sacramento municipal utility versus the united states think there are at least five independent reasons that the trial courts application of collateral estoppel to impose a thirty five million dollars offset on smudge's proven damages is in  i'll address each one of those in turn first the first element of collateral estoppel is it can only apply the issue in the first case and the second case part identical to scores that materially identical in all respects so let's look at that issue the issue in the first case was whether or not the rape wasn't titled to a wet pool offset it would pull off that for the year two thousand and three directly rejected the trial court's finding in the first case that the the acceptance rate was speculative so if you look at the first month one decision where the port rejected the idea of an exchange for two thousand and three the trial court did that misses in footnote forty of its march two thousand and six opinion the basis upon which it made that ruling was its finding that the acceptance rate was for the first period which was through two thousand and three then filed a at this court's following this court's framework followed a second case for two thousand and four to two thousand and nine there are separate lawsuits and if the government was able to want to force her to give you the first judgment right lads who think that if we they if we simply vacate in remand for example an exchange theory or other things you realize you could just consolidate the two cases in this argument about three your argument is on the formality of two on reading and doesn't doesn't that mean that case formality argument which is a good argument though goes the way i think that's right your honor i think it does and and if she consolidated the cases going to the economics and the different assumptions in different years and whether the fuel out date of two thousand and four holds up under your exchange model right yeah that's right around or so now i've heard a lot of exchange model cases and i see judge from ratings struggling in this record with the exchange model because it tends to assume that a multitude of  municipal power associations are exchanging their fuel with each other and yet nobody seems to be accepting everybody's giving out their fuel i think you see e and yanking the same model and the of the issue your honor with respect to who would be giving up rights and would be taking them is actually fairly straightforward one because that's a question  d which i presume you'll have a burden on if this goes back and you're allowed to present your exchanges model you'll have to prove you would have successfully exchanged that's right your honor and by way of example in the record of pages one hundred thirty nine hundred thirty one there's a chart that our expert put forward in the second case which sets out the amount of excess allocations for each year from ninety eight to two thousand and five of the amount of allocations under this court's nine hundred eighty seven a c r that utility would not have needed to send fuel to them but you're not asking us to is that you're saying that's what she'll do and remain right well i think that's right your honor other than this court has held three times that the model or affirmed the conclusion that the same exchange m much fuel you would have gotten rid of or how soon you would have gotten out you're not asking us to figure out the indies when you're out of the business and don't have any more nuclear waste i think that's right none of that so what your expert talks about isn't just a model he walks through and land actually in those cases reached the same conclusion for smart so it's a industry wide model so the model that was a blast in those cases actually reached the conclusion that our client smog would have been out of fuel in one nine hundred ninety nine so dug the same model it's not the facts have not changed because the the export of modeling a hypothetical world obviously that didn't would say your honor that rejection of the conclusion of the exchange model would be clearly erroneous in the second case because this court is set up the use of the model to award damages the same that's what i'm i'm trying to figure out an actual or legal well i think to your honor's question is is this the right one i think the technical conclusion in each of those cases was this court did not find in the trial board's use of the model to award damages so that was the conclusion of discord in yankee atomic and in p g and e and in dairy land now my correct that you would want us to recognize that it was incorrect for the trial court to offset figures from a later period and apply that to reduce damages at a time agreed to to my surprise which is is she consolidates you're going to say she can't then you now well that's what you did i don't want you to be stopped later for making an argument that you may decide you want to make by virtue of having agreed to something i asked you  right rudder so our first request is that the court this court affirmed the damage if you meet reversed the court's decision and remember with instructions to award the fifty three million dollars it's much proved in the first those cases did this court find as a matter of law that the exchanges viri model whatever you want to call it had as a matter of law to be applied to the depiction of the number each world played by the trial court all it did all this court did and dairyland yankee atomic pacific gas and electric was find that there was no clear error in the trial court applying the exchanges model but specifically left for the trial court for example and burial and said that it was up to the trial court to determine if the speculative midst of such a model and then apply it given the particular facts the trial court in this case in the first month case heard evidence smug argued in that case that they would have used exchanges to advance their place and they do we and their partner of energy acceptance q they did not use an expert witness to do that in the first case but they present a three then a model but they presented two expert witnesses who presented evidence on exchanges and they presented fact testimony and argued that that deal we would have removed all of the spent fuel from their from their plant in one nine hundred ninety nine in the second case smut attempted again the exchanges issue and the only difference was they attempted to use an exchange as model presented by an expert witness frank graves who is present a similar model in other cases but the trial court correctly found decided the issue of exchanges in the first case on there is no the trial judge rejects the exchanges model rather than as you would like to convince us finding that the facts did not justify its application in that instance in other words she didn't even consider it she just said it's off the table but just to be clear the exchanges model that has been referenced in the brief was never presented by smothered comes up on appeal and we say she was wrong to say the acceptance rate was too speculative they didn't appeal the exchange rate goes back down to her and they acquiesced they said ok we're stuck we didn't appeal and it basically acquiesced that they waived in the first case being able to relate a good exchange rate even though we've reversed and the legal landscape is now different by virtue of being in these other cases but they i mean i thought quite generously and rightly acquiesced in that case but that's why did that prevent them from found as a matter of clear air of the trial of the trial court had not clearly erred in accepting the premise of that model and exchanges in all of those cases the plaintiffs had argued exchanges and use that model in their first case not in second cases or third cases it was an issue when the court was deciding issues of causation you understand what i think part of what bothers me is you want to have it both ways you want to reconsider the four point one million dollar offset and raise it to say but that was a ruling on the merits that they failed to prove it because it was too speculative that they would have exchanged therefore the only thing the court is left with at that point and part and parcel of that the acceptance rate though i guess what i'm wondering is would be correct but on remand the court because of this court directed the court to use a nine hundred eighty seven a c r a even if there was a question about the court's prior ruling out of strangers the trial court as it explained in  judgment to which this is essential seems to me like there's a lot of holes in the collateral estoppel theory well i'm on those two issues yet those two help me that if analogy the the issue of exchanges was litigated in the first as i don't think there is a dispute about that and then on remand the court reaffirmed that decision by application eight hundred eighty seven a c r in the court explained that without its decision on extraneous it could not have awarded or reduced much damages by the two thousand and three went collapse because the assumption is the fuel is still in the pool and therefore the offset is correct smutty was aware but now they presented that well we acquiesced and walked its rejection of exchanges and there is nothing in the court's decision and we would submit in this court's precedent that barred application of that decision to the subsequent litigation the finality was because  court had both before the remand by this court after application only considered all the evidence on the record the evidence that smudge had presented was in the record both before and after the remand in the courts this court's found to be two thousand and four and doesn't everything changed based on that no your honor because while the trial court did not specifically find a fuel have date of two thousand and four or two thousand  correctly explaining that didn't matter because it had already ruled and rejected the exchanges are that if we if we don't agree with you i want to be on a lot of issues what happens if we don't agree to a huge run and tell me where we are from presenting the exchanges argument in case too the court with venue have to consider that evidence and reaching new determination as to the effect of the exchanges on trial court level there has been at least one court cans of gas represent our brave where the trial court judge rejected the same model that smut is attempting to present here competence i believe it was drudge williams i need to check that that was a case about two years ago with the case of kansas gas and electric and there have been a number of other cases for example portland generally even the dairyland case here where the porter has not accepted in whole suggesting what about though the issue of the combination i mean these cases have not been consolidated you did not counter claim for damages in any way in the second case so why do you get the images in the second case which is what he the formality of having two separate cases well the first of the what the court is offsetting or reducing is not damages in the sense where we're speaking as there might be in other cases a counterclaim or a settlement there was no could you have gotten thirty five million or whatever it was out of them in the second case if there was only the second case at that point in time and the amount of the avoided cause offset exceeded their awarded mitigation damages what is your when you have the formality of two separate cases the judge really is committing to kate and say because she effectively gave you a thirty plus million dollar judgment in the second case and used it to offset the first ca she should be but it's not so i just don't know that that legally proper well the two points first when the trial court decided to keep the first case of and everything else in that case had been resolved and it was kept open for the sole purpose of accounting if necessary for the avoiding costs in the second claim which cover costs for two thousand and four to two thousand and nine after that she tribes or cases simply set the framework for when to which point in time a plaintiff could claim damages because of the part nature of the partial breach cases this court bother plying its existing precedent said for each case you bring you can only claim your actual incurred damages to the date of the rent or through the time of trial and that subsequent damages would be left for future cases those cases are not addressed avoided cost and in this way in this court because i don't see it here so it's am i missing something elsewhere well there to be there isn't a case on point that we could find that said one way or the other but i would submit this when when the trog court made that decision to hold up in the first case aware of the argument and why it was being held open and denied the writ finding a whole different standard extraordinary relief not otherwise attainable elsewhere and the size of the pain all through the correct but the but the courts i would submit that overall the court's precedent regarding breach contract damages for example in the bluebonnet type cases to measure the net financial effect on the non drinking party in this case required fully accounting for all of  avoided costs without keeping that case open enough and if you will applying the offset to both cases understanding their separate cases that net financial effect would not be accounted for in this case and further in the cases like southern nuclear where directive in these particular cases application of avoided costs the result would be if if the avoided costs offset and in this case it happened to be thirty five million was not accounted for over rents i guess that would be the case and it would allow now again there's not a lot of cases like this but it would allow the plaintiffs are safe they're going to bring the second case and we know that avoided costs are going to see the damage they yeah they could you could point out the years to really correct the that's that's a concern and by accounting for this it overnight in keeping the first case open we would submit there's no abuse of discretion in the court doing that that it was within its discretion to account clear i totally and completely understand how she came to the seven million dollar number and you know what i think it's probably the more correct number to be honest with you i just don't know how is it was the case already decided and stuck at four point one whether she was you know i think basically she revisited herself realized that it was unaccounted for cost of maintenance of the dry storage and should be put in and if she had done that in the first instance i probably would have affirmed it without any difficulty but  question is why isn't it already set how does she have the right to go back and do that at that point in time because in the second case the specific damages that were claimed were for two thousand for two thousand and eight and the avoided cost object had to be looked at specifically  damages in the in the second case but avoided cost because those that did those particular facts had not yet been litigated we had that the government in the first case before smudges filed its second case had requested basically of discretion for her under the identical facts of the identical farden cerise a different conclusion the second time around because in that in the second case we presented evidence that the total avoided weapon cost was in the seven to eight million dollar v you didn't the first case to what we argued for a higher number but for that particular year the problem rejected a higher number saying you are not accounting for the meetings and operation of the dry storage which you have to because look even their expert but what we did in the second case was articulating the total avoided web for costs in the first all we were able to articulate was the savings and we said in case two to the court the total avoid web all costs has to account for not just the savings but the total operating costs that smut avoided and that's what was presented that issue we would submit was not decided or we were not precluded from arguing that in the second case by the court's decision  matter of fact the government has not paid a cent here yet and also has not taken a single canister of spent nuclear fuel isn't a lot of the difficulty you describing hearing problem of your own creation for purposes of assessing damages and the issues in this case i would say that no your honor they there is no dispute as to what is happening in the actual world or the mitigation activities acceptance the spent fuel i would have to defer to the department of energy i mean there are ongoing plans in terms of the litigation itself there have been eighty eight cases filed in the trial court there there have been a settlement and resolution of the neighborhood of seventy five percent of those so there's only a portion of these cases being litigated but in bringing it back to this case that's why these issues of collateral stoppel and finality are important not only the plaintiffs but to the government too when issues have been decided  and ultimately we would submit that both cases can be resolved efficiently and the trial court did its did its best to thank mr cameron vecchio mr mcdonald you have the republic time thank any damages the court in two thousand and nine and determined that's mother's inside of the fifty three million dollars we think that if that if the government were right and they could reopen that on remand then rate for us every year has cost them and has called smut and its municipal owners more than film four million dollars a year every year since two thousand nine at was one of the reasons we were prepared to take the fifty three million dollars and go home  two thousand and nine and each year going forward that has cost some of that rate of return and its use for that money so if on remand we were going to read open the issues then smut i think would be invited to say under the exchange model which this court has adopted it would have been out of fuel in ninety nine and therefore it's entitled to know what pool costs that it actually incurred in the real world for two thousand and two thousand wanted two thousand and two and get back to what it will offset for two thousand and three so that is a pandora's box that is opened we think smug will be entitled to twenty or thirty million more dollars in the first tamlyn mentioned the fact that there was a centrally satisfy the final judgment standard for smog one and obviously there wasn't a final judgment it's mud one they tried to get in under the sufficiently shows that it couldn't possibly have been sufficiently firm for purposes of collateral estoppel on the full and fair opportunity again mud didn't have that opportunity in the first case to litigate about whether there was an understood that the trial court would consider that in the second case so for all those reasons we think the court must reverse construct the trial court to award smut fifty three million dollars for the first case and twenty two million dollars for the second case i don't have anything further most scored as questions thank you mr smith thank you concludes our morning