Mary Ann Murray; Lige M. Murray, Plaintiffs-Counter-Defendants-Appellees,
BEJ Minerals, LLC; RTWF, LLC, Defendants-Counter-Claimants-Appellants.
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw, Marsha S. Berzon, Jay S. Bybee, Consuelo M.
Callahan, Sandra S. Ikuta, Mary H. Murguia, Morgan Christen,
Paul J. Watford, Michelle T. Friedland, and Ryan D. Nelson,
CERTIFYING QUESTION TO THE SUPREME COURT OF MONTANA
banc court stayed proceedings and certified the following
question to the Montana Supreme Court:
Whether, under Montana law, dinosaur fossils constitute
"minerals" for the purpose of a mineral
THOMAS, CHIEF CIRCUIT JUDGE.
vote of a majority of the non-recused active judges, we
granted rehearing en banc in Murray v. BEJ
Minerals, LLC, 908 F.3d 437 (9th Cir. 2018)
("Murray II"), to determine whether
dinosaur fossils are part of the surface estate or the
mineral estate under Montana law. Murray v. BEJ
Minerals, 920 F.3d 583 (9th Cir. 2019). This central
question of state law is determinative of the instant case,
and we find no controlling precedent in the decisions of the
Montana Supreme Court. Mont. R. App. P. 15(3). Thus, we
respectfully certify this question of law to the Montana
Supreme Court pursuant to Rule 15 of the Montana Rules of
general matter, "[t]he task of a federal court in a
diversity action is to approximate state law as closely as
possible in order to make sure that the vindication of the
state right is without discrimination because of the federal
forum." Ticknor v. Choice Hotels Int'l,
Inc., 265 F.3d 931, 939 (9th Cir. 2001) (quoting Gee
v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980)). If
the state's highest appellate court has not decided the
question presented, then we must predict how the state's
highest court would decide the question. Id.
if state law permits it, we may exercise our discretion to
certify a question to the state's highest court.
Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). We
may elect to certify a question sua sponte.
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.
1, 294 F.3d 1085, 1086 (9th Cir. 2002), certified
question answered, 72 P.3d 151 (Wash. 2003); see
also Lombardo v. Warner, 391 F.3d 1008 (9th Cir. 2004)
(en banc) (certifying question from an en banc court). The
Montana Supreme Court permits certification of questions of
law from federal courts. Mont. R. App. P. 15(3).
invoke the certification process only after careful
consideration and do not do so lightly." Kremen v.
Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003). In deciding
whether to exercise our discretion, we consider: (1) whether
the question presents "important public policy
ramifications" yet unresolved by the state court; (2)
whether the issue is new, substantial, and of broad
application; (3) the state court's caseload; and (4)
"the spirit of comity and federalism." Id.
dinosaur fossils belong to the surface estate or the mineral
estate under Montana law presents important public policy
ramifications for Montana that have not yet been resolved by
the Montana Supreme Court. Given the frequency of divided
ownership of Montana surface and mineral estates, and that
Montana possesses vast deposits of valuable vertebrate fossil
specimens, the issue is substantial and of broad application.
Therefore, after considering these factors, and in the spirit
of comity and federalism, we exercise our discretion to
certify this question to the Montana Supreme Court.
pursuant to Montana Rule of Appellate Procedure 15(6), we
provide the following information for the ...