airport as i'm sure the court is very well aware we are here today appealing from the imposition of liability in excess of ten million dollars against the airport arising out of an inverse combination claim d aircraft over flights there are three primary issues that we are raising on this appeal first and foremost is what we believe to be the total and complete lack of federal subject matter jurisdiction for this just like whatever we may think of the in nevada supreme court's right rationale or its analysis of federal taking cases in several instances a night case the court makes their state constitutional interpretation right yes i cannot back away from it but if this court doesn't have jurisdiction it goes back to the state court and there are significant statute of limitations issues right lossing out of this with understand that we've got so little time on this rather complex case that no i understand correctly then that you agree that you're bound by sis like you're really throwing your arse on the altar and terms of the related to jurisdiction is that right no i'm not going that far either i am bound under sr lack to the extent it interprets the state constitution i do not believe this court is found under sis a lack on its interpretation that federal statutory scheme and attempts to create a five hundred foot level let's say from the ground up creating an absolute property right to the extent that interferes with the navigable airspace of the united states and specifically in this case the right to safety takeoffs and landings which go below five hundred feet under the statutory scheme the federal government has preempted that from the states and this court is not bound  statutory scheme in the preemption principle although it ruled that the air space you know the utilization of the airspace over the property groups was tolo and so frequent the cause be tested it destroyed the use of the property it did not and anyway question the federal statutory scheme and once again congress has dictated that the public has a right to fight and that right why isn't isn't an exception to the tortured the nevada supreme court's analysis made the i have to live with that and i do of course live with that but we have other issues here today and if i can i know as i started my initial comments the  if you know someone takes corporation versus edwards says that proceedings in quotes related to bankruptcy under thirteen thirty four a b includes causes of action owned by the debtor which becomes property of the estate such as state breach of contract actions and on this case you've got the debtor owning the property you have a major piece of litigation why isn't this related to that it's a post from ation to you and keep in mind that when these debtors are the debtor in this case the aged decided they want to pull this into the bankruptcy court because of the problems in the state procedures a plan that already been confirmed a plan that provided for sixty five million dollar assets they said under oath in their plan that that building that property is worth five million dollars and he sold for that amount of money there was only fifteen million dollars in debts that's a fifteen million dollars post confirmation question there is no and there is no reference to this litigation in the bankruptcy plan these whan donors wanted that litigation for themselves quite simply this litigation was not necessary to the plan it was not necessary to the funding of the plan and it was not intice of pay to the be part of the plan you have any authority for i hear what you're saying but the post confirmation principle that on post confirmation standards it's a different application to the related to a doctor it's a much stricter application and if the property must be necessary to the implementation excuse me the implementation and the execution of the plan we cite those cases we stand by because it is clearly as judge jones i think knew because he was sitting as a bankruptcy judge at that time the post confirmation analysis is significantly different than the pre con from ation analysis what he did was mix the two because you know being in the individual that he is he why did this these individuals to have to write in their day in court he didn't like what the state court was doing although i  this case if the landowners had not exhausted their state rights and in this case allow the case to go to term which would have been the ultimate dismissal under an r c p forty one e the case is not right where they have to apply to the county or not that is not the right this issue before this court the rightness issue before this court goes to the exhaustion of state and then straight even state judicial remedy saying if you're basing that on federal law right judicial remedy you must exhaust those you just remedies in the context of an inverse condemnation action if if you're proceeding under federal law i would suggest even if you're proceeding under state law to get into federal court on a state law under any of these cases it's a pen central analysis obviously we've lost on that issue but that again doesn't go to the jurisdiction of this court the rightness issue in this court is the exhaustion of the state court remedies these random winners look what they've done they sat on their hands for five years they got to the time of the state or just a state judge said i'm not going any further i'm going to dismiss this case they then to the bankruptcy court and ask him to list a non existence any he says the state doesn't exist but i bother because i don't want to see your case dismissed so i'm going to lift the stay so it can be removed this case can be removed bankruptcy court today's before this case was to run and to be exhausted it's removed to federal court on the motion to remain and one year later the county raised the jurisdictional issues again what happens if this becomes the norm a landowner files court state court decides to someone like the judge or whatever he decides thought of for five years then runs over to federal court on the eve of the dismissal has because they stand on their rights that's correct but you know a lot of the time of the trial i'm not so certain i would have got to get some system like this came out less than a year ago this trial should have occurred in  there's something sinister in all these decisions and that's the concept of constitutional stoppel these landowners negotiated a deal with the county to build a building thirty eight high five hundred one rooms that was in accord with the height limitations that were available and what the f a a would permit to be built without hazard determination in those form seventy four sixty they built the building occupied it for three years conducted business then decided it wasn't going the way they wanted it in filed in first condemnation action government can't operate that way if they hadn't checked with the high things were allowed to build they should have filed that objection at that time there is chaos if landowners were allowed to make a deal with the county build what they wanted or the municipal government the state or whatever bill that they wanted and file suit when they saw that it is impossible for him in this a pallet he an airport  divest the property owner of his protected property right to his usual airspace rather a landowner may still make a claim for compensation for the government's use of that airspace citing re ask mattson and of course always also the misunderstood there was great cause b and their progeny never created a right in the landowner up to five hundred feet the state supreme court has done that and again to the extent interference is forty nine for  federal law pre amps all such state constitutional law decisions let's just say they're worth fifty cents a like decisions rendered in the fifty united states your argument is that the federal statute acknowledge that there is that right of flight just like there is a similar right with the having a easement thirst amply saying you've got to pay for it they don't say you don't have the right and they just say this is a private right it under under federal law if your position is probably right on under state law we have a whole different regime here and the seems it seems like the state court is saying we don't have any question that the planes can come and go there is that right in the federal government that's right in the state government but if you take what we the state supreme court says is a private property right you could run these planes in and out of there you have got to pay for it we're in your jurisprudence is that to counter veiled so that we can do something with it to the stand your fears that the public domain as defined by that statute can do something with it you're not bound by their you but this is an issue that we probably shouldn't be discussing here today because jurisdictionally i should be quite we understand you have some rice and i should be somewhere else and i'll take that up on the state supreme court course in the context of a statute of limitations issue right  are similar you see the court has observed many of the similarities of the facts the some of the most important ones that i wanted to highlight would be the fact that it's the same runway same ordinance same date of that's why i just had found it recently but in jack of which the same argument was made this is going to have a horrible disruption to the air transportation system of the united states and to the state of indiana and one of the arguments that i  counter to that is that while the state of indiana and the air transportation system are in good health and in fact jankovic court held that the federal there's no conflict with the state constitutional scheme in indiana of protecting their space rights with the that for example typical piece of land that the statute does not regulate construction up to five hundred feet and so and that situation the state law right could go up to five hundred feet if there was ever a conflict of someone going higher than that it's to ask a question counselor to it again this is assuming argue window that select control's with deference to your code here opposing counsel or for a moment but if it controls and we get to the issue of compensation it seems to me that insist like the state supreme court said that at that point variances and if you will after the fact really do have an impact on the amount that your clients are entitled to liking here specifically at eleven twenty eight page eleven twenty eight the court says although evidence regarding variance procedures is irrelevant to establish whether a property owner is entitle to compensation for regulatory per se taking such evidence is still relevant in calculating the amount of compensation due evidence of future we felt we were bound by social like would we not be bound to remain and this to the district court for further hearings regarding whether or not the variances are available where there would be a requirement that it be sent back to the parties to go through the procedures if you will to see whether variances are available and so on before the court could in fact determine the appropriate amount of damage counsel if the hardest issue here of course is whether there's been a taking it all you've got the federal regime you've got the state regime but if you assume argue wendell that there's been a taking because the nevada supreme court says it so is a very difficult different issue as to what exactly has been taken here and what it's worth and as i understand this is no bad a supreme court opinion they're saying at that point variances are very much  a factor because if they can build up to one hundred fifty feet or two hundred feet there's a whole lot less to take and then if there is less now obviously both parties will argue that well you can't because you've got these planes coming in but we don't know that that's really not before us we have no information that would enable us to make a determination if one assumes that there is a taking what the appropriate amount is because of this language in sicily do you agree  issues you just raised relate to our cross appeal and that as you mentioned specifically the hundred fifty foot level of the which is called the horizontal surface and we do have testimony by the principal planner of clark county that clar but those two are in the runway protection zone and that's the zone where clark county imposed a passenger facility charges to acquire sixty million dollars because mister the airport director mr broadben acquire that runway protection and that's that northernmost corner of the property and so that's another one of the issues of the damages and i do think that there should be a remain for determination of that although we've provided if the same  per dollar figure on the property applied what that would be but again this other issue about the airspace above the horizontal is not defined by the court and it was never reached because the court assume that you could never get a variance about the five hundred foot level but the market both appraisers both for the county and for c h testified that the market recognizes the highest and best use including probable  a and one thing also i thought of another part of an answer to your question about the amount of damages there actually isn't a dispute about the amount of damages they didn't say for example judge jones didn't properly weight appraisal it's about a four point eight million dollar value that he put on the air space so we're talking about remaining for additional damages we're talking about the area above the one hundred feet not something that was disputed the county didn't dispute it seems to me that even under them into nevada state law the supreme court said that what you could do with the property and by that it meant with variances and zoning changes of one kind or another it would affect the amount of property that's actually taken it seems to me that that's in that ruling if we're bound by the good we have to go i mean the bad we have to get the good perhaps and it seems to me that's something that the that the trial court would need to full just compensation and so i've mentioned the runway protection zone which again is analogous to that grid situation of the approach to the bridge judge jones didn't allow that but if it's necessary for this airport is that one way protection zone and so that's another does is this court's decision of in re pegasus gold and looks like it's page eleven ninety four and the and the comment that the court made there is that the court of claims now that's the one that's the ninth circuit and which side of him free three ninety four f third eleven eighty nine and i'm going to page eleven ninety four is the pinpoint site and that's where the court said that matters affecting the interpretation compensation now it doesn't have the explanation about that but if you look at the numbers and we do have in the evidence you can see that those were the post judgment interest rates that apply and they determined that was just compensation so as a minimum under the  case the post judgment interest would be just compensation and also partially goes farther and says if you have evidence that the landowner would have invested in recently somewhere property as we have here because they were in the process of a phase developments that we know that they wouldn't even extended their zoning extensions and so forth as far as they could then you can use the land appreciation value and so that is allowed under parsee and at a minimum under since like it should be the post judgment the only reason we didn't get that is because they didn't file an eminent domain action at the when they knew there was a taking content that the district court of fly the next three wire with a relocation sufficiently to try and attorney fees then under that court of federal claims to paint opinion of asprey and i wish the supreme court of nevada in a callin case also recognize that contingent fees are reasonable and in our interest kind of nation actions in fact there they're listed by authorities as being one of the quintessential for that isn't one where i'm sorry but they're one of the most typical contingent fee type cases long with personal injury as  first kind of nation and we have the evidence that the contingent fee that our firm charged was below the market price and that's because we were linked into some other transactions that were involved in the bankruptcy but we need to do that and so we asked the court to affirm the ruling on the value of the airspace that was taken and to reverse as to laugh so as to allow the full just compensation for the taking of the runway protection zone th there has been some discussion on prejudgment interest or i want to remind the court that there was a twelve year delay in this litigation and the county has been assessed prejudgment interest for the entirety of that time that the bad statute is clear past two years you've got to show the delay is the county's fault there is no delay in this case that is the fault of clark county the landowner sat on their rights both in state court and in the district court because initially judge unfair and uncalled for the last thing i've got to stay in the very brief time that i have is that there's been a reference to variances in the horizontal zone in clark county that's the hundred foot plane that goes all the way across clark county anybody that's travel to las vegas realizes that the entire las vegas strip is highrises that there are thirty forty and fifty stories high there's anybody not think that that horizontal zone has been penetrated again and again and again you can apply for variance and in response to the court's question as to damages there are variances routinely granted and that is an issue that if this matter is remain added that would have to be decided by the this recording we named would be appropriate although i want to stress under no circumstances i want these comments to be construed in any way shape or form i'm waving my jurisdictional argument i still think that's the heart and soul of what we're arguing here today and i just read outside thank you