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Murray v. Bej Minerals, LLC

United States Court of Appeals, Ninth Circuit

May 20, 2019

Mary Ann Murray; Lige M. Murray, Plaintiffs-Counter-Defendants-Appellees,
v.
BEJ Minerals, LLC; RTWF, LLC, Defendants-Counter-Claimants-Appellants.

          D.C. No. 1:14-cv-00106-SPW

          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, Circuit Judges.

         ORDER CERTIFYING QUESTION TO THE SUPREME COURT OF MONTANA

         SUMMARY[*]

         Mineral Rights

         The en 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 reservation.

          ORDER

          THOMAS, CHIEF CIRCUIT JUDGE.

         Upon a 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 Appellate Procedure.

         As a 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.

         However, 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).

         "We 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. at 1037-38.

         Whether 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.

         Thus, pursuant to Montana Rule of Appellate Procedure 15(6), we provide the following information for the ...


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