i appreciate the homework assignment from thursday we would have gotten the sooner if we could have not fine that's not an issue at all mr welford and your colleague as well particularly given the number of issues that we recognize  rather than going to walk through the brief which is what i would often do in a situation like this instead i'm just going to address your four point if it seems to me that's what you're mostly interested in let's do that and if you have other questions you have  t your position that after sixty one days that you're entitled to lost profits yeah yeah no in the reply brief that i filed i addressed pretty head on this issue that well it's at least sixty days worse as you know some other thing that there's no outer limit but the fact of the matter is that without court intervention on the i'm to turn to period  right to want to day one the sixty day rule is a construct of the federal court in the minor brown one case based on pennsylvania common law from the t w phillips case and so it's a forbearance period and  signal if you're feeling the chief to that end the negotiations would be over and there would have been an agreement reached and you could then go on the lam well that's what the government did that's not what the law requires the nothing set in stone that they had to act in sixty days but it was never an issue before mine to run to because they never took this ridiculous amount but they never had a ridiculous number of applications either it was it went up to off the charts that's not entirely true or out of there was a period of time in the one thousand nine hundred is this actually came up in a minor run two case where they did have a ridiculous number of permits and they met the six day requirement i put here they didn't write repeatedly over and over and over and it was there was a sea change that happened as reflected in the this where there's been a delay in the enjoyment if you will of servitude or easement that that delay without any destruction or did damage to the  the the stuff was in place it wasn't damaged but the problem was they lost fourteen days and lost profits they sued it went up to the spirit court case was affirmed in pills day all but that was there was not just prevention there wa damage the damage was to the easement not to the coal reserves the damage award was based on a lost profits for fourteen days but it doesn't appear there that the defendant raised an objection to lost profit t the one case that you were citing for that measure damages was yuba which is not of pennsylvania case and it's a takings case and i think one of the issues that you've raised in your four points or just of the action issue i think we need to be very careful about what the gist of the action is here that that's really a separate issue that was looking at the contract extension but due to waiver or not now we're talking about damages as a matter of state law and they're well we we pointed to that that that federal circuit takings case and as an example of us where parallel action it's limited to rental value we a limited period of time the diminishing in rental value is the measure of damages why should we apply that rule here as a matter of a new state law in terms of the damages that would be available for it in taking this as an interference with easement climb right with them rabe was a coal mine cave in case and the question in that one was whether they wandered off the property intentionally or unintentionally and i don't know if they raise the issue of the full measure damages but there was no i'm going business concern it was not a question about whether or not people lost profits at all it's just a landowner that happened to have some coal next door and that's what they use as a measure damages i would be somewhat resistant to looking at ancient pennsylvania coal cases as authority for tortious interference with the servitude because that's not what happened in the kit is not what the cause of action is about not and this is why i think it is important and i understand it's a separate issue but you really need to figure out what the cause of action is in that in that pennsylvania supreme court case there were there were various types of damage so some was permanent and irreparable to the land but some was simply access some was the analogy to an easement here and the court seemed to be quite explicit that there were only two majors of damages the loss of market value for permanent damage and for temporary damage it loss and rental value given that that's the same way a temporary takings would be handled as a yuga why shouldn't it be consistent across the board that where what's at issue is the loss of access the loss of  and what is the appropriate measure damages when you do that and it wasn't by accident here that in the four services have been a wander onto the property and frankly this is not just the normal easement case either this is going to sort of an easement on easement situation that's correct typically you have an easement it's here to there and that's it it's a servitude it is a servitude and we got there was some discussion about in the district court case whether or not that's an accurate description that's actually the most accurate description and you know had this issue been raising mine around to for example you can bring this cause of action because it's you know not in use my case i don't think i would have gone very far that these cases have been around some short here's the question that the remedy of compensation is also available but it's the same cause of action and so what i did then as i was trying to figure out why is this not in the torch restate what i was briefing the brief for this court i mean this is not in the restatement of torts and as i researched this i found out that they actually placed certain types of towards in the restatement of property and in this case happens to be in servitude and i actually talked to one of the restatement professors that was involved with and i said why didn't you put this import student in sort of professor french and she said well we just made a decision some of the stuff goes in property and some goes in tours but if you look at th concept they've decided they looked at whether or not you have a uniform decision versus a state law decision one of the two restatement is the uniform decisional law that you can rely on just like they did in dublin they relied on the restatement  there is a delay after the sixty days there would be a cause of action against the united states government for lost profits to say well i that's sort of a hyper technical way of approaching it and with it not only  days nobody cares nobody's going to call you loss of profits during that time now and that delay anywhere you ask where do we draw that line i can tell you it's not going to be because he's a conventional well guess well these are not unconventional so these are they tend to be family we're oriented businesses they're decent hardworking people aren't you aren't you then getting into that discretionary exception because you're really talking about well five days ten days what are they doing they've got to make a judgment here they're dealing with it i mean isn't this the kind of situation that discretionary exception is meant to address well here's here's the problem and once again we've got to look at what is the conduct under the law on day sixty one doing could have gone conflict they did go in at some point and they were removed physically the law enforcement showed up and said get off the property illegal too illegal to do that well the reality is over the course i mean first service has rights of progress they have discretion in order to abuse that they don't have the beer saying they were what it was the mandatory nature of of what they were doing was this a negotiation period they were talking about the roads are it's a lot of back and forth about the timber in the sixty days yeah and this was a between threatening the raft and actually you know barring access it's the same thing from a legal standpoint how how so i mean one twenty eight have a physical impairment or interference but what is your authority under line that i'm a threat of litigation it's not for the litigation a big threat to arrest them so what you're saying is and this is what the district were dealt with she said you don't have to get arrested in order to say that that's part of access you should have to get arrested and that's what they were prepared to do and they were quite clear about recognized the district court said that you know that under the f t c a the united states has agreed to waive sovereign immunity and be liable to the extent that a private party would so don't need to look at the an alive of a private party threatening civil litigation and just pennsylvania recognize that as an interference with  that that wasn't proof because i didn't know that that was an issue on appeal that's not part of what you were worried that under sixteen u s c five fifty nine forest service test have the right to make arrests and under thirty six c f r two sixty one point b violations of rules and regulations are punishable by up to six months in prison and i mean there are teeth and a lot of what the forest service does is that not correct that what you're saying is correct but i addressed this in the reply i'm fair market value can require fair market value and the disposition of the timber be on terms that it if it approves that work we're starting get into the weeds and to get into those weeds i would love to do that you have to first service during the sixty days that's correct and at the conclusion of the sixty days if an accommodation hasn't been reached their recourse is to go to court that's the law why isn't it a legitimate recourse on the part of the forest service given the other provisions the  referenced for the forest service to say accurately that if you don't comply with these terms that there are criminal sanctions available because it's not the law of all that's what i would be the same as a private land owner saying you can't come on the property and that the clearfield trust case has been around for fifty years charred tears as the same thing the one thing you can't do is as a surface owner deny access because that gives you veto power bellman blake same thing even if it's the government you can't start imposing conditions on people and as a means of preventing access even that kind of imprint you're not allowed to do but you're asking us to treat that to get out of it enforcement action that  service is actually authorized to engage in i was not able and as of a physical structure there are only up to rise to engage in arrest powers when someone's committed a violation of either the regulations or statute brin seek an injunction or mandamus and then you want damages we're it's a different situation it's a different situation but they're all different situations i suppose if we went on and did sixty one and they were actually arrested and thrown in jail we'd be here on a different because it would have been unlawful and that would have been false imprisonment and false arrest and malicious prosecution and if you up but that's not what happened and what happened instead was they threatened and it was very credible threat they put it in writing i remember i got a call from the u s attorney's office in the early threatening that if minor run cuts down one tree someone is going to get arrested so it was a credible threat and people don't want to have to get arrested in order to exercise their rights the way that know all of that and if you look at judge mclaughlin's comments and the contempt for sitting and you also then look back at mine and run one you'll see that what i'm saying is correct so we're trying to work out something with the forest service but it doesn't work out for service has an obligation to go to court and say what they're doing is unreasonable either because we don't have enough time or because we don't like where the wells are whatever that's their own reaffirmed that it came out of short years been around for one hundred years instead they invoke criminal law enforcement powers and so if you go on the property were arresting you they didn't have the legal authority to do that so to say that well they have legal rest powers so that's ok it's not ok because you have to have a violation of something first whether it's a regular statute or something we certainly said in the three notice to proceed should not be treated could not be treated as a permanent and three is should we take any consideration of the law not being and is certainly clearly established within the third circuit at that time it may not have been established clearly in the minds of the had the authority to go on the property start cutting down trees was mother night before service was entitled the notice first and the district court said yes and sixty days is a legitimate amount of reasonable man time to get advance notice and then you can work out if you can't work it out before service has to go to court as needed in myron what but this idea that all of a sudden in two thousand and seven that they were confused about the paradigm that had been going on for decades and the practice it have been going on for decades and sixty days really meant sixty days just isn't factually correct sixty days notice period but in terms of the significance of a notice to proceed and whether that could or could not be treated as a permit and that that was decided that they created this construct in order to to create the drilling ban here's how this worked they knew that the notice to proceed was just a letter but in order to trigger nepa and this was out of the wisconsin of the general council came up with this plan in order to trigger a need but you have to have a major federal action we can't have a major federal action if you don't have any discretionary authority but that that was the subject of the link fully and very thoughtful opinion change that they made in two thousand and seven based on the c memorandum that was i think created the end of two thousand and six which was contrary to one that had been around for two decades maybe one thousand nine hundred one something like that and so they were well informal was going on they knew the custom they knew the practice they knew exactly what they were doing and instead of having a friendly cooperative relationship they just decided we don't like what's going on here we're concerned about the extra drawing that's gone and frankly i think they're really concerned about unconventional gas wells coming out which the strap on there doesn't really in the marcellus and thick in this area so that was sort of a false concern but i think that's one of the concerns so they figured out we need to stop this we don't wan as far as i was concern under eight and we had a special relationship and intentional conduct so we didn't really have an economic loss problem anyway what i think the supreme court case does in  basically made the same argument the employees may depend and then in the in the recent case they i think they just made it clear so they kind of followed my logic but whether or not we had the second string court case and it meant i think we would have won because clearly there is a special relationship here i mean the whole idea of the economic last auction there was a foreseeability issue third party contract issues and it was unfair to impose twit liability on somebody for some know who these other parties were they didn't know that what they were doing to this person would have an effect on third person that's what the economic law stocks it was originally designed to deal with that's not the case here i mean we had a people that owned the same property and they knew exactly what was going on namely by barring access they were preventing them from doing what about this the scope of the waiver here and e f t ca white why isn't i in congress waived for money damages for injury or loss of property why isn't that a story on federal version of an economic loss doctrine that is that there needs to be some physical damage to the property that was rejected by both tri state and that one at a very argument and i think there was a maryland d c court that said that there need to be physical impact based on the ninth circuit cases twamley and others i would say the ninth circuit cases are sort of on their own footing and frankly that it could get overturned if they're totally inconsistent with trying to stay sober tri state for example you've got the recovery of attorneys fees ok that's loss of money expenditures of money and doubling actually had an expectation of getting a life insurance procedure wasn't you know is that property and so if the the second circuit and the d c circuit both said look we're going to take an expansive view what constitutes property that's totally in opposition to what the ninth circuit skepticism maybe there's an issue here but then it says works pressley declining to evaluate this issue so aside from the fact that it raises the issue i don't think it provides much guidance isn't the injury here that is parallel to the attorney's fees spend  here in the other case isn't the injury here really delay and denied access but really the injury beat then there's a consequential impact that would be lost profits but that the real injury or purported harm is a delay or denial of access and i'm not sure if that's the type of injury or loss that there is anticipated there's two types of losses that i identified and there's a few others but two major types of last one is an apparent quantities lease which is what was going on a lot nine lot of these leases you have an obligation to continue to develop because when that kid is during the last c and so in order to keep the lease alive they're actually had to keep developing property they were interfered from doing that by the forest service in order to keep that we slide they actually had to spend one hundred fifty thousand dollars to the last war to keep police alive because they were unable to meet their commit that's that's an out of pocket is consequential damages that's not that's not a harm is denied access really isn't that if it's an out of pocket expense that was caused by the denial of access it's very similar to the attorney's fees in the tri state case out of the attorney's fees as the actual harm that was the actual expenditure that that list would this was an expenditure to when they had to pay money in order to keep the business and in the other case d'evelyn i think supports the loss of profit because nat when they were they were looking at what constitutes property for purposes of the f t c essay and they took a very expansive view i mean i'm like the ninth circuit that says what actually has  n physical probably in this case the trees which i think is subject to being overturned if it ever goes up because it's totally at odds with an attorney for you recovery that's totally at odds with the recovery endeavor so you've got currently a split ninth circuit seems to be the outlier that seem to be limited to those fire fighting cases because and frankly i'm not sure why they're not contract interference cases because it was a contract between the state and federal government that's how they really should have been decided in my humble opinion but  so the trend seems to be especially with the d c circuit that there is recovery for out of pocket expenses and for other forms of property that don't clearly fit physical property but we rejected the ninth circuit  and that the damages question at me in form but the nature of this claim is under under state law and if i understand your right you're asking us to hold that temporary interference with access to gas or minerals would qualify for farm greater damages than a permanent injury to the real property which would be measured under pennsylvania law just by the diminishing in market value of that property right i think your question depends on the facts and particular case but i am asking exactly what you said for lost profits and i think that whether you look at in devlin they split out the  uniform decision of you versus the state do you when you're sort of going down the state path which i thought was the right way to go by the way and so if you look at the uniform view i think then you go to the restatement of property servitude section four point ten and then you look at the damage section which is it point two and it says compensatory damages nominal damages punitive damages you can't get punitive under the if to ca frankly in this case i think if that were not the case we might have even had that as a claim but so that's where you would look to see if on a national basis there is recovery here but on the state basis they have clear direction from the kinds of in the supreme court about that as  we seem to i mean robbie itself indicates that the that the measure damages for a permanent invasion is decrease in fair market value of property so how would it make sense to allow far ranging loss profits for  temporary prevention of access to minerals and gas that are fully available when that that obstructions removed like i said i've given you two or three different cases where that recovery was  permitted and i do believe it's important to figure out what is the cause of action if we're talking about a taking there's a whole area of jurisprudence to deal with that including measure damages and that's one thing we're not talking about of taking the united states government did not assert that it owned this property if it did that would be a different matter and we'd be talking about it taking whether it became permanent or temporary they knew full well that they didn't on this property but they were doing was interfering with that use we had falls under the other cases that i've cited such as hillsdale escrow couple the other ones and like i said if you want supplemental brief on this issue of damages we can really dive into as many facts as we can make sure it's one of one of the cases that you folks refer was a sewer pipe case it came out of crawford county on this very same issue and as i read your letter said it's this only has for rental value but i went back and when i read the case it looked like  the plaintiff recovered for lost rants in other words they had an apartment complex there was constructive eviction because they couldn't flush their toilets and now they were able to recover for the lost business profit of renting the facility that's how i read it so then you would have to go back in the archives to find out what the complaint actually said but that's how i read it it wasn't rental value it was loss of grants and if you look at the one of the cases it was cited was a laundromat case even under the tate was in yuba there was an argument that was made that there was a laundromat case and that the taking should only deal with the property value and it said no no no that was an ongoing business concern and you can get damages for that too and if you look at the forget the name of the case of kimble laundry so even in a takings context this was the argument that you've made and the court rejected because this is where you don't have an ongoing business operation you were sitting on your gold reserves you had this you know negotiation thing going on but you didn't actually have an ongoing business operation but in kimball laundry they did and so even in that takings context they said lost business profits is ok because you had an ongoing activity that's what we had is it your position with respect to timber and road use there's no regulatory authority on the part for us yes and the outstanding rights if you go back and read my around three that it's kind of unclear at first to live with it for a little bit and get it outstanding rights when the united states acquired the property the minerals had already been reserved to somebody else so the person that sold it to the united states can only four provides i that air that the oil and gas state holder has to pay fair market value or make arrangements for the disposition of timber by approved by the first serv with this issue below it wasn't raised on appeal here there's two sections in there what one of them deals with leaving the timber if if that's one of the ways you can you know give that similar to the forest service that's what during kept asking the forest service to do in this case which i briefed previously and we have an affidavit on file for that but in response to to get service question you don't dispute that that provision of the energy act does apply to outstanding stakeholders i don't believe  created a regulatory framework as as the question suggests i do not believe that the only regulatory framework is the agreed upon regulatory framework now finished my answer when you had outstanding there's no regulations in reserve  context the regulations actually appeared in the deed and that was the whole point is that you would negotiate the deed and this is the one thousand eleven secretaries was regulations and they were pretty minimal and basically they said if if you you know cut down our trees we get the value for them or we get the trees themselves either is fine but you can't include regulatory overlay on it and say and you have to enter into a contract with us and the contract to say this is this is no no love those apart but whether or not there are regulations that were promulgated pursuant to the statute you agree that that section two twenty six zero four a and b the statutory terms apply to outstanding stakeholders right yeah i'm not sure where this is another thing that needs to be briefed if we're going down the path of what i briefed before was that in our situation this argument that the united states was making that somehow the energy act brought in their ability to regulate timber contracting in our situation is not true and i'd be happy to agree brief that so and don't does the energy act apply generally to all these activi sure was congress's intent to start to regulate something that hadn't been regulated before under the we checked no it was not you've made reference a couple times the importance of identifying the true nature of the kinds of action here  and in that regard and particularly given and the demand for damages that exceed rental value of property it's good to watch profits per se why isn't this action properly characterize issue he was looking at well there is a contract overlay to the tort claims in that case you've got employees of your pm see they're required by their employment contracts to produce certain dative blah blah the fact that there are some contract implications make it a hybrid but that doesn't change the cause of the action and other cases that whether it's the do pre k use all of the ones that dealt with this issue sort of came down the same way that the mere fact that they a contract may be out there as a consequential damage issue just like tri state for example you could say the tri state well there's a contract between you turn the law firm and the party that recovered so that's a contract action but it's not the mere fact that there's a contract out there does not change the cause of action you have to look at what the cause of action is actually about what the cause of action here is not whether or not the forest service took too long to review  plans of operations if not i mean that's part of why it happened but what it's about it has a part access to property that belonged to during a movie illegally and that caused harm to do it but we're looking at the nature of the that twere action that is these pleaded in the complaint right and arising out of we generally give a broad construction to that or where what you've let's assume for purposes of this type of claim that go beyond it to what could be claimed for interference with contract why then shouldn't we view this as being barred by the contract exception doesn't capture three issues then when they said well it doesn't capture the met life insurance contract mean any case if you go out far enough you could say well sooner or later the whole reason no somebody is in oil and gas business because they want to sell it a beneficiary you can certainly recover for lost profits that you weren't able to get because someone prevented you from getting after her what you owe on your own property but i think that that's a different question that the action that's been pleaded and does that fall within an exception to the waiver of sovereign immunity but that net that's that's where the interference of contract question comes into play and and where under pennsylvania law if we assume it would otherwise be limited to rental value and what you're claiming this looks like smells like an interference with contract action under state law then wouldn't this fall within the waiver exception prefigures with i don't know it's not have the way that the judge looked at it fairly or hang on just a second which is pennsylvania law there with me for a moment and because it was in the restatement of torts that this cause of action was in the restatement of torch for that reason he came down on the side since it's in the restatement it's not a contract problem and i would make the same argument were in the restatement of property servitude it specifically in this specific cause of action is in there for the same reason that just a sailor concluded it's not a contract problem i would say this isn't what brutus is the nature of the it comes down to under pennsylvania law it's the nature of the legal duty that was breached that determines whether it's a contract or a tort cause of action and it's the nature of the legal duty that was breached the legal duty that was breached here was the duty of do getting greater scrutiny too and that they need sure of the claim where i federal jurisdiction is that issue that is the scope of of an exception to waiver and whether and this it's depleting evade that or whether it's an attempt to evade exclusive jurisdiction of the court of federal claims i don't think we're i didn't believe this to evade anything it said interference with a servitude it's recognized under pennsylvania law question is whether there's damages here so and you're getting into sort of a devil in question and you do follow federal law on this you follow state law in this i think state law the way that they evaluated is element three and element six are related i think that's probably the right reading when you can i say element three and six i'm talking about the six elements that came out of the mire case where they broke down this and devil and the second circuit says we think that element three and element six are tied together so you should really be looking at a state law issue and not so much a federal law for the loss of loss or injury to property did you agree with the fourth circuit in that  it's the what constitutes the gist of the action that's a question of federal law because it's going to questions of federal jurisdiction but then again this is the devon case and they would talk about doing a both ways and then they ended up doing it both ways because they couldn't decide and so i'm happy to brief it because i think we win either way i've tried to explain had that if you do that uniform approach you look at the restatement they actually i've sort of chuckled when i read it they started looking at other states to try to figure out what uniform federal laws are looking at other states and it doesn't really make much sense to me want to look another federal law but that's what they did and so i figure well if they did that then i can do that and the moment at the restatement of property and then if law which is sixty days we should be able to go in and do it that's a law that's where the discretionary exception comes and it can't be it has to be a matter of give and take it to be a matter they don't have the discretion to arrest people who are exercising lawfully their rights they may please the court there are a lot of issues that have been raised in this case i'd like to start where we ended with the discretion function exception because i really do think that is the most straightforward way to resolve all of the issues in this case the distance the question  there is no discretion sixty days that's you know that comes down and that's when the deal must be done there is no discretion after that sound accurate no that's incorrect under federal law the policy is to act the forest service policy your book said that time is something to be negotiated and the logging regulations apply on their face and the road use regulations apply on their face even when there is a right of are alleging that the service acted outside the scope of its authority and you would agree as a matter of first principles that if the forest service were acting outside the scope of its authority in violation of federal law that that could not fall within the discretionary function exception right so that if there is a clear directive in federal law that's when you're talking about actually acting outside of the scope of the authority as to who courts have got are the where we're nowhere near that here why interview we're bound by minute three right and mentored three concluded quite explicitly that the notice to proceed could not be treated as a criminal you could not have an threats of criminal action for proceeding with access to subsurface rights simply because it in order to proceed had not been issued why isn't that what this case in supposed basic terms is about well there are there are several things i'd like to say to that one of course mr three post stated all of the conduct at issue here and was and this was a need but to challenge any ph challenge about the post sorry the forest service is understanding lipa it really did now i go to the question here about how quickly the forest service has to wrap up these negotiations this is not a case and if it were again that would be an e p a action not enough to see action where the the forest service refused to go she added all this is a case where the back and forth took a little bit longer now after  the delay in time but that as as part of the background to the treatment of the notice to proceed as a precondition of moving forward with access to their their mineral gas  rights and in the treatment of that notice to proceed in effect as a permit which we said was injured three regardless of need by and other issues that were relevant there that are not may not be relevant here that treating the notice to proceed that way and making it making access to their property their subsurface property conditioned on the issuance of a notice to proceed with the threat of criminal sanctions if they nonetheless went forward  outside the scope of authority of the foreign service so there are three things that i'd like to say to that one is that after minute three there is and the minute run companies bought a contempt try to get the government held in contempt for not acting within sixty days and the district court said it depending on the circumstances in any given case a period of time longer than sixty days may be entirely appropriate and necessary in order for the dominant and subservient the stakeholders to engage in meaningful accommodative effort and that was especially true in their temperamental effort removal issues as there are here remember even back in two thousand the when when the things that issue at this in this lawsuit happened two thousand and seven two thousand and eight that was the period of time when the dish equipment are going to praised the government for acting in a spirit of cooperation and resolving ninety to ninety five percent of these requests for notice to proceed within the sixty day time period there's never been a mandatory requirement that we act within sixty days going back to a question of the length of time my question is going not to the to the length of time and the arguable discretion that there is there but whether if the fire service is conditioning access on the on the issuance of a notice to proceed threatening criminal sanctions for an entity to proceed in the absence of the nords to proceed and even  notice as we accept prior to acting and the regulations require advanced authorization they require the forest service to mark the trees in advance they require payment in advance and those apply even when tree remov necessary for the occupancy of the right of way or other operations use of the national forest system land and as to roads like every other user of forest service roads they have to pay approach share a program share of the maintenance they can build their own roads but the subsurface estate doesn't give them the right to come in and do damage to the forest service road so the road use permit is the mechanism by which those costs are shared and they are required to have a road use permits for the blocking of a complaint it was where they had hit a road use produce permit and a road was blocked for four days with federal policy federal regulations the f c c a is simply not the mechanism to challenge that congress did not want to challenge is to federal policy through the medium of a tort action under pennsylvania supreme court case law and what we've said heard it isn't the appropriate approach and poor that the serving in the state for the government services state for the government to go in and seek to enjoying their action not not to impose a physical barrier of blocking the road will bring in law enforcement is to threaten physical action is to decide to threaten criminal action discretionary function it is irrelevant what is required by state law like this court said in minute three is required by state law the discretion function exception it applies in less there's a mandatory directed in federal law and of guarding disputes between the surface of the subsurface raise difficult questions regarding how to give each owner the enjoyment of his property or strata without impinging on the rights of other owners and that's why the country famous supreme court did not import easement law into this context the owner of the mineral rights does not have a welding commission to subject any part of the surface to accusation their rights have to be exercised with you were guard to the owner of the surface and they have to that includes running unnecessary disturbance and selecting method and location and as that minor one court said when the government did go to court and seek an injunction  these things can't be determined unilaterally by the subsurface owner negotiation is required here and there is nothing also in pennsylvania state law there's no statute that says these things have to be wrapped up in sixty days the sixty day requirement came from the district court in minor one when the united states got an injunction to stop action said you have to give the united states reasonable notice of this negotiation can happen within sixty days and acting in a spirit of cooperation now of course their position is they acknowledge they have to negotiate but their position is that after sixty days they can go in and do whatever they want that implication of that is that somebody could stonewall for sixty days and then go in and start cutting down trees and in national forest without that where under the midline of cases the onus is on and on a pennsylvania supreme court case law the onus is on the foreign service to seek an injunction not not to impose physical property so minor in three did not address weight use and wadding where there are very specific regulations i'm point it didn't make any decision there but it really is critical that for the discretionary in function exception state law is irrelevant to the question of the supreme court said in berkeley that this court's hadn't avinash it is whether there is a federal statute regulation or policy specifically prescribing a course of action for the employee to follow as this  issues regarding logging and road use that were addressed so from the discretion perspective the discretionary function perspective it's irrelevant because that was an interpretation of state law since mine are one three we've been operating with the understanding that the notice to proceed is something that is issued at the end of a negotiation and memorializes the terms of the negotiation operators want them because then they know that they're not going to get hauled into court and sue for an injunction like happened in the first miner relegation back in the eighty's but we don't for purposes of the discretionary function exception it is that that is simply not relevant because when we're talking about discretion function exception to the f t c a there's always a claim of some violation of state law right that's why there's a tour and this court said in penn bank you don't consider whether there's a duty owed or whether they do to you is a breach in looking at the discretionary function exception and of course congress is really clear that federal policy cannot be challenged through an action  tort that's not what the f t c is for is it your position that the forest service has or thirty to threaten criminal action for the subsurface owner who proceeds in the absence of the issu a clearly established doctrine which we can come back to but is that the case as of now we with mr three in place and with what was pronounced there is it your position on the last that the forest service has statute and regulations regarding lighting and road use and you cannot cut down trees even when that the regulation has even when you have an authorized user right of way you that these temper issues need to be worked out that either way let's sell it or they buy it from us before moving forward is it within the forest service scope of authority to refuse give the forest service the option to permit the foreign service to purchase the timber why and why would that be within the discretion of the forest service when we're taking the complaint to face value and they've alleged the fore service is refusing to comply with its duties under federal his current dressed the bad faith argument for example and bear the fact that the government and even acts in bad thing doesn't get you around the discretionary function exception if it's susceptible to policy analysis if these questions about which trees are going to be in be marked where the wells are going to be located how we're going to preserve the watershed how we're going to handle these  to policy analysis this court said in bear and the subjective good faith bad faith is not relevant and that is consistent of course with the supreme court  majority of reserved rights in the first does not impose a permit requirement and that the first service approval is not required for surface access a notice to proceed is simply an acknowledge in other words they could not condition moving forward on the on the issuance of a notice to proceed you are now saying well they could condition that the precursors to the issuance of a notice to proceed they can make those things as a matter of their discretion conditions of access that doesn't that bring us to exactly the same same place that we said in three was outside the authority of the first service to prevent that subsurface holders access based on and searching of the ability to regulate even if it is outside of the authority of the forest service that is a service that is irrelevant relevant for purposes of the function exception but we've got about state law under three in the understanding of this this is the significance of the notice for see if that was a state law analysis whether the implications of that for of course go to federal law but the implications of the notice of pretty proceed is a state line alice's that when discussed cases like charters block cole and bell then the these are this is a question of access their mineral rights in the absence of an order to proceed so that's not the way we have proceeded after minuteman three but their claim that after sixty days they get to go on for service land and do anything they want that is not something that anything is binding under federal law i would have told the forest service couldn't happen back in two thousand and seven or today and yes we have federal policies that say no notice it to proceed is to be negotiated and the time for issuing you know it's received is to something is an issue for negotiation but i do also want to address the point there are cases where perhaps somebody can drill without cutting down valuable trees without you know maybe have a road use permit because that route is required to get them maybe they don't need to use for service road roads so in those situations you can go forward without a notice to proceed here the sticking points were lobbying and road use and there are these very specific federal regulatory schemes that apply and apply even when there is a right of access you made reference a couple times to the law not being clear or not being in place in terms of the scope of authority before two or three what is your authority that there is some kind of good faith exception or requiring the law be clearly established if the federal court hold that action by the federal government is outside of its authority why why is there with anything like a good faith exception come into play there and i ask this in the context of a supreme court case only vs city of independence missouri as well as the d c circuit case louis overseas united states which you may not may or may not be familiar with but those seem to suggest that  when when the question is did the federal government act outside the scope of its authority that that is fundamentally different from and does not permit consideration of something like a good faith exception because then it's not a matter of policy or discretion it's the courts making an assessment of whether the government has acted within the law or not i don't i don't have authority for the fact that it that it predated but i do think that it is very important to remember that when we talk about especially function and when we're talking about the what is required by federal law there was no requirement in federal law there still isn't and after minor one three of course the district court said there is still depending on circumstances a given case a period longer than sixty days may be entirely appropriate and necessary there so there is no requirement in federal law minor when three is interpreting state law which is not relevant to the treasury function even there there is no requirement i would like to answer the questions that the torts section seven seven six c which says there is no tort liability for interference with the ability to carry out or make a contract and that's true in the car even here the contract  one there are two alleged contracts one is the country that they had to renegotiate because they didn't start growing early enough and the other in the future advantageous sales contracts so in a can remember this is a case where a whale rode a train derailed and destroyed the employees workplace and they work suit against the whale road and the court said no this really arises out of your employment contract you're not making any money anymore because you have no workplace that's about your employment contract the same thing is true when we think about arises under contract under the contract exception to the f t c and right in smile we had a dentist who was ironically called for the national for the army reserves lost money because he was not able to see patients during that time and the court said no that eliza's out of contract your contracts with your clients and your precinct saying somebody who was able to work for a third party because the government how the security clearance he said no that arises out of contract you're you're not able to  personal injury or death if it meant any legal injury they wouldn't need that whole list this is a statute that came out of motor vehicle accidents and it's no accident that that that list is here but of consequential to property right denial why would there be a need for the interferes with contract exception there's nothing that prevents congress from coming up with a belt and suspenders statues i don't know all of the contract claims that somebody could come up with then you know maybe somebody has a  property well you could have a contract case that raises a lot of property question first for sure so you might need the m the contract exception in that circumstance didn't and seems to direct us back to the duty the source of the duty and the relationship between the parties so it's not just interfered with some pitch or contract with a third party but looking at whether there is a contractual relationship between the two parties issue what is did you disagree with that reading and if not what is the source of a contractual relationship here between on the government and during the contractual relationship between the government and during we i think that the court indictment talks about duty it also in footnote twenty two leaves in place akins in its embrace seven hundred sixty so that is where this arises in contract for for those purposes but the key here in terms of the state line alice is when you start thinking my duty is that in over one hundred years of pennsylvania cases balancing the rights of the owners of different strata there is simply never been a case where somebody got damages or lost profits because they were delayed in accessing their their strategy and i think there are three different at least three different ways to think about this one is the economic loss doctrine another is that this is  property with the damages would only be the last rental value now ask roe is the one case that i found that that seems to go against that but there that was there were there  come for mineral rights we're trying at the profit it may be made from a mine you know the imagination i'm quoting may indulge in visions as glittering as the caves of aladdin right so this is really a circumstance in cases get worked out in equity in the absence of complete destruction of the minerals because as the hands of a shrewd court said insurers we have to we have to balance the rights of these different strata and that's not something unlike easement case where you know exactly what the easement is when we're talking about balancing the rights of the different strata that is not something that is that we know the answer there has to be as the court said in minor ground one a negotiation a back and forth surface owner of the mineral rights owner can't unilaterally determine what is going to have the least impact on the state law if there are no wadding or road use issues it may wear very well beyond us as a matter of state law to to seek injunctive relief but  there is no excuse me but there has never been a case where for a temporary deprivation of access somebody's got damages so even if the state law is that we should go to court and seek an injunction instead of trying to enforce our longstanding regulations about logging and road use even if that is the the best interpretation of the law there still wouldn't be money damages as a matter of penciling a lot of course we wouldn't get around the discretion function exception because what we're talking about here is is state law for damages for a temporary taking on facts almost to the exactly like this right that's that's  a why isn't looking at it as a claim worse i mean the question of the extent of damages and how to calculate damages and something that may be the subject of your expert testimony record is is different than whether there is a cause of action for damages why isn't given rob and the deed case that we said you too and the analogy to a temporary taking what why isn't it perhaps damages that are limited to rental value for the temporary period of loss of access so never in pennsylvania law has there been a claim like this for damages if they this is not a taking they still have the mineral rights but even if it were a temporary taking as the court points out they would have to be in the court of federal claims that's an entirely different claim and they wouldn't get lost profits which is what they're seeking here i believe my friend at the bar said that rental value here is not worth anything so this is a situation in which  rental value of the property for that period we look at what point have asks who are we look at plaintiff's complaint of course and the complaint here is not for the last rental value they are asking for the money that they could have made the money they washed me to goshen a contract which gets us back to the fact that this really alliances in contract that they're just like small and you pre they are seeking damages for something that really came out of their inability to make advantageous contracts in the future do you agree that the the fact that a clean could be brought on as a contract claim or a conversion claim it doesn't change the fact that it was broad as i mean of of the tour but it doesn't meet the elements of the tort and that's that's no accident we look at their complaint and what they're asking for it really  convert it into interfered with contract leave the centrally depriving ourselves of jurisdiction i refer the court back to small and you pre which are very very similar to the facts of this case where  in that in many ways they're not similar but they're similar in that the complaint in both of those cases was the federal government did something that cost me this advantageous future contract and in both cases those were covered by the contract exception now however the court wants to look at it there really is no accident that for the last hundred years there has not been a case with damages for a temporary destruction where there was no temporary i'm sorry temporary interference of access where there was no destruction of any of the resources if there are no furthe questions same as the court to thank you your comment about bootstrapping isn't accurate here's the problem you don't states of america doesn't create regulations for the allegheny national forest they create regulations for every force in the country and so if i want to go cut down some timber in some national forest i have to follow the regulations if i want to and that's what a lot of timber cleavers do that's so they have to follow the regulations if i want to develop oil and gas reserves that are fed only own and i have to follow their reserve the only regulations that apply to the ones that are in the d that's it and so this idea that we can say well the reason that the federal government has the authority to arrest these people is because they violated regulations that clearly did not apply it's just it's basis and the idea that all minor little hadn't been decided yet also fails because if you go back and look at their manual and their handbook they knew all this are you saying that this is the road use and that the timber logging you had no need to concern yourself with this at all we don't have to follow the regulations the need to concern ourselves with it is part of the sixty day  blake all of those cases that says that the subsurface owner has a right to go on the property without interference by the surface owner they don't have a veto power they don't have conditioning power like regulations he just don't have those powers the federal government in this case knew that he didn't need to wait for miner to run three minor a pretty basic we affirm what we already know they made an argument about the property clause what bellman blake was about double blake said look we know what the law is for went through the same thing and a federal context slightly different arguments but it was the same thing where the federal government is a public resources we don't have to follow pennsylvania law anymore even though they knew back in one thousand nine hundred that they did which is why they capacity without paying anything what has worked out as a matter of policy is that there are certain maitland's costs that any road has and so just as a matter of being a reasonable surface user they will period but i don't think they can arrest them for going on the road to get access to their willes because in pay road fees could you could a new road on the sixty first day yes would do an access road near to for service have all this information before the six days even starts and that was one of the issues that came up in the contempt case as they were saying well we got four out of the five pieces of information so it didn't really start yet you know that sort of thing but they have all this information and so if they don't like the plan and the user to hit me in the field to it with these all knowledgeable people and if they say for example well we don't want to hear how to put suggested earlier that that the forest service was negotiating i referred to those negotiations as a matter of policy which would seem to take us straight into the realm of discretionary function exaction now extent there's negotiations that there are on both sides and if the if the gas in the rural owners also have believed themselves even to date to engage in negotiation concerning for example the fees for accessing the ro the forest service decided to change the rules that's what this case is about and this isn't about when everybody is cooperating this is about what happens when the service owner decided you're not coming on the property anymore and we're coming up with this reason and this reason and that reason the other reason and we don't really care about this whole sixty day business and so here's what george mclaughlin said about the sixty days we have previously caution that forbearance on the part of men on his be on the initial sixty day period while not legally required may be practically advisable in order to exercise appropriate due regard for the for service of state i think that's what you're saying we also stress however that the four services processing of drilling proposals consistent with mine are grown  one paradigm and are directed to mine are going to should not be viewed by the forest service as merely an aspirational goal it is required i'm reasonable delay by the forest service be on the sixty day period increases the likelihood that mineral owners will simply choose as would be their right to commence drilling activities prior to the completion of the interactive process as a result in the absence of filing its own lawsuit the forest service could lose the ability with respect to any given well package to supply meaningful input concerning issues it considers important to preserving the integrity of its serbian estate that's the law and so if it doesn't like what's going on at the under sixteen period even if he we haven't had enough time which in most cases if that's what was going on they would have been given extensions but that in africa steps they said they're not going to have and it was all part of a grand scheme which led to the drilling so  equity and you would prevail but whether under as to this issue in the federal tort claims act discretionary function exception comes into play because you're in a realm of subject matter that is the subject  they're not a policy decision that was actually in new jersey district court case i cited you saying i'm a land management decision because it has to do with land and management it's not a matter of policy and some of the decisions really are more judgment calls i'm just get back to mine around three and a lot of these issues yes we've raised that we think there is issue preclusion on for example whether or not they had the discretion to deny access after sixty days answers no and that was what again and so i'm i district court discuss the case i would commend you to read escrow in hillsdale because i think there is pennsylvania precedent for this type of situation for lost profits or so i got pulled into this case because minor run company is a client of mine and this thing came up and all of a sudden they're going to destroy an industry and that they really did try to destroy fi conventional oil and gas industry by delaying for years and the people being laid off if you go back and read some of the minor run testimony from the various people that came in and this was off i came right after the great the so called great recession and so and they knew what they were doing because the martin statement showed that they knew what they were doing is that this is going to have a bad economic impact on people i think pennsylvania law recognizes that if you knowingly do something that's going to have to have burst economic impact on somebody number one hundred tort you get to be