we're all familiar with the adage when it rains it pours but for in a stronger when it rains it floods not by water from the sky but with human excrement crowding from the town in jonesboro sewer system on to her property and into waters of the united states and it has done so for years despite a lesson foresman actions by the state of louisiana the district court dismissed rumors clean water obsolescent sued for civil penalties in ecuador leave her person in retaliation claim and her fifteen minute takings claim and has condemned stringer to sacrifice her federal and state constitutional rights her dignity her health and the health of our nation's waters so citizen suit for civil penalties if all of the following four elements are shown the commencement of a state administrative penalty action the diligent prosecution of that action the administrative penalty action because it's in the record so what what are we what are we what are these do you think i'm precluded from looking at that or what you are i would i would say that because the done with respect to this problem you are in the record here there's evidence only of what l d q has documented but not when they have prosecuted forms but the i mean if there was a focus on the health department's sanitary code that's one thing but if there if it's both and we have to look at the record to see if we can affirm on the basis of you know perhaps an alternative basis i just i complaint shows you know that was part of the argument later but the town of jonesboro has deceived d e q in those allegations have not been contested throughout this occur so it's not a diligent prosecution and that may be because they have improper information from the community who saying it's been solved but they're not diligently prosecuting it so we would need to send it back for that determination at least is that your position correct your honor and that's part part of the position i would say that as far as what d e q has been doing so far we don't option how do you been having the action much less doing what they should do with they have done correct they are yeah i hear what you said that's very helpful because you're saying well yeah there might be stuff in the record with or trains with l g q but it's not enough you're saying i think to meet the steps of events that would bar the citizens to correct your honor and on top of that the issue of whether the state is diligently prosecuting we believe has been confident the supreme court has cautioned that you can't really determine when the taking occurs and so the government's invasions of stabilized and  time that's fine counsel so you have a minute or two and you have your buttle time ok well sort of a i'm confused i was confused by the time i didn't get the minute and thirty thousand seconds do you want to say anything else or you want to just go to  is where all the statute requires is billed him or the section two are does not say that the regulatory agencies have solved the problem required to trigger the clean water what do you what's your response to that you are there that we recognise the split in the circuits all the issue of whether only do about the fact that there's nothing happening to comply if there is compliance order has gone out and it's no compliance whatsoever even though they allege that they said that they  they're lying but i'm not i'm not saying that that i mean that's in the record so what well that's no complaint is happening in this continues on today what are we supposed to be waiting for them for the district it wasn't considered in order to win and it hasn't been considered yet in appropriately valuated it's actually contested shouldn't it have to go back to the district court  case what if we look at the complaint and we did find that maybe not all of the all the instances alleged occurred within the one year period that someday when those when those claims being not time ar house and absorb the louisiana courts i handed the eastern district of louisiana who have spoken to the us periodic loadings due to faulty infrastructure is not a continuing toward toward is just continuing damage from a ten year old problem i see as i get your so you think that it's all nothing because it all stems from that one problem that and time is run on that the points made by counsel to the town has has alleged that d e q has been diligently prosecuting the ele q a and has been continued without any signs of slowing down or stopping for the past seven years and why are they continuing to why are they getting to this very day and that is the issue that mr hurd to follow her clean water  yes of course d q has been doing something maybe diligently documenting but not diligently prosecuted and something more needs to be done and i what point a penalty should sure the presumption of diligence meigs this but here in the face of that presumption these discharges are on to a continuous and have been wanting after the government has invoked its unfortunate power and that's sort of the you know the the the catalyst that led to stronger following suit want to try to distinguish mr meyer you brought up some cases that he and his view show that this is