moses h kong case as that case was interpreted by the ninth circuit and defendable highway this litigation was initiated by the two tribes in two thousand and six seeking to quantify their water rights and waters in the santa margarita river system it is now twelve years old the stated purpose in filing this litigation was that there was a concern by the tribes regarding development around the tribal land by the neighboring land owners on june thirtieth of two thousand and eight the initial stay order was granted by the district court just help me understand what precisely was the your claim is that my client claims a right to some of the same water that is the subject of the attempt to adjudicate the water rights by the tribes they live in the same area the water that serves prevents him from developing his property and prevents him from developing or selling his property well both but as i thought he said selling his property but it was developing just as well as the  the the issue is whether or not he can obtain the permits necessary to develop the property and part of that process is you have to obtain a permit through the county of riverside that you have a water system that will support a development and based upon the existence of this lawsuit in the stigma associated with this lawsuit there is in fact been no development of any of the properties in the answer basin as far as master development so the state basis is the why this litigation was initiated was a concern for development in the area in fact this lawsuit in the state that is now in over ten years has a fit and effect precluded that development could interject a question yes if so well as arguments that you just made those could all be presented to the district court which is exercising its discretion whether to extend the stay were stopped at night so you made those arguments follow the my question is what evidence is in the record about whether or not the district court is continuing to address the issues here and if the district court imposed a limited stay for like a set period then he's going to keep doing that indefinitely to basically put you out of court so how do we know know that well  think ten years is probably of a pretty sufficient basis for for showing that there is a continuing interest and stay the test under the most is h cain doctrine cone doctrine and also under dependable highway as far as terrorist action is is the party effectively out of court well this state was issued in two thousand and eight mr burnett was added to the case in two thousand and nine when the state was already in place he's never even had the opportunity to file a response of pleading so in june earned january of two thousand and seventeen when he filed his motion to lift the stay that stay had already been in place for over nine years the district court denied the motion and this appeal followed but we submit that mr burnett has effectively never been allowed to get into  court he has never had the ability to respond to the complaint typically a stay is issued on the basis that that there is a collateral proceeding in another form that will impact issues to be litigated in the district court case there is no collateral proceeding in this case there is no state court action there is no arbitration there is no administrative proceeding all that there is is a celebrant proceeding and that settlement proceeding has been ongoing for over ten years we found no report cases that would support a stay that was issued solely to allow settlement negotiations we found no reported cases involving the state even remotely similar to ten years in length and we submit that the existence of the stay order even though it is only entered for stated periods of time the fact that it was extended over and over again and that it has existed for ten years has effectively put mr burnett out of cour we do under moses because if we were to find that the order does not fall within moses then does this mean it does not conclusively determine the disputed question for purposes of it seems like they're very closely related well the reason that this falls within the home and it within conan not cohen is because we have a part of that's effectively out quite the problem we can't even get to the koan analysis because there are no circumstances where a case has been settled for settlement purposes or there can be any adjudication on the merits of the case it simply cannot happen there is no procedural mechanism in place that can mr burnett to consent to any settlement that is ultimately reached at the end of the day even if the other parties are somehow able to reach a settlement which after ten years seems doubtful even if they can there's no requirement that mr barnett participate in the south and the district courts analysis that he can to either object to the settlements or he can he can try and get his position through the settlement doesn't make legal sense because an objection to a settlement is not nearly close to having an actual educate education of his claims or his defenses in this case he's not been able to raises the fences so this is not a class our it is not so we don't have the traditional problems of opt outs and so forth each of these three thousand defendants is individually named direct and have been served another factor that was cited by the district court as is the complexity of the case and the management of the case and the fact that there were three thousand defendants that had to be served that are took place there's those the finnis were served over a period of time and that was completed in two thousand and twelve but the management the complexity of the cases to all of al it reason isn't it is but but  you have you have no has to be a limit to that all of the cases that talk about stay say that you can't have a perpetual state you can't have an unlimited stay there has to be an end to it but you don't post cases the you know the state is i mean there's not any ongoing activity whereas here there's reports every ninety to one hundred eighty days is that distinguishing factor that is important here it's not a distinguishing factor because just because there is progress doesn't mean that there's ever going to be a solomon there is no guarantee in this case that there will ever be a settlement we could get five years down the line we could get ten more years down the line and we could be at twenty years and we could be without a settlement and to order to change or it conceivably could there are other factors the needs of the parties could change but while that is ongoing while the state is ongoing you have all of these property owners including mr burnett who are effectively precluded from using their land for development purposes and all of the cases that talk about why a stay should be lifted or why it should be removed talk about the fact that justice delayed is justice denied you can't continue this into perpetuity and that's what's happening here and the added complexity of having a settlement be the basis for a stay is  air no guarantee that the settlement will ever be achieved there's no guarantee that there will ever be a resolution of this case by settlement so this is a circumstance where although initially i could see why the district court will want to issue a stay for a short period of time the circumstances have changed once you get past a year once you get past eighteen months all of the pieces say that's too long the dependable highway case that was a finding that two years was too long because there was no evidence of the arbitration with the one for the of the blue cross case that was a case where they found that eighteen months was too long no court has ever even addressed the issue of whether ten years is too long so tell me what happens in these periodic settlement sessions well counsel for the trial would be better apt to respond to that question because they actively participate and where do you go do the three thousand people grow there is a committee of landowners that was formed that has a voice but that committee has actually be opposing the stays in recent years because of this very issue that there's been no development and the hands of base and because of this lawsuit and it continues to be an impediment to any development one of the factors that the district court relied upon was the fact that although there's a settlement agreement in place where the parties are drafting a settlement agreement so that means that someone must be eminent well the settlement agreement has been in draft form since at least two thousand and twelve as reflected in the record so it's that the existence of a settlement agreement is any indication the settlement is eminent we also had statements in opposition to the motion to lift the stay in january of two thousand and seventeen that they were hopeful that the settlement would be achieved within a year that is the time these parties of had alpha longer changey to try and resolve their disputes this cannot go on forever mr burnett is intitled to follow his response by way of his motion to dismiss and have  so unless there are additional questions i'll reserve the rest of my time that's that's fine that were alluded to by opposing counsel and his argument the development the question of whether the non indians can develop their property to the extent that there are difficulties there that is not directly tied to the tendency of the tribes or relief of any kind to complain ask for an injunction at the end of the day and a final decree of course to protect the water right that the court decrees there's no injunction in place there's nothing to prohibit him at all from installing individual wells in his  finality how much water they're going to be able to use in perpetuity and equally important the priority date for that water right because in times of shortage if there's a priority administration that will mean that the jurisdiction i don't i think i don't think that even puts mr burnett out of out of court i mean that he had multiple opportunities to object to the stay and he participated in the in the formation of this defense if the landowner defense committee in two thousand and eight and for a number of years participated in two thousand and ten withdrew from that and has not been standing on the sidelines since then so i think it's up to the case for now at least anyway he's not bent out somewhat facetious because this claim is route i mean susan this story is just seems to me to be just kind of routinely rolled over year after year after year after year and so my my question is supposedly last another fifteen years does he get to come and object to the process before us i understand the question i don't think it's fair to say that the if the  periodically he has invited confidential settlement briefs about the progress we're making he meets with us in his chambers we discuss this this is an engaged process whereby you know i was always told my girls don't confuse your effort with results you know if if if the if the state stays i mean let me just say another component to it as i look at the record there is no set into this process in sight it appears that the issues that the magistrate judge is wrestling with and the parties are to trying to settle have to wrestle with are are getting more complicated by the year i think they're getting they're getting simplified actually and i think if they were there to last for another fifty i don't think the tribes would tolerate it stay the last fifteen years the tribes want to get this case we've been working really hard i'm not talking about someone process i'm talking about the issue that you say you're up motion to extend the stay but a periodic basis and the stay had a beginning and an end and the district court judge looked at the circumstances and determine whether those circumstances had changed according to a political legal standard i don't think we can say that   the case is some dispute about that but doesn't he have a right on some reasonable schedule to have the claims that you indefinitely which is i think your question then yes i think he probably is effectively out of court at that point but that's not what's happening here that is not the process we have we are you know this is the record of course i closed at the time the notice of appeal was filed but we are making progress i know mr burnett has heard that before we are getting closer and closer to getting a settlement i'm optimistic about that happening would we have liked to have had this finished sooner of course but mr but mr burdette had the opportunity to participate in that process as well the settlement process he could object to the stay or go and participate in the settlement process he did neither one he stood by for a look at seven years and now he's coming in and potentially up ending a process which we think is nearing well he probably has i mean it seems to me that's getting it backwards he probably has better things to do with his time and you come to these meetings and you're saying that having been he hailed a new court he's got a pretty dissipate and settlement conference is in settlement conventions year after year after year him to participate in the process i mean it's not it's not about i mean i don't how it how you prioritize this it's time but this is a critical apparently a very serious problem that he's economical what you're seeing is a misstep in years of meetings that you can't get passed do you agree with that we don't get to the cone factors if the if and if the if if the most is h cone standard is not met that is i'm not sure if i understand school did you have a question yeah i guess i wanted to ask the tribes lawyer first l my response to that is that it really depends on the circumstances it depends on whether the distance the district court is not examining the circumstances during the at the end when the time of the stay expires or simply rubber stamping  applications to extend and that goes on and on for years and years i don't know i don't like it could fix a date certain in the future when that would occur it seems to me there would come a time which that would that work in which that would be true and some other that's just does that mean that every time there's a stay if what you say is the determined of considerations that every time there's a stay we've got to look at the adequacy of the district which is denied and and and its appeal to this court then yes you mean you have he would have to you would have to determine and that's that's goes to the i think that goes to the abuse of discretion question it's really the fundamental problem with all of read to get controversies are reasonable you can just stay something year after year after year after year but you know take our can take us on take us on process so that all that suggest is that there's no end in sight based on what you just told this isn't the end is inside as i say the tribes are limited resources are not going to be part of a settlement process that goes on for another ten or fifteen years i think we we would prefer to litigate we litigate this case the average length of time for indian water rights litigation as we know it is decades so this is actually a short period of time to counsel i have a question about art caplan have a question about our jurisdiction what if we concluded that there is no final order now that the requirements of the current case or the current case are not met and there's no jurisdiction do we have jurisdiction and our order just say that's true now but as as to the course of conduct here if the states are extended beyond a certain period of time the court will have jurisdiction i would think that that's a good nature of advisory opinion if you don't have jurisdiction to review what the district court did the order here i would think you would have jurisdiction or authority to issue any orders related to that order but that's my this case that was done by the district court that was the district court's job and unless the court the district court clearly abused its discretion did not adequately weigh the competing interests or did not find that there was sufficient evidence in the record to support its determination that this case qualified for a stay you need to affirm the district court's decision and that's exactly what the district court did in this case the district court did everything right in accordance with the law supposed to stay continued for another fifteen years we have jurisdiction at that point the same thing happened that happened at the last settlement convention well the if and you have to remember this is one part hussein he doesn't want the state to really get that i understand that there are thousands of parties that are at the table negotiating looking and it's the district court that's in the best position to requires us to every three to four months to come back to the district court and show and demonstrate to the district court that we're making progress in the settlement so suppose every every time you come back the district court says i'm satisfied that you're  working diligently to resolve this case so i'll keep to stay in place my question is is there some that well the supreme court in the decisions of this court haven't said that there's a specific time period by which when there was a case like this well again what the standard that you're to apply is is that is that is is the is there are a based on the evidence before the district court can the case settle within a reasonable period of time are the parties making progress for reaching a global settlement ten years is a long time i've never heard of a seven month convention lasting ten years where you have to understand you're out of there's a number base in the lower base and one of things you have to realize is the lower base and portion of the case settled just recently i mean if you look at the district court's decision it was one of the factors he had recognized that the parties reach a settlement and that the issue was going to congress for approval and was coming back to the court for approval which is a services settlement have to get congressional approval absolutely here on that time period to get congressional approval from washington the time provable to the time the average time this is the average time for you i'm sorry to interrupt is on the average time period to get congressional approval alone in these cases can take up to five to six because of the process so this case is never going to sell you know life well as i and that actually helped us the parties in the upper basin with respect to our settlement possibilities so when if we're going to settle anything that you want my opinion my opinion on behalf of my clients representing my clients we need to quantify our water rights i have six hundred members that don't have homes on the reservation because we don't have a definitive amount of reliable water to provide a potable water supply to residents so just like mr burnett development on the reservation is not occurring not for residential development anyway so if we can if we can't reach a settlement of this case within a relatively short period of time we're going to call off the settlement and we're going to go to litigation because we don't have any other alternative my client's going to do that at the point where are your no where we reach impasse in the settlement negotiation process where we are no longer identify and solving those issues when we reach that point then we're going to call off the settlement and we're going to court all right do you have any other questions and i have the same question last year khalik well who told me that that my idea of whether we would be able to put a term of years in our welling but he felt it would be that we couldn't do that it would be an advisory opinion however it does occur to me that  on forever and we could have an analysis that said that if the states are extended beyond a certain period of time it seems what you thought because there has to be some way to get a message through to the parties then to the district church that this is it is not going to go on forever from our perspective well i think there's really two finality issues here there's the issue of whether he is in fact of lee out of court because of the length of the goes to your issue of jurisdiction but separate and apart from that which is the issue that i'm interested in is whether or not the district court abused its discretion and granted that's the way the district court has to weigh the competing that is interest is his right to get is the right you to get but i know i are i understand that in your argument on that but i thought that we could not reach that issue of abuse of discretion apologize for interrupting your argument but i'm having trouble not putting first things first from my perspective and trying to figure out if we  don't have jurisdiction if there's any way we could light a fire that would help get this to a conclusion if if if you don't have jurisdiction then i don't other than the other then to express in writing your opinion that you don't have jurisdiction your concerns that at some point in time the length of time has to be considered in determining whether or not he's effectively out of court and and and i agree with that i don't think he's effectively out of  court at this point for a whole variety of reasons which my distinguished colleague dres most importantly is the fact that the tribes have never sought to enjoin his development the district court has never issued an injunction in joining his development his right to have his water right adjudicated in quantified he says is necessary for him to develop this project and that's his interest but in fact he's free right now to start drilling wells and put in wells to provide wells for each of the individual homes he can go forward with his project so his his it's a is that is that is that economic way to develop these also it's no but but we also spend seven losses and that was the career tribe that raised it we think that there's a solution to his problem we have raised that issue in the in negotiations and we are active the parties with that without him it would be nice if he would come and participate to help us but we think we're coming up with a solution to address his issue so we can get his community water permit but when you compare his interest to have his his right to adjudicate his water right and quantify his right compared to the thousands of others and the money the moment you give him the right to go into court and adjudicate his right now no then we are in the litigation mode even if we only have one or two issues left to resolve to reach a global settlement we are in a litigation mode because the district court can't determine what his rights are without affecting my client's right so now we're going to have expert witnesses on practically what's the practical irritable acreage what's this is state ability of the basin what are the whether or not th forstmann purposes the basin has to be wells have to be installed and have to be monitored there is such a complexity of issues in this case that the majority of us the thousands of other parties we recognize that if we can work out a settlement that benefits everybody so that everybody wins as opposed to litigation which mr burnett can roll the dice but if he loses my clients have a priority date that goes to eight hundred seventy one and we have a right to irrigate all of the practical irritable acreage on the reservation which is according to our expert witness is is well over the amount of water that's in the basin and in a water shortage in means that nobody else gets any water all right thank you very much you're welcome christian thank you bob just a couple of follow up issues i'm i think i'm a bit confused on what your client can and cannot do in terms of development what he can do as a practical matter is he can develop his property by individual wells so he could put a house on and on the property and he could then service that house with a well for five hundred acres if you wanted to build through a and established water system and that's what developers do that and that's it that's less costly and what makes the houses more desirable what's what's one of the trade or serum ana that this substantially less costly and it's also substantially preferable to a homeowner to have an established water system as opposed to having to rely on a well as the source of water and why my client is out of court is that he's never been able to address this case on the merits he's always been forced by the terms of the state to participate in the selman and his claim or his defense to this action is that his water rights predate the travel rights they talk about their own water rates going back to eight hundred seventy one he says his water rights were back to eight hundred sixty three and then they come from a grant into the river of act so that's the basis of the motion to dismiss if we're right and he has priority then we should be dismissed from the lawsuit we have no opinion on that course i understand but that's why he's effectively out of this case you can't raise that defense as far as the abuse of discretion i will point out that the the standard to be applied by this court is less deferential than what you would normally consider on an abuse of discretion standard on the call and the reason that i said that i don't think that it can be applied in this case is the the first factor is that there's a conclusively determined disputed question based upon the existence of the order meaning that the order that is being appealed conclusively determines an issue in this case the order that's being appealed the only conclusive effect the stay is in place while the stadlen the go she actions are ongoing so it's not an order that that determines an actual legal issue such as if the stay was in place to allow the administrative proceeding to make a final determination it's a stay that that is in place to allow for a settlement which could never ran out and that there is no effective indeed and that is the difference between this and what you normally see on stay the judge parker said he was a trial judge trial judges know how to settle cases you settle cases by giving parties a trial day you've given him an incentive to settle there's no incentive to settle this case as long as the stay is left in place give them a trial date lift the stay this case will settle thank you very much appreciate arguments on this thank you both very  indians versus gregory burnett