rebuttal yes your honor your honors this is a ripeness case arising out of a land use dispute appellants are the owners of real property in an area of low mcanany referred to as the l shaped portion of land use area nine b in two thousand and seven the oregon legislature set in process a process for designating urban and rural reserves outside of the urban growth boundary to ensure there was sufficient land for development in the future that land conservation and development commission then set forth regulations to promulgate this this new framework fast forwarding to two thousand and ten your honour's that's when appellants found themselves owning real property and mccann that was burdened by a rural reserve designation they challenge the rural reserve designation process as unconstitutional but in two thousand and fifteen the district court dismissed the case on prudential ripeness grounds and so holding the district court erred we're go ripeness but first just a reminder about the draconian consequences of a rural reserve designation as a result of that designation appellants ability to use their land their real property was significantly curtailed for a period of at least forty years up to fifty years half a decade of half a century your honour's in addition that is not surprising that that significant curtailment of the ability to use the land significantly decrease the property value the unrebutted testimony in the record at your thirty five the declaration of hank skated starting at paragraph five pointed out that there was a significant diminution of value in that real property all of this demonstrates that there were very significant concrete impacts on the appellants and that was the information that was before the question but what if that's the final outcome you perfectly plausible i won't say winning but perfectly plausible claim for taking the regulatory taking question is whether this is the final outcome it's basically williamson county case although you guys don't seem to say williamson county for that proposition three court tells us this basically back had been reached and the basis for the district court's i'll go right to the basis for the district court's determination that this matter was not fit for review because when the organ court of appeals set aside that acknowledgment order in part it remained only in part as to a different land use area not as to area ninety that came down to l c d c l c d c then remained at the mater to metro and to the county to correct that flaw regarding a different land use  at that point the district court felt like the matter was uncertain she wasn't sure that it was now administrative resting point but in our opinion it was at an administrative resting point if you look at the barkers five decision the oregon court of appeals identified a flaw only with respect to area nine d and then when the l c d c remained of the matter to metro and the county your honour's it only remained at rural reserve area nine d that is a clear  and forty eight in addition the remained order actually incorporated its prior findings in the acknowledgment order that had not been disturbed by the court of appeals so it actually incorporated the prior finding regarding area nine b there was no uncertainty area nine b was not being looked at what the county says in its brief is that metro and mamma counties have to determine the effect of this error on this other parcel on the designations of reserves in mamma county in its entirety is that wrong you're on other words not necessarily is there going to at the term a redetermination of your client's property but is it possible that there might be i think that's what the district court thought you're correct your honor the district court thought it was possible that area nine would be looked at in conjunction with area ninety but the fact that the l c d c remained order actually told mama county and and metro we are incorporating our prior findings as to the area nine b the organ court of appeals said nine b was appropriately does it dated goforth infix area ninety we actually appellants actually asked l c d c to vacate the entire reserves designation and they declined to do so so that remained in place but i'm not sure there total i'm not sure i'm seeing total clash here i'm trying to figure out whether your position is that legally the district court was in correct that there is a possibility of alteration of reserve designations for other areas it's just impossible it's not going to happen or it's so unlikely it's just really your own or maybe it's not impossible but it's really really really unlikely which one is it it's really really really unlikely your honor that was that was appellants position and that remains appellants position elsewhere after l c d c remained in that matter it was i don't know how many really really want to have but if it's really unlikely is review de novo and what we need to look at us what did the district court say and the district court said these i'm finding these claims not fit for review because there is uncertainty regarding future municipal or legislative actions at the briefs of metro and multnomah county they actually indicated that there was there was no certainty at all that they were actually even going to go back in reengage on the reserves process all of that indicated that there really wasn't any significant uncertainty regarding the municipal actions and regarding the legislative actions your honour's that was another thing that judge brown pointed to the legislative session had actually already ended she acknowledged in the order that the legislative section had come to a conclusion yet somehow the possibility of future legislative action was viewed as also creating uncertainty regarding the designation of area nine b but we cited to the haskell versus harris decision from this court that indicates it's improper to look at the potential future speculum action of the legislator legislature to determine whether a matter is fit or not and that actually also tainted the district courts fitness determination in addition your honors it is undisputed that the facial challenge to the regulations was still before the court and facial regulation a challenge facial challenge to regulations is generally ripe upon pro regulations the state acknowledge that in its brief and therefore there was no question as to the fitness of the facial challenge to the there also should have been no question as to the fitness of the  three claims at least for that period of time when the order had been acknowledged so for a period of about five years the rule reserved designation was acknowledged by l c d c and there were constitutional deprivations taking place during that time one thousand nine hundred three claims as we know don't suddenly go away because a future action they don't get mooted by that therefore there were other basis on which the court should have found the matter fit your honour's turning to the issue of hardship the district court also erred on determining that there was no hardship from delayed review the hardship determination refused to take into account that great diminution of property value that i mentioned previously the evidence in the record in our thirty five the declaration of mr skate talks about basically a seventy five percent diminution in value of property that was owned by the l l c there was actually  testimony from which this court could infer there would be significant harms flowing from delayed review mr skate explained that his sister lived in a home on the property she'd been there for twenty one years she'd raise three children to the age of majority  and so she she was a woman of mature years the mother was in a nursing home the father had passed that the family was facing decisions about what to do with the property in addition mr skate testified in that declaration that in two thousand and six they actually had an option to sell that property this from these this evidence the district court could readily have inferred that there was a real harm flowing from a delayed review of this property so the district court erred on the hardship determination as well this is a minor question but you've mentioned mr skate's declaration a couple of times judge brown found that your clients are not suffer an economic harm was at liberty to do that if she found that mr skate's declaration was not credible and so wouldn't we review that finding that she made on a clearer basis she didn't find that the declaration was not credible what she found was that rather than simply saying we have a diminished property value that she wanted to see further evidence that the property was going to someone to try to sell the property for example or to take other action that was directly contradicted by the rural reserve does ignition but  perspective those inferences that could have been drawn from the declaration support the finding that there was a very real concrete particularized at that time effect on the property rights of a honour's we did briefly discuss constitutional rights in this in the briefs as well the judge did not dismiss the case on constitutional rights this grounds for all of the reasons that we feel the case was prudentially ripe in the district court erred they all support article three case or controversy as well be happy to answer any questions the court might have about that but i think what i'll do is read if you don't have questions i'll reserve the remainder of my time and just ask the good morning i'm patrick abbott and i represent the state defendants the members of the grand conservation development commission for the state of oregon so what are we waiting for so what are we waiting for right now happen well i mean as i understand it the process is ongoing my clients at some point soon i'm not sure when we'll have an opportunity to review their submittal but they that whether there's an actual injury is particularized and sufficiently certain to satisfy the case or controversy requirement let me pursue this a little more but you may not be able to give me a more precise answer the new york to have done i'm very sympathetic in general to landowners who are faced with an uncertain situation going to be resolved at some point when it's finally resolved the can then move on they can sell the property do whatever they're going to do but while it's in limbo they really can't supreme court from time to time allows compensation under first english but that's somewhat uncertain so i ask again when in your view of finality are we likely to have some finality so the district judge can get to it that with respect to the c d c i expect that they will get to some finality i guess my understanding i realize this information is in the record i didn't see anything that would obligate them to to make their decision by any particular point in time is that wrong i think the i can't cite pick the rules statutes by name but there are timelines which they have to rule in these proceedings  something as was might say in rebuttal isn't there doesn't don't these proceedings cast a cloud over her client's property so that whether or not you know we can debate whether the acknowledgment orders in effect but doesn't doesn't the pendency of these proceedings make it very unlikely that they could go ahead and develop them there is no legal doctrines for clouds there's you know blight on that you know condemnation polite that kind of thing but i don't think that's what we're looking is there seems to be a slightly when you're talking about declaratory relief obviously an actual injury that has occurred is not the issue which was whether a injury is of sufficient immediacy and reality but we don't we don't have that either on these facts the only other thing i wanted to mention was to respond briefly to counsel's comment that the record permitted an inference position and that's what happened here unless the corps any other questions regarding l c d c's roll will hand things off to counsel for the county thank you rightness it's really just an issue of the timeline it's a question of whether we're at the right point in time to challenge this designations and that depends on whether there is actually an injury for article statutory there's an oregon statute or s one nine seven one seven five sub two which says that local governments cannot act on an acknowledged plan and that's what we have here what we have you are designations that have been submitted to all c d c represented by counsel for review and approval while it's until c d c any knowledge is the plan the local governments must not think compliance with the reason is is factual the law is clear that these designations do not have a current impact on the appellant's on the other and factually looking at the record there is no evidence of an impact on the welfare but that's solely we know they have so long as some something is determined that will affect the ability to sell at a particular price so i don't i don't need anything beyond that commonsense observation to know that there's an impact i guess the difference is is there an impact with legal effect that's a different question fair enough your honor and and while there may be a belief that their property value has diminished that's exactly the type of injury that is speculative were they to try to sell their property and were they to experience an inability to sell their property will then there be facts in the rocker to support that contention right now there's only a statement one statement in the entire record to support any for the factual facts to support that they are currently experiencing a concrete injury there there should be some evidence that they have tried to sell the property and that their property values diminished other than the property hundreds but i don't think you're saying this but are you saying that if they had tried to sell the property and they got an offer at a low price the case would be ripe i don't think you're saying that i think that's correct your honor i think the set the statute would still prohibit any actual impact i think it would be so and so what you're talking to and there's no they haven't sought a permit to develop the property and been denied and the other allegation is they can't sell the property the way that they want to but they haven't tried so the actual the evidence the factual evidence of injury is is very let me come back to this again and then i'll leave it alone you say but they haven't tried are you saying that if they had tried the case would be right i'm saying that it's not clear from this record just no i think the answer i think you're right i think the answer is no and the reason that i think it's it's a significant fact is that we don't know that it's true all we have is one person saying he believes his property value has diminished and so that's why the factual record is insufficient to support the allegation that their pace is currently right because the property value is diminished we don't have any actual evidence to support it the property owner believes is his value is diminished that's insufficient to demonstrate a current concrete injury  another point i'd like to address is the council has argued that there's that there's no certainty in the record that the local governments willing gaijin the process again which could leave their property in endless limbo and that's legally and factually again inaccurate the it's legally inaccurate because if the local governments don't engage in the process again then the designations will never be knowledge and they will never have any impact if local governments did not take the of the court of appeals and c d c back and do something with it well then they're the rural reserve designation that they're concerned about would go away but factually and this again is not on the record the local governments have acted and they have sent a submittal to the land conservation so that might happen that's correct and that's the position we were in before and the district court did not find the fact that it was before the oregon state courts sufficient to prove preclude her from considering the case i see so so once l c d c issued its order the case proceeded and we are in a posture right now where the matter is pending before the d c and in order i assume will be forthcoming and i just want to go back to the the argument that it's that it's it was really really unlikely that any that these doesn't the when the re manned occurred and that the counties would consider that the designations again counsel stated that it was really unlikely that those designations would change while that may be factually accurate it's legally very significant because if it's at all possible that the care that the designations would change then that would that would mean that the district court would be considering something that was changing dynamically at the state level and in this case i think it is it's very fair to say that there is a possibility that would change but it would change because the county and metro are required to view the designations as a whole they're required to view the impact of changing one if it would be as if once a chair is removed and then the players sue because their likelihood of receiving a chair had diminished why that's accurate but the music is still playing and we don't we don't have any resolution until the music stops and they sit down and is the chair is the chair the do they get a chair or not and in this case we're right in the middle of the music so i think we need to let it play out before they have the opportunity to challenge the resolution ok thank you thank you save some time the springle investors i believe their portion was about twenty years and i'm not sure about the blooming crohn's but they are husband and wife and they do have a home on their real property your honour's we don't know when this process is going to come to an end your underlying claim on the merits what is that claim your honor there are a series of claims that the process was unconstitutional under the under the united states contribution  suspect there will be further litigation in the oregon court of appeals so from our perspective appellant simply face continued uncertainty and they want to have their day in court they want to have the merits of their constitutional claims adjudicated certainly the fa h i heard nothing from opposing counsel indicating that the facial challenge to the regulations was not fit for review those are typically ripe upon problem of the great delay sions i heard nothing about the one thousand nine hundred three claim which for its undisputed that for about five year period there was an acknowledged order in place so whether or not we think that the acknowledgment is the only thing that has an impact on the on the real property we had an acknowledgment in place for a period of years and there  constitutional deprivations during that time that doesn't go away because a future conduct we also did i'll just briefly point out we cited to r s one ninety seven one seventy five sub two for the impact of an acknowledged situation