here for transco and mr camp are you ready to proceed in such activity during the course of constructing a federally permitted pipeline project does not change that fact therefore the resulting state law claims cannot be removed to federal court this case in this case tran is permitted to clear a right of way by ferk the federal energy regulatory commission on handi lance property transco did so very year and a half ago without interference from handy land but furcal allowed only the removal of the trees necessary to build the pipeline project not their sale over handy lands objection and certainly not transpose retention of the proceeds from that sale so the side whether or not  transco had the authority to do that if this case were back in state court how would the state court make that determination wouldn't it have to look at the for certificate and interpret the national gas act in order to  have transco raise that as a defense and weeps anticipated that defense in our complaint and we're trying to you know hide the ball that there was a fair project out there but if transco didn't raise that defense or there was doesn't that answer the question no because as judge wilson's question suggests in order to figure out whether or not transco did something that entitles you to compensation at this time some court is going to have to figure out whether or not transco violated the terms of that's right to fake it and the district courts original order allowing the easement right isn't that a substantial federal ingredient of your claim you have to you have the only claim you have to prove that transco did something that was not permitted by the first certificate we do if transco raises that as a defense you know even if they don't raise it as a defense don't you have to prove that they acted outside of the first certificate not of the birth certificate never came up in the state court action grade you raised it in your complain right you mentioned it in your complaint it's not like it's coming outside of the complaint well if ok let's change the facts if did was knock down the trees to clear the right of way and you claim trust pass conversion x cetera would that case arise under federal means that it might involve a substantial federal question because it's a necessary ingredient of your state law claim you have to you have to show a violation of federal law to win on your claim for traffic passing conversion to you not well i think the first significance construed as federal law what else could it be it's issued by a federal agency a federal court interpret ing it granted which you've appealed how could it be anything other than federal law well when applying the substantiality test courts have often said law or regulation i don't think it would qualify as either a federal statute or a federal regulation it's something put conditions on it so even transco it won't even apply to another transco project they could modify their language if possible but i would contend they can't take the cut chattels once they remove them from the right way there be no public  the federal court says well no trance transco we're wrong well we don't you have that at this case went back to state court don't you have the possibility of inconsistent burdick's well it's possible but we contend that trans have avenues of relief in that regard if if the state court proceeded in the federal court later found that there was some overlap i guess they could ask for some sort of set off they could ask the state court for a stay while the federal case  seated but we contend that they're just completely separate claims that it will not be a part of the underlying condemnation in federal court because the trees once they're cut removed from the right of way during your that condemnation proceeding in federal court it has a remedy for the diminishing of value to the property because of the easement the transco is taking but that remedy may or may not include the right to the value of the cut trees federal courts grant those damages and these types of condemnation proceedings all the time don't think there are several cases that are cited in the briefs that reflect that federal courts have the authority to grant well i think some of the cases cited by transco indicate that the federal court cannot grant just an adequate compensation the condemnation action if the trees that were taken did not diminish the value of the property and what we're talking about is a commodity essentially once it's cut and removed from the right of way for the federal court can determine damage yours or in your behalf trees that were converted once they were removed from the right away transco had an alternative here and this happens all the time they admitted in the district court that on other properties on this project they've set the merchantable temper aside off of the right of way for the landowner to do with it as he wishes handle and asked for that happen without impeding on their projects progress at all and yet transco refused to do that and so at that point it became a separate it's  a chattel clearly under georgia law a cut merchantable temper it's no longer part of the land and no longer part of what will be considered in the just an adequate compensation face i would ask the court if think of it in reverse perhaps what if we went forward with the federal condemnation and transco and he landed not make the state law claims in the federal court ultimately decide oh no you should've you might have had a claim there in state court but you should have brought it in and at that point we don't even know when that will be two three years from now we can no longer bring the sec to such limitations as passed we can no longer bring the claim over the federal court could award just inadequate compensation and then years down the road  there could be some other commodity growing out there that's not inconsistent with running a federal pipeline and certainly transco can't come back out there at harvest time you've got some rare an well our dismiss our position on that is that we certainly contested the the motion to dismiss both at the world hearing and on paper we spilled a lot of ink on these cases there was you didn't respond to the motion to dismiss there was no response denominated as a response to the motion to dismiss but at the same time we were responding to it we were briefing a t r o we were responding to their  is that your argument or is that not you that is our first our given our secondary position would be that as transco race in its brief the court did entertain evidence at the hearing that's all in the record and so we would secondarily argue construction the exercise of jurisdiction the dismissal of the claims in the denial of the temporary restraining order well let's let's talk about that for a second let's say that i give you a crazy crazy set of facts ok but hopefully they'll make a point let's say that trance goes employees go on a drinking binge the night before work and they just trash a house that is on hand these property they just trash it right destroy it inside because they're liquor can they file a claim in state court and against you absolutely because why is that because that's that would be outside of our federal authority and that's exactly the claim they're making now it's you just think you win on the merits of the claim because you're authorized to do what you did with the timber but mr camp's argument is that if your contention is that they can file a collateral state court action because what  first certificate that's no different than my hypothetical well respectfully the distinction i see your honor is that individuals who are drinking and damage something would say first of all outside of the easement area individuals becoming intoxicated or doing something that that hatched from truly detached from carrying out the federal authority the federal delegation that transco has been given to that is what we have to do and we have to clear the trees you can't build a pipeline without clearing the trees i know but it doesn't mean you have to take them and sell them without giving them to handy well what i mean this case is that i don't know whether would lose at the end of the day but this case sounds really bad from an equity perspective this case sounds really bad you knock down trees and you're entitled as alleged i know it's all alleged you knocked down trees  entitle to knock down for the easement that you've been granted under the first which if we get in the district court's order the landowner says to you no problem put the trees aside we'll get them and we're going to sell them and you say no one will tell we'll sell them ourselves that sounds really really bad well what the well a couple of things first of all if what we do with the elements of the land for instance the dirt you know the grass the rocks in the process of clearing the clear in the property to prepare for the pipeline construction is all part of the process for for constructing the pipeline and that we sold for profit these trees which in fact in their pleadings they present testimony that actually that's not what happened that the contractor who we who we hired to clear this just took it to a mill be processed their own documents illustrate that we didn't go sell the transcoding go sell these it was just a process of the contractor taking them to a mill which the e a a which the to we hire contractors to build the build a pipe including clear the property and prepared for construction as pursuant to the environmental assessment which is cited in our papers and quoted in our papers and one of the bases for judge ross order that the contractor in construction of the pipeline is allowed to be authorized to remove the trees and take them to a mill they didn't get own so they would get the value of the trees as part of the taking compensation that would be litigated yes so under the law that would apply to the case the value of the land has to be assessed incorporating the elements of the land whether  factor that has to be considered in determining to just an adequate compensation so when we get to the condemnation proceedings adjudication of compensation which is where all of this should be decided there will be education of what to the extent to which they are entitled to factor in the value of the trees and determining the market value as an element of the property they will be compensated that's routinely done in condemnation actions and so it's not as if biased removing the trees pursuant to our federal authority and pursuant to the construction of the pipeline under that authority that they're never going to realize any compensation for the merchant will temper that that was on the property and had to be removed but they may not realize the amount that they think they're entitled to because the worth of timber of cut timber as a chattel is not necessarily the same as the value of how that timber would've enhanced the land had that land had the timber still been on those are not necessarily one that factor had to be taken into consideration will have to be taken in consideration in evaluating the value of the property so we go in and we cut the trees because we have to clear the right of way to build the pipeline that is that still an element of the land and again in the condemnation proceeding we will litigate i'm sure they will say they're entitled to more money for the treats and that will be adjudicated and the federal condemnation action they can't file a collateral state court action to adjudicate that issue which has to be decided as part of the fifth amendment just an adequate compensation determination and the condemnation acts and that's really what we're talking about would be able to litigate this issue what are they entitled to are they entitled to it as a separate element from the from the land that the law says no but i'm this is the november first two thousand and seventeen decision it said eight seventy four f third twelve sixty eight and in the term of bill case what you had is you had a securities broker  that was regulated by the financial industry regulatory authority which is thinner and finra is what's called a self regulating organization under the securities act and then entity which is a private misconduct and was going through a disciplinary proceeding and the general issued what's called a wells notice which is a notice that the individual is under investigation and published that on something called broker check which is an internet  portal that allows folks to go see brokers and whether they are under investigation or their status and he sued saying that the wells notice which said that he was under investigation for witness tampering  defamatory and he sued in state court and what the court of appeals found was well let me back up the wells notice is something that is required not just authorized but require it's a procedure under their rules which were enacted under the securities exchange act and approved by the f c c that they have to do what was at issue in the case with respect to the defamation claim was whether the wells notice was actually authorized and required under those finra rules and what this court said is in order and that was the essential element of the plaintiff's claims that the plaintiff would not have a defamation claim if the wells notice was authorized and required and what the court said is that because the determination the basis of those cla bill opinion yes but let's assume now that we have jurisdiction in the court i'm looking at judge ross's order she says the motion to dismiss is deemed unopposed and the court grants it for this reason and haven't we said before that this record of abuse is its discretion if it grants the motion to dismiss solely on the basis geno case i believe what the court said is it's an abuse of discretion for the court to grant a motion to dismiss on that basis without any consideration of the merits and so here we have a difference we have a consideration of the merits in juneau what you had was a calendar error by an attorney and they didn't fall within by the deadline they were a few days late and the district court granted the motion to dismiss solely on that basis saying you didn't file a response and so as a result it's dismissed there was a motion for reconsideration filed and the court still didn't indicate that it considered any of the merits of the allegations what we have here is different because judge last did say that first of all you didn't follow response and other to stubb's decision that and that allows me to dismiss the claims and i understand you know followed it was subsequent to  is a case of forum shopping handle and as part of the condemnation case handy land admits in its abandoned complaint admits in its amended complaint the transco is engaging in quote unquote lawful condemnation of its property to believe that handy land as a as the property owner could institute a wholly separate action in state court the subject of which is in fact the subject of that state court action that is is what transco can and cannot do in the condemnation proceeding stretches the rules of civil procedure to bounce well the but the best language you have it seems to me is on the first full paragraph of page four because after the district court says that the motion to dismiss is deemed unopposed because hand the land has not responded it says moreover presented the basis preemption that in the circuit for to get authorize the taking of the trees that this was a that this determination about their compensation for the trees had to be determined in the cause condemnation proceeding and not a collateral state court proceeding and and she says that those are reasons to dismiss the claims and in fact into transcript on the april eleventh two thousand and seventeen hearing on their motion for temporary that she had considered the merits of this allegation that are taking of the trees was unauthorized under the n g a and facts to fit so unlike juneau which had no no indication and the footnote says in juneau infinite three in fact the order offers no information about the facts alleged in the complaint much less whether if taken as true they state a claim from which relief can be environmentalists testament it's a rather lengthy volume and incorporate several hundred other pages of submissions that they made but i think everyone agrees that the person at languages on page eleven of the environmental assessment a clearing crew would clear the area of vegetation and other obstacles including tree stumps logs brush and rocks cleared vegetation would be burned shipped or hauled off site to a commercial disposal facility merchantable timber would be limb cut and removed from the right of way so there is clearly a distinction there in something that might be marketable versus something that is just refuse from the construction that he says in the first to forget they can dispose of that they can remove the right away and but it must not it must be in compliance with all landowner land management agency approval and permit requirements i'm not reading the whole passage but it is in our our briefs and then transco cited in its brief an environmental assessment from another case to the extent there's any ambiguity in that language just you can remove it from the right of way period full stop they cited the environmental assessment pipeline project and it says that says that timber would be removed and disposed of in accordance with landowner preferences and applicable law well one of the one of the issues mr camp that i have a concern about on your side of the case is that with regard to the merits you really didn't brief anything i mean you spend a lot of time correctly arguing that there is no federal subject matter jurisdiction but when it comes this missile on the merits it's just two sentences without any citation of the forty or development argument or anything else of what are we supposed to do with well that's a valid criticism again we would stand by our briefing from the from the lower court we do think it out of covered those issues but we do believe that the court never gets to the dismissal if the jurisdiction doesn't exist and we feel very strongly on that point and so that is our main argument it's completely disingenuous for transco to say that somehow they don't have responsibility because they hired contractors i mean it's their name on the they're responsible for their agents the contractors that they are to come out there and obviously they were paid obviously we haven't done any discovery on this but they didn't just drop the stuff off at a mill and to the extent the contractors were paid and they would then pass it along to transco well i'm sure that was taken in account into account in the contract they had negotiated the council what do you say i'm bound to their contention that they're going to have to pay you for the value of these trees in the condemnation proceeding because they were part of the land well they only have to pay for them as as they were a part of the land and so it's only to the extent those trees contributed to the value of the land well that's the whole point isn't it you're saying that those trees are valuable so that's part of the value of the land as well that the  would be included too in the assessment of the taking would well it would but if it exceeded the value of the land it's generally and you would use that residential value because you get the greatest value whichever measure applied wouldn't you well but that doesn't mean that even if you sold your own land for residential use you couldn't before you did got a temper you can't sell it for your own use it's being condemned and you're entitled to fair compensation absolutely but there's also no no valid public use trees up and down this one hundred fifteen mile project i would just very quickly refer the court to the two circuit decisions that we did put in our briefs that do close closest speak to the issues of the substantial it involves a government entity finra as the defendant which is not the case here and it also involves a negligence claim which required construe in federal law to create a duty to succeed on the negligence claim which also i and the next case is evanston insurance company