good morning everyone we have four cases before the panel with morning two of them being argued tases in two of them being cases which are submitted on the briefs without or large and that's just for the record i will note the the two submitted cases the first one is number two zero zero seven dash three two three one robinson versus department of the army and the second one is number two zero zero eight dash three zero zero five b versus the merits systems protection board again both of those cases are being submitted on the briefs without oral arguments the first case in which will hear oral argument this morning is number two zero zero seven dash five one one five klamath irrigation district versus the united states mr mar the farmers course would beg for some lost their forks to foreclosure when they filed this suit with taking off their water rights and for the which is issued by the government the beneficial use of the water is not transferable it's only the deed to the underlying land itself which is transferred by the government holds legal title but that the beneficiaries the ultimate beneficiaries of the project the irrigators have a beneficial interest and therefore the united states is titled a legal title but it's essentially understood that to be the case then what do you think was conveyed in the past this the well with respect to this group of homesteaders right with respect to the already had the beneficial interest by virtue of an i q no five statute after the project was initiated right actually i'm not sure if you can see what i'm troubled what i'm struggling with this is there an what they got was the same thing that everyone else had that is to say beneficial use are did they actually get legal title and in other words in derogation of the united states legal title which was granted by the one nine hundred five statu engineer correctly is that that is dead directed at resolving the question of title but does not address the nature of the beneficial interest or the existence of the beneficial interest in the i think the that the maryland the the government says that well the losing party if you will in the lower court cannot ask for certification what is your response to that impossibilities do you think that it's fair however to read the trial court's opinion as concluding that even if in possibility were incorporated into the sovereign next doctrine per justice souter's opinion and when starr that the requirements would be met by and here i have referenced to the discussion of the  conclusions that ultimately had the government determining that they had to take this measure under the follow on question that's really strikes me as a critical issue what should the inquiry be i mean you've suggested that this they made a mistake by thinking they were going to help the fish by keeping lake up and now does it let's assume that they determined that they needed to keep the lake up but it was a flawed determination that is to say the  department the interior concluded based on all the information they had that they had to take the steps they were compelled let's say by the e s a to take these steps is that determination subject to challenge factual challenge as part of the ship showing that the impossibilities defense was not satisfied x of possibility of course is not do what the determination is made and that the why was then not done here in this case the release of the water and that question then it seems to me a little more complex than then the example you gave because we have a statute which is once the determination is made you are foreclosed from acting in the question i have is do we convert the proceedings on the in the court of federal claims into what amounts to evidence that if we lower the lake it will destroy the species but we have the freedom to choose to do that to go ahead and notwithstanding that we agree with you the species will be will be destroyed by our action but we can do it anyway they would be free under the e s a to do that you know ok so it's merely a question of providing them with information which will inform a decision that they're free to make either way that is ok that's the latest and so so we really are in a situation your submission is in which there couldn't be in possibility i take it and not only it wasn't shown but you're really is that when i said the destruction of the species was i was i i was trying to say that that the the bureau of reclamation would know that the species would be the come extinct were moved on to the factual question of whether the determination that this the fate of the species was in the balance here was correct but but just to make sure that the were on the same page setting aside the correctness of that factual determination if we assume that it was unimpeachable that that effect of lowering the water would have the effect of destroying the species are you are you saying pay is information as i understand it yes it's true i thought yes they actually has has some teeth in the sense that it says you may not take the steps it's a you need to be informed and be once you're informed and you were told conclusively that this is the his three minutes of rebuttal so that would mean he will have a total of thirty eight minutes of my my math is correct and will allow the government the same amount of time obviously if it's if it you say whether they have interest but it's important to distinguish the interests that are property in nature which triggers the taking cause you're saying that there's no takings clause application and we may be getting into it a problem of nomenclature here but the issue of law judge seemed to focus on the difference between a title and then official right it one point that this is not to play the water users do not have any rights in the water even the united states recognize the water users have beneficial right to the water and i take it that you would say well that's really a way of describing their contract interests right all the beneficial right sounds a little different from  but if i understand what you said in response to my earlier question correct me if this is an unfair characterization believe it it sounds like what you're saying is it doesn't really matter what our gun law regards as the property interests here because it's all been subsumed into contracts and there isn't any anything the oregon supreme put it this way is nothing they are going supreme court could say about the  statute that would change anything about the posture of this case in as much as regardless of what they should say about the property interests that may or may not have been retained or are ultimately distributed to the  land holders those landowners have no property interest at this point except to the extent that you refer to their contract interests as property interests is that a fair statement that's a long statement it regardless of how you characterize their interest in their property interests they'll non all they've got by way of remedy is contract remedies and all the contract remedies are going to be the same without regard to what their property interests may ultimately be determined to be is that correct consistent with this approach to what to do you write the truth and that your position second the question of who has ownership of these rights is an issue in the education the very same arguments are making here they're making in the future and they've lost so if if one were inclined to contemplate a certification what if anything would you have to say with respect to what mr marzullo said should be the focus of the certification and i know it's a difficult you're sitting there but what would you let me ask it this way rather than ask you to key in to what he said what would if one were inclined to certify this to the oregon supreme court what in connection with where it just speaks to when there are signs with respect to the the disposition of water i mean that is not the basis of our argument here we certainly don't need to go there all agency stated would not jeopardize the endangered species they could make a different decision but they do have to ensure that their actions do not jeopardize the continued existence  so they have to have their own scientific russian and their you know basis for making that determination but there's another very very we're making matters here which is the question  potential liability exposure liability but they were free to say no we're not impressed with that finding we think in fact exactly the opposite of the case and this is on their merry way and released what in theory in the sierra club magazine saying that these species will be endangered by any reduction in the love of the water and us said you know what we think that's probably right and therefore let's assume for present purposes i know it's contested that in possibility as part of the cybernetic doctrine per justice souter it would seem to me if you're right that all the agency has to do is to announce that this is their conclusion as to what they think they're bound to do in order to effectively render the performance impossible as a legal matter that takes an awful lot of out of the this much and no wars justice souter's position as i understand it gives the government a defense against the common law principle that one cannot render oneself what action by one's own actions render one one's performance impossible as that much everybody agrees it does the question as i understood it over and possibility was whether it's still necessary for the government in order to invoke the sovereign x doctrine to show that the sovereign act in question bound its hands that is to say congress said you may not do x and then they the the agency comes and says well you know we have no choice but well you could have a situation which congress could say well agency you have you now have a choice as to whether to do a b or c and the agency says you know what i think will i think will we've been given an option by congress either to save the fish or do of let the farmers have the water i think will save the fish and the argument would be that's done the sovereign act of giving the agency choice has defeated the country clear you don't adopt the la was then then are you saying need to take my hypothetical that congress has said to the agency you may decide either to cut off the water or to save the fish and the agency says you know what i'm sorry cut off the water and save the fish or  open the gates and allow the irrigation and the agency says i think we'll cut off the the water in and save the fish then ended inquiry that's a sovereign act and there's no remedy