for the sake of efficiency i'll call the case since they're consolidated and we've got two case numbers but take your time in coming up here we have consolidated case number fourteen three zero zero six of birth below versus united disputed the government's initial decision to dredge them is to go instead of installing force or protection which would have prevented the need for dredging fail within the discretionary function exception units we don't challenge that we agree that the government had the right to make a decision on which way to go either dredge or install for so protect our case very clear that acts involving mandatory compliance with federal regulations the statues or rules do not satisfy their discretionary function exceptions requirement of judgment or choice and particularly where statue regulation or policy requires the government to act in certain a certain way there is no discretion that's very well established so in our case that the government did with respect to the mr go was discretionary anything that the government did with him is to go with his question area that's not what this court said in the robinson case and that is not what the law says or allows the government to do mistress the mississippi river gulf outlet which is called the mystic go was built from night in fifty eight tonight in sixty eight and he was built as a means of allowing ships to go faster from the gulf to new orleans it is similar to the houston ship channel that allows ships to go directly into the heart of the city and that charlie's forty miles long or was five forty mile long miles long because there's no closed and it was originally built to be thirty over tom over time it grew to be over two thousand feet wide on the surface now what happened is that when this channel was being built back in the fifty's whatever they were digging in from the soil to build the channel itself was being deposited next to the channel that was being created and this soil that was the last day or eventually over years became le used to prevent flooding of the city now what happened over the years was that this surface of the mystic go through wider and wider two thousand feet weaken the levees and he destroying these arrived what happened was that because the surface of the channel was so why the waves that were created on the channel itself became more intense and attack the levees themselves and also because the wetlands that separated the levees from the channel itself had been destroyed they attack when the le was greater because it is like knowledge that wetlands up store water when there's some type of hurricane or any type of system of that nature so in our case we again don't say that the government did not have the option of dredge in the means to go over time to keeping up with the oil instead of installing for shore protection meaning rocks on the side to prevent this salting of the mist to go which is something that the government had considerable many years to do that the government decided to dredge to keep enough of them and that is and what box cutting means is that the dredge instead of dredging the bit in the slopes of the chad as they're supposed to what they do is they dredge the very bottom creating a square allows the the story of that is above to fall down and theoretically is supposed to create the slopes essentially they are creating is  that as far as you've explained in your brief but but what caught me was exactly what statute policy or procedure did the army corps violate in choosing this type of box cutting and how did that cause the the you said that caused the damage but there was exactly the same allegation in robinson because they didn't put the rip rap or whatever was on the edge of on the edges of the channel that cost the wave action and the flooding so well know when robinson the allegation that the government should have put the riprap on the size of the channel right that was the only guess we agree with and said look i understand that we don't say that the government did anything wrong by selecting by electing not to put the river up what we're saying is that because they didn't do that and then went to dredge understand that i mean i'm sorry if i led you on the wrong track i'm asking you i said after reading your brief i still do not point me to the statute the regulation or the procedure that specifically says do not do box cutting well yes what the what the statute says is like you not supposed to do three or seven of the coastal zone management act requires the use of a federal agency be consistent with federally approved estate management plans to the maximum extent applicable now let me back up a little bit here because the federal coastal zone management when he was adopted by the federal government in seventy two socially was a way of allowing states to control the activities within the coastal zone a small as the laws and not by the states for that purpose were approved by the federal government in this case the louisiana coast and so on management was approved by the federal government in the in the we see on a government issue certain rules and regulations that are yes but inflecting the method of judging i take it this box cutter edging is one method but there are other methods one could also employ isn't that discretionary function a discretionary decision that the army corps of engineers drafting as opposed to some other form you know because because not everything is discretionary you can say that everything in the world is discretionary because the government can do sharpen a pencil a certain way there are certain things that they cannot go beyond the  regulations the regulations that they have to do it in certain way and that's what i was going to address right now that louisiana coast to use guidelines and particularly one point seven says they have to avoid the government has to avoid damage to what land where were the well lands here what the what remained on either side of the mr go as it widened does one has to go it's no close it's because they wanted to protect their wetlands the corps of engineers had knowledge that the mist to go was causing damage to the wetlands of louisiana the congress took this issue that passed the law it's funded what do you say with the fact in the in the previous katrina canal case says the district court recognized that the design for mr goh express contemplated erosion from wave wash and did did not provide for armoring the banks the court held that these design features were shielded by the discretionary function and the plaintiffs didn't challenge that on  appeal logically therefore and i'm not talking about the armoring the absence of armoring and the resultant erosion cannot have violated a mandate sufficient to negate the first berkovitz problem so if you applied that to the decision on dredging the the district court recognized that there would be  of this with the foreseeability that there would be erosion in the channel and therefore some destruction of wetlands and they were doing we have to assume are we how can you say that they were not of can not consistent with state law to the maximum extent practicable in other words could you build a channel without destroying a few eggs a few yes but not as much as they destroyed it basically destroyed all of that entire area i mean this china was five hundred feet wide and it grew to over two thousand times and how much of it were they dredging each time they were getting two thousand feet well you know what happened what really happened is like i say keep growing they kept growing getting closer and closer and dredging closer to the new they knew it  so it was it was it was a problem that once it started the couldn't stop it they continued to for the purpose of maintaining that depth of of the channel so that ships could go through th discretion about how to accomplish something and must avoid means that it is understood that not everything will avoid destruction of wetlands  and he says the term consistent to the maximum extent practicable means fully consistent with the enforceable policies of management programs only less food consistency that consistency is prohibited making within the context of the discretionary powers restarting in such agencies in other words this data was specifically intended to take away any kind of discretion that the agencies had pursuant to that language environmental department of the interior with i'm looking to you in other words it does refer to coastal management yes ok yes a specific this is were specifically directed i think that the government was really addressing what limits the federal government maximum extent practical in in the coastal zone management act itself but plaintiffs still need to point to some language in the louisiana coast or use guidelines themselves that would be a mandatory directive of the sort the supreme court talked about in berkowitz and they haven't done that the guidelines seven o one that council referred to is a list of factors at the core that any federal agency is directed to consider when they're determining whether to undergo a federal activity i mean so there are signs to the kinds of factors that  court looked at in the andersen decision when looking at the army corps regulation concerning drudging and so i think that they've just had failed to point to a mandatory directive here that would distinguish this from the discourse decision in robinson and as i court well all of that is true of course but a certain standpoint and i guess the question is do they have anything in is more explicit and overcomes the discretionary function and if they did then i suppose it would be up to a jury to say x percent of the erosion or whatever was caused by be inappropriate method of drudging and why personally it was caused by a lack of for sure protect if you are if we are outside the discretionary function exception but i don't if they did but they all have language like maximus that practical or to you know to the extent to minimize the kinds of sort of generalized cracker tory language that doesn't provide prescribe a course of action at the core had to take it's not i mean i understand what the the print court didn't go bear but which we call gobert in texas i don't know if that's all right you know but anyway i mean the facts in butler are so extreme and it looked to me as if it really would have qualified and under gobert so that's why i was asking this court and robinson said that where there are sort of scientific or technical errors yeah but the gobert were that the government had done some dredging near or near a popular beach off of gulfport mississippi and that after they did this stretching it created a trench that was not marked to and over a period of ten years about fifty people drowned and it would be up to three or four people at a stretch every year with with regularity and they would never mark the channel and then when the locals tried not the channel but the the whole and when the locals tried to market the coast guard corps whoever it was said oh no you can't do that that charger is i mean it was truly egregious that's why i was you just sort of waved it off in your brief and so free go there can't be any good but i'm not  really dubious about that but i don't think we've the court needs to decide as service as of about the case inside this case because what we really do have here is a decades long management of a giant shipping channel and the flood control projects with which interacted and so those really are the kinds of decisions that are susceptible to policy analysis is this court held in robinson and we got the robinson decision and i don't think the plaintiffs have done anything to distinguish their you know their claims here  plaintiffs in robinson talked about as a district court held this decision here they talked about what lens lost they focus on that quite a bit they talked about the widening of the channel on the decision to dredge there was expert testimony that the soils in the mr go were such that there was going to be this massive eros you know regardless of the type of dredging that you were that that the court would have implemented so i think leaders are really dredging a regardless of the existence of for your protection how do they just say it's sandy soil and it'll a road well i mean they they they said sandy soil and it will erode i mean the force or protection you know address that now was not until the eighty's and ninety's so the district court said you know if the foreshore protection had been implemented before the eight they do any type of operation as stated and made clear in the butler decision so even if the court were to say that well the regulations that i cited to are not applicable or whatever the government still has a duty to act we do care whenever they do something and in this case we are not only that they violated the regulations but they also said that they acted negligently and did not follow due care when they what they dredging over the period of time that very completely swallowed the discretion discretionary function exception i mean you're always saying that they didn't used to care in those cases you're saying you know you did this or that and they're harming i mean that's it's a negligence case and the corps of engineers didn't deliberately flood the whole city and weren't so of course it's a negligence case i don't see how that helps you well no i mean but when they were you curious negligence that's what it is  here for negligence yes well the whole point is that there's a discretionary function exception to the general rule of liability and the general if i will use negligence i understand why you're saying negligence or somehow an exception to the exception what i'm saying is that the government can elect to do one thing or one method over another but was there to do it that certain method they have to exercise found that they had not exercised due care over time and they have failed to put it to post warnings and things of that nature to alert the people who were slim in there that this was a dangerous condition so duped butler is controls i think this case with respect to one of the two allegations that we've made that the government acted negligently and with respect due to the other allegation about the statues and cells i think one case that  makes it very clear it deals with dragon is a cases cited by judge clement when she was in the district court and that's being horizon versus tennessee gas which we also cited in the you know brief there that case specifically dealt with what regulations dredging company must follow when they perform those operations and there are the court any there was pacifically with the issue before the court today whether there was a discretionary exception the court said no  robinson decision we didn't get a chance to do any of these covered we didn't get a chance to do anything you know but you do have the burden of i guess i mean apparently both sides agree that this went off on a motion sickness or did it go on a motion for s bob since we don't have a trial have to be at this time because it is they they have the burden of proof of the application of the discretionary function exception especially when we did not get an opportunity to do this coverage and do one of the things that we should have been allowed to do at a very minimum especially when we request to the court give us an opportunity to do some discovery before deciding on this motion we were given nothing and i think also the plaintiffs in that case elected to go in a different theory of liability than these plaintiffs on how they're like we should be at least given a day in court even if it gets to summary judgment a court may decided at that point and dismissed the