more about overall management that you wanted i think you could have done that but it was necessary in the case well there are cases in kerry versus united states basically said that for the property owner to survive judgment on the  ion just fine fire yes jeff g judge rader i think we do and i think part of the purpose of presenting the complaint this way is to present an accurate picture to the court we're not alleging that all of the conduct by the forest service in this shasta trinity national forest during this incident was non emergency related what were alleging is that at least some of that was and at least some of the time that by the forest service that demonstrate those property was non emergency related and that's where you get to paragraph sixteen where we say that one of the forest services management management objectives was the reduction of fuel buildup that does not implicate emergency only response as we set forth in our reply brief we explained look at some of the publicly available documents in the forest service it's clear that the forest service has responsibilities that go beyon claim on the federal tort claim that for the government damaging property and torture yes judge moore that is a possibility i think it's clear from the record before my time in the case but even beyond that point there are two answers t yeah right yes i think generally that's right but there's nothing in this case that shows that the forest service was kind that was necessarily a tort under tort law you have to show negligence we're not alleging that the forest service was negligent in setting these fires what we're saying is that the forest service set these fires intentionally with a particular goal in mind and that goal being non  emergency reduction of fuel buildup in the far east it basically laid it comes down to the issue of whether you read the paragraph sixteen as being solely limited to emergency activities and i don't read it that way i think we've cited forest service documents be cited in the title thirty six of the c f r we've cited other cases the forest service manual all which clearly explain that the forest service out and responsibilities go far beyond our emergency only related activities and once you get there you can't dismiss the complaint at twelve the six stage here and even so it additionally when you bring up the affirmative defense of necessity defense it's the government that's the only government that's the only basis the government is relying on at this stage here again to get back to the issue you can't dismiss a complaint at the twelve  stage based on a firm of that defense the only reason you can is if the only way to really read the complaint is as alleging all elements of the necessity of defen understand that the forest service action in this instance and with respect to treat those property involves at least nine of emergency activities and there's nothing in the record that would dispute that is just a statement of what you say one of their management practices are you don't say that that is the reason that any of these fires were set nowhere in the company do you allege that judge moore and with respect they disagree but if you read the to the ongoing wildfires through exactly if we judge more but even within the management of that are you complex right the question is whether everything the forest service did was necessarily connected to the see firefighters and under the necessity doctrine and show whether an emergency had existed at the time the forest service has to come with some evidence something that still basis to continue to show that there is some spatial and or temporal nexus between their conduct their actions of burning face those property and their need to fight the fire well end it at least for some of these example you know we say that this activity was undertaken adjacent to the cedar fire right now they're saying they have to come forward if you survive twelve be sick because they've got to be able to come forward factually and show it either  spatially close such that was necessary but your own allegations say that to be decent to the fire why does the government have to come forward and prove what you already alleged yourself in the complaint that they burned land adjacent to whe was burning the two point judge moore first of all that that only applies to the burning of much springs so we don't say that for every single fire but even so when you read that sentence the question is that the twelve the six page how the inference was made the inference that had to be made in the nonmoving party's favor in other words printed a statement and the question is when you read that does it jason that that word means that it is so close in space and or in time that whatever the forest service did at that point satisfies in the cesspit doctrine and you can tell based on that i could read it both ways and i think you plausibly read that according to one report burned about one hundred five thousand acres and the property size that we're dealing with i think the largest proper that we have was seven hundred fourteen acres and i think the smallest one was about fifty seven acres is it really gets down to the facts of what happened here and i'm not saying that trinket or my client will necessarily prevail on every one of these claims but the important point here is we've alleged all the elements and those are always supreme court cases where they say for example a government come in and destroy a house because there's a fire raging down the street now if you look at all those cases though it's clear based on the facts presented in this case however they got those facts it's clear that the necessity doctrine did apply there was no question about for example an outage they destroyed the house but they also had the engineers at the scene and the engineers made a decision that is necessary to burn the house and if you look at the civil war cases o the world war one cases on the a commercial or the world war two case by count tax and with count that's for example and the japanese bomb they blow up the the oil refineries in manila yes yes generator and  have engineers on site to say that was necessary if they did they actually in that case they had army commanders and they enlisted an engineer from the oil company to act on behalf of the army and  days after the pro harbor attack so when you read the facts of that case there's really no dispute that in those instances the government didn't warn necessary to avert a serious imminent public harm curiosity you know how much is this national forest in the it judge benson i believe from the information that i have today there is one report that indicates that approximate one hundred  five thousand acres of a farce and i believe the course itself is two point one million acres so that comes out to about five percent of the forest but again this gets to the facts of the case and we haven't gotten to the facts of the case we've alleged taking when it acts a controlled threat of a fire what the if the facts would show that to these forest service made a decision to solve another problem while they were fighting the fires and that they for example they further allege but for this action by the government alone the setting of fires on their land the subject lands and timber would not have been damaged by the existing wildfires i don't know that things like  statement that it wasn't necessary to burn their land the wildfires would not have come upon their land and your honor could the government actually is not looked into it to make it that but for statement because really all of that is doing is attempting to show some sort of causation between record of this case but i can assure you that all tiny to know that what is the course in two of them it was adjacent but there were other properties that were not to chase and one of their miles away we've discussed briefly there's two million acres let's say the fire is in one corner and they're burning something in the other corner with the irrelevant your honor so long as the government is acting to control the spread of the is underway and that does it become questionable that they're actually working on a fire this hypothetically five miles away your honor is that if the government is acting for the purpose of controlling the wildfire issue and if that activities defense and the government's position is that necessity can be presumed in firefighting concept fires are special they the longer they burn the more property and timber they destroy and they're going to defend my you're going to defend the government  that's what i don't understand is you're not that bad you want to read all kinds of things into this please your honor i'm saying it was only out of the sesame to control the fire your honor that the purpose of rules twelve and related to ensure upfront that that the reference to management objectives is not things at all to the activities that actually that allegedly damaged the plaintiff property the only sentence that actually links what the forest service did to the damage t necessity of doc doctrine and yet i looked in the don't see that there is really even a single case that sets down a conflagration rule as to what exactly is required for a taking in a cases that have kind of similar facts situations they're blowing up the manila harbor oil refineries with things but isn't there some ambiguity in the lawyers well you're in it in fact there's  impose that the it doesn't state that the government must show actually the set city and even if the four exert the sense at common law everyone has a right to destroy real and personal property in cases of actual necessity to prevent the spread of fire voted allegation complained differently that that allegation is simply not in the complaint because the second sentence of paragraph sixteen is the only allegation that links the four of the four surface actions to the damaged property at issue in this case we simply don't we have a case in which same your honor that i mentioned a parent on the face of the complaints that necessity was that issue in this case because you had numerous fires raging the government had appointed an incident management team to manage those fires and at least two of them were adjacent trenchard's property and as well those fires had been burning for over a month and are still in contained because the forest service is taking these fire control actions and based on the longstanding precedent we believe that that is a sufficient those facts or amendment does put certain constraints on government action and if the government is going to come in and are certain the defense is saying that it's actually for necessary they have to prove it with some facts rather than just saying that any action taken under the i just of forest fire forest fire fighting constitutes an emergency and as i said that given the topography here you can't tell that without the facts and one last point with respect to the reason i