[00:00:00] Speaker 00:
The final argument for today is Murray versus United States, document number 23-2287.

[00:00:07] Speaker 00:
Mr. Gollum, you have five minutes reserve for rebuttal.

[00:00:13] Speaker 00:
Yes, thank you.

[00:00:15] Speaker 00:
Let's wait just a little bit until you can sit.

[00:00:27] Speaker 03:
May it please the court

[00:00:29] Speaker 03:
The court below aired on two different fundamental levels because the undisputed facts in this matter, and all inferences to be drawn from those facts, particularly when viewed in favor of Mr. Mummery as the law requires, do not support a determination that as of 2010 or 2013,

[00:00:52] Speaker 03:
the impacts of the snowmobile activity constitute a material interference with the ski area operations.

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Nor, secondly, do those facts show that Mr. Murray did or was even entitled to cease operations of the ski area operations as of that point in time, as late as 2013, and then bring his specific claim for damages, which is the claim he brought here, based on the cessation of damages.

[00:01:21] Speaker 03:
The Mr. Murray's complaint and the record clearly demonstrate that the one and only claim that Mr. Murray filed was a claim for a total breach, which entitled Mr. Murray to seek damages based on a total breach, which included the value of his improvements and all profits going forward for not being able to operate.

[00:01:39] Speaker 02:
Let me talk about the standard that the trial court was supposed to apply.

[00:01:44] Speaker 02:
And I think that it was applying.

[00:01:46] Speaker 02:
You've already alluded to it.

[00:01:48] Speaker 02:
But I'm confused about when, on a motion to dismiss that goes to subject matter of the Court of Federal Plains, when the court has to take as true things that you allege

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versus when it can resolve a dispute that goes to its jurisdiction.

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And I'm confused on what happened here.

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Can you help me on that?

[00:02:11] Speaker 03:
Yes, my understanding that based on the court's findings, there was no dispute as to the actual facts as far as what was said.

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It was a question of did those facts meet the standard of material interference.

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because I think the court stated in its opinion, is going to accept, because first of all, to make the fundamental point, the government stated we are not disputing anything.

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We're agreeing with the complaint and the allegations.

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For purposes of emotion.

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For purposes of emotion.

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And the court took them at that word, to go forward.

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Based on that, there was no dispute.

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I mean, the court accepted all of the statements that were made in the complaint, and the court reused the deposition testimony, which is what it was.

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So there was no dispute as to what the evidence was.

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So it boiled down to, does that evidence, in fact, demonstrate that there was material interference as of 2010?

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So do you read the Court of Federal Claims as having made any fact findings in its opinion?

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I, we do not dispute the, we believe they did make fact pundits because they cited to the record in the testimony because obviously the quotes that Mr. Murray had in his episode, that was a fact, that's what he stated.

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So we don't believe that they made any

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We believe that they made fact findings, but they were findings that were of undisputed facts.

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In essence, they were confirming what the undisputed facts were.

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Am I getting your question right?

[00:03:33] Speaker 02:
Well, I think, but I'm finding it confusing.

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I'm not blaming you.

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between it seems to me that given the government's concession and the fact that it's a motion to dismiss, we can all agree on what happened from 2010 to 2013 in terms of how much snowmobiling activity there was and what the back and forth communications were.

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But as to whether

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At what point things got so bad that even Mr. Murray thought that it was materially interfering with his rights, it's unclear to me whether the Court of Federal Claims was within its rights to say, I'm going to carefully and critically review what Mr. Murray has testified to.

[00:04:24] Speaker 02:
and make my own assessment as to when it became material interference, or whether it was supposed to just take all that in the light most favorable to Mr. Murray for purposes of determining whether or not it had jurisdiction.

[00:04:37] Speaker 02:
I don't know if I'm being clear about that.

[00:04:38] Speaker 03:
Yeah.

[00:04:38] Speaker 03:
Well, if I understand you correctly, I agree with the louder statement you made that I think the court was required to accept everything Mr. Murray stated as a true fact.

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And then the question became when you took those facts, which are undisputed,

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and you held them up to the standard of the contract, did they meet that standard of Maturity Honor Affairs?

[00:04:55] Speaker 01:
Can I ask a follow-up question?

[00:04:58] Speaker 01:
Sure, Your Honor.

[00:05:00] Speaker 01:
Do you consider the rules that come with the ordinance?

[00:05:04] Speaker 03:
I guess I'm confused by your question, Your Honor, only because obviously the court does set forth facts in its opinion, but to the best of my recollection, I don't think we challenged any of those because those were taken from the record.

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For example, there's quotes from Mr. Murray.

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There are quotes from documents in the record.

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I don't recall there being any material facts that the court relied upon that were not

[00:05:29] Speaker 03:
clearly set forward in the record.

[00:05:31] Speaker 00:
Therefore, I guess I don't want to... So the court took these facts under consideration and then made a decision as to whether they mounted to a material interference, correct?

[00:05:47] Speaker 00:
Correct.

[00:05:47] Speaker 00:
That's the finding that it made, whether or not

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there was material interference in this case because that's what the allegation in the complaint for breach of contract was based on.

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So the question, was there material interference, is that a question of fact or a question of law?

[00:06:09] Speaker 03:
Believe your honor those there's case law that demonstrates that when you have Undisputed facts and you're taking those facts and seeing whether they're they meet a standard of law that boils down to a matter of law and let me try to The ball start to work a matter of law I believe as far as it's a de novo review by this court, but it's a question of law And I'm trying to find that you know I do have it here somewhere, and it isn't I breathe Here is it's the

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is the Gilbert v. Department of Justice case 334, Feb.

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3, 1065.

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In that case, it basically states that where facts are undisputed, the determination of whether a breach occurred is reduced to a question of law.

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Does that help?

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But here, the facts are undisputed only for purposes of the motion.

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You're not here asking us to enter judgment for you that there was material interference.

[00:07:01] Speaker 03:
Absolutely correct, Your Honor.

[00:07:02] Speaker 03:
Yes.

[00:07:02] Speaker 03:
No, we believe this case should go to trial on that issue.

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Yes, because there are more facts.

[00:07:07] Speaker 03:
No doubt.

[00:07:07] Speaker 02:
There was summary judgment argued at the same time, I think, as the motion to dismiss.

[00:07:13] Speaker 02:
If we were to remand, shouldn't the trial court have a chance to reach the summary judgment motion?

[00:07:17] Speaker 03:
They do not, actually.

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They only ruled on the motion.

[00:07:20] Speaker 02:
Right.

[00:07:21] Speaker 02:
I'm saying if you went on the appeal, isn't the summary judgment motion still right?

[00:07:25] Speaker 03:
I believe so, because if I recall, the summary judgment motion was their claim that Mr. Murray somehow had authorized this noble activity.

[00:07:32] Speaker 03:
So yes, that would then, you'd be able to go back and the court would have to deal with that, I would think, yes.

[00:07:37] Speaker 03:
Yes, Your Honor.

[00:07:41] Speaker 03:
So going back then to the issue of

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What this case seems to boil down to is, as I mentioned, two fundamental levels.

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And the first one is whether or not there was, first of all, whether or not the court used the proper definition of material interference, and the facts show that that existed as of 2013 at the latest.

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And the second issue, which is that regardless of that,

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whether or not Mr. Murray had ceased operations and was entitled to bring this claim for the full damage he did back in 2010 or even 2013 long before he ever actually ceased operations.

[00:08:18] Speaker 03:
So I have to take those one at a time because I think the second one, if you were to agree, pretty much resolves the case that his claim did not arise then, but I want to make sure I address all the different possibilities.

[00:08:29] Speaker 03:
So focusing on the first issue,

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of whether or not the court used the proper definition of material interference and the facts met that definition.

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As we pointed out in our brief, the court relied upon a dictionary definition of material from the Oxford dictionary, which was of serious or substantial import

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significant important of consequence.

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As we point out in our brief, that actually is a pretty broad standard when you're trying to establish a breach.

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And we believe that when you use the word material interference, specifically the term material in a contract clause as to what constitutes a breach,

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It needs to be more than that.

[00:09:05] Speaker 03:
And actually, what we're proposing is not necessarily inconsistent with the Oxford Dictionary because the Oxford Dictionary refers to it being of consequence.

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And that, I think, is really the point where you bring in the fact that it must be vital to the contract.

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It can't be some minor

[00:09:21] Speaker 03:
It can't be some smaller amount, because I think the fact that the judge used a very low threshold, which is inviting, to be frank with you, a lot of lawsuits, is demonstrated by when he explained the fact that, under that standard, quote, interference is serious and substantial enough to prompt action on the part of the business to mitigate the situation.

[00:09:42] Speaker 03:
As you pointed out, I think we all would agree, businesses take actions to deal with things that aren't always material.

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I mean, they're going to try to head off problems.

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They're always going to be taking actions.

[00:09:52] Speaker 00:
So under the definition that you are reading, then why wouldn't this be a material interference prior to 2016?

[00:10:00] Speaker 03:
It would not, Your Honor, because it's a material interference with the operations.

[00:10:05] Speaker 03:
The operations we have to keep in mind are the whole ski area.

[00:10:08] Speaker 03:
You've got a ski hill.

[00:10:09] Speaker 03:
You've got a lift.

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You've got a parking lot.

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You've got a restaurant.

[00:10:12] Speaker 03:
If you look at the facts that are in the record as to what was going on in 2013, Mr. Murray very clearly testified that this whole thing didn't even start until 2010.

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And it started very slowly with one or two people doing it.

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He continued operating.

[00:10:28] Speaker 00:
It was not having a material impact on the operation.

[00:10:33] Speaker 00:
It doesn't seem to me to apply as to whether or not they should continue operations.

[00:10:39] Speaker 00:
When did they realize that things were, let's say, that things were bad?

[00:10:43] Speaker 00:
Understood.

[00:10:44] Speaker 03:
But I think material has been more than just one discrete impact on the operations.

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And that's what was going on here in 2010.

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You had an issue in the parking lot.

[00:10:53] Speaker 01:
What specific allegations of complaint do you think show a difference in the material conditions between 2010 and 2014?

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we believe your honor that.

[00:11:17] Speaker 01:
What specific allegations in the complaint do you think show a difference in the cure of conditions between either 2010 or 2013 and 2016?

[00:11:26] Speaker 03:
Yeah, but the difference is that in 2010 and 2013, it was small, it was a few people doing it, and it was gradually growing.

[00:11:34] Speaker 01:
What happened in 2016?

[00:11:38] Speaker 03:
I can point you to Mr. Murray's testimony.

[00:11:41] Speaker 03:
Sorry, the complaint.

[00:11:42] Speaker 03:
Let me pull that up, Your Honor.

[00:11:43] Speaker 03:
But it's basically the description of what happened in 2016 that led to Mr. Murray having to cease operations because I think it's important to keep in mind that this permit was signed by Mr. and Mrs. Murray, Mrs. Murray's passed away, in their personal capacity.

[00:11:58] Speaker 03:
So therefore, they're personally liable if something goes wrong, if there's an injury out there.

[00:12:12] Speaker 03:
okay what I'm looking at then your honor is that the paragraph to talk about what happened in 2016 and those are paragraph 45 what page please also page 26 of the appendix progress 45

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And we went to, I guess, 46, and then we talked about what happened afterwards.

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But that's where we describe, again, this was further developing Mr. Murray's testimony, his deposition testimony, where we talk about the fact that it got to the point where if you look at the chance of injury, the chance of harm,

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combined with the impact of that harm, Mr. Miller realized that it was unmanageable.

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He couldn't continue operating because the risk was too high.

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He had to stop operations.

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It had gotten out of control.

[00:12:56] Speaker 00:
But that's a different standard than material interference.

[00:13:00] Speaker 03:
It is, but I guess...

[00:13:04] Speaker 03:
It is definitely, we believe, material at that point.

[00:13:08] Speaker 03:
So if I understand your honest question, you're saying, but did it get to that point before then?

[00:13:13] Speaker 03:
We do not believe it did.

[00:13:14] Speaker 03:
We don't think the record shows that it got to that point.

[00:13:16] Speaker 01:
I wanted you to also point me to the paragraph that would kind of show we're paid for at that earlier time frame.

[00:13:23] Speaker 01:
OK.

[00:13:23] Speaker 01:
And then we have to make it the pre-opening.

[00:13:25] Speaker 03:
Sure.

[00:13:26] Speaker 03:
Your Honor, if you look at paragraphs in the complaints of in, I'm going to start with 2000,

[00:13:34] Speaker 03:
2004, paragraphs 26 on appendix page 23, through paragraphs, looks like paragraphs... Okay, pause.

[00:13:50] Speaker 03:
I will try to stop shuffling my papers before I respond, Your Honor.

[00:13:54] Speaker 03:
The paragraphs that was talked about what happened beforehand, before 2016, can you hear me?

[00:13:59] Speaker 03:
Your face indicates maybe you're having

[00:14:02] Speaker 01:
You keep talking.

[00:14:04] Speaker 01:
I feel like my colleagues know each other, so as long as you're briefed early on, I'll answer your question about those paragraphs that relate to the 2019-2013 timeframe.

[00:14:13] Speaker 01:
That would be my question.

[00:14:14] Speaker 03:
I promise you, I'm not shuffling papers.

[00:14:15] Speaker 03:
2013?

[00:14:17] Speaker 03:
I'm looking at appendix page 24.

[00:14:21] Speaker 03:
Page 23.

[00:14:23] Speaker 03:
what we talked about um... paragraph twenty seven is really when you start to talk about the issue that looks at arising all the way through paragraph thirty six on appendix page twenty five but i would just remind the court in our defense that the twenty ten twenty thirteen period was selected by the court actually the government already was twenty eleven so we did not focus on that period in our complaint because we did not believe that period was relevant to the

[00:14:47] Speaker 03:
Actual breach which occurred in 2016.

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So that issue as to what was going on in that period was further developed I think as the record shows in Mr. Murmury's deposition as well as documents that were issued in that time period.

[00:15:00] Speaker 02:
That is it looks like the way you allege the case there was a world before 2016 and then there was a world in 2016.

[00:15:07] Speaker 02:
Correct.

[00:15:08] Speaker 03:
Yes, Your Honor.

[00:15:08] Speaker 02:
Can I just ask you though the trial court mentions at page 5 of the appendix that in July 2010

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Mr. Murray told Forest Services that he was going to close the lot entirely to snowmobiles for the 2010-2011 season.

[00:15:27] Speaker 02:
Doesn't that mean there was a serious problem already by 2010-2011?

[00:15:32] Speaker 03:
Yeah, no, we don't believe so.

[00:15:34] Speaker 03:
We believe that when you look at it in full context and take all inferences in favor of Mr. Murray, given his description of what was happening then, he's trying to head things off.

[00:15:41] Speaker 03:
I mean, that's what a prudent businessman does.

[00:15:43] Speaker 03:
You don't wait until the problem gets to the point where now you've got a serious risk.

[00:15:48] Speaker 03:
You move ahead of time.

[00:15:49] Speaker 03:
And if you look at that comment, which is just talking about keeping those folks out, he's not talking about closing operations.

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I would like to keep these folks out because I see a problem here.

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that starting out in 2010, and I think he was very clear, it started out small and grew.

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That's a proven business man taking action that had offer problem.

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I don't think that should be construed, especially as a favorable inference.

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At that point in time, it was material, and we needed to do something about it.

[00:16:15] Speaker 03:
I think he was ahead of the curve when he did that.

[00:16:17] Speaker 00:
Okay.

[00:16:21] Speaker 00:
We'll restore the rebuttal time when you get back.

[00:16:23] Speaker 00:
Thank you.

[00:16:37] Speaker 00:
Councilor Owens?

[00:16:39] Speaker 00:
Did I pronounce that correctly?

[00:16:41] Speaker 00:
Huang.

[00:16:41] Speaker 00:
Huang?

[00:16:42] Speaker 00:
Yeah.

[00:16:42] Speaker 00:
Okay.

[00:16:47] Speaker 00:
You may proceed.

[00:16:52] Speaker 04:
May it please the court.

[00:16:53] Speaker 04:
The government's position is that the trial court correctly determined that Mr. Murray's breach of contract claim arose as early as 2010 and by 2013 at the latest and is therefore untimely under the statute of limitations.

[00:17:08] Speaker 04:
As your honor was discussing earlier, the trial court here properly inquired into jurisdictional facts and under this court's case law, the defense court can do so even if those jurisdictional facts are even disputed.

[00:17:23] Speaker 04:
So it follows that

[00:17:25] Speaker 04:
the trial court here would be able to look into jurisdictional facts that are unknown in order to determine its own jurisdiction.

[00:17:34] Speaker 00:
Are you saying that these are findings of fact just for purposes of the jurisdictional question?

[00:17:39] Speaker 04:
That's correct, Your Honor.

[00:17:40] Speaker 04:
And specifically, I'm referring to Appendix 10, where the trial court determined that Mr. Murray did suffer, in fact, a negative impact on both revenue and business reputation, sufficient to constitute material.

[00:17:53] Speaker 00:
And our standard of review with respect to those findings of fact is what?

[00:17:56] Speaker 04:
That would be clear error, Your Honor.

[00:17:58] Speaker 00:
I'm sorry?

[00:17:58] Speaker 00:
Clear error.

[00:18:00] Speaker 00:
Clear error.

[00:18:01] Speaker 04:
Yeah.

[00:18:01] Speaker 04:
That's correct.

[00:18:02] Speaker 02:
So how do you square the trial court's making findings of fact with what we said in trusted integration

[00:18:10] Speaker 02:
which the court itself below quoted, the court must accept as true all undisputed facts asserted in the plaintiff's complaint and draw all reasonable inferences in favor of the plaintiff.

[00:18:24] Speaker 04:
Well, the facts here, the underlying facts, the facts in terms of what actually happened from 2010 to 2016, those are not disputed for the purposes of the motion dismissed.

[00:18:38] Speaker 04:
For the purposes of determining its own jurisdiction, I think court can look beyond simply just the complaint and the facts alleged therein.

[00:18:46] Speaker 04:
So looking at, for example, Mr. Murray's testimony, those are facts that were necessary to evaluate in order to determine

[00:18:56] Speaker 04:
basically determine whether there was material interference as much.

[00:19:01] Speaker 02:
Where does the requirement to draw all reasonable inferences in favor of the plaintiff come in?

[00:19:07] Speaker 02:
Does it not apply to even when the court begins to look outside of the complaint?

[00:19:14] Speaker 04:
I think for the purpose of the jurisdiction, the plaintiff has the burden to prove by providers of evidence that the court has jurisdiction here.

[00:19:22] Speaker 04:
So I think to your point, I think

[00:19:26] Speaker 04:
that the really I'm sorry, could you ask the question again?

[00:19:37] Speaker 02:
Sure.

[00:19:37] Speaker 02:
I mean, the requirement to draw all reasonable inferences in favor of the plaintiff as the non-moving party on a motion to dismiss at minimum applies to the undisputed facts in the complaint, correct?

[00:19:54] Speaker 02:
That's correct.

[00:19:56] Speaker 02:
I think you're saying that it also applies to disputed facts going to jurisdiction.

[00:20:02] Speaker 02:
But that's what I'm trying to explore.

[00:20:04] Speaker 02:
Or maybe, I'm sorry, now I'm getting it backwards.

[00:20:10] Speaker 02:
When the trial court looks outside of a complaint to determine if it has jurisdiction, does it have to take the facts in the light most favorable to the plaintiff, or does it not?

[00:20:24] Speaker 04:
I don't believe it does, Your Honor.

[00:20:25] Speaker 04:
And here, more importantly, I don't think there's any argument that the court erroneously did evaluate some of these facts in terms of determining its own jurisdiction.

[00:20:39] Speaker 04:
Here, it seems to be that Mr. Murray is really arguing that,

[00:20:47] Speaker 04:
All these facts are simply just not enough to give rise to material interference where the court made as a factual finding that it was.

[00:20:56] Speaker 02:
So here he says everything was fine until 2010, then these massive snowmobile operations are invented and they start showing up here and there in my parking lot.

[00:21:10] Speaker 02:
It gets worse every year.

[00:21:12] Speaker 02:
But it wasn't until 2016 that it really interfered with my ability to operate a ski resort.

[00:21:19] Speaker 02:
And the trial court says, no, I don't buy that.

[00:21:23] Speaker 02:
It actually was bad enough, at least by 2013, that it materially interfered with your operations.

[00:21:30] Speaker 02:
That seems like a fact dispute for trial, as opposed to something that the court can resolve against the plaintiff if I had a motion to dismiss.

[00:21:40] Speaker 04:
I guess I'm having a hard time articulating this because I actually think this is a problem with the law in the sense that

[00:21:51] Speaker 04:
For the purposes of land, or claim, or cruise, the court doesn't look at the magnitude of the damages that a plaintiff suffers.

[00:22:00] Speaker 04:
Really, the focus of the analysis is the defendant's actions.

[00:22:03] Speaker 04:
And here, it's the government's action, or the Forest Service's action, authorizing snowmobile activity in the parking lot of the ski resort.

[00:22:12] Speaker 04:
And so this comparison between what his damage is or what

[00:22:19] Speaker 04:
what the interference was back in 2010 versus interference in 2016, it's really irrelevant to the purposes of the statute of limitations.

[00:22:30] Speaker 04:
The analysis is just when could Mr. Murray have brought a breach of contract claim?

[00:22:37] Speaker 04:
When did that claim actually accrue?

[00:22:42] Speaker 04:
It's our position that, and as the trial court correctly decided, that claim occurred back in at least 2013, if not as early as 2010, where Mr. Murray testified to a variety of issues that began in 2010.

[00:23:00] Speaker 04:
For example, snowmobiliers being drowned, speeding passcades, and so forth.

[00:23:06] Speaker 02:
The way the trial court looked at this, it seems as if

[00:23:11] Speaker 02:
It could have been material interference, and he could have brought a claim in the trial court's view as soon as he saw one of these snowmobilers and he walked over and asked them, you know, stop drinking or stop, you know, snowmobiling around the parking lot.

[00:23:26] Speaker 02:
As soon as he took one action because he didn't like what he was seeing, at least under the trial court's analysis, it seems that that was enough.

[00:23:36] Speaker 02:
He could have brought his claim then, and if he didn't do it within six years of that first time,

[00:23:40] Speaker 02:
then he's out of luck.

[00:23:46] Speaker 04:
I think the trial court's opinion is really stating that the earliest possible time, yes, would have been 2010, where I think the trial court was referring to a letter that Mr. Murray sent to the Forest Service that he was banning snowmobiles from the parking lot.

[00:24:03] Speaker 04:
I think it was in July of 2010.

[00:24:04] Speaker 04:
And so that's maybe the earliest time in which

[00:24:07] Speaker 04:
I guess there's a very clear evidence that Mr. Murray himself saw a potential problem with the Forest Service's authorization of civil deal activities.

[00:24:16] Speaker 04:
But certainly by 2013, where there's a whole host of other issues that have appeared, as Mr. Murray has said, incrementally, certainly by that point, there should have been a breach of contract claim that he could have got.

[00:24:33] Speaker 01:
And so... Do you believe that we, and I think

[00:24:37] Speaker 01:
One case that might actually address this is Peter Sinai versus Watkins.

[00:24:42] Speaker 01:
But doesn't that case, and I would somewhat think this talk about the fact that the trial court can do that finding when they're controverted jurisdictional obligation?

[00:24:55] Speaker 04:
I think that's correct.

[00:24:56] Speaker 04:
I mean, the case that is referred to in a brief and that I'm referring to here is Rokovich versus the United States, where

[00:25:04] Speaker 04:
It says, whether a motion to dismiss should be granted, the court may find it necessary to inquire into jurisdictional facts that are disputed.

[00:25:13] Speaker 04:
And so again, that goes back to the point here that trial court here appropriately looked beyond the complaint.

[00:25:22] Speaker 02:
But looking beyond the complaint, it seems to me, is something different than resolving fact disputes.

[00:25:27] Speaker 02:
I don't think anyone disagrees that it looked beyond the complaint.

[00:25:30] Speaker 02:
He quotes the deposition throughout the opinion.

[00:25:34] Speaker 02:
I think I understand your friend on the other side to be saying there was no resolution of fact disputes because the government said, for purposes of the motion, we accept all the facts as pled.

[00:25:45] Speaker 02:
And I'm not sure I see where in the opinion that maybe you can show me where the trial court is making a finding of fact.

[00:25:59] Speaker 04:
Let's see.

[00:26:00] Speaker 04:
The trial court made factual findings in relation to the jurisdictional question of when there was material interference under the facts alleged in the plate and under the facts that were testified to by Mr. Murray in his deposition.

[00:26:23] Speaker 04:
So I think the culminating

[00:26:26] Speaker 04:
fact that was found by the trial court was, again, that Mr. Murray suffered a negative impact on both revenue and business reputation on Appendix 10.

[00:26:37] Speaker 04:
So that would be a factual finding.

[00:26:40] Speaker 04:
And in addition to that, moreover, the fact that material interference was hit, that threshold was hit, sometime in the 2010, 2013 timeframe,

[00:26:56] Speaker 04:
that would in itself also be a factual finding.

[00:26:59] Speaker 04:
So, I mean, really the only legal question that the trial court decided was what material interference actually meant in the context of the permit.

[00:27:15] Speaker 00:
In your view, does that mean an indication of loss of income, or could it also be an indication of

[00:27:26] Speaker 00:
of safety, safety to individuals.

[00:27:34] Speaker 00:
What would you say constitutes a material interference?

[00:27:44] Speaker 00:
Loss of revenue or loss of safety?

[00:27:48] Speaker 00:
Safety out in the parking lot and everything that was alleged here.

[00:27:53] Speaker 04:
I think it could be both, your honor.

[00:27:55] Speaker 04:
It could be a safety, general safety issue, and I think it could be a loss of revenue.

[00:28:01] Speaker 04:
I think certainly a loss of revenue would be an impact, a material impact on a business.

[00:28:07] Speaker 04:
But, I mean, to the extent that a business does have to take the game.

[00:28:13] Speaker 00:
Perhaps the, what if the other comments, the earlier comments in 2010, those were directed more to safety as opposed to loss of income?

[00:28:30] Speaker 04:
I think it would still be, it could be a material impact to the extent that the business or Mr. Murray has to take steps to alleviate those safety concerns.

[00:28:41] Speaker 04:
And so if a business has to take affirmative actions, has to spend money doing so, or time or effort doing so, that would potentially be a material impact, or a material interference with the operation of a business, I guess precisely.

[00:28:56] Speaker 02:
Let me tell you my concern here.

[00:28:59] Speaker 02:
The deposition testimony, it seems to me, perhaps like all or most deposition testimony, can be read in a couple of different ways.

[00:29:07] Speaker 02:
And it seems like the trial court is reading it in a way that is skewed against Mr. Murray.

[00:29:15] Speaker 02:
Maybe that's the best reading.

[00:29:16] Speaker 02:
Maybe it isn't.

[00:29:17] Speaker 02:
But that seems like something that isn't done on a motion to dismiss.

[00:29:24] Speaker 02:
And it also, I'm concerned that the trial court doesn't really carefully explain that that's what it's doing.

[00:29:30] Speaker 02:
And it understands that it can do that in a jurisdictional motion to dismiss.

[00:29:35] Speaker 02:
Can you help me with any of that?

[00:29:38] Speaker 04:
I think, again, Your Honor, I think the legal issue or the legal analysis is framed more properly

[00:29:46] Speaker 04:
as focusing on what the Forest Service did, like what exactly is the action that occurred that supports a material interference.

[00:29:58] Speaker 04:
And here it's undisputed that it's

[00:30:01] Speaker 04:
the Forest Service's authorization of snowmobile activity.

[00:30:05] Speaker 04:
And that started, undistinguishably, as far back as 2004.

[00:30:10] Speaker 04:
And the only question you hear is really when that authorization started becoming a material interference.

[00:30:19] Speaker 04:
So even looking beyond the testimony, there are documents in the record that demonstrate

[00:30:32] Speaker 04:
that there was a clear inflection point in where Mr. Murray looks at the situation, sees that it's a problem,

[00:30:45] Speaker 04:
and then takes action.

[00:30:47] Speaker 04:
And more specifically, I'm referring to his letter again in 2010 where he tries to post up signs banning snowmobiles in 2011.

[00:30:57] Speaker 02:
But I think it's a hard case because I think even in your answer you're running to how Mr. Murray viewed things, but I thought your overriding point was it doesn't matter what Mr. Murray thought.

[00:31:09] Speaker 04:
Yeah, so my point is that in 2011, the Forest Service comes back, sends him a letter in response, and says that no, you can't do that.

[00:31:19] Speaker 04:
And so, I mean, I think our position is that at least by 2011, certainly the Forest Service made a direct

[00:31:30] Speaker 04:
statement essentially that direct authorization saying that you cannot ban snowmobiles from the premises.

[00:31:37] Speaker 04:
You have to let them in, and so that's an authorization by the government.

[00:31:42] Speaker 04:
And that, I think, gives rise to a breach of contract claim.

[00:31:49] Speaker 00:
Okay, let's hear what Councilor Garvin has to say.

[00:32:04] Speaker 03:
I'll be brief, but just following up on that last question from Judge Stark with regard to what, you know, it doesn't matter what Mr. Murray thought.

[00:32:13] Speaker 03:
I think it's also important to point out and to address the issue that we raised, which is that Mr. Murray's claim was a claim for no longer being able to operate and losing the value of his improvements.

[00:32:24] Speaker 03:
And that can only occur when there's a cessation.

[00:32:27] Speaker 03:
And as we pointed out, we made that very clear.

[00:32:29] Speaker 03:
That was the claim.

[00:32:31] Speaker 03:
We also think we made it clear in our brief that under the restatement, you can't bring that claim until there is a cessation of operations, because the damages don't arise until then.

[00:32:39] Speaker 03:
So in a way, all of this would be irrelevant if the court would agree this is a total breach claim, which we think it's very clear on the face of it it is.

[00:32:47] Speaker 03:
And therefore, that claim cannot be brought until he ceases operating.

[00:32:51] Speaker 03:
The court below made the comment that, well, but we can't agree that there's just

[00:32:55] Speaker 03:
There's too much subjectivity here as to when Mr. Murray can decide when to court.

[00:32:59] Speaker 03:
But actually, there is abundant authority for that.

[00:33:02] Speaker 03:
And I can point the court to that as far as the non-breaching party having the ability to elect, at what point in time do they say, this is a total breach, and we can't continue.

[00:33:12] Speaker 03:
We're going to end this contract.

[00:33:14] Speaker 03:
And that authority is in the Black's Law Dictionary, which is at page 38 of our brief, which talks about the party electing to treat the breach as total rather than partial.

[00:33:25] Speaker 03:
It also comes up in the restatement second of contract, section 236, which is cited in the Indian-Michigan power case we cited too.

[00:33:32] Speaker 03:
That refers to a party being able to elect if they're going to pursue a total breach or not.

[00:33:38] Speaker 03:
It also comes up in the Kerry Orell case at page 12 and 16 of our reply brief where we talked about the same thing, that the plaintiff chose not to treat it a certain way.

[00:33:47] Speaker 03:
It's also apparent in the law station, but it's in the restating of judgments, which is also cited in the Michigan, sorry, Indiana and Michigan case.

[00:33:58] Speaker 03:
And the restating and seconding of judgments at page 26, which that case states too, talks about the fact that the plaintiff may elect to treat it as being merely a partial breach or a total breach.

[00:34:08] Speaker 03:
So with regard to the issue of when Mr. Murray could decide, I can't continue anymore, the risk is too high, the risk of damage is too high, I can lose everything,

[00:34:16] Speaker 03:
That he has a certain he has a certain amount of subject there is amount of certain Subjectivity there based on the legal authority as to at what point in time.

[00:34:25] Speaker 03:
Can you bring a total breach?

[00:34:28] Speaker 03:
Okay Okay, thank you.

[00:34:31] Speaker 00:
Thank you young we think the party for the arguments this morning this concludes today's hearing I