that when there is no ultimate trail agreement reached is your principal position or one of your positions there is no taking or rather an analysis under some non bright line rule is is that what we're looking at this temporary period when there's been no conversion that has to be done under regulatory taking that's right and so you can keep putting a little qualifiers in each one of your positions that  when there is no ultimate trail agreement there is no taking our position as if there is now if section eight d is not triggered that cannot support a land over and it could be used for trail during that interim period no respective of the abandonment so let's assume that happens and during that interim period they exceed what the rights are under the so what is the extent to which they can do under the need to they can just negotiate but they have to keep it that's correct that the uses that are permitted under the needs you know aren't exactly the same as what was permitted under the original use and so it's still defined right use meant that the for government consideration are either not a taking or subject to some non bright line taking in the house i keep using that because it seems to me i'd say i don't know whether the arkansas the any case of the following sort here we have the government saying you the property owners gave up your right only against a railroad  the question of real reviews is over and done with the july third and id you says we are done with that it only reason we are delaying we version of your property right is to consider whether we're going to take it you know in a full physical way why in the world would that be subject to our regulatory cake was analysis when the government the way it's only to consider whether to thing seize it in the sense of giving it to somebody else indefinitely for hikers or bikers or your question touched on this at the moment of the need to it's not at all clear what will happen in may result in a trial use agreement but it's not going to result under the need to actually by regulation exempt because they hadn't used it for two years or five years or whether whatever it was it was actually exempt the only condition that or the condition on the easement was you have to use it for this and the government has now said we are not ourselves taking action for any purpose related to that use anymore we're only taking action to b time to allow a real take why would that be subject to a regulatory thing now because that is but a regulatory action we think it's not unlike a situation like locke versus hirsch where you have a preexisting relationship between a landlord than a tenant or government comes and messes with that relationship tells the tenant that it can hold over beyond the time when mark would prefer and the supreme court said that's not a bright line taking that you gotta ask whether that regulation grows too far in a case like absolutes but a bit of all of those cases including block are about sort of police power interests in the use to which the property is being put once you is your july third and id you you have said as far as the government is concerned we're not interested anymore in railroad use which is the only which was deep rick and precondition for keeping the property out of the hands of the underwriting feel interest on now you're just talking about we may have an interest in using our sensually a condemnation or formally but our physical taking power the way we always do for a public purpose it seems to me that has crossed the line into we're just preparing trying to arrange you know a wheel to physical take there's a there's a couple things here so so for one thing the member case i think a finding out per se compensable taking here you get results like memory where it's hard to see as the how the government action delayed anything because the railroad essentially said never mind not going to abandon after all i didn't see an argument in this court from you that said look conceptually there is a difference in time between the n i t u issuance and the date that in the absence of the rails to trails act the railroad would have aband and it's crucial in every one of these cases that we identify you know the thirty day difference of the sixty day difference and i don't see your making in a well like in this court about it into this case that there is something interesting about this particular case because of course all need to only claims but that is the new strategy for bringing these cases is to file them immediately after the need to is issued and not wait to see what's going to happen and the port of federal  willing to issue liability determination not waiting to see at all how things play out so that includes cases in which there's a band of an ultimate in the to or not and that's right that's right the court of federal c i'm not well i mean it seems to be unworkable in a certain sets so that would be i guess a case like this if there is no liability  what i know i mean i think it would be more like a case like where they found that well i don't know what it would be but at a certain point if they haven't actually occurs in the case is dragging on and do they have to hold the case until the decision is actually final on conversion i think that's what makes the most sense yes if you're going to file a case immediately after the need to i think yes it does make sense to to hold out and wait and see what happens if you can i ask you if if there were any analysis in a multi factor analysis does that look different in every single property by property case or why wouldn't if you ran down the  severity reasonable investment back to expectations duration why wouldn't one reach a let's call it categorical judgment that when the government has said for a period of at least six months and i gather in some cases much much longer than six months by virtue of extending these need to use that that is a taking you are dispossessed of traditionally recognize category of takings analysis this sort of thing fits into and if i start thinking about the kind of floor three factors in pencil intro or for considerations at the end of arkansas it's an awkward i guess to say that there is a case by case variation in the answer to that when exactly the same thing is going on you would otherwise have your property right back we say no you may not you're dispossessed of it for here's here's another way that i'm looking at so in a situation like norad out which is of course that narrow category of permanent physical takings we wouldn't think of the the moment of taking on the act that constitutes but you may not have that now for six months or in some cases i gather years and years because you see these things keep getting extended and we are legally barring you from doing that that's why it's not quite physical but it's kind of the next best thing it's get to it says we the government can no longer have to have an interest in the railroad use right it's up to you if you know if you want to abandon that as i have i'm going to infer almost always when they petition to abandon they are going to abandon there may be a few exceptions but those seem truly exceptional as far as we're being told so there's the me i think we're just again different mean we we  there a strict difference between the moment that section eighteen is actually triggered that's the moment when the statute takes effect and it prevents that usenet from expiring before that this is just a regulatory action much like other types of three regulatory scheme that uses in each year wasn't put in place until much later and in fact in the pursuit case there was no need to the the only government action in that case occurred at the same time as the trail use agreement there was no sort of precursor needs to the fact that s t b has changed its regulatory scheme and now does this need to earlier in the process i think has obscured the moment of taking but it hasn't actually changed that trigger of section eighty as this court said in  physical taking at all yes and so why didn't the trial court have to apply the factors in arkansas well i think because we have guidance from the lack word on temporary takings and so again this this sure lott actually looked at it as a temporary taking which i think it is under our control do you think allowed is now consistent with arkansas fish and game i'm not really sure about that you're going to i mean that's a question we have to answer is that we have with this court in all previous trials and taking cases and invites uncertainty what is your position on our console fishing game that's what i'm trying to get at do those factors for temporary physical taking some ply here or do you think that this is still a permanent physical taking and i don't think this is a permanent physical taking i think this is a temporary physical taking but again as an arkansas fishing game that make clear that we have to apply that multi factor test i don't court decisions after an otherwise governing panel decision and we have to make a judgment sometimes the judgment is the intervening supreme court decision is actually sufficiently clear that even a panel of this court can say that a previous panel decision with has been superseded and sometimes we make a slightly lesser judgment which is we need to rethink this and then we often take those matters on by so focus on arkansas game decision in particular the  couple of pages of that decision that say that the repeated increased flooding in that matter needed to be subject to you know helping out culture or something like that is might be different is the same as what's going on here gets distinguishable because here you're not just interfering with some use of the property here from the property on the day that the need to now it is true that if if the need to is abandoned or that no trace agreement is reached then they are there back in possession of their land that they have been blocked for a certain period of time and the cases that have need to use there are several cases many many instances where and each was issued and it's extend it for years seven eight years and so then we have a problem with uncertainty again because if we wait until a trade agreement what about those eight years of landowner when they only agree to our purposes you know for easement for over purposes and out the federal government has come in and interfere to blot their right to their land and i mean so that's a permanent knesset's not permit taking but that's a temporary taking in temporary takings the compensation for temperate takings are very different then the compensation for permanent takings tempering takings a compensation as for rent value and permit taking someone and it went on for seven eight years and then the rover came back in and said wait a minute we don't want to abandon but those landowners have not been able to use their land or put their firms that together you know it's it's it is a problem and it happens that happens more often than not that you have a need to issue and then it's extended for years and years and years and so you know i think that that is a problem with the analysis and that's why i think that the case law has developed in trials that taking the way it has we have a bright line rule so that we have certainty and it may be that you know it's not you know a long taking or it's a very short temporary taking or it's a very long temporary ticking but that's why i believe that the law has developed as it said and that's why priest so you think there are two takings here it didn't you goes on for seven or eight years and that is ultimately converted it is the occurs happens it's permanent taking if the commercial never happens then it would be a temporary taking but you don't know if it's permanent or temporary intel that's race agreement is reached or not and whether and you know when you file your case you don't actually all the characters taking your letter know when we file our case we know that the railroad only had an easement for road purposes we go through the priest so don't know whether it's a temporary taking our permit it takes in less there's already a trace agreement agreement reached at that time the no you don't again it seems a pretty odd lately have a claim accrual date for a claim that you don't know what the actual character of it is well the other problem that you have is what if the needs is extended for over six years the twelve forty seven d the need to is the governmental act that triggers the taking and it's when the trail operator and the road communicate that's what barkley says and we communicate that they are interested in coming up with from third party  can i ask you one get question i don't think anything has been made of in this court though it was mentioned in the court of federal claims july third need to refers to u lot of times they go hand in hand they say is that under a separate statutory regime yeah there is a different statute for public use condition that so they have to apply for a public use condition as well but i've never seen i've never seen a cas again i think that the this court shouldn't really understand that but if they have about those conditions you are arguing that's a person taking out a temporary take well if they've met the conditions then it would be a per se taking but it's not just a person a flat out per se taking  when the railroad has said on july third or whenever it applied as this one did i think say we plan to abandon this on or after the approval of the abandon reversion occurs and here we have the government saying no you may not you the property owner cannot get this back for one hundred eighty degrees plus whatever class that we're talking about the preschool class so he railroad use only eastment what will the penn central litigation look like it's going to be does the government always win because the government always says this interesting regulatory in which case it's categorical but it's a categorical non taking or is it going to vary from property to i think it's going to vary it's going to if i well it could impart depend on how long property rights they claim to know it's an extremely resource intensive type of litigation and we want to make sure that this court sets the right framework for analyzing these claims one that is consistent with purcell and with the