417 F.Supp. 658 (1976)
CENTRAL SOYA COMPANY, INC., Plaintiff,
v.
COX TOWING CORPORATION et al., Defendants.
No. GC 74-90-S.
United States District Court, N. D. Mississippi, Greenville Division.
June 17, 1976.
*659 J. Robertshaw, Robertshaw & Merideth, Greenville, Miss., for plaintiff.
L. Carl Hagwood, Campbell & DeLong, Greenville, Miss., Scott W. Welch, III, Butler, Snow, O'Mara, Stevens & Cannada, Swan W. Yerger, Heidelberg, Woodliff & Franks, Jackson, Miss., for defendants.

MEMORANDUM OF DECISION
ORMA R. SMITH, District Judge.
The present case was commenced on or about September 23, 1974, as a declaratory judgment action pursuant to 28 U.S.C. § 2201. The original defendants were Cox Towing Corporation, John H. Cox, Mississippi Marine Transport Company, L. B. Lampton, and Southern Farm Bureau Life Insurance Company. The case was brought as an in personam action alleging the breach of a long-term charter of a towboat, the M/V Mark Shurden, ex Wildcat.
After substantial discovery, the plaintiff secured leave of court to file an amended complaint naming T. R. Pittman and Walter Choate as additional defendants in personam and the Mark Shurden in rem. In the amended complaint, plaintiff requested the court to impress a maritime lien on the *660 Mark Shurden and sell the vessel in order to satisfy plaintiff's claim; however, plaintiff did not request the issuance of process for the Mark Shurden and, to date, has made no attempt to arrest or seize the vessel.
Central Soya abstained from instigating the arrest or seizure of the Mark Shurden in order to provide the present owner of the vessel, Mississippi Marine Transport Company, time to attempt to obtain a bond or letter of undertaking as security for plaintiff's claim in lieu of the vessel itself. Central Soya required a bond or letter of undertaking of at least $1,000,000 and Mississippi Marine Transport has been unable to make any sort of financial arrangements satisfactory to plaintiff.
Negotiations concerning the bond or letter of undertaking having failed, and counsel for the Mark Shurden's present owner having become apprehensive that the vessel would be seized at plaintiff's instance without notice to Mississippi Marine Transport pursuant to Rules C and E of the Supplemental Rules for Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, Mississippi Marine Transport requested leave of court to amend its answer so as to include a counter-claim against Central Soya, the gravamen of which is a constitutional challenge of Rules C and E. Shortly thereafter, plaintiff moved the court for leave to amend its complaint so as to verify the pleadings on oath or affirmation as required by Rule C(2)[1] and to specifically request issuance of a warrant for the arrest of the Mark Shurden and service by the marshal of the warrant and process in rem upon the occasion of the vessel's next venture into the territorial jurisdiction of this court.
Insomuch as it appeared to the court and counsel alike that the ultimate issues raised by the motion for leave to amend filed on behalf of Mississippi Marine Transport Company and the motion for leave to amend filed on behalf of Central Soya are substantially similar, if not identical, only the motion for leave filed on behalf of the plaintiff was fully argued and briefed by counsel. The court's ruling on plaintiff's motion will accordingly control disposition of defendant's motion.
For the purposes of today's actions, the court will assume the accuracy of the narrative of the facts upon which the present controversy is founded as set forth in plaintiff's brief in support of its motion. Central Soya and Mississippi Marine Transport Company (a non-party to this action) entered into an agreement whereby Mississippi Marine constructed the vessel here in question. Pursuant to the terms of the contract, the defendant Cox Towing was later substituted for Mississippi Marine as owner of the ship. The vessel, which entered service as the Wildcat, was the subject of a long-term charter under the Central Soya  Mississippi Marine  Cox Towing agreement. During the term of the charter, the vessel was sold by Cox to Mississippi Marine Transport Company and, according to the averments of the complaint, was removed from service under the charter. Quite obviously, the ultimate issues in this lawsuit are whether the removal of the vessel from service under the charter constituted a breach of the charter agreement, and, if so, the amount of damages to which plaintiff may be entitled.
Turning then to the motion presently before the court, Central Soya asserts that, under settled principles of admiralty law, breach of a charter such as is here alleged, and damages consequent thereto, may be secured by a maritime lien against the vessel which was the subject of the charter. G. Gilmore & C. Black, The Law of Admiralty 631 (2d Ed. 1975). Accordingly, plaintiff argues that it may bring this action in rem pursuant to Rule C(1)(a) in order to enforce the maritime lien to which it is entitled. Should the court allow the amendment sought by plaintiff, Central Soya intends to proceed under Rule C(3) and (4) to effect the arrest of the Mark Shurden with no further notice to the vessel's *661 present owner.[2] Pursuant to Rule E(5), to obtain release of the Mark Shurden following its arrest at the instance of Central Soya, Mississippi Marine Transport Company would be required to post a substantial bond in an amount to be agreed upon by the parties, or to be fixed by the court.[3]
In attempting to persuade the court to reject plaintiff's request for leave to amend and thereby prevent seizure of the Mark Shurden, counsel for Mississippi Marine Transport makes a two-pronged argument. First, the defendant contends that Rules C and E are violative of the Due Process Clause of the Fifth Amendment on their face and as applied because they make possible the arrest or seizure of defendant's property without notice or opportunity for hearing prior to dispossession. Second, the defendant contends that, under the facts of this case, seizure of the Mark Shurden is not required to afford plaintiff complete protection of its rights and should be disallowed as improper and unnecessary. Because the defendant's second contention is inextricably bound up in the court's disposition of the defendant's first argument, the court will not separately address defendant's second proposition.
Since Mississippi Marine Transport is presently seeking injunctive relief from the enforcement of a federal rule of procedure, the question of the necessity of a three-judge court rather naturally arises. Pursuant to 28 U.S.C. § 2282:
[a]n interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
The court has considered at length the question of whether a three-judge court must pass upon the merits of defendant's claim that certain of the Supplemental Rules for Admiralty and Maritime Claims contain provisions which are repugnant to the Constitution. Under the plain language of the statute, a three-judge court is required only where an injunction is sought preventing enforcement of an Act of Congress. But are the Federal Rules of Civil Procedure the functional equivalent of an Act of Congress in the contemplation of the three-judge statute? The rules themselves are formulated and promulgated by the Supreme Court of the United States subject to rejection or modification by Congress pursuant to 28 U.S.C. § 2072. The Federal Rules of Criminal Procedure are subject to like restrictions under 18 U.S.C. § 3771. Insomuch as the rules when and if modified by the Supreme Court, become effective without any participation whatsoever by *662 the executive branch of the government, the court is not inclined to equate the nature and effect of the rules of procedure with that of an Act of Congress.
It has been held that a resolution or rule of a single house of Congress is not an Act of Congress within the meaning of the three-judge court statutes. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577, 602-03 (1968), aff'd, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).
Although it is not uncommon for the courts to be presented with questions concerning the validity of the federal rules of procedure,[4] the court was able to discover only one opinion dealing with the necessity of convening a three-judge court to hear a constitutional attack on a rule as promulgated by the Supreme Court. In Chambers v. Moseley, 306 F.Supp. 1102 (D.C.Kan.), aff'd, 419 F.2d 833 (10th Cir. 1969), the court, without considering whether a three-judge court was otherwise required, held that the claim of a habeas corpus petitioner concerning the unconstitutionality of Fed.R. Crim.P. 20 and his attendant prayer for injunctive relief was insubstantial because numerous appellate courts had already upheld the constitutionality of Rule 20. Since, the court, in Chambers, grounded its denial of the application for a three-judge court solely on the rule of Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962) where the court held that a three-judge court is unnecessary "when the claim that a statute is unconstitutional is wholly insubstantial," the Chambers opinion failed to reach the question here presented.
With an appreciation of the essential nature of the Federal Rules of Procedure and in view of the narrow construction which is to be accorded the three-judge statute, Bailey v. Patterson, 369 U.S. at 34, 82 S.Ct. at 551, 7 L.Ed.2d at 514, the court has concluded that the convening of the three-judge court is not required to dispose of the constitutional claims presented in the case at bar.
Proceeding then to a determination of the constitutionality of the rules of procedure here challenged, defendant relies upon the rule first announced in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and expanded upon in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L.Ed.2d 406, 94 S.Ct. 1895 (1974); and, North Georgia Finishing, Inc. v. Di-Chem, Inc.,, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The general rule which this court is able to formulate from those cases is that due process of law under the Fifth and Fourteenth Amendments requires notice or opportunity for an early hearing and the participation of a judicial officer whenever a property owner is to be deprived of the use of his property during the pendency of litigation in which the owner is involved. However, and most importantly under the facts of the instant action, the rule which may be synthesized from these cases is subject to an "extraordinary situation" exception. This exception was first noted by the court in Sniadach in the following language: "[S]ummary procedure may well meet the requirements of due process in extraordinary situations." 395 U.S. at 339, 89 S.Ct. at 1821, 23 L.Ed.2d at 352 citing Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1945); Ewing v. Mytinger & Casselbery, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837, (1921); Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928).
In Fuentes, the court discussed the "extraordinary situations" exception at some length.
There are "extraordinary situations" that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U.S. [371], at 379 [91 S.Ct. 780, at 786, 28 L.Ed.2d 113]. These situations, however, must be truly unusual. Only in *663 a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
Fuentes v. Shevin, 407 U.S. at 90-91, 92 S.Ct. at 1999. (Footnotes omitted.)
In yet another case Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 678, 94 S.Ct. 2080, 2089, 40 L.Ed.2d 452, 465 (1974), the Supreme Court upheld a no-notice seizure of a yacht which had been used for unlawful purposes and, in so doing, reiterated and relied upon the "extraordinary situations" exception so as to allow immediate seizure of property without an opportunity for prior hearing in limited circumstances. The Court again cited with approval the holdings in Coffin Bros. & Co. v. Bennett, Ewing v. Mytinger & Casselbery, Inc., and Ownbey v. Morgan.
Ownbey v. Morgan assumes particular significance insomuch as nearly all the recent cases which have discussed due process in the context of the requirements of preseizure hearing and notice have cited it with approval. In Ownbey, the plaintiff caused certain corporate stock, owned by the defendant, to be attached by the courts in the State of Delaware. In order for the defendant, a nonresident of the forum state, to appear specially and contest the action, a $200,000 bond was required pursuant to state law. Posting of the bond would also effect a release of the stock to the custody of the defendant. The defendant was unable to post the bond and judgment based upon the quasi-in-rem jurisdiction of the Delaware court, was ultimately taken against him.
The Court in Ownbey approved the attachment procedure employed there in the face of a due process attack, reasoning that insomuch as in personam jurisdiction over the defendant was unavailable, seizure of the defendant's property to be found within the forum state was a necessary and legitimate method for the court to acquire jurisdiction.
In view of the holding in Ownbey and in further view of the fact that Ownbey has been cited with approval by the Supreme Court in several recent decisions including Sniadach, Fuentes, and Colero-Toledo, it may be assumed that a situation in which seizure without opportunity for prior hearing is viewed as proper by the present Court could be one where attachment is necessary in order to vest the court with jurisdiction. Indeed, in Fuentes, the Court explicitly stated that such an attachment serves what is "clearly a most basic and important public interest." 407 U.S. at 91 n. 23, 92 S.Ct. at 1999, 32 L.Ed.2d at 576 n. 23.
In this action, the court presently enjoys in personam jurisdiction over Mississippi Marine Transport, the current owner of the vessel here in question; however, the law of admiralty allows plaintiff here to look to a maritime lien which it may impose upon the Mark Shurden in addition to whatever personal obligations the vessel's owner may have or incur.
In admiralty the vessel is treated as though having a juridical personality, an almost corporate capacity, possessing not only rights but liabilities (sometimes distinct from those of the owner) which may be enforced by process and decree against the vessel, binding upon all interested in her and conclusive upon the world, for admiralty in appropriate cases administers remedies in rem, i. e., against the property, as well as remedies in personam, i. e., against the party personally.
1 Benedict on Admiralty, § 106 at 7-17 (7th rev. ed. E. Jhirad, A. Sann, I. Hall 1975).
Plaintiff here, if foreclosed from attaching the vessel at this time, will be exposed to a definite risk of harm which would not *664 exist should the court allow the arrest of the Mark Shurden. In order for plaintiff to impress a maritime lien against the vessel, this court must possess in rem jurisdiction over the Mark Shurden. In order to acquire in rem jurisdiction over the vessel, seizure and arrest of the Mark Shurden must be effected. Dow Chemical Co. v. Barge UM-23B, 424 F.2d 307 (5th Cir. 1970). Destruction of the vessel would extinguish all maritime liens since there would remain no res to which a lien could attach. Insurance proceeds, if any there be, should the vessel be destroyed would be unavailable to plaintiff since it has been held that a maritime lien does not attach to the proceeds of insurance upon loss of the vessel. Walsh v. Tadlock, 104 F.2d 131 (9th Cir. 1939). It therefore follows that although the court possess in personam jurisdiction over the Mark Shurden's owner, in order to afford plaintiff all the protection to which it is entitled under the substantive law of admiralty, it is necessary that plaintiff be allowed to employ the arrest and seizure procedures for which provision is made in Rules C and E. The court feels a reasonable analogy in this regard can be drawn with Ownbey in that, in both cases, seizure of the defendant's property is a procedural prerequisite to full protection of plaintiff's legitimate interests. Additionally seizure in both cases was a necessary foundation for the court's assumption of jurisdiction  quasi-in-rem in Ownbey and in rem in the case at bar. Accordingly, the court is of the opinion that arrest of the Mark Shurden pursuant to Rules C and E in order to vest the court with in rem jurisdiction over the vessel would not operate to deprive defendant of due process of law insomuch as the seizure would fall within the "extraordinary situations" exception to the rule of Sniadach and its progeny.
The court's reasoning concerning the additional risk to which plaintiff is exposed absent arrest further serves as a basis for rejecting defendant's argument that, aside from the constitutionality issue, arrest should be denied plaintiff because it is unnecessary to protect plaintiff's rights in this action. Since depriving plaintiff of the right to seize the Mark Shurden in order to obtain in rem jurisdiction over the vessel would impose a certain degree of additional risk of loss on Central Soya, the court cannot agree with defendant's contention that arrest is unnecessary because plaintiff's rights are already fully protected.
In addition to the court's conclusion that the arrest of the Mark Shurden pursuant to Rules C and E would fall within the "extraordinary situations" exception to the general rule prohibiting pre-hearing seizure, several other considerations militate against defendant's unconstitutionality argument. First, there is the existence of Rule E(7) of the Supplemental Rules which offers Mississippi Marine Transport some degree of protection from premature or ill-founded seizure of its property.
Whenever there is asserted a counterclaim arising out of the same transaction or occurrence with respect to which the action was originally filed, and the defendant or claimant in the original action has given security to respond in damages, any plaintiff for whose benefit such security has been given shall give security in the usual amount and form to respond in damages to the claims set forth in such counterclaim, unless the court, for cause shown, shall otherwise direct; and proceedings on the original claim shall be stayed until such security is given, unless the court otherwise directs.
Rule E(7), Supplemental Rules for Admiralty and Maritime Claims.
Pursuant to the above-quoted rule, should Mississippi Marine Transport feel itself in some serious way monetarily damaged by plaintiff's seizure of the Mark Shurden, a counterclaim could be filed and security required of Central Soya. Bancroft Navigation Co. v. Chadade Steamship Co., 349 F.2d 527 (2d Cir. 1965); Seaboard & Caribbean Transport Corp. v. Hafen-Dampfschiffahrt A. G. Hapag-Hadac Seebaderdienst, 329 F.2d 538 (5th Cir. 1964).
Further, if and when Central Soya effects arrest and seizure of the Mark Shurden, and should Mississippi Marine Transport *665 post a bond in order to obtain the release of the vessel, the costs borne by the defendant in securing the bond are taxable at the conclusion of the action should defendant prevail upon the merits. "Reasonable premiums paid to the surety are allowable as costs to the prevailing party." Keystone Shipping Co. v. SS Monfiore, 409 F.2d 1345, 1346 (5th Cir. 1969).
In the final analysis, the court found the following statement by Justice Powell in his separate concurring opinion in North Georgia Finishing Co. v. Di-Chem, Inc., 419 U.S. at 609, 95 S.Ct. at 724, 42 L.Ed.2d at 759 to be of assistance in considering the constitutionality of the arrest procedures here attacked:
[T]he recent expansion of concepts of procedural due process requires a more careful assessment of the nature of the governmental function served by the challenged procedure and of the costs the procedure exacts of private interests.
Considering the historical development of the concept of arrest of maritime vessels and the close relationship which arrests of this nature have with in rem jurisdiction of admiralty courts, the court feels that seizure in this case serves governmental interests quite similar to those which were at issue in Ownbey v. Morgan, supra. In assaying the costs which the pre-hearing seizure of the Mark Shurden will exact of the vessel's present owner, Mississippi Marine Transport, the availability of a procedure whereby the owner may cause a counterbond to be required of the party initiating the arrest, the plaintiff, pursuant to Rule E(7) weighs heavily in favor of allowing the seizure to proceed. As a final consideration, it may be observed that by means of the court's consideration of the instant motions, Mississippi Marine Transport has in fact been afforded both notice and hearing prior to the seizure of the Mark Shurden. While the court did not and does not undertake to determine the relative merits of the claims of the parties in passing upon motions for leave to amend pleadings, it is clear at this point that the plaintiff's claim which it seeks to assert or perfect by way of arrest of the Mark Shurden is made in good faith and cannot be described as baseless or specious.
An order will be entered granting plaintiff's motion and denying that of defendant.
NOTES
[1]  "In actions in rem the complaint shall be verified on oath or solemn affirmation."
[2]  Rule C reads in pertinent part as follows:

(3) Upon the filing of the complaint the clerk shall forthwith issue a warrant for the arrest of the vessel or other property that is the subject of the action and deliver it to the marshal for service.
(4) No notice other than the execution of the process is required when the property that is the subject of the action has been released in accordance with Rule E(5). If the property is not released within 10 days after execution of process, the plaintiff shall promptly or within such time as may be allowed by the court cause public notice of the action and arrest to be given in a newspaper of general circulation in the district, designated by order of the court.
[3]  Rule E(5)(a) reads as follows:

Except in cases of seizures for forfeiture under any law of the United States, whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of any appellate court. The parties may stipulate the amount and nature of such security. In the event of the inability or refusal of the parties so to stipulate the court shall fix the principal sum of the bond or stipulation at an amount sufficient to cover the amount of the plaintiff's claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (i) twice the amount of the plaintiff's claim or (ii) the value of the property on due appraisement, whichever is smaller. The bond or stipulation shall be conditioned for the payment of the principal sum and interest thereon at 6 per cent per annum.
[4]  See, e. g., Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946).


                  ORriNiAi                                                              06/23/2020

            IN THE SUPREME COURT OF THE STATE OF MONTANA                            Case Number: DA 19-0299

                                        DA 19-0299

 SIGNAL PEAK ENERGY,LLC,                                                  FILED
             Plaintiff and Appellant,                                     JUN 2 3 2020
                                                                        Bovven Greenwood
                                                                      Clerk of Suprerne Court
       v.                                                                Stat© nf Montana

                                                                   ORDER
 MONTANA ENVIRONMENTAL INFORMATION
 CENTER,STATE OF MONTANA BOARD OF
 ENVIRONMENTAL REVIEW,ELLEN PFISTER,
 and STEVE CHARTER,

             Defendants and Appellees.

       In this matter, Signal Peak, LLC (Signal Peak) has appealed from an order granting
summary judgment to Defendants Montana Environmental Information Center (MEIC),
State of Montana Board ofEnvironmental Review(BER),Ellen Pfister (Pfister), and Steve
Charter (Charter) (collectively, Defendants) on Signal Peak's complaint for declaratory
relief concerning a discovery dispute that arose in a BER contested case. However, upon
a review of the parties' briefing and the administrative record, we have concluded that
procedural irregularities and unresolved administrative issues prohibit the Court from
proceeding on the appeal, including reaching the merits of pending constitutional issues,
and that the case must be remanded for further proceedings before the agency.
      On August 11, 2016, MEIC filed a Notice of Appeal and Request for Hearing
("AM3 appeal") with BER challenging the Department ofEnvironmental Quality's(DEQ)
issuance of a coal mining permit to Signal Peak in 2013. Pfister and Charter had provided
comments during the permitting process, are members of MEIC, and separately own
surface lands located above the mining operations proposed by Signal Peak in its AM3
application. After a series of discovery disputes between the parties that required the
extension of discovery deadlines, the hearing examiner issued a scheduling order in the
AlvI3 appeal that required remaining discovery to be completed by April 30, 2018.
      On March 30, 2018, Signal Peak issued deposition notices and subpoenas duces
tecum for Pfister and Charter,requiring they produce any written communications between
them and entities or associations concerning impacts to water resources located on their
surface lands. MEIC moved to quash the deposition notices and subpoenas on April 17,
2018, arguing that the depositions were inappropriate, unduly burdensome, overbroad by
seeking information that had not been before the DEQ in the permitting process,
improperly seeking privileged communications between MEIC and its members, and
violative of Pfister's and Charter's constitutional rights to associate and petition the
government for redress of grievances. Pfister and Charter joined MEIC's objections, and
Signal Peak opposed the motion to quash.
       The hearing examiner conducted a hearing on the motion on May 23, 2018, which
essentially was a discussion between counsel for the parties and the examiner. Except for
a later order simply staying the discovery deadlines pending resolution ofthe litigation that
the parties would subsequently commence in the District Court, no written order was
entered by the hearing examiner regarding the discovery issues and objections raised by
the parties. The record captures only counsel's discussion with the hearing examiner about
the requested depositions, particularly, the hearing examiner's concern about the
constitutional issues raised within MEIC's motion to quash the depositions:
      [A]s a preliminary matter, I have one issue that's burning for me that I want
      you all to address. . . based on Montana Supreme Court case law, and
      specifically there is the Jarussi case and there are several others that discuss
      the separation of powers issue between MAPA and agencies deciding
      constitutional issues. In my understanding, I have no jurisdiction to decide
      constitutional issues and my inclination, unless you folks can convince me
      otherwise, is that that is a question for the District Court to resolve;

       So I guess what I need from you then, from potentially everybody, is a
       practical solution about how we're going to deal with this First Amendment
       problem and the jurisdiction piece of it;

                                             2
      [I]f we can fashion a solution here that [will] deal with the concerns without
      having to go to District Court, that would obviously be preferable. But if
      you're going to go to the District Court anyway if the decision is anything
      other than a grant ofthe motion to quash, then you might need to bring the
      First Amendment problems to District Court and you can deal with them
      anyway. So practically,Ineed you all to tell me whether you want a decision
      from me on this or whether you want me to stay the underlying decision, or
      the underlying case while you go to District Court... I will give you all until
      next Friday. I'm not going to issue an order on this, so just orally I will give
       you until next Friday to provide me with supplemental briefing all at the same
      time. ... My inclination is to not address the First Amendment or to make a
      record as to why           not addressing it, why I don't think it has to be
      addressed, it can be avoided, and then to make the ruling on the burden and
       the other issues. [(Emphasis added)].

       The hearing examiner inquired whether IVIEIC would withdraw its constitutional
challenges, apparently believing this would permit the examiner to enter an order on "the
other issues," namely, the non-constitutional grounds raised for quashing the deposition
and subpoenas, but IVIEIC declined, stating that the "First Amendment concerns here are
paramount."    MEIC did advance alternative, non-constitutional arguments that the
subpoenas sought privileged communications, sought information not presented to DEQ
that would be "reopenine the record, were retaliatory, and overly burdensome. In the
discussion, Signal Peak and MEIC appeared to agree that the discovery requests could be
modified to be less burdensome, but also appeared to view the constitutional issues as
primary. The hearing examiner ordered supplemental filings and,on June 1,2018,the date
the supplemental submissions were due, Signal Peak filed a status report that concurred
with MEIC that "the [h]earing [e]xaminer and the Board of Environmental Review lack
jurisdiction to decide the constitutional issue that the [Defendants] advanced in [their]
Motion to Quash," but contended the Defendants had "presented no legitimate ground for
the putative deponents to avoid their obligations to respond to discovery."
       As noted, no written order was entered by the hearing examiner on either the
constitutional or non-constitutional issues raised by the Defendants' motion to quash, and

                                             3
after careful review of the record, we can discern no oral ruling on these issues either. In
its briefing to this Court, Signal Peak offers that the hearing examiner "implicitly declin[ed]
to quash the subpoena on the other grounds raised by MEIC, not[ing] that the remaining
constitutional issue could only be addressed by thejudiciary, not by the executive branch,"
but we are hard pressed to discern even an implicit ruling. Rather, it appears the hearing
examiner was focused on resolution of the "jurisdiction piece of it," that is, the
constitutional issues that the agency did not have jurisdiction to resolve, and directed the
parties to proceed to the courts for a decision on those issues. Despite expressing an
inclination, the hearing examiner never did "make the ruling on the burden and the other
issues." If Signal Peak's assessment of an implicit ruling was correct, Signal Peak would
have been the prevailing party before the hearing examiner, and yet it was Signal Peak, not
MEIC,that initiated litigation by filing a Complaint for Declaratory Judgment before the
District Court seeking a declaration that "complying with discovery would not infringe the
Defendants' constitutional rights and order the Parties to abide by applicable rules and
respond to discovery." More importantly, no one in this matter seemed to recognize that
resolution of the non-constitutional objections to the discovery by the hearing examiner
was a prerequisite to reaching the constitutional objections. A ruling that the depositions
were improper on these non-constitutional grounds may well have mooted the
constitutional objections.
       At a minimum,the hearing examiner was presented with arguments concerning: the
legality of additional discovery at this stage ofthe proceeding; the scope and burden ofthe
requested subpoenas and depositions; the potentially privileged communications that
would be encompassed by requests for communications between Pfister, Charter, and the
associations; and the standing of MEC to file a motion to quash on behalf ofits members.
As a consequence of the failure to resolve these non-constitutional discovery issues, this
Court has been presented with arguments about administrative procedure for which there
is no final ruling from the agency, or any ruling at all, that provides the agency's decision
and rationale, including its interpretation of governing statutes and regulations. For

                                              4
example, the'parties argue at length about the scope ofreview for BER proceedings, with
Signal Peak contending that "the BER is not 'confined to the record' relied on by DEQ,
but must receive evidence on any issue raised in the permitting process," citing Admin.
R. M. 1.3.217-221 and 1.3.230(2020), and MEIC v. DEQ,2005 MT 96,¶¶ 13, 22-25, 326
Mont.502, 112 P.3d 964. Defendants respond that"the only relevant analysis [for a permit
appeal] is that contained within the four corners of the [technical review]. . .. BER is
unambiguous that extra-record evidence is not allowedr citing § 82-4-227(3)(c), MCA,
Admin. R. M. 17.24.405(6), and an administrative decision in In re Bull Mountains,
No. BER 2013-07 SM, 56-57 (Mont. BER, Jan. 14, 2016). The District Court decided
these administrative issues without the benefit ofan agency decision or rationale about the
agency's application of its regulations, and then proceeded to decide the constitutional
issues.
          While it is correct that the agency cannot resolve constitutional issues, Jarussi v.
Board ofTrustees, 204 Mont. 131, 135-136,664 P.2d 316, 318 (1983), the administrative
scope of review issue presented here, as well as the discovery issues that lie within the
hearing examiner's discretionary governance, such as whether requested depositions are
overly burdensome, must first be addressed and resolved by the agency before judicial
review of any constitutional questions can be undertaken. Otherwise, the parties are
seeking an advisory opinion from the courts on constitutional questions that may never be
ripe or dispositive. "We have repeatedly recognized that courts should avoid constitutional
issues whenever it is possible to decide a case without reaching constitutional
considerations." In re G.M, 2008 MT 200, ¶ 25, 344 Mont. 87, 186 P.3d 229 (internal
citation omitted). Further, "[t]he well-settled principle undergirding the exhaustion
doctrine is that `no one is entitled to judicial relieffor a supposed or threatened injury until
the prescribed administrative remedy has been exhausted.'" Shoemaker v. Denke, 2004
MT 11, ¶ 18, 319 Mont. 238, 84 P.3d 4 (internal citation omitted). Consequently, it is
necessary to remand this matter for completion ofthe necessary administrative process by
the agency. Therefore,

                                               5
      IT IS ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE. The
judgment ofthe District Court is VACATED.
      IT IS FURTHER ORDERED that this matter is REMANDED to BER for further
proceedings consistent with this order.
      The Clerk is directed to provide a copy of this Order to counsel of record, to the
Thirteenth Judicial District Court, and BER.
      DATED this 23 -ray of June, 2020.

                                           6


                   THE THIRTEENTH COURT OF APPEALS

                                    13-15-00217-CV

                                    Sheri Eddleman
                                           v.
                                    Matthew J. Ocker

                                   On appeal from the
                     319th District Court of Nueces County, Texas
                          Trial Cause No. 2013-DCV-4182-G

                                      JUDGMENT

      THE THIRTEENTH COURT OF APPEALS, having considered this cause on

appeal, concludes the judgment of the trial court should be reversed and the cause

remanded to the trial court. The Court orders the judgment of the trial court

REVERSED and REMANDED for further proceedings consistent with its opinion. Costs

of the appeal are adjudged against appellee.

      We further order this decision certified below for observance.

April 28, 2016


168 Cal.App.2d 174 (1959)
BEATRICE N. De STACKELBERG et al., Appellants,
v.
LAMB TRANSPORTATION COMPANY (a Corporation) et al., Respondents.
Civ. No. 23284.
California Court of Appeals. Second Dist., Div. Two.
Feb. 25, 1959.
 Demler & Eckert, Edison J. Demler and Harry E. Westover for Appellants.
 Ball, Hunt & Hart and Joseph A. Ball for Respondents.
 HERNDON, J.
 On July 20, 1955, at about 4:15 a. m., on Alameda Street in Los Angeles County, an automobile driven by Roy Nelson collided with a truck and trailer combination owned by Lamb Transportation Company. The four occupants of the automobile were seriously injured, and each sued Lamb Company on a theory of respondeat superior for the alleged negligent operation of the truck and trailer by Edwin Earl Robinson, Lamb's truck driver. The cases having been consolidated for trial, there was a judgment for defendants *176 entered on a jury verdict and two of the four plaintiffs, Beatrice de Stackelberg and La Verne J. Woodworth, have appealed. They contend that the trial court erred in the giving and refusal of certain instructions bearing upon the issue of their alleged contributory negligence. Since appellants contend that there was no evidence to support a finding of contributory negligence on their part or to justify any instruction on this theory of the defense, it will be necessary to recite the facts in some detail.
 On the evening preceding the accident, appellants Mrs. de Stackelberg and Mrs. Woodworth, after a cocktail party at the latter's home, attended a dinner party in Los Angeles Chinatown. Later, they drove to a bar in Gardena where they were served alcoholic beverages. Still later, at about 1 a. m., appellants went to the Village Spa, a restaurant and bar on Lakewood Boulevard, where they met Roy Nelson and Harold Fair, police officers of the city of Compton. Mrs. Woodworth and Mrs. de Stackelberg both admitted having another drink at this last establishment, and soon thereafter, at about 2 a. m., appellants left with the officers to inspect a small boat at Los Angeles Harbor in which Fair was interested. Nelson drove the party to the harbor in a 1953 Chevrolet four-door sedan, a city-owned vehicle, assigned to him. The group boarded the boat for a cruise around the harbor. During the boat ride Fair produced a can of warm beer and gave Mrs. Woodworth a taste of it. After the boat ride, and at about 4 a. m., the party returned to the car and started home. Nelson was driving with appellant de Stackelberg beside him in the front seat, and appellant Woodworth beside Fair in the rear seat. At about 4:15 a. m. the vehicle was proceeding northerly on Alameda Street.
 Alameda Street, in the area of the collision, is a four-lane highway, running north and south, unlighted, straight, level and paved. The area is in a 55-mile an hour zone. The night of the accident was dark and clear. The Lamb Company has a transportation yard on the east side of Alameda Street from which a private driveway leads to the paved shoulder. At the entrance to the highway there were boulevard stops erected for vehicles coming from the yard. On the night of the accident, Robinson was directed to take his truck and trailer to a loading point on Alameda Street about a mile south of the Lamb yard. The overall length of truck and trailer was 60 feet, and it was equipped with the variety of lights and reflectors characteristic of such large trucks. Robinson drove *177 from the yard to Alameda Street, where he testified he stopped and observed two cars to his left about 700 yards south. To the north, he observed another car stopped at a red signal. Robinson started the truck and trailer forward, making a left turn at a slow speed across Alameda Street. One of the two cars approaching from the south (to Robinson's left) was that driven by Nelson. The other vehicle was a small truck driven by George Aistrope, an eyewitness to the accident. Aistrope testified that he was driving north at a speed of 40 to 50 miles per hour when the Nelson car approached from the rear and overtook him, passing in the right-hand lane and then returning to the center lane. After Nelson had passed, Aistrope increased his speed to about 50 miles an hour. At about this time he saw defendant's truck come out on the highway, fully lighted. Aistrope testified that the truck proceeded slowly across the highway and that the cab had completed the turn and was west of the center lane of the highway when the Nelson vehicle collided with the rear wheels of the trailer. Aistrope fixed the point of impact at or near the center line of the highway, and he testified that at the moment of the collision the right-hand lane of the highway, northbound, was clear. He testified: that he was traveling about 50 miles per hour and was about 75 yards from the point of impact when the accident occurred; that he first began to slow down after the collision, and that he came to a stop in the Lamb driveway where he alighted from his car to render aid. The terrific force of the impact was indicated by the facts that the trailer was thrown across the highway, its wheels knocked from under it, and that the Nelson car was completely demolished.
 The occupants of the Nelson car could give only fragmentary testimony as to the exact circumstances of the accident. Nelson testified that he was driving north on Alameda at about 50 to 52 miles per hour, and was asked: "Q. ... As you approached the Lamb Yard just tell us what happened. A. An object shot out in front of me and I saw the truck and at the time I saw it there he had both the inside lane and the outside lane and the inside lane I was traveling at fully blocked. Q. Now, did you see the truck in motion? A. Yes, I did. Q. Did you see the truck at any time stop? A. No, I did not. Q. Did you see the truck at any time before it was on to the highway?" He testified that he had not seen the truck before this time.
 It was one theory of the defense that appellants' recovery *178 was barred by their own negligence in riding with Nelson knowing him to be intoxicated and it is on the question of Nelson's alleged intoxication that there is a substantial conflict in the evidence.
 All of the passengers in the Nelson car admitted to having consumed alcoholic beverages on the night of the accident, but Nelson insisted that he had consumed only one drink, a bourbon and soda, at the Village Spa about two hours before the accident. Although there was testimony that Fair produced some beer during the boat ride, there was no direct evidence that Nelson had more than the one drink he admitted consuming. However, there is such substantial evidence of Nelson's intoxication that the jury had most reasonable grounds for disbelieving Nelson's testimony. Following the collision, at about 6 a.m., Nelson was examined and treated by Dr. Chauncey Dobson, a resident physician at the Harbor General Hospital in Torrance, for his substantial injuries. Dr. Dobson testified that in his opinion Nelson was "quite drunk at 6:30." Although the doctor did not perform a blood alcohol test, he testified that there was a strong odor of alcohol on Nelson's breath which could not be produced by just one drink; that Nelson's speech was slurred; that his movements were uncoordinated, and that "he [Nelson] was under the influence of alcohol" at 6:30 on the morning of the accident. On cross-examination, Dr. Dobson testified as follows: "Q. In order for you to find him drunk, intoxicated at 6:30 as to what it would have been at 4:00 o'clock, do you have any opinion? A. No, sir. Q. Could you even estimate, doctor? A. Yes, sir. Q. What would be your estimate? A. It would be a large amount. That would be my estimation. Q. You saw him in such a condition at 6:30 that you formed the conclusion that he was quite drunk at 4:00 o'clock, even if he had nothing to drink in those two or two and one-half hours? A. He was quite drunk at 6:30. Q. I beg your pardon? A. He was quite drunk at 6:30. Q. If he was quite drunk at 6:30, he would have been quite drunk at 4:00 o'clock, wouldn't he? A. Yes."
 In addition to the testimony of Dr. Dobson, two witnesses who observed Nelson in the car immediately after the accident testified that his breath had a noticeable odor of alcohol.
 [1] Appellants contend that there was no evidence to justify instructions given by the court upon two aspects of the defense of contributory negligence: (a) relative to the circumstances under which a guest is required to protest against the obvious negligence of the driver; and (b) relative *179 to the effect of a guest accepting a ride, or continuing to ride, with a driver known to be intoxicated. Appellants argue: (1) that there was no evidence of erratic or negligent driving on the part of Nelson sufficient to suggest to his guests a need for protest or cautionary admonition; (2) that the evidence of Nelson's intoxication at the time of the accident was not adequate; and (3) that there was a complete lack of proof that appellants knew, or should have known, that Nelson was intoxicated.
 A review of the evidence in conformity with the familiar rule (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429 [45 P.2d 183]; Ashburn v. Miller, 161 Cal.App.2d 71, 74 [326 P.2d 229]) reveals the complete lack of merit in these arguments. There was both direct and circumstantial evidence that Nelson's car was traveling at a speed which the jury reasonably could have regarded as obviously excessive and grossly negligent under the circumstances. The testimony of Dr. Dobson alone was clearly sufficient to support a finding that Nelson was intoxicated to a degree that seriously impaired his ability to operate an automobile. It is granted that for the instruction to be applicable it was necessary for the jury to find that appellants knew, or should have known, of Nelson's intoxication. (Enos v. Montoya, 158 Cal.App.2d 394, 401 [322 P.2d 472].) However, such knowledge may be inferred from circumstances and, in the light of the activities which preceded the accident, the jury had ample basis for inferring that appellants, who had been in the company of Nelson for over two hours, must have been aware of his inebriation. (Cf. Kroplin v. Huston, 79 Cal.App.2d 332, 340, 342 [179 P.2d 575]; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 489-490 [55 P.2d 870].) There was other evidence from which the jury could have inferred that Nelson's ability to drive had been substantially impaired. The witness Aistrope, traveling some 75 yards behind Nelson's car, observed the brightly-lighted truck entering the highway, and had no difficulty in coming to a stop at the scene of the accident. From Aistrope's testimony it was reasonable to conclude that Nelson could easily have avoided the accident simply by turning into the right-hand lane which was unobstructed.
 Thus, we readily conclude that the evidence clearly justified the giving of the challenged instructions. [2] Appellants themselves submitted requested instructions on both aspects of the theory of defense presently under discussion. The trial court gave appellants' requested instruction with reference to *180 the duty of a guest to protest against the obvious negligence of the driver. Thus, assertion of error in the form of this instruction would invoke the doctrine of invited error. (Butigan v. Yellow Cab Co., 49 Cal.2d 652, 657 [320 P.2d 500]; see 4 Cal.Jur.2d 423,  557.) However, we find no fault with any of the instructions given.
 [3] Appellants next contend that the trial court erred to their prejudice in denying an oral motion made during the trial to strike Robinson's answer to their complaints. Although the complaints filed by appellants named and identified Robinson as the negligent driver of Lamb's truck, they did not join him as a party defendant. However, it appears that Robinson was joined as a defendant in the complaints of plaintiffs Nelson and Fair. The only basis for appellants' claim of prejudice in this ruling was developed at a later stage of the trial, when plaintiffs called Robinson's estranged wife, who, according to an offer of proof, was prepared to give testimony favorable to plaintiffs. The offer of testimony was excluded as incompetent under Code of Civil Procedure, section 1881, preventing a wife from testifying against her husband without his consent. Appellants' theory is that the testimony of Robinson's wife would have been admissible if Robinson were not a defendant in the action (cf. Sylvester v. Kirkpatrick, 79 Cal.App.2d 443, 451-452 [180 P.2d 36]), and that a litigant has the right to select the persons against whom he seeks to recover (cf. Strauss v. Owens, 148 Cal.App.2d 570, 574 [307 P.2d 81]). It is asserted that Robinson had no right to intrude himself as a defendant by filing answers to complaints in which he was not joined as a party.
 These arguments are unavailing in the instant case for two reasons. In the first place, Robinson was clearly identified and designated as a party defendant in the consolidated actions by the terms of the pretrial conference order, which is a part of the record herein. The pretrial conference order supersedes the pleadings to the extent of any inconsistencies and controls the subsequent course of the case. (Rules for the Superior Courts, rule 8.8; Baird v. Hodson, 161 Cal.App.2d 687, 689 [327 P.2d 215].) In the second place, the complaints of all four plaintiffs named Robinson and stated primary causes of action against him; two of them joined him as a defendant. Certainly he was a proper party, and it would seem unquestionable that Lamb could have compelled his joinder as a "conditionally necessary party" under the provisions of section 389 of the Code of Civil Procedure. *181
 [4] Appellants' third contention is that the trial court erred in instructing the jury in the terms of BAJI Number 140, the familiar "looking and seeing" instruction.  [fn. 1] While a similar instruction has been criticized as argumentative and as assuming a question of fact (see Colbert v. Borland, 147 Cal.App.2d 704, 709 [306 P.2d 53]), we hold that in the circumstances of the present case the giving of this instruction, even if it were to be considered erroneous, could not, with reason, be regarded as prejudicial (Alarid v. Vanier, 50 Cal.2d 617, 625 [327 P.2d 897]).
 Finally, we have considered appellants' other criticisms of the instructions, including their rather general arguments to the effect that there was error in the refusal of certain "appropriate and helpful instructions" requested by them. We conclude that the jury was fully, fairly, and adequately instructed upon all applicable principles of law. (Cf. Curland v. Los Angeles County Fair Assn., 118 Cal.App.2d 691, 699 [258 P.2d 1063].)
 Affirmed.
 Fox, P. J., and Ashburn, J., concurred.
NOTES
[fn. 1]  1. "General human experience justifies the inference that when one looks in the direction of an object clearly visible, he sees it, and that when he listens, he hears that which is clearly audible. When there is evidence to the effect that one did look, but did not see that which was in plain sight, or that he listened, but did not hear that which he could have heard in the exercise of ordinary care, it follows that either some part of such evidence is untrue or the person was negligently inattentive."


777 F.2d 699
*Kitchensv.Villard
85-4372
United States Court of Appeals,Fifth Circuit.
11/19/85

1
N.D.Miss.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


498 P.2d 1243 (1972)
Charles S. PFISTER and Cleo E. Pfister, Appellants,
v.
Earl BROWN, Appellee.
No. 4069.
Supreme Court of Wyoming.
July 6, 1972.
Henry A. Burgess, of Burgess, Kennedy & Davis, Sheridan, for appellants.
William T. Schwartz, Casper, Thomas C. Morgan, of Morgan & Brorby, Gillette, for appellee.
Before McINTYRE, C.J., and PARKER and McEWAN, JJ.
McINTYRE, Chief Justice.
Action was brought in the district court of Campbell County for reformation of an instrument due to a scrivener's error. Judgment was rendered for the defendant and plaintiffs have appealed.
Because the evidence was such that the trial judge, as trier, had sufficient reason to find plaintiffs had not clearly shown a mutual mistake through a scrivener's error, we find it necessary to uphold the judgment of the district court. A brief review of the evidence and undisputed facts will demonstrate why we hold as we do.
In 1941 John E. Pfister and wife agreed to sell 12,227 acres of land to Earl Brown on an installment contract. The Pfisters were represented by attorney Bert Griggs of Buffalo, Wyoming, and Brown was represented by attorney Elwood Anderson of Gillette, Wyoming. The Memorandum of Agreement provided, with respect to some of the lands, that sellers were to reserve "all of the oil, gas and kindred minerals." With respect to other lands, the agreement *1244 provided sellers were to reserve "one-half of the oil, gas and mineral rights."
The deed which conveyed the lands being sold reserved oil, gas and "kindred minerals," with no mention of oil, gas and "mineral rights." Appellants are contending, because a reservation of one-half of the oil, gas and "mineral rights" was expressed in the agreement with respect to some of the lands, while the deed reserved one-half of the oil, gas and "kindred minerals" in those particular lands, it tends to prove the term "kindred minerals" and the term "mineral rights" were used interchangeably and as if they meant the same thing, by the attorney who prepared the instruments.
Of course a lot depends on the habits of a particular lawyer who does the drafting. In reserving oil and gas, one attorney may refer simply to oil and gas; another may refer to oil, gas and hydrocarbons; another may refer to oil, gas, casinghead gasoline and petrochemicals; and still another might refer to oil, gas and kindred minerals.
It has been suggested to us that Bert Griggs, attorney for the sellers and scrivener of the instruments here involved, had a habit of referring to oil, gas and kindred minerals when dealing with a reservation of oil and gas. It is suggested this practice was quite common with attorney Griggs.
Although the record seems to be silent on the matter, there is no evidence to negative the idea that Bert Griggs might reserve oil and gas by providing for a reservation of oil, gas and kindred minerals. It is a fact that oil and gas, and possibly coal, were the mineral substances of importance in the vicinity of the lands we are dealing with, at the time of Brown's purchase. The present controversy has arisen because of the possibility of uranium being contained in the lands; but uranium was not known as one of the valuable minerals existing in the vicinity of these lands at the time of their sale.
Plaintiffs are successors in interest to John E. Pfister and wife. In fact plaintiff Charles S. Pfister is a son of the sellers. In this controversy, plaintiffs are claiming the intent at time of sale was for the sellers to reserve all minerals in a portion of the land and one-half of all minerals in another portion. This would of course leave unexplained the need for any mention of oil or gas.
The defendant, on the other hand, testified at the trial and denied that the intention was for reservations to apply to all minerals. There is no contention that uranium is a kindred mineral to oil or gas.
It may be important to note that one reference in the sales contract was to oil, gas and kindred minerals. The other reference was to oil, gas and mineral rights. In the deed, both references were to oil, gas and kindred minerals. Thus, by odds of three to one, references were made to oil, gas and kindred minerals.
Moreover, the contract of sale was prepared by attorney Griggs in 1941. The deed was executed in 1947 and recorded in 1951. It probably had been prepared by Griggs. It was executed before an attorney who disclaimed authorship. This means the deed was last in point of time. It reserved oil, gas and kindred minerals, with no other minerals being mentioned.
As stated by appellants in their brief, they are contending on appeal that the trial court erred in finding there was insufficient proof of a mistake of the scrivener to justify reformation of the instrument. They rely on the proposition that where there is a meeting of minds between the parties and due to a mistake of the scrivener the instrument fails to properly express the previous agreement of the parties, courts will reform the instrument.
We have no quarrel with this principle. We simply say plaintiffs' proof of a mistake on the part of the scrivener was not sufficiently clear and conclusive to make a judgment in their favor mandatory as a matter of law.
This court, in the early case of Stoll v. Nagle, 15 Wyo. 86, 86 P. 26, 28, delineated limitations which apply to the right of reformation on account of mistake. *1245 The following statement from that case is pertinent:
"The mistake, however, must have been a mutual one. There must have been a meeting of minds and a contract actually entered into, but, by reason of the mistake, the instrument as written does not express what was really intended by the parties. Both the mistake and its mutuality must be established by evidence that is clear and satisfactory."[1]
Also, in Grieve v. Grieve, 15 Wyo. 358, 89 P. 569, 571, our court pointed out, when a mistake in a writing is claimed, the burden rests on the party claiming the mistake to establish by evidence that is clear, satisfactory and convincing that the contract as written does not contain the agreement entered into between the parties; that the mistake was mutual; and that it did not occur by or result from negligence of the party claiming it.[2]
The claim of appellants that sellers and the buyer had in mind a reservation of minerals in an all-inclusive sense when the sales contract was made, is contradicted by the fact that reservations were expressed in the sales contract under a heading set out in large capital letters with these words: RESERVATION OF OIL AND GAS RIGHTS. The instument was wholly typed and not on a printed form. Plaintiffs admitted at the trial that the contract was read by the parties; also, that the scrivener was attorney for the sellers.
We need not say evidence favorable to plaintiffs' contentions was wholly absent. However, in view of conflicts in evidence and the considerations we have mentioned, we will disregard plaintiffs' self-serving statements and accept as true the evidence favorable to defendant, together with all reasonable inferences which may be drawn therefrom.
This causes us to hold the trial court had reason to infer, as the sales contract heading expressly indicates, the intention was to reserve oil and gas rights. Also, the court had reason, despite plaintiffs' contentions to the contrary, to believe the parties intended what was clearly expressed in the deed which was executed, delivered, accepted and recorded many years before the initiation of plaintiffs' action. Moreover, inasmuch as the scrivener was sellers' own attorney, the court had reason to assume he expressed in the instruments drawn by him the intention of his clients.[3]
We agree plaintiffs have failed to show by clear and convincing evidence that a mistake was made by the scrivener or that there was a mutual mistake or that plaintiffs and their predecessors in title have been free from negligence, if there was a mistake.
Affirmed.
GUTHRIE, J., not participating.
NOTES
[1]  To the same effect, see Heckman and Shell v. Wilson, Mont., 487 P.2d 1141, 1145; Mignot v. Parkhill, 247 Or. 465, 430 P.2d 1007, 1008; and Safeco Insurance Co. v. Dairyland Mutual Ins. Co., 74 Wash.2d 669, 446 P.2d 568, 570. Many cases hold the quantum of proof for reformation of a deed is more than a mere preponderance. Butler v. Butler, 80 N.M. 36, 450 P.2d 922, 924; Neal v. Green, 71 Wash.2d 40, 426 P.2d 485, 487; Davis v. Kleindienst, 64 Ariz. 251, 256, 169 P.2d 78, 81; and Moore v. Vandermast, Inc., 19 C.2d 94, 119 P.2d 129, 130.
[2]  For cases holding that the burden of proof is on the party claiming a mistake, see Isaac v. Isaac, Wyo., 406 P.2d 898, 900; Schnug v. Schnug, 203 Kan. 380, 454 P.2d 474, 478; and Butler v. Butler, 80 N.M. 36, 450 P.2d 922, 924. For cases holding that a party seeking reformation of an instrument must himself be free from negligence, see Ware v. City of Tulsa, Okl., 312 P.2d 946, 950; Weatherford v. Weatherford, 199 Or. 290, 257 P.2d 263, 266, reh. den. 199 Or. 290, 260 P.2d 1097; and Naisbitt v. Hodges, 6 Utah 2d 116, 307 P.2d 620, 623.
[3]  When a deed is prepared by a person learned in the law, it may be assumed he sufficiently advised the parties to the deed (especially his clients) of the meaning of special provisions. Witzel v. Witzel, Wyo., 386 P.2d 103, 107.


397 P.2d 696 (1964)
Clarence Alvin WIMPLE, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-13446.
Court of Criminal Appeals of Oklahoma.
October 14, 1964.
Rehearing Denied January 6, 1965.
Archibald Hill, Jr., Oklahoma City, for plaintiff in error.
Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
*697 NIX, Judge.
Plaintiff in Error, Clarence Alvin Wimple, hereinafter referred to as defendant, was charged by Information in the Superior Court of Comanche County with the crime of Indecent Exposure. He was tried by a jury, found guilty, and sentenced to 8 years in the Oklahoma State Penitentiary.
From this judgment and sentence, defendant has perfected his timely appeal in this Court, urging two main contentions of error.
First, it will be necessary to summarize the facts of the case. The prosecuting witness testified that she was hanging out her wash on a clothesline at the rear of the apartment building where she lived with her husband and three children. She observed a red pick-up truck circling around and driving thru the alley near the clothesline. She stated the right door of the truck was missing and that the driver, (whom she later identified as defendant) was exposing his private parts to her as he drove slowly by. She then reported the incident to the apartment maintenance man, who, in turn, called the police. This occurred on November 16, 1962.
On January 9, 1963, the defendant was arrested on another indecent exposure charge, and was identified by the prosecuting witness as the same person committing the offense in question.
Defendant's first contention of error is that he was denied a fair trial because the trial court overruled his Motion for Continuance inasmuch as he was not physically able to assist his counsel in his defense.
The Motion for Continuance appears in the casemade at page 19-20 with no disposition shown in the record at that point. On page 21, the court minute shows both sides announced ready for trial, and on page 122, a minute shows Motion overruled and that defendant announces ready for trial; no objection by defendant shown.
No testimony or affidavits from physicians as to defendant's physical condition *698 was presented  nothing except an affidavit of defendant was presented to the trial court.
This Court has held, as in the case of Shetsky v. State, (1955) Okl.Cr., 290 P.2d 149:
"To justify a continuance the burden is on movant claiming illness of self, a witness or attorney, to make a proper showing, and whether the continuance should be granted depends on the circumstances, the determination of which rests in the sound discretion of the trial court."
The trial judge was in a position to observe defendant, and as it turned out, defendant was present in court during the trial and did not suffer any ill effects.
Considering the record as a whole, evidence found to be insufficient to show that the trial judge erred in his conclusion that the showing was insufficient to prove that accused was in such poor physical condition at time of trial as to operate to his substantial prejudice or endanger his life or health.
We, therefore, hold that the trial judge did not abuse his discretion in overruling the Motion for Continuance.
Defendant's proposition number two states that evidence of proof of another offense being admitted into evidence was error.
This arises out of the testimony of a witness for the state, Doris Brown. She testified that on January 9, 1963, a man whom she later identified as the defendant, exposed himself to her as she was hanging out clothes. She stated he drove slowly by her in a pick-up truck trying to get her attention, and that when he succeeded, he exposed his private parts to her. She stated also that the right door of the truck was missing.
This incident is, of course, identical to the one of November 16, 1962 for which defendant is on trial. Both of these women lived in similar projects occupied mainly by servicemen and their families. Both had clotheslines in the rear of their residences near an alley traveled by motor vehicles. Both incidents occurred in the morning hours when ordinarily the husbands would be away. Both were hanging out clothes when they observed a pick-up truck driving slowly down the alley. Both described their particular offender as having a broad grin on his face as he got their attention and performed his indecent act. Both described the vehicle as a pick-up truck with the right door missing.
Defendant's brief gives correctly the general rule of admissibility of this type of evidence, but does not state the exception thereto, which would apply in this case.
This was very recently discussed in the case of Green v. State, Okl.Cr., 385 P.2d 820. (That case was reversed because the trial judge failed to explain the reason the testimony was admitted by proper instruction. Such is not the case here.) Judge Johnson stated the applicable law as follows:
"The general rule is that evidence, which in any manner shows or tends to show that accused has committed an offense other than that for which he is on trial, and wholly independent thereof, even though an offense of the same general character, is inadmissible since accused must be convicted, if at all, by evidence which shows him to be guilty of the offense charged."
"Under exception to general rule that accused must be convicted, if at all, by evidence showing him to be guilty of the offense charged, evidence of other offenses recently committed by accused, similar to the offense charged, is admissible when such evidence tends to establish a common scheme or plan, embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or when such evidence shows or tends to show guilty knowledge or intent in the commission of the offense charged." (Emphasis ours)

*699 "When evidence of other offenses allegedly committed by accused is offered for the purpose of showing a common scheme, plan or intent, such evidence, to be admissible, must clearly come within the exceptions to general rule that accused must be convicted, if at all, by evidence showing him to be guilty of the offense charged, and when such evidence is admitted, it is the duty of the trial court in his instructions to the jury to so limit the consideration of such evidence." (Emphasis ours)
Keeping the above applicable law before us, let us examine the record in the instant case. The trial judge gave the following instruction (Number 5):
"Certain evidence has been introduced tending to show that the defendant may have been guilty of other separate and distinct offenses from that charged in the information. This evidence was not admitted as tending to prove the guilt or innocence of the defendant of the specific offense charged in the information in this case, but for the purpose of showing a scheme or plan of operation and for no other purpose. And you may, in your discretion, consider the same for such purpose and for none other. A person may not be convicted of the commission of one offense by any other proof tending to show that he may or may not have committed another offense."
This instruction clearly puts the admission of the questionable testimony under the exception to the general rule. In this type of sex crime, the offender does seem to follow a set pattern of operation, and for that reason, proof of other offenses has been in general use in this State as well as other jurisdictions.
The trial judge limited the testimony for the purpose of showing the common scheme, plan, or intent only.
This Court feels the law in Oklahoma is clear cut and explicit on this point, and after careful consideration of the entire record, finds there is no proper showing of reversible error.
The judgment and sentence of the trial court is hereby Affirmed.
JOHNSON, P.J., and BUSSEY, J., concur.


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             September 22, 2005
                               No. 05-10773                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 04-20506-CR-CMA

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

JOHN LOUIS WILLIAMS,

                                                           Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (September 22, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant John Louis Williams appeals his drug and firearms convictions for
violations of 21 U.S.C. § 846 and 18 U.S.C. §§ 924(c)(1)(A)(i) and 922(g)(1). The

issue on appeal is whether Williams’s conviction for conspiracy to possess with

intent to distribute less than five kilograms of cocaine was supported by sufficient

evidence that was not barred by the statute of limitations.

      The sufficiency of the evidence to support a jury's guilty verdict is subject to

de novo review, viewing the evidence in the light most favorable to the

government, with all reasonable inferences and credibility choices made in favor of

the jury’s verdict. United States v. Clay, 376 F.3d 1296, 1300 (11th Cir. 2004),

cert. denied, 125 S. Ct. 1427 (2005). We will “uphold the jury’s verdict whenever

a reasonable fact finder could conclude that the evidence establishes guilt beyond a

reasonable doubt.” Id. (quotation omitted). “We review the district court’s

interpretation and application of statute of limitations de novo.” United States v.

Hunerlach, 197 F.3d 1059, 1064 (11th Cir. 1999). An appellant preserves a statute

of limitations claim through motions for judgment of acquittal and for a new trial.

United States v. Arnold, 117 F.3d 1308,1310 n.2 (11th Cir. 1997).

      In order to convict a defendant of “conspiracy to possess cocaine with intent

to distribute, the government must prove beyond a reasonable doubt that (1) an

illegal agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354,

                                          2
1365 (11th Cir. 2001). The government may establish a defendant’s knowing and

voluntary participation in the conspiracy through circumstantial evidence. United

States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). We distinguish, however,

between conspiratorial agreements and mere buyer/seller transactions. United

States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999). “Where the buyer’s

purpose is merely to buy and the seller’s purpose is merely to sell, and no prior or

contemporaneous understanding exists between the two beyond the sales

agreement, no conspiracy has been shown.” Id. (quotation omitted). A conspiracy

has been shown, however, where (1) the government can establish a continuing

relationship between buyer and seller or a continuing course of conduct, or (2)

there are “numerous references to other conspirators and details regarding the

conspiratorial agreement.” Id. References to having people ready to sell or details

of the drug delivery have been deemed sufficient to convict. Id. at 1336. An

inference of an intent to distribute may be drawn from a person’s possession of a

large quantity of illegal drugs. United States v. Madera-Madera, 333 F.3d 1228,

1233 (11th Cir. 2003).

      The statute of limitations for a conspiracy charged pursuant to § 846 is five

years. 18 U.S.C. § 3282(a) (2003). The requirements of the statute of limitations

are satisfied if the government proves that a conspiracy continued into the

                                          3
limitations period. Arnold, 117 F.3d at 1313. Furthermore, a conspiracy is

presumed to continue so long as its objective has neither been abandoned nor

accomplished. United States v. Coia, 719 F.2d 1120, 1124-25 (11th Cir. 1983).

      Because the record demonstrates that there was testimony indicating a

continuing relationship that resulted in the repeated transfer of a large quantity of

illegal drugs, and evidence showing that Williams had people in place to sell drugs

and was preparing to re-enter the cocaine business, we conclude that the evidence

was sufficient to support Williams’s conviction for conspiracy to possess with

intent to distribute cocaine. Because the conspiracy continued into the limitations

period, we conclude that the evidence of the conspiracy was not time-barred by the

statute of limitations. Accordingly, for the above stated reasons, we affirm

Williams’s conviction.

      AFFIRMED.

                                           4


447 F.3d 504
In re: UNITED AIR LINES, INC., Debtor.United Air Lines, Inc., Appellant,v.U.S. Bank National Association, Inc., City of Los Angeles, et al., Appellees.
No. 05-1460.
No. 05-1461.
No. 05-1462.
United States Court of Appeals, Seventh Circuit.
Argued February 16, 2006.
Decided May 4, 2006.

Patrick McLaughlin (argued), Dorsey Whitney, Minneapolis MN, David A. Golin, Gesas, Pilati, Gesas & Golin, Chicago, IL, Charles P. Schulman, Sachnoff & Weaver, Chicago, IL, for Appellee.
James H.M. Sprayregen, Marc Kieselstein (argued), Kirkland & Ellis, Washington, DC, for Debtor-Appellant.
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
MANION, Circuit Judge.

1
To fund improvements at its facilities in the Los Angeles International Airport, United Air Lines, Inc., entered into a transaction with a bond-issuing, public entity named the Regional Airports Improvement Corporation ("RAIC"). Through this transaction, RAIC "subleases" certain airport facilities to United. After United entered bankruptcy, the true nature of the transaction was called into question. In adversary proceedings before the bankruptcy court against RAIC and two related parties (the City of Los Angeles and an indenture trustee), United sought to have the transaction treated as a loan rather than a lease for purposes of § 365 of the Bankruptcy Code, 11 U.S.C. § 365. The bankruptcy court ruled in United's favor, but the district court reversed. United appeals. We addressed a substantially similar matter concerning the San Francisco International Airport in United Air-lines, Inc. v. HSBC Bank USA, N.A., 416 F.3d 609 (7th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1465, ___ L.Ed.2d ___ (2006). As in the San Francisco appeal, we agree with United that the Los Angeles transaction is not a lease for § 365 purposes. We therefore reverse the district court's decision to the contrary.

2
Before detailing the Los Angeles transaction, it is helpful to reiterate the importance of the lease-versus-loan distinction in this context. When a lease is at issue, "[a] lessee must either assume the lease and fully perform all of its obligations, or surrender the property. 11 U.S.C. § 365. A borrower that has given security, by contrast, may retain the property without paying the full agreed price. The borrower must pay enough to give the lender the economic value of the security interest; if this is less than the balance due on the loan, the difference is an unsecured debt. See 11 U.S.C. § 506(a) and § 1129(b)(2)(A)." United Airlines, 416 F.3d at 610.1

3
Since at least 1982, United has leased its space in the Los Angeles airport from the City of Los Angeles. In order to arrange financing to improve and construct facilities in that space, United worked with RAIC, which, as a public entity, could issue tax-exempt bonds. RAIC was formed by the City, but it is a separate legal entity. United's lease with the City anticipated that United would use RAIC's bond-issuing authority to fund the development of the airport facilities. On November 15, 1982, United and RAIC executed a transaction to achieve that end.

4
Two agreements are at the heart of the United-RAIC transaction. The first agreement is termed the "partial assignment," through which United assigned a portion of its leasehold (i.e., its interest under its lease with the City) to RAIC. In return, RAIC issued tax-exempt bonds, raising $75,750,000 to develop the facilities in question. Administrative matters related to these bonds, such as distributing payments to bondholders, are handled by an indenture trustee, currently U.S. Bank N.A.

5
The second agreement is entitled the "facilities sublease." Under this agreement, RAIC "leased" back the then to-be-developed facilities to United. In exchange, United pays "rent" that is equal to the amount necessary to cover the payments to the underlying bondholders plus administrative costs. Currently, the bondholders receive periodic interest-only payments and are also entitled to balloon payments for the outstanding principal, now $59,390,000, when the bonds mature. United has already redeemed bonds totaling $16,360,000 of the original $75,750,000. Presently, there are two sets of bonds outstanding. One set, with a balloon payment of $34,390,000 is due to mature on November 15, 2012, and the other, with a balloon payment of $25,000,000, is due to mature on November 15, 2021. These periodic and balloon "rental" payments from United go through the indenture trustee to the bondholders. The term of the sublease is completely dependent upon United's payment or redemption of the bonds. As such, the sublease is scheduled to expire in 2021 with the payment of the final set of outstanding bonds unless United redeems all the bonds earlier.

6
In the earlier appeal regarding United's dealings at the San Francisco airport, we resolved two key issues for deciding whether a transaction, such as the one before us, is a lease under § 365 of the Bankruptcy Code. The first issue was whether the form of the document should be controlling in this situation — that is, whether a transaction should be treated as a lease simply because the parties titled it a "lease" and used terms such as "rent." Agreeing with a number of other circuits' opinions, we concluded that § 365 mandates that the substance of the transaction trumps the form of the transaction. See United Airlines, 416 F.3d at 612 (citing In re PCH Assocs., 804 F.2d 193, 198-200 (2d Cir.1986); In re Pillowtex, Inc., 349 F.3d 711, 716 (3d Cir.2003); In re Moreggia & Sons, Inc., 852 F.2d 1179, 1182-84 (9th Cir.1988); In re Pac. Express, Inc., 780 F.2d 1482, 1486-87 (9th Cir.1986)). We reasoned: "It is unlikely that the Code makes big economic effects turn on the parties' choice of language rather than the substance of their transaction; why bother to distinguish transactions if these distinctions can be obliterated at the drafters' will?" United Airlines, 416 F.3d at 612. Accordingly, we held that, as a matter of federal law, the genuine nature of a transaction will prevail over the titles and terms used. See id. at 612-14.

7
The second issue we tackled in the prior case was whether federal or state law governed the lease-versus-loan determination — in other words, to which law should courts look to ascertain the "aspects of substance" that are important in deciding whether a transaction is a lease. Id. at 614. Because the Bankruptcy Code is silent on which economic features should shape the inquiry, we determined that, in general, the state law is controlling. See id. at 615 ("All of the states have devoted substantial efforts to differentiating leases from secured credit in commercial and banking law. Leases are state-law instruments, after all, and the norm in bankruptcy law is that contracts (of which leases are a species) and property rights in general have the same force they would have in state court, unless the Code overrides the state entitlement."). There is, however, an exception to this general rule. State law will not control if it conflicts with federal law by requiring a formalistic rather than a functional approach as described above. See id. This exception is not a concern in the present appeal. The applicable state law here is that of California, and, as we already determined in the San Francisco appeal, California law does not conflict with federal law in this regard. See id. at 615-16 (explaining Burr v. Capital Reserve Corp., 71 Cal.2d 983, 80 Cal. Rptr. 345, 458 P.2d 185 (1969) and Beeler v. Am. Trust Co., 24 Cal.2d 1, 147 P.2d 583 (1944)); see also Milana v. Credit Discount Co., 27 Cal.2d 335, 163 P.2d 869, 871 (1945) ("[I]f [achieving a loan is] the intent of the parties the transaction will be deemed a loan regardless of its form.").

8
The similarities between the substance of the present transaction (described above) and the substance of the transaction in our earlier opinion concerning the San Francisco airport are important. In the prior case, United had a long-running, traditional airport lease with the City and County of San Francisco. See United Airlines, 416 F.3d at 611. Then, to improve its facilities at the San Francisco airport, United worked with a bond-issuing, public entity named the California Statewide Communities Development Authority ("CSCDA"). See id. Through a series of agreements, CSCDA gave United $155 million in bond revenues to develop airport facilities. See id. at 611-12. The deal called for United to "sublease" a portion of its underlying leasehold with the City and County of San Francisco to CSCDA. See id. at 611. Then, CSCDA "leased" this same portion back to United in exchange for United's promise to make periodic "rental" payments that equated to the amounts needed to pay interest on the aforementioned bonds plus some administrative fees. See id. Additionally, United had to make a $155 million balloon payment at the end of the "lease" in order to retire the bonds. See id. An indenture trustee, HSBC Bank USA, N.A., administered bond-related matters for CSCDA, which included receiving United's "rental" payments and distributing those payments to the bondholders. See id. at 612.

9
There, like here, after United entered bankruptcy, the parties disputed whether the United-CSCDA transaction concerning the San Francisco airport was a lease under § 365. In our review of the substance of that transaction under California law, we concluded that it was a secured loan and not a lease based upon five aspects of the transaction: (1) the fact that United's "rental" payments were tied to the amount borrowed from the bondholders; (2) the presence of a balloon payment; (3) the presence of a "hell or high water" clause, meaning United had to pay the full "rental" amount if even the property became unusable; (4) the fact that prepayment of United's obligations would end the United-CSCDA arrangement; and (5) the fact that CSCDA did not have a remaining interest in the property at the end of the transaction. See id. at 617.

10
Each of these factors is present in this case as well. Accordingly, for the reasons discussed below, we likewise conclude that the United-RAIC transaction involving the Los Angeles airport is not a lease for § 365 purposes. We will examine each point in turn.

11
First, in the San Francisco transaction, United's "rent" was based not upon the market value of the property in question but rather upon the amount United borrowed to develop its airport facilities. See id. at 617. Similarly here, United's "rent" is linked to the amount it borrowed, albeit indirectly, from the bondholders. Although RAIC claims that United's "rental" payments represent market-value compensation to RAIC for the use of the facilities, the United-RAIC sublease explicitly equates "rent" to the sum needed "to pay the interest on, premium, if any, and principal of the Bonds." The substance here is thus more indicative of loan payments rather than traditional rental payments that compensate the lessor for the lessee's consumption of the lessor's property. See id. at 616-17; Beeler, 147 P.2d at 592 (linking rental payments to an interest rate "constitute[d] a `strong circumstance' tending to show that the `rent' under the lease agreement was in reality an interest payment consistent with the character of the transaction as a loan"); Rochester Capital Leasing Corp. v. K & L Litho Corp., 13 Cal.App.3d 697, 91 Cal.Rptr. 827, 830 (1970) (supposed "`rental' amounts were calculated with an eye upon [the supposed lessor's] expected rate of return on its investment" thereby indicating that the disputed transaction was a loan); Golden State Lanes v. Fox, 232 Cal.App.2d 135, 42 Cal.Rptr. 568, 569, 571-72 (1965).

12
Second (and closely related to the first point), the San Francisco transaction involved a balloon payment, and there we observed that "the balloon payment has no parallel in a true lease, though it is a common feature of secured credit." United Airlines, 416 F.3d at 617. Here as well, United is required to make balloon payments to retire the outstanding principal when the bonds mature in 2012 and 2021. At its core, "[a] loan of money is the delivery of a sum of money to another under a contract to return at some future time an equivalent amount." Sw. Concrete Prods. v. Gosh Constr. Corp., 51 Cal.3d 701, 274 Cal.Rptr. 404, 798 P.2d 1247, 1249 (1990); see also Milana, 163 P.2d at 871. The balloon payments here are tremendously revealing in this regard. They make plain that, at the outset, United borrowed $75,750,000 and promised to return that same $75,750,000 in the future. United's balloon obligations are thus powerful evidence that the design of this transaction is that of a loan. See United Airlines, 416 F.3d at 617; Golden State, 42 Cal.Rptr. at 569, 571-72 (disputed transaction held to be a loan when the supposed lessee received $150,000 to fund a construction project, was then obligated to pay $30,000 per year for eight years (i.e., interest), and was further obligated to return the $150,000 at the end of the eight-year term (i.e., principal)).

13
Third, the San Francisco transaction contained a "hell or high water" clause which showed a telling disjoint between rental value and United's actual financial obligations. See United Airlines, 416 F.3d at 617. A similar clause is present here. Under the sublease, United must continue paying "rent" to service and ultimately retire the bonds even if the premises at issue are condemned, destroyed, or otherwise become unusable. The clause characterizes United's "rental" obligation as "absolute and unconditional." See Golden State, 42 Cal.Rptr. at 571-72 (disputed transaction held to be a loan when the supposed lessee was "unconditionally obligated" to make periodic payments and "absolutely bound" to repay an identical sum that had been advanced to it at the outset of the transaction). This clause stands in stark contrast to the more typical provision in the underlying lease between United and the City of Los Angeles. In that lease, if the premises are destroyed, the City must abate United's rent while the premises are unusable. Further, United may, in certain situations, terminate the lease if the City, when required to do so, cannot make the necessary repairs within a reasonable time. At bottom, the "hell or high water" clause in the United-RAIC sublease is further evidence that the "rent" here is not payment for the value of using the facilities but rather is for the value of the money borrowed. See United Airlines, 416 F.3d at 617; Golden State, 42 Cal.Rptr. at 571-72.

14
Fourth, in the San Francisco transaction, if United prepaid its financial obligations, the prepayment terminated the lease arrangement in that transaction. See United Airlines, 416 F.3d at 617. Likewise here, the United-RAIC sublease will immediately terminate if United prepays the bonds. Such a prepayment provision has a useful purpose in the financing context. In the event interest rates become more favorable, a borrower would ordinarily prefer a prepayment option in an agreement so as to have the opportunity to refinance its debt. By contrast, such a prepayment/termination provision would be superfluous in the context of a lease. It would make little economic sense for a lessee to prepay its full rental obligations and thereby cause its lease to terminate and the value of its prepayment to evaporate. Rather, with such a prepayment, the lessee would want to see the lease to its natural end, either to occupy or to sublet the premises for the prepaid period. Consequently, the prepayment-termination nexus in this arrangement further shows that the substance here is that of a loan, not a lease. See id.

15
Fifth, in the San Francisco case, the fact that CSCDA did not have a remaining interest in the property at the end of the transaction was another indicator of a loan. See id. RAIC is in the same position here. RAIC acquired its interest here through the partial assignment from United, and, under its terms, the assignment terminates when United retires the bonds and thereby terminates the United-RAIC sublease. RAIC, therefore, has no reversionary interest when the deal ends — much like a lender when a secured loan is paid off. See id.; Golden State, 42 Cal.Rptr. at 572 (disputed transaction held to be a loan when the supposed lessor was bound to fully reconvey the property upon repayment of the sum it had initially advanced to the supposed lessee). This factor is yet another reason to view this transaction as a secured loan and not a lease. Separately, RAIC points out that at the end of the United-RAIC arrangement, the property at issue reverts the underlying landlord, the City of Los Angeles. However, this circumstance does not negate the fact that RAIC does not have a reversionary interest. To combat this conclusion, RAIC further attempts to cast itself and the City as one in the same. However, as mentioned above, RAIC is an independent legal entity under California law. See Rider v. City of San Diego, 18 Cal.4th 1035, 77 Cal.Rptr.2d 189, 959 P.2d 347, 349, 350-52 (1998).

16
RAIC raises an additional point that bears mentioning. In the San Francisco transaction, the bond-financed developments were not built upon the portion of United's leasehold that United "subleased" to CSCDA to secure the deal. See United Airlines, 416 F.3d at 611. Here, by contrast, the bond-financed developments are constructed upon the property that United assigned to RAIC. RAIC contends that this difference establishes that United's payments are true rental payments in that they show that the payments were compensating RAIC for United's use of the facilities and not for the value of borrowed money. However, the property disconnect in the San Francisco case only made it more obvious that United's payments were not rental payments. The lack of a similar disconnect here does not override the discussion above. In other words, it does not alter the fact (1) that the United-RAIC sublease expressly ties United's so-called rent to the interest and principal payments on the bonds, (2) that the arrangement required United to return the $75,750,000 initially advanced, (3) that the deal unconditionally obligated United to make payments even if the premises became unusable, (4) that United's prepayment would terminate the supposed sublease, and (5) that RAIC has no reversionary interest in the property at the conclusion of the arrangement. The presence of these considerations here strongly points to the existence of a secured loan and not a lease.

17
Each side raises additional points in support of their respective positions, but they do not compel elaboration here. It suffices to say that United's Los Angeles transaction with RAIC has all the hallmarks of a secured loan that were critical to our decision in the San Francisco appeal. In a fashion similar to the San Francisco arrangement, United used a leasehold interest to acquire financing from bondholders, and United's payments to the bondholders do not resemble true rental payments. We see no grounds to treat the San Francisco and Los Angeles transactions differently in this context. Accordingly, the transaction between United and RAIC concerning the Los Angeles airport is a secured loan and not a lease for purposes of § 365. The judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.

Notes:

1
 We add a brief word about United's plan of reorganization, which the bankruptcy court confirmed on February 1, 2006, thereby enabling United to "exit" bankruptcy. At oral argument, United informed us that, under the plan of reorganization, the disputed transaction here is provisionally treated as a lease, consistent with the most recent judicial ruling on the matter, that of the district court. Furthermore, United conditionally assumed this "lease." Nevertheless, according to United, this conditional assumption will terminate if, in the end, this transaction is judicially determined to be a loan. In which case, it will then be treated as pre-petition debt. Accordingly, we have a live, justiciable controversy before us