flee this morning because our chief has a motion to make to the court so before we do anything else i'm going to recognize chief judge reader and ask him to present we have then we stand up we have the joy this morning for allowing one of our finest law clerks to join our bar and we'd like to like he is served us all magnificently he had the great honor of serving for the late dan friedman one of our greatest judges and then had the chance to come and serve me magnificently for several months i don't think it was me alone nice or no he served a number of us quite admirably and i understand that judge rayner would like to second the motion before i take it under consideration yes i would like to second the motion and it's with great pleasure that i do that and dan has also worked for lee and it's it's it's just wonderful to be part of this of his admission to the bar given the the outstanding work that he provided me very diligent timely work and he always comported himself in a highly professional manner so it's been a it's been my privilege being associated with this young man so i would move his admission i would point out that the only blemish on his entire record is that his underlying state bar membership is from new york and that we'll have to let that slide we're going to let that go this time all right but i would move his admission t for we begin the court notes that judge wallace from the court of international trade is in attendance and we welcome with great enthusiasm hoping that we welcome him very soon with even more enthusiasm now our next cases shell oil company versus the united states mr to see taxes fees or charges levied on the production of ag gas is not equivalent to damages for property damage ordered by a cork and the plain language of the contracts simply does not cover remediation of property damage set president roosevelt explicitly imposed but the language of the contract says any new or additional taxes fi os work charges now just seems to fit in all three categories it's kind of a tax a cleanup tax it's certainly a fee that they have to pay and it's certainly a charge and can how do you get around the breadth of that contract language well for a number of reasons first of all if you look at the superfund statute or in fact the district in one circuit court cases that underlie this case the word charge appears nowhere except for the term person in charge so there's no basis in the statute for determining that cleanup costs were a charge second what do you call them  indemnity clause in the pond certainly unequivocally covers those sorts of images and likewise if you look at the context of the entire texas clause it really appears to be a price adjustment clause were just the price paid for the for the at gas to take into account the new additional taxes fees and charges that are imposed during the period of performance of the contract  fact the contract itself says the government will pay all monies due for the aca us every month and there is no indication that the parties intended any obligations to linger beyond the terminations of the contract where does that say that that  that obligation terminates with the end of the contract it only says that monthly the it says that the government will be will pay monthly all money due for gasoline delivered by the seller and has no other provision for payment after terminations the contract so what shell is trying to do is ask the court to write in something on the terms of the c s a terminations agreements in ford and dupont where  the terminations agreement contains a specific provision covering quote costs not now known well there's nothing analogous in this case and this court's decision in consumer's ice really compels a determination that if the contract can be read to not lock the parties into permanent obligations then that's how it should be read it's not the other way around consumer's i is a case that really applies here where there is a lease that could be read as either ending on a date certain or the date that the government decided not to use the land for anti aircraft purposes the government contended that the lease was in force until the government decided not to use the land france aircraft purposes not the date certain which had already passed and this court rejected that approach and applied the longstanding rule that it would not do it that is this a panel we respectfully disagree with that judge shaw informed his dissent what he concluded was that indemnification for property damage wasn't enough and the and judge should all distinguished for from the dupont decision but in this case there's no indemnity for property damage which is what this court in dupont really concluded that superfund liability was it was remediation of property damage it was remediation of a public nuisance of a of a chore and the court concluded in dupont that the contractor provided very broad indemnity which covered those sorts of liabilities so there's absolutely no indication in this commodities purchase contract that's at issue here instead of the cost plus contractor the government own the facility and dupont was merely an agent operating the facility there's no indication here that there was any sort of intent along those record shows that there's a tremendous amount of waste that was produced all that that's true and yes it would result in the production of waste but the business independent business decisions to dump the waste are very different the ninth circuit concluded that the oil companies had other disposal options for their acid waste they dumped acid waste from operations other than not gas at the mccoll site and that they were not compelled by the government to dump acid waste in any particular manner there were options available to the companies they made separate independent business decisions to dump acid waste into i i understand that but when i look at the at the clause we're talking about and it says anything new and then you go on additional fe urging them to do more and faster and please move this quicker we need more gas and more and more why wouldn't they take whatever is the quickest and most expedient way and you want to urge them to do that in the hundred forty s and fifty's there's there's absolutely no evidence that the in this case that the government urges the oil companies to do so and that stands in your survey hurting them to get us more gas quicker that's that's true but the company government never erst any particular sort of waste waste disposal method and in fact the companies had been treating acid waste before it just said you pay for any new charges and then the other part of the for this clause is that says you sh pay it's not even anyway discretionary all that that's true and then and the reason there are a number of reasons why this does not apply is the one not an identifier for those property for property damage would  contention that show makes isn't borne out by the stipulated facts there were two particular sites that the government did not allow preferences for the building of acid regeneration plants one was in northern california as opposed to southern california that was the monsanto plant that that was only going to take northern california ways to it was irrelevant to this case and what occurred in that case was the government initially granted the preference and then one cent to let it six month preference slots and by that by the time incentive asked for the preference the second time it was already late into one nine hundred forty four and the government denied the preference for at that point it would have made a difference because by the time they'd gotten the plant built it would have been you know the war would have been over and similarly texaco asked originally in the beginning of the war to build a reprocessing plant the government denied that reprocessing plant because had a contract already for waste disposal with with the stuff for companies so there was no need for that excess capacity at the time what would you advise us to do with the judge smith's decision to sever this case in light of the ethical issues i believe the court should vacate and remain for the trial court to  assign the case to a different judge the whole case the whole case yes the whole case because the statute section four fifty five b is requires it requires recusal from an entire proceeding it's a mandatory statute and in the case here shell only contends that he says he's removed himself from the part where he had any financial interest or his like that financial interest but he has retaine we were to say all right we'll just look at this dyno cell whether or not there was a conflict we can resolve it by by making sure that we look at everything with an overview you didn't respond that  you want to respond well we i believe we addressed that issue in our opening brief and we didn't want to burden the core extra rehashing of what we said at the beginning and but there are really two main reasons why a harmless error analysis would not be advisable first whenever a trial for decides a case on summary judgment all of a sudden it's no harm no foul with respect to mandatory recusal and that can't be congressional intent to write out  that section of the statute for a huge swath of cases and the second reason is that this court is reviewing court i mean yes it does have a dyno standard of review but it reviews judgments and if the judgment below really should be a then affirming that nobody below is inadvisable what she procedural measure that we should utilize in order to to use like to bake a cake is it is it your view that  as we noted in this in this case as long tortured history we have healed from the original judgement with respect to the for oil companies and this court vacated the judgment and remained it back  of federal claims and the trial judge even though the government to file a motion with the chief judge to transfer the entire case to a different judge and the trial judge himself immediately reissued it's currently state pending resolution of this case and i take it that goes to your argument that whatever we do here could impact that case oh yes it will be dispositive in that case most probably all right thank you thank you action now i disagree slightly with my friend's characterization of the constant issue as tort damages that that's not precisely accurate the these are costs incurred cleaning up a mess straightforward cost that in the circle action the oil company shell and atlantic richfield were ordered to bear so it's not damages its contents and if you look at the language of the contract it uses the term taxes fees or charges judge rate or makes of a fine argument that probably taxes and fees even coverage of most certainly charges too if you look at the ordinary definition of the word charges we provided the court with definitions from legal dictionaries english dictionaries world war two dictionaries current edition what about the fact that it does not contain language like the other cases where the discussion of things that are known are unknown or into the future are you saying that the mere use of the word additional somehow creates this this future obligation no matter how long out in the future it goes on yes your honor i would say the phrase new or additional charge is most definitely be speaks of a future looking impact for these charges but i would add your honor that that that's probably unnecessary under this court's decision in force in that ication where does it say reimbursement i look at this and and having to handle the contract matters in a prior life that i lived not too long ago  the site it did not require the dumping of the site but what your honor with this clause says is that if there are any new or additional charges that the seller of the oil company is required by federal law to pay  court in fort held the language court used there was that in the absence of any language it putting a temporal limit on the promise to pay is not barred merely because the originating events are long past for the liability for the clean up did not arise until after the enactment of circle now my friend and i did court the language said but which are not now known i mean they contemplate it not knowing it if the phrase in for was not now known your honor but i would say new or additional is equally forward looking i mean new or additional obviously contemplates something coming you know later in time and there's no no limit put upon it in the contractual in length in looking at the city and your clients or our sophisticated business entities yes you are and you're in the business of producing petroleum products or add gas at that time did you not know that there was going to be waste as a result of the production that it was known that that waste would be produced yes your honor but at the time why was ther contract is not limited to waste it's limited to any additional charges any additional charges that in any way relate to the production of a baptist waste is one charge of the at the time obviously was an anticipated it this charge didn't arise until a half century later when congress enacted circuit so the but the thought of a problem here is that that this language comes under the heading of taxes and it just seems to me that you knew your honor it is reasonable for you to believe this language included any charges that the oil company was required to pay any new or additional charges that they were wired to pay by reason of a  law in this case a new federal law that the clause is broader than and it covers any law from any source as a result of the production of that gets in terms of the cost that they knew about at the time the way the contract was set up your honor and this is  clear from the district court's opinion in the circuit case all of the costs were built into the price which which is covered by sections four and fine and what this clause the clause that we're looking at and i'm on appendix p two your honor this says buyer shall pay in addition to the prices established in sections four and bop and basically the purpose of this clause was our overall deal is the government's paying all the costs associated with the production of this product and this clause was designed to protect the buyer or protect the seller of the oil companies against some new law that comes along later so you decide we with the argument that we need to read this in the context of the because the clause i'm relying on specifically says in addition to the amounts paid under sections four and five and judge rayna to return to the sort of overall intent here the basic intent is is  pretty clear the oil companies weren't supposed to make a mint off this but they were supposed to have their costs covered and this clause in particular recognized that governments make new laws all the time and sometimes when they make a new law some additional charge or fee or tax that wasn't anticipated at the time might be imposed such that that the cost of producing this product will go up and what the party said is if there's a new cost associated with producing this product the buyer the government must pay should we be listening to these arguments at all in light of the clear requirements that a judge must be faced with any attention is consistent with the statute knowledge knowledge that i don't have a case that says that but my friend doesn't have a case that says it's not the correct course but what he did was he recognized that the statute says you cannot sit  case in which your spouse has an interest in one of the pardons and the remedy he chose solve that problem he got rid of the parties that created the conflict and how do you deal with the fact that there's no question but that these cases are so interrelated the only reason they're in a related your honour's i think as a practical matter and i agree with my friend that what this court rules will govern the other case it but that's a function of the presidential nature of a hi court if in the way they think about that your honor as if it were ruling based on what what the government would argue isn't tainted undermine judgement i strongly disagree with that your honor your honor is is addressing pure questions of law with no difference whatsoever to the court below and on the harmless error point what was lost perhaps in the discussion with my friend i don't just make that as a good argument i make it as a good argument that's been accepted by six different almost every single one of those cases you cite your string saying they were all under four fifty five that isn't true anything to do with that what the financial interest and parties said that that the rules are much stricter when you're talking about financial interest as opposed to the appearance of impropriety if you look at my footnote of those cases i have knowledge that but i cited this court's polaroid decision in the supreme court's lillibridge decision both of which say that for purposes of appropriate remedy but but then in that case they said because we're talking about a month before the writ even when the they said even if they were under a the remedy almost always has to be to making it in that case if you look at the liberty the emphasis why they had to bake a cake was because the judgment below turned on factual findings the trial court had made which the court of appeals would be bound to defer to this case is different you're looking at your questions of law that you give no difference at all to the of the judgments made in that's the thinking behind every circuit that's decided that yes there were fifty five a cases but again i'd ask you to look at your own polaroid decision and  occur which which does say that that in terms of the duty to recuse for fifty five before is absolute if you own one share you must for kids what about the argument that that's we're just creating an no harm no foul argument with respect to something as important as a financial interest in medication a little bird does create a no harm no foul roy your honor it asked the question is anyone prejudiced by the fact if you find the judgment made a mistake here in the way you handled this is anyone prejudiced by the mistake the is is that you would say that yes the public is prejudiced and if we were to continue on with the case and decide the case and not address the issue what happens with the purpose of the statue and to protect the integrity of a court in the judicial judge rein of the integrity of the judicial system is fully protected by the fact that every issue in this case will be decided by three judges untainted by any conflict the ruling the judge t affirm a judgment after you have a no go review the legal arguments i would be in a very different profile that this case came to you on factual findings where you were hired to defer to judge smith again assuming you find  not in the way he handled the conflict but because the case comes up and i'd ask you to look at little over joe any time is a big mystery to see you suggested that any time we have a summary judgment  we are not going to apply the financial interest requirement i wouldn't put it that way your honor i would say you're going to analyze the financial interest requirements if you find that the court the judge below erred in applying those you can so state but little bird says it's a separate question what do you do about it in the case before you and it's and that's the question is there any harm to the parties is there any harm to the public and what all six of my cases say six different that this court would be creating a circuit split i would submit specked least admit it went the other way and that's what they all say is there's no harm to the party to the government in this case there's no harm to the public because what the public will see is that all of the legal questions that were presented in this case were decided without an ounce of deference being given to the to the judge below and particularly in a case like this which what judge the did is arguably within the different at least analysis that we can apply to judge o'malley you're right the statute does authorize the problem to go away if the judge's wife in this case had the best it herself of the of the shares for whatever reason that that plaintiffs if you will where were were in the under four fifty five or any other statute or traditional can i know methinks do you find grounds for what you just said four fifty five where you just were instead of disqualifying yourself you spin off or you spin off a party before you the judge rein in the statute doesn't specifically say you can do it but what it does say is what you shouldn't do and what you shouldn't do is sit on a case where your wife own shares in one of the parties and the solution judge that the dot did that the letter of that and my submission to you is that is that by beating the letter that not having a case to the contrary wh he did was was within the letter of the statute and can be a pass but if you disagree with that i would just simply ask you to follow your six sister circuits all of whom have said that in summary judgment cases the it's harmless try to take it all first i would like to know mr kirk stated that the government didn't require dumping at the site well under the taxes clause that's exactly the sort of activity that would be covered some sort of compelled action and there was no requirement that the oil companies dump but there was no there was no penalty for dumping and either right i mean this is and surplus is a new charge that that was created under federal law it didn't exist as a charger a tax at the time but certainly practically is just the federal government saying you can't do this thing for certain is not a charge it's really the cost of remediating property damage or remedia ting a public nuisance as this court noted in dupont so in that respect did it stand from the production was this a basically a tax fear charge that was assessed on the production of that  gas or is it the consequence of their separate independent business decisions to contract with mr mcmahon it's this because if you're talking about is a very broad it says by reason of the production manufacture they had waste not that they selected that they say chose to dump the waste with mr mccall and that also segues into the whole allocation decision reached by the trial court basically we noted in our briefs the oil companies dumped vast amounts of acid sludge before the war from not have gas products if you look at page eighty five sixty four hundred nine you can see shells numbers the amount of this is the stipulated facts are binding they're really new findings of fact by any judge because the district court got reversed the closest thing to a finding of fact is the determination by the ninth circuit that the oil companies had other respect to a portion and but one way to be in doing so the court should keep in mind the decision in energy northwest where the court made clear that if there are costs that would have been  be incurred or even without the breach such as the cost related to the dumping of acid sludge the can from not have gas products those are out of any judgment and in this case most of the