegate, that repeated decades-long promises of mitigation meant the claim didn't stay high.

[00:17:39] Speaker 03:
Let me try one more time.

[00:17:40] Speaker 03:
Let's say

[00:17:42] Speaker 03:
We have all this water, it's causing damage.

[00:17:46] Speaker 03:
The government's supposed to fix it.

[00:17:48] Speaker 03:
They come in and they say, we're not going to fix it.

[00:17:50] Speaker 03:
Does your claim stabilize at that point?

[00:17:53] Speaker 03:
It could in that, yes.

[00:17:55] Speaker 03:
Depending on how they set it, it could, yes.

[00:17:58] Speaker 03:
OK.

[00:17:58] Speaker 03:
So let's say the claim stabilizes.

[00:18:01] Speaker 03:
Your congressmen and congressmen and women and senators get really, really upset with that statement and tell the government, go back and try again.

[00:18:09] Speaker 03:
And 10 years later, the government says, well, we're going to take a look at it one more time.

[00:18:15] Speaker 03:
Does that restart the statute of limitations?

[00:18:19] Speaker 02:
No, no.

[00:18:20] Speaker 02:
Like any statute of limitations, once it runs, it runs.

[00:18:23] Speaker 02:
And that's what I was trying to explain, Chief Judge, to you earlier, and I wasn't trying to argue with the court.

[00:18:28] Speaker 02:
But I do think that under Dickinson, once a stabilization occurs, a claim accrues.

[00:18:32] Speaker 04:
I don't even know how you can argue this, since it's completely contrary to what you argued in your brief about Hanson and whether or not stabilization creates a mandatory must

[00:18:43] Speaker 04:
go to court or whether it permits the claimant to go to court.

[00:18:47] Speaker 04:
You argued the exact opposite in your brief of what you're saying now.

[00:18:50] Speaker 04:
And by the way, I agreed with it when you were talking about Hanson.

[00:18:54] Speaker 04:
So I don't know why you're standing there saying the opposite.

[00:18:56] Speaker 02:
It's maybe I haven't understood the court.

[00:18:57] Speaker 02:
I have not changed any of my positions from my brief.

[00:19:00] Speaker 02:
If what your honor means is

[00:19:02] Speaker 02:
If a claim doesn't stabilize yet, then we may still file.

[00:19:06] Speaker 02:
It is still timely.

[00:19:07] Speaker 02:
That's what Hanson says.

[00:19:08] Speaker 02:
It means there's no ripeness problem.

[00:19:10] Speaker 04:
Okay, let me just go back.

[00:19:10] Speaker 04:
I have one last factual question and then we gotta have you sit down, so we gotta let a government speak.

[00:19:15] Speaker 04:
But my last factual question is, are there still, I mean, do you still want the government to come in and do drainage?

[00:19:20] Speaker 04:
Like if they came in tomorrow and did drainage, would that improve the quality of your client's land?

[00:19:25] Speaker 02:
Yes.

[00:19:26] Speaker 04:
Okay, thank you.

[00:19:27] Speaker 02:
Thank you.

[00:19:35] Speaker 01:
Thank you, Your Honor, and thank you to the law school for hosting these arguments.

[00:19:38] Speaker 01:
May it please the Court, Andrew Burney on behalf of the United States.

[00:19:42] Speaker 01:
This case is time barred.

[00:19:44] Speaker 01:
Plaintiffs filed their original complaint on September 2, 2011.

[00:19:48] Speaker 01:
That is, just to get the timeline straight, 44 years after Project Water was first delivered with no drainage.

[00:19:54] Speaker 01:
It is 35 years after drainage construction was suspended.

[00:19:58] Speaker 00:
What do you contend is the uncurl date?

[00:20:01] Speaker 01:
I think there are a number of possible.

[00:20:02] Speaker 01:
I think that's the most straightforward possible accrual date, Your Honor.

[00:20:05] Speaker 01:
And this is to your question about the Sumner PAC litigation would be January 30th, 1991, the date of the complaint in that case.

[00:20:12] Speaker 01:
I would actually encourage the court to look

[00:20:14] Speaker 01:
at the complaint in that case.

[00:20:15] Speaker 01:
I think it starts at page 11109 of the joint appendix.

[00:20:19] Speaker 01:
So in that case, complaint filed more than 20 years before the complaint in this case is filed.

[00:20:24] Speaker 01:
You have members of plaintiff's proposed class, this is at 1113, saying it's just lack of drainage, it's destroying lands, killing crops.

[00:20:32] Speaker 01:
They say at 1146, it's made their lands unmarketable, unfarmable, causing $1,000 per acre of damage.

[00:20:39] Speaker 01:
They say at 1151 that Interior has effectively stated that they will not implement the San Luis Rain or construct an alternative.

[00:20:47] Speaker 01:
Again, this is all more than 20 years, closer to 21 years.

[00:20:51] Speaker 01:
before the complaint in this case was even filed.

[00:20:54] Speaker 01:
And Judge Hughes, to your question about the government's response to the litigation, it is actually, I think, in the 1990s in response to this litigation and in the Fireball litigation, where we adamantly said that we had no duty to provide drainage or that any drainage obligation had been excused.

[00:21:12] Speaker 04:
Roughly what date do you think that was?

[00:21:14] Speaker 04:
Ballpark, I mean.

[00:21:15] Speaker 01:
So the Sumner Pack opinion, I think, was in 1992.

[00:21:17] Speaker 01:
I think our district court briefing from the early 1990s, I don't think is in the record, but it would have been between... Okay, so what do we do with this?

[00:21:27] Speaker 01:
Just hear me out here.

[00:21:28] Speaker 04:
So you're saying basically we have no obligation to do this, we're not doing it.

[00:21:32] Speaker 04:
Okay, in the 90s.

[00:21:33] Speaker 04:
And that absolutely would have started the clock ticking.

[00:21:36] Speaker 04:
What happens when the Ninth Circuit comes back and says, oh yes, you do have that obligation?

[00:21:42] Speaker 04:
At that point, doesn't it

[00:21:44] Speaker 04:
kind of reset the clock.

[00:21:46] Speaker 04:
Now maybe they can't get damages going back to that earlier period because what you're saying is exactly right, that they had all this time, they were on notice, other people brought their claims, but they didn't.

[00:21:58] Speaker 04:
But what about when the Ninth Circuit reset your obligation and said, oh yes, you do have an obligation, and the government responded, okay, we'll comply with our obligation, and faithfully tried to do so.

[00:22:11] Speaker 04:
From that point forward,

[00:22:14] Speaker 04:
Don't they possibly have a reset of their clock, not for those damages from the earlier time period, but for any damages that occurred thereafter?

[00:22:22] Speaker 01:
Chief Judge Moore, I heard your question to my opposing counsel.

[00:22:25] Speaker 01:
I understand the question.

[00:22:26] Speaker 01:
I'm going to say no, but I'll say three things about that, I guess.

[00:22:30] Speaker 01:
First of all, the most.

[00:22:31] Speaker 04:
That was a very tentative no.

[00:22:32] Speaker 04:
I like it.

[00:22:32] Speaker 01:
Go ahead, keep going.

[00:22:33] Speaker 01:
So first of all, the most narrow answer to your question was the Ninth Circuit's decision was in 2000.

[00:22:40] Speaker 01:
As of 2003, a CFC judge said another takings claim was possibly already time barred.

[00:22:46] Speaker 01:
That was January 31, 2003.

[00:22:47] Speaker 04:
To be clear, that's a CFC judge.

[00:22:49] Speaker 04:
I don't give a darn about that.

[00:22:51] Speaker 01:
OK.

[00:22:51] Speaker 04:
That has no impact on me whatsoever.

[00:22:53] Speaker 01:
That's fair enough, Your Honor.

[00:22:54] Speaker 04:
By the way, if I was going to defer to that, I got two CFC judges saying the opposite.

[00:22:57] Speaker 04:
In this case, which one do I defer to?

[00:22:59] Speaker 01:
Point taken, Your Honor.

[00:23:00] Speaker 01:
Yeah, all right, go ahead.

[00:23:00] Speaker 01:
But the narrow answer to questions, the Ninth Circuit decision was 2000.

[00:23:03] Speaker 01:
This was still 11 years after that.

[00:23:05] Speaker 01:
The other point.

[00:23:06] Speaker 04:
OK, wait.

[00:23:06] Speaker 04:
So according to that answer, then your answer to me is actually

[00:23:10] Speaker 04:
Yes, Chief Judge Moore, it could reset our clock, but they still weren't timely.

[00:23:16] Speaker 04:
So your answer is no, it can't reset our clock.

[00:23:19] Speaker 04:
But that's not the right answer, because the answer you just gave is even if it did reset our clock, they still weren't timely.

[00:23:25] Speaker 04:
Is that a fair characterization?

[00:23:27] Speaker 01:
Well, my second answer is no.

[00:23:28] Speaker 04:
But is that a fair characterization of your argument, yes or no?

[00:23:31] Speaker 01:
No.

[00:23:32] Speaker 04:
Okay, then explain to me what I got wrong on that.

[00:23:33] Speaker 01:
Because what I was going to say was, but we also don't think it reset their clock because.

[00:23:38] Speaker 04:
No, no, no.

[00:23:39] Speaker 04:
You said you have three separate arguments.

[00:23:40] Speaker 04:
I want to address each one in turn.

[00:23:42] Speaker 04:
I want to understand if your first argument does or does not logically result in a reset of their clock.

[00:23:50] Speaker 01:
No, because my first argument, which should have been my second argument, given your confusion, was that even if it did reset it, it was too late.

[00:23:58] Speaker 04:
Even if they did reset it.

[00:23:59] Speaker 04:
So your argument was not a rebuttal to the argument that it reset the clock.

[00:24:03] Speaker 04:
It was an even if it did reset it, they still lose argument.

[00:24:06] Speaker 01:
I should have given the first.

[00:24:08] Speaker ?:
Fair?

[00:24:08] Speaker 01:
I should have, yes, fair.

[00:24:09] Speaker 01:
I should have given my first answer, which is why we don't think it reset the clock, which I will try to get out.

[00:24:15] Speaker 04:
No, you've got two more swings of the bat.

[00:24:16] Speaker 01:
Yeah, yeah, okay.

[00:24:18] Speaker 01:
But we don't think it reset the clock because we don't think, at the end of the day, there are limited situations where litigation can serve to, brought by other parties, can serve to defer a claim.

[00:24:29] Speaker 01:
There's, you know, the American pipe doctor for a class action.

[00:24:31] Speaker 01:
But the point is, we don't think plaintiffs can rely on this other litigation.

[00:24:36] Speaker 01:
Sure, as a practical matter,

[00:24:37] Speaker 01:
if that resulted in programmatic improvements that adhere to their benefits.

[00:24:41] Speaker 04:
Here's the problem.

[00:24:42] Speaker 04:
Here's the problem.

[00:24:42] Speaker 04:
You're saying they can't rely on this.

[00:24:46] Speaker 04:
But what if the day after the Ninth Circuit says, government has got to fix this?

[00:24:52] Speaker 04:
They're like, beautiful, sold our land.

[00:24:54] Speaker 04:
New owners come in.

[00:24:55] Speaker 04:
They've bought this land subject to the belief that the government has to fix it.

[00:25:00] Speaker 04:
You're not going to be able to argue those people are time barred.

[00:25:03] Speaker 04:
So I don't think you're right on this as a logical legal point.

[00:25:06] Speaker 01:
Well, so if there were subsequent owners, and I'm not saying that we would agree with the circuit.

[00:25:11] Speaker 04:
Yeah, but they buy it in privity.

[00:25:12] Speaker 04:
So they get the same situation they had.

[00:25:15] Speaker 04:
You know this.

[00:25:16] Speaker 04:
So if they were not time-barred, if they're time-barred, the new people are time-barred.

[00:25:20] Speaker 04:
If they're not time-barred, the new people aren't time-barred.

[00:25:22] Speaker 04:
Can't be that they're time-barred, but the new people are not time-barred.

[00:25:25] Speaker 04:
You follow what I'm saying here.

[00:25:26] Speaker 04:
I know you do.

[00:25:26] Speaker 04:
This doesn't work.

[00:25:27] Speaker 01:
Yeah, and so our first, our bottom line answer.

[00:25:31] Speaker 04:
Okay, so now we're on swing number three.

[00:25:32] Speaker 03:
Can I ask you on the first point that a court decision about a violation of statutory obligations, I assume you say, does not create a new takings cause of action.

[00:25:42] Speaker 03:
That may be a statutory violation, and if there's a cause of action under the statute, they could sue on that.

[00:25:50] Speaker 03:
But if the claim had stabilized, indisputably had stabilized well before the Ninth Circuit's decision,

[00:25:57] Speaker 03:
The fact that the Ninth Circuit told you you weren't complying with statutory law, in your view, does nothing to revive a takings claim.

[00:26:05] Speaker 03:
It may at best provide a basis for a statutory claim.

[00:26:09] Speaker 01:
Judge Hughes, I really wish I had given that response to Chief Judge Moore's question.

[00:26:14] Speaker 01:
Yes, I think that's right.

[00:26:16] Speaker 01:
And I understand you said you weren't interested in alternative arguments, but that does sort of feed into an argument that this plan really does sound in violation of a statutory obligation.

[00:26:23] Speaker 03:
Well, if you lose on the statute of limitations, I suspect the court of federal claims is going to hear that argument.

[00:26:30] Speaker 03:
I don't want to hear it today.

[00:26:32] Speaker 01:
OK, fair enough.

[00:26:33] Speaker 01:
Assuming your colleagues also don't want to hear it, that's a fair point.

[00:26:37] Speaker 04:
What was your number three?

[00:26:38] Speaker 04:
Because you had three points you wanted to make.

[00:26:41] Speaker 04:
Or did you lose it?

[00:26:42] Speaker 01:
If you lost it, that's OK.

[00:26:46] Speaker 00:
Do you contend that the stabilization doctrine applies here?

[00:26:50] Speaker 01:
No, we don't think it does for the reason, I mean for two reasons.

[00:26:54] Speaker 01:
The first one is identified by Judge Hughes.

[00:26:56] Speaker 01:
We think is that when you're talking about a flooding case, you're talking about or a flooding case or the other cases where it's been applied.

[00:27:02] Speaker 01:
you're talking about something that's intermittent or irregular.

[00:27:05] Speaker 01:
So it's unclear to a landowner that damage is being caused, that it's attributable to the government.

[00:27:12] Speaker 01:
But here it's nothing like, as Judge Summers observed in his opinion, these are regularly scheduled releases.

[00:27:20] Speaker 01:
It was very clear to the Sumner PECC plaintiffs in 1991 that it was causing damage to their lands.

[00:27:26] Speaker 01:
There's nothing uncertain about this.

[00:27:28] Speaker 01:
The second reason we don't think that the stabilization doctrine applies here is because where it has been applied, it's not just been applied on the basis of governmental promises, and here we don't think you have it.

[00:27:42] Speaker 01:
It's been governmental promises combined with very slow non-substantial encroachment of the land

[00:27:49] Speaker 01:
such that the taking wasn't permanent.

[00:27:52] Speaker 01:
I mean, that's what you had in Applegate, where you had a very slow and perceptible process, which combined with the government's promises to build a sand plant, held forth the possibility that the very minimal erosion could be reversed.

[00:28:03] Speaker 01:
Or in banks, when you had numerous efforts to deposit sand, deposit fine coarse materials, looked like it was working, then when it realized it wasn't working, plaintiffs brought suit.

[00:28:13] Speaker 00:
Here you just have- What was the overlap between what happened with the Sumner PEC plaintiffs

[00:28:18] Speaker 00:
and the appellants here.

[00:28:20] Speaker 01:
So, Your Honor, our central submission is if the Sumner Peck plaintiffs were saying 21 years before that that their lands were rendered barren, causing massive damages, it was on them, if they're members of the same putative class, to explain

[00:28:35] Speaker 01:
Why not just their lands were different, but all this lack of drainage for a period of decades didn't cause substantial encroachment on the discovery point?

[00:28:43] Speaker 04:
I mean, that's the problem.

[00:28:43] Speaker 04:
The problem is you say it's on them.

[00:28:45] Speaker 04:
They didn't have a, they did allege this in their complaint and they didn't have a chance to get to discovery.

[00:28:49] Speaker 04:
You may be right.

[00:28:50] Speaker 04:
If their lands are barren and their lands are long ago barren, like before, they filed this in 2011.

[00:28:55] Speaker 04:
So that gives them back to 2005, right?

[00:28:58] Speaker 04:
So if up until 2005,

[00:29:01] Speaker 04:
damage was still occurring thereafter.

[00:29:04] Speaker 04:
This guy stood here today and said, our lands aren't barren.

[00:29:06] Speaker 04:
We're still growing crops.

[00:29:07] Speaker 04:
He stood there at that podium and said that.

[00:29:10] Speaker 04:
Did you hear that?

[00:29:11] Speaker 01:
Yes, I did.

[00:29:11] Speaker 01:
And I have a response to that on the law and the facts.

[00:29:14] Speaker 01:
I mean, so on the law, I don't think it has to be barren for there to be a taking.

[00:29:18] Speaker 01:
The line this court drew in bowling was the line between substantial encroachment

[00:29:23] Speaker 01:
in mere inches, that's on the law.

[00:29:25] Speaker 01:
And in the facts, I don't think there's anything in their complaint.

[00:29:28] Speaker 01:
It's their burden to establish timeliness, explaining how this decades and decades of failure to provide drainage hadn't even led to substantial approach from their lands.

[00:29:37] Speaker 01:
I think that the crux of their complaint is otherwise.

[00:29:40] Speaker 04:
But there's certainly nothing in the complaint that... This is going back to the point that I... The concern I had and, you know, kind of lucky for the plaintiffs in this case, I'm more concerned about the law than their arguments.

[00:29:51] Speaker 04:
And, you know, so what...

[00:29:53] Speaker 04:
Why can't it be that iterative encroachment, even if regular, is an encroachment each time?

[00:30:03] Speaker 04:
And if there's new damage caused by each new encroachment, that damage is compensable and the damage, the time for filing a claim

[00:30:15] Speaker 04:
is key to each new encroachment.

[00:30:17] Speaker 04:
Why isn't every time something occurs here that causes damage a separate compensable taking?

[00:30:25] Speaker 01:
Because in flooding cases, the court has drawn a line like in the Idicker case, for example.

[00:30:33] Speaker 01:
I'm familiar with that one.

[00:30:35] Speaker 01:
I'm aware of that.

[00:30:36] Speaker 01:
But a single flood doesn't necessarily ripen a takings claim.

[00:30:41] Speaker 01:
But once you have the government action, you have substantial and frequent enough flooding, and it's clear that the government action is causing that and will causing that in the future, you have to bring the claim within six years after it accrues.

[00:30:54] Speaker 01:
Each additional flood doesn't- I don't think I agree with that.

[00:30:57] Speaker 04:
I don't think there's any law that says that.

[00:30:59] Speaker 04:
Tell me where there's a case that says that.

[00:31:01] Speaker 04:
And here's what I'm thinking.

[00:31:02] Speaker 04:
Loretto, go back to your old-fashioned, I came on your land and I put a cable box.

[00:31:06] Speaker 04:
Right.

[00:31:06] Speaker 04:
Right?

[00:31:07] Speaker 04:
Okay?

[00:31:07] Speaker 04:
Suppose I only did it for a week each year.

[00:31:11] Speaker 04:
I went on your land, I put a cable box every year at the same time.

[00:31:15] Speaker 04:
I did it December 1st through December 7th because that was for whatever reason I did.

[00:31:21] Speaker 04:
So I went on your land and every single year, like clockwork, I put a cable box on your land each year.

[00:31:27] Speaker 04:
I think that every one of those is an individually compensable taking.

[00:31:32] Speaker 04:
And I think the fact that you've done it for 10 years or 20 years doesn't somehow turn it into adverse possession that you don't get compensated for it.

[00:31:39] Speaker 04:
Now, I think you don't get compensated going back to pass the statute of limitations for the takings if you didn't bring them.

[00:31:46] Speaker 04:
But I think each new one, if it causes damage to you, if it's taking your property, is separately compensable.

[00:31:52] Speaker 04:
And whether true or not, they've alleged

[00:31:55] Speaker 04:
that your continued failure to drain and the continued flooding last year caused them more damage last year.

[00:32:02] Speaker 04:
So what do we do with that?

[00:32:05] Speaker 01:
That's a hard question.

[00:32:07] Speaker 01:
And the reason, and respectfully, I understand, the reason it's a hard question, I think, in my view, is because the allegations in this case, and I understand the court doesn't want to hear a separate argument on this, but the reason why I think it's a hard question to answer is you are talking about a multi-decade failure to take action.

[00:32:25] Speaker 04:
That's why it's difficult.

[00:32:26] Speaker 04:
I know.

[00:32:26] Speaker 04:
I know.

[00:32:27] Speaker 04:
And trust me when I say that I'm kind of with you on that point, but I also don't think I should address it.

[00:32:31] Speaker 04:
And I think the claims court should address it in the first instance if this goes back.

[00:32:35] Speaker 04:
But that being said, you know, I do think there is something to this iterative thing and I don't think I want to mess the law up because I think that this kind of iterative taking could give rise to new damages and whether true or not, there's no discovery.

[00:32:52] Speaker 04:
He's saying, land's not barren every time they're doing it.

[00:32:55] Speaker 04:
And so I'm kind of, this case has been analogized to flooding, right?

[00:32:58] Speaker 04:
If this weren't inaction, but rather actual releases of the dam.

[00:33:02] Speaker 04:
I know that's not what this case is about.

[00:33:04] Speaker 04:
And I think he probably went on that second point when it goes back, but it would be really great to have somebody else flush it out first.

[00:33:12] Speaker 03:
Okay.

[00:33:13] Speaker 03:
I mean, isn't there a distinction between

[00:33:17] Speaker 03:
a bunch of discrete separate acts, and the act here, which is failure to provide drainage.

[00:33:25] Speaker 03:
And sure, there's repeated attempts to provide it, but the actual taking is rendering the property unusable because of the failure to provide drainage.

[00:33:37] Speaker 03:
The fact that the damages may increase doesn't change the statute of limitations, it may change the scope of the damages.

[00:33:47] Speaker 01:
I think I would agree with that.

[00:33:54] Speaker 01:
Failure to provide drainage is not an act in our view.

[00:33:58] Speaker 03:
Can you actually answer my colleague's question about that specific going on the land once a year?

[00:34:05] Speaker 03:
How would the government look at that?

[00:34:07] Speaker 03:
Because those do seem to be separate, discrete takings.

[00:34:12] Speaker 01:
Is that temporary taking?

[00:34:16] Speaker 01:
I haven't had a physical, last time I thought in detail about physical takings was probably when I was in law school, but I think that

[00:34:22] Speaker 01:
The law is clear that in the case of a physical taking that it's ipso facto any any any physical intrusion is a taking.

[00:34:30] Speaker 01:
So that probably would be separate.

[00:34:32] Speaker 01:
I think I think the situation here is markedly different.

[00:34:36] Speaker 01:
I see him out of I see him out of time.

[00:34:39] Speaker 01:
Is there any other questions?

[00:34:40] Speaker 01:
Thank you.

[00:34:41] Speaker 04:
Thank you, Your Honor.

[00:34:43] Speaker 04:
Very helpful.

[00:34:46] Speaker 02:
Will the court hear a brief rebuttal?

[00:34:48] Speaker 04:
Yeah, we'll give you two minutes.

[00:34:49] Speaker 04:
Did he go over his time, Robert?

[00:34:51] Speaker 04:
Yeah, two minutes.

[00:34:53] Speaker 02:
That's all.

[00:34:53] Speaker 02:
Thank you.

[00:34:55] Speaker 02:
Two very quick points.

[00:34:56] Speaker 02:
Your honor, there was back and forth just now about frankly the hydrogeology of this case, what the flooding is doing underground, how permanent the damages are.

[00:35:06] Speaker 02:
Those are questions that need to be explored in discovery.

[00:35:08] Speaker 03:
But you just told us when you were back up here the first time that the stipulated facts were sufficient to decide.

[00:35:14] Speaker 03:
You don't get it both ways.

[00:35:16] Speaker 03:
You don't get to say the stipulated facts are sufficient for us to win.

[00:35:20] Speaker 03:
But if the other side could win, then we want more discovery.

[00:35:24] Speaker 03:
What is it?

[00:35:25] Speaker 02:
Because we think that the facts regarding mitigation promises are well in the record.

[00:35:30] Speaker 02:
And we think that's sufficient for an Applegate-style stabilization.

[00:35:36] Speaker 02:
as did Judge Horn in 2013.

[00:35:38] Speaker 02:
But to the extent that the court is interested in the hybrid geology as there was discussion just now, we can't guess at that.

[00:35:45] Speaker 02:
Those facts are not in the record.

[00:35:49] Speaker 02:
Secondly, Mike.

[00:35:50] Speaker 04:
So you're saying there are not facts in the record for us to make a decision of whether this case runs the same as the Sumner Peck.

[00:35:59] Speaker 02:
I'm not prepared to answer that about Sumner Peck, but I will try to answer it in a slight.

[00:36:03] Speaker 04:
Sumner Peck said Lance Barron in 1990s, you know, here are all our problems.

[00:36:08] Speaker 04:
You're saying those there are not facts in this record that analogize us to that.

[00:36:13] Speaker 03:
Correct.

[00:36:14] Speaker 03:
That record is not.

[00:36:15] Speaker 03:
So the two classes are completely distinct and not overlapping.

[00:36:19] Speaker 03:
I am not prepared to answer that at this time.

[00:36:22] Speaker 02:
I'm not familiar enough with the classes in Sumner-Peck, so I don't want to speak wrongly to that.

[00:36:28] Speaker 02:
To the extent that the question though is does the stabilization doctrine even apply because are these floods intermittent or recurring or steady and the court was interested.

[00:36:37] Speaker 02:
Those are factual questions for discovery that are not yet in the record.

[00:36:41] Speaker 02:
I'll leave it there.

[00:36:43] Speaker 04:
All right, I think both counsel this case has taken another submission.