Legal Case Summary

The case for argument this morning is 155069 shields versus US, Mr. McNeil. Thank you, Your Honor. And I was serving two minutes. The trial court made free legal errors when it interpreted the co-belling at least to unambiguously. Apply to the two shells facts. The first is a kind of a court and horse error. The court held that law absolutely did not require the trial court to look at context evidence before determining the plain meaning of the language. That is shown on pages 23 and 24 of the trial court opinion. And that's contrary to established form of law and the courts on precedent. As restatement, second of contract section 212 makes clear. The trial court then compounded that first error by rejecting the reasonableness of the two shells interpretation that the co-bell release does not cover the two shells facts. Do you have any arguments if the co-bell release does cover all actions up and through September 30 of 2009? Do you have any arguments that the government breached the trust in any way after September 30 of 2009 so that if you lose on the interpretation of the settlement argument, is there still any case here? Yes, two

. First of all, the government has a fiduciary duty to have disclosed information under the shifting of the issue of the case that just as Judge Hewitt had established several years ago in a case that's almost on all horse. One of the problems there was that it was a hidden type of client. It was a hidden scheme and this complaint goes into great length on the hidden nature of that scheme which literally depressed the price of the market. The government furthermore stamped on this lease to miss two shells and others, this lease is in the best interest of the Indian mineral interest owner and never changed that language. Therefore, by the time of the release, the information, the hidden nature of it and the continuing nature of it had not been revealed. So yes, I think that there is language to that effect and indeed evidence to that effect that clearly raises. And apart from that, is there any other argument, were there any other government actions after September 30, 2009 in this case? It seems like everything, all the actual affirmative actions, like the BIA approvals and things like that of the transfers, all took place prior to September 30, 2009. I just want to make sure I'm not missing any in the fact. Between 2009 and the announcement of this huge billion dollar transaction by Williams, who had been behind the scenes all along, according to our pleadings through Melamine, the government continued to ratify and do normal work on those leases. That is the evidence. Yes, but you're not a little, I thought there was an argument that you were relying on the subsequent. In other words, after you were saying that at post that date in 2009, there was this acquisition by Williams of Dakota 3

. And somehow that was when you claim a row was based on that acquisition. So you were trying to get this out from under Covell, the time track. Is that not your argument? Yes, and as our pleading says, the culmination of this scheme, the events in this scheme did not culminate until that huge roll-up occurred. Yeah, but the question there and the government, well, you know, I think it's the government's position that you can't use that date because the government had no authority over that acquisition that you are tied to the date in late 2009. You can't transcend that and say no, that's didn't arise till the acquisition because the government had no authority over that acquisition. Right? We're arguing that the government one could have stopped it. They have the right to revoke consent. They could have revoked a sign of building and they could have done something. Yes, they did not. And on that basis, you're arguing that therefore they shouldn't become under Covell because they're taught that claimed in the rise till after those actions occur? I'm arguing that that's one reason, but there are others, including the fact that the government did not give full information under Shashani of what the situation was so these folks could not conform to it. And what exactly were they supposed to disclose? There in our complaint, we've mentioned a number of things. The paragraphs of our complaint deal with the government's inside information on these reserves

. The US Geological Survey others knew this was huge. The magnitude of the difference between stripper well prices that were paid for this oil and the fact that these were the literally the richest oil and gas reserves in America history is just dramatic. And the government knew that. It wasn't a matter of finding them. They were already there. It was a matter of technology. And the government was well ahead of the curve on knowing what that technology could do. They just did not. They were just rolled over and continue to be rolled over by this improper influence which they could easily have stopped. And at what point were they, when did the study to disclose rise? I think the duty disclosed was clearly prior to Covell Selma. It should have been before the, but that's the late, that by clearly before that period. Because as Judge Hewitt points out in the Shashone case where the folks had been paid for all the interest for years, but the government failed to disclose full information that the oil and gas companies were under valuing them

. And nevertheless signed a release saying they wouldn't go after that. That release was not valid because the, because the government had not provided full information. The government asked listed in our complaint. When you say we released, do you tell him about the release under Covell that they didn't retain their right to do, that they didn't opt out of the class? Is that what you're talking about? I'm saying that prior to the Covell settlement, all this information should be revealed. We cite, for example, in the complaint details about as April of 2012, one official expressly said in the government, I didn't have time to do anything. There's other information that didn't do any due diligence. There was absolutely no due diligence. There are others that said that we were pressured and pressured and there was a land run and we just, we just folded. There's another superintendent of the BIA, or Fort Mercow, that said I wanted to get, it stepped up, but I never had time to do it. There's a lot of information that was said later after this lawsuit was actually filed and after we had had a chance in 2011 to do the actual due diligence required after this big sale was announced that was never revealed ahead of time. Those are factual inquiries. The problem here is it's way too premature to come to the decision as a matter of law and that was issues

. Ultimately, the court, after hearing the factual record, may decide that maybe these, that there was not enough or that enough information was disclosed, but it's a heavy argument, factual dispute, and it's heavily documented in this complaint, which really, if true, is quite a horror story on what happened. Is there some place specific in your brief that you make an argument that the government, though it didn't take an action with respect to the ultimate transfer to Williams, had the authority and obligation to review and intervene? Yes, and we cite the various provisions. I will get you to cite your underbut we talk about their strong authority. I ask to be clear, I asked about your brief, I didn't ask about your company. Oh, I'm sorry, yes sir, we will. We will get that to you in just one second, sir. Just briefly, let me mention the third error, and that is the court, erroneously concluding the government didn't have a duty to disclose that full information as I've already mentioned in the, in the, in the, in the, she's shown in case. And is there any aspect of, I don't have this, she's shown me opinion with me, that's from 2003, right? Yes, something. Is, is the analysis there consistent with Navajo to Jekarilla and our Hopi tribe? Yes. In terms of the demand, really quite stringent demand for specificity of the particular duty that is being relied on? Yes, it was this, this court, I mean the Court of Federal Plenty did not come to you, but the Court of Federal Plenty didn't make that ruling, it was a, right, but again, I, I want you to focus on the date 2003, the law has substantially tightened the requirement of specificity for the asserted duty since then. Okay, if I'm not responding to that, please, that's why I asked. I think, number one, the, the common law duty that's inferred even by those later cases, once there's a money mandating to do sure duty is a common law duty and this court has established that economy as well as the Supreme Court in its cases

. A common law duty by definition includes a fiduciary duty, but here we have one fact that goes one step further. The fact that some, the argument of the government is, well, we didn't have a duty to disclose, even though that's a common law duty. The problem is the government did disclose. They did tell these Native Americans, this is in the best interest of the mineral interest owner, they stamped the lease. Once that disclosure occurred, it has to remain accurate and it needs to be changed if it's, if the government knows it's not. We have played information at the government new it's not and continue to learn information that it was wrong before the cobellish settlement occurred. That's why we have asked in rule 56, whether the government, what the government knew, what negotiations it had because, as I was going to get into on my first point, rest of the restaigments second by contract section 212, which is an own interpretation of contracts cited approximately 475 times by this court in interpreting contracts. Has paragraph B or plain meaning and extrinsic evidence? And it says that, like the trial court said, it sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain, can almost never be plain except in context. In fact, the next sentence said, this principle is not limited to cases where ambiguity is already established. And then it goes on to say there are four types of evidence right here in the comment. That kind of language which you were just reading from the American law institute's non-authoritative summary of principles and it's a mix of prescription and description. Have we as a court said those things? It's a good question

. You have followed it in metrics and in Rockies. Let me give you the the four types of evidence were looking at the nature of the relationship which here was a fiduciary one at the subject matter of the transaction which was released. preliminary negotiations and statements made by the an area in which we were trying to get from the government and have cited some issues here. And the course of dealing between parties was in metrics. This court said the course of dealings between the parties was critical. And indeed, even though the language was straightforward, in the metrics case, there was this issue about lamps being replaced just before a NASA contract was completed. The government here, as it here, took to isolate position that lamps meant all lamps in this big NASA project. And the government said wait a minute, we want to go back and look at the context and the negotiations. It was found out that the government proposed that the custom and usage in the last case was that you only replaced lamps that were out. Common sense, but not what the plain language appeared to say at first glance. Rockies, the more recent case which the Trock Court didn't even address because it had just come out. Is the case where the preliminary negotiations were critical to the case as well

. And therefore, the court overruled, here was the issue there. There was a policy for policy that the government could change the contract, if policy changed, but looking at the negotiations that didn't happen. And so those two cases applied the restabilist's act. Okay, we're into your rebuttal, so when we hear from you. Thank you very much. Yes, may it please support my name is Robert Oakley. I'm here on behalf of the United States. Your honor, the Cogel versus Cells, our case was a very big deal for the Department of Justice at the United States as a whole. It was a very hard fought litigation. When on for years, I believe there are 10 appeals to the District of Columbia, I'm sorry, the DC Circuit. And so the government wanted to clean slate here. So when at night, when it finally reached the settlement with the Cogel planers, it wrote broad releases and those releases clearly encompass the claims, Ms

. Two Shields and Defender Wilson want to bring here. Those claims include claims that the government mismanaged land assets held in trust. But why isn't there still an open question at least towards review with regard to what they knew and when they knew it and what the government did? Well, actually, I thought I heard council, because if you get, if you look at the language of the settlement agreement, it applies land administration claims apply to both claims that are known and unknown. Now, if that language was wrong or unacceptable or unconscionable, someone should have raised that in the Cogel decision. But it was not, my recollection is there's no mention of that in the District Court decision. There's no mention of it in the DC Circuit decision, Supreme Court denied cert. And so that's the end of the matter. Maybe we can't speculate, well, what if that issue had been raised? But it was both known and unknown. Secondly, I heard- But in a circumstance, hypothetical circumstance, if the government had intentionally hidden or kept away information to allow plaintiffs to know that they might have had a cause of action, are you suggesting that nonetheless Cogel would bar that cause of action? That's interesting in your honor, because I have in the back of my head, but I'm reluctant to as a firm principal, a law, because it is in the back of my head that there's a difference between intentional concealment. And in other words, that someone took active measures to not inform someone of information that they had a duty to do so. But that suggests that perhaps there is some ambiguity in the language of the Cogel settlement with respect to what it means to say known or unknown. Well, they have never developed in their briefs any argument that the government actively was hiding information

. And in fact, they say- If they say- I mean, the problem is to use the word they were never developed. Okay. And your friend would say, well, yeah, and we want an opportunity to develop it through discovery and otherwise. And also though, my friend alleged in his complaint over several pages how much information there was out there including some information that Niz Tushil participated in where there was a belief in this area and in Indian country, particularly in this area that leases were going for below market rates. And that's the ultimate of their claim. And by the way, council conceded that those claims could have been brought before the Cogel settlement in his argument. And so again, if you look at the language, they say- of both the way the claims are defined- the key date being December- I'm sorry, September 30th, 2009- it's claimed known or unknown that could have been asserted. And he's agreeing those claims could have been asserted. As to having to- for the government to have to prove that they- they did either did know or that there- well in any event, I would fall back on- there just- to the extent that he says it's in the complaint. I don't see- it certainly wasn't argued in the brief and I don't think it's been alleged with the kind of particularity, which is required for fraud because we would be talking about positive fraud. Their approach has been more distressed- the government- or to alleged that the government has been negligent. Actually, I shouldn't say that more so. It's really been there, but they say that they use the illustration of a rubber stamp, I think, in the real- the reply brief that that's all the government did. It just ignored- it didn't do anything. Again, council said they did no due diligence. So if they didn't do any due diligence, the only thing I could have say is something about the USGS having some knowledge- which I'm not recalling that in the point either- but we don't know. Right. We don't know what the government knew and when it knew it, whether they had- and do you concede them that if they knew something before the September 2009 date, they had- they did have a duty to disclose? No, I would say that the government- if the government actively concealed it. But when we talk about the government, for example, you're talking about USGS, we're talking about a huge institution- somebody who may know something somewhere who has no power in terms of approving their leasing- You started off a 30 seconds ago by saying, we don't know. And I think your friend would agree. We don't know. That's why I mean- No, I'm sorry. I can't- I'm sorry. I don't mean to develop instant amnesia, but when I say we don't know, I'm just kind of in states- whether they were in charge of approving this lease or not, knew something, then they have a duty to disclose

. It's really been there, but they say that they use the illustration of a rubber stamp, I think, in the real- the reply brief that that's all the government did. It just ignored- it didn't do anything. Again, council said they did no due diligence. So if they didn't do any due diligence, the only thing I could have say is something about the USGS having some knowledge- which I'm not recalling that in the point either- but we don't know. Right. We don't know what the government knew and when it knew it, whether they had- and do you concede them that if they knew something before the September 2009 date, they had- they did have a duty to disclose? No, I would say that the government- if the government actively concealed it. But when we talk about the government, for example, you're talking about USGS, we're talking about a huge institution- somebody who may know something somewhere who has no power in terms of approving their leasing- You started off a 30 seconds ago by saying, we don't know. And I think your friend would agree. We don't know. That's why I mean- No, I'm sorry. I can't- I'm sorry. I don't mean to develop instant amnesia, but when I say we don't know, I'm just kind of in states- whether they were in charge of approving this lease or not, knew something, then they have a duty to disclose. I mean, this goes to their duty to disclose argument. They don't identify a statutory argument here that would make that mandate that as a duty. They waive known- unknown claim. So if the claims were unknown, they're- that's unfortunate, but they could have raised it in the Nobel. They could have opted out of co-belt. The only complaint- Those are two separate things. They could have done it. Yes, those are two separate things. We are suspicious, but we don't know enough, so we're not going to join and we simply opt out, or they could have made an objection to approval of the settlement on the ground. There's too much on the ground. Exactly. And am I- am I understanding right? There's no dispute here about adequacy of notice to the particular claim? No, they have never argued it that they didn't get noticed

. I mean, this goes to their duty to disclose argument. They don't identify a statutory argument here that would make that mandate that as a duty. They waive known- unknown claim. So if the claims were unknown, they're- that's unfortunate, but they could have raised it in the Nobel. They could have opted out of co-belt. The only complaint- Those are two separate things. They could have done it. Yes, those are two separate things. We are suspicious, but we don't know enough, so we're not going to join and we simply opt out, or they could have made an objection to approval of the settlement on the ground. There's too much on the ground. Exactly. And am I- am I understanding right? There's no dispute here about adequacy of notice to the particular claim? No, they have never argued it that they didn't get noticed. They are not on the list of people who opt out. And let me just go back again to this duty, this known or concealment. This is an argument that could and should have been raised into the co-vail settlement, that the scope of the release is too large, but no one did. Are there any actions that the government took after September 30th, 2009 that were specifically identified here? No, but one was for the first time in oral argument. I want to go to that. Judge, I think it was Judge Cogs, asked counsel whether the government could have disallowed the Williams company's acquisition of these leases through its purchase. And this is important. Its purchase of all the Dakota three assets. And the answer is no. Now this argument was is not addressed in our brief because they never raised it. That's why he said he was going to get to the citation to it and it's brief. He can't

. They are not on the list of people who opt out. And let me just go back again to this duty, this known or concealment. This is an argument that could and should have been raised into the co-vail settlement, that the scope of the release is too large, but no one did. Are there any actions that the government took after September 30th, 2009 that were specifically identified here? No, but one was for the first time in oral argument. I want to go to that. Judge, I think it was Judge Cogs, asked counsel whether the government could have disallowed the Williams company's acquisition of these leases through its purchase. And this is important. Its purchase of all the Dakota three assets. And the answer is no. Now this argument was is not addressed in our brief because they never raised it. That's why he said he was going to get to the citation to it and it's brief. He can't. It's not there. If you want to hear now, we'd have to do supplemental breathing. But the reason the government can't is this was not an assignment of leases to the Williams company. The Williams company just bought up everything associated with these Dakota three companies, including things like pipelines, other. So there was no BIA approval of a transfer from Dakota to Williams. There was no BIA approval of that. No, because there was no transfer from Dakota to Williams. Williams bought Dakota. No, I don't think so. So any of the leases at issue in this case entered into by the government after September 30th, 2009. Not these leases as we show. The leases were approved

. It's not there. If you want to hear now, we'd have to do supplemental breathing. But the reason the government can't is this was not an assignment of leases to the Williams company. The Williams company just bought up everything associated with these Dakota three companies, including things like pipelines, other. So there was no BIA approval of a transfer from Dakota to Williams. There was no BIA approval of that. No, because there was no transfer from Dakota to Williams. Williams bought Dakota. No, I don't think so. So any of the leases at issue in this case entered into by the government after September 30th, 2009. Not these leases as we show. The leases were approved. I believe in February and the final and the assignment which we could approve so that the Dakota three companies occurred in April late April 2009. Can I discuss? I don't know if it makes a difference, but you have variously said that Williams bought the company on the other hand, you have said that it bought all of the company's assets. Which is it? My understanding is they bought the company including all of its assets. And I believe there are companies. There are various Dakota three. It's a little confusing. There seem to be various Dakota three entities out there. My receivably one would actually require an assignment and one would not. Yes, yes. I suppose if it were a transfer of assets as opposed to an acquisition of the entire company, I could see the argument. But again, they've never raised this point. It's and I believe there are that documents they cite in the appendix news articles showing Williams just went out and bought the company's

. I believe in February and the final and the assignment which we could approve so that the Dakota three companies occurred in April late April 2009. Can I discuss? I don't know if it makes a difference, but you have variously said that Williams bought the company on the other hand, you have said that it bought all of the company's assets. Which is it? My understanding is they bought the company including all of its assets. And I believe there are companies. There are various Dakota three. It's a little confusing. There seem to be various Dakota three entities out there. My receivably one would actually require an assignment and one would not. Yes, yes. I suppose if it were a transfer of assets as opposed to an acquisition of the entire company, I could see the argument. But again, they've never raised this point. It's and I believe there are that documents they cite in the appendix news articles showing Williams just went out and bought the company's. What they did with them after they bought them, I don't know, but that's different from an assignment of a lease. Had the lease has been assigned, yes, approval would have been required. Now with reference to the Shoshone case and the somewhat gets back to the dollar that we've had on knowledge. In addition to Shoshone being pre-Nalahal one and two and Hikariya in the other cases, it didn't have at issue a settlement agreement approved by Congress. This is there was tremendous through process here approved by Congress, which allowed parties to opt out, which was approved by the DC District Court and then by the DC Circuit, cert positions were filed and denied and it's a final judgment. That language did refer to known or unknown. It addressed it and no decision by this court saying that, and even if there were language in this court, disapproving in general of the release of ununklaimed, the case, the Shoshone case cannot be a basis for undoing a final judgment that we have in the covalent case. The question of extrinsic evidence, I think council has misread the decisions of this court. As we point out, in- What was the contract language in metric? You quoted the contract, but they did in Rockies, I don't. Rockies clearly had an ambiguity because it referred to a change in government policy. I asked about metric. I don't think so

. What they did with them after they bought them, I don't know, but that's different from an assignment of a lease. Had the lease has been assigned, yes, approval would have been required. Now with reference to the Shoshone case and the somewhat gets back to the dollar that we've had on knowledge. In addition to Shoshone being pre-Nalahal one and two and Hikariya in the other cases, it didn't have at issue a settlement agreement approved by Congress. This is there was tremendous through process here approved by Congress, which allowed parties to opt out, which was approved by the DC District Court and then by the DC Circuit, cert positions were filed and denied and it's a final judgment. That language did refer to known or unknown. It addressed it and no decision by this court saying that, and even if there were language in this court, disapproving in general of the release of ununklaimed, the case, the Shoshone case cannot be a basis for undoing a final judgment that we have in the covalent case. The question of extrinsic evidence, I think council has misread the decisions of this court. As we point out, in- What was the contract language in metric? You quoted the contract, but they did in Rockies, I don't. Rockies clearly had an ambiguity because it referred to a change in government policy. I asked about metric. I don't think so. My recollection is metric. Is in line with this court's decision when you actually read it, is in line with this court's decision holding that decision, I should say, holding that absent an ambiguity in the language, there's no basis for allowing use of extrinsic evidence. And actually, what metric held was that in one of the evidence of a trade practice, and that's been one of the few areas that this court has been willing to go beyond the plain language of a contract, cannot be used to, quote, to create an ambiguity or a contract was not reasonably susceptible of differing interpretations at the time of contract. But you don't as you stand there right now. No, I'm sorry, I don't have the but again, I think if you look at the case, yes. And I think one of the arguments you make is this is just like the due process claim in front of the decision. How is that so? Well, that is the basis that the CFC ruled on one of the basis, I should say, is that this is really a complaint about the classification process and that that was improperly occurred because you had really two forms of class. It's not a basis for rejecting your tick ins claim, right? I mean, that's just, I mean, I mean, maybe a comment on what one thinks it's going on. It is, your honor, it's, it is a, well, I think it's right, it's a more difficult argument, a much easier argument is op-out. The government, the best cases that they can come out up with, from this court which indicated any kind of coincidence, yes, is where arguably Congress took away claims but provided no alternative for it. Here they could have opted out. And so it's, but I think on that point, I think you're only sighted to us one case, the little John, the little Wolf case is the only one

. My recollection is metric. Is in line with this court's decision when you actually read it, is in line with this court's decision holding that decision, I should say, holding that absent an ambiguity in the language, there's no basis for allowing use of extrinsic evidence. And actually, what metric held was that in one of the evidence of a trade practice, and that's been one of the few areas that this court has been willing to go beyond the plain language of a contract, cannot be used to, quote, to create an ambiguity or a contract was not reasonably susceptible of differing interpretations at the time of contract. But you don't as you stand there right now. No, I'm sorry, I don't have the but again, I think if you look at the case, yes. And I think one of the arguments you make is this is just like the due process claim in front of the decision. How is that so? Well, that is the basis that the CFC ruled on one of the basis, I should say, is that this is really a complaint about the classification process and that that was improperly occurred because you had really two forms of class. It's not a basis for rejecting your tick ins claim, right? I mean, that's just, I mean, I mean, maybe a comment on what one thinks it's going on. It is, your honor, it's, it is a, well, I think it's right, it's a more difficult argument, a much easier argument is op-out. The government, the best cases that they can come out up with, from this court which indicated any kind of coincidence, yes, is where arguably Congress took away claims but provided no alternative for it. Here they could have opted out. And so it's, but I think on that point, I think you're only sighted to us one case, the little John, the little Wolf case is the only one. The little Wolf case, but again, well, the little Wolf case is pretty much on point because they had a very short statute of limitations. They could either go through it, administrative process. Yeah, but you haven't cited cases other than that case. No, I haven't, but they haven't cited a case where the op-out provision exists. And I think that's crucial because as long as you have a mechanism to preserve your claims, I don't, there can't be a taking. There's a taking in these, there's arguably a taking in these other cases where the government allegedly cuts off your right to recover and gives you no other alternative means of, of, of, uh, litigating the matter. And there's, there's case law from the 9th Circuit, I realize it's the 9th Circuit, it's not the Court of Federal Client, or it's not the Federal Circuit, but that property interest, um, don't exist in a non-final litigation judgment. And that's what these, these spiritual, not final litigation judgments. So I guess if the panel has nothing else, thank you. Thank you. Two minutes. Two things, Your Honor

. The little Wolf case, but again, well, the little Wolf case is pretty much on point because they had a very short statute of limitations. They could either go through it, administrative process. Yeah, but you haven't cited cases other than that case. No, I haven't, but they haven't cited a case where the op-out provision exists. And I think that's crucial because as long as you have a mechanism to preserve your claims, I don't, there can't be a taking. There's a taking in these, there's arguably a taking in these other cases where the government allegedly cuts off your right to recover and gives you no other alternative means of, of, of, uh, litigating the matter. And there's, there's case law from the 9th Circuit, I realize it's the 9th Circuit, it's not the Court of Federal Client, or it's not the Federal Circuit, but that property interest, um, don't exist in a non-final litigation judgment. And that's what these, these spiritual, not final litigation judgments. So I guess if the panel has nothing else, thank you. Thank you. Two minutes. Two things, Your Honor. There are, there's further ambiguity because, uh, the Troghport side, I don't pay to 25, the visit basis of the plain language, the land administration claim definition, which had all claims that could have been asserted. However, the release language, and, and that's on a 653, the record, however, the release language itself, which you never addressed, uh, on page 8686 says, claims only that claims that should have been a circuit, should implies must, could implies possible. And I think that's why these cases along the line of, of, of the accrual cases are very important for you to consider, because, um, the, the accrual cases and the kind of the should concept, you must do it. Tyent or delayed when there is some sort of hidden scheme as in Bowen, the U.S. Supreme Court case, whether the beneficiary's new, their benefits have been cut, but, uh, but didn't know about the scheme underline it. And it also fits the idea that this Court has established in Kauata that all events necessary to that scheme, uh, apply, uh, it should be, uh, have to run in order to define the ultimate injury, which only could have been done through that scheme that started in 2007 with Williams behind the scene using cup as a puppeteer, other folks, until it wrapped all this massive thing up in, in a 2000, a late to, in the 2010, as to the, uh, to our pleading, yes, the, the our pleading of birth among other things, uh, to, um, in, in page 26, starting a page 109 and following that the government went ahead and actually allowed assignability without any government check and never took that power back when it realized it was being, that even though there was a scheme of foot, uh, to take advantage of that to allow that ultimate rollout, uh, and, and, and despite some protest, the government went ahead and did that anyway. So I really appreciate your time today, Your Honor, and we, we argue that this is just a little premature. Thank you. Thank you. We thank both parties in the

The case for argument this morning is 155069 shields versus US, Mr. McNeil. Thank you, Your Honor. And I was serving two minutes. The trial court made free legal errors when it interpreted the co-belling at least to unambiguously. Apply to the two shells facts. The first is a kind of a court and horse error. The court held that law absolutely did not require the trial court to look at context evidence before determining the plain meaning of the language. That is shown on pages 23 and 24 of the trial court opinion. And that's contrary to established form of law and the courts on precedent. As restatement, second of contract section 212 makes clear. The trial court then compounded that first error by rejecting the reasonableness of the two shells interpretation that the co-bell release does not cover the two shells facts. Do you have any arguments if the co-bell release does cover all actions up and through September 30 of 2009? Do you have any arguments that the government breached the trust in any way after September 30 of 2009 so that if you lose on the interpretation of the settlement argument, is there still any case here? Yes, two. First of all, the government has a fiduciary duty to have disclosed information under the shifting of the issue of the case that just as Judge Hewitt had established several years ago in a case that's almost on all horse. One of the problems there was that it was a hidden type of client. It was a hidden scheme and this complaint goes into great length on the hidden nature of that scheme which literally depressed the price of the market. The government furthermore stamped on this lease to miss two shells and others, this lease is in the best interest of the Indian mineral interest owner and never changed that language. Therefore, by the time of the release, the information, the hidden nature of it and the continuing nature of it had not been revealed. So yes, I think that there is language to that effect and indeed evidence to that effect that clearly raises. And apart from that, is there any other argument, were there any other government actions after September 30, 2009 in this case? It seems like everything, all the actual affirmative actions, like the BIA approvals and things like that of the transfers, all took place prior to September 30, 2009. I just want to make sure I'm not missing any in the fact. Between 2009 and the announcement of this huge billion dollar transaction by Williams, who had been behind the scenes all along, according to our pleadings through Melamine, the government continued to ratify and do normal work on those leases. That is the evidence. Yes, but you're not a little, I thought there was an argument that you were relying on the subsequent. In other words, after you were saying that at post that date in 2009, there was this acquisition by Williams of Dakota 3. And somehow that was when you claim a row was based on that acquisition. So you were trying to get this out from under Covell, the time track. Is that not your argument? Yes, and as our pleading says, the culmination of this scheme, the events in this scheme did not culminate until that huge roll-up occurred. Yeah, but the question there and the government, well, you know, I think it's the government's position that you can't use that date because the government had no authority over that acquisition that you are tied to the date in late 2009. You can't transcend that and say no, that's didn't arise till the acquisition because the government had no authority over that acquisition. Right? We're arguing that the government one could have stopped it. They have the right to revoke consent. They could have revoked a sign of building and they could have done something. Yes, they did not. And on that basis, you're arguing that therefore they shouldn't become under Covell because they're taught that claimed in the rise till after those actions occur? I'm arguing that that's one reason, but there are others, including the fact that the government did not give full information under Shashani of what the situation was so these folks could not conform to it. And what exactly were they supposed to disclose? There in our complaint, we've mentioned a number of things. The paragraphs of our complaint deal with the government's inside information on these reserves. The US Geological Survey others knew this was huge. The magnitude of the difference between stripper well prices that were paid for this oil and the fact that these were the literally the richest oil and gas reserves in America history is just dramatic. And the government knew that. It wasn't a matter of finding them. They were already there. It was a matter of technology. And the government was well ahead of the curve on knowing what that technology could do. They just did not. They were just rolled over and continue to be rolled over by this improper influence which they could easily have stopped. And at what point were they, when did the study to disclose rise? I think the duty disclosed was clearly prior to Covell Selma. It should have been before the, but that's the late, that by clearly before that period. Because as Judge Hewitt points out in the Shashone case where the folks had been paid for all the interest for years, but the government failed to disclose full information that the oil and gas companies were under valuing them. And nevertheless signed a release saying they wouldn't go after that. That release was not valid because the, because the government had not provided full information. The government asked listed in our complaint. When you say we released, do you tell him about the release under Covell that they didn't retain their right to do, that they didn't opt out of the class? Is that what you're talking about? I'm saying that prior to the Covell settlement, all this information should be revealed. We cite, for example, in the complaint details about as April of 2012, one official expressly said in the government, I didn't have time to do anything. There's other information that didn't do any due diligence. There was absolutely no due diligence. There are others that said that we were pressured and pressured and there was a land run and we just, we just folded. There's another superintendent of the BIA, or Fort Mercow, that said I wanted to get, it stepped up, but I never had time to do it. There's a lot of information that was said later after this lawsuit was actually filed and after we had had a chance in 2011 to do the actual due diligence required after this big sale was announced that was never revealed ahead of time. Those are factual inquiries. The problem here is it's way too premature to come to the decision as a matter of law and that was issues. Ultimately, the court, after hearing the factual record, may decide that maybe these, that there was not enough or that enough information was disclosed, but it's a heavy argument, factual dispute, and it's heavily documented in this complaint, which really, if true, is quite a horror story on what happened. Is there some place specific in your brief that you make an argument that the government, though it didn't take an action with respect to the ultimate transfer to Williams, had the authority and obligation to review and intervene? Yes, and we cite the various provisions. I will get you to cite your underbut we talk about their strong authority. I ask to be clear, I asked about your brief, I didn't ask about your company. Oh, I'm sorry, yes sir, we will. We will get that to you in just one second, sir. Just briefly, let me mention the third error, and that is the court, erroneously concluding the government didn't have a duty to disclose that full information as I've already mentioned in the, in the, in the, in the, she's shown in case. And is there any aspect of, I don't have this, she's shown me opinion with me, that's from 2003, right? Yes, something. Is, is the analysis there consistent with Navajo to Jekarilla and our Hopi tribe? Yes. In terms of the demand, really quite stringent demand for specificity of the particular duty that is being relied on? Yes, it was this, this court, I mean the Court of Federal Plenty did not come to you, but the Court of Federal Plenty didn't make that ruling, it was a, right, but again, I, I want you to focus on the date 2003, the law has substantially tightened the requirement of specificity for the asserted duty since then. Okay, if I'm not responding to that, please, that's why I asked. I think, number one, the, the common law duty that's inferred even by those later cases, once there's a money mandating to do sure duty is a common law duty and this court has established that economy as well as the Supreme Court in its cases. A common law duty by definition includes a fiduciary duty, but here we have one fact that goes one step further. The fact that some, the argument of the government is, well, we didn't have a duty to disclose, even though that's a common law duty. The problem is the government did disclose. They did tell these Native Americans, this is in the best interest of the mineral interest owner, they stamped the lease. Once that disclosure occurred, it has to remain accurate and it needs to be changed if it's, if the government knows it's not. We have played information at the government new it's not and continue to learn information that it was wrong before the cobellish settlement occurred. That's why we have asked in rule 56, whether the government, what the government knew, what negotiations it had because, as I was going to get into on my first point, rest of the restaigments second by contract section 212, which is an own interpretation of contracts cited approximately 475 times by this court in interpreting contracts. Has paragraph B or plain meaning and extrinsic evidence? And it says that, like the trial court said, it sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain, can almost never be plain except in context. In fact, the next sentence said, this principle is not limited to cases where ambiguity is already established. And then it goes on to say there are four types of evidence right here in the comment. That kind of language which you were just reading from the American law institute's non-authoritative summary of principles and it's a mix of prescription and description. Have we as a court said those things? It's a good question. You have followed it in metrics and in Rockies. Let me give you the the four types of evidence were looking at the nature of the relationship which here was a fiduciary one at the subject matter of the transaction which was released. preliminary negotiations and statements made by the an area in which we were trying to get from the government and have cited some issues here. And the course of dealing between parties was in metrics. This court said the course of dealings between the parties was critical. And indeed, even though the language was straightforward, in the metrics case, there was this issue about lamps being replaced just before a NASA contract was completed. The government here, as it here, took to isolate position that lamps meant all lamps in this big NASA project. And the government said wait a minute, we want to go back and look at the context and the negotiations. It was found out that the government proposed that the custom and usage in the last case was that you only replaced lamps that were out. Common sense, but not what the plain language appeared to say at first glance. Rockies, the more recent case which the Trock Court didn't even address because it had just come out. Is the case where the preliminary negotiations were critical to the case as well. And therefore, the court overruled, here was the issue there. There was a policy for policy that the government could change the contract, if policy changed, but looking at the negotiations that didn't happen. And so those two cases applied the restabilist's act. Okay, we're into your rebuttal, so when we hear from you. Thank you very much. Yes, may it please support my name is Robert Oakley. I'm here on behalf of the United States. Your honor, the Cogel versus Cells, our case was a very big deal for the Department of Justice at the United States as a whole. It was a very hard fought litigation. When on for years, I believe there are 10 appeals to the District of Columbia, I'm sorry, the DC Circuit. And so the government wanted to clean slate here. So when at night, when it finally reached the settlement with the Cogel planers, it wrote broad releases and those releases clearly encompass the claims, Ms. Two Shields and Defender Wilson want to bring here. Those claims include claims that the government mismanaged land assets held in trust. But why isn't there still an open question at least towards review with regard to what they knew and when they knew it and what the government did? Well, actually, I thought I heard council, because if you get, if you look at the language of the settlement agreement, it applies land administration claims apply to both claims that are known and unknown. Now, if that language was wrong or unacceptable or unconscionable, someone should have raised that in the Cogel decision. But it was not, my recollection is there's no mention of that in the District Court decision. There's no mention of it in the DC Circuit decision, Supreme Court denied cert. And so that's the end of the matter. Maybe we can't speculate, well, what if that issue had been raised? But it was both known and unknown. Secondly, I heard- But in a circumstance, hypothetical circumstance, if the government had intentionally hidden or kept away information to allow plaintiffs to know that they might have had a cause of action, are you suggesting that nonetheless Cogel would bar that cause of action? That's interesting in your honor, because I have in the back of my head, but I'm reluctant to as a firm principal, a law, because it is in the back of my head that there's a difference between intentional concealment. And in other words, that someone took active measures to not inform someone of information that they had a duty to do so. But that suggests that perhaps there is some ambiguity in the language of the Cogel settlement with respect to what it means to say known or unknown. Well, they have never developed in their briefs any argument that the government actively was hiding information. And in fact, they say- If they say- I mean, the problem is to use the word they were never developed. Okay. And your friend would say, well, yeah, and we want an opportunity to develop it through discovery and otherwise. And also though, my friend alleged in his complaint over several pages how much information there was out there including some information that Niz Tushil participated in where there was a belief in this area and in Indian country, particularly in this area that leases were going for below market rates. And that's the ultimate of their claim. And by the way, council conceded that those claims could have been brought before the Cogel settlement in his argument. And so again, if you look at the language, they say- of both the way the claims are defined- the key date being December- I'm sorry, September 30th, 2009- it's claimed known or unknown that could have been asserted. And he's agreeing those claims could have been asserted. As to having to- for the government to have to prove that they- they did either did know or that there- well in any event, I would fall back on- there just- to the extent that he says it's in the complaint. I don't see- it certainly wasn't argued in the brief and I don't think it's been alleged with the kind of particularity, which is required for fraud because we would be talking about positive fraud. Their approach has been more distressed- the government- or to alleged that the government has been negligent. Actually, I shouldn't say that more so. It's really been there, but they say that they use the illustration of a rubber stamp, I think, in the real- the reply brief that that's all the government did. It just ignored- it didn't do anything. Again, council said they did no due diligence. So if they didn't do any due diligence, the only thing I could have say is something about the USGS having some knowledge- which I'm not recalling that in the point either- but we don't know. Right. We don't know what the government knew and when it knew it, whether they had- and do you concede them that if they knew something before the September 2009 date, they had- they did have a duty to disclose? No, I would say that the government- if the government actively concealed it. But when we talk about the government, for example, you're talking about USGS, we're talking about a huge institution- somebody who may know something somewhere who has no power in terms of approving their leasing- You started off a 30 seconds ago by saying, we don't know. And I think your friend would agree. We don't know. That's why I mean- No, I'm sorry. I can't- I'm sorry. I don't mean to develop instant amnesia, but when I say we don't know, I'm just kind of in states- whether they were in charge of approving this lease or not, knew something, then they have a duty to disclose. I mean, this goes to their duty to disclose argument. They don't identify a statutory argument here that would make that mandate that as a duty. They waive known- unknown claim. So if the claims were unknown, they're- that's unfortunate, but they could have raised it in the Nobel. They could have opted out of co-belt. The only complaint- Those are two separate things. They could have done it. Yes, those are two separate things. We are suspicious, but we don't know enough, so we're not going to join and we simply opt out, or they could have made an objection to approval of the settlement on the ground. There's too much on the ground. Exactly. And am I- am I understanding right? There's no dispute here about adequacy of notice to the particular claim? No, they have never argued it that they didn't get noticed. They are not on the list of people who opt out. And let me just go back again to this duty, this known or concealment. This is an argument that could and should have been raised into the co-vail settlement, that the scope of the release is too large, but no one did. Are there any actions that the government took after September 30th, 2009 that were specifically identified here? No, but one was for the first time in oral argument. I want to go to that. Judge, I think it was Judge Cogs, asked counsel whether the government could have disallowed the Williams company's acquisition of these leases through its purchase. And this is important. Its purchase of all the Dakota three assets. And the answer is no. Now this argument was is not addressed in our brief because they never raised it. That's why he said he was going to get to the citation to it and it's brief. He can't. It's not there. If you want to hear now, we'd have to do supplemental breathing. But the reason the government can't is this was not an assignment of leases to the Williams company. The Williams company just bought up everything associated with these Dakota three companies, including things like pipelines, other. So there was no BIA approval of a transfer from Dakota to Williams. There was no BIA approval of that. No, because there was no transfer from Dakota to Williams. Williams bought Dakota. No, I don't think so. So any of the leases at issue in this case entered into by the government after September 30th, 2009. Not these leases as we show. The leases were approved. I believe in February and the final and the assignment which we could approve so that the Dakota three companies occurred in April late April 2009. Can I discuss? I don't know if it makes a difference, but you have variously said that Williams bought the company on the other hand, you have said that it bought all of the company's assets. Which is it? My understanding is they bought the company including all of its assets. And I believe there are companies. There are various Dakota three. It's a little confusing. There seem to be various Dakota three entities out there. My receivably one would actually require an assignment and one would not. Yes, yes. I suppose if it were a transfer of assets as opposed to an acquisition of the entire company, I could see the argument. But again, they've never raised this point. It's and I believe there are that documents they cite in the appendix news articles showing Williams just went out and bought the company's. What they did with them after they bought them, I don't know, but that's different from an assignment of a lease. Had the lease has been assigned, yes, approval would have been required. Now with reference to the Shoshone case and the somewhat gets back to the dollar that we've had on knowledge. In addition to Shoshone being pre-Nalahal one and two and Hikariya in the other cases, it didn't have at issue a settlement agreement approved by Congress. This is there was tremendous through process here approved by Congress, which allowed parties to opt out, which was approved by the DC District Court and then by the DC Circuit, cert positions were filed and denied and it's a final judgment. That language did refer to known or unknown. It addressed it and no decision by this court saying that, and even if there were language in this court, disapproving in general of the release of ununklaimed, the case, the Shoshone case cannot be a basis for undoing a final judgment that we have in the covalent case. The question of extrinsic evidence, I think council has misread the decisions of this court. As we point out, in- What was the contract language in metric? You quoted the contract, but they did in Rockies, I don't. Rockies clearly had an ambiguity because it referred to a change in government policy. I asked about metric. I don't think so. My recollection is metric. Is in line with this court's decision when you actually read it, is in line with this court's decision holding that decision, I should say, holding that absent an ambiguity in the language, there's no basis for allowing use of extrinsic evidence. And actually, what metric held was that in one of the evidence of a trade practice, and that's been one of the few areas that this court has been willing to go beyond the plain language of a contract, cannot be used to, quote, to create an ambiguity or a contract was not reasonably susceptible of differing interpretations at the time of contract. But you don't as you stand there right now. No, I'm sorry, I don't have the but again, I think if you look at the case, yes. And I think one of the arguments you make is this is just like the due process claim in front of the decision. How is that so? Well, that is the basis that the CFC ruled on one of the basis, I should say, is that this is really a complaint about the classification process and that that was improperly occurred because you had really two forms of class. It's not a basis for rejecting your tick ins claim, right? I mean, that's just, I mean, I mean, maybe a comment on what one thinks it's going on. It is, your honor, it's, it is a, well, I think it's right, it's a more difficult argument, a much easier argument is op-out. The government, the best cases that they can come out up with, from this court which indicated any kind of coincidence, yes, is where arguably Congress took away claims but provided no alternative for it. Here they could have opted out. And so it's, but I think on that point, I think you're only sighted to us one case, the little John, the little Wolf case is the only one. The little Wolf case, but again, well, the little Wolf case is pretty much on point because they had a very short statute of limitations. They could either go through it, administrative process. Yeah, but you haven't cited cases other than that case. No, I haven't, but they haven't cited a case where the op-out provision exists. And I think that's crucial because as long as you have a mechanism to preserve your claims, I don't, there can't be a taking. There's a taking in these, there's arguably a taking in these other cases where the government allegedly cuts off your right to recover and gives you no other alternative means of, of, of, uh, litigating the matter. And there's, there's case law from the 9th Circuit, I realize it's the 9th Circuit, it's not the Court of Federal Client, or it's not the Federal Circuit, but that property interest, um, don't exist in a non-final litigation judgment. And that's what these, these spiritual, not final litigation judgments. So I guess if the panel has nothing else, thank you. Thank you. Two minutes. Two things, Your Honor. There are, there's further ambiguity because, uh, the Troghport side, I don't pay to 25, the visit basis of the plain language, the land administration claim definition, which had all claims that could have been asserted. However, the release language, and, and that's on a 653, the record, however, the release language itself, which you never addressed, uh, on page 8686 says, claims only that claims that should have been a circuit, should implies must, could implies possible. And I think that's why these cases along the line of, of, of the accrual cases are very important for you to consider, because, um, the, the accrual cases and the kind of the should concept, you must do it. Tyent or delayed when there is some sort of hidden scheme as in Bowen, the U.S. Supreme Court case, whether the beneficiary's new, their benefits have been cut, but, uh, but didn't know about the scheme underline it. And it also fits the idea that this Court has established in Kauata that all events necessary to that scheme, uh, apply, uh, it should be, uh, have to run in order to define the ultimate injury, which only could have been done through that scheme that started in 2007 with Williams behind the scene using cup as a puppeteer, other folks, until it wrapped all this massive thing up in, in a 2000, a late to, in the 2010, as to the, uh, to our pleading, yes, the, the our pleading of birth among other things, uh, to, um, in, in page 26, starting a page 109 and following that the government went ahead and actually allowed assignability without any government check and never took that power back when it realized it was being, that even though there was a scheme of foot, uh, to take advantage of that to allow that ultimate rollout, uh, and, and, and despite some protest, the government went ahead and did that anyway. So I really appreciate your time today, Your Honor, and we, we argue that this is just a little premature. Thank you. Thank you. We thank both parties in th