be held in this case by the city of martina's a governmental entity is protected by the constitution it could not be taken without payment of just compensation is protected by the california civil code and by the government code both a which city gives the city the right to enforce it against someone who invades a texaco did in this case tell me what tell the panel what the city hopes to accomplish that was not accomplished by the department well your honor the city under its conservation easement the city has the right to the maintenance of the marsh land in its t as a result of the oil spill marsh soils twelve introduced on the top of the marsh were removed because they were so contaminated they could not be restored in place so called of realtors case both of which states that under california law as do the california cases when the first court did not have jurisdiction over the claim asserted in the second c ecological values can be compensated in an action brought by the easement holder of the city in this case against the party who invaded violated the easement texaco in this case and as i stated that was not fish and game department is charged with protecting by prosecuting the violation of a public defense as in this case and private rights such as those held by the city under its conservation easement  opinion that the earlier settlement between the various government agencies the california coastal commission and in fact the agencies of the federal government and the property owners did not preclude  private property rights rights they held distinctively in independently of the rights held by all members of the public to protection of the environment and they were unable to do so in that piece and the is very much of a public trust kind of right and what the city's unique right is separate from the public right i'm not sure i understand well they overlap in the sense that the city's right is to protect the ecological relatively narrow we agree on the general law that applies we agree on the general standards that are of the elements of that law and what we're coming down to is what is exactly is the nature of the city's right under its conservation easement under its open space and conservation easement and how does that right differ from the rights that were vindicated in  litigation brought by the california regulatory authorities i think listening to counsel that if you boil it down if you boil down what this easement is all about you come out with the conclusion that the  argument that the criminal court was without jurisdiction to consider some of the planes that are stored in this litigation let's say for example claim i think it's seventeen common law trespass how could a criminal court  form of a civil compromise because the party who was the victim of the alleged crime had a civil remedy and so although it was started as a criminal case it was ended as the civil case  nature of the primary right that is involved here and whether that would encompass that kind of claim under the terms of the east when the statute under which it was created it would not if you if you read th will see that it's whole thrust is to restrict what the grants or wrong like could do on this property that is to prevent wrong who walk from building from developing the property honor that's a different right that's a different easement it's a different primary right this easement for example gives no right i mean grass on this property it does give the doesn't or the expectation that you will be property the land will be maintained in its natural state at least by the gran that one of the arguments council has made was that it is a right that right that is separate from the public right first of all i don't think that that changes the fundamental damage just from that contamination but it all comes back to a right to be contamination so that the label private or public doesn't change the underlying nature of the right itself and as a matter of law this easement is basically a public right under the government code section five one zero five and five one zero eight one as a matter of law the acceptance of this  deed constituted a dedication to the public of the open space easement the easement itself says that every term and condition of the easement is intended for the public regulatory authorities are vindicated they've indicated the public's right to the natural resources of this property the city's right cannot be distinguished from that from that right that was previously been the case certainly is your own so how do you get around to reach that you basically have to adopt this theory of personal representation how do you how do you square that with richards the supreme court case on that it seems to me that you have an hour for that of why you have to have some it seems to me comes down to a very much the same is to ration is the primary rights the issue itself and that is what was being protected in the first case and how is that different from the interest the city is trying to assert in this case the marsh and that's exactly what the department of fish and game did suppose it were a private landowner not dealing with just an easement but simply owning the example property there on the market and argues that the value of its property has been diminished not because of physical injury to the property but because of contamination to the march and hence the restriction on looking out of the water and checking out the birds and so forth the claim in that case would still boils down to a claim for injury to the natural resources of the marsh that were not part of the land owners property five understood the hypothetical and that would be the claim that was going t kill me as i understand it's hard to divorce the hypothetical whereas a land owner would be concerned about the monetary value of the property and how it might be affected but it is not required inherently to accept the department of fish and game as its representative my experience parties are not shy in making their views known when there are parallel or or related cases and they don't have to it's not like a class action cont can go before the judge and argue there's something wrong with the settlement if i understand your theory correctly to strike a deal with one and that's it and that one may or may not actually serve the interests from the perspective of the other eleven but it doesn't matter as long as you can characterize the interest as being sufficiently similar i mean does that seem right that doesn't seem right to me somehow i'm not sure why it doesn't seem right legal theory perhaps but shouldn't the other eleven have an opportunity to speak for themselves more recently spent five million dollars cleaning up the marsh the regulatory authorities determined that it met all the requirements to clean up the marsh they determine that claims for natural resources damages were adequately compensated and they settled those claims and now we're being asked to relive again a lot of those same issues some jurisdictions where you have other people may have attentional claims when you resolve the settlement of your case you can ask the court to bring in those parties or give them notice i take it that didn't happen here well such as a good settlement not tort suit with multiple potential responsible defendants i don't see any reason why it couldn't have been done that explains how it is this came about yes those statutes are sections thirteen seventy seven and thirteen seventy eight of the california penal code and the case that starts out by saying if the person injured appears before the court in which the action is ending at any time before trial and acknowledges that he has received satisfaction poor the injury the court may goes on to talk about how the action may be dismissed well that never happened here the city never appeared was never invited to appear before the criminal court in which the fishing being proceeding was pending and never acknowledged satisfaction  for its injury particularly the injury to its conservation easement in this case so as brought out in the earlier discussion the city's had no part in the civil compromise that resulted from this criminal versus workers compensation appeals were and i just want to read very briefly from that decision because it is very timely and it captures what i think is a fundamental point here it says quoting from an earlier decision that we also cited in asserted in the second proceeding but also the court said although from a medical viewpoint current software suffered only a single set of injuries the result as a result of his fall from of the roof his claims against  in the workers compensation proceeding and in the severe your court action asserted two distinct primary rights the statutory right to crop certain compensation for all work related injuries regardless of fault and the common law right to be free of his employers and make the agency in maintaining his work environment and that is exactly the position we assert here that the city was or something was entitle to the indication of its rights as a conservation easement that did not take place in the criminal proceeding and that is the purpose of this case when you raise with you may be the mirror image of what concerned me during your colleague's argument which is you've got your guy only holds rights as quote a member of the public he is foreclosed and you know that's what the alaska sportfishing decision says and i won't extend the time here by reading from but i would invite your attention to that because the court did make very clear that the reason the sport fishermen were precluded there was because they brought only claims that they held in common with other members of the public to protection of the environment protection in the marine records like answer me before which is i still haven't figured out how the city's claims are any different from the crimes of of the public more generically well they are different  different source of primary right they stem from this conservation easement as opposed if you will to the rights that the city and every other member of the public holds to protection of the environment and notwithstanding as i just read to your that the quote sane wrongful conduct by texaco is involved under california law and i did take in our brief the result might be different under federal law which follows this transactional analysis or core of operative facts analysis but there are two or three california decisions that have specifically held that our law is different