honor this case is about a class of one the equal protection claim under the fourteenth amendment and which the plaintiffs have pled specific facts that demonstrate a course in conduct of hostility towards the  at this time continuously it continues it continues with the application for a change or a diversion well it never ceased to exist during that time so i didn't say it seems to exist but i mean there was yes a subsequent petition for change of point of diversion yes indeed did that also include a petition for a change of location of use it did it was a point of diversion and it was a point of use meaning where you're allowed to take the water from and where you're allowed to use it your honor and thank you that it was to the letter the change of place of you yes what was the requested changes that was granted initially on this point i don't have to have a map to describe it accurately t through the point a diversion was on the map located i believe and i hope i have been asking about the change of the place to the place of use yes what request was made in that regard that was granted you know your honor i wish i could give you a better description that but i believe that is not at issue here but it seems to me relevant oh well i believe that the place of use was not significantly different was going to be on the property above the stream the point of the version i think was really the thing that got this started because the map located it in a different the original license located in a different place when the water board came out and i believe they first came out and around two thousand between two thousand and six and two thousand and seven they came out to the property they looked at diversion is the use of water from return flow so when upstream use or yes it's here it's far more than in does that water and the return flow form a natural channel or something physical yes it does it is it is it's there's a retaining basin sort of at the top of it the i mean we've had that that going by the property you have the stream going in the house below there's a retention area up there that brings it through but it's connecting there's upstream propert i think that's true i think that it would it would it would if you stop the flow i think you're asking if you stop the flow to the to the lean property what would happen to that water is that the courts question i think if you stopped it it would it would just disperse i wouldn't it why it would disperse so what were the facts that lived that seem to be a bit bizarre that the purely there was criminal proceedings because the gentleman was cleaning the ditch yes yes and when you say the ditch lien and a tenant on his property were cleaning the ditch during the summer during the summer because the rainy seasons in california this ditch was essentially almost dry i had no connectivity below and it had very little water in the ditch there certainly were no woods no biological life at the time and this is in two thousand and two august of two thousand and two when they were cleaning the ditch a fishing game warden spots them and says you are altering a stream bed without a permit and a stream  thousand and three the local and this this would be the the district attorney defendant thomas had charged mr lane with a misdemeanor of alteration of the case then went off into diversion because mr lien didn't even know at the time that he had a license a water license but in two thousand and six the water board said mr lien you have a water license i guess they've made some inquiry about this as they were investigating this criminal case and this water license runs with the land water licenses any nine seventy nine and and but then it was discovered that there was this need for an a correction to the point of diversion point of use now the district attorney in the meantime had convinced mr lien to go on what's called pretrial diversion of reform up in butte county it's not exactly the same as it would be in the bay area but the gist of it was go off we're going to go on to your land and we're going to look at your land and decide what you're going to be allowed to do with the stream but in the middle of that of course he finds out he has  water license the district attorney and district attorney defendants develop what's called a restoration plan and this plan is going to supposedly take the stream and it's supposedly going to restore the land to its natural water braids and natural flow now the problem with that theory is that it's apocryphal to be simple it there weren't any and this jury trial actually involved that case being presented when we fight seventy co appearances later he won his right back to a jury trial to get out of this this this idea and the reason mr lien did not want to do this restoration plan is because it would require taking this irrigation ditch that had been running through this property for many years and moving it into an area on his property that would actually during the winter months flood his property and his neighbor's property so he on his own advisers were telling him don't do that don't agree to that not to mention the cost in the expense and if it worked the case goes to trial no this thing has always been there and it shouldn't be moved and the jury decided also and also there was evidence by a biologist and by a geomorphologist we had all the experts lined up and the jury rightly determined and said that there was no it wasn't a stream under california law and there would need and this restoration plan was bluntly a nonsense this is march of two thousand and eleven now during that time prior to march of two thousand and eleven between two thousand  the case was pending for purposes of or application of expiry communication with little course be prohibited in colorado to actually to use the criminal processes to effect a civil result is actually unethical and is subject to sanction and it seems to me that you're describing communications to an administrator essentially an administrative agency under california law that are prohibited but i couldn't tell if they were subject communications regarding the pending case what's your view of this so that i can understand your position and i misunderstood the court's reference to ex parte but they certainly were communications that mr lien and his lawyers were not privy to i was there off the record and not then without notice right off the record without notice these communications these back channel communications that i describe were discovered later through public records act request and also productions after this lawsuit w those in the record they or played in the complaint because this goes by complaint we don't really have a record but yes those those communications are played in the complaint he communicates with the water board in two thousand and seven and says no you can't do this correction resending water board says look we don't want to get in between you and the liens regarding this we'll resend it mr lien you make an application for an amendment to your license mr lien because this thing with the district attorney is going on everybody agrees it's going to go on hold and till after the criminal case is over kimo case concludes with an acquittal in march of two thousand and eleven in april of two thousand and eleven mr lane and his counsel including me and yet it water rights council to went to the water board and said we're ready we'd like to get our amendment completed this is a routine matter we've already been out once we need to see it again let us know district attorney gets wind of it again and starts opposing it but after that after the acquittal let me entitled to a pulse that he was entitled state notice was to the district attorney and by statute but the question would be why was he doing this for a rational purpose meaning was it did he have a or was he doing it for indictive reasons and i submit your honor that he was doing it for been dic if there is a going to be a change or an amendment that notice can go to the district attorney's office in and so that he i have a right to that notice and that's that's what invokes the state action is why i wasn't just a private citizen it wasn't john smith the neighbor calling the wa district attorney and his agents mr lane and others calling the waterboard and saying no you can't do that and he raised again this same restoration plan what's remarkable about this is that during the trial the district attorney presented no expert testimony on the restoration plan when the maps went up on the screen and showed that the stream had been there since one thousand nine hundred five he had no response to that but yet he still went back to the waterboard in april and said this restoration plan has to happen he told counsel and this is alleged in the complaint that if you don't adopt the restoration plan i will continue unrelentingly to oppose your water license amendment we're down to two minutes thank you all wrap up and say that after that helicopters are flown on the land and a year goes by and in two thousand and twelve your honor the  we're talking about here is a true will in a water channel and you have the force of the water is our return flows from a previous legal divergence from st correct the if i understand your there isn't a riginal diversion from this what is the name of the street well that's the difficulties it's labeled under the water permit as the unnamed stream tributary lawyer sent but there must be water flowing down creek by an upstream neighbor is that correct no i don't think that is correct i think there was water permit for this landowner to divert and water and you're on the dry creek from from this other words there is water channel you can divert and use but that the mislabeling of this is just an irrigation ditch i think is is misplaced that there's a water channel from which were there was a permit to use it was observed in two thousand and two that there were significant traffic tractor work being done the environmental da for the county cited both the contractor and the owner the contractor pled guilty the owner pled no contest and wanted to enter a diversion program which required working out an agreement for restoration the two parties never reached an agreement on restoration the owner mr lien in the midst of this discovered that yes there was an old water permit for this property he went down to the a change of point of diversion did you did the district attorney enter his or her appearance the district attorney was not notified of the request for  correction when the district attorney learned about it in the context of the criminal case because it was being proffered by mr levy as a way to to modify why did she did that that point the district attorney moved to intervene in the diversion proceedings change appoint a divergent proceedings and i don't think there's any formal action called the motion for intervention but the district it dirty evaluated this ministerial amendment contacted the water board and seriously without giving notice to the other side or giving them an opportunity to be heard or to be present during any such presentation whether with many opportunities to be heard and present evidence once the water board contact wise and such an expert a communication if there is a civil court proceeding and any one of the three of us want to intervene or to be heard in those proceedings there are proper procedures for being heard at those perceived as correct and it's called either a motion to intervene or a motion to join or some legal proceeding that gives the district attorney standing to heard now the allegations here as i understand it is that the district attorney is vigorously pursuing a criminal a criminal case is proceeding to inject himself or herself in to the subject of the minister amendment was put at issue and proffered by mr lee in the criminal case to impact sentencing and when the da learned of this he looked into it he investigated he also has a separate employment role with the applicant correct these initial communications i think that is true but then that that when the board the answer my question is yes i think those those first to contact after the da was made aware of this  new ministerial amendment the initial contact with the board was by the d a without liens involvement and i asked the white why isn't that a clear violation of due process well if i bring a case or any of the three of us bring a case in court we have the right to a fair hearing and would duration of our dispute on the record and if some other part was standing or not perceived to intervene in our dispute and back channel the court that's why isn't that a deprivation  due process well i'm not saying it's that it's good that we should recognize it that we should give it there or you lose the case or anything like that i just want to know your view of why that is not a violation of due process i guess i would  t the first time the da learned of it was in the context of the criminal case and the statute does authorize the da to protest are you did you did you take any steps on the record to protest did you take any steps that normally would be pursued in terms of intervention of that type to give notice to the other side that you are going to seek to be heard and have an opportunity to have counsel present while you do so i don't believe there was such notice in advance of the first contact i believe the matter was that subsequently shared with the criminal court judge there was in fact a motion to dismiss the criminal case because mr lien objected to the very contact  your honour's is pointing out there was a full blown hearing of that issue in it and a lengthy transcript the court did not grant the motion to dismiss but the court in the in the full context said look if mr me didn't know we had a water right whether it impacts were not on the criminal charge of screen that alteration i'm going to let him withdraw the no contest plea you guys haven't work out a restoration agreement anyway so we're going back to you know a pending criminal case you can plead not guilty that's when kanada stepped in to defend a criminal case counsel who i could turn to the legal doctrine in this case for equal protection and due process clause as to the due process clause argument i understand one of your arguments you make towards the end of your brief is this is covered by qualified immunity yes is that correct ok and i think you say in your brief that that was raised to the district court initially correct it was ok so i understand your argument there on the equal protection protection clause argument i was having trouble understanding what the district court did with that argument can you show me where in the district court's order it actually discussed the equal protection clause and why it was dismissing it i can't your  guess i can only say that that there are three orders granting motions to dismiss that appreciate us today the first by judge carlton and two by judge nunley equal protection defenses were briefed to all of them i think that ultimately the the implicit finding by judge not only is after the order granting the motion to dismiss the third minute complaint where he says look anything before may have sixteen is time barred and that's you know you lost your ministerial amendment backing away you knew it you briefed the criminal court saying that the defendants had violate your constitutional rights so you are on notice it was a discreet act you didn't file suit that's time so the judge not only said tell me anything you got from may seventeenth twenty twenty ten forward until may of two thousand and twelve when you filed suit that's what we got in the fourth amended complaint it could system of nothing more than about four or five miscellaneous allegations of communications by the district attorney and the environmental consultant lane to the water board about their protest to the petition we went through those very specifically at the in the  in the brief on the motion to dismiss and i could cite the court to the record if it needs that but it's two or three pages of the of the motion to dismiss i would point out and we say this in the brief that each and every  post made twenty can statement or opinion expressed by either my client's lender or thomas each of those is covered by the state was board decision and virtue in virtually every instance they actually  affirm the assertions or concerns raised in those print protesting and i appreciate that your argument on the merits as to why you should prevail i guess my concern is that as i read the district court's the last order i'll say the judge donnelly final order i just didn't see anything saying you're right or you're wrong i just didn't i didn't see anything in normally we review judgments and not arguments and so i'm just not sure what judgment we're reviewing as to the equal protection clause argument so if there's a piece if there's a i want to confirm it i look you didn't write the order and i stand but if there's a certain page in the axis of record i said no no here is where judge not only said squarely this is why you lose equal protection cla argument point quote me too it is not there is not in the order and i guess i could only offer on that is that our position is that under the plausibility standard the facts added in the fourth a minute complaint simply would fail to a state as a matter of law equal protection it requires some facts pled to establish that he clear standard existed against which the departure even for a single plaintiff could be readily assessed and i would submit  here in this context that there is no we have a water cooler that put water cooler that permits the d a s protest and the factual history going back to two thousand and two with this case the board saying there was an incorrect ministerial amendment all of these various factors that i would submit there's there are there is utterly no clear standard against which a departure could be assessed on the facts of the house along that same  did a district court address the qualified immunity issue the district court did not and how about the issue of whether or not mr ramsey could be hailed individually liable with that issue addressed by the district corps not in the would submit your honor that that is one option but what i've feel is of the record and the thoroughness with which judge carlton judge not only twice have examined the legal issues here in the defenses including statute of limitations there's malicious to firm is a matter of law and you would agree with me as well maybe you wouldn't agree is it fair to say that the record in this case showed a level of involvement by the discreet turning that was minor offense i would submit that the environmental da takes very seriously all perceived violations of environmental law and prosecute them a very vigorously i think that that the backdrop to this case with the contractor pleading guilty the no contest plea the restoration effort and then all of that coming on but no one that was resolved once there was an acquittal the d a still continue to challenge vigorously the application what do you attribute that to because it it it should have been missed missed presented misrepresented by the applicant seeking a ministerial change suggesting all these works exist forever when in fact no there was never a dam or empowerment before that was never part of the permit the the point of diversion and the place of use were in fact different and in the state board dug through all of it went independently to caltrans and said you know will the irrigation ditch will stay exactly where it is there were no there was no change in that the water board also importantly said that the district attorney's contention that the license was revoked as a matter of law was rejected by the water board it always remained in place and the water and the license was proved the inspection was really a replication of what happened in two thousand and seven and the issue was sequence sent by the way and the matter proceeded to answer your honor's question about the equal protection it is true the district court did not address the equal protection and the district court seemed to have perhaps assumed that if a finding of no protective property right which i think class of one does not require a finding of a protective a protect property rights although there is one also if the court were to send this back i would also add that that on the issue of comparison which was breached by counsel the night neither the ninth circuit nor the how we determine if there's no compared or how do we determine whether or not the individual has been treated differently agreed your honor and i think that's the critical question that's where we start with alike and and i think and this according to your heart in the ninth circuit i think the first thing is you don't have to deal with that issue you have to plead something plausible and in this instance if you plead animus or hostility as we have and pled in detail and i go through those with the court but in the limited time that at the pleading stage and again t comparative really doesn't have to be there in the pleading stage in the seventh circuit has said that also and the ninth circuit haven't said that isaac hasn't commented on this trip so you're saying park last one equal protection claim no comparative is required if you animists because it satisfies the other prong that your honor brings up and you can't just be a conclusory reference to him and i think you have to have specific fact allegations to say these are the reasons why there was an illness and i think we more than think it would be prudent for us to remain and to the district court your honor i yes it needs to be remanded to district where i think the question is when you remand us is there anything else you want to tell the district court on the way down and i have to leave that to your honor's but i think