k i will drill down quickly to the issue that is is really are on point here but just in broad strokes what this case involved technical issues in an expert testimony from coast to geologist there's really no dispute and itself evident about what happened in terms of the phenomenon on the ground and that's that's apparent in any of the the aerial photos that are in record our principle upon the issue in the state law a nuisance claim in the intent element of that claim and it did so in a way that was completely contradictory to two prior rulings and articulated how that intent element would be understood and the specific evidence that would a stablished that element the decision vacating the jur verdict does not in any way identify or refer to some insufficiency of the evidence that was presented to the jury well assigned it at the district court concluded as a matter of law that the town did not have the ability to control the jetties having ceded that to the corps of engineers wasn't that the basis for its conclusion that intent could not have been found by the jury controlled the pallor of good yetis or mitigated it or whatever your theory is that would have would have created a question on that point as is often the case in in  fact is that the jedi's perform an intended function which is to stop the flow of sand because that's what keeps the channel open but in doing so it also starves the western shoreline  so in those cases the your remedy is right there in front of us the the sand that accumulates on the east side of the jetty is is on town property i'm sorry can i just interrupt you're talking about remedies is do you agree that control is a factor in nuisance law or do you not agree with that i don't agree that it that it must be i think in this case i think evidence both i don't know don't know but i'm sorry i want to be clear i'm talking is it legal rules i'm not interested right for the moment at least in the facts of the case my question is do you agree or not that control over the nuisance itself is an element to show some is responsible for new sins or you making a different argument that says control over furnishing a remedy is adequate so in other words even though they can't control the creation of the nuisance are you trying to argue that the fact that they could control the remedy meaning they could have carted loads of sand is ye that's that's correct the the ability to provide a to abate a nuisance particularly when there's knowledge of the effects of the nuisance and there is the capacity to do so in about it the failure to mitigate is  that the the controlling effects when you have the ability to do it and you have knowledge that it's occurring and and you on reasonably fail to do it establishes that element so could you just give me your best case for that proposition that control over your ability to control and a bateman of the nuisance meaning you can you see the ill effects it's having and you can cart sand around what is your best case the state of new york versus sure realty  which comes out of this corporate indicates that a landowner is subject to building for her either public or private nuisance on its property on burning of the new sins and having a reasonable opportunity to a the proposition that when we say abating the nuisance means actually stopping the nuisance from happening in the st place or just providing a remedy afterwards for what the ill effects are i  think they're one in the same the ability to mitigate and yes that's what i'm trying to probe down is do you have a case that says that those two principles are in fact identical and inability to mitigate the consequences of the nuisance are the same as stopping the nuisance in the st place i mean i could have made your nuisance right like i could personally i have nothing to do with you and i could cart you know will barrels full of sand over there and fill up the beaches but that doesn't mean that i have a responsibility to i'm just trying to think what's the difference there right but here the town authorized and is retaining that of the mechanism that the of they don't have the knowledge decontrol the jetties you're saying they have an ability to control the consequences of the jetties right to it to mitigate the effects that's right and that's what i'm asking you is what your best source of the failure to act but let me ask you this i mean i understand that based the before the corps of engineers appeared on the scene this was the town it it basically ceded all authority to the corps of engineers and gave them carte blanche to decide how to maintain and use the jaggies you're saying that you nevertheless have a responsibility when the party you give that cede that authority to when you give them vehicle that authority and they use it in a way that creates this problem for such a complete ceding of authority or did i overlook something you know but i don't think factually what we've seen in the party if well because it suggests that but for the immunity that the united has states has your your relief would be against the party that's causing the nuisance not against the party that is into baiting it but you know you can't sue the united states if the court is right about that and so now you're trying to sue the town and i'm just trying to understand how with the poor the corps of engineers has complete authority over these jet these you can sue the federal takeover of the jerries was the the sole purpose and the limited purpose of having a navigable channel an easement the document that conveys the easement rights to the the army corps is has all sorts of reservations of rights to the town to continue to use it responsible for that property to the extent not interfering with the with the federal government's responsibility to maintain a navigable channel so nothing none of the possibilities that are available to the town in any way interfere with the army corps navigational responsibility the channel is open in fact the town's failure to to distribute that sand is what causes the showing in the channel because it is so excessive created that that sand has built up and goes over and into the channel but the press the point is that the very clearly in the in the easement documents there reserved rights that we've the town free to do use a joy that property as far as it can so long as it does not interfere with navigation and nothing nothing about the mitigation potential that exists for a bypass or some other remedy would be in conflict with those navigational responsibilities  which was a premises liability slip in for a case that dealt with the relative responsibilities of a dominant and survey an easement holder and for the reasons that are in the brief i submit that was a complete misapplication of this court's directives as to how to treat those situations as it relates to a rd party for one thing that concerns a rd party coming onto the the eastman area but it clearly says that you look to the east in the circumstances of the grant to determine who would be responsible and it's specifically judged route raggy to one of your earlier question well to the point that both the dominant and servian owner can be jointly responsible depending on the circumstances and i believe that this circumstance is here with the town affectively commission the army corps to undertake this project and retained its own rights to use the provide a remedy would be an instance where both have responsibilities with respect to the army corps or the united states briefly i would just submit that the the exception to the waiver of sovereign immunity under the federal tort claims act here was correctly identified by the district three by three paradigm created mandatory obligations that your army corps conduct the feasibility study that had its roots in a won that was formally  begun in two thousand and three and is still not complete record is replete with admissions by the army corps of its utter failure to move this project along all the while the properties are proceeding in which inning houses are at risk of falling into the ocean and there is an utter lack of compliance with the on the corps own regulations as well as the requirement under the cost sharing agreement i just ask you i thought it was grandfathered in i thought this was grandfathered in wasn't there i didn't see any just spirit in the record that the scoping meeting happened in september of two thousand and six and the regs say the new three by three by three rules said that they only applied if the scoping meeting hadn't already happened right but there certain milestone but hang on i say and i wasn't aware that regulations had spirits i thought they just had words right and if the rules say it doesn't apply based on certain dates are you suggest that even though by its turns it's not covered the spirit behind the regs would supersede the words of the regs i'm saying that it can't be read to mean that by by achieving some interim well that there there is then known dead why can't it be read that way because the because you don't want to be read that way or because there's a text that suggests it cannot be read that way i mean i just think if you're looking for something concrete because i thought it was very clear and hyper technical perhaps but it seems like it was saying that if the scoping happened before a certain date these new rules did not apply is there some language that contradicts that reading i think in the same documenting there's a provision of the w r d a which provided a four year  term for these projects to be completed and that was from two thousand and seven which gets you to the the two thousand and eleven as as the cutoff date i'm surprised i think that if  going forward and and according to the discourse on calculation that three by three paradigm would have been violated two weeks after the decision with the issue  that's a matter for congress if congress doesn't get what they want this service free to make their own arrangements nonetheless said steinberg addressed that claim and correctly held that it was now the discretionary function exception applies unless there's a mandatory duty which leaves no choice and on last decision is not grounded in public policy is one is the public policy inherent in the exhaust any admonition or brevity is under a claim under the three by three paradigm but if we turn to the three by three paradigm and exams feasibility studies where is ability  who was the head of the project and that was at a time when there was no claimant that the three by three power and anthony's you are and his deposition testimony before we even knew there was a claim said we had been grandfathered that  three as grandfathered and they refer to it as having been reached so there is no mandatory duty by the clear terms clear written terms is ability of the three by three paradigm it doesn't repair them the town didn't as as mr hill said effectively commission these charities after congress directed a survey of the area to determine whether it was appropriate  for control of the inlet the army may our army made a strong farewell recommendation to congress based on national security safety industry or benefits to the community overall  think we were more interested in your legal argument than the fact that in fact the initial recommendation was now when you went back to congress send it was reconsidered and then you got a recommendation and yes i mean that that's what well the plaintiffs misconstrue what intent is here there's three different ways you can show it intent really only two in the coke park case and two ways that really weren't even  substantial interference and still continuing to engage in that conduct and it tell wasn't doing anything here i think your honour's understood that based on the questions that you were asking of mr hill jetties aren't conduct the town is operating now and this idea that that there's some reservation to the town to be able to do something at the inlet in terms of controlling the jedi's is really plaintiff's argument that  remedy should be provided without actually the town having any responsibility here well but for your having ceded the easement ten it's all its terms to the corps of engineers would it be the that that congress would always only reconsidered its opinion on the takeover of the n let if all of the structures would be ceded to the united states and in order to do that as a pass through the town took technical ownership but never had any control over these jetties it was it was essentially a pass through that's what the historical documents reflect so you know this was  most of the plaintiffs didn't take ownership until the ninety's or two thousands so there certainly wasn't any intent to interfere with the place plaintiffs use and enjoyment of the properties and nothing at the time no awareness of any conduct causing interference anywhere close in close proximity to the time period which the town you know was involved in the transfer the plaintiff mentioned two possessor of land is not based upon responsibility for the creation of the harmful condition but upon the fact that he has exclusive control over the lands and the things done upon it and should have the responsibility of taking reasonable measures mentions is does them no service either essentially that was a case where there was a deliberate installation of a drain pipe that the verge of water onto the plane of properties there  plaintiffs there are beach front homeowners they can buy sand and bring it in put it on their properties i should mention also it's in the record these properties are about a mile down the beach not you know immediately the matter in which the jury charge was submitted to the jury in skipping the negligence portion was something that the plaintiff had actually proposed in this the court granted their request  to do it that way in terms of one of the case the court has the discretion to change its rulings but actually didn't change any rulings here and i think that the court absolutely got it right and made a legal determination during the trial that it's prior rulings that the court and obviously we wish that the  court had made the rulings earlier but we don't have to go through a trial on this but it made alert legal determination a trial that was appropriate and based on the facts and didn't conflict with any any prior with respect to the moral of the case this was not a situation where the district court merely articulated what might be the law it's specifically and this pertains to questions that that the defendants could maintain the jetties without creating a nuisance or trespass by remedial actions meaning that they could avoid the impacts th plaintiffs allege that the town owns the land and the judge is that the town retains a reversionary interest in said property and the army corps maintains the jetties pursuant to the license and easement of the town the town is also agreed to hold and save harmless the united states from claims for damages that may occur from the construction remittance of the improvements furthermore plaintiffs allege that the town has been in frequent communication with the army corps regarding the jedi's and result of conditions such actions constitute intentional conduct so that evidence was presented to the jury if it was credible if it meant what it said that was for the jury to decide but well except that when j acknowledged that he had thought it would be clause that will to suggest that the town can maintain the jetties without creating a nice and she quotes that but she says then that the evidence of trial had convinced the court that the town simply could not and did not exercise control over the jetty sufficient to impose liability now you can argue to us that she's wrong in that but i'm not sure why she's not allowed to say in light of hearing the trial evidence that there there was not sufficient control i mean i'm just asking about her ability to alter a ruling based on what she heard it trial and got a fuller again to the point of whether he would he to provide a mitigation but the failure to do it there was specific reference to the fact that in fact a program had been developed by the town own natural resources director to implement a sand bypass plan it contemplated doing this on an annual basis with five dollars to ten thousand dollars cubic yards being done a year  the natural resources director for the town said we believe it is feasible and worthwhile to do that in fact a pilot program for that was was presented and then cost by the town board but but judge seibert said that as an example of evidence of intent being demonstrated through the failure to act in the summary judgment decision judge seibert says for town is law for its actions and omissions so that these are not you know hypothetical discussions of what evidence might constitute the intent element there is very very evidence that was articulated and presented in summary judgment and was said to be what should be presented to evaluate was presented to a jury to evaluate and it made its determination so mr stern said that there really wasn't any the problem the ability to provide a remedy and the failure on reasonably to do so and that articulation was not plucked out of mid air it's from the pattern jury instructions are for private nuisance