the next case is a real one linda versus united states eighteen days seven hundred sixty one erred on the injury issue because the government caused a toxic substance chromium six to enter the district's water systems at hazardous levels this is a physical invasion honor that's one of the questions it was raised in the briefs but the issue was never briefed or argued below it's raised it was raised for the first time by the judge in the court below and if there is a need for a paragraphs of the complaint do you say focus on in three and a taking the invasion independent of the california and c l paragraph twelve your honor refers to chrome allegation it began your honor in paragraph forty eight of both complaints we allege you know it's inconclusive the form of course but we allege that the actions of the defendants amount to an inverse condemnation of our property  imposition of the mc you know no your honor we're alleging that the injury occurred when the mc i was adopted because that's what put us on notice started the investigation and what triggered the reason it's not an allegation or based on the thousand and fourteen is when the claim accrued but that was because of when to put the district on notice of the hazardous nature of the material and lead to the investigation showed it that it came from the government iran and it's the same aquifer from which the well strong so all these of cruel things seem to go to the cruel day for purposes of statute of limitations correct which didn't really get  explored because the court of federal claims dismissed for lack of subject matter jurisdiction seemingly considering this only as a regulatory taking action that's correct do you agree that you're not raising a regulatory taking yes yes we are raising a visiting your complaint could have been a lot more clear at this point perhaps it could have been but we think that it is nonetheless the law is clear that what triggers about how the m c l represents the worst water that a district is allowed to serve to the public before the state shuts the wells down and that injury as we've been discussing does not depend  if you make that allegation that well we alleged injury from the presence of the contamination but then later i think the problem is i see you later go on and say that this will be ready for crude at a certain da on the plaintiff's knowledge of the severity of the contamination that is you have evolving scientifically not all the problem here is at the c e o has been what it is what's the status of it now has it been it's on remand it to the your theory of the taking based upon this contamination and if it does that prohibit or limit your use of this water supply there is an injury to our property interests which is the same injury discussed in both safe harbor for the district for delivering water polo if there's no women still then they are at risk because the reasonable the standard in newer is to the benefit of the consumers and this is discussed in the in re get groundwater this handled under environmental law versus taking it off because you're on a contamination of drinking water is a well established taking in the hanssen case which we discussed at length in the government ignored it discussed about they discuss that is a dangerous chemical well chrome six is a dangerous chemical did it for the taking because it rendered the wells completely useless if it rendered it was exactly the same as here your honor which is that in order to use the water from the that the district owns the right to use the water and it has a hazardous contaminant that was put there by the government and it cannot use that water when i don't want to belabor this because this is all america stop that that probably needs to be explored on bream and if we find you sufficiently allege of physical takings but i'm skeptical that that when you're not when the federal government hasn't violated any environmental laws that this can be construed as a court can i just ask you if we like their complaint is very unclear but if we read it and i think we're supposed to construe it you know in their favor alleging a physical taken sick lame don't we need to send us back because  putting this in the regulatory takings box and he's right that there's no regulatory takings quite there can't be because the federal government has a regulator thing and that and you're your friend on the other side agrees with that but if you look at this from t jurisdiction of rather than just what a trial because you would see if he had converted this at least to some kind of factual findings you would have thought he would have explained that in some way regulatory taking i know that's how the plaintiffs describe it i just understood that he was saying you you say that you were deprived of a property interest by the primal geisha neveh regulation that has now been vacated into this is a tort case not a not a not a taking his case that yeah yeah i read that as i read your papers in the in the court federal claims and the judge then came in and didn't decide on either of those grounds but rather went off on the ground at least just been discussing it appendix for writing so i think there's a good argument for the proposition that in a normal circumstance there wouldn't be enough for a minute here there would not be enough there would not be enough for amending here because they didn't argue and there are a lot of cases that way against them on that was was there any oral argument on this motion or just go off of the papers since i'm just a public counsel i i don't want to because i don't see any way that i don't think there was any yeah yeah i don't think there wasn't looking at the do right i i mean there they haven't even here presented any evidence showing that they are a thief rived of use up their wells now if they wan problems if it's really right but we're pleading stage you're right and we're faced with a situation where the judge ruled on a basis not argued by the parties when there is seemingly enough in the complaint to you're saying but i would just point out that the districts themselves have not stopped using the water they have continued to use the water and in that way this is a very different case than in ansan where it is not a good comes down to has have they stated that they are deprived of use of this water do they help to this is what i'm a little confused and i just i don't frankly know where i would come out on this but do they have to rather than just the plain and i guess i just i understand your arguments but if we just look at the complaint and construe it most favorably to them it seems as least those two paragraphs go beyond just the impact of the there was some reference to fifteen hundred and the judge's decision you know and that's why i ask your friend about the order of the play is a government just keeping that alive because it wants to pursue its theory that it does the order of the filing doesn't matter because it's pretty clear isn't it that our president suggests that the order filing does matter it is clear and that's why we did not brief that issue so under on it we have to get on bartok and reverse that exactly i know that's the justice department think i did want to just point out a few places in the record where which led us to conclude that they have not established that they are not using the water and that i primarily in the appendix at one thirty five where real lindo water district stated that in a report that they filed just four days before the complaint was filed here that they are not  they do not need to remediate any of their wells because they're all in compliance with the a playable regulations and that they're postponing remediation on that basis  and on the basis that their complaints allege that they were deprived of use by some right promulgated an effort regulation that's no longer in fact we think they they didn't adequately describe an way presumably they would be able to they they would have to go through their procedures which i think means given the timing they would have to you know notify or ask there are many issues complicated issues raised by the taking school aims here and in our view the court of federal claims to solve the case on the most straightforward basis which is a lack of injury and no right claim honor the judge issued the ruling on grounds that were not raised by anything in the government's brief and entered judgment the same day so case was dismissed and you didn't have the opportunity to correct  and what are the point i was going to make your own was that the act that the fight is a district court in the lower court was over whether if you can nation comes from mcclellan comes from the air force base not over any of the crieff you didn't have a chance to respond to the to the judge's ruling and in response to the question i believe from your honor judge shot about whether you have to have a total loss of property or whether it  and let me just and by pointing out the importance of this case to the districts and to their rate payers the lower court's ruling goes directly against the injury analysis of every federal  e court that has looked at the issue in drinking water contamination cases and we haven't discussed the statute of limitations accrual issue today that that's an intensely factual issue that's inappropriate for a motion to dismiss much