morning made the court and you have the audio where is the audio working for you are you hearing everybody i think so if i'm not hearing them i can't tell individual landowners that this case is about whether indian landowners can pursue for trespass protect their land without having to rely on the government to do it for them before getting to the way across indian land and the last sentence of section one hundred and sixty nine dollars says the that the purpose of the skiing is to quote deferred to the maximum extent possible to indian land owner decisions regarding their indian land that purpose of this is is crucial to to interpret ing how these regulations work the purpose is to give the indian land owner as much control over their land as possible and se or the individual in so the tribe control over its ownership interests in the land and the individual indians control interest in its ownership over the land are bolz addressed and and the purpose of the scheme is to defer to the landowners control over their land regardless of whether it's a tribe or an individual because both the tribes and individual indians own interest in indian land and that's what i can do if i can you on what interests me most at least is simply this i understand all those big purposes but there are many times that people have very big constitutional rights but they must exhaust administratively remedies why isn't this a case where you must exhaust administrative remedies the simple answer is there is no administrative remedy to exhaust the other side has admitted that the i a e a is not in power there is nothing in the statute or the regulatory scheme that that the agency action that's on administrative appeal purports to grant remedies now they're subject to judicial review but that's not a lack of remedial authority well it's the decision by the b does purport to set some kind of penalty or pass rent they refer to it as a penalty in some instances and they refer to it as a sort of past rent but that's that's the nature of the penalty it does purport to do that there we don't know where in the statute or where in the regulatory scheme the b a s empowered to do that and i don't i don't agree with it i don't believe that's for us to decide well it is for the court to decide whether or not there's an administrative remedy available to us and be no no no no no that's not an art that's not our job description that's something that's in the job description of the court of appeals that ma mentally review any actual final action the agency takes no your honor with respect that we're here because we've been dismissed to go pursue some administrative remedy and so the question right now before the court is whether there's any remedy for us to pursue their opinion trespass determination it purports to impose some kind of penalty but it also at the same time other words can you can both of those things be true that you have to exhaust and the i can't give you the full release not in this case because that's the whole point committee decision by the supreme court that we don't have to wait even if there is an administrative remedy of some kind we don't have to we for that the do whatever it is do we have our own right of action to protect our land and the body decision makes that pretty clear we don't have to wait and i think the quote is something like the feel of a government attorney the didn't take any action for seven years they took action the timing of this suggests that after the district court dismissed our case to be decided to try to do something but for seven years to be i didn't do anything and we don't have to wait for the beyond the opening case address have all exhaustion is the word exhaustion or anything like that even in the opinion side the other side point is that it doesn't have the word exhaustion or exhaust or any concept like that and it and i didn't see any quotations that said and i don't think the court found any but i wouldn't swear to that so tell me again how that affects an exhausted nation the question here is whether or not there's any remedy to exhaust so the court to look at the statute in the regulatory scheme to see if there's any administrative there's nothing provided for any kind of administrative procedure or remedies for us to exhaust the post of the case is about whether we have to wait for the government to take action on our behalf by filing suit which is in this regulatory scheme but both committees that we don't have to wait you want to go back to your primary argument my question was not like an answer why did you not part argument or a stay in the alternative because we didn't have any we don't know what we were staying anything for the cia took this action on its own nobody asked you to do this at the time that we were asserting our files of action and then appealing the dismissal of that cause of action there was nothing we didn't know what the i was doing there was nothing we had no reason to think that there was something to anything but law and then a straight a lot of required exhaustion nonetheless but that is exactly what we're saying is the administrative law here doesn't require that there's no regulate because that's your that's your that's your art council it's your argument you now i know there's a filing fee and some other technicalities but is it a motion to dismiss when it's granted without prejudice about the same as  stake i mean in practical effect if it's essentially similar to that yes yeah i think so ok thank you very much and i can you see the clock i just happen to think about yes i can see that  does it affect your auction i mean if we were going to challenge what the b i has done then we could amend our complaint on remand to include a challenge to  or so so yes if we wanted to add a challenge to what the b i has actually done we could amend our complaint to to add that and that would expand what what our suit is actually about but again our position is that well what was your counsel even if you say you want a man or you might amend the compline henri man to challenge the agency agent ongoing agency action which is obviously a collateral  effect on an ongoing administrative proceeding what's your best authority for that well it's not an ongoing proceeding now at this point the feb th latest on administrative appeal is on administrative appeal no it's not your decision so there's nothing more happening at the there's a december th decision that was affirmed and everything was dismissed without any briefing by the way whatever industry proceeding was happening didn't even fully happen nobody got to fully briefed anything before the yet that the oil company wants to challenge what they did they could sue to appeal that decision in federal court or we could amend our complaint to if we wanted to challenge it we could amend our complaint to challenge that decision at this point also to do anything whether it's administrative or filing suit on their own behalf the case was pretty clear that we have a common law right of action under the oneida cases in the hope of baby we can sue for trespass without having to wait seven years to do something discussed this is in particular in light of the v a s expense of an orderly administrative system which was in place and that the is carried out in furtherance of its congressional authority delegated to the secretary of the interior and particularly in light of the  invoke exhaustion and explain why in the court's view the we needed to continue we needed a final answer from the agency in order to channel factual and other aspects of what proceed in the commonwealth action the agency analogy should a final order it has recognized there is a common law action seems to mean that the end of the equitable traditional reasons to exhaust non statutory ordered that that pipeline remain in place so with respect to those issues finally agency actually has been taken which to the extent the party wants to challenge it they would do so under five u s c set of four through a p a review common law damage claim will survive whatever final action the agency takes on all these issues why isn't it appropriate for them for a federal common law court now to say we need not wait longer for the th century just give me a supreme court case that is that is recognized that congress can grant an agency exclusive exclusive authority to enforce it private parties common law because the facts are on that particular point i am not aware of a case but i respect what i can almost i can back and bet you get all of the number of hamburgers but there isn't one and i guess my point there is under the regulatory well and the may comes in they may or may not decide based on the best interest of all the collective beneficiaries whether to bring that action i think it's important there well why are there two or three mice in there that's not that is a council you know about situation where you're in the renewal process there's infrastructure that's been in place there's a number of allotments and tracks and beneficiaries whose interests must be considered to be a great sort of that right away the party to that right away not theologically the grants for that right away is the big and they have a trustee obligation to all of their beneficiaries which includes not only these particular lotfi but hundreds of other a lot and tried to sell there's decision as to whether or not and how to pursue these remedies and that regulation specifically provides for that ok now i get your argument but at least in my state in verse condemnation if you understand that term that may just be a missouri ism with respect to lottie's and their individual allotments arise under state law and federal law there is no federal common law trespass for individual law see this court in the wall trial case in the shell case addressed that very issue that there is no ownership out rights and the land being held in trust then would there be a claim i don't believe so your honor i think the courts have been clear that there is no distinction between the t ype of allotment that is that issue whether it's restrictive or trust and also no court has ever distinguished that i'm aware of this issue of whether or not the trust council you know talks about you know patent issues and that there's a distinction there when when the case is referred to patent issue when patent issue for both trust allotments and restricted allotments that patterns and it has a result they are no longer tribal lands there are cases that specifically say once patent issues and that allotment is issued it is no longer considered tribal land and as such under have a follow up question on the exhaustion can you direct me to what action in particular you're saying that the individual landowners needed to take pursuant to the regulations what administrative steps did they these other photo agency actions reserved for itself the right to make the decision under force and whether or not to bring the action on behalf of all lottie's taking into consideration the collective best what's what  they reserved the opportunity to pursue those additional damages but i don't remember them being language saying exclusively to the b i and not to the landowner  specifically says in addition to the action on behalf of the a lot of these landowners can bring their own individual suit that language does not appear forks and therefore for a plain reading of that it was not intended for that to be either in the decision which or from the december decision the the b i a specifically says that for ten applies here or not for thirteen it specifically said we understand the argument has been made that for thirteen bring a claim but i believe that that is clear from the regulation itself and from the decision again this court could affirm both on exhausting grounds and on subject matter jurisdiction grounds and affirming some subject matter jurisdiction grounds would simply require that this court's binding precedent of well filed shelf be applied which the trial court could have done as well and there's no need to remain that issue back to the trial court because it's purely a legal issue with out any fact finding necessary when my time is up but i'm happy to take any other questions that  i'll give you a minute for a bottle of thank you your honor i'd like to i hope i have enough time to try to address both before ten versus four hundred and thirteen issue and the child versus individual issue on the regulations you have to understand in the context consent so fortin addresses the yes scenario and for thirteen addresses the notion that if we want to give consent if we want to renew this right of way as landowners then there is a holdover period if they have not negotiated the renewal of the right of way before the right of way expires then there's a holdover period while we're negotiating a renewal of the right of way and that's where for ten kicks in because we want to say yes or ten doesn't mention the indian landowners right to take actually  because in that situation we don't want to take action against the well company we want to say yes to removing the right of way and so what for ten is saying is we need to let the b i know that there are negotiations going on so that the b i a doesn't take action on our behalf that's what fo about for thirteen addresses the no scenario if we don't want to renew that right of way they need our consent to do it and if we don't want to be new it then they are unauthorised they are on our land without authority and we can take action under four hundred and thirteen dollars we don't have to wait for the that's how these regulations work they are insisting that they're in a hold over situation under four hundred and ten dollars because they've gotten the consent of some landowners but they have to get a consent to get consent from the majority of landowners and they don't have so we're not asians with the try before even starting with the land owners and the big a lot and get away with it so speed i'm not sure i understand the question about letting the insisted that negotiations with the tribe be completed before to sorrow should even talk to the landowners if that's true what difference does it make if i don't it doesn't make any