ditches these waters are specifically a different class of water so rich three classes of water is involved which i'll mention in a moment that were affected by the court's regulatory decision the waters affected by the in age four it had found that there was a physical taking based on a practical physical ouster and having discussed the standards that applied to that he would reinforce that and page five footnote thirteen it also relates all the way back to the to the complaint itself because we alleged each one of these kinds of taking in the original complaint and asked the trials progress there were classes of water discussed by the i have a problem with that because it seems to me that you consistently up until this core said that it was the same water that you were seeking to cover for on two different theories itself you're on or distinguish three classes of water waters that were carried in ditches to the private lands irrigation waters livestock water rights which were enclosed by the fences that had been at issue and then there were waters that lands but not through the ditches the court discussed all of these and seems to have treated the waters that slow not through ditches as the primary target of the regulatory takings claim and the waters that flow through the ditches and as a alt of the physical now i answer claim in addition to i don't see that that's the case or that there was a separate award for its water if you will and other water for i mean what is what is the what's the basis for suggesting that there was a separate judgement with respect to different  items of water on two different theories that if that were the case you might have an argument here but i don't see that the record supports that not your run of the court calculate this is not a lump sum judgment and although he obviously judge were we find this page to await i don't have the actual decision in front of me but he also on hage four fifty one five claimed at five seventy eight also i knew the specific waters that  were were at issue let me ask you to assume that you're that you're wrong that we find that it's the same one you lose that your honor we disagree with that as well and the reason being that both the physical taking claim and the regulatory taken same regardless of which waters they are aimed at are two different ways in which it taking could have occurred by analogy if the question for example is whether i'm entitled for damages to my car it doesn't matter whether the court has found that my car was negligently damaged by the defendant or my car was intentionally damaged by the defendant even though the saying that saru but if you had a heart of appeals decision say you can't recover or damages to the car you can't very well later on say that the court of appeals norton one of your theories and you should be able to really let a kid and i'm not sure well first of all i'm i would not agree with the characterization the court found that there was no taking under the regulatory claim it simply determined that because no attempt to obtain a permit had then made which judge smith found was based on futility in the court disagree the court said the matter was not ripe for litigation that is a different thing than saying that you would not be untimed compensation under that however there was no exhaustion requirement for the physical taking this claim out there and so there nevertheless could be  taking the judgment even though it affected only the same water and so the court your honor respectfully this court did not find as we read that opinion that it was in fact  different and so it is quite possible for the court to reach that claim because there was no prerequisite to the court's jurisdiction and finding a separate was taken because different legal standards applied there was no balancing act the physical taking standard says that if it is a physical practical physical os or some other physical taking the government's interest doesn't matter there is no question about investment back expectations there is no question about the importance of the government's policy in that if the water was physically taken it was a purse a taking in the only question then becomes which water or which what the court found three distinct analysis of government taking us and you're trying to add a fourth i'm not sure i follow your  if you look at this court's decision the ultimate holding in the last paragraph of the decision the court says to the extent that physical takings claim relies on the erection offenses at a certain date we reversed because of the statue limitations and the extent that the physical takings claim relies on the erection and says and a different date in time we find that you have not shown that sufficient water did not escape for the livestock to have access to that in fact a transcript of that argument but when the know it in fact we are and i have to say that he couldn't have argued that because the decision had not yet been issued the question came up when the court issued the woman was a physical taking because there were a lot of maintained that yes well that that your honor is true in the sense that the court that threats the intimidation mr hague that really capped off and summarized the whole course of conduct and by the way your honor not only had to do with ditches for example there was a situation cited to by judge myth a reference to the transcript where the government officials took a large fact that were being walked down a road remove them pushed the camel off the road into the field took a photograph of livestock and then claimed that there was trespass on the part of just ditch maintenance that was an issue but the final the final prosecution in this strange was when he went up to the white sage ditch and using hand tools and hand tools only now i know the united states has argued without citations the record that heavy equipment was used and heavy equipment was not used so that when the united states are rushing you know well and here i'm sorry or you are well into your republic you know i don't want to use that is it the same water yes and this court now that the united states appeal each component of that taking for which compensation was awarded by the by the court of federal claims and because that's the case and under that medical which governs this people any issue encompassed within the judgment that was appealed is deemed incorporated in the mandate and the mandate included no instruction to further consider any claim that means further consideration of any claim is precluded under the many so there really is no further need to argue what water was what that water even if page is correct that there was a whole thing with respect to different waters the entire judgment was this court's jurisdiction on appeal in two thousand and twelve its mandate did not in federal claims to further consider any claim well we don't know what exactly the mandate means in that respect if there was if there had been a separate component of the judgment attributable to the physical and not a regulatory taking with respect to the claims decision that could lead to the conclusion that there was a separate component holding that there was a second taking of the same water in the ditches that is address to be wrong about that it may be that judge smith articulated an alternative physical to a theory but if he articulated that theory with respect that the same war then that would seem to be that it's covered by pursue it even if that is the law here your honor that is not the case here at page two thirteen of the court of federal claims decision eighty two fred claims it specifically addresses the water in the ditches under the disagree with suppose we do judge smith as having the alternative holdings based on physical and regulatory faith then we would submit your honor that that second component was in front of this court argue that the award of a million dollars on theory a was wrong and didn't bother to address the other one and then you have a problem and say the mandate that set it back  encompasses both series one and the second theory relating to different property was not argued on appeal well if that were a completely separate and collateral holding addressing physical taking with respect to the ditchwater well said no thirteen merely explains that the hey just contend that their physical ouster or that the actions of the united states result honor within the structure of that decision when what why would we consider that rolled up into the mandate that is within the mandate because it's within the scope of the judge but i don't see wh your decision to alternative grants one on a physical trait and one regulatory take and that the government only argue about regulatory treat the erie on a first appeal what is the consequence there is no reasonable interpretation i believe of the court of federal claims opinion that could that opinion to have held that the water in the ditches was taken by physical occupancy it instead analyzes the water in the kitchens and that so called intimidation threats has it is without her under that same case you against us and us and you know it like supreme court made clear that you without a physical occupation of the property either by the brief the best understanding of that is that it's a loose use of the letter of the word held because it references a footnote that does not report to be a holding in a decision that expressly says it does not address taking about that it's still the same claim it's not even if there are two alternative theories and of the resolution of the claim even the our court might have failed to address one of the series just going to hit very quickly your honor the government's contention first of all that it was in the scope of the judgment the judgment of course meaning simply stated that there had been taking a water the court of claims pointed to do different court when it's going to be easier to put it this way when the court said i have already found it didn't actually stop just there it went on  restated that conclusion and then said i will now turn my attention to issues that i have not already addressed that's when the court gets into the read the story taking place but it doesn't stop there it then goes on to contrast the physical ouster takings claims and the conduct of the united states that that gave rise to that decision of the court and contrasted that with the decisions it was making with respect to the regulatory claims for example in the physical takings claims it basically says these were based on actions not based on public purpose or regulatory purpose but out of hostility toward the ages and he points to the prosecution in points in the harassment and then in the hostility of the show by references to the transcript then when he talks about the regulatory taking say now under the regulatory takings claim it involved the