thank you your honors may please the court but the for appellant he'll river in your community with the court's permission i'd like to reserve five minutes for a bottle you got this appeal arises from a suit over an implied easement on the community's reservation plaintiff sought to expand that easement to accommodate the hypothetical sale of their property to a hypothetical developer this court need not reach the merits because the scope of easement claim should have been dismissed for lack of article three standing upon this court's prior determination in two thousand and ten that plaintiffs had suffered no injury in fact with respect to that claim it's a ten seventy four the prior decision but for the happenstance of an unrelated claim that soon after mooted out on this court's no injury judgment would have ended the case without any further proceedings at all indeed plaintiff's initially agreed on re manned that no live issues remained for adjudication that's at e r three eighteen that was in january given the baseline requirement of article three juristic fiction at all stages of a suit any post remained injury in and of itself could not have retroactively cured that preexisting jurisdictional defect amend their six year old complaint to add a purportedly new claim nor did they file a supplemental pursuit pleading pursuant to rule fifteen d to allege any of those new jurisdictional facts despite the district court extent that the baseline role does not allow for any exceptions right this court has carved out a narrow exception in the north star case which is the primary case they rely on when you're talking about article three jurisdiction it goes to the power of the court the ethical exceptions are disfavor now this court did carve out and we fully accept more star as a narrow exception when a litigant has actually filed a rule fifteen d pleading to do to cure that jurisdictional defect here we are far outside the bounds of north star for a couple of reasons first of all no rule fifteen depleting ever filed second of all they hang their hat on the only thing they hang their hat on is the pretrial order a pretrial order is very different than a rule fifteen  supplemental pleading by its terms will fifteen the envisions curing defects and a complaint the main point of a pretrial order is to set the prospective agenda for a trial another big difference between pretrial orders and will fifteen d's are th come towards the end of the case after all discovery after years of stuff have happened whereas the fifteen d for example a north star came three months after the initial filing and assignment had begun or fifteen the filed and the court said that would have been an empty formality to make them file a new suit here we had anything but this would be the worst possible vehicle to extend or start because the opposite of northstar were there it would have been an empty formality anything but here significant consequences if they do it had to follow the normal procedure of filing a new complaint and that's because of the tribal sovereign immunity issue and they themselves raise that to the district court that's an excerpt of record three o five and they said look if we're actually forced to file a new complaint it will likely be foreclosed by sovereign immunity that's quoting from their pleading it so we are not in the north star say ration is that their statements speak to the possibility of a supplemental pleading in the same action they didn't want to file a brand new lawsuit i'm not sure that that was meant to speak to the question of whether an amended pleading or something mentally reading would have cause that consequence i think that's fair you very very peculiar situation procedural and case have been going on for a long time and then why in argues the circumstances changed  in the case where there's been this kind of evolution did your client wanted to close this lawsuit and force the filing of another one if it could because that would make the sovereign immunity argument a lot better did your client ever claim gee we don't know what set issue here we don't know that the proposed development or sale of the property because that's really what they're talking about but enhanced enormously in value if they had th easement we don't know that's why it's being fought over here so they should be required to file an amended pleading or supplemental pleading of some time to make that clear i don't see anything in the record that suggests there was uncertainty about that being an issue what you're on or not and certainly is the claim in fact what we have it we don't have a new claim at all which is their primary submission right we had a scope of easement claim that was adjudicated in two thousand and ten what change was the factual predicate for that claim they said now we want to do a less tha its development and there shouldn't be any doubt about that if you look at reply brief page six of our reply brief in their own pleading they say although this court in the court of appeals previously held that the dispute over the scope of the implied easement was not yet ripe the  on remand have changed substantially such that the issue is now right for review so we're talking about the same play and they say facts have changed and so now it is now all right so their argument that this is somehow a new claim i don't think it is not a sure that we're about advances you because no doubt about that claim being involved a motivation from the outset what has changed is the question of whether it's right right which means that since two thousand and five which is when this complain happened confirmed in two thousand and ten by this court's decision there had been no injury in fact with respect to that claim there was no article three jurisdiction with respect to that claim for said in the years that is that it goes to the power of the court's authority to adjudicate the claim well but one of the things that's book you your about this case is there's no doubt about there being jurisdiction over disputes between these parties on a whole range of things the particular piece here about seeking declaration with regard to the easement had not ripened to the point where there was an actual case but that the parties belonged in court with each other was not really in dispute i looked and didn't find a case that spoke quite so clearly to that well your honor we do cite it's established supreme court precedent and circuit precedent that you have to have standing with respect to each claim in a lawsuit it's not just good enough for article three purposes that a court has jurisdiction over take it apart but yet what i didn't find is a precedent spoke to maybe this combination of ingredients where you have claims between the parties as to which there was one question of the jurisdiction a claim as to which this court concurred with the or affirmed the district court's determination was not yet ripe and then events that you can't have a claim that's constitutionally not right which essentially means there is no injury in fact which is what those were actually the words this court used in the two thousand and ten opinion that there was no injury in fact with respect to that claim that cannot unlike preventi that cannot be later cured by the fact by the happenstance that as the suit develops a new injury develops it now makes that claim right that's good enough for prevention will rightness but as soon as a court finds that there is no injury in fact with and that's the court's long line of cases holding that was for a fifteen d pleading says look it would be an empty formality in a situation like north star and in your star it said the rationale was look this it happened three months after filing they got the assignment it would be an empty complaint or something pleading within the same well that empty formality is do you allow them to either amend the complain or supplement it between that scenario and a new action because the new action is what you would normally have to do if you have an injury that happens supplemental pleading and a new lawsuit that would be an empty formality so the same choice in this suit is not an empty formality simply allowing them to amend versus filing a new suit is not an empty formality by their own admission if you are three or five and it's true it has huge consequences because if they filed a new suit you would have trouble sovereign immunity now forget the new suit if that's not convincing you at least they have to file a motion to amend the complaint or supplement the pleading under rule fifteen part of the reason why you have to do that and this court recognized a north star is because one of the considerations in granting that leave is does it prejudice the other side and had they actually filed a motion for a fifteen a or fifteen men the complaint or supplement it surely the community would have objected precisely on this ground that in fact we are prejudiced by simply allowing them this late in the  lawsuit to supplement or amend their complaint by a newly arising interest they have to do the normal thing file a new lawsuit and the prejudice the consequences are tribal sovereign immunity is not waived once and for all for all claims for all time it is exceedingly narrow waiver and we would have said that we would be prejudiced by granting at this late date a rule fifteen a or fifteen the motion to amend they never made that motion so we never had a chance to argue the prejudice so there is no and that's why in north star this court is explicit we go no further than saying that in the unique circumstance of a rule fifteen the pleading that alleges the factual predicate that was missing at the time of the complain we know we don't go any further than that in extending the extension there is not a case from any court any district court any court of appeals the u s supreme court that has ever retroactively cured article three jurisdiction based upon a pretrial order it does not exist they have not cited it the only case they cite about pretrial orders having any impact on jurisdiction is rockwell that supreme court case that is about the exact opposite situation the entirely under mark will proposition that if you have an amended complaint that takes away jurisdiction the court can look to that and that's what happened in iraq while it looked at the amended complaint and the in that case it defeated jurisdiction it was an article three it was a false claim suit and it said we looked at that to defeat jurisdiction well of course you could look to a subsequent pleading to defeat jurisdiction because a court must have jurisdiction at all times not a single case for many court for a good reason because you don't have the protection of the district court looking at it of valuating it for prejudice nor do you nor would there be a basis to obliterate the longstanding article three  equitable line when you're talking about article three jurisdiction you're talking about the power of the court not something not subject to these sort of equitable exceptions and the other point i would make on this is a month after north star this court issued the yada decision same situation where you had no article three injury in fact at the time of suit facts changed such that there was now a predicate for an article three injury and this court a month after northstar said no that's not good enough and there was no rule fifteen d pleading in that case there was nothing that satisfied the very narrow exception in north star and so we don't come close to satisfying northstar here and as i said for the for the unique feature of this case the tribal sovereign immunity case which would have severely prejudiced our or made us a significant difference not an empty formality this would be the worst possible vehicle to make the unprecedented step made by no other court to extend exceptions to article three jurisdiction to a pretrial order now to the extent there is any doubt that is the right answer in this case this court can avoid that doubt by relying on prevent rightness grounds and the supreme court did that for example in the ohio forestry decision which is cited in our brief where they were faced with an either in article three standing or preventing rightness and they they decided the case on preventi rightness ground and said we don't need to address the article three standing issue because they're both jurisdictional issues the court said it could do that it's sort of a can they didn't use this phrase yalit it was sort of akin to the constitutional avoidance question you can avoid the article three question on preventi rightness grounds and i think the predicate for the prevention rightness ruling in this case and i'll just say this and and then i'll try to reserve the rest of my time for a bottle is the two thousand the different part of the two thousand and ten decision at ten seventy nine the very end of the opinion where they're talking about a different claim the community's regulatory authority over section sixteen and the court finds that claim not right on prevention ground then it says look there are no current plans to sell section sixteen to a developer or to construct housing development we would submit that still remains true today and all that's changed that the plaintiffs now say that they want to do a less dense housing development that would comply with the current zoning i reserve the rest of my time if i may thank you excuse me may please the court my name is joe unarmed and with me is paul eckstein and we represent the appellee owners of section sixteen i'd like to start by addressing the article three m brightness issues and then touch briefly on the summary judgment questions i'm happy to leave the trial court's findings and conclusions to the briefs given the clearly erroneous standard but of course will address any questions you've got so turning to the to the jurisdictional issue it's clear that there is subject matter jurisdiction here so as i understand the community's argument it does not dispute that there is now an injury that the owners of section sixteen suffered when the community refused their development plan the plan they created after they remain to develop section sixteen according to its current zoning of one house per one and a quarter acre the community refused to let the owners proceed with that plan because they refused to allow murphy road any case that does lousy well i think north star is right on point in fact i think our situation is much different and much much stronger than north star and northstar at the time the plaintiffs their complaint they had no injury in fact they had no standing because they didn't have an assignment of the claim that they were trying to litigate they didn't get that assignment until over three months later in our case as judge clifton noted when this case started in federal court in two thousand and five there's no question but there was injury in fact in state and standing in a case or controversy so what's happened is that after that initial dispute arose include would be extending the law beyond i don't for your honor i don't think you're extending the law and i think if we're if we're focusing only on the title of the piece of paper we're doing exactly what north star said not to do nor stars so we shouldn't elevate form over substance we should look at what happened we should look at the facts in our case with all deference to judge clifton i think there actually was a new claim that developed after we met you don't need to go that far to decide in our favor but i think there was well there was lame is one that this court may know it's odd because we have so many cases i do you don't remember my starter reading the facts of this case and said wait a minute i've seen this before and seven years ago i sat i don't remember which courtroom one of these court rooms and heard about this and this court said district courts right this isn't right there's no case or controversy here so at that point in time there was no article three jurisdiction over that claim now it may be a new claim that uses all the same words that is we're entitled to get a declaration as to what kind of easement we got here can pave a road how is that really different if it's different than in a and i think in a fundamental way at the time the court looked at the case or controversy issue the first time around there were no development plans in place they'd fallen through because what the owners had wanted to do was to improve section sixteen and three houses parade where they couldn't get permission from pinellas county and they had no plans they had no plans to improve the easement they had no plans to develop the property and that's why there was no case for controversy well take a look at what happened after remained after remey and it's indisputable that the owners did develop a plan to develop the property in a very different way and would have required a very different use  it and so they go to the community ok so weeks i'll accept your characterization it's new sort of the facts unchanged even though the relief saw was pretty much the same but then why should the case be considered to include something that didn't even exist until years after the complaint was originally filed well i think that's perfectly consistent with the policies behind will fifteen and as well as the the liberal jointer rules we have of rule eighteen but if you'd move for leave to file an amended complaint when you have run into the sovereign immunity argument well first of all your honor i believe that the community has already waived the sovereign immunity file the claim with the bankruptcy carry that were pretty far removed from that now why should that be treated as a waiver so the update so the reason why we would ask we have complaints in the first place complaints don't create claims claims are created by facts right so we have facts that have developed a new kind of claim is there the reason why you want to complain is to make sure that the other side knows the notice and so they can defend against that claim and you course have to assert the claim in the complaint well there's no question but that that the community was on notice of what the claim was on remain and that's what the entire proceeding was about it and if the community wanted to raise sovereign immunity at the time of the pretrial order they were perfectly are sovereign muting this point i think at this point no they've waived that your honor so now if we were to disagree with you and find no standing and require you to file a new lawsuit that's the elephant in the room so sure they're going to raise they're going to raise sovereign immunity as they said they will though if that's the case then we can he talk about form over substance but it seems like we're putting substance over form i mean one one version the lawsuit they can raise sovereign immunity which is a it may be an issue that they could have raised but the issue of whether or not there was injury in fact and the issue of whether there is sovereign immunity are two different question oh i don't know i predict that but if you're trying to if the argument is well look northstar says let's not put form over substance and that's why we can we can carve out an exception to article three in a sense that's that that's the that's the whole argument a large part part of that case it seems to me in this case there is a real difference there's a real consequence on the merits there's a practical yeah there is it there is a practical help come that could flow from the court taking jurisdiction as this court did and deciding the case short i mean the community did not raise sovereign immunity in the second trial there was a second trial if they wanted to raise it they could have raised you know before the trial but then i can understand i mean they could hear the response and they didn't because there was not an obvious place to do with if there had been a motion for leave to a man then they jump up around and clearly was brought up then because i don't know it was you or a colleague or whatnot but it was openly acknowledged to the somebody is one of the elephants in the room to so they don't have that they have one is a continuation of the lawsuit in which the district court affirmed by this court had decided that sovereign immunity was an obstacle perspective i see them saying how do we do that your honor again i i i think the practical answer is that the time of the pretrial order they were able to state whatever issues they wanted to state they didn't raise sovereign immunity in the pretrial order and i think you know if we take a look at the policy behind northstar and i think you have to look at rule fifteen and the advisory committee notes behind it because i think it's right on point the advisory committee comments to the rule say that the plaintiff should not be quote needlessly remitted to the difficulties of commencing a new action even though events occurring after the commencement of the original action have made clear the right to leave that's what north star embraces it's also matthew versus diaz where there wasn't subject matter jurisdiction of the time a complainant was a plaintiff was challenging a denial of medicare benefits they hadn't filed the application of that until later until after they fought a lawsuit in the courts said even though there was an amended complaint in that case they didn't follow the formal piece of paper the court said ok i mean we know that that the application was filed in order to trigger federal jurisdiction of will take the case it's not that a unique situation in that sense your honor i don't also understand why we shouldn't treat the pre trial order in this case as the equivalent of an amended complaint i mean that's if i'm going to quote the rockwell case the supreme court case said that quote inclusion of a claim  the pretrial order is deemed to amend any previous pleadings which did not include back way that's pretty clear so if you treat this new grievance that we have developed after remain and as a new claim or a new issue however you want to characterize it it's deemed to amend the pleadings at that point i also think it's you can look at this is a question of rightness and i know i know in your original  opinion and this in this case you do so you do cite the need for a case or controversy but i think it's important to look at rightness principles as well because certainly rightness doesn't depend on what the facts were at the time the complaint was filed rightness depends on the facts as they are today and even the issue of cost to to tional rightness if you take a look at the regional real reorganization that case the court the supreme court case there are found constitutional right in this to develop after the case been filed i'd like to turn quickly also to to the issue of potential ripeness the one case that isn't mentioned  in the communities brief is a case that may be most important on the issue which is the susan b anthony list case that's a case of a case that was decided in two thousand and fourteen by the supreme court where the court said you know we're really having trouble with the viability of the potential rightness doctrine should apply at all because how can you square that doctrine with the virtually unflagging requirement that the court the federal courts decide cases within their jurisdiction i think that throws open the vitality of the doctrine at all in any case but surely it shouldn't be stretched to a case like this that doesn't involve any constitutional of void and principle or similar notion that of voiding difficult decisions in fact rather than that being preventable it would be an enormous waste of time for this court to invoke prudential rightness considerations at this point the case was filed twelve years ago it's been through two trials if you're going to apply put prudential rightness it would mean wiping out all of the proceedings that happened on  practice that's not potential and if we go to that it might get to the illogic of sovereign immunity but in fact if if the community could have raised or had raised sovereign immunity and the district court said no that issue would be teed up in front of us argued in a somewhat different way perhaps but you'd have the same problem which is that it's all well and good that we had years of litigation and reached a result that might well make sense but if in fact the community couldn't be named as a party and has sovereign immunity against this claim the plug gets pulled and the community had the many years of litigation can you can you bolted on later like i don't think that two colleagues here but at this point the the street court made a finding yup it's ripe and if you accept the addition of the what you're describing is a new claim is there anything seriously unripe about that claim i mean i hear the argument that they don't have a developer in place but the whole point of it is that the value of the property is so much enhanced by the ability to get access to it that that seems to us to make us a real case or i would be happy now to move on to the summary judgment issues so the community says that judge hilberg should have held off deciding the summary judgment issues until after trial but it doesn't identify any material fact in dispute or any fact that would have mattered to the judge's decision as a matter of law the judge was clearly correct in concluding that the transition of section sixteen from a commercial dairy to a rural housing development was consistent with congressional intent and that the only way you could fulfill that plan was to allow for paving of them or a few road easement and installation of underground or any housing subdivisions adjoining section sixteen right now adjoining section sixteen no but one half mile south of section sixteen you can see a huge residential development in the city america that's visible from section sixteen and then if you just take a left turn if you fly over phoenix as you're landing it's fascinating to see how some areas are enormously developed and some areas are not i'm more familiar with other parts of the city but this does seem to be a pretty substantial departure from at least the land is within the indian community well the judge the judge from the district court judge after visiting the area found that it really wasn't your honor and you can and you can see you can see why and i can describe it a little bit for you  so you've got the city america and one half mile south of section sixteen large housing development right there visible from section visible from the property you go two miles of the property of section sixteen and you come to this road it's in our brief casa blanca road well along casa blanca road there's housing but not only is there housing if you take a look at the communities master plan it's which was adopted by the community as its primary planning guide the plan for for for that area right just two miles north is to build up to ten thousand two hundred houses at over three houses per acre and then if you take a look besides the housing if you just take a look at the roads that are going through going through district five which is the relevant district of  reservation that we're talking about to the east you've got i ten there so that the district court found there some like sixty five thousand about murphy road how would the traffic on murphy road change with this development would be perhaps after this development there will be additional traffic you know it's interesting if you take a look at what's between murphy wrote from from the northern end of section sixteen now there is housing and there's going to be more housing if the master plan is carried out and then if you take a look at casa blanca road so over here you've got state route state route thirty three forty seven it connects to that there's something like forty five thousand cars a day that cut  reservation there and then over here on the east side i ten interstate sixty five thousand are fragmented so the notion that this is an abnormal development of section sixteen just isn't borne out by the facts and any of that when you're looking at what's what's normal here you have to do in the context of what congress intended when it created sect when it transferred section sixteen in the first place and created the easement so is contemplating that the property would be used to support schools asked what's their best case counsel responded northstar but if that's their best case they fall fall far short of creating it equitable exception to the bedrock requirement of the court's authority under article three jurisdiction and i would start with north itself this is it page ten forty six if morris northstar itself says it is enough to say that the rule is stated in morong go this course prior precedent does not extend to supplemental pleadings filed pursuant to rule fifteen  its terms nor star is limited to the narrow context when you have a fifteen d and when it's an empty formality neither of those circumstances are present in this case and as court as of course this court knows northstar itself was a hotly contested opinion with a dissenting opinion we accept northstar as it is but to extend it to this entirely new area without the two critical predicates for the decision would go far beyond it and judge jones i think you're exactly right on the empty formality point that could not be farther from the truth in this case where tribal sovereign immunity has huge consequences if in fact this was a new claim now that brings me to the new claim point which is the second point i want to address it does not help the other side even if you buy their argument that this is a this is now transformed to an entirely different scope of easement claim the reason it doesn't help them is because to bring an entirely new claim you would normally have to bring a motion to amend the complaint the district court asked them to do that gave them an opportunity to do that at further excerpts of record twenty six they never did that and the reason why that significant just like you had the fifteen d a northstar is because that would have been the opportunity for the community to object and say no we would be prejudiced under the term rule fifteen d you can't allow that amendment we would be prejudiced because they should be forced to start a new lawsuit we did not waive sovereign immunity for all time and certainly not with that's actually on the table there is an acknowledgement by lions attorney that sovereign immunity is out there a response we hear today is that it was waived they had the opportunity to bring it up and did why was the claim that that's not right your honor for one important reason when they brought it up to the district court and this  excerpts of record three o five this is their pleading to the district court they framed it as the same claim so of course that we don't dispute that the court had already found the trouble sovereign immunity was waived with respect to the original scope of easement claim but when they brought it up they said this claim and i'm going to quote from their pleading although this court at three o five although this court in the court of appeals previously held that the dispute over the scope of the easement was not yet ripe the facts on remained have changed substantially substantially such that this issue is now right for review and then the district court in its opinion adopted that characterization here with the district court says  eight the trustee argues that entry of final judgment is no longer appropriate in this case because the issue regarding the scope of events meant has recently become right pridgin occasion so the community accepting their own characterizations in the district court characterization throughout this entire suit it's not a new claim it's just that the old claim has now become ripe due to the change in facts all of the facts the circumstances have changed such that the door is open for this claim as as the communities argument saying ok well the circumstances of change for another are going to come back and and say sovereign immunity would you court have decided previously was waived just what was the state of affairs before it's not waived in so give us give us an adjudication as to why it is we're not immune from this lawsuit i kept i want to see if that was ever teed up and i couldn't find it is a reason why it wasn't tina yes your honor for the reason that i said stated the district court and made clear that had already found that the community had waived its sovereign immunity with respect to the scope of easement claim if they had actually said we want to bring a new claim which you have to seek leave to do under rule fifteen a motion to amend the complaint to seeking a new claim then the community could have done two things one oppose that motion on grounds of prejudiced right that were actually impacted by this and two even if the district court had then granted that fifteen a motion and a lousy new claim into the case at that point the community then could have objected and said look our waiver of sovereign immunity might have gone to that old scope of these may claim but it does not extend to this new claim so so the fact that they didn't follow that the extremely narrow procedure is pretty extremely narrow exception to article three jurisdiction which is when you file an amended will fifteen the pleading or an amended complaint that actually matters in this case and so it would be an exceptional and president an extension of north star or any case that we know of to know to find that retroactive that he could have cured the retroactive