second case in which we'll hear oral argument this morning is number two zero zero eight dash thirteen fifty four grant county versus the united states trial court with my assistance so this sort of case presents we think some fairly simple straightforward issues and also present a very not straightforward issue this far as i'm concerned at leas first organized in the year that they were granted management will be entitled to recover administrative costs that third duplicate because as it is now they're painted ministry to the costs that under that you say that they should have been since since one nine hundred seventy seven since one nine hundred seventy seven so each year there's been an accumulation of these additional costs right but we're only claiming that in the year that we get is a reimbursement of an overpayment it is it is the fact that we are pain that we've already paid in whatever year we get management we've already paid administrative costs we were already already out of pocket we've already paid those and now we want to say to reclamation and give those back to us we're out of pocket for those do you mean you say at the end of the day here you are entitled to have a check cut to you for a certain amount of money predicated on overpayments in the past predicated on the fact that we weren't allowed to retain them because we didn't have management and the other element  we're going to have to go back and look through all of these records and when i say we the irrigation district is going to have to go back and reorganize and comb through all of these individual license records and we organize them for collected administration  that will happen in the year that they get management they will incur substantial consultant these to do that extra costs and so we're saying that these administration costs  entitle you to the payment of that money the words what has to happen in order to you to be tired of that one you have to get management and you get and the way you say how do you say you get managed to get management by getting a favorable ruling saying that these are human contracts so that there what could be a repayment contracts once on the merits once the merits are determined  then what does it say i'm sorry to interrupt you but it's but i did what i didn't want to lose my train of thought in response what you're saying you're saying under you were interpretation of these management gives you the right to the repayment of this money that you have paid well once we get management that claim ripens you know once we get once we get management then we're in a position to say that now to get to the basis of that management plame as to whether these are repayment contracts it's our position that unambiguously and in a manner that leaves the secretary no discretion reclamation law requires that these be repayment contracts that these forty five beachy license agreements that are an issue in this case about these eighty five landholders through the grant county blacks and your geisha district must be repayment contracts hundred thirty nine act and the defines a repayment contract as any contract which repays construction charges forty five a d the preceding subsection in that same definitional part remaining part of forty five eighty and that says that if in substance if there was construction repayments are covered into the construction account to reclamation minutes o repayment contract it's undisputed that in this world conditions that again it's a thirty five a d it's undisputed that in this case from its inception of these contracts that the blacks and irrigators repayments of construction charges to reclamation have always been covered into the construction account of reclamation there's no dispute about that so as a matter of definition under the thirty nine act these are repayment cracks if we turn to the one thousand nine hundred two reclamation reform act and we looked at three ninety b b a it likewise says that any repayment contract or any water any contract entered into by reclamation after october nineteenth one thousand the true must be a contract under three ninety c c in other words it must be a contract that repairs construction charges once again it's undisputed in this case that reclamation required these eighty five euro gators to amend their contracts and to amend them to specifically state that the one thousand nine hundred two reclamation reform act and their regulations in fact was is an exception from the requirement for contract with organizations forty five each e and applied to individuals so you're saying no organization can be within forty five h either individuals or districts give me an example talking about organizations only of a contract that's appropriately a water service contract under forty not designed to deal with distribution works canals laterals those kinds of things and so if an organization only has it is only using that part of a project the dam and related works that supply the water to the organization and if reclamation has not built any canals laterals irrigation ditches to supply surface irrigation to that organization then they would only have a forty five h p contract and in fact if you read the last sentence of forty five beachy it specifically says if you get to the point i'm not and i'm saying i'm paraphrasing if you get to the point where you've got to use distribution works l's laterals it's going to things then you've got to go over and also when h d contract for those and if you look at the flint decision that's the flint that's the decision that says that a forty five of the h you can apply to both individuals and districts sure have answered your question the forty five still not sure i understand if you have a contract under right now what would be an example of a forty five h contract with an organization that includes construction contracts interruption charges related charges but you would say well that's not a repayment contract and doesn't belong under or there are no such examples to not set but i'm not sure i understand your question i designer stan forty five and she you it only applies to supply works and the construction component there is for repayment and drawing water from our right that would be the appropriate construction charge that would be included in a forty five b chief contractor distinguished from a forty five inch deal which would include not only supply works but also the distribution works and so you would have chart construction charges in there for both parts of the project supply and distribution forty five each he would only be payment of  account by definition are forty five e g contracts are repayment contract ok and so my point is dealing with supply and distribution of that contract and that's us we've got the payment of construction charges there for all provisions of the reclamation reform act applied to these forty five e g contracts three ninety am am specifically states that if you repaid construction charges through periodic claim payment plans for the specified term of a contract then the contract must pay out and the excess landreth restrictions imposed by three ninety c c must be lifted and that's the nub of the dispute here between reclamation and these irrigators reclamation new contracts never pay out you're going to pay this dollar seventy or infinity as long as you're on this land through ninety m m says wrong if these contracts and the if you read the contract terms they specifically provide for that if these contracts pay out construction charges that regular periodic payments for specified terms they must pay out and then you must lift the pronounced it correctly you did ok but you have you have whatever time you need in addition to the total amount that mr a mystery is going to have which is about seven minutes extra if you need which by definition does not permit money damages five u s c seven zero two says and a p a claim cannot seek money damages the second cause of action is for reformation of contract reformation of contract is an equitable equitable plan the first cause of action which is mandamus again equitable and character the first cause of action is resulting trust which is an equitable device to enforce restitution or to avoid it i just enrichment which are again classic equitable remedies the fifth cause of action is required title which does not allow for money damages but involves disputes to title to real property that one of these cons of action would allow for money damages they're all claims in equity this court therefore does not have little tucker actors diction well that's if really the the police theory of the cases is as i instead it is that you've put them under they should not be subject to those kinds of charges and therefore one consequence of that is that you put a charge just as if you  tax case and you had put them under the alternative minimum tax and they didn't belong there and they'd overpaid their taxes by five hundred dollars and they want the money back why isn't th courts the supreme court and this court found that the plaintiffs were seeking equitable relief in the form of payment of money and not money damages well boom and said that it wasn't that that the a p a actually was not for closed because it was necessarily an action for damages that it didn't say that there couldn't have also been a tucker right claim just said that the e p a was not for precluded doesn't didn't say that they w complaint they did not assert want in the district court we moved to dismiss their complaint in total and nowhere in their motion to dismiss or their opposition to our motion to dismiss their every form united states of the right to assert the little tucker act  is should uphold the just a court document dismissing this case for a lack of subject matter jurisdiction as a district court correctly held the plaintiffs have failed to demonstrate as they must a waiver of sovereign immunity under would have to attend the going through those issues in getting to the merits of the underlying contract slash statutory construction argument would you give us your take on the argument that it's need with respect to the interplay of d and e that is to seyne why is this why do you think the plaintiffs are wrong in saying that they should have been treated as having a  repayment contract as opposed to us what ships well because they don't meet the definition of the term repayment contract as used in reclamation law forty five a it does provide a definition that is the point i've said this morning and forty five they either find a repayment contract is a contract for the payment of construction charges we cross reference that definition with the term construction of charge defined at forty five d and it says the amount of principal if you finds construction charges the amount of principal obligations payable to the united states except for amounts for water right pointis contracts under forty five each be fall outside of that definition because the contracts contain no principal repayment obligation for one and are only water rental agreements pursuant to forty five h e now this morning for the first time they make a suggestion which we have never heard before that they are under d their contracts are not do not include construction charges or whatever their argument is because it is undisputed apparently that these charges are not cover the principal sums of construction counts by the bureau of like reclamation again this is an argument i've never heard before i would dispute it  so i mean that that's the essential difference is that their contracts do not fall within the definition of the term repayment contract as used in reclamation law and this is just really that simple but we're not even really there yet because what they have to show is a waiver of sovereign immunity here and the only one that applies is under the a p a and under section seven zero six one to assert a proper claim there they have to identify a clear cut ministerial duty that they can point to you within this with any any provision of reclamation law that says the bureau must treat their contracts as if it's a one time tracks that's their argument what you seem to be saying and correct me if this is a mis characterization but you seem to be saying because they are wrong on the merits of their claim that the bureau was obliged to treat this contract in a certain way different from the way they did was treated because they're wrong on that you say therefore there wasn't any duty on the part of the bureau to act consistently with their demand and therefore there's no a p a jurisdiction because there is no waiver of some unity doesn't that simply run to even i mean i think there is at least some confusion i think expressed by this court this morning about whether or not these are repayment contracts or whether or not there's an obligation to treat plaintiff contracts as repayment contracts there is an absolute duty in this case they win rank because of this if it is clear cut sure there's a clear cut duty they went are you saying that we don't have jurisdiction unless we're prepared to say they win this case well i think there could still be a duty to not be clear cut you mean there's the non clear cut duty whatever that means sure on this it's a clear cut duty then the answer is they've won the case correct yes right and you say there's no jurisdiction unless there's a clear cut  so what you're saying is if i understand you is that the only way we have jurisdiction the only thing we have jurisdiction to do under seventy six one is to rule in their favor otherwise we have to say we have no jurisdiction and similarly with regard to seven to six to in order for this court to have jurisdiction they must identify a final agency action which is reviewable by this court which they have never done and therefore this court also construction repayment being covered into the construction of count of the account of reclamation on that page twelve and thirteen paragraphs sixteen and seventeen the principal brief so mr berger is wrong when he says this is the first time he's heard of that  twelve and thirteen of her graphs sixteen and seventeen of her principle briefly specifically refer to eighty forty five he didn't say he should wrong in his interpretation these charges were covered in their repayment contracts by definition there's no discretion there's no ambiguity there's no doubt about that secondly if he's going to cite dull we would suggest that we come within the patel in the  artificially stored groundwater program for the plaintiff class in the year of which the g c b of society takes over the administration and management of the program and what's the cause of action that entitles you to that really we have a claim under fo ninety eight for management we have a right to management they deprived us of that and because of that we've had to incur duplicate administrative costs we've had to pay them for ministration and we end with the district has had to all provisions of reclamation law apply for ninety m m said this contract must pay out it has it has a specified term and has periodic payments for a specified term it's got to pay o keep the reclamation simply can't do this they can't say you're going to be a buck seventy an acre until the rivers run dry now as to our claim we've got a little you pay up to eighty five dollars we have a claim for excess on m charges but they have assessed against us and so have got three different kinds of claims here for money one of which is the little specifically refer to the talk directly name and the fact that because of that nippon steel above applies and that the that the merits of this case are inextricably inextricably intertwined with jurisdiction our briefing before the district court and mr brander tried to say what you're really talking about equitable flames and we said we are talking