shall be subject to foreclosure or sale pursuant to the terms of the mortgage or the deed of trust in accordance with the laws of the tribe which has jurisdiction over such land or in the case where no tribal foreclosure laws exist in accordance with the i have difficulty understanding what is reasoning was but i think what he where he went wrong was that he if you did this system the b i has for keeping federal records of indian land somehow and i think that's a real problem because if not all parts of the state law applies and which ones apply and which ones don't and what law fills the gaps and i think more importantly what if what if this is a tribal law for kids rather than the state as we had this case of the tribal did require recording with the tribe invalid emmel cannot cite any federal statute or regulation that even mentions priority rules and none what is the purpose of the  yes because under state law you are required to give notice to all interested or junior geos because they will be extinguished by the foreclosure but they won't be extinguished of that in received notice so that's that's one reason why  to the state of washington or the county recorder or any other state or local entity is attempting to exercise and pose any exercise impose any obligations on any of the parties and will harrison the deed of trust no state court ever attempted to exercise any jurisdiction over this case or the parties in fact quite the opposite this was a non judicial foreclosure it was approved by the what western district bankruptcy court and threw out of tribal court of appeals harrison in action and tribal court there's simply no action by the state or washington what this case does involve as i said earlier is enforcing the plain language of a federal statute and that and it's not jurisdiction the question suppose you had recorded the deed of trust with the b i a rather than with the county monitor and then a few years later they record their lease with the instrument has priority over a later executed instrument however there is a statute that alters that priority in certain cases and what it says is if you have recorded in the state a statute in this very explicit it says if you record it in the state and the county according office then you can move ahead of somebody who is unrecorded or recorded later there is no federal statute or regulation that discusses any of that there could be the i hate regulations but there are in kemble the supreme court held that state priority rules applied to a federal loan programs where the federal statute is finally just a priority because the incorporation of state law didn't interfere with the federal that's needed to to result in a preemption in the applying kemble the court found preemption a state foreclosure laws and prior the rules for foreclosure under the federal multifamily mortgage act preempt state law but only because the statute and the regulations expressly preempted state lien laws the stated purpose of that act was quote to create a uniform federal foreclosure remedy for multifamily mortgages primary and in fact this says in accordance with state laws and i think if you look at this on a sort of a continuum of preemption and non preemption barges out here in barns we got to step in a federal statute that says we're creating a federal system o thank you your honor is mike murphy on behalf of emerald outdoor advertising if you would like to just to start out briefly to make a key point emerald comply with the federal regulations and laws in place at the time eagle mr solmes clients did not now they are trying to change the rules rules were clear at the time and that's what this case of all about what didn't they comply with what they what did they not comply with did not comply with they did not comply with the requirements that you record all title documents affecting indian land with to be a title officers and i thought the regulations put the onus on the v a to record the document the onus does but that raises the question of whether or not they have a cause of action against the b i a and as they don't have a record to be i as opposed to record that is correct when you say they didn't do something or other which would be a you didn't do something or other that's probably a fair to a fair characterization but the step that had to be taken by them to protect their interests of the third parties and to provide constructive notice under the v a regulations was not done so what you're suggesting it seems to me is that there may be an argu with the i a e a over whether they did what they were supposed to do and whether there's a cause of action that's not this case the question is has between third parties innocent takers and i would point out that there is no dispute in this case that my client took without o because the questionnaire that implies that the state is the proper place of reporting and that's essentially mr sullivan's argument here and that is clearly not the law and you have to back up and start with the question of land is an animal it's a creature of federal statute and regulation there is no common law basis for it purely statutory the was clear you look at the montana blackfeet case you look at the smith case  what the officer of record is they tell you exactly where to record it and that is the that is the place of recording yet and so the notion that somehow and i'll get to this in a minute put the notion that forty three eight somehow changes that and and says that state recording offices are now the proper place of recording it is is frankly frivolous because that's statute doesn't say anything about that and well you the issue the core issue here is and i think judge really got to get it got it right obviously is that you look to state priorities but you you have to determine the place of recording with respect to federal law where there is federal law on that subject for certain particularly with this is an area that doesn't start with the notion that there's a residual body of state common law that somehow applies and that's one of the things that that is recurring in this line of argument from golden eagle and harrison is that somehow state common law applies here and that is a fundamentally erroneous because this is these are creatures of federal law and to the extent that there  federal common law that applies then that is used to fill in the interest of caesar the cracks between the regulations and the statutes and and by and and interpret the statutes and regulations to determine what rules apply and essentially judge wally did that conclude otherwise defeats the v a recording scheme and results in a scenario or result that is hostile to the existing federal regulation remember one thing that's critical here if you look at the blackfeet case you look at the smith case the touchstone of state authority here is whether or not congress has ever delegated any authority to the states on the subject the subject being recording in place of recordings and it is clear that congress has never done that in fact to the contrary congress comprehensive regulatory scheme which other courts have recognized as just that but that governs this area and the states have never been delegated any authority to control that in the absence of any state authority there court says that there is not even a federal cause of action to bring a mortgage foreclosure under forty three a day and it goes on to say and in fact you can't even do that in state court because in the absence of a suggest that if you can't get in the federal court with the foreclosure action that somehow this seems statute means that state recording laws govern that it makes absolutely no sense completely inconsistent with with that authority what's what's yours suggestion as to what's going on here where why did congress pass this one i think that's a good question i've thought about that and kind of keep that around at it if you look at the legislative history which is which is part of the record of forty three eight there's there's really two things going on one is congress recognize that there's no federal mortgage law no federal mortgage foreclosure law there's no prominent law federal mortgage foreclosure law so you've got to look to somewhere for the foreclosure part of that exercise if we're going to allow deeds of trust and mortgages on this land secondly they want to keep the united states out of every garden variety foreclosure process as a party because it's a huge maybe a huge burden that's what that's about is it fair to say that congress was not thinking through all the permutations of how this might play out i think the answer is obviously yes but it is that it is a completely illogical leap of faith to suggest that congress meant it trying to get the united states as a party out of these cases in trying to it short cut our way to having some mortgage foreclosure laws apply that it meant to incorporate all of state recording was and supplant an existing and well established for over one hundred years the recording system it doesn't follow that's the flawed logic here by the appellant you ca derive that from this from this language and the smith decision from the circuit i think confirms that and it's consistent with the line of cases that that like the montana blackfeet u s supreme court case that these are creatures of federal statute not state law and in fact you know this whole common law argument is is frankly sort of silly the english common law from the fifteen hundreds doesn't even apply in washington i'm not sure if i really fully understand where mr solvents going with that argument because even if you look at forty three a in a talks about it of course it's subject to foreclosure in accordance with the laws of the states if there is no tribal law you then look to the law of the state what's the priority scheme in the law of the state and that's a judge whately that he looked he said you know i'm going to look to that pricing scheme it's clear that there is a recording system and one of the things that you have to understand is and it still bucks says this very clearly which they than half the states follow the race notice there's either no or so there is pure race the existence to the existence of recording system supplants any kind of notion of common law first in time first and right places of recording the states of all the places potential places of recording if there were tribal recording system federal and state the only place that there cannot be state recording in the absence of federal delegation is the state and there cannot be dual reporting i mean that in a society from the chaos associated with that in the absence of or over regulation indicating that and in the absence of some delegation but the but the fundamental flaw of that line of logic is that states have no authority over trust land unless delegated by congress congress has never delegated the authority or recording laws to the state of washington or any other state this statute forty three a does not by its terms bice legislative history or by any logical interpretation of its purport to delegate recording authorities to the state and this case is really about where is the proper place of recording and let's step back for a moment and look at the big picture we have a federal statute that makes the b i e the proper place of recording for trust land we have detailed the i a e a regulations that define what that all means and one hundred year history of doing it we have no claim of authority no citation to any authority no claim by any jurisdiction in the country to the notion that the states are the proper place of recording we now have a private litigants coming in to this to court and saying oh congress intended something that nobody else has recognized before and that that is that states are are the proper place of recording and this is something that notion i think because then what do you do with this via a system because you're under that approach to be a system becomes a legal knowledge and and so it's clearly was not prepared to conclude say then you would have you would apply the foreclosure laws of the state and you take the priorities as they come under the b i a recording system because the be a recording system as it is your hours of not questioning counsel is provided for constructive notice and so you would line him up just like you would line up any other foreclosure you would look at the only question is where do you want it to determine who has a legitimate junior lien the other backdrop that you have to recognize and go this goes back to the south dakota case in the in the that line of authority the more fundamental line of authority regarding transfers of any supposed to record it and there is your record and that's what you look to determine who you line up in terms of your lawsuit and then you either file suit in tribal court as the as the circuit suggests or potentially within the meaning of the state correctly right but if you look at for example you're right but if not now that now you're getting into the question of and i agree with counsel on one point and that is that the b s a regulations do not use the word priority anywhere and so the question is what do you judge when we took the approach i doubt it in the misery case of the supreme court of you look to state law and borrow what is not hostile to the federal scheme and i think that is certainly one analytical framework i think that that's certainly the appropriate framework i don't frankly think you have to go to that level because under the if you look at the big picture of the real property law you don't there's no purpose to a recording system  about points out other than to supplant the common law rule and to establish centrally a rule that says first a record has priority so that's your starting point and that's that's where you that's where you be in from and so i think that so that i would submit that the b i regulations do establish a priority system based on for us to record if there's any ambiguity about that it is the job of the federal judiciary to fill in the  says you disregard the existing federal scheme that's based on a federal statute that's over one hundred plus years old and there's been a process that's existed in people have relied on one of the interesting points that council made repeatedly in his briefing is that this would be terrible for the commercial credit system and if be a recording plies that simply that logical we have a hundred year history of the v a being the repository of these documents and if you just look at the facts of this case what happens to people's expectations if you suddenly say  you played by the rules in the regulations which you lose because we have this we have we've decided that state law now is the proper place of recording i think that the devastating creates a tremendous amount of uncertainty as to what the rules are we have rules is all we're asking this court to do is apply then the only do we know whether the credit reporting systems take into account plant network absolutely yes i have been involved in transactions involving inland is it in the record well but it what is in the record is the testimony of bruce story the manager of emerald  who said he got a ts our title status reports in connection with this there was one other different bank lien ahead of us recognize that this was not on it the emerald deed of trust was not on it they went forward with the transaction cross appeal therefore we don't give to this other issue what we prevailed below so we were not in the grief party so there was no requirement that we cross appeal we can argue for any issue to support the same result  i talks about designating additional parts of the record that's not at issue here at all so i just i think that's a red herring the also cites bankruptcy relate all six rate gyro zero six excuse me that rule governs appeals to district courts information is presented nothing goes on and lo and behold if you have rules on it as a matter of law without citation to any authority without the opportunity centrally to have our day in court on the issue when the judge told us we weren't going to have that that's the that's the substance of that that's why  reserved first of all the hundred year history he's referring to the adoption of twenty five us the section five which by which congress authorized the now behind a to keep a record of transactions twenty five c f r section one fifty point three says that the p i a s charge with the federal record keeping responsibility his reading would have you ignore the word federal shouldn't do that it's not the only place you can record and in fact there are several cases cited in our brief including the us vs american horse where the federal courts acknowledged that the instruments that were recorded with the county in fact one of them must mention it a half a dozen times you know this was executed and it was recorded in x county so clearly that court didn't think that was something that shouldn't be done i think more importantly however taking that approach of that it's only the only place it can be recorded really creates the major problems first of all what happens to all these tribal recording systems when the tribes it's either accordance with the tribal law of the state law they should be the same there shouldn't be any difference it says the laws of the state poor or common law statutory law whatever the law of the state doesn't say specifically foreclosure law it's the laws of the state and aspires to any any interfering with the  product of the federal government congress provided for b i e of oversight congress certainly could have set up its own foreclosure system in rules but congress provided for oversight and where they provided for it is in the approval process you can't consent of the big guy is required for to sale so the federal government really has no interest in parties are in there and where the money goes so well so that's again a non non issue i think and as far as  status reports don't do is tell you who priority who has priority it's just a list of documents it has approval dates so you can find out who's actually first in time first in right but as we discussed in the break there's a lot of problems with the recording system and the sequencing of the numbers and dates and times and all