inquiry that i'd like to have addressed at our outset here it's come to my attention there's been an order in it below in summary judgment is that accurate i knew it was filed we had responded tory appeal requiring a denotable review it was an abuse of discretion based on jurisdiction of the lower court never had jurisdiction to start with i believe this court can still proceed and make that for excuse me make that finding if it if the facts in evidence find that to be the case i still think it's right before this court in determining the jurisdiction and that is one of the issues before us i think our presidents are to the contrary but going proceed thank you your honor in two thousand and eleven will wilkinson sought an accounting for one hundred nineteen peak north dakota l l c oil and gas leases all located within exterior boundaries of the four berthold indian reservation in which he had an overriding wrote the interest that was in two thousand and eleven despite repeated requests in or plus refused to provide an accounting for one hundred one thousand leases refused to provide a copy of the purported peak in a plus merger agreement in there plus refused to provide an explanation of what happened in any of these leases therefore wilkinson fall in action in tribal court the three affiliated tribes to compel enter plus to provide an accounting of the leases in her plus in response filed a motion to dismiss for lack of jurisdiction in tribal court the tribal court has not ruled on this motion after wilkinson filed the tribal court action thirty days later in a plus spouting federal court  seeking a preliminary injunction against wilkinson in the tribal court wilkinson filed a special appearance a motion to dismiss never submitting voluntarily to the jurisdiction of the federal court the interval judge of one held a hearing in august  two thousand and sixteen and at the hearing enter plus provided no witnesses no testimony no exhibits and no peek in or post merger agreement giving in or post the leases in an abuse of discretion judge when asserted original jurisdiction over the case denied wilkinson's motion to dismiss for lack of jurisdiction and granted enter plus his motion for a preliminary injunction and wilkinson and the tribal court ordered wilkinson to deposit royalty monies in the approximate sum of two point seven million dollars the lower court asserted jurisdiction over this matter based on form selection clauses however the lower court made that finding a form selection prior to weighing any data phase factors  allowing this injunction before any form selection clause should be considered it must be determined whether enter plus even has a standing standing to impose the form selection clause absent a showing of b a approval and i think that's  the heart of this issue it's not just a simple overpayment issue it is in issue of whether or not this lease that enter plus purports to own and is the owner of these leases that has not been ratified by the be a it has not been resolved and we believe for the reasons i'm about to explain to travel court is the best way to start the resolution of this process there's a reason there's a value to the leases there's a reason why enter plus says it merged with peak there's a value there somewhere and that's in the mineral royalty leases themselves they're worth a lot of money you know what we know what we know about these form selection clauses that the lower court relied upon settlement agreement the overriding roti interest the division order they were all subject to this lease and i'll call it a b i a lease the b i a was expected to review the lease review any changes in multiple times the lease even considers piques inability to obtain government approval it was addressed in the lease it was forseeable and it was ignored by peak and or in or plus the lease is at the heart of th issue it's not an overpayment issue but it comes back to the lease and why is the lease so important on the four berthold indian reservation there is a story of poverty to a fluence because of oil especially when  oil was high every single mineral acre on four berthold reservation is is held by a lease through the b s a a four page lease that lease mandates b i e oversight and just a historical look at american history that's what i understand your here giving some background here but we have much of that background available to us as well in terms of the history involved but what is the title mut the retention of the overpayment it seems to be undisputed that there was an overpayment that issue hasn't been addressed specifically there's been no evidentiary hearing  and again we do not need to go to your likelihood of success on the merits that's one of four factors and i understand but it seems to be the way they are of their face factors we believe that  the more important issue your honor is exhaustion tribal remedies jurisdiction of the tribal court self determination and in your honor i understand the historical analysis you're well aware of but with the a lot t indian members of the reservation they need to be a super vision and produce share responsibility exercised on these leases because what's happening is these leases are initially purchased from the indians at a low price they're being sold a sign conveyed flipped for very high numbers when  oil is high especially and the a lot indians is not sharing in that wealth whether or not there's a clawback for that exchange of wealth is not before us today but what is in what's in the lease is that the b i through its provisions  in the lease they have the power so that oil companies are not just capturing mineral acres and holding them and waiting for them to appreciate instead they can put a drill commitment in these leases and they can say if you're going to exchange this money if you're going to buy these leases and we're going to impose upon you a drill commitment date a window of time to do something with these leases and if you're not going to do that the lease may be invalid the b a a has to approve the leases all of these settlement agreements of foreign selection clauses are subject to the lease inor plus did not deal with wilkinson in any of these documents their successor in interest they're not entitled to have standing to come for federal court not not when there is and i think that chronology is important here what we have is wilkinson inquiring as part of the appendix wilkinson inquiring about the merger about an accounting of his mineral acres had already ordered that this money be held in a trust fund and we kept secure and to date the money has all been accounted for returned enter plus brett the heart is a much bigger issue does enter plus even have standing to assert a form selection considered but we don't get that far if the b s a approves the lease and only if there prove then we go to the dow to face factors and how did this get raised to the district in looking at the district court's order there's just really one line about about this particular argument i think is that they're saying there's no merits to the defendant's argument that the merger of people north and enter plus validated the settled greenman i think the underlying court may have been much more bluntly called it ridiculous the argument and i don't see that when you heard of the issue is the lease and all of the form selection documents that are referred to by a plus or subject to the lease in question there was there a hearing on this particular motion there was one oral argument one hearing in district court in august of last year only regarding the injunction whether or not they're entitled to the injunction and where this is going whether b through this appeal of the injunction or a final order regardless of those issues there's more coming in this be a lease is going to be before you again and within two to three years  these leases must be reviewed and approved by the b i before anything else can go forward there's a ton of money changing hands here autonomy and what we're addressing is not  if the b i had approved the least we could go to an analysis of whether or not the form selection clause should apply absent abstract exceptional circumstances in atlantic marine case of the us supreme court there are exception circumstances here the least being one of them that i've talked about the last ten minutes after that you've got the issues that evil dealt with tribal sovereignty self determination comedy remember this was all filed in tribal court prior to enter plus doing anything and it was there were in replace filed a motion to dismiss that hasn't been ruled upon and only then if you if they got past the exceptional circumstances of atlantic marine regarding the form selection then we can weigh the data phase factors there was a process here that we needed to be followed but the lower court jumped right into we have a jury riginal jurisdiction over indian minerals over an indian over a pending indian case the morning your honour's i think would be good to start with a procedural background in this case because i think there may be some confusion so i'd like to review that because i both of you have questions about that which i don't think we moved to dismiss and which wilkinson's counsel did not oppose and that second appeal which was directed at the summary judgment motion with respect to the overpayment was dismissed there is a moved well i heard you say at the beginning of mr saddam's argument that summary judgment is been granted and i wasn't sure if you were referring to the motion that we just that we filed fairly recently but i did not believe has been ruled on yet or if you are referring to the earlier summary judgment with respect to the overpayment which again has been ruled out so there's been a new order that's come down in the last i guess twenty four hours i'm not aware of no no ok then there has not been an order on a permanent injunction yet that's being briefed and it's pending before the court but there's been no ruling on that the only some legal or no final judgment in the district court cases still pending correct so this appeal you think should go forward because i think i mean all judgment that would move this yeah i think i think an appeal of it and they're likely to repeal the poem every injunction is proper and i think that's the only thing we're really here to talk about today  in response to a question you asked counsel about whether or not the issues about to be i a e a approving all these leases and everything was raised below i didn't think so but i just briefly went through their response to a motion for pulling their injunction  western and tribal sovereignty not about standing and so we in our reply addressed the exhaustion issues but not the standing issues those issues have since been raised and the subsequent motions that are before you motions at the district court yes the motion for summary judgment with respect to the overpayment raised the standing issue that's been decided by the district court it's not before us today but that was decided and that has been raised again  the briefing that's going on right now with respect to a permanent injunction but that hasn't been decided yet so he's enter plus a successor to nor was that the answer to the standing question they acquired and that plus acquired p north and under delaware law and plus of the dollar corporation and north dakota law if you acquire a company and then they went they owned it they merged it into enter plus then they own all the rights all the liabilities there was never an assignment which is what i believe mr saddam's argument is directed at there was never an assignment from peak north to enter plus and plus just acquired all the stock north and what came with that were the in tribal court look incident has alleged in the original tribal court suit that predated this suit he alleges that not only is he entitled to the overpayment but he's entitle to even more money based on the settlement agreement on the one hand he's saying that the settlement agreement entitle him to even more payments than the what we consider to be a three million dollar overpayment but at the same time the form selection clause that he agreed to in that same agreement doesn't apply with respect to form selection clauses in general as the appellant's point out in atlantic marine construction versus u s district court the supreme court said when parties have contract that in advance to litigate disputes in a particular forum the courts should not unnecessarily disrupt the parties settled expectations a form selection clause after all they have figured centrally in the party's negotiations and may have affected how they set money and other contractual terms it may in fact have been a critical factor in their agreement to do business together in the first place in all but the most unusual cases therefore the interest of justice is served by holding parties to their bargain wilkinson's argument in this appeal is that somehow this is this falls into the category of a most unusual case he makes that argument but he can't support it with anything he doesn't identify any case in which the tribal exhaustion doctrine or tribal sovereignty controlled over a form selection clause the public interest in tribal self determination sovereignty does not relegate contract law to the trash heap especially where the tribal member as in this case has expressly waived tribal sovereignty in three separate form selection clauses and i think this case is controlled by another eighth circuit opinion f g s constructors versus carlo where the same issue that's the only case we've been able to find where the court addresses the interplay between tribal sovereignty or the exhaustion doctrine and a form selection clause and in that case the court held that the form selection clause controls because that the tribal member expressly waived tribal sovereignty same exact situation is here we think that is the controlling law there is no other case that they've cited which pits a form selection clause against the doctrine of tribal sovereignty within that really is the term of of this issue and again with respect to standing i've already raised the issue that in the tribal case and this is page two thirty seven i believe of the appendix is a tribal complaint where he is seeking a declaration that enter plus has not fully paid its obligations to wilkinson under the settlement agreement the same agreement that contains the form selection clause so c i t corp vs hat wind north dakota supreme court case says that the hold that a pla f in this case should take a conditional sales contract and be entitled to all of its benefits but not be burdened with any of its obligations would be a rank injustice and we think the same is true here  jack your question justice kelly it's been pending quite a while back in two thousand and eleven you'll notice on the pleadings there's an attorney really lifted on the appeal is part of this action is a party to this action this action regarding royalty payments has been pending since two thousand and eleven that was pursuant to that tribal court order and all this money all these royalties were held it was only after the fact and after wilkinson was trying to get some information about enter plus several years later and replace decides t reservation that lease must apply and there's a good reason for it because in state law most states my understanding is that the mineral the surface owner is always subservient to the mineral water and that can't be the case and for perth that's wh accounting back in two thousand and eleven and you deserve to give that to us f g s constructs constructors in reference to form selection clauses in other cases i believe that if the b i approve this lease merger or whatever peeking in or plussed if they get that far there are exceptional circumstances why form selection should be applied and i believe that this is if it's not a case of first impression it's certainly distinguish constructors we have tribal and tribal royalties value of this lease lease an approved we've got people that haven't been dealing in arm's length someone who comes in late after the fact or sitting form so actually all of these issues have not been dealt with before at the federal level and that is why i think a reasonable path forward at this point in time is to if you cannot right reverse a reasonable parent option would be  agreement with pique but there's been the facts are clear that there is no record of enter plus getting any approval from the b i to hold these valuable assets it's as a conveyed received from p