there please the court my name is kevin bain and represent waverly view investors the court below here found that the government had engaged in a permanent physical taking away relief property and the government does not challenge that determination on appeal waverley ground water is now part of a designated superfund site because of contamination caused by the government that when that happened before all this happened that's correct what you well know if it was designated as a super fund site after it was does it as part of the superfund site after of the government entered the property drilled the wells and discovered the contamination the question the central question because we've got stuff in front of us you can have a separate taking claim related to that but those actions took place after the actions of the issue in this case the physical taking in this case consists of the government's entry on to the property drilling wells and building a look a road across the middle of the property the question central question in the case whether that physical taking and the government's subsequent failure to discharge a statutory obligation to remediate the property as expeditiously as practicable has destroyed or substantially impair the development value of the property and that when the court's opinion the courts seem to think there are only two ways to look at this question either the government had told waverley it may not develop or government made or property the court said in its opinion that waverley had made a calculated business decision not to proceed with development and what i would like to suggest to your honor's is there's a third way to look at this evidence and it's the way the court looked at it throughout the we didn't do it because of what because of this construction that it's been done one of the government entered the property because the government constructed wells built a road and put a scarlet letter on this property saying it's contaminated and the result of that was to totally freeze development and the court recognized that the human contamination as a basis or you're just saying because the government announced the property w contaminated because this judge moore i think alluded to earlier this claim isn't about the government's liability for contamination of property that's that's correct so that you just mentioned the bar let letter put on is a basis therefore for claiming that you are deserving these damages well there was a physical taking and that puts this category this case in a particular category now the question is what was the damage caused by the physical tak what the evidence shows and what the court said throughout the trial was that as a practical matter once the government came on drill the wells built the road and made this part of superfund site at that point development was frozen as a practical matter the court said they really can't develop or go forward as a practical matter i mean surely the government in the army must understand that and then the court said during the trial the e p a needs to get on that property  and they can't do anything much with that until this is figured out now in the court's opinion as i said the courts seem to view this as an either or proposition i find really unclear are you to the extent that you were relying on statements made by the trial judge during the proceedings as a basis for our concluding that there was an entitlement but as such what i am suggesting is that the evidence clearly demonstrates something that the court you know its ultimate opinion didn't really focus on the court in its ultimate opinion said that waverley made a conscious calculated business decision not to proceed with development as if it had the option of proceeding but chose not to and what the evidence shows is that proceeding was developed was completely impractical for a number of reasons the most obvious reason is that waverley is in the business of developing raw property into finished lots for sale to homebuilders in the e p a came along three fell apart three home builders who were interested in purchasing this property at full market value a soon as the e p a said we must come out of the property those buyers disappear and what the court said in its opinion is that waverley made a calculated business decision not to proceed even though it could have if you think about it that makes no sense why in the world would a developer sit on property instead of proceeding to develop that if it was practical to do so so what i'm saying that the building of this narrow strip that the government built precluded your property or you're saying as you said a few minutes ago that by coming on the and the road and the continued occupation and the need to continue occupying the property for decades prevented development what what the government what the court with the government has said throughout this case is interesting back when the right of entry expired in two thousand and fourteen the government e p a wrote to waverley and said much for mains to be done on this property that work is essential and we cannot give you an estimate of how long it will take and then when the right of entry expired the government testified to trial they put everything on hold because waverly had brought a lawsuit and now it tells this court six years after entering the property that it is unknown whether the government's actions can be made compatible with development of the property if it's unknown whether the government's continued physical occupation of the truck was known that the property had been contaminated for decades  entire debate is on the premises this is the chemical warfare plant the adjacent properties and the with all of the statutes of limitations past the liability of the government for contamination so i'm trying to understand just where what the compensation is measured by compensation is measured by the difference between the value of the property before the government came along and there's ample test mourning the record that from all the praises of look this property that the value is between twelve and fourteen million dollars and the the fact that we think based on a finding that the building of the whatever we're calling them caused the value that the value to of if without them to be one thing and to the millions of dollars greater with with you less with this is why i'm focusing on the most critical evidence in this case that before the e p a insisted on entering the property three national homebuilders wanted to buy the property at full market value they weren't discounting it because of the fact that there was contamination in fort dietrich where there were speculation that it might have seeped into the groundwater and waverley for a very good reason groundwater contamination hundreds of feet below the surface has nothing to do with the developers ability to develop property and  build homes that aren't going to use well water that are going to use town water the possible existence of groundwater contamination hundreds of feet below the surface was no deterrent to three major national homebuilders the deterrent to them was that if they committed to buy these lost when they were developed they faced a problem the e p a was going to be occupying that property was going to be continuing to monitor to investigate to remediate and monitor that property for decades what home builder in his right mind would commit to buy those lost under those circumstances and if there's no possible home builder who would have any interest anymore given the e p a is occupation parcel on it and at one point waverly was so desperate to try to get something moving on this property that it reached a deal with builders to build an apartment building a deal which the testimony showed was the most it ever entered into they had to build four million dollars worth of infrastructure to commit in order to get this apartment builder to buy the property for five million dollars couple years down the road it was a terrible deal but at least they could get something on one sliver of the property remote from fort dietrich but there was one home builder that wanted to buy all the phase  phase two and this is a very important point because the government relied upon a sliver of testimony from mr anderson to develop manager for waverley to support the court's finding that waverley made a calculated business decision not to proceed and if i may i'd like to explain what happened there waverly had a letter of intent from stanley homes to built to buy phase one and phase two and then the e p a comes along and mr anderson as a responsible businessman says i can't in good conscience sign a contract with stanley homes without telling them the e p a is about to come onto the property and i cannot in good faith commit to deliver this property when the e p a is going to be there so he discloses the a p s letter and the d and makes a decision he had to do that the court cites that testimony that was my decision to disclose e p a s interest and to say conclude conscious commit to deliver this that led the court to hop conscious calculated business decision not to proceed but what happened then is waverly said to stanley holmes why don't you commit to buy it contingent upon the e p a is rapidly finishing its work stanley home said no and they walked away and at the same time waverly is trying to interest two other builders in phase one the more remote part of the property and they won't even explain won't even pursue a deal on phase one because of the e p a s occupation of the property next door now when the government admits that it is unknown today whether it's physical occupation of the property and it's and it's future remediation activities whether that is from even compatible with development that's a concession that we're right the government  it is unknown whether development is compatible at all with with with the government's activity that is an acknowledgment that waverley cannot proceed and ought to be entitled to the difference between the value of this property before the government entered and the value today what about mr hale it's my understanding that there was at least one developer that applied approached waverley in two thousand and twelve after all of this and was interested in developing the property and he had a lot of experience with contaminated sites and that we really just chose not to pursue it that's incorrect your honor and we addressed that at pages twenty one twenty two of our reply brief there was a follow up and the evidence there was evidence in this record that a mr hale afterwards approached and was interested in developing the property so i feel like your representation to the clerk isn't at least completely consistent with what i understand the facts to be so what was the situation with this trail well it was a very preliminary statement by a developer that has had experience taking distressed property and trying to do something with it and so waverly broker contacted his broker and said if there's any interest please contact us and they didn't developer entered the contaminated property we're looking for the value of the property as of november two thousand and thirteen when the government entered the property and what it was already contaminat well the contamination instinct is an interesting question there's that you can have a theological debate about whether contamination or whether the entrance so out of the property and discover the contamination caused the problem but the reality is that the possibility of contamination hundreds of feet below the surface in a development that was not going to use ground water was not affecting the value of the property because knowing that possibility three developers three home builders rejected and purchasing the property a full value till they realized the e p a was going to be doing work on the property at that point as i said what home builder in his right mind would purchase that property and that's the problem waverly is frozen you're suggesting that the value of the properly w unaffected by the known contamination nearby and potentially in the groundwater below this property but we really was able to pluck this property out of bankruptcy for a miniscule amount of money post contamination so you're acting as though this property was worth thirty seven million dollars but what did we really purchase this property for waverley and its predecessor l well waverly purchased this property from in bankruptcy the purchase price assigned in banks was four million dollars or million dollars so way so they purchased a property for four million dollars post contamination post knowledge of contamination in all the nearby communities post kids coming down the cancer in the nearby community and they bought it for four million but you're standing here in front of us telling us it was worth thirty seven million and that's what the government should pay for it where it really has thirteen million dollars invested in this property your honor and is carrying the property  help waverly doesn't its predecessor at thirteen million dollars invested in it waverly bought it for four million they didn't invest thirteen million in after they bought it for four million that's incorrect christopher dormant is the managing member and the majority owner of this of the entities on this property going back to two thousand and the fact that he owned the predecessor company that went bankrupt doesn't mean that this property at the time he purchased for four million dollars had that that waverley went on and paid another thirteen million waverley he's got four million dollars of skin in the game and not a penny more anyone could have purchased that property in bankruptcy at thirty four million dollars at the time of the waverley acquisition of the property it was appraised at twelve point eight million dollars and whether or not you think we've really got a good deal has nothing to do with this you know what because my kids have gone through my husband's baseball cards recently and they are convinced this collection is worth a fortune we all know it's only worth what someone is willing to pay for it well your honor the reality is the bankruptcy proceeding has nothing to do with the fair market value of the property and every appraiser who looked at this property agrees that four million dollars a sign in a bankruptcy proceeding has nothing to do with your market value multiple appr every praise it's looked at this has said the value of the property was about twelve to fourteen million dollars before the government came along and the government came along after waverley and howard evading court in your breaks and argued to us that there's thirty seven million dollars of damage that your plaintiffs are entitled big bird how can you if you're now saying the value of the property was twelve million how can you argue it from places in this case for thirty seven million dollars no your honor we're looking for nine million dollars  time on here for the government your friend here is that the cause what caused the property to not be saleable was the government's action of coming in as opposed to one could argue the fact that this was near surplus site a superfund site and that raises certain questions so what's your response to that well sure something that we've already been talking about a little bit this morning i think you're going to look at one document in this record i want contamination that's just not reasonable what's the point they introduced evidence that in two thousand and thirteen three different developers were interested in the property that's right and the court of federal claims in distress that evidence  connect the dots between the buyers having some interest deals not being consummated and the complained of activity here which is not the contamination on th you believe that she discussed stanley martin as their company and cohen companies in her opinion and and offered an explanation for why that evidence didn't establish a market value in two thousand and thirteen for the property i'm sorry i don't i don't have a cite for that i'm not sure she didn't by name but she did conclude that it appears that waverley made a calculated decision to stop marketing his property based on it assumption that the government was going to buy the property that assumption as it turns out was not well founded it doesn't appear to have been based on anything the government actually you said that they were the government was going to buy this property it appears to be based on where you've been we use own hopes of what would happen and they were putting a lot of money into lobbying to try to make that happen but the government does not occupy one hundred percent of this property minute the government makes such a statement is definitely stigmatizing development on the rest of the property that we are going to i sure don't want to build a house and raise my children on top of growing water contaminated with stuff that gets you answer well a couple of things first the government has not taken over this property even during the right of entry the government activities not exclude waverly the fact that there are wells out there today does not prevent as a practical matter we believe from developing this property there's testimony on the record  what their argument is it stigmatised the property such that nobody would ever develop that property given the articulated contamination under it and they're saying the presence of the wells is sort of an over visual sign that is with regard to the phase one development across the street but i think the same applies the idea that what would phase purchasers are other developers is not the cancer sharing their information and their projections of contamination on private property it's not all of that stuff it's just these wells that are part of the ultimate cleanup and all of that other stuff pre into this uncertainty about both the extent of contamination and the possibility of future government action there is testimony about several other army facilit where or or instances of army contamination where there is cleanup going on alongside next door to within development monitoring wells that are flush with the ground that are so  they're hard to locate there's also testimony that if there are particular wells that are an impediment to development here the army can accommodate that the army is used to working in existing developments or wind and use that are wanting to develop and locating whilst of the if it everybody can work together here that testimony is in the appendix that sixty five six sixty six in the conclusion that seems to be devoted to understanding or interpret ing the right of entry as it was expressly reserving the right to bring a takings right a taking spain i don't see how that affects the stigma claim slush but that aside for these purposes the only thing i can think of that that would affect is really just the property which was ended up being valued permanently at fifty six thousand dollars it would have a set whether or not a taking could have been alleged on that property as of the day the right of entry began as right so basically two years of additional abuse of a promptly whose permanent value was assessed at fifty six thousand and maybe or maybe the interest as you know interest but we're talking about only thing i could see affected by the contractual interpretation of the right of entry was possibly a couple of spells in dollars of damages for the space i think that's the correct way to view it my sense is that what they would like to now is have you have the date of taking earlier sound that you never before in the government mount monitoring this was a clean site and after the monitoring oh now it's a contaminated and of course for all the reasons that we've already talked about aren't and i were to interpret it that way that would change the nature of the factual record in terms of what what would that change again i our interpretation is it only change it would only change the date of taking but we do not agree of course with that interpretation of the reservation or where their argument that the the grant of access is invalid for that reservation to essentially liability that unnerves from our having contaminated your property and so they said well we don't want you to come in and you tried to add into the contract you were fully in voluntarily voluntarily letting us enter and they said but we're not fully involuntarily letting you enter so no you can't put that in this agreement in fact we want to reserve our right to assert a takings claim for your coming onto our property and that's how i read it and understand the facts of this case but i just don't know that that makes any darn difference right and i at again i i don't think it permanent taking so it's not clear what effect it really has but i do want to push back about the idea that they enter this under duress because you're to show dress up for a contract it's not just that it's involuntary it's also  that they truly had no other choice they made perfectly clear that they knew they had another choice they've been saying no for a long time before they finally agreed to sign the what happened when the agreement expires did the government try to negotiate and they said no to that or was there i think i recall sense right yesterday that i don't and also the government did try to negotiate for an extension and they said now and we have not reenter the property since then the army has a policy of read the reserve ration of the right to go takings clay claim as applying to your current entry you may enter my property subject to your understanding that i may  you have to compensate them you had a major leak of deadly material on a property that is controlled by the government that is a jason into their property you are conservative that the leak someone else's property the only way you can figure out the extent of the damage is to go onto that property and to use it during that time why shouldn't that be a compensable of it well and to be clear the court of federal claims found it was compensable and found that there was a taking up of the area of those wells the road and a buffer around the wells we did not appeal that decision and compensation will be paying so they answered your question is basically yes i mean it it it the court found it wasn't taking and if the united states needs to reenter this property if waverley chooses not to give consent if the united states again enters the property and we have and we files were taking scream at that point a court would have enough information to assess whether cleanup continue or yes there's a pilot project our of the army is going to be testing a couple methods for cleaning this site up that's going to be taking place fully on army property on the other side of the fence and and again if if those wells are in locations that are truly truly interfere with the not development plans the undisputed testimony at trial is that the army can and will work with waverley to didn't wave our existing takings claim we would if we would have signed it that's the evidence council that my friend referred to as calculated business decision not to try to sell and market the proper anymore but instead to focus all efforts exclusively on selling it to the government and this is what the court cited in support of this decision that waverley made a calculated business decision not to try to develop mr dormant the managing manager made reference in a letter to shareholders of an opportunity in crisis by which he meant that maybe we can sell the property to the government because he couldn't sell it or market it to a private developer the whole reason he referred to it as an opportunity in crisis was because the crisis was that there was no call no home builder who would buy it but maybe there was an opportunity to salvage something it by selling to the government that doesn't show a calculated business decision not to try to market to private home builders in fact at the very same time that mr dormant referred to this opportunity in crisis they were negotiating the deal with the cullen companies a deal that also fell apart because of perception issues arising out of the e p a s occupation of the property my friend says there's a policy of working with developers the court found there was no such policy at the appendix at page two ninety seven during the trial said we have learned there was no such policy and her opinion and appendix eighty four the court said the court does not view the government's testimony as evidence in policy mandating the army or the a to accommodate development that's the evidence and at trial the court ridiculed the suggestion that somehow waverley was obligated to go to the government and try to figure out how to accommodate the government's plans when the government didn't know what its plans were but here's what we do know we know the following that the army's project manager mr griffin a testified that he had identified six locations where he wanted to drill additional wells to define the contours of this migrating plume we know that any remedy would take decades to implement and we know that and he ran that he will have to be reevaluated every five years to truman whether it's effective and we know that and all the witnesses of knowledge this any remedy would require onsite monitoring for thirty years or more that is why the government told waverley back in april of two thousand and thirteen just before it came out of the property that would be on the property for decades that was the testimony of mr dormant of mr anderson it is not denied by any government witness your way out of that thank you thank atheism the case