Montanore Minerals Corporation v. Arnold Bakie; Optima, Inc .; Frank Duval

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANORE M INERALS
C ORPORATION ,
Plaintiff-Appellee,
v.
ARNOLD B AKIE; OPTIMA, INC .;
FRANK DUVAL,
Defendants-Appellants,
and
EASEMENTS AND R IGHTS OF W AY
UNDER , THROUGH AND A CROSS
THOSE C ERTAIN UNPATENTED LODE
M INING C LAIMS LOCATED IN THE
NE 1/4 OF S ECTION 15, TOWNSHIP
27 NORTH, R ANGE 31 W EST,
LINCOLN C OUNTY , M ONTANA AND
IDENTIFIED AS POPS 12, POPS 13,
POPS 14 AND POPS 15; UNKNOWN
OWNERS , and all other persons,
unknown, claiming or who might
claim any right, title, estate, or
interest in or lien or encumbrance
the unpatented lode mining claims
described above or any cloud upon
title thereto, whether such claim or
possible claim be present,
Defendants.
Nos. 15-35707
15-35753
D.C. No.
9:13-cv-00133-
DLC
ORDER

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2 M ONTANORE M INERALS V. BAKIE
Filed October 18, 2017
Before: DOROTHY W. NELSON, MILAN D. SMITH,
JR., and MORGAN CHRISTEN, Circuit Judges.
ORDER
The opinion, filed on August 16, 2017, is amended as
follows: On page 15, line 13, a footnote is added following
<§ 70-30-304(1),> which reads: <Unless a jury is expressly
waived, MCA Section 70-30-304(1) provides that appeals
from the compensation decision in this type of action shall
be heard by a jury. The district court acknowledged this
provision, but ruled: “Regardless of whether the Defendants
choose to appeal this order and seek a trial by jury, the Court
has concluded that judgment should be entered in favor of
Montanore at this time, thereby obviating the need for a jury
trial in this Court.”>.
With the foregoing amendment, Appellee and Cross-
Appellant Montanore Minerals Corporations’s petition for
panel rehearing, filed August 30, 2017, is DENIED. Judge
M. Smith and Judge Christen vote to deny the petition for
rehearing en banc, and Judge D.W. Nelson so recommends.
The full court has been advised of the petition for rehearing
en banc, and no judge requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for
rehearing en banc, filed the same date, is DENIED. No
future petitions shall be entertained.

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