versus the united states two thousand and eleven so i've thousand and one and five thousand and thirteen  thank you ron has made since the court appearance later sent to the united states in this case the court of federal claims awarded in excess of fourteen million dollars in compensation in interest for regular tory and physical taking his reasonable investment act expectations in private property were entirely frustrated by government regulation to the extent that he was denied all economically viable use of them and that they were essentially appropriated by the government but the property interests that hage claim here was water rights on federal range plans and rights of way over federal land  and he contended that the government regulated these to the point where he could not use them by virtue of streams and ditches becoming clogged with vegetation thanks to government policies but exception and there is an exception for routine maintenance of rights of way over federal range plans for the maintenance of of of ditches water ditches and some other structures to convey water to the land he did not believe that the that kind of routine maintenance that was allowed without a permit was adequate for his nathan how do we know in the kind of routine maintenance what would constitute routine maintenance or is there an opinion by the secretary is there some written notice of what constitutes routine maybe that first of handbook at the time this is now regular is now in regulations but the rule at the time was that minor trimming and pruning of vegetation to clear waterways was with hand tools was allowable respectfully say and yes potentially interfere with the other users of federal lands and join those lands or disrupt the government property on them is subject to the special use permit requirement and here there is an exception for minor pruning and trimming of vegetation in rights of way for that conveyance of water in winter had on previous occasions of the special permit is that right that is correct your honor the record has copies and when  paying those special permits did it were they so expressive to indicate for example what type of equipment he was allowed to take onto federally what does how is the permit written the permit merely says that he has the right to use and maintain the right of way it does not so at least the example that is in our appendix does not specify the means by which he can occupy the lands but it doesn't specify the lands that is permitted to in previous instances when he did receive a special permit is there evidence in the record that on any of those occasions he drew for example a cat's kind of bulldozer or some sort of are there any is there any record evidence of what he used in order to do it and whether or not it was just in to by the government or something like that mr page's testimony is that he drove a four and because that's what he did pursuant to his special permits in the past presumably your honor i am not sure that that i have to moni actually makes that link he does describe his use of those kinds of machinery and his belief that that is the kind machinery necessary to clear the ditches that he claimed he owned under the eight hundred sixty six asked and the testimony showed that your honor who did not have to eat was not entitled to the futility exception where he was never denied a permit the only reason a permit application could be for lack of a permit application to be excused as you note would be because the regulator already had the knife a similar permit and there was no reason to believe that the outcome would be different was plainly not for you is plainly was not futile your honor that's what the record shows that he was granted permits when he requested and also shows that he did not believe he needed from it so he defiantly declined to request from it and his claim therefore for the regulatory taking was on light and the its normal channels the streams that were in enclosed in part my fences also float above and below the fenced area so that means he has access to the water outside of the senses this isn't a fences on his on the permit on the allotments on which people permit it would be as to those those were temporary and were removed seasonally and as i said did not prevent him from using water because the that is all the all of the evidence about that and i'm not sure it's relevant to the question whether and water rights were taken since that was a temporary exclosure just some of the united states land not his water which flowed above and below in both surface an underground channel and then finally he claimed compensation for permanent range improvements on federal land now permanent improvements ranging from which is a specific category of things it's not just the leaving something and permanent range improvements are allowed on the united states range plans but only where the secretary has given or do you does someone with a greeting permit have the right to for example return without securing first the civic permission of the right and they have to be permitted in the first place  maintained for maintenance of permanent ranging from grants on lands to which an individual may hold a permit is a permit requirement and therefore hates with on the land subject of his agreement to maintain with those improvements he was not entitled to any ownership on that basis either so as a matter of the last all of the takings and all of the compensation that was awarded here was not justif your honor this case is really not about raising them per se really this case is analogous to a case where a city on the water rights up in the mountains on for service land they have either a pipe or a flume that conveys that water down to the city so it can serve the service inhabitants in this case we have water rights which i don't think anyone dispute some seventeen thousand acre feet that before all this happened were carried in ditches down to the patented lands owned by the age family well you know the story and government's position is incorrect and homeschool its was correct well certainly there's more than enough in the record to support judge smith's a conclusion that there was a regulatory taking of the reasonable there is certainly testimony in the record in the appendix and i would refer you to page is also clear in the record that there were twenty five point five miles of these ditches of rock water down to the patented lands that it would be impossible to maintain with intuition as the big think judge rivers found it would take hundreds of workers forever to maintain those digital and then you show me where the testimony expressly says that even with a in nineteen seventy eight seventy nine and throughout a lot of this time period you came to a special permit and by no testimony you larger than hand tools quit meds at the same time received from the forest service where does it say that with a special use permit he would only be allowed to use candles i don't think it permits it's all use of national forest system land or designated special uses and must be authorized by an authorized officer where does it say that he would be limited to handle if he got authorization it says the parrot unauthorized cutting trees in damages would be improper so it doesn't say you are not authorized to oh i'm sorry that was my error ok now you want me to look at the ten to twenty eight you know are you referring to the transcript page one o nine i am indeed going to turn forty eight lines fifteen sixteen seventeen right now but rules the regulations and they said the only kind of maintenance we could do had to be with him but it's the same said that the only kind of maintenance he could do with a permit or that the only kind of maintenance he can do without a permit i don't know i don't know but the problem is that the record doesn't have phantom evidence to support the idea that we think herman he would also only be entitled to using  so you're on the ground but this is one of them that you're talking about now that's correct ok but you can i would also like to proceed by saying even though judge visit found a regulatory taking these of using the make it very clear that the conditions of the permit had to be reasonable and he found very specifically that they were not reasonable carrying vegetation policy triggered a physical takings analysis under casie is i know that judge smith didn't go there but i believe that under deceit is where a restriction on private water use terminates the only private interest a physical takings analysis is properly apply and clearly the record is full of testimony documentary evidence bad because of the policies employed by the forest service the amount of water did not the amount of water that should have reached know that was because of a plant vegetation pursuant to the forest service policies and the lack of the ability to maintain the d s do you have a problem with respect to the statute of limitations of the physical taking with respect to the fences or wrecked the early pens you know that could be coleman was grazing with no permit mr cole been involved in the situation with mr coleman involved stock water only there was no or there were no there was no land under a geisha fences were erected well mr he still had a grazing permit in those air pence areas were not removed from the from the boundaries of the allotment so were so in call when there was no  stop water only got irrigation water there and i mean it and he did not in cold and it is really an totally different situation mr despite the fact that the government would like to paint that picture mr cage was not a scofflaw he was was grazing its cattle with a valid permit he made i think more than  superhuman efforts to comply with the directives that he was being given by the forest service and by the b l m ultimately to to  now quickly on the range improvements of council for judge states mentions i think those range improvements are i think the record is full of reference to the range improvements talking about the report of dr angus mackintosh we're talking about the testimony  united states tries to paint the picture that these range improvements were not constructed of place by the cage and that cages and that they were compensated for all the r two million four hundred fifty four thousand nine hundred and twenty five dollars and judge smith only awarded one million five hundred seventeen by winning thirty nine dollars which obviously took into effect b range improvements which were neither constructed or replaced by the ages thank you claims to range improvement i understand the government's argument to be that the initial value of recent accommodation should be determined by the secretary but when you have no procedures in place that would let the average person know how to right to claim until he had thought of compensation from the secretary secondly he didn't have any permission to make permanent improvements on federal range land without a permit and he therefore wasn't entitled to any compensation under the regulations he also wasn't entitled to any compensation where he waived his permit by selling his cattle so he had no one title meant compensation ha he been in the category of people for whom compensation is available for the remaining interest in authorized permanent range of programs when a permit exterminated he would have been advised of that process because the forest service would have been the person terminating the permit before the expiration date and hat in the process there would have advised him of any appropriate procedures for him to claim compensation he wasn't entitle to any compensation and there was no appropriate price so it would mean of fences or something like that not the range improvement i mean it's the same as so deteriorated that it simply isn't even working anymore and  in the improvement when that termination occurs before the terminations date of the rest of the permit so he didn't have the right if he didn't have any in title the two hundred stations for any of that work that were was part of the