[00:00:00] Speaker 03:
Our next case for argument is 24-1544 Wyoming Trust versus United States.

[00:00:09] Speaker 03:
Mr. DeBach, please proceed.

[00:00:11] Speaker 05:
Yes, thank you.

[00:00:12] Speaker 05:
Good morning, Your Honors.

[00:00:14] Speaker 05:
This appeal is about when a takings claim accrues under the Tucker Act six-year statute of limitations.

[00:00:21] Speaker 05:
The Supreme Court's 2024 decision in corner post to the Board of Governors of the Federal Reserves makes the answer clear.

[00:00:30] Speaker 05:
Claim accrues when the plaintiff is actually injured, not when the government acts.

[00:00:37] Speaker 05:
Here, the Court of Federal Claims dismissed our cases untimely by pegging accrual to a 1985 stated agency designation.

[00:00:49] Speaker 05:
Corner Post validates that reasoning.

[00:00:52] Speaker 05:
The Indie Exchange program here is optional, right?

[00:00:56] Speaker 05:
The exchange program is optional, Your Honor.

[00:00:59] Speaker 05:
So how can something that's optional delay the running of the statute of limitations?

[00:01:05] Speaker 05:
So the issue is that the date that the lower court pegged the accrual to was Columbia Valley floor determination, which was an action by the State of Wyoming.

[00:01:22] Speaker 05:
It was not when there was cognizable injury by the plaintiff.

[00:01:26] Speaker 00:
I don't think we're addressing my question.

[00:01:28] Speaker 00:
How can something which is optional delay the running of the statute of limitations?

[00:01:33] Speaker 00:
How can that be a necessary part of your cause of action?

[00:01:39] Speaker 05:
The exchange mechanism is the mechanism that is in the service mining

[00:01:47] Speaker 05:
Control Reclamation Act.

[00:01:50] Speaker 05:
It was the remedy that our client was asking for pursuant to the ABF determination.

[00:02:00] Speaker 05:
There's no other remedy that we see under the statute.

[00:02:08] Speaker 03:
Let me make your argument a little more streamlined so we can make sure I understand it.

[00:02:12] Speaker 03:
Is your argument in response to Judge Dague that

[00:02:16] Speaker 03:
the Constitution requires taking without just compensation and we maybe there was a taking earlier but we were still under the belief that we were going to receive just compensation and it wasn't until we didn't that we had a Cognizable Act.

[00:02:30] Speaker 03:
Do we have to agree with you?

[00:02:32] Speaker 03:
that your claim does not, and I'm not going to say it starts running, because there's a difference between claim accrual and the statute of limitations, and our case law has made that clear.

[00:02:41] Speaker 03:
But is your argument that the statute of limitations didn't start ticking for you until you knew both that there was a taking and that taking was not going to be justly compensated?

[00:02:51] Speaker 03:
Is that what we have to agree with in order to find for your client?

[00:02:55] Speaker 05:
That is correct, Your Honor.

[00:02:56] Speaker 05:
We believe that the date where the injury became recognizable was August 2017, when our client was told that the value of their $138 million tons of coal was still there.

[00:03:09] Speaker 01:
What about the October 4th?

[00:03:11] Speaker 03:
Yeah, you're going to say something I'm going to say, so go ahead.

[00:03:12] Speaker 01:
Yeah, I think we're going to say the same thing.

[00:03:14] Speaker 01:
But what about the October 4th, 2016 date?

[00:03:18] Speaker 01:
Weren't you at least aware by then that there would be the $0 valuation?

[00:03:23] Speaker 05:
So with regard to the August 2016 claim, Your Honor, our position is that that was not a final determination.

[00:03:34] Speaker 05:
There were negotiations and discussions that went on subsequent to that.

[00:03:39] Speaker 03:
But that has something to do with notice.

[00:03:41] Speaker 03:
First off, you didn't even put the October 2016

[00:03:43] Speaker 03:
letter in the record.

[00:03:45] Speaker 03:
It's not even in here, so we don't have it.

[00:03:47] Speaker 03:
But what we do have is your complaint.

[00:03:48] Speaker 03:
And this is a 12B case.

[00:03:50] Speaker 03:
So that's what we use to understand all the facts in the record.

[00:03:54] Speaker 03:
And your 12B complaint expressly says that your client received a zero valuation in October of 2016 from the board, agency, whatever it is that gave it to you.

[00:04:07] Speaker 03:
The clock starts ticking.

[00:04:09] Speaker 03:
You knew, as of October of 2016, the government was saying, you're not getting any compensation.

[00:04:14] Speaker 03:
You're getting zero.

[00:04:16] Speaker 05:
Yes.

[00:04:16] Speaker 05:
So our position is that that October 2016 letter was not a determination that it was actually zero because there were negotiations.

[00:04:27] Speaker 03:
That may be your position now.

[00:04:30] Speaker 03:
But I look at this under the rubric of your complaint.

[00:04:34] Speaker 05:
Right.

[00:04:34] Speaker 03:
Your complaint doesn't say that.

[00:04:36] Speaker 03:
Your complaint says we were notified in October 2016.

[00:04:40] Speaker 03:
You're trying to supplement the record right now with attorney argument.

[00:04:43] Speaker 03:
Irrelevant to me.

[00:04:45] Speaker 03:
What I have to decide is based on the complaint.

[00:04:48] Speaker 03:
And your complaint makes an assertion.

[00:04:50] Speaker 03:
We were told

[00:04:52] Speaker 03:
Officially, we were informed in October of 2016, zero dollars.

[00:04:57] Speaker 03:
It doesn't say, but not final, still under negotiation, all that other stuff.

[00:05:02] Speaker 03:
This is all just attorney argument.

[00:05:03] Speaker 03:
I don't decide based on it.

[00:05:05] Speaker 03:
I decide based on your complaint and the allegations therein.

[00:05:09] Speaker 03:
So why is Judge Cunningham's point not the exactly correct one?

[00:05:13] Speaker 03:
You alleged that in October of 2016, you were clearly and definitively put on notice.

[00:05:20] Speaker 05:
Perhaps the complaint could have been better worded, Your Honor.

[00:05:23] Speaker 05:
The reason we included the 2017 letter and not the 2016... Well, because the reason we included 2017...

[00:05:32] Speaker 02:
Because you're not out of statute of limitations.

[00:05:34] Speaker 02:
If you would have included 2016, you would be in trouble.

[00:05:38] Speaker 02:
That's outside your time zone.

[00:05:39] Speaker 05:
And it's the government's position that it was the 2016 letter.

[00:05:42] Speaker 05:
The government didn't provide that letter either when it made the claim that it was 2016.

[00:05:48] Speaker 03:
Well, they don't have to, because they got your complaint.

[00:05:51] Speaker 03:
They don't have to provide the letter, because your complaint states that on its base.

[00:05:57] Speaker 05:
Again, Your Honor, I think the complaint perhaps was not as clearly worded as it should.

[00:06:03] Speaker 05:
Our position is that the valuation, the zero dollar valuation became final in August 2017.

[00:06:11] Speaker 01:
Well, should we look at the complaint?

[00:06:13] Speaker 01:
Why don't we just pull it on there?

[00:06:15] Speaker 05:
Sure.

[00:06:16] Speaker 05:
Okay, let's do it.

[00:06:17] Speaker 01:
Appendix page 20, paragraph 41.

[00:06:36] Speaker 01:
I feel like I'm seeing some language that seems pretty clear to me that says value of $0.

[00:06:41] Speaker 03:
Well, even more, it says BLM formally rejected CMP valuations.

[00:06:48] Speaker 05:
The issue there, though, Your Honors, is that it was only subsequent to August 2016 that our clients found out about the assumptions that were underlying that $0 valuation.

[00:07:01] Speaker 05:
And so the... I think you meant August 2017, right?

[00:07:05] Speaker 05:
Because... August 2017.

[00:07:07] Speaker 01:
Your argument.

[00:07:07] Speaker 01:
I'm not saying I'm agreeing with you, but... No, I apologize.

[00:07:10] Speaker 05:
That we did not know the underlying assumptions behind that $0 valuation.

[00:07:17] Speaker 03:
Who cares?

[00:07:18] Speaker 03:
How does that have any impact?

[00:07:20] Speaker 03:
You were, according to your language, formally rejected and received a zero valuation.

[00:07:24] Speaker 03:
You're on notice.

[00:07:26] Speaker 03:
Who cares if you don't understand what valuations or numbers or logic or considerations went into the determination?

[00:07:33] Speaker 03:
The determination was made.

[00:07:34] Speaker 03:
You were put on notice.

[00:07:35] Speaker 03:
The federal government thought it was worth zero.

[00:07:39] Speaker 05:
Tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic, tic

[00:08:00] Speaker 01:
that really August 2017 needs to be the right date.

[00:08:03] Speaker 01:
It seems to me that you're making some argument that we should ignore this October 2016 date because of the lack of finality.

[00:08:10] Speaker 01:
What's your support with that?

[00:08:11] Speaker 05:
So the argument would be that it was only in August 2017 that there was a cognizable injury under the framework in corner posts.

[00:08:22] Speaker 03:
Now, I want to back it up because, I mean,

[00:08:26] Speaker 03:
The 2016 thing seems to be a problem for you.

[00:08:28] Speaker 03:
But Judge Steink asked a couple of questions, and I don't really feel like we've flushed them out.

[00:08:33] Speaker 03:
So let's just talk a little bit about the facts.

[00:08:35] Speaker 03:
So Congress passes a law in, was it 1985?

[00:08:39] Speaker 05:
The initial law, Your Honor, was 1977.

[00:08:41] Speaker 05:
1977.

[00:08:42] Speaker 03:
The SMCRA.

[00:08:45] Speaker 03:
SMCRA.

[00:08:46] Speaker 03:
And what that law said is,

[00:08:49] Speaker 03:
certain people with certain types of land would not be allowed to mine the coal on their own land.

[00:08:55] Speaker 03:
And was it for environmental reasons?

[00:08:57] Speaker 03:
Exactly correct, John.

[00:08:59] Speaker 03:
Exactly that.

[00:08:59] Speaker 03:
But at that point when they passed that statute, who knows which land it is, right?

[00:09:05] Speaker 03:
Your clients, the Hall family, probably didn't necessarily know that that statute impacted them.

[00:09:11] Speaker 03:
Is that correct?

[00:09:13] Speaker 00:
That is correct, John.

[00:09:14] Speaker 00:
But they learned that in 1985 that it did.

[00:09:18] Speaker 00:
when the WDEQ determined that there was an alluvial floor issue here that you couldn't mind, right?

[00:09:26] Speaker 00:
That is correct, Your Honor.

[00:09:27] Speaker 00:
So at that point, you could have sued for taking, right?

[00:09:30] Speaker 05:
Well, there are... Yes?

[00:09:32] Speaker 05:
No?

[00:09:33] Speaker 05:
I would say no, Your Honor, because of that.

[00:09:35] Speaker 05:
At that point, there was no cognizable injury.

[00:09:39] Speaker 05:
State of Wyoming had delineated as, I guess, a geological exercise the scope of the alluvial bounty for.

[00:09:45] Speaker 00:
That seems to be inconsistent with the Supreme Court decision in Nick, which seems to say you can sue when there's an injury of that kind, even though the amount of compensation due hasn't been determined.

[00:10:01] Speaker 05:
OK, so with regard to the Nick case, Your Honor, our reading of it is that the Supreme Court is saying there's no exhaustion of state remedies.

[00:10:15] Speaker 05:
Nick doesn't specifically refer to the term accrue, which is what corner post

[00:10:23] Speaker 05:
discusses subsequently.

[00:10:25] Speaker 00:
Nick says he can sue when the injury happens without going through a process to determine what the extent of the compensation is.

[00:10:33] Speaker 05:
The other issue there, Your Honor, is who... Right.

[00:10:37] Speaker 05:
That is correct, Your Honor, but the issue is who

[00:10:40] Speaker 05:
our clients would sue, they couldn't sue the state of Wyoming.

[00:10:44] Speaker 05:
Wyoming was just effectively in a geological exercise to delineate the scope of the... So all these cases where people sued when they got a determination that they couldn't mine, they were suing prematurely, right?

[00:11:00] Speaker 05:
Well, in those cases, Your Honor, like, for example, Nance and Whitney benefits, for example, in the Nance case, the plaintiffs did try to go through the administrative process of the exchange before suing.

[00:11:15] Speaker 05:
One of the issues there, Your Honor, is who would the client sue?

[00:11:18] Speaker 05:
So, for example, by analogy to the GNP case, if the plaintiff had sued the state of Wyoming, the state of Wyoming would say, this has nothing to do with us, we're just delineating

[00:11:27] Speaker 05:
the alluvial valley floor that we are then going to certify to the Secretary of Interior for an exchange.

[00:11:34] Speaker 05:
If the plaintiff were to have sued the federal government, the federal government would have taken the exact position it's taken in the GNP case to say it has nothing to do with us, it has to do with the state of Wyoming.

[00:11:42] Speaker 00:
That's a different issue then.

[00:11:44] Speaker 00:
That's the great northern issue as to whether it's the US or the state.

[00:11:47] Speaker 00:
But in terms of

[00:11:48] Speaker 00:
of the final determination that you can't mine that was made in 1985 over done with you ought to be able to sue at that point and the Supreme Court said you can't sue in that case.

[00:12:00] Speaker 05:
Well the other issue with the 1985 determination your honor is the federal government itself didn't accept that

[00:12:05] Speaker 05:
And our client had to engage in litigation.

[00:12:10] Speaker 05:
And it was not until 2014 when the federal government accepted that alluvial floor determination.

[00:12:18] Speaker 05:
And in their briefs, the government tries to shrug that off in a footnote and say, oh, that was just a temporary position we took.

[00:12:23] Speaker 03:
But even the federal government didn't believe that that was a final... And if the federal government didn't believe that your clients were properly classified as having property within the AVF, they would not therefore have to compensate under the SMCRA, is that correct?

[00:12:38] Speaker 05:
That is correct, but then our client... So that was a resolve to mine in that land if it's not... I'm sorry, can you try one more time?

[00:12:45] Speaker 05:
Oh, yes, sir.

[00:12:47] Speaker 05:
If it was determined not to be in an alluvial valley floor, then the argument would have been that our client could have mined on that land.

[00:12:53] Speaker 05:
The reason our client can't mine on the land is because of the determination that it's an alluvial valley floor.

[00:12:58] Speaker 00:
Which was resolved in 2014.

[00:12:59] Speaker 05:
It was resolved in 2014.

[00:13:04] Speaker 05:
So you could sue in 2014, because you couldn't mine.

[00:13:08] Speaker 05:
Well, the whole premise behind that litigation was that the government was going to do an exchange, so the whole point and the reason why our clients went through that litigation was to do the exchange.

[00:13:19] Speaker 03:
What we've seen in the cases... So what, just out of curiosity, I don't understand this.

[00:13:22] Speaker 03:
When they do an exchange, so if the government says, you've got property and we're not going to let you mine the mineral rights, which are yours under, and in this case it was what, like 150 million?

[00:13:31] Speaker 05:
138 million tons.

[00:13:32] Speaker 03:
138 million tons of coal.

[00:13:34] Speaker 03:
Correct.

[00:13:35] Speaker 03:
So the government says, you can't mine your 138 tons of coal, because we've decided if we let you do that, it would have a negative impact on the environment.

[00:13:43] Speaker 03:
So what is the government supposed to do by way of compensation?

[00:13:47] Speaker 05:
So what the government is supposed to do by way of compensation is, after the Bolivio Valley floor determination, propose an exchange to the plaintiffs of comparably valued land and do an exchange.

[00:14:00] Speaker 03:
So I have a dumb question.

[00:14:01] Speaker 03:
I really don't know what this means.

[00:14:03] Speaker 03:
Does this mean they give you different land if they go mine the southern land or do they just give you the dollar value of what the coal would have been had you been able to mine it?

[00:14:13] Speaker 05:
Excellent question, Your Honor.

[00:14:14] Speaker 05:
So what they are supposed to do is give another

[00:14:17] Speaker 05:
parcel of land.

[00:14:18] Speaker 05:
There have been cases where the government has unilaterally decided to pay instead of give the other parcel of land.

[00:14:26] Speaker 05:
But the way the provision is structured... And where does this other land come from?

[00:14:29] Speaker 03:
They're like, oh here, go mine the National Park.

[00:14:32] Speaker 05:
I don't understand.

[00:14:34] Speaker 05:
No, no, that's an excellent question.

[00:14:36] Speaker 05:
So it would be a tract of federal land that would be mineable.

[00:14:42] Speaker 05:
And the history of these exchanges, unfortunately, is that very, very few of them have actually been carried out.

[00:14:49] Speaker 03:
So if they don't give you a parcel of land that you could in fact mine to get your 138 million tons of coal, that's not right?

[00:15:00] Speaker 02:
That's exactly right.

[00:15:00] Speaker 03:
If they don't do that, they're supposed to pay you for what the value of that would have been.

[00:15:06] Speaker 03:
Now it's fair for them to minus from the value the expense you would have incurred in mining it, right?

[00:15:12] Speaker 03:
Correct.

[00:15:13] Speaker 03:
I don't understand how they came up with zero in this case.

[00:15:15] Speaker 03:
Like you have 138 million tons of coal, but it's worth zero?

[00:15:18] Speaker 05:
This is exactly our contention, Your Honor.

[00:15:21] Speaker 05:
Going back to Judge Cunningham's question, that's why our client doesn't do the 2016 finals.

[00:15:26] Speaker 03:
Is it because it was the core of the center of the world, like journey to the center of the earth, and that's the only way you could have gotten it?

[00:15:31] Speaker 03:
I mean, what is the government's reasoning for why it's worth zero?

[00:15:35] Speaker 05:
Our understanding, our understanding, and it goes to Judge Henningheim's question as well, is that they used different assumptions that were not assumptions that were per their regulations.

[00:15:53] Speaker 05:
And we only found out about that after October 2016.

[00:15:56] Speaker 03:
So what avenue for redress do you have for that?

[00:16:00] Speaker 03:
Is that an APA challenge?

[00:16:02] Speaker 03:
And that's what I'm wondering.

[00:16:03] Speaker 03:
There has to be.

[00:16:05] Speaker 03:
some way for you to challenge it.

[00:16:07] Speaker 03:
And if it's not in this case, I want consolation in my own brain that there is some other mechanism by which you could challenge that action.

[00:16:14] Speaker 05:
There is an APA claim ongoing, Your Honor, in the Federal District Court in Wyoming and also in the District Court in the District of Columbia with regard to now the phases to do evaluation of the land.

[00:16:28] Speaker 05:
The issue is that that would be prospective relief.

[00:16:31] Speaker 05:
It would not take into account

[00:16:33] Speaker 05:
the harm that we allege our client to suffer from all of the delays and the difficulties that the government has created for our client.

[00:16:41] Speaker 03:
All right.

[00:16:41] Speaker 03:
I think we better hear from the government.

[00:16:43] Speaker 03:
Let's give Mr. Herman a chance.

[00:16:45] Speaker 05:
Thank you, Your Honors.

[00:16:52] Speaker 04:
Good morning, Your Honors.

[00:16:53] Speaker 04:
Brian Herman for the United States.

[00:16:55] Speaker 04:
May it please the Court.

[00:16:56] Speaker 03:
Before we jump into the time bar, and trust me, we will, would you address the stuff we were just addressing here at the end, which is, how can the government come up with zero?

[00:17:05] Speaker 03:
Like, how can they have 138 million tons of coal that they actually lease to Exxon?

[00:17:11] Speaker 03:
I hope I didn't say anything confidential.

[00:17:13] Speaker 03:
They actually lease to Exxon, and Exxon was intending to mine until this law was passed and said, nope, you can't mine this.

[00:17:21] Speaker 03:
How can the US government have turned around and looked at that same thing and said, well, it's worth zero?

[00:17:27] Speaker 03:
Exxon didn't think it was worth zero.

[00:17:29] Speaker 04:
So, Your Honor, the shortest answer, as I understand it, is that the cost of coal in the market versus the cost of mining it and getting it to market, given where the mine is located, is the reason for the zero dollar mortgage.

[00:17:41] Speaker 03:
OK, but Exxon didn't think it was worth zero.

[00:17:44] Speaker 03:
Should I have confidence the US government is better at valuing it than Exxon?

[00:17:48] Speaker 03:
I mean, Exxon's got a whole board.

[00:17:50] Speaker 03:
They're responsible to somebody.

[00:17:51] Speaker 03:
They thought it was worth something.

[00:17:53] Speaker 03:
They came in and they were willing to pay this family for the right to mine the coal on their land.

[00:17:58] Speaker 03:
So how could those two things coexist?

[00:18:02] Speaker 03:
Exxon, a private company that I don't think is generally run by stupid people, decided it was worth something.

[00:18:08] Speaker 03:
And then the US government comes in and says, Exxon, I don't know what they're talking about, 138 million tons of coal isn't worth anything at all.

[00:18:14] Speaker 04:
Your Honor, Exxon thought so, but then it walked away.

[00:18:17] Speaker 04:
It did not pursue the exchange because of the values involved.

[00:18:19] Speaker 04:
But I want to express something important, that that valuation is not necessary to this case.

[00:18:25] Speaker 04:
As my colleague mentioned, there are two district court litigations over the valuation.

[00:18:30] Speaker 00:
There is also a citizens... Over the valuation of this property?

[00:18:33] Speaker 04:
Over the valuation of this property, Your Honor, and there are actually... And so what is the relief that sought in that case?

[00:18:38] Speaker 00:
The parties are pursuing a re-evaluation of the coal lands.

[00:18:42] Speaker 00:
So in other words, they're arguing that there should be a permissible exchange because the property had value.

[00:18:48] Speaker 04:
That's the argument.

[00:18:48] Speaker 04:
Yes, your honor.

[00:18:49] Speaker 04:
And it's my understanding that the settlement agreement is that the parties will reevaluate the Hall of Ranch code to see if an exchange could be affected.

[00:18:57] Speaker 01:
Is it true that it would only be prospective relief as opposing counsel indicated in terms of relief sought in that other case?

[00:19:05] Speaker 04:
I don't exactly know what he's trying to draw the line, but if an exchange is effectuated, then there's the conveyance of the fee that Wyoming Trust and its entities would receive the fee in other federally owned coal lands in exchange for the land subject to the AVF decision here.

[00:19:22] Speaker 04:
But as to that ABF decision, Judge Dyke, your earlier questions were correct.

[00:19:26] Speaker 04:
1985 is the pivotal year.

[00:19:29] Speaker 03:
How could that be so if the government even disputed or if there was at least an argument raised that the government was not in agreement that a particular tract of land was properly determined?

[00:19:40] Speaker 03:
Because when Wyoming, I know you ceded certain authority to Wyoming, I get that.

[00:19:46] Speaker 03:
So Wyoming comes along and says this is an AVF track.

[00:19:48] Speaker 03:
Well, that designation would theoretically bind the government to this exchange possibility where the government would have to give federal land or alternatively pay money.

[00:19:59] Speaker 03:
So my understanding is even though this determination by the state of Wyoming is this is an AVF

[00:20:05] Speaker 03:
piece of property, that the government itself disputed whether that was correct and that that dispute continued because the government didn't want to be liable.

[00:20:14] Speaker 03:
They didn't want to have to pay the money or do the exchange and that dispute continued until 2014.

[00:20:19] Speaker 03:
So if that's true, how can you stand here and say to me

[00:20:22] Speaker 03:
that it was the government's view that it was definitively resolved in 1985 when the government actually disputed that very fact, at least in 2014.

[00:20:32] Speaker 03:
Now, you can jump.

[00:20:33] Speaker 03:
You can walk away.

[00:20:34] Speaker 03:
You could get yourself out of a lot of trouble right now and walk away from 1985 and just say, well, Your Honor, let's just focus on 2014.

[00:20:43] Speaker 03:
But if you want to keep defending 1985, please continue to do so because that would make it more fun for these students.

[00:20:48] Speaker 04:
Your Honor, I will.

[00:20:49] Speaker 04:
But I will start by saying, 2014, you're right.

[00:20:51] Speaker 04:
Certainly by 2014, the litigation had ended.

[00:20:54] Speaker 04:
And BLM, for its purpose, had conceded the AVF decision from Wyoming DEQ.

[00:20:59] Speaker 00:
Why was the government disputing the determination?

[00:21:04] Speaker 04:
It's my understanding, Your Honor, that they were disputing the exact acres involved, not the AVF decision itself, but how much acres.

[00:21:10] Speaker 04:
There's reference in the complaint to about 900-some-odd acres versus 1,600.

[00:21:14] Speaker 00:
But that, Your Honor.

[00:21:16] Speaker 00:
So the government was arguing that there should be more acreage than had been determined?

[00:21:20] Speaker 00:
Less, Your Honor.

[00:21:21] Speaker 00:
Less?

[00:21:22] Speaker 03:
Yeah, they don't want to pay all the money.

[00:21:24] Speaker 04:
They want it to be less.

[00:21:25] Speaker 04:
But Chief Judge Moore, you're correct that, certainly by 2014, whatever dispute was at issue was resolved, BLM agreed with the WDQ decision, and plaintiffs didn't sue until nine years, nine plus years later.

[00:21:34] Speaker 04:
Claim barred, case over.

[00:21:36] Speaker 04:
But 1985 is correct and I want to turn to that.

[00:21:38] Speaker 04:
The CFC was right because we have to think about what is the claim.

[00:21:43] Speaker 04:
It's a regulatory takings claim.

[00:21:44] Speaker 04:
A regulatory takings claim approves when regulations are applied to restrict an owner's use of property.

[00:21:50] Speaker 04:
That came in 1985.

[00:21:53] Speaker 04:
And as plaintiffs themselves point out in their complaint, the Wyoming DEQ is the sole and exclusive decision maker on this ABF question.

[00:22:01] Speaker 04:
By 1985, there was no longer a question how the Wyoming surface mining law applied to the Hall Ranch property.

[00:22:07] Speaker 03:
Suppose, and this is just hypothetical,

[00:22:10] Speaker 03:
because I don't know all the specific facts the way you do.

[00:22:13] Speaker 03:
But suppose, in fact, Wyoming says 1,600 acre parcel is all AVF land.

[00:22:19] Speaker 03:
The government's going to have to pay for this exchange.

[00:22:21] Speaker 03:
We're not going to let them lie.

[00:22:22] Speaker 03:
And the government comes along and says, no, we're not paying anything.

[00:22:24] Speaker 03:
We don't believe a single acre.

[00:22:26] Speaker 03:
We don't believe any of the land is AVF land.

[00:22:29] Speaker 03:
We don't believe it's subject to any restrictions.

[00:22:31] Speaker 03:
And we don't believe we should have to pay for anything.

[00:22:33] Speaker 03:
You still think at that point they're on notice, clear notice, that the government has taken their land and that the government has got to pay them just compensation?

[00:22:43] Speaker 04:
They are on notice that the party with the authority to control their mining has restricted them from doing so.

[00:22:49] Speaker 04:
So, Wyoming became a primacy state in 1980.

[00:22:51] Speaker 04:
So, as of 1980, it's not SNACRA that applies.

[00:22:54] Speaker 04:
It's Wyoming's surface mining law that applies, and its regulatory entity applied its law to Wyoming Trust in 1985.

[00:23:01] Speaker 04:
If your honor is hypothetical, if that was the case, there's a citizen supervision.

[00:23:06] Speaker 04:
Smacker provides the district courts with jurisdiction to sue.

[00:23:09] Speaker 03:
That is a catchy little name for SMCRA.

[00:23:12] Speaker 03:
But so you're saying in 1985, they should sue Wyoming.

[00:23:18] Speaker 03:
Yes.

[00:23:18] Speaker 03:
For designating their land.

[00:23:20] Speaker 03:
And their taking this case would be against the state, not the government?

[00:23:24] Speaker 04:
The state of Wyoming.

[00:23:25] Speaker 04:
Yes, your honor.

[00:23:26] Speaker 04:
That's what we held in Great North.

[00:23:29] Speaker 04:
Correct, Your Honor.

[00:23:29] Speaker 04:
In Great Northern there was an allegation that Montana was effectively acting for the federal government, that it was coerced or its agent, and this court rejected that because Montana, like Wyoming here, was a primacy state who enacted the law of its own sovereign authority.

[00:23:42] Speaker 03:
Do you agree that we have held in cases there's a difference between claim accrual and the statute of limitations?

[00:23:48] Speaker 04:
The court acknowledges there's a difference, but I'm not aware of an application where it is done.

[00:23:53] Speaker 04:
And there's a case, I can't call it off the top of my head.

[00:23:56] Speaker 04:
And it might be actually the court's rail trail jurisprudence.

[00:23:58] Speaker 04:
It might even call that.

[00:23:59] Speaker 03:
It is rails to trails, and I wrote it.

[00:24:01] Speaker 03:
But in any event, so there is a difference, though, because if you think about it here, do we expect or even want them to run to court when Wyoming made the decision that the federal government has come along and the federal government is to pay me, not Wyoming?

[00:24:19] Speaker 03:
Wyoming's not the payee.

[00:24:21] Speaker 03:
Wyoming could decide that like hundreds of thousands of acres are AVF and that would bind the government.

[00:24:26] Speaker 03:
So the government has to be the ultimate sort of arbiter on what is included in this program and what is not, even though the government delegated to Wyoming the initial authority to designate AVF land.

[00:24:39] Speaker 03:
But the government disputed that designation.

[00:24:42] Speaker 03:
Do we really want, if the government disputed that any portion of the land should be considered ABF, the government's like, we're not paying you a penny.

[00:24:49] Speaker 03:
We don't think any of it should be ABF.

[00:24:51] Speaker 03:
Feel free to mine away.

[00:24:52] Speaker 03:
At that point in time, is it really reasonable to expect a property holder to run to court?

[00:24:58] Speaker 03:
Or wouldn't it be reasonable to imagine that they wait for the resolution of this dispute, since the federal government says

[00:25:07] Speaker 04:
The federal government is not the payee here, and I want to make clear the exchange mechanism is separate.

[00:25:15] Speaker 04:
As Judge I guessed earlier, it's an optional path towards compensation, but Wyoming is the exclusive authority in applying Wyoming law.

[00:25:23] Speaker 04:
As Wyoming Trust itself states, this is Appendix 14.

[00:25:26] Speaker 04:
The ABF determination, quote, is entirely within the state of Wyoming's authority, not BLM's.

[00:25:32] Speaker 03:
See, this doesn't make sense to me.

[00:25:33] Speaker 03:
So are you saying to me that the SMCRA has passed, which says that people for environmental reasons can't mine their coal?

[00:25:42] Speaker 03:
That's a federal law.

[00:25:43] Speaker 03:
That federal law delegates to the states the authority to choose within the states which parcels of land fall within this federal prohibition.

[00:25:53] Speaker 03:
Does that sound accurate?

[00:25:54] Speaker 04:
No, Your Honor.

[00:25:55] Speaker 04:
So it provides for cooperative federalism, and the Great Northern Properties case explores this.

[00:26:01] Speaker 04:
The Smacker is not delegating any federal authority.

[00:26:04] Speaker 04:
Smacker says that if a state wishes to regulate surface mining in its borders, it can apply for its program to the Secretary of the Interior, and that the Secretary of the Interior can approve it if it meets certain minimum thresholds.

[00:26:16] Speaker 04:
The Secretary of the Interior did so here for Wyoming in 1980, and it's at that point that Smacker drops out.

[00:26:22] Speaker 04:
It's the WEQA, I believe it is, Wyoming Surface Mining Law, that then applies.

[00:26:26] Speaker 04:
So from 1980 onward, it's Wyoming, using Wyoming law, its sovereign authority to determine who can mine in the state.

[00:26:33] Speaker 04:
And here, its regulatory agency did that in 1985.

[00:26:36] Speaker 00:
I'm confused about what the litigation was.

[00:26:40] Speaker 00:
Was the litigation by the federal government challenging that 1985 determination by Wyoming?

[00:26:48] Speaker 04:
I believe Wyoming trusts the United States because BLM was not willing to engage in the exchange that it sought based on the WDEQ decision.

[00:26:57] Speaker 04:
But I'm not overly familiar with the 2010.

[00:27:00] Speaker 00:
I'm sorry, it wasn't a challenge to the 1985 determination?

[00:27:06] Speaker 03:
I think, I could be wrong, I think it was a challenge to the 1985 determination by the government because the government has this voluntary on the priority right holder part but not voluntary on the government exchange program.

[00:27:21] Speaker 03:
And the government did not want to be bound to have to participate in this exchange over this ginormous parcel of land with 138 million tons of coal.

[00:27:30] Speaker 03:
That's what I think happened.

[00:27:31] Speaker 03:
I could be wrong.

[00:27:32] Speaker 04:
So your honor, regardless of what the on may have named.

[00:27:37] Speaker 04:
Sorry, go ahead.

[00:27:38] Speaker 04:
Go.

[00:27:39] Speaker 04:
Regardless of the BLM's view of the WADEQ decision in 1985, the BLM, as Wyoming Trust itself says in its case, is not the decider.

[00:27:48] Speaker 04:
The Wyoming DEQ issued the only restriction on Wyoming Trust property in 1985.

[00:27:53] Speaker 00:
Well, in any event, that was resolved by 2014.

[00:27:56] Speaker 00:
Absolutely.

[00:27:57] Speaker 00:
And at that point, it was clear they couldn't mine it.

[00:28:00] Speaker 00:
And their only potential remedy was to seek the exchange, correct?

[00:28:04] Speaker 04:
or sue in the Court of Federal Claims if the 2014 date was correct.

[00:28:09] Speaker 03:
So in this case, by 2014, it was resolved.

[00:28:12] Speaker 03:
But what about the compensation piece?

[00:28:14] Speaker 03:
I mean, can you bring a claim for takings without knowing you're not going to receive just compensation?

[00:28:25] Speaker 03:
What I mean by that is, if the government says, I'm going to take your land, and I'm going to pay you millions of dollars for it, then you've been compensated.

[00:28:33] Speaker 03:
They don't really have a cause of action.

[00:28:36] Speaker 04:
If they compensate you before taking it, you don't have a cause of action.

[00:28:40] Speaker 04:
But Nick makes clear that if you take the property without having paid them, you have your cause of action.

[00:28:45] Speaker 04:
And your takings claim occurs then, regardless of post deprivation.

[00:28:48] Speaker 03:
But what about exhaustion?

[00:28:49] Speaker 03:
Now, we say you can take it without compensating them.

[00:28:52] Speaker 03:
The government enacted this BLM program.

[00:28:55] Speaker 03:
The program property rights holders could opt in.

[00:28:57] Speaker 03:
The theory behind that program is it would justly compensate them for what was taken.

[00:29:02] Speaker 03:
So we have a scenario here where at the time their land was taken, they were informed by both Wyoming and the federal government that there existed a program under which they were going to be compensated.

[00:29:15] Speaker 03:
So why doesn't this fall into that selection of cases that says a taking with compensation is not ripe?

[00:29:23] Speaker 03:
But a taking without compensation is right.

[00:29:27] Speaker 03:
Why doesn't that just fall into the, it was fair for them to delay in filing suit until they knew that the program the government promised would compensate them wasn't actually going to.

[00:29:39] Speaker 03:
Why isn't it fair that this falls into that other section?

[00:29:43] Speaker 03:
I think I'm right in saying there's a delineation of cases, right?

[00:29:46] Speaker 03:
If the government compensates you when they take, no problem.

[00:29:50] Speaker 03:
Why isn't this a scenario where the government is pledging to compensate you when they take?

[00:29:55] Speaker 03:
They've got a program.

[00:29:56] Speaker 03:
In fact, it'll do so.

[00:29:57] Speaker 03:
And they weren't aware of a conflict until they realized the compensation wasn't adequate because it was zero.

[00:30:04] Speaker 04:
Because the government's not pledging to do so.

[00:30:05] Speaker 04:
And this court rejected that exact argument 40 years ago, but three months after the Wyoming DEQ made its decision in this very case.

[00:30:13] Speaker 04:
And I'm referring to the 1985 Whitney benefits decision.

[00:30:16] Speaker 04:
His court held, quote, the major premise that pursuit of an exchange transaction must occur and be unsuccessful before a taking can occur is a misconstruction of the governing statute.

[00:30:27] Speaker 04:
The exchange remedy is optional at the choice of the plaintiff, but they also have the chance to sue, the holding of which benefits that a plaintiff.

[00:30:36] Speaker 03:
But is this one of those cases where this distinction between claim of parole and statute of limitations maybe would be at its apex then?

[00:30:44] Speaker 03:
You have a promise by the government to compensate that then goes unfulfilled.

[00:30:50] Speaker 03:
And isn't it fair for a property rights holder to trust that the government will justly compensate them, and only when they realize they're not going to be, to then bring suit?

[00:31:00] Speaker 04:
No, Your Honor.

[00:31:00] Speaker 04:
First off, it's not a promise to compensate.

[00:31:02] Speaker 04:
It's a land exchange.

[00:31:03] Speaker 04:
And as this Court made clear in which- What's the point of a land exchange?

[00:31:06] Speaker 03:
You have to actually exchange land with them that gives them the exact number of whatever tons of coal they had.

[00:31:13] Speaker 04:
It's not by tons of coal, Your Honor, it's based on flim is equal value and so it's about the value at issue.

[00:31:18] Speaker 03:
Yes, fair enough.

[00:31:19] Speaker 03:
It's about coal taking into account the difficulty of extraction and there's an amount of dollar value assessed to that and then we're going to give you a piece of land that allows you to extract coal and

[00:31:29] Speaker 03:
and done up with the same dollar value.

[00:31:31] Speaker 03:
It's still compensation.

[00:31:33] Speaker 04:
Your Honor, what I'd point to in my dwindling time here is, again, this Court's holding... There's no provision in the statute for payment of money, right?

[00:31:39] Speaker 00:
It's only an exchange program for other coal lands.

[00:31:41] Speaker 04:
That is correct, Your Honor.

[00:31:42] Speaker 04:
One of the reasons in Whitney Benefits this Court held that it was an optional path was because it questioned the constitutionality of forcing you to take land instead of money under the Fifth Amendment.

[00:31:52] Speaker 04:
And so I just close by pointing the court to 1558, where it says, we hold therefore that the pursuit of a substitution or exchange transaction

[00:32:01] Speaker 04:
under Section 1260B5 is not a mandatory remedy, but is optional with the landowner who retains also the option to sue in the claims court for money without such pursuit.

[00:32:11] Speaker 04:
You can't do that.

[00:32:12] Speaker 04:
You can't sue in the claims court if you don't have a right claim, a claim that has accrued.

[00:32:16] Speaker 01:
Okay, before you sit down or anything like that, I want to just circle back on a couple things and just kind of sum it all up.

[00:32:23] Speaker 01:
It sounds like you're definitely arguing that you think accrual begins in 1985, but we've also talked about a series of other dates.

[00:32:30] Speaker 01:
It sounds like you're open possibly to at least 2014 as the latest and whether we're looking at 2014 or 1985, even also discussed 2016, all of that would still lead to a situation where there would be a timer coming.

[00:32:47] Speaker 01:
Is that fundamentally your argument?

[00:32:50] Speaker 01:
Yes.

[00:32:53] Speaker 03:
Building on Judge Cunningham, we never gave you a chance to address 2016.

[00:32:57] Speaker 03:
Tell us why.

[00:32:59] Speaker 03:
a lot of sympathy over this one.

[00:33:01] Speaker 03:
Why would 2016 be a date that would time bar them?

[00:33:06] Speaker 03:
What do we have in front of us that would suggest that they, for sure, knew about the rights of them?

[00:33:12] Speaker 04:
So your honor, we preface that by my answer is that this is all based on plaintiff's argument that compensation is required on them.

[00:33:18] Speaker 04:
We disagree with that.

[00:33:19] Speaker 04:
But if that's true, if that's the framework we're looking at, then I would point certainly to appendix 20, which is paragraph 41 that your honor's read earlier, because it's not just some open question.

[00:33:29] Speaker 04:
The plaintiffs themselves right beyond formally rejected their own valuation and that the DMA, the beyond office,

[00:33:34] Speaker 04:
found that the whole Paul Branch poll has a value of $0.

[00:33:39] Speaker 04:
That put them on notice.

[00:33:41] Speaker 04:
And you can look for that to appendix 24, which is paragraph 48, when they describe the letter their own attorney wrote back to BLM complaining about some things, including quote, DNE's assumptions.

[00:33:54] Speaker 04:
The Wyoming Trust knew in 2016 that they had a $0 valuation.

[00:34:00] Speaker 04:
That certainly was the very last point in time at which there was any question, even under their own theory.

[00:34:05] Speaker 04:
And August 2017 doesn't clarify that.

[00:34:08] Speaker 04:
If you look at paragraph 62, this is appendix 29, the August 2017 discussion talks about rejecting a particular track and proposing others.

[00:34:19] Speaker 04:
That's not any formal valuation of zero dollars.

[00:34:22] Speaker 04:
It's an ongoing discussion in light of the existing 2016 valuation.

[00:34:29] Speaker 03:
Thank you.

[00:34:29] Speaker 03:
Thank you, counsel.

[00:34:31] Speaker 03:
You have some more bubble time?

[00:34:32] Speaker 03:
Yes.

[00:34:34] Speaker 03:
Thank you.

[00:34:34] Speaker 03:
Make it three minutes.

[00:34:36] Speaker 03:
We went over with the government.

[00:34:38] Speaker 05:
Thank you.

[00:34:38] Speaker 05:
Thank you, Your Honor.

[00:34:40] Speaker 05:
I'll be brief.

[00:34:41] Speaker 05:
I just wanted to point out just a few things.

[00:34:44] Speaker 05:
First of all, the difference between the 1985 date and a possible date that begins after 2010

[00:34:53] Speaker 05:
we would argue is very significant.

[00:34:55] Speaker 05:
Even in the lower court opinion, which was not favorable to appellants, the judge did draw a distinction between the behavior that we documented that the government carried out beginning in 2010.

[00:35:09] Speaker 05:
And so if the court were to consider a date that starts after 2010, we would argue it's very different from 1985.

[00:35:17] Speaker 00:
Second point, I just wanted to... Do you agree that you could sue in 2014 at the latest?

[00:35:25] Speaker 05:
In 2014, Your Honor, the claim had not accrued and it was still unclear who... You're not answering my question.

[00:35:34] Speaker 00:
Could you have sued for a taking in 2014?

[00:35:38] Speaker 00:
Sued who, Your Honor?

[00:35:39] Speaker 00:
Why the federal government?

[00:35:40] Speaker 00:
The U.S.

[00:35:41] Speaker 00:
government.

[00:35:41] Speaker 00:
In terms of the statute of limitations, you could have sued

[00:35:46] Speaker 00:
in 2014, correct?

[00:35:47] Speaker 05:
Well, the challenge, Your Honor, is 2014, if that was the finality... Please answer my question.

[00:35:53] Speaker 00:
Could you have sued in 2014?

[00:35:56] Speaker 05:
We could have sued, Your Honor.

[00:35:57] Speaker 05:
I think the government would have responded as they did in GNP, go sue Wyoming.

[00:36:01] Speaker 05:
And so our client would be stuck in this endless vicious loop.

[00:36:05] Speaker 05:
But yes, they could have, and I think the government would have taken the position it took in GNP.

[00:36:12] Speaker 05:
The other point I just wanted to make, Your Honors, with regard to the Whitney benefits, we looked at Whitney benefits very, very carefully and the Russell House case, upon which I think Whitney benefits at least substantially relies.

[00:36:26] Speaker 05:
And looking back at the Russell House case, I think

[00:36:29] Speaker 05:
There is an argument that would say, well, maybe there should be an exhaustion requirement in terms of whether the exchange is successful or not before embarking on suing for monetary damages, given, as you pointed out, Judge Dyke, that the only remedy that is in the statute is for foreign exchange.

[00:36:52] Speaker 05:
And then just the last point, Your Honor, is just a more general point.

[00:36:56] Speaker 05:
which is the jurisdictional grant and the statute of limitations I think increasingly in the United States Supreme Court with cases like Wong and Harrow, I think there's a tension in treating a statute of limitations as a clear jurisdictional bar.

[00:37:16] Speaker 05:
I think especially in this case where our clients

[00:37:20] Speaker 05:
essentially have been given the runaround for decades by the by the federal government.

[00:37:27] Speaker 03:
All right thank both counsel this case is taken under submission.