laid up this way in your brief there's something in the intermingling of factual and legal contention which could you to help me at least characterize your arguments by reference only to the legal arguments you make which by which i mean assuming that we accept all of the factual findings made by the trial court what legal arguments do you have and mean aside if you would they deviation period that itself was responsible for in dimension that was responsible for the gaffe of many of the troops so i made a factual determination you seem to be fighting that factual from the original plan for them then it strikes me that the taking if there is one is the construction of the name of the operations of them in a particular way a comparison ought to be between the pre situation and the situation that existed when the d m was operating yet everybody in the truck were treated this case is always a question of whether the deviations a future in the prior supreme court cases nobody suggested that you have the property right in the hopper east of the dam particular way i think of the property rights is what existed before the  never raise in the corporal claims and the objection to the comparison between the creek deviation and coast deviation situation you never said oh well is not enough evidence here about what existed before the dam was replicated natural flow more or less do you take issue with that finding or do you accept that i think more laughs i mean it's well it did it i don't think it's correct that in a way that was not material version and post deviation the answer is no right you never complained about that because we pointed out that the prevailing deviation was rough and i'm not sure we have jested tried to strike all post and i know we did not do that and i'm the dam and the operation of the dam in a particular way so there has to be a comparison but we don't have the situation would have been with the dam and without a right right i think that's just a critical consideration i think for example if their land did not fit on the flood plain had never flooded before the corps completely changed its deviation pattern in a completely new way their land flooded all summer long for the first time ever when it never flooded before maybe that sort of operational claim at least is much closer to tak it's fine for the court to factories announce along with the fact that floodplain land that the whole person never raised that's the question and never raised right we didn't argue we get into trouble for the state law and when the supreme court referred to that issue they consider these are considerations which if preserved in the trial court would bear on the question of whether this is taking and so the question of whether the for service was not answered but the supreme court that's right but rigidly before this court i'm not to be arguing reasonable investment that the expectations but rather severity and pushing of your brief that you refer to when you allude to expectation we can always critical that this win was wanting already and that the increase was only marginal working for men and that makes this case different from the upstream situation where you have a reservoir occupying land a project on top of the land you have a traditional occupation appropriation remains a hundred fifty miles downstream the water released passes hundreds of property owners wind the banks of the river they're simply not singled out here for a different treatment there's no no evidence in the record that negative commissions land is any involved of a variety of actions by the army i guess it was a that effectively rendered somebodies ranch unusable but the variety was from bombing sometimes using it as target practice going on to the it ratchets of what and what the court said in that case in response to the argument that these really were separate individual the incursions is that we see no reason why the same policy determination made at the outset versus individual incursions that occurred during that period an argument that i think it makes us so setting aside all the other arguments just address that argument and why this case doesn't street is each year is a separate place and i don't see how that's consistent with what the supreme court's the supreme court said time is indeed a factor and so at a minimum you look at the fact that the impacts here were ninety four to ninety times that that fact not affected by the flooding because of the elevation of those properties  one of the experts yes yes we did that that didn't show anything about elevations it just showed we found this many healthy trees we found this many dead trees and it didn't indicate what the what the location was right for the elevation i do i don't know the answer that they will know what their instructions were i'm not sure that their instruction in this they testified today not the cruisers themselves did not testify cruisers did has to fire and he was asked whether he could leap construct the area that was cruise and he said if i recall correctly that he could reach instructor for the areas but he area since there appears to have been test mining that that was possible i don't recall that testimony on my understanding is it and i think the critical legal point you know rules twenty six and thirty seven inches  cases talk about the taking being the effect of building the pm an operating particular way i don't think that you can say well once the dam is constructed we have a property right and operation in the same way that  and this is different from the situation that would have existed if the d m were there first place that's the that's the place in fact but it has to be a comparison between the building of the in this operation compared to the situation that would exist the missions management put there would that if i understand the trial court's findings and what i thought to be the evidence in this case there was also no showing that there was any material and is correct or are that whole time period of this forest these are widows florist there was evidence when the inventory was done in two thousand two thousand and one that many of these trees were eighty one hundred years old there capable living did some of them to hundred fifty years old they had tried to under the authorised control plan which in one thousand nine hundred three until two thousand we had consecutive years of summertime growing growing season flooding that this forest had not experienced anything of this kind of for just let all had noted that this was unprecedented that it had a profound disruption upon the management area in that and it triggered what we had resulting in this basically catastrophic mortality one of the experts that indicated that this went from a river rain automated hardwood ecosystem to practically a headwater swab is the way it's transformed those trees had never had had this kind of inundation that they were subjected to that occurred in this series of deviations six consecutive years where there was over sixty five days during the growing season every year in many of those years it was even more where these trees had warm weather whether deoxygenated water stagnating  systems and that is what triggered the ninety ninety nine two thousand this massive brown out of tree stock and i think that the photographs that are in the record are graphic evidence of this change that took place  foreseeable before the complaints were received in other words in the one thousand nine hundred ninety ninety four period didn't didn't this only become foreseeable when the commission made the complaints in ninety understand the facts and correct me if i'm getting this wrong because this gets into the tree biology but i thought the evidence your evidence was that these folks especially could have withstood two or three years of excessive and lengthy flooding but the multiple years beyond that get a man so is is it the case that complaints made in  even though it's after two years of flooding would have been in time that if the court had acted then on those complaints to avoid the injury it most definitely rides on judge pricing  change to be made in that control play and it's going to be analyzed and what the deviation is specifically says the control play in certain each condition should be analyzed on its merits for sufficient data before the control in the in the water shit there was an assumption not defended and not reasonably made that the facts of the water dissipated and the state line that was never defended the sunshine they had found it was dreck natural and probable that the results of these deviations got water to this area raised the stage of the river there and kept it high throughout the spring into the summer where no drainage could occur from this area that was above the date in the in the record shows the river was above five foot levels record number of days above six foot record number in and just let  the warnings from the objections that come and see this is what is being done to this property you're going to kill the truth one and one of the forster's that testified mistreated zachary said this was like predicting a train wreck he was  helping make objections at meetings putting it in writing having them go the corps of engineers there were still time they could have averted this before nine hundred ninety nine two thousand and damp when it was too late destruction it was a massive brown now across a seven thousand acre area very large and then even beyond that there were still trees there were destroyed integrated one expert said over one hundred thousand tree eighteen million lost the habitat has now been taken over with invasive wetland species but an bush that has been aged that has grown up in the undergrowth it's been ages to this ninety three to ninety nine time period it's a mess in the end the people that enjoy this resource don't have what had to drive to the bottom of the hardwood ecosystem that's fairly rare now in segments such as this in this mississippi  yway and so that's why we need it and again we're asking that yes even the regeneration costs that's the only thing that we're asking that judge let i'll did not find where he tells us to a certain principal briefs said that that was in fact the correct standard from ridgeline with the legal analysis the spring board opinion did not change the legal analysis for the physicals i was rich one is still good  government under ridgeline that the cordless look is the government's invasion direct and foreseeable and is the interference with the owners protected property interests substantial that's where just let  anything it experienced before he pounded the head of bloods that destroyed the eighty million border beat up chamber in it so profoundly disrupted certain regions of the management area that the commission did no longer use those regions for their sarah was considered by the experts know it and information was not considered by the experts those i asked to god people on the ground were never used by the experts they did not have the information they were used to create the the material is as i understand it as i looked at the record what kingston supplied to paper was lists as saying this in this particular area these were the number of helping trees these were right these are the maps would not show you other then show you the boundaries of each of the five are as they would not as the united states has tried to maintain it does it would would not have had the information on these maps that they claim because one of the cruisers we did testify mr livingston explained very clearly these maps were to guide the individuals in the in the train its actual directions they were not putting spots on these maps according to mr  areas were subject to investigation at that time stamp that would in it's all really not help the united states go back to it in reconstruct what would have helped and they could have done if the stakes were flagging and the plot number on every stake was put into the ground they were given the full report from key would do with all the information that was handed to the colonel with the corps on  fourteenth of two thousand while they had it if they wanted to go verify anything from that cruise they could have to cut it was done just a ball or in there were stakes in the ground everywhere where those plots were t those eight now have piled up and pieces of paper as mr livingston testified could not have had every one of these plots and they didn't retain them because they didn't think they needed them for any of them is what you're saying that the areas th nature and they wanted to complain about this but those maps were not what they thought they did and they would not have had any additional information that was you wrote in the end to each of these plot locations they did have again what was provided from the cruiser the cheap cruiser that testified mr livingston he said all the other cruisers were available they were all still available if you tell them all the directions that the cruise and the united states areas and the other areas and i find that the elevations in the other areas to some extent exceeded the elevations of the controller is that fair to right certainly and i think along the river itself there may have been some places that did yes solve the problem to which we're addressing ourselves about the cruise maps is that if some of the areas that were cruised were at the higher elevations that is elevation similar to the control areas then first the first timbering and tori was of six thousand nine hundred ninety eight years and the second was of the surrounding border area but they took the whole part of the compartments and into the cruise all of it whether the elevation was lower or higher than to control areas which you mentioned did have a higher elevation where they generally were not subjected to except the highest maybe the highest of floods but otherwise out about the purpose of the maps he said they were just for the cruisers benefit to know where access points were where any creeks drains were slews were to give them an idea of what the balladry of each area would be because when they could just more coffee to line the cruise or what pot was on the ending or the beginning of each line because it did show a plot of information for the ending in the beginning it showed alliance your honor in the species of timber to change within just a matter of even six inches but the band of not all overcome but it was largely in a zone of about two and a half feet across this management area in those little ones that were there's stage will facts to support what judge let are made in very specific detail findings that follow the ridge line analysis we think that there's just not clear error that's been proven for any of those well your honor not the way it was raised stateside two parents were properly well i think that they properly raised that hit would be a relevant consideration and i think it would be relevant with a very short consideration because arkansas water law the divorce forms case that we decide the arkansas supreme court has recognized that and whether the rules whether it's natural or whether it's reasonable use or whatever the you can the riparian doctrine a very short consideration of that issue your honor because i think the law the law which was not breached there is very clear that the game first mission is repairing over would not have like to touch other cruise issues quickly at the beginning here mr livingston was the head of the cruise team he looks like he did a little proving what he said was are you able to identify how many areas you cruise where you started your lines i might feel that approximate where you i i think it's unrealistic to nine years later that you did anyone else have a better understanding our memory of this mr livingston but i guess the question is whether the government should have asked the commission to reconstruct the crews there i think to read these rules twenty six and thirty seven put the burden on the commission to provide the data underlying tracks the reports if you compare what they did here with respect to this cruise with respect to what they do with cruises that support their super sales and the record we predicted i won't belabor it but it's clearly different they keep the cruise maps they are the cruises they don't mention this cruise in two thousand in two thousand and one there is no cruise maps an thought it's not possible after the fact and the timing here is cruising in two thousand they sue us in two thousand and five trials of two thousand and eight the cruise nav the missing cruise maps service closer to try out it six or roughly what areas were where crews and the crews maps in your view would have shown what incremental information that the fifteen hundred acre  and said well you can draw a line between those and we can go back and look at the trees along that line is that is that the pertinence of this information i think there's two points is pertinent to whether that area would have flooded during the deviations and how quickly and whether there was pre you think the cruise maps would have put you in a position to contradict the district quit the evidence on which the district court found that the person and sex were not a significant factor in the area as a whole it might have because we