Appellant Brief - Turtle Talk

Section 256.7 requires that the stipulation expressly agree to the conditions
and not state a generic agreement to conform to “all pertinent rules and
regulations.” JA0069. Black’s Law Dictionary defines “express” as “[c]learly and
unmistakably communicated; directly stated.” (7th ed. 1999). While “all pertinent
rules and regulations” may cover 25 C.F.R. § 256.7, it does so indirectly and
therefore fails to satisfy the conditions for a lawful right-of-way.
The District Court does not dispute that the stipulation failed to directly
agree to the required conditions. Instead, the District Court retraces the
Commissioner’s logic in three steps: first, the District Court states that the
“Commissioner clearly agreed to abide by ‘all’ applicable rules and regulations”;
second, it declares that “clauses (d) and (e) were unquestionably applicable
regulations”; and finally, it concludes that “the Commissioner unquestionably
agreed to abide by clauses (d) and (e) (along with the rest of 25 C.F.R. § 256.7).”
A08. While these steps may in fact be true, they also demonstrate that the
stipulation failed to directly and expressly agree to the five conditions. Section
256.7 did not suggest that the stipulation contain language which impliedly agrees
to the five conditions; rather, it required that the stipulation “expressly agree[]” to
all five conditions.
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