that we fell into this by this decision of also ultimately premature based upon the development of a factual record and describing how the tailors came to end up in the situation i think this is why we think that the case should be  across the ranch sometimes very low low levels under one hundred feet very very close to being just off the deck that continued on for quite some time but didn't really become a real issue and didn't really make the takings in this matter right until the air force took the actions to make this permanent and they did that by and this is where the confusion i think of the court between sounding and tort and takings comes to bear that all takings by physical invasion have their origin in tort law and our type of governmental nuisance or at times trespass we we ultimately are relying on what appears to be tortious interference and yes it is but that way because we really don't know what type of authority or how the u s air force went about this because we haven't had the opportunity to really get into any sort of discovery and talk to the wind energy company about how this came about or to the government about what actions they took we haven't had that opportunity so relying on best what we can we describe what is essentially a tort but again this isn't necessarily fatal to these claims in fact justice thomas recently in the had we did argue the united case which is stepping into the end of the issues we did argue that they had interfered with the contract in some form or fashion but again we didn't raise andy below we raise the issue of the fact that the contractor been terminated through some type of action by the government and like i said we the united example we didn't raise a n z but we did point out that somehow the government had caused that contract to be terminated and yes that was was preserved below actionable against when energy i believe they did the pursuit of the terms of the contract which is why we believe that somehow the government stepped in to the shoes when and just said hey let's go ahead exercise this part of the contract with germination cause  the contract and does your complaint allege in so far as as i understand it you you have one kind of property that you say has been taken is the property consisting of such contract rights as you had under the contract with wind energy and then the other is your property interest in property i does your complaint say something other than that the s a informal indication that there would likely be no certificate of no hazard or determination of no hazard was a cause of this or is that the government action the informal notification that  clarify it's not that the f a a gave some sort of presumption of what where this is going it's that the air force said this is not going to be forthcoming and that again this get from the point of we don't know for sure how this came about that's what we understand how others determination at all never come to pass and that caused ultimately the loss of the contract which is the contract for the use of that air space that makes up avocation easements of the air force is using that would likely f a a action might be no but they get to our point that i don't think that they have authority over the f a a and i know has a determination they have input but it's more that they were using their go coercive authority to point out that they would make sure that the f a a didn't do that we would use the power of government and the court as have any immediate questions for me i would reserve the remainder of the time for mr ray i have one last question this is judge o'm brought up and the two cases that supposedly pose a conflict between the trial court's decision and what they're raising here on appeal and that those cases were not raise i i'm not much taken with the idea that you can't cite new cases in support of the same i d s what idea is it that you think was waived well the idea of corps and the argument that there was a course  to actually be the basis for either a coersion claim under or just a normal taking claim so all we have is the informal indication which has been that factual allegation and why why why why as a matter of law should the informal indication whether it came from the f a or from the air force not  the inability to construct you know essentially wind turbine property the construction of that whether or not that can be based on and say you know has or determination and a to get to know has their determination and so how informal statements can be the basis you know based upon what's it least persuasive authority cannot be the basis for a taking we just don't think we don't think that the trial court erred in reaching that conclusion and frankly that was not challenge below it's not even been challenged here i'm sorry what was what was not challenged our argument that the government action of denying a has are determined i know has a determination there hasn't been a death i'm sorry that's not the that's not the alleged action the alleged action is an indication that if requested i know has or determination would not issue whether that indication came from the air force or from the f a a well that's even less of a government action to civil why did why why we'll do what we need to or we do not think that there will be a no hazard determination coming coming out and they told wind energy that and wind energy exercised what i guess we're now told contrary to the complaint is it's right under the contract simply to terminate notwithstanding that it's a the complaint says that this was was a breach and at that point the harm as to the contract is fully over and done complete doesn't matter anymore what what might happen if a formal proceeding in the f a a went went forward why is that to obtain permits and all of that i mean that's you know that's part of whatever contract that is and if you know those i mean that's sort of getting into property interests argument of whether you even permit but here i mean we haven't i mean how is this right how how is there been any final decision from the f a a well i let me just ask about that i'm going to say i'm not i'm not entirely skeptical of the idea that if you did a pen away but i'm not sure that that analysis has been done but as to rightness the rightness cases are about the situation where the harm has not yet been determined and is not complete and you can't figure out whether until some further action is taken what harm there will be that's not this complaint this complaint is the harm is fully done complete over nothing there is no new information and so the car only question is construction of the wind farm there's the court has a determination whether or not those actually the government is authorizing preventing construction and so with we would agree to the extent that i mean if there is a you know if there's sort of a situation you know where they're actually had been a no hazard determination we don't think that that's authorized conduct to prevent construction but here what is the authorized conduct here it's been alleged there's an informal communication from the air force who is not even the ones who decide if for the same reasoning about the author that we heard that this morning i think is that in your briefs well it that case is not in our brief but part of that because we argued that the know how their determination  switch switch topics and just ask you about what what i think was both the lead argument here and the lead point in the c s c that this is a tort and therefore can't be a taking if the government comes in and with authority takes my car and takes it away that's both a conversion and a taking a tort conversion and the taking and i how why is it that one can't get the same government action cannot be both mean i think it depends on whether or not that the taking or not i mean if it sees pursuant to police power something like that it's not going to implicate the takings clause there can be state broad conversion claims that it can be named a part of it is it some point words have to matter and at some point what is pled needs to actually matter and i don't think that the really when you look at the plain language of this complaint that you could interpret you could find error in the trial court's interpretation of what is being played here so is there some sort of factual situation where your car you know if the government came in and you know that's not if you go into court and plead as a torturous interference with contract claim then the trial court is perfectly within their authority and it's not fair or to find that that is not within this court's jurisdiction counsel before you sit down i have a question and one of the things that troubled me is that both in your brief and and then i climbed opinion you reference how seating standards for education based takings claims and i looked at the cases that you cite for that another other than the court of claims itself the cases you cite don't stand for that proposition they stand for the proposition what the referring to is in general you know when you have a physical taking one you know if you go on for a certain period of time for example it is automatically going to be a per se taking but of a geisha easements or its own you know it's these happen frequently is not sufficient because when what we're talking about in general when there is viability when you get to that stage and it's definitely the case it's not there not just thirteen year i mean that's when you're talking about that we're talking about very sporadic you know very sporadic overflight some so we think that that's just the normal you know pleading legal conclusions or the exact element of the claim is not argument where the number of three to fifteen was thrown out we didn't have any idea what they were talking about because it's not as if he's not as if there's an actual mark training route that flies over their property big difference and it makes a big difference in terms of how it's being play i mean if you regularly could mean you know on the dot once every four year it could be one fly at oral argument there was mention three you know maybe three a year which we certainly don't think would constitute an abrogation event but we do think that that's an element about the insufficiency of the pleading as a matter of law one was insufficiency as to frequency but the other was the absence of an allegation that whatever the frequency was it making that's correct but that and that wasn't you know i don't think that the trial court specifically reached its decision on that grounds but you know on appeal certainly bad news is you know we have we have is that there are fly overs happening so often that it's making the land not amenable to user enjoyment i think can cause be it was causing the chickens to die or animal to panic on the property on a regular basis contemplates physically occupying himself with buildings that would preclude any more flyovers it is our understanding that there is a marked training route through there and the government knows exactly how many flyovers have been in that training route and and you know they just won't tell us and we don't get to do discovery because we've been at the pleading stage so from us from a standpoint pleading we we don't need to plead that they fly over ten times a year or once every five years because if the government is insists on flying a plane once every two years or once every year you know every now validly drawn under under rule eight and under rule twelve in favor of the nonmoving party is that that sentence means that if the planes are flying over they can build their your honor and so i apologize that i don't have the paragraph of the employee of the complaint right in front of me right now although if the court would refer to paragraph fourteen and to paragraph fifteen i think that that will help illuminate the situation now and i will if the court doesn't mind i want to i want to move on because my time is short to the the other point that was being discussed which is this idea of coersion with respect united nuclear you had this company the united nuclear corporation it had to leases with with the navajo tribal council to conduct uranium mining operations in grants new mexico the department of the interior came in and approved those leases and so the company started doing exploration and doing the late work and find uranium will that all of a sudden united nuclear the mrs plans for approval to the secretary of the interior and the secretary of the interior turns around and says it's going to withhold approval until the tribal council approves it and that this was never forthcoming for you know two or three years i think and in that situation this court found that the taking had occurred because the secretary had essentially interfered with the contract between united nuclear and the tribal council by colluding with the tribal council to keep allowing them to not grant the approval for the uranium and strike extraction here we're we're sort of talking about some analogy you have a landowner who has contracts with a private with a private company to do another type of energy extraction and the government comes in and doesn't take maybe a formal formal action and we don't know if what the air force was telling the company was authorized or not but that's something that's not appropriately dealt with at the pleading stage  something to be dealt with through evidence and they've got summary judgment but those conversations be between the the the wind development company and another government agency you know the air force and potential conversations between the air force and f a a which are implied in that allegation are so are exactly like what happened united nuclear you have these entities that are tied to the department of the interior of the united nuclear and the  are basically setting this project down and in our case you have the air force saying to a private company you're never going to get this project off the ground it's dead because if the f d a is not going to not going to do that no hazard determination because we fly over that property and we can we tend to continue to do so i'm out of time judge judges if you have any questions i than