and is the chief judge of that system but hasn't done anything with this case wasn't on the case the other side was where she was not on the case of administrative powers to sign cases among the judges exercised any any authority over this in this case yes ok you were entering in this case and i was talking generally ok the issues that i want to discuss and there are four issues that we go through in our brief and i'm going to attempt to save five of my minutes for rebuttal but the issues that i wanted to discuss mostly were the exhaustion issue and the ex parte young issue very fully will touch on the others to the extent i have time the exhaustion issue in this case is whether the tribal court remedies have been exhausted the district court judge said that tribal court remedies have been exhausted every single case that  has come out of a federal court is contrary to that as the court knows there are different ways one can challenge jurisdiction one can challenge jurisdiction on the pleadings one can challenge it in basically a summary judgment standard or one can decide on the facts on occasion when we get to jurisdictional issue we actually have it intertwined with the facts such that it can't even be decided until the case goes to trial but there are all those different possibilities in this particular case it was the plaintiffs here defendants in the tribal court had the choice of how they chose to make their challenge they chose to challenge the cleanings solely on are the jurisdiction in tribal court solely on the that's fine but then they can't go to federal court and then say oh we've exhausted tribal court remedies if they don't assert radi case answer this council where it says tribal exhaustion is prudential not jurisdiction federal court should stay its hands until the tribal court determines its own job i'm quoting this spring right with its own jurisdiction right and we don't have that yet well i thought you had gone all the way to your highest court determining about jurisdiction but solely on the basis of let's assume all the facts that are played in the complaint are true let's let's do our check this is their choice let's do our challenge on that basis and they're coming into this court now and saying their argument to this court is basically well the tribal court had its opportunity but the tribal court decided the motion that they blocked they prop the motion solely on the pleadings not on the facts so at this point we've got a decision saying if these facts are true we have jurisdiction that's all we have from the tribal court and we don't have then a decision on actual the merits of jurisdiction do we actually have jurisdiction based upon the actual facts just on the pleadings to what purpose wo further development of the factual record serve other than delay development of the factual record first of all is is one of the core requirements for the purposes of the exhaustion doctrine and the other core purpose of the exhaustion doctrine is to prevent what we've got here which is this kind of piecemeal litigation we can go go through the tribal court we decide the jurisdictional motion on the pleadings then we go to federal court then we go to federal court of appeals then we go back presumptions against tribal court jurisdiction but then using the fact that they didn't get the facts developed as support for that for example saying we don't actually have the contract in front of us well the contract was pled in the tribal court case is a contract incorporated in tribal court pleading so we can take judicial notice of it or not the no the contract is not that there was a form contract that was submitted and so the plaintiffs in the trial in the federal court case said see this isn't even this isn't sufficient show type of court jurisdiction type of court found it had jurisdiction but there's not a signed contract here so they were trying to use the fact that they hadn't developed the facts in the tribal court to then say the tribal  court didn't have sufficient evidence to find that it had jurisdiction but the complaint in the tribal court clearly pled yeah there's a contract here this involving tribal members this is what it the basic structure of it is  the facts have been planted and if they want to challenge that they should have done it all of the cases that discuss this say that yeah you know we don't do it in this way we don't do it in this piecemeal manner we don't go up on we let the tribal court make its decision on jurisdiction and then once it's done that then we go forward with the federal review so we don't have the end again judge koblenz said tribal court remedies have been exhausted that was just wrong type of court remedy had not been exhausted based upon these remedies and so basically as we say in our brief the standard is unless it's incredibly clear that there's no chance that the tribal court has jurisdiction the case has to go there and has to have exhaustion remedies then we go onto in the tribal court case even if we went on to that issue here we've got a standard contract issue that's what we have in this case they there is a contract to pay certain amounts of money for poor oil and gas here we're talking about the gas and whether they paid that amount of money it's a straight contract issue the contract involves questions of tribal law could involve questions of federal law depending on how that issue gets decided  here one of the oddities of this case is that plaintiffs essentially won in the tribal court tribal court said stay the case yet we have jurisdiction based on the pleadings we have  stay the case so how you get an ongoing violation of federal law in this case i don't know the judge didn't explain it he didn't want that element we also don't have the people who are making the decisions they know who the judge was they didn't choose to the circuit that decided that yeah you can sue the tribal court judge the chief judge but in that case it was specifically pled he was not only the chief judge he was the presiding judge and here we don't have that and so those are the main issues i want good morning me please the court counsel my name is reed soderstrom and i represent the individual indian lottie's represented in this case i'd like to pick up where mr rasmussen left off with the highest court at m h a nation a sovereign nation affiliated tribes where they had held the tribal court matter in abeyance and they've actually ruled that you have to exhaust we have to exhaust federal court administrative remedies so when you take that context and bring it before the honorable judge and for a preliminary injunction you cannot meet the data face factors that he relied upon to give the injunction the irreparable harm certainly does not exist because everything's been stayed and in fact when it goes through an administrative matter at the federal level is a very good chance that this matter may be wholly and completely resolved so there was no irreparable harm the plate of a pelleas i'll call them companies have been doing business as usual without interruption and that has been going unabated despite this loss i thought just want to merge really doing business i thought two are no longer even doing business they birds or been assigned other companies but their production continue ok so the the data phase factors cannot be met as far as a probability of success on the merits that could be decided because the federal administration matter will decide that issue and i don't know which way that's going to go in weighing public interest you weigh the indian lottie's or is there another oil and gas interest to be weighed in the public domain my point is that the data phase factors could not be reached and the preliminary injunction could not be granted in regard to the montem exceptions i want to emphasize that it was the no any indian oil companies that have come on to the sovereign nation of the three affiliated tribes and they have come to that within that exterior boundary of the reservation they have sought leases within their old members of the tribe and justice benton us for that they have obtained right of ways easements and by a federal delegation of power through the inherent sovereignty of the tribe with indian preference not an indian companies have had to get approval and get permission to come on to the reservation through the taro travel employment rights office so there's a simple question i don't get i think the supreme court's having answered it are these a lot of lands quote tribal land unquote  know but when it's one over one they own the top and the bottom sometimes it's fractionated incredibly but hundreds and thousands sometimes tens of thousands the tribal ones i think sixty percent of the land in the tribe itself it's close to fifty fifty i guess but there is a dichotomy there between the trouble trust lands in the enroll members who want in fractionated various fractions as a supreme court apparently equate the two or not i believe it does ok what's what's the best case if you transferred into a few simple and anything held by the tribe or by the interim members held in trust there are some members at all of the land in fee as well so they don't have to own it and trust but the indian trust land is protected by the sovereignty of the tribe and through the  and it's with that that consensual agreement that the non indian oil companies have entered into a tribal members that i believe gives rise to the montana exception so if we want to even get the jurisdiction if the data same as what we've read about in nationwide media diflucan so it's come to the reservation in my opinion people are grateful for and i seen people go from rigs to riches overnight with this and it's amazing  all they want is to protect their sovereignty and enforce a simple contract action so with that said i'll take any questions that you may have thank you mr souter sure yes your time's expired thank you thank you court exhaustion subject matter jurisdiction and sovereign immunity issues and i will attempt to address the issues related to the pulmonary junction elements the data phase omens and the montana analysis and in particular issues does sitting out there a little bit go ahead well your honor we're we still have obligations there as part of the transaction we could you know were really there in the name of the party that's acquired this stuff you're telling me is it in the record was it before  judge hoffman yes your honor we did there is a footnote where we explained that cody x relationship with whiting and frankly there's been a transaction since then but we still have obligations contractual mentioned we do have the form contract although we don't have signed contracts but there's no disagreement that this was the form contract if you're going to have a lease of oil and gas interests on a lot it lands you must use the contract that's an appendix one fifty fifty six the there's no dispute that mineral development on lands allotted to individual indians is subject to pervasive federal law and regulations the contracts an oil and gas m promulgated by the united states department of interior it's subject to twenty five u s c section three ninety six before we get too far away from that yet about the bare naked words of the supreme court in montana on the first exception a tribe may regulate the analysis it teaches that there is a presumption against inherent tribal sovereignty to regulate nonmembers and limited to the to the to limited exceptions both exceptions stem from the same tribal interests and what's important to read i think i think the court clarified in planes commerce bank most explicitly they exist as required to regulate nonmember behavior that implicates tribal governance in internal tease for flare gas on a ladder and lands has long been removed from tribal control by federal law and jurisdiction so i think if you read i think planes commerce is a very important case here because it further explains that first month's haneke section is that it's not just a consensual relationship it's more than that what you need is you need to look at it in the context of whether it implicate the whether implicates tribal governance in relations and in your honor the point we're making is how could it possibly affect tribal governance and relations when all of this has been removed from tribal control your own i don't know if that has your thanks if you just claimed so you think planes commerce limits montana i think it gives the explanation that was always in montana i think it's a great clarification of what the supreme court's development of this era of this issue is going back to the to the contract is planes commerce limited to non indian fee land your honor on the the going back to that to the contract itself the area director of the bureau of indian affairs is a signatory to the agreement the contract specifically states is subject to department of interior regulation by and conform to any and all regulations of the secretary of interior and i think your honor the district court got it right when to recognize that the determination of whether plain was breached the mineral leases by failing to legislative authority in an area you don't have adjudicated authority in this area this goes to the notion and which is made plain in in nevada hicks is that tribal courts are not courts of general jurisdiction they are not like state courts they are courts of limited jurisdiction these are federal questions that need to be decided by federal courts in the district court recognize that all of these issues whether royalties  federal administrative remedies what's the irreparable harm your honor and irreparable harm is first of all you have to understand that the plaintiffs in the underlying case have not stopped once there was a decision by the tribal court there was failure to mention the fact that there was a motion for class certification and continue with k continue with the with the case and this is i don't want to interfere with mr thompson portion of the argument but the trouble supreme court made made absolutely clear that they have jurisdiction over this case they're going to send some issues in a resident really completely clear to us some issues to the administrative agencies but to decide what is do under those flaring agreements whether flaring was avoidable those are issues that are going to be decided by that tribal court and the irreparable injury here your honor is every time that we're every day that we're in trouble court that we don't have our ability to litigate this case in federal court the fact that we're facing a motion for class or to vacation in tribal court even though there was this you too well the other parties didn't talk about the cent second montana exception and i'm not sure we need to to get there here but i'll touch briefly on it just to the extent that there is any interest but it doesn't apply at all right it's just too too far removed from this case it's too narrow your honor it's got it it's got to be an action imperils the substance of the tribal community this is not a situation like we have been in other cases attorneys process or were others where you know someone has stormed trouble governing offices if they were suing you for your health hazard though right it might be the second one it would be a different an interesting question that's not what's happening here this is a breach of contract matter on a federal question but it would be an interesting different analysis they're suing you for money right correct your honor this is not a question about whether they're trying to enforce the health and welfare of the population by you know some kind of air rights or things like that i still think that there would be significant issues with jurisdiction given the fact that the federal government has has regulated completely in this area but that's not our question our question simply is  between a lot of landowners i do want to get to that question and at the risk of running out of time the court had a question about about land status and about what you know what it what are tribal lands and i will note that there is a little bit of confusion i think in that in the various supreme court cases if i could be so bold about talking about tribal tribal land  if you go back to post a bit which is back in one thousand nine hundred sixty eight supreme court held that a lot of lands are held in trust by the united states for the benefit of individuals and not for the tribe as an entity and if you look at montana the allotment of reservation land individual indians was removed from the tribes ownership interest in the lot it lands in montana equates allotment of indian land with the dissolution of tribal affairs in jurisdiction if you go all the way back to heckman which is more than one hundred years ago  twelve case it reviews the history of allotment which is really fascinating tribal lands to individuals under legislations that quote contemplated the dissolution of the tribal organizations and the distribution of tribal property and i think it's also important to look at the constitution the three affiliated tribes itself of the four per told indian reservation in we cite this in in our brief that allotted lands are an exception to the power of the tribal business council and it defines tribal lands as an allotted lands so there are some times the supreme court uses the the loose term as tribal lands as anything within the boundaries the outside boundaries perimeters of the reservation but i think clearly if you look at the various cases that have developed this is that a lot of lands are different they're held in trust that's why we have  with regard to gift tribe i'll call them the tribal official accounts argument as to exhaustion i was simply refer the court to hicks and to bilk or public schools that require exhaustion of the jurisdictional claims i am not aware of any case ever decided in a federal court that would require the defendants in a tribal court action to litigate their case on the merits prior to seeking intervention by a federal court apart from that i'm also not sure both if it tribal district court and the m h a supreme court believe they had a sufficient record in front of them nor am i aware how would that issue could be reintroduced because i would expect very capable of posing counsel to argue to the court that the finding of jurisdiction was the law of that case that it has been fully and said with regard to the ex parky young discussion is it traces all the way back to santa clara pueblo where the supreme court first introduced the idea that tribal officials could be named in the functional equivalent of an x party young recently reinforced that's my simplistic reading the judge who handled this case mr potato was sitting in this case by special designation unlimited contract ag i think i understand where you're going but when i stray bring him back yeah mr pitt choto would not have you believe he'd to determine whether he was going to hear this case who decides that in my in my humble opinion that would be the chief judge your honor ok do you have any authority for that that's what we look for next is authority regrettably no how do they have rules for that court there are rules for that court i am not presumption that the chief judge would make that decision recently as an example and i don't make it come to this court there was an issue over a paper i fly being placed in a lake the officer enforcing that challenge was not the chairman of the tribes the chairman of the tribes however was named as the defend it and no one had any problems with that and i  think that equates here falafel loco has a tribal town has a wonderful discussion of the process for going through to challenge tribal court jurisdiction which all of the subjected to trial in court without jurisdiction is can be the equivalent of a reputable harm now you took you took on the crow case right crow and don levy well this court has limited crow you're where dish network i bet yes pressley limited yes i don't like crows much authority here you think it is well if it's not i believe it's still with the wordy that you if you can show harm then that's can be one element of the harlow applies in the eighth circuit in the unique circumstances where sovereign immunity would prevent the plane he's from recovering fees paid in the course of litigation the sovereign immunity prevent the plaintiffs from recovering fees paid the course of litigation yesterday and as in this case would that apply in this case yeah and then plaintiffs came back to the defeat court seeking a class certification and a ruling that exhaustion of ministry remedies were few tile so we would have been off all over again the race restart at that point none of sorry there's also been a question asked about the individual contracts for do this real fast we that the police made motions to dismiss this case and brought them the matter before the image a supreme court that no one had ever introduced contract showing a consensual relationship they said didn't you and thank you and i would just close with asking this on a body to the discussion about basically the naming the wrong party mr thompson brought up the paradigm case and i don't have the actual cite that case it was a district court case  came to this court and was dismissed as moot but in that case it exactly illustrates what we're saying the named party was the one who issued the order the chairman was the one who issued the order rules say the chief judge can assign the judges i don't believe that's in the rules anywhere no i believe that here and this isn't an issue of whether the chief judge could assign the case but this case was assigned to judge  in ex parte young the key is some connection we have a lot of cases saying that it only needs to be some connection between the officials and the enforcement and you know we've gotten governors who just have a general powell right ok so that's that's one reason i'm beating person issuing the order is the one that is sued the ex parte young issue though is also as we mentioned a violent ongoing violation of federal law and i think it's been clear that there's not an ongoing violation of federal law here that brief we do cite to this court the osborne case which is the eighth circuit case that discusses how you can bring different types of challenges to the pleadings and the plaintiffs argument here is basically that even though they only challenged it on the pleadings that the tribal court could have gone on to decided on the facts and that's that's not what type of courts do that's not what this court does this court wouldn't say oh you only challenge  pleadings there but i'm going to go on to the facts it would say you could say i need the facts and give me the facts but it wouldn't change the parties pleadings themselves the point really i think that you want to see if i got anything else that i needed to cover before i go on to the irreparable injury issue  two things i think one one is when the court did its analysis of the balancing the harms you'll notice it did not even mention the by the harm to the tribal court it didn't discuss harm to the tribal court and that is a factor a big factor we believe but when it discussed the irreparable injury the court's wording was virtually the same as the wording that this court seeking class certification what they did what he didn't mention to use a tribal court didn't do anything with that because the case was state he also didn't mention to you they filed a new motion to dismiss because that first motion to dismiss had been sufficient to get at the filed a new motion to dismiss the type of court didn't touch that either because the case is stayed and there's no ongoing injury here and so that for that reason alone the district court's decision to issue an injunction should be reversed so that and that is then what we would request this court do and that it reversed the the district court send this case back for exhaustion of tribal court remedies after the if if and when the federal court or the federal agency ever actually makes its decision on the issues in front of it thank you thank