matter appreciate the opportunity and appreciate your time to listen to our case we have there our sense of respect the matter and if any of you have any questions i'll be glad to answer those for the best of my ability i think with the time i have i would like to go to the issue of the standard that the district court set out in order and that we believe applies subject to the fish and wildlife service manual which is that seven c f r twelve  this is a st impression i'm not aware that it has been brought up i brought it up in this case i have worked in this field i'm aware of that manual i'm aware helping wildlife uses it that there is case law in the circuit that allows order she went over those factors and that's on page seven dollars and eight dollars of her order and she set out those three criteria and there was simply no evidence that that was admitted in the case as to the soil the type of vegetation specifically that these are hydrophobic or the hydrology and that's the overall issue with these events they're moving target with the government they have been in these cases for landowners even employees of fish and wildlife  ascertain what the criteria is and in this particular case the judge did set that out we believe that says that in order for a reason the government argues back that it was just mentioned if it was in a holding in the case i mean it's one of the elements element number two that the judge sets that out and goes over that even if asked not the controlling factor the government does have the burden to show that the number of acres and the easement that is being held or control in the government's view by the easement cannot be over the summary acres which was thirty three acres this event is in two separate parcels mr massey hall in the one in section thirty section one thousand was a different easement there's numerous wetlands on these they never define the number of acres and that's their version and they didn't specify what they were and the one wetland and it's in the government's brief they set out what was the work  the was for small as i embarked on a whole area suitable for use as waterfall production areas that doesn't have an acreage limitation to it it does not i believe johansen set out that the and in this case this is one of those earlier easements performance in seventy six dollars when the fish and wildlife service wasn't having or wasn't producing a map to come up with some research and it limits the number of acres and then the thousand and ten fish and wildlife and they produced this map that everyone relied on on the government's testimony there was twenty four point point eight years and this  and seventeen three they are claiming they have that control of the other six wetlands on this parcel and they did not even summit any evidence as to the number of acres of wetlands on that other portion of the same  reserve four minutes of time i'm glad to answer any of the questions the clock indicates to me so slightly under four minutes so i will reserve the rest of my time i kind do have one question i think good three of the arguments in your brief are evidentially and yet the preamble says that cage was a bench trial on the stipulated fact record so where do we get it you see you say that you want to argument is that  improper to exclude the manual definitions out of out of the district court to exclude something limits when it's tried on a stipulation facts i don't understand that i don't appreciate that your honor stipulation was that the  before that i'd like to in the not no your honor the stipulation that the district court and the government agreed to test that all matters in the st trial came in as if that was the trial with all of their objections all rulings of the court restoration the judge had spayed whatever restoration would be required after a year after this appeal is final if we did appeal which we did do so it's we cite case law as to in this case the judge found not all the elements were met for line number five it's just it regardless of the review standard the court found kevin mask not  wetlands statute a criminal conviction based on the court trial as the court's aware this matter was on appeal before to this core and it was sent back based on an improper but we're short of time and two members of the panel were participants in the prior appeals i don't see why you have to tell us what we did know for sure out so the reason we're asking this court to uphold the district court's decision has first met the burden of proof the government met its d burden of proof by all of the standards this court has established in all of its prior cases and so that's why i bring it up is that the new standard was what negligence and the government established that at the court trial based on the record that was presented i don't think there's a i don't think there's a mens rea argument i by d the defendant on trying to interject additional regulations aren't there's no authority for that whatsoever and so it shouldn't be considered on  whether or not the district courts conviction of mashed up health up with that i'd move on to the evidentiary issues again those were no no no wait a wait a minute wait a minute the st issue is still the most important i didn't you prove did you properly prove the wetlands that were impaired that's the argument that doesn't that's not a question of was a negligent or not damaged that's the burden of proof for the government to show the evidence clearly shows that what the defense is trying to raise and i just think i say you saying you don't have to prove he went once because the just the language in the in the that says wetlands and therefore obviously there was and all we have to do is prove greenidge damage well i think the problem we get into your honor is that we do use the term wetlands to mean other things and what taken prior to easement in seventy three testimony from mike s t with u s fish and wildlife service that has experience reviewing photographs we also have evidence from my past that show that wetland areas personal over time that's why those photographs d both before and after the company or the easement were entered into are important and his testimony was as a district court found both all of the areas claimed by the government were protected by the easement existed at the time of the easement and that's the proof that the government relies on and asking this court uphold the district court's decision counsel let's hear a response to the argument that since the agency has used the elements of the regs over and over down through the years you should have been a good at the substance of the argument well i think there's two parts to this this court has held that when you have an easement that's a contract that's the law that the parties are limited to whether or not the other issue on the manual being used it and has no application to an easement set it they haven't shown that it does their reference was to the criminal statute if you look at the that the federal government also property and its interest may be protected easements are just a small slice and portion of that sorry judge i don't know where out of i'm at i know that that you can you answer if you answer my question i am can i am a little concerned about the restoration issue we don't get it we don't get any like i said on in the briefs about how it came up then and the basis for whatever implied ruling was made well i take that back there's a factual basis in your group i haven't i understand and i take it the legal argument is that  that your position correctly what's the what's the supporting support for well the testimony on where the drain tile was installed on the property clearly shows d that drain tile was i have and i have upheld that argument in numerous cases and so i want to know why doesn't apply here it she was making the gesture court judge was making the distinction about surface damage d and subsurface damage these subsurface damage to the wetland area is still damage and so it's not outside of the court's ability to order restoration it's have to look sure but you know that just factually you know there is damage to that particular wetland area based on the subsurface drainage and that's a violation so you know it's not outside the court's authority to order restoration to that damaged property it's part of their conviction thank you i'll be brief as to your question judge logan where in the the record there was an issue brought up by defense on the restoration on the sentencing transcript pages anybody can read the sentencing order or the court's order after the court trial to say anything other than she found the government did not meet every element of the required elements to show a crime and so it is outside conviction as to the underlying issue which is this easement and what's covered and what's a standard johanson requires definiteness to be definite in real property contracts and it does not apply to future fluctuating our future wetlands after the time of the easement and every one of the aerial photos used by the government in their two thousand and ten map and at the trial were aerial photos that occurred after the easement was executed only one was prior in the two thousand and ten map that the government relied at over and over at the trial every witness relied on that map and all of those aerial photos were after they presented no evidence that these were not after fluctuating or increased flatlands there was at least some evidence that additional water was being drained on the mr mas