dissenting in part:
I agree with the majority’s conclusion that Louisiana law does not apply of its own force in this case. I also agree that Louisiana law should not be absorbed to provide the federal rule of decision if doing so would deprive the government of a bargained-for right. However, I conclude that the language of the contract itself does not reveal that the parties intended to contract around Louisiana law with respect to the government’s mineral royalty in the Lacassane and Gardiner servitudes. Accordingly, I would remand the case to the district court for additional fact finding on that issue.
The majority tacitly invokes the principle of “inclusio unius est exclusio alterius,” reasoning that the inclusion of a choice-of-law provision with respect to a specific portion of a contract indicates an intent that the same law does not govern the remainder of the contract. The choice-of-law provision in the settlement agreement at issue in this case, however, is more complex than the majority indicates. It states that the servitudes “are governed by the Louisiana Mineral Code, except as modified by this agreement and the holding of the United States Supreme Court in United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) in so far as that case holds that LSA RS 9:5806 does not make the subject mineral servitudes imprescriptable.” While the majority emphasizes the selection of Louisiana law, it seems that the real significance of this provision is that it clarifies where Louisiana law does not govern, i.e., where it conflicts with Little Lake Misc.e or where it was modified by the agreement. The choice-of-law provision is therefore equally consistent with the parties’ intending Louisiana law to govern the entire arrangement, except in the one narrow area where they specified that it would not, as it is with their intending that state law would govern only the. servitudes. The choice-of-law provision is therefore equivocal in supporting the conclusion that the parties bargained with the understanding that Louisiana law would not apply to the United States’ mineral interest.
As for the granting clause, the majority concedes that the term, “forever,” used therein cannot “connote[] an unlimited grant and a sale in fee simple,” as it usually does in contracts governed by Louisiana law. Porter v. Acadia-Vermilion Irrigation Co., 479 So.2d 1003, 1008 (La. App. 3d Cir.1985). For that reason, it is unclear what the parties intended the term *302to mean. While they might, as the majority concludes, have intended for the royalty to last as long as the underlying servitudes, they might have merely meant that whatever rights were conveyed in the settlement agreement were not subject to any time constraint other than those, like La. Rev. Stat. § 31:85, that define the scope of the rights themselves. The granting clause therefore does not demonstrate that the government bargained for a right that is inconsistent with the application of Louisiana law.
In this case, the district court did not make factual findings as to which law the parties intended to govern the servitudes. Because nothing in the contract affirmatively evidences the parties’ intent, I would remand this case to the district court for additional fact finding. See In re Mercer, 246 F.3d 391, 404 (5th Cir.2001) (remanding for further fact finding on the question of intent to deceive); Texas Dept. of Hous. and Comm. Affairs v. Verex Assur., Inc., 68 F.3d 922, 931 (5th Cir.1995) (remanding for further fact finding on the issue of mutual mistake). Accordingly, I respectfully dissent in part.