district court decided summary judgment motions in june of two i'm sorry march of two thousand and thirteen counsel may i interrupt right there i think the story is important and there's a there's an indication in the file that at some point in that first six year period i think it was in the first six year period there was a bit of confusion in the b l m file about where the claims were located and whether mr baker claims certainly on the you know located with the add claims has never raised that issue that was an issue that actually came up in the condemnation proceedings right did never come up in the state court litigation that's never been an issue in the state court litigation state court determined the case the claims are valid this isn't about validity i just want to n but this case is taking a really long time and i'm trying to figure out whether or not the confusion about if there was confusion about the location of those these claims contributed to wasn't an issue it didn't become an issue until the ok pardon the interruption thank you counsel and so when the state court issued summary judgment ruling in march of two thousand and thirteen term the claims were valid three months later nor filed the federal filed a state condemnation case in federal court on diversity grounds there is no federal condemnation issue it's just a state condemnation claim on diversity and it was filed because upon or didn't like the rulings it was receiving in state court it was a reaction to the state court rulings that's why the case was filed in federal court and that was three months after the summary judgment was handed down on the stick orders and right that's correct did did upon whether they were valid under montana state law and that was a tactical decision it made at the time kind of nation didn't come up until the federal court made the state court made the determination that claims were valid ok and that's the only place federal evaluates eight factors but the first factor is the dispositive factor in this case and that's what the court asked for supplemental briefing on and the question there is which court first assumed jurisdiction over the property that's at stake the property that's at stake is these four mining claims there's no dispute about that it was at issue in the state court case it's at issue in the federal condemnation case mine claims are real property their form of real property there's plenty of montana case about the rights that somebody involves title property and that's evident from the very title to the federal court case is a case against the property itself plus the parties that have an interest in that property so by naming the property itself it is enron proceeding by determining that the claims were valid in state court that was an enron proceeding as to the validity of that property and who owns that property and mine or doesn't seem to dispute this it instead it's dispute is more  parallelism and whether the state court case is parallel to the federal court case or not let's assume just for a moment that this barge is so far down the river we really can't do anything with the colorado river abstention what's your best argument that montana code annotated section seventy thirty days one one one one sub sea covers a proposed use i'm not exactly sure i understand what i'm what i'm trying to find out is my understanding is that you were basically saying that one element in the condemnation act that was not properly considered was that nation statute that gives private parties rights of condemnation normally enjoyed by only the government the public use is mining or use of a mining claim the public use in this case is the fact that somebody owns a mining claim they either are using it or can use it it doesn't speak out of course it gets to the point i'm talking about as i understand it your position is that even though your clients are not doing anything with it right now that the fact that they can do something for with that satisfies that prong of the statute is that correct that is correct for purposes of the public use is actually what martin or had to show in order to condemn the public use  was being made of this property there was litigation going on while this case was pending and that's partly the reason why the mining claims were used is because there was a state court litigation going on that state court case had to be resolved in order to figure out whether they could have never been used my understanding is it's uncontested but the pops claims twelve to fifteen had never been accessed is that right so you have to look at the history of this the history is they were undermining the litigation was whether there was access to these claims or not whether they're valid or not but but but sir can i your time is ticking so it seems to me this is not your strongest point because i think it's uncontested your client didn't use the claims and even if they had or there's nothing in the montana statute says you balance public use some honors and actually they just have an adage that was constructed a long time ago when it was under under the lease they're not actually using it either so that they're trying to they're trying to use their claim was economic balancing which mine would essentially make more money well and employ more people and right we've read that pretty thing in this is a taking of private property nothing in montana law that says you balance in order to determine which is preach it that clarification if you like to return just to the colorado river issue because it really does dispose of this entire case and puts it back into state court  what colorado river says when you get look at the pearl ism aspect of it is whether the state court or the federal court case is a spinoff of more comprehensive state litigation this was a spinoff of the state court litigation because it was started immediately after that's within the kashi marciano case as is what the court looks at when it determines and it just has to determine that the cases are substantially similar parallelism is not actually the operative word under it's actually whether they're substantially similar or not there was also a note in the case that says whether the federal court case is reactive to rulings in state court that certainly happened so that whether the proceedings involve the same subject matter and the subject matter that's an issue here is the impact of mining claims and access to those i'm pat of mining claims that's had issue in the state court that's what the state court ruled on that then became an issue in the federal court condemnation case for purposes of valuation the subject matter is exactly the same it's access through those that then permeated the condemnation hearing in terms of whether the kit claims were valid or not and the problem with the hearing was there was always habitants about or attempts to introduce evidence about what happened in state court and the federal court said that could not be introduced it became more and more problematic as the case went forward in terms of what could come in and what could come in  when the state court had ruled that those mining claims are valid ask you this council you would like this to apply to colorado river dr and do away with the federal or state federal action let's  just argue wendell that we don't do that and let's say the condemnation goes through what then becomes of the state action this state action is currently in the court use the word delayed it is scheduled for trial or days go it still needs to go through a trial on the remaining issues the state court case assumes that those mining claims are valid there's going to be a case involving whether there's been there was a trespass prior to the district  order so there still is a tort claim based on the fact that those claims are valid mining and i get that my question is if if the claims have been condemned in the federal court in other words if we let that go forward in the putting aside the jury question for a moment but just say we let it go forward the condemnation action is completed you no longer own those they are condemned so then what happens to the state action does it go away what happens to know you're  for there's two reasons one is the only thing is being condemned is an access right through those claims it's not the claims themselves that are being taken over in the case and the second is there still is a remedy for purposes of what happened prior to the condemnation order there are tort claims that are involved that and so that still has to be tried so that the trespass if you will continues to live cause of action well that will be determined depending on how the condemnation  so there still is a i just want to touch real briefly on the issue of the jury trial because montana law does provide that there is a right to a jury appeal that was not allowed by the district court the district court ruled that there wasn't enough evidence to support any evidence to support your valuation claim we believe that there was evidence and that his goes back to the state court actually your time you're down to a minute so can you just tell me what was your evidence  please the evidence was the state court had ruled that the claims were valid that evidence didn't get in front of the condemnation commissioners that evidence could have gotten from their condemnation commissioners but it wasn't the other not the only evidence of value  other evidence of value was the evidence we attempted to introduce in terms of the replacement cost method and the income method evaluation both of which were there were rulings against us based on the fact that  improper method and right it was deemed to not have enough evidence to support the method and that was partly because of a protective order that was entered by the court in terms of the replacement cost method and whether you had to do with the nature of the claims under federal law whether they are actually real property and that's an issue of montana law we cited the cases in our briefing about montana law on that issue that could you just briefly tell me how would that apply in this case yes your honor the income method is based upon the fact that there was a mining lease in place the mining lease actually didn't have a determination date it didn't depend on how many claims there were it's set a value for leasing those mining claims that was in place on these mining claims previously and so the income method was there was a stream of income for the use of these claims while they were being leased while the attic was built morning with more counsel table is joshua cooke one of my law partner suze help on this case and like to briefly address the abstention argument right up front since that's received so much attention and simply say is despite the effort to say otherwise about the identical identity of the issues in the state versus the federal case and parallelism council it's not it's not and your and your brief acknowledges that i think on the first page well the the first prong of colorado rather ever has to do with pride exclusive jurisdiction is and as this court has applied it in many other cases and the federal court case of the nature of the issues involved and you're really talking about the same property you talking about these mining claims as the court says they're valid you say to me this is a classic example of form shopping you know like what you got the state court you went to the federal court to try to different approach but it's the same properties same issues why why shouldn't the abstention doctrine apply in this case several reasons your honor we don't dispute that we do not agree with the decisions out of state court i mean that's the fact in fact that decision that has been advanced is more or less a final judgment is decision that still subject to appeal which we well if we have the opportunity do but you're not talking about property in the classic sense here first of all you're talking about ownership of the interest in an patented mining claims and that ownership the scope of that is determined by the presence of valuable in commercial quantities minerals in those claims but i think to dismiss point is whatever the interest is it's the same interest being litigated about in state and federal  no you're are a little bit winners and there's the validity issue and i actually do have a question about that the state courts really been focused on the validity but of the claims but since we're here is it right that your client didn't shopping or and i know that's a pejorative term and what you're trying to do is get your client to a place where you can be in business i get that but it concerns me as a former state court judge that the claim wasn't brought for whatever reason in state court and the by the time i was brought in federal court before we talk about forum shopping or judge selecting or anything else that it just seems to me to claim splitting you well could a product they're so white why should you be allowed to bring it in federal court six years in it shifts gears why shouldn't we be very concerned because if let's say you reverse order that the federal court abstained in one way or another from art for condemnation proceeding are parallel claims right and whether they're valid or not you can still condemn them absolutely i agree with that but my question is different my question house to do with doing an end run around the state court procedure it was too late but we don't we won't we 're not doing an end run in the sense that well grants us access through their claims the condemnation that's not our goal that state court case will still exist the judge will be able to rule on the validity of those claims as if we never time and expense and delay and all the rest of it really suggest that all the claims should be brought at one time and your client chose not to do that and that is entirely your client's business but it does leave us i think when we talk about colorado river with the added concern of it seems to me pretty clear it would've been allowed to go forward in state court with this claim but you found it in federal court and said we're right back in the same suit well i think you are i mean  thinking we're sort of not talking strictly speaking here about colorado river but just the background when this case was originally filed in state court and we didn't file but our preceding law firm did the idea was that the parents were making a lot of noise about trespass and causing a lot of public discourse about the nature of our ownership up there and our access to our patented claims and so the thinking for better or worse was this was suited for a declaratory judgment action to declare the nature of our respective ownerships actually the ability of the state court claims there were claims that went along with that going both think it may be a problem but we don't know so the decision was made to in the interest of moving the project forward to go with federal court the fact that and our belief was that  federal judge would be a federal proceeding would determine the right to take and the amount of compensation without regard to a question of learning with one exception and that's what the commissioners report reflects which is this is another remarkable case when it comes to the measure of compensation in the end because it's a before and after comparison before taking after taking just like any other condemnation and the lack of evidence and the fact that  there was this proceeding going on in state court that would affect how third party reasonable buyer might look at the value of these claims and primarily of course these claims had no value in terms situation that didn't happen why you know the reason why is that of course as you know the montana law applied here in substantive terms and title seventy do thirty guests three zero four under our condemnation statute says that an appeal must be tried in the same manner as other civil actions and so that means that the rules of civil procedure apply like they normally do that's how the case was tried all along and those rules include the rules we brought our alternative motions under after the commissioner's report rule fifty rule fifty six rule fifty nine and they didn't they didn't ask for a jury no i'm saying that for a jury your honor just like any other case where the plaintiff let's say wants to have a jury is entitled to a jury but the court precludes  because of summary a summary judgment argument the right to a jury is not totally absolutely right and this went to the commissioners it's not a summary judgment well the court had to take the action of approving that report the commission says like a master said right no w i get that ok but the bottom line is at least if i understand your statute it suggests that there is a matter of a matter of right that the decision of the commissioners can be appealed to the jury as at least as i read the statute as a condition precedent to the court ruling on whether it agrees with what was done it didn't happen here and it's what i want to find out i'm a bit now i'm sorry  maybe i understand your question one more clearly are the timing of this why the district court has to approve or pass on the commissioner's findings like it would any other master took place in the judge accepted the i guess it's a recommendation like a masters are an army accepted that's a that's a that's a judgment if i can think of it that way and then it was a montana lot of would have given the right to die would you really work that into a jury trial and in the same order the judge granted was it a written most are they were they were briefed they're fully briefed they're in the record ok it's can you help me find that  i think what i can refer you to right here at hand is the order i think i've seen the order and i don't have the motions right in front of me your hon will find it but they were made in the alternative because that you had a situation where essentially we had gone through the equivalent of a jury trial i recognised strictly speaking literally it's not but where the court and precise it over the evidentiary rulings and instructed the commission like it would a jury and so he didn't due process seemed to be satisfied and so but then we were dealing with an appeal right that would start that  novo basically and so we did not we brought it under the various rules all of which they'll deal with the same discretion on the part of the district judge which is not to allow a jury to go express right of appeal in just this kind of situation are you saying that because a district has the right to if you will make a decision without a jury being involved that this statute can that's exactly what it says i agree the sentence before also says that it must be trying to put on the same notice and in the same manner as other civil actions what this is saying is that you are you have the right to a jury on an appeal just as if you had the right to a jury on any other kind of claim where a jury right goes with it the right to a jury and the right to absolutely carry that through a trial where there is no reasonable evidence upon which a jury could render a verdict are two different things and that is that that right there forgive me for interrupting but in order to grant your motion did the district judge have to decide that no it reasonable juror could have up a motion and evaluate to mr baker there well that's of evidence on the part of the appellant that as to value before our taking as compared to the value after the taking there was a total failure of proof there and so there was the expert that we had who were centrally on rebuttal because they had no experts at all testified as the commission found persuasive whether these claims are valid whether they're not valid whether  they located correctly whether they're not none of that matters when it comes to value because there's no evidence of their value much as far telling that you're right that there's a total failure proof on their part but they exercise the right of appeal go to the jury can they bring in new evidence at that point or are they stuck with the evidence that was presented initially well unfortunately our there's a total lack of montana case law on this for probably the reason that nobody ever gets this far to be quite honest we would take  position and i think the judge would have been amenable having sat through this trial with the commissioners that know no new evidence to come in and they should reconsider it based on the witnesses that were provided in discovery that was there  again not a minor but it seems bizarre to me that in a situation where your client's predecessor paid good money and at least for some period of time for these very things obviously had some value and you're spending a whole lot of money and they're spending a lot of money that these things are worthless don't make any sense to me well keep in mind your honor that that lease covered eleven hundred claims these were four of eleven hundred claims that were bought to for peace in order to be able to proceed with the added determine if there was any mining any minerals discovered to deal with those it doesn't is not an admission that's what the state court found we think is so wrong that there was any validity of those claims or anything else this is how business is done tell you the fact that you bought peace and i get timing issue is is is problematic simply because there is a lack of case law but you get to the same point which is does a district court have to sit through this again even with the same whether there's a to bring in new evidence we went through three years of just two years of discovery on this case mr baker he had his deposition taken three times he had numerous opportunities to come forward that he discovered anything up there by way of gold or whatever and couldn't do it so it's