WYOMING TRUST CO. v. US
Oral Argument — 10/08/2025 · Case 24-1544 · 37:30
0:00
Judge Moore
Our next case for argument is 24-1544, Wyoming Trust v. United States.
0:07
Mr. Dubach, please proceed.
0:11
Appellant Attorney
Yes, thank you. Good morning, Your Honors.
0:13
This appeal is about when a takings claim accrues under the Tucker Act six-year statute of limitations.
0:21
The Supreme Court's 2024 decision in corner post to be Board of Governors of the Federal Reserves makes the answer clear.
0:29
The claim accrues when the plaintiff is actually injured, not when the government acts.
0:37
Here, the Court of Federal Claims dismissed our cases untimely by pegging accrual to a 1985 stated agency designation.
0:48
Corner post invalidates that reasoning.
0:51
The exchange program here is optional, right?
0:55
The exchange program is optional, Your Honor.
0:59
Judge Dyk
So how can something...
1:00
Appellant Attorney
That's optional, delay the running of the statute of limitations.
1:04
So the issue is that the date that the lower court pegged the accrual to was Bolivio Valley floor determination,
1:18
which was an action by the state of Wyoming.
1:22
It was not when there was cognizable injury by the plaintiff.
1:26
Judge Dyk
I don't think you're addressing my question.
1:28
How can something which is optional...
1:30
Delayed the running of the statute of limitations.
1:33
How can that be a necessary part of your cause of action?
1:38
Appellant Attorney
The exchange mechanism is the mechanism that is in the Service Mining Control Reclamation Act.
1:49
It was the remedy that our client was asking for pursuant to the ABF determination.
2:00
There's no other remedy that we see under the statute, and we don't...
2:08
Judge Moore
Let me make your argument a little more streamlined so we can make sure I understand it.
2:12
Is your argument in response to Judge Dyke that the Constitution requires taking without just compensation?
2:19
And we, maybe there was a taking earlier, but we were still under the belief that we were going to receive just compensation,
2:26
and it wasn't until we didn't that we had a cognizable act.
2:30
Do we have to agree with you that your claim does not...
2:34
And I'm not going to say starts running, because there's a difference between claim accrual and the statute of limitations,
2:39
and our case law has made that clear.
2:40
But is your argument that the statute of limitations didn't start ticking for you
2:45
until you knew both that there was a taking and that taking was not going to be justly compensated?
2:51
Is that what we have to agree with in order to find for your client?
2:55
Appellant Attorney
That is correct, Your Honor.
2:56
We believe that the date where the...
3:00
injury became cognizable was August 2017,
3:03
when our client was told that the value of their 138 million tons of coal was...
3:09
Judge Cunningham
What about the October...
3:10
Judge Moore
Yeah, you're going to say the same thing I'm going to say, so go for it.
3:12
Judge Cunningham
Yeah, I think we're going to say the same thing.
3:14
But what about the October 4th, 2016 date?
3:17
Weren't you at least aware by then that there would be the zero dollar valuation?
3:23
Appellant Attorney
Yeah, so with regard to the August 2016 claim, Your Honor...
3:26
Judge Cunningham
No, October...
3:28
Appellant Attorney
October, excuse me, October 2016.
3:29
Excuse me, Your Honor.
3:31
Our position is that that was not a final determination.
3:34
There were negotiations and discussions that went on subsequently.
3:38
Judge Moore
Yeah, but that has something to do with...
3:40
Notice, first off, you didn't even put the October 2016 letter in the record.
3:45
It's not even in here, so we don't have it.
3:46
But what we do have is your complaint, and this is a 12B case.
3:50
So that's what we use to understand all the facts in the record.
3:54
And your 12B complaint expressly says that your client received...
3:59
No valuation in October of 2016 from the board, agency, whatever it is that gave it to you.
4:06
So the clock starts ticking.
4:08
You knew as of October of 2016, the government was saying,
4:12
you're not getting any compensation.
4:14
You're getting zero.
4:16
Appellant Attorney
Yes, so our position is that that October 2016 letter was not a determination
4:23
that it was actually zero because there were negotiations...
4:27
Judge Moore
That may be your position now.
4:29
But I look at this under the rubric of your complaint.
4:34
Appellant Attorney
Right.
4:34
Judge Moore
Your complaint doesn't say that.
4:36
Your complaint says we were notified in October 2016.
4:39
You're trying to supplement the record right now with attorney argument.
4:43
Irrelevant to me.
4:44
What I have to decide is based on the complaint.
4:47
And your complaint makes an assertion.
4:49
We were told officially.
4:52
We were informed.
4:53
In October of 2016, zero dollars.
4:56
It doesn't say, but not...
4:59
Final, still under negotiation, all that other stuff.
5:02
This is all just attorney argument.
5:03
I don't decide based on that.
5:05
I decide based on your complaint and the allegations therein.
5:09
So why is Judge Cunningham's point not the exactly correct one?
5:13
You alleged that in October of 2016, you were clearly and definitively put on notice.
5:19
Appellant Attorney
Yeah, perhaps the complaint could have been better worded, Your Honor.
5:23
The reason we included the 2017 letter and not the 2016,
5:29
Appellant Attorney
Well, because the reason we included 2017, because you're not out of the statute of limitations.
5:34
If you included 2016, you would be in trouble.
5:37
That's outside your time zone.
5:39
Appellant Attorney
And it's the government's position that it was the 2016 letter.
5:42
The government didn't provide that letter either when it made the claim that it was 2016.
5:48
Judge Moore
Well, they don't have to, because they got your complaint.
5:50
They don't have to provide the letter, because your complaint states that on its face.
5:57
Appellant Attorney
Again, Your Honor, I think the complaint...
6:00
Perhaps was not as clearly worded as it should.
6:03
Our position is that the valuation, the $0 valuation became final in August 2017.
6:11
Judge Cunningham
Well, should we look at the complaint?
6:13
Why don't we just pull it on out?
6:15
Appellant Attorney
Sure.
6:15
Okay, let's do it.
6:17
Judge Cunningham
Appendix page 20, paragraph 41.
6:21
I feel like I'm seeing some language that seems pretty clear to me that says value of $0.
6:40
Well, even more, it says BLM formally rejected.
6:45
Judge Moore
CMP valuations.
6:47
Appellant Attorney
Right.
6:47
The issue there, though, Your Honors, is that it was only subsequent to August 2016
6:54
that our clients found out about the assumptions that were underlying that $0 valuation.
7:01
And so the...
7:03
Judge Cunningham
I think you meant August 2017, right?
7:05
Because...
7:05
Appellant Attorney
August 2017.
7:06
Your argument.
7:07
Judge Cunningham
I'm not saying I'm agreeing with you, but I'm keeping a record check.
7:10
I apologize.
7:10
Appellant Attorney
That we did not know the underlying assumptions behind the...
7:15
That $0 valuation...
7:17
Who cares?
7:17
Judge Moore
How does that have any impact?
7:19
You were, according to your language, formally rejected and received a $0 valuation.
7:24
You're on notice.
7:25
Who cares if you don't understand what valuations or numbers or logic or considerations went into the determination?
7:32
The determination was made.
7:34
You were put on notice.
7:35
The federal government thought it was worth $0.
7:39
Tick, tick, tick, tick, tick, tick, tick.
7:41
Statute of limitations.
7:42
Appellant Attorney
Yeah, again, the position that we're taking, I appreciate all of that, Your Honors.
7:45
I think the position...
7:46
As we see it, is that that was not final until August of 2017, where the government essentially rejected different exchange parcels that were...
7:57
Judge Cunningham
Do you have any case law to support up your argument that really August 2017 needs to be the right date?
8:03
It seems to me that you're making some argument that we should ignore this October 2016 date because of the lack of finality.
8:10
What's your support for that?
8:11
Appellant Attorney
So the argument would be that it was only in August 2017.
8:15
That there was a cognizable injury under the framework in Corner Post.
8:21
Judge Moore
Now, I want to back it up because, I mean, the 2016 thing seems to be a problem for you.
8:28
But Judge Dyke asked a couple of questions, and I don't really feel like we've flushed them out.
8:33
So let's just talk a little bit about the facts.
8:35
So Congress passes a law in, was it 1985?
8:39
Appellant Attorney
The initial law, Your Honor, was 1977.
8:42
Judge Moore
1977.
8:43
The SMCRA.
8:44
The SMCRA.
8:45
The SMCRA.
8:46
And what that law said is certain people with certain types of land would not be allowed to mine the coal on their own land.
8:55
And was it for environmental reasons?
8:57
Exactly right, Your Honor.
8:58
Okay.
8:59
Exactly right.
8:59
But at that point when they passed that statute, who knows which land it is, right?
9:04
Like your clients, the Hall family probably didn't necessarily know that that statute impacted them.
9:11
Is that correct?
9:13
Judge Dyk
That is correct, Your Honor.
9:14
But they learned that in 1985.
9:16
They learned in 1985 that it did when the WDEQ determined that there was an alluvial floor issue here that you couldn't mine, right?
9:25
That is correct, Your Honor.
9:27
So at that point you could have sued for a taking, right?
9:30
Appellant Attorney
Well, there are.
9:31
Yes, no?
9:32
I would say no, Your Honor, because at that point there was no cognizable injury.
9:39
The state of Wyoming had delineated as, I guess, a geological exercise the scope of the alluvial valley floor.
9:45
Judge Dyk
That seems to be inconsistent.
9:46
That seems to be inconsistent with the Supreme Court decision in NIC, 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.
10:01
Okay.
10:02
Appellant Attorney
So with regard to the NIC case, Your Honor, our reading of it is that the Supreme Court is saying there's no exhaustion of state remedies.
10:14
NIC doesn't specifically.
10:16
We refer to the term accrue, which is what Corner Post discusses subsequently.
10:25
Judge Dyk
NIC says you can sue when the injury happens without going through a process to determine what the extent of the compensation is.
10:33
Appellant Attorney
The other issue there, Your Honor, is who.
10:34
The other issue there, Your Honor, is who.
10:36
Right.
10:37
That is correct, Your Honor, but the issue is who our clients would sue.
10:41
They couldn't sue the state of Wyoming.
10:44
Wyoming was just effectively.
10:46
It was just effectively a geological exercise to delineate the scope of the alluvial valley floor.
10:53
Judge Dyk
So all these cases where people sued when they got a determination that they couldn't mine, they were suing prematurely, right?
11:00
Appellant Attorney
Well, in those cases, Your Honor, like, for example, Nance and Whitney Benefits.
11:04
For example, in the Nance case, the plaintiffs did try to go through the administrative process of the exchange before suing.
11:14
Right.
11:15
Right.
11:15
Right.
11:16
Right.
11:16
Because who would the client sue?
11:17
So, for example, by analogy to the GNP case, if the plaintiff had sued the state of Wyoming,
11:23
the state of Wyoming would say this has nothing to do with us.
11:26
We're just delineating the alluvial valley floor that we are then going to certify to the Secretary of Interior for an exchange.
11:32
If the plaintiff were to have sued the federal government,
11:35
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.
11:41
It has to do with the state of Wyoming.
11:42
Judge Dyk
That's a different issue then.
11:43
That's the Great Northern issue as to whether it's the U.S.
11:46
or the state.
11:47
But in terms of the final determination that you can't mine that was made in 1985 over done with,
11:55
you ought to be able to sue at that point.
11:57
And the Supreme Court said you can't sue in the Nick case.
11:59
Appellant Attorney
Well, the other issue with the 1985 determination, Your Honor,
12:02
is the federal government itself didn't accept that alluvial valley floor determination.
12:07
And our client had to engage in litigation.
12:10
And it was not until 2014 when the federal government accepted that.
12:16
Right.
12:16
And it was not until 2014 when the federal government accepted that alluvial valley floor determination.
12:17
And in their briefs, the government tries to shrug that off in a footnote and say,
12:21
oh, that was just a temporary position we took.
12:23
But even the federal government didn't believe that that was a final.
12:26
Judge Moore
And if the federal government didn't believe that your clients were properly classified as having property within the AVF,
12:33
they would not therefore have to compensate under the SMCRA.
12:36
Is that correct?
12:38
Appellant Attorney
That is correct.
12:39
But then our client was able to mine in that land if it's not.
12:43
I'm sorry.
12:44
Judge Moore
Can you try one more time?
12:45
Appellant Attorney
Oh, yes, sir.
12:46
So if it was determined not to be in an alluvial valley floor,
12:50
then the argument would have been that our client could have mined on that land.
12:53
The reason our client can't mine on the land is because of the determination that it's an alluvial valley floor.
12:57
Judge Dyk
Which was resolved in 2014.
13:00
Appellant Attorney
It was resolved in 2014.
13:03
The other thing I just want to add.
13:04
So you could sue in 2014 because you couldn't mine.
13:08
Well, the whole premise behind that litigation was that the government was going to do an exchange.
13:13
So the whole point and the reason why our clients went through that litigation,
13:16
was to do the exchange.
13:18
What we've seen in the case is...
13:20
Judge Moore
So what...
13:20
This is out of curiosity.
13:21
I don't understand this.
13:22
When they do an exchange,
13:23
so if the government says,
13:24
you've got property and we're not going to let you mine the mineral rights,
13:27
which are yours under,
13:28
and in this case it was what,
13:29
like 150 million?
13:31
Appellant Attorney
138 million tons, John.
13:32
Judge Moore
138 million tons of coal.
13:34
Correct.
13:34
So the government says,
13:35
you can't mine your 138 tons of coal because we've decided if we let you do that,
13:41
it would have a negative impact on the environment.
13:43
So what is the government supposed to do by way of compensation?
13:46
Appellant Attorney
So what the government is supposed to do by way of compensation
13:49
is after the Olivia Valley floor determination,
13:53
propose an exchange to the plaintiffs of comparably valued land to do an exchange.
14:00
Judge Moore
So I have a dumb question.
14:01
I really don't know what this means.
14:03
Does this mean they give you different land if they go mine this other land?
14:06
Or do they just give you the dollar value of what the coal would have been
14:11
had you been able to mine it?
14:13
Appellant Attorney
Excellent question, Your Honor.
14:14
So what they are supposed to...
14:16
What they are supposed to do is give another parcel of land.
14:18
There have been cases where the government has unilaterally decided to pay
14:23
instead of give the other parcel of land.
14:26
But the way the provision is structured...
14:28
Judge Moore
And where does this other land come from?
14:29
They're like, oh, here, go mine the National Park.
14:32
What?
14:32
Appellant Attorney
I don't understand.
14:34
No, no, that's an excellent question.
14:35
So it would be a tract of federal land that would be mineable.
14:42
And the history of these exchanges, unfortunately,
14:45
is that very, very few...
14:46
Very few of them have actually been carried out.
14:49
Judge Moore
So if they don't give you a parcel of land that you could, in fact, mine
14:54
to get your 138 million tons of coal, does that sound right?
14:59
That's exactly right.
15:00
If they don't do that, they're supposed to pay you for what the value of that would have been.
15:05
Now, it's fair for them to minus from the value the expense you would have incurred in mining it, right?
15:12
Correct.
15:13
I don't understand how they came up with zero in this case.
15:15
Like, you have $138 million.
15:17
$138 million tons of coal, but it's worth zero?
15:18
Appellant Attorney
This is exactly our contention, Your Honor.
15:21
Going back to Judge Cunningham's question, that's why our client doesn't...
15:25
Judge Moore
Is it because, like, it was the core of the center of the world, like, journey to the center of the earth,
15:30
and that's the only way you could have gotten it?
15:31
I mean, what is the government's reasoning for why it's worth zero?
15:35
Appellant Attorney
Our understanding...
15:38
Judge Moore
I mean, $138 million tons of coal sounds like it's worth something.
15:39
Appellant Attorney
Yeah, it's an excellent point, Your Honor.
15:41
Our understanding, and it goes to Judge Cunningham's question as well,
15:45
is that they used...
15:47
different assumptions that were not assumptions that were per their regulations,
15:53
and we only found out about that after October 2016.
15:56
Judge Moore
So what avenue for redress do you have for that?
16:00
Is that an APA challenge?
16:02
That's what I'm wondering.
16:03
There has to be some way for you to challenge it,
16:06
and if it's not in this case, I want consolation in my own brain
16:10
that there is some other mechanism by which you could challenge that action.
16:14
Appellant Attorney
There is an APA claim.
16:17
It's ongoing, Your Honor, in the federal district court in Wyoming
16:19
and also in the district court in the District of Columbia
16:24
with regard to...
16:25
And now the phase is to do evaluation of the land.
16:28
The issue is that that would be prospective relief.
16:31
It would not take into account the harm that we allege our client
16:34
to suffer from all of the delays
16:36
and the difficulties that the government has created for our client.
16:40
Judge Moore
All right.
16:41
I think we'd better hear from the government.
16:43
Let's give Mr. Harmon a chance.
16:44
Appellant Attorney
Thank you, Your Honors.
16:52
Appellee Attorney
Good morning, Your Honors.
16:53
Brian Herman for the United States.
16:54
May it please the court.
16:56
Judge Moore
Before we jump into the time bar, and trust me, we will,
16:58
would you address the stuff we were just addressing here at the end,
17:01
which is how could the government come up with zero?
17:05
Like, how can they have 138 million tons of coal
17:09
that they actually leased to Exxon?
17:11
I hope I didn't say anything confidential.
17:12
They actually leased to Exxon, and Exxon was intending to mine
17:16
until this law was passed and said, nope, you can't mine this.
17:21
How can the U.S. government have turned around?
17:23
And looked at that same thing and said, yeah, well, it's worth zero.
17:27
I mean, Exxon didn't think it was worth zero.
17:29
Appellee Attorney
So, Your Honor, the shortest answer, as I understand it,
17:32
is that the cost of coal in the market versus the cost of mining it
17:36
and getting it to market, given where the mine is located,
17:38
is the reason for the zero dollar claim.
17:40
Judge Moore
Okay, but Exxon didn't think it was worth zero.
17:44
Should I have confidence the U.S. government is better at valuing it than Exxon?
17:48
I mean, Exxon's got a whole board.
17:49
They're responsible for somebody.
17:51
They thought it was worth something.
17:53
They came in.
17:53
And they were willing to pay this family for the right to mine the coal on their land.
17:58
So how could those two things coexist?
18:02
Exxon, a private company that I don't think is generally run by stupid people,
18:06
decided it was worth something.
18:07
And then the U.S. government comes in and says,
18:09
psh, Exxon, I don't know what they're talking about.
18:11
138 million tons of coal isn't worth anything at all.
18:14
Appellee Attorney
Your Honor, Exxon thought so, but then it walked away.
18:17
It did not pursue the exchange because of the values involved.
18:19
But I want to express something important, that that valuation is not necessary.
18:23
As my colleague mentioned, there are two district court litigations over the valuation.
18:29
There is also a citizen's...
18:31
Judge Dyk
Over the valuation of this property?
18:33
Appellee Attorney
Over the valuation of this property, Your Honor.
18:34
And there are actually...
18:35
Judge Dyk
And so what is the relief that's sought in that case?
18:38
The parties are pursuing a re-evaluation of the coal lands.
18:41
So in other words, they're arguing that there should be a permissible exchange because the property had value.
18:47
Appellee Attorney
That's the argument, yes, Your Honor.
18:49
And it's my understanding that the settlement agreement is that the parties will re-evaluate the haul.
18:53
A ranch coal to see if an exchange could be affected.
18:56
Judge Cunningham
Is it true that it would only be prospective relief as opposing counsel indicated?
19:02
In terms of relief sought in that other case?
19:04
Appellee Attorney
I don't exactly know where he's trying to draw the line.
19:08
But if an exchange is effectuated, then there's a conveyance of the fee.
19:11
The Wyoming Trust and its entities would receive the fee in other federally owned coal lands
19:16
in exchange for the lands subject to the AVF decision here.
19:22
But as to that AVF decision, Judge Dyke, your earlier question...
19:25
I think that's super correct.
19:26
1985 is the pivotal year.
19:29
Judge Moore
How could that be so if the government even disputed, or if there was at least an argument raised
19:35
that the government was not in agreement that a particular tract of land was properly determined?
19:40
Because when Wyoming, I know you ceded certain authority to Wyoming, and I get that.
19:45
So Wyoming comes along and says, this is an AVF tract.
19:48
Well, that designation would theoretically bind the government to this exchange possibility
19:54
where the government would have to...
19:55
It would have to give federal land or alternatively pay money.
19:58
So my understanding is, even though this determination by the state of Wyoming is,
20:03
this is an AVF piece of property, that the government itself disputed whether that was correct
20:10
and that that dispute continued because the government didn't want to be liable.
20:14
They didn't want to have to pay the money or do the exchange.
20:16
And that dispute continued until 2014.
20:18
So if that's true, how can you stand here and say to me that it's the government's view
20:24
that it was definitively resolved?
20:25
In 1985, when the government actually disputed that very fact, at least in 2014.
20:31
Now, you can jump, you can walk away, you can get yourself out of a lot of trouble right now
20:36
and walk away from 1985 and just say, well, Your Honor, let's just focus on 2014.
20:42
But if you want to keep defending 1985, please continue to do so,
20:46
because that would make it more fun for these students.
20:48
Appellee Attorney
Your Honor, I will.
20:49
But I will start by saying, 2014, you're right.
20:51
Certainly by 2014, the litigation had ended.
20:54
And BLM, for its part...
20:55
...for its purpose, had conceded the ABF decision from Wyoming DEQ.
20:58
Judge Dyk
But why was the government disputing the determination?
21:03
Appellee Attorney
It's my understanding, Your Honor, that they were disputing the exact acreage involved,
21:07
not the ABF decision itself, but how much acreage.
21:10
There's reference in the complaint to about 900 some-odd acres versus 1,600.
21:15
Judge Dyk
But that, Your Honor...
21:16
So the government was arguing that there should be more acreage than had been determined?
21:20
Less, Your Honor.
21:21
Less.
21:22
Judge Moore
Yeah, they don't want to pay all the money, so they want it to be less.
21:24
Appellee Attorney
But, and she said...
21:25
Ms. Moore, you're correct that, certainly by 2014, whatever dispute was at issue was resolved.
21:29
BLM agreed with the WDEQ decision, and plaintiffs didn't sue until nine years, nine-plus years later.
21:34
Claim barred. Case over.
21:35
But 1985 is correct, and I want to turn to that.
21:38
The CFC was right, because we have to think about what is the claim.
21:42
It's a regulatory takings claim.
21:44
A regulatory takings claim accrues when regulations are applied to restrict an owner's use of property.
21:50
That came in 1985, and as plaintiffs themselves point out in their complaint,
21:55
the Wyoming DEQ is the sole and exclusive decision-maker on this ABF question.
22:00
By 1985, there was no longer a question how the Wyoming surface mining law applied to the Hall Ranch property.
22:07
Judge Moore
Okay, suppose, and this is just a hypothetical, because I don't know all the specific facts the way you do,
22:12
but suppose, in fact, Wyoming says a 1,600-acre parcel is all ABF land,
22:19
the government's going to have to pay for this exchange, we're not going to let them mine.
22:22
And the government comes along and says, no, we're not paying anything.
22:24
We don't believe a single acre.
22:25
We don't believe any of the land is ABF land.
22:28
We don't believe it's subject to any restrictions, and we don't believe we should have to pay for anything.
22:33
You still think, at that point, they're on notice, clear notice, that the government has taken their land,
22:39
and that the government has got to pay them just compensation?
22:43
Appellee Attorney
They are on notice that the party with the authority to control their mining has restricted them from doing so.
22:48
So Wyoming became a primacy state in 1980.
22:51
So as of 1980, it's not SNACRA that applies.
22:53
It's Wyoming surface mining law.
22:55
It applies, and its regulatory entity applied its law to Wyoming Trust in 1985.
23:01
To your honor's hypothetical, if that was the case through the citizen supervision,
23:06
SNACRA provides the district courts with jurisdiction to sue—
23:09
Judge Moore
That is a catchy little name for SMCRA, but so you're saying in 1985 they should sue Wyoming—
23:17
Yes.
23:18
—for designating their land, and their taking this case would be against the state, not the government?
23:24
Appellee Attorney
The state of Wyoming.
23:25
Yes, your honor.
23:26
That's what we held in Great Northern.
23:28
Correct, your honor.
23:29
In Great Northern, there was an allegation that Montana was effectively acting for the federal government.
23:34
That it was coerced, or it's an agent, and this court rejected that because Montana, like Wyoming here,
23:39
was a primacy state who enacted the law of its own sovereignty.
23:42
Judge Moore
Do you agree that we have held, in cases, there's a difference between claim accrual and the statute of limitations?
23:48
Appellee Attorney
The court has acknowledged that there's a difference, but I'm not aware of an application where it is done so.
23:53
And there's a case—
23:54
I can't recall it off the top of my head, and it might be actually the court's rail trail jurisprudence.
23:58
It might even be called that.
23:59
Judge Moore
It is rail trail jurisprudence, and I wrote it.
24:01
But in any event, so there is a difference, though, because if you think about it here,
24:07
do we expect or even want them to run to court when Wyoming made the decision that the federal
24:15
government has come along, and the federal government's the payee, not Wyoming?
24:19
Wyoming's not the payee.
24:20
Wyoming could decide that, like, hundreds of thousands of acres are ABF.
24:24
And that would bind the government.
24:26
So the government has to be the ultimate sort of arbiter on what is included in this program and what is not,
24:33
even though the government delegated to Wyoming the initial authority to designate ABF land.
24:39
But the government disputed that designation.
24:42
Do we really want—if the government disputed that any portion of the land should be considered ABF,
24:47
and the government's like, we're not paying you a penny, we don't think anything should be ABF,
24:50
feel free to mine away, at that point in time, is it really reasonable?
24:54
Would it be reasonable to respect a property holder to run to court?
24:58
Or wouldn't it be reasonable to imagine that they wait for the resolution of this dispute
25:05
since the federal government says their land is not ABF land, or disputes it?
25:09
Appellee Attorney
No, Your Honor.
25:10
The federal government is not the payee here, and I want to make clear the exchange mechanism is separate.
25:14
As Judge Dyck asked earlier, it's an optional path towards compensation,
25:19
but Wyoming is the exclusive authority in applying Wyoming law,
25:22
as Wyoming trusts itself.
25:24
This is Appendix 14.
25:26
The ABF determination, quote, is entirely within the state of Wyoming's authority, not BLM's.
25:32
Judge Moore
See, this doesn't make sense to me.
25:33
So are you saying to me that the SMCRA has passed,
25:36
which says that people for environmental reasons can't mine their home?
25:41
That's a federal law.
25:43
That federal law delegates to the states the authority to choose within the states
25:48
which parcels of land fall within this federal prohibition.
25:52
Does that sound accurate?
25:54
Appellee Attorney
No, Your Honor.
25:55
So it provides for cooperative federalism, and the Great Northern Properties case explores this.
26:00
The SMCRA is not delegating any federal authority.
26:03
SMCRA says that if a state wishes to regulate surface mining in its borders,
26:08
it can apply for its program to the Secretary of the Interior,
26:11
and that the Secretary of the Interior can approve it if it meets certain minimum thresholds.
26:15
The Secretary of the Interior did so here for Wyoming in 1980,
26:19
and it's at that point that SMCRA chops out.
26:22
It's the WEQA, I believe it is.
26:24
It's the Wyoming Surface Mining Law that then applies.
26:26
So from 1980 onward, it's Wyoming using Wyoming law, its sovereign authority,
26:30
to determine who can mine in the state.
26:33
And here, its regulatory agency did that in 1985.
26:37
Judge Dyk
I'm confused about what the litigation was.
26:39
Was the litigation by the federal government challenging that 1985 determination by Wyoming?
26:47
Appellee Attorney
No, Your Honor.
26:48
I believe Wyoming trusted the United States because BLM was not willing to engage in the exchange that it sought.
26:54
It was a challenge based on the WDEQ decision.
26:56
But I'm not overly familiar with the 2010...
27:00
Judge Dyk
I'm sorry, it wasn't a challenge to the 1985 determination?
27:05
Judge Moore
It was a challenge, I think, I could be wrong,
27:09
I think it was a challenge to the 1985 determination by the government
27:12
because the government has this voluntary on the property rights holders part,
27:18
but not voluntary on the government exchange program.
27:21
And the government did not want to be bound,
27:23
to have to participate in this exchange over this ginormous parcel of land,
27:27
the 138 million tons of coal.
27:29
That's what I think happened, I could be wrong.
27:32
Appellee Attorney
So, Your Honor, regardless of what BLM may have...
27:35
Sorry, go ahead, go.
27:39
Regardless of the BLM's view of the WDEQ decision in 1985,
27:43
the BLM, as Wyoming Trust itself says in its case, is not the decider.
27:48
Wyoming DEQ issued the only restriction on Wyoming Trust property in 1985.
27:53
Well, I mean...
27:54
Judge Dyk
In any event, that was resolved by 2014.
27:56
Absolutely, Your Honor.
27:57
And at that point, it was clear they couldn't mine it,
28:00
and their only potential remedy was to seek the exchange, correct?
28:04
Appellee Attorney
Or sue in the Court of Federal Claims if the 2014 date was correct.
28:08
Judge Moore
Well, so in this case, by 2014, it was resolved,
28:12
but what about the compensation piece?
28:14
I mean, can you bring a claim for takings without knowing
28:21
and without knowing you're not going to receive just compensation?
28:25
What I mean by that is, like, if the government says,
28:27
I'm going to take your land and I'm going to pay you millions of dollars for it,
28:31
then you've been compensated.
28:33
They don't really have a cause of action.
28:36
Appellee Attorney
If they compensate you before taking it, you don't have a cause of action.
28:40
But Nick makes clear that if you take the property without having paid them,
28:43
you have your cause of action and you're taking sling accrues then,
28:46
regardless of post-deprivation revenues.
28:48
Judge Moore
But what about exhaustion?
28:49
Now, we say you could take it without compensating them.
28:51
The government...
28:52
The government enacted this BLM program.
28:54
The program property rights holders could opt in.
28:57
The theory behind that program is it would justly compensate them for what was taken.
29:02
So we have a scenario here where at the time their land was taken,
29:07
they were informed by both Wyoming and the federal government
29:11
that there existed a program under which they were going to be compensated.
29:15
So why doesn't this fall into that selection of cases that says
29:19
a taking with compensation is not...
29:22
not ripe, but a taking without compensation, you know, is ripe.
29:26
Why doesn't this fall into the...
29:28
They...
29:29
It was fair for them to delay in filing suit until they knew that the program
29:34
the government promised would compensate them wasn't actually going to.
29:39
Why isn't it fair that this falls into that other section?
29:42
You...
29:42
I think I'm right in saying there's a delineation of cases, right?
29:45
If the government compensates you when they take, no problem.
29:49
Why isn't this a scenario where the government...
29:52
is pledging to compensate you when they take?
29:55
They've got a program, in fact, that'll do so, and they weren't aware of a conflict
29:59
until they realized the compensation wasn't adequate because it was zero.
30:03
Appellee Attorney
Because the government's not pledging to do so, and this court rejected that exact argument
30:07
40 years ago, but three months after the Wyoming DEQ made its decision in this very case.
30:12
And I'm referring to the 1985 Whitney Benefits decision.
30:15
This court held, quote,
30:17
the major premise that pursuit of an exchange transaction must occur in beyond
30:22
and unsuccessful foretaking can occur is a misconstruction of the governing statute.
30:26
The exchange remedy is optional at the choice of the plaintiff,
30:30
but they also have the chance to sue, the holding of which benefits that...
30:36
Judge Moore
But isn't this one of those cases where this distinction between claim accrual
30:39
and statute of limitations maybe would be at its apex then?
30:43
You have a promise by the government to compensate that then goes unfulfilled.
30:49
And isn't it fair for a property...
30:52
Right.
30:53
...rights holder to trust that the government will justly compensate them,
30:56
and only when they realize they're not going to be, to then bring suit?
31:00
Appellee Attorney
No, Your Honor. First off, it's not a promise to compensate. It's a land exchange.
31:03
And as this court made clear in Whitney...
31:05
Judge Moore
What's the point of a land exchange? You have to actually exchange land with them
31:08
that gives them the exact number of whatever tons of coal they had.
31:13
Appellee Attorney
It's not by tons of coal, Your Honor. It's based on flint as equal value,
31:16
and so it's about the value at issue.
31:18
Judge Moore
Yes. Fair enough. It's about coal taking into account the difficulty of
31:22
extraction.
31:22
And there's an amount of dollar value assessed to that, and then we're going to give you a piece
31:26
of land that allows you to extract coal and end up with the same dollar value.
31:31
It's still compensation.
31:32
Appellee Attorney
Your Honor, what I point to in my dwindling time here is, again, this court's holding...
31:36
Judge Dyk
There's no provision in the statute for payment of money, right?
31:39
It's only an exchange program for other coal lands.
31:41
Appellee Attorney
That is correct, Your Honor. One of the reasons in Whitney Benefits this court
31:44
held that it was an optional path was because it questioned the constitutionality of forcing
31:48
you to take land instead of money under the Fifth Amendment.
31:52
And so I just...
31:52
I'm going to close by pointing the court to 1558, where it says,
31:56
We hold, therefore, that the pursuit of a substitution or exchange transaction
32:00
under Section 1260 is not a mandatory remedy but is optional with the landowner,
32:06
retains also the option of suing the claims court for money without such pursuit.
32:10
You can't do that. You can't sue in the claims court if you don't have a right claim,
32:14
a claim that has accrued.
32:16
Judge Cunningham
Okay. Before you sit down or anything like that, I want to just circle back on a couple things and
32:21
just kind of sum it all up. 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.
32:22
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.
32:23
It sounds like you're definitely arguing that you think accrual begins in 1985,
32:27
but we've also talked about a series of other dates.
32:31
It sounds like you're open, possibly, to at least 2014 as the latest,
32:36
and whether we're looking at 2014 or 1985, we even also discussed 2016,
32:42
all of that would still lead to a situation where there would be a time-bar claim.
32:47
Is that fundamentally your argument?
32:50
Yes.
32:51
Judge Moore
Well...
32:52
Yes.
32:53
Yes.
32:53
Building on Judge Cunningham, we never gave you a chance to address 2016.
32:56
Tell us why, because a lot of sympathy here for this one.
33:01
Why would 2016 be a date that would time-bar them?
33:05
What do we have in front of us that would suggest that they, for sure, knew about the rights of 2016?
33:11
Appellee Attorney
So, Your Honor, let me preface that by my answer is that this is all based on plaintiff's argument
33:16
that compensation is required on them.
33:18
We disagree with that, but if that's true, if that's the framework we're looking at,
33:21
then I would point certainly to Appendix 20,
33:22
which is paragraph 41 that Your Honor has read earlier,
33:26
because it's not just some open question.
33:29
The plaintiffs themselves write BLM formally rejected their own valuation
33:32
and that the DMA, the BLM office, found that the Hall Branch Coal has a value of $0.
33:39
That put them on notice, and you can look for that to Appendix 24, which is paragraph 48,
33:45
when they describe the letter their own attorney wrote back to BLM complaining about some things,
33:51
including, quote,
33:52
DME's assumptions.
33:54
The Wyoming Trust knew in 2016 that their VA had a $0 valuation.
34:00
That certainly was the very last point in time at which there was any question,
34:03
even under their own theory, and August 2017 doesn't clarify that.
34:08
If you look at paragraph 62, this is Appendix 29, the August 2017 discussion talks about
34:15
rejecting a particular tract and proposing others.
34:19
That's not any formal valuation of $0.
34:21
That's not any formal valuation of $0.
34:22
It's an ongoing discussion in light of the existing 2016 valuation.
34:27
Thank you.
34:28
Judge Moore
Thank you, counsel.
34:29
Do you have some rebuttal time?
34:32
Yes.
34:33
Thank you.
34:34
Make it three minutes.
34:36
We went over with the government.
34:37
Appellant Attorney
Thank you.
34:38
Thank you, your honors.
34:39
I'll be brief.
34:40
I just wanted to point out just a few things.
34:44
First of all, the difference between the 1985 date and a possible date that begins after 2010,
34:52
we would argue, is very significant.
34:54
Even in the lower court opinion, which was not favorable to appellants, the judge did
35:02
draw a distinction between the behavior that we documented that the government carried
35:06
out beginning in 2010.
35:08
And so, if the court were to consider a date that starts after 2010, we would argue it's
35:15
very different from 1985.
35:17
Second point, I just wanted to...
35:20
Judge Dyk
Do you agree that you could sue in 2014 at the latest?
35:24
Appellant Attorney
Yes.
35:24
In 2014, your honor, the claim had not accrued, and it was still unclear who...
35:32
Judge Dyk
You're not answering my question.
35:33
Could you have sued for a taking in 2014?
35:37
Sued whom, your honor?
35:38
The Wyoming or the federal government?
35:40
The U.S. government, in terms of the statute of limitations.
35:43
You could have sued in 2014, correct?
35:47
Appellant Attorney
Well, the challenge, your honor, is 2014, if that was the finality of...
35:52
Judge Dyk
Please answer my question.
35:53
Could you have sued in 2014?
35:55
Appellant Attorney
We could have sued, your honor.
35:56
I think the government would have responded as they did in GNP, go sue Wyoming.
36:01
And so our client would be stuck in this endless, vicious loop.
36:05
But yes, they could have, and I think the government would have taken the position it
36:09
took in GNP.
36:11
The other point I just wanted to make, your honors, with regard to the Whitney benefits,
36:18
we've looked at Whitney benefits very, very carefully, and the Russell House case, upon
36:22
which I think Whitney benefits at least substantially relies.
36:25
And looking back at the Russell House case, I think there is an argument that would say,
36:31
well, maybe there should be an exhaustion requirement in terms of whether the exchange
36:38
is successful or not before embarking on suing for monetary damages, given, as you pointed
36:43
out, Judge Dyke, that the only remedy that is in the statute is for foreign exchange.
36:51
And then just the last point, your honor, is just a more general question.
36:54
I think it's a general point, which is the jurisdictional grant and the statute of
37:02
limitations, I think increasingly in the United States Supreme Court with cases like Wong
37:08
and Harrow, I think there's a tension in treating a statute of limitations as a clear
37:15
jurisdictional bar.
37:16
I think especially in this case, where our clients essentially have been given the run
37:22
around for decades by the
37:24
by the federal government.
37:26
Judge Moore
All right.
37:27
I thank both counsels.
37:28
This case is taken under submission.