split or time between mr politan myself and leave three minutes remaining for rebuttal as well so if we can split our time six minutes apiece and three minutes rebuttal ok and let's you know we're pretty much at fifteen so tha tax evidence of the amount of livestock that i had paid taxes on as the amount of cattle that were actually alleged to be grazing and for what i was charged  damages for that is completely wrong and has no bearing whatsoever help me on something here why or how can the defendant avoid willfulness in the face of the agency telling the defendant you can't do this because there is a long standing dispute your honor of how a person with cattle can access water rights let's talk water rights the only physical way to be able to do that would be to take the cattle to the water locate them on the water and allow them to drink the i thought you were allowed to build the dish from the water to the marine that's that's the decision hunter out of this court and also the decision out of this court however the government has refused to allow us to do that as well the only way we c is that part of the record that the government refused to allow you to transport the water no that is not your honor that was after the decision in this court i asked the government three times if they would like me to transport that water off the land through the eight laws directed by this court and all three times they said absolutely not except they might allow us to take one or two water rights off out of the hundred thirty if it was a very short little distance but so proceeding with the tax the tax is now absolutely no way reflects how many cattle that were on the ranch or anywhere on those or on the water rights i had cattle in six different areas in the state of nevada at any given time i had three ranches least in smokey valley in the northern end of monitor valley let alone  the amount of patented ground that we hold ourselves for example of the lower court had decided to say that there were six hundred head of cattle in monitor valley but they refused to acknowledge that our patented ground over seven thousand acres of land is unmonitored valley so i mean the counselor on how did land there on a ranch is all over the state in nevada fallon in the in the cell yards in the feedlots and fallon so they absolutely no way reflect or have any indication of what cattle are even alleged in the complaint mr hage what about the cattle that you were managing and grazing for other ranch or was there any accounting for those head of cattle in computing damages yes those cattle were also included and the government had explicitly several times stated to the court that they absolutely were not seeking damages on those cattle the reason is because they were going after those ranchers through the administrative process and into actually already exacted money out of several of them so they were not coming after me for those cattle and those cattle were also cattle that i were paying taxes on so the head tax that you will to the state in about a depends on how many cattle you're managing as opposed to how many cattle you actually own and bray i took control of the cattle to try to protect those people and in the process i went ahead and paid the cattle tax on it it was a lot easier even though they still actually owned those those cows correct ok so there's such a massive discrepancy there even in the one example well you know as a as a one example would be in the first amended complaint they brought fifty allegations out of those fifty allegations the only actually presented evidence for seventeen of those and so in those seventeen allegations why they did not present evidence to the other remaining ones there's lots of reasons for some one instance in specific the cattle were actually on patented ground and the government finally recognized that and he said it well they better not you know bring that allegation for us and i read your deposition and it looked to me like it was difficult to remember at any given time exactly how many head of cattle were being grazed where yes a district and i take it you didn't have detailed records that would have given us with mathematical certainty how many cattle were being grazed in what location you know their the cattle were placed on the water right but no there wasn't i mean by that time and trial of course i my my head was pretty much told i mean dealing with having to represent myself in trying to remember every little detail of totally understand that i just i guess where my question is going is how could the district court have done it more precisely given the state of the evidence from discovery your answers to iraq it's henri's your testimony on deposition and the testimony of the wranglers who worked with you moving the cows what more could the district court do in trying to be precise well that the district court originally one hundred sixty eight dollars is because that the trial court had only found instances of trespass and two occasions however when this court had stripped off a half a mile limitation then that took it over to the entire seventeen that were were actually proven but further so that hundred sixty three dollars or whatever it was that was for cattle that were not only taken to the water but straight outside  yes yes i see and furthermore going back up to something you said before that it's not in the record but the agency refused three times to let me transfer the water to the cattle that strikes me as really important how come it's not in the testimony or anywhere in the record because the trial was already over well i mean going into the trial  i would have thought that would come up or well yes but it happened after after trial it happened after remount the trial in remand but it did happen during the time you were back in front of the district court refusals made in relation to the time you were back in front of the district court the second time right after that right after that after the district court the second time rendered his decision yes because the united states had refused to grant me a permit to allow access to have the cattle physically go to the water right so i asked him if you're going to refuse that access in that manner then can we transport the water to the patent ground ok but it's clear on the timing and i'm not sure in the end whether it's going to make much difference to us but just to be clear at least as clear as you can be the requests of the bluefield samas lol they were all made after the district court the second time around rendered its judgment is to say while this case was on appeal to us the second time is that right yes ok there is there would be one exception and that was early on and the original trial court during the discussions with the united states where the in trying to resolve the dispute the question of course is how do we resolve this dispute if you're not going let me take cattle to that water then how do you how do i  get that water out of there they said well maybe you can walk in there with a five gallon bucket but the water in the bucket and then you know drive sixty miles home and then what are your calendar in the trial when i asked or it was under positions and it came out in the trial and actually did come out in the debt deposition when i asked the government how would i be able to use this water without having to go get a permit in other words if i can't take the cal to the water then how am i gonna be able to use this water without this permit and expression if they decide to revoke the permit for some reason and that was the testimony of stephen williams when he said well you can take a helicopter you could fly your cal over the water and then drop or in as long as your feet done to ground you can drink the water and you fire out well then really good lawsuit for an injunction on this point well i i differ there's a different question and i maybe i'm misunderstanding some of the details of it but it sounds to me as though this is a simple claim and it may be a pretty good one though he the government has just consistently refused your potential claim of right to get it from or use other another device such as a pipe from your water rights to your ranch yes yes i'll ask mr peterson the same question and it strikes me that maybe this might be a case if both sides are willing to sit down and talk with one another where mediation might be of assistance would you be willing to consider doing that to see if this case could get worked out yes i'm always willing to sit down and to have some clear law that says that your water right includes an and for the hunters in death valley you know they in fact they still on the water and if the hunters in death valley want to be able to use that water they have to transported out of death valley and that's all twenty six sources and the entire flow of those twenty six horses according the well in one of the things i think that complicates a government is most of the water rights are actually inside wilderness areas i mean for for them to allow a mechanized equipment in there in order to put the necessary pipelines in the roads and what not they are  to absolutely refuse to allow that water to be transported but yet they're also going to infuse the law has commands to them as well as to you you're not allowed to graze your cattle without a permit they're not allowed to deny you use the ability to take water from your water rights to your ranch i realize that's a law but if i go and try to do that then i'm facing another prosecution last time i tried to use the water rights in a decent manner i got prosecuted for it that's why i asked about whether or not there was a possibility that you guys might be able to sit down and talk to one another and see if this can't be worked out i'm always willing to do that you're on the problem that sounds like a separate lawsuit from the one you got from the front of us now well you can certainly mediate her future and pending suit and i'm wondering about that to try and wrap it all up i'm wondering about that too it sounds like your lack of rights is now clearly established by circuit authority to graze your cattle on the federal land without a permit but it looks as though even though we have cases that say that you have a  you have a right and the government has a commensurate duty to allow you to take the water by ditcher or other means from their water rights to your ranch it looks as though you've run up against a brick wall there some time you've used up all of your fifteen minutes what i'd like to do is pretend you used up six and we'll go back to where we were sol he would put nine minutes on the clock  you used a constructive six minutes instead of fifteen it please the court my name is mark pollard i'm the attorney for the estate of even wayne hage and by the way i wish to everyone in this courtroom good luck because today is friday the thirteenth actually falls and for you who may have been a pogo fan way back when you know the debate always was what day it is friday the thirteenth fall and this time so i had as usual an argument outlined and as usual it's go end up going in a different direction you know there are basically three issues that this court asked to be resolved on remand one of which is which body of law applies it is the state law is it federal law our conclusion in our argument is there is no federal ever since mason come before to an end before we get there is there any judgment the runs against the estate no your honor but the state's interests are still affected of the value of the estates and sets are directly affected by what rule is applied in terms of deciding whether there is a trespass in the first instance and what the penalty for that trespass ok that's all i needed to know and it may well be that the state doesn't have standing but i'm interested in the argument you're trying to proceed and you're trying to pursue ok you know mason followed an attempt by the supreme court to follow a doctrine of federal common law and by the time they got to mesa and you know erie railroad versus tompkins and all these cases went by the wayside mason was a case that specifically addressed this particular kind of action it was minerals here or it's trespass to vegetation effectively but as the supreme court said you look at the character of the action as a nation and in this case the character of the action was a dispute about title to land who own rut what right there was to access that land and and frankly the remedy that they were asking for and the remedy they were asking for was an injunction to prohibit continuing trespass if one reads the complaint it is full of references to trespass the only time the regulations are actually cited as proof that the got that he did not have permission to go on the land because in their view his right to go in the land was tied up with these permitting processes that doesn't trespass establish the violation of regulation well the problem with the violation of the regulations your honor is that there is first of all the agencies of course have no legislative authority they cannot decide that this is a similar occurrence in a different question i want to i want to focus solely on whether or not it makes a difference whether we characterize it legally as a tr where the judgment is based on administrative penalties imposed for breach of the regulation and isn't the breach established by the trespass actually your honor think i forget what the title is but is in a sense a on authorized grazing unauthorized grazing your honor we submit based on the regulations and everything else is where you actually have a permit you have accepted a permit and you are taking actions that are inconsistent with the terms and conditions of the persons also addressed grazing without a permit your honor i would have to disagree with that because what they do say in a companion regulation is a person you know  what they eat and that's the regulation that refers to itself as penalties and those penalties are to shorten the term of the permit and reduce the numbers of the permit refused to  o x to grant a new permit etc and it then says well hell if the person is not willing to settle on those terms then the government has to refer this to an appropriate person for legal action now so let me refer you to forty three c f r section forty one forty point one which deals with the b l m regulations and it basically says that persons performing the following prohibited acts are subject to civil and criminal penalties and subsection one says allowing livestock or other privately owned or controlled animals to be driven to be great to graze on or be driven across those lines without a permit or a lease that is is the lack of permission according to the government a stance is the way you get permission to kind of status is the violation is that not and it's commit the act is is either trespassing on land on federal land without a permit or allowing cattle to graze on federal land without a permit would respectfully disagree the penalty sections themselves specifically say you can take this to a magistrate and charge them with a violation of the regulation for can i briefly say the question was raised here about whether or not this trust why is it not you know willful trespassing exposing mr hage if you apply the federal law to this willful repeated rate and the reason is in the trial court previously found this i think quite correctly is there were two lawsuits going on at the time one was in the u s court of federal claims the other one here in the in the u s court of federal claims action started more than twenty five years ago i was there it was my birthday so i remember it very well and the trial court in that case found that mr hage had the right the authority to bring his livestock on to the land in order to access and use the water and that the grazing was simply incidental to that that was one of the theories that we applied in the trespass case that case was decided by the trial court it went up to the u s court of appeals for the literal circuit where the government argued that mr hage needed further permission special permission to get to his water right the fed circuit said we think that argument goes too far of course he has a right to to access and use that water right and the hage is were relying on that decision i mean there is even supreme court precedent that essentially says that you accept the government's word for something in your own peril and so he they had and plus they've done their own research mr hage sr you know who is now deceased wrote a book called storm over rangelands and so he did extensive research into all of these questions so they were certainly acting in the insincere and genuine belief that they had the right they had to courts at least i did they say is that exactly when i praise the right exactly i'm trying to get at this distinct the right i value the right to taking the water to the ranch and the right to take the cattle to that was something that was not direct i mean up until this point frankly your honor and in this particular case in our earlier appellate brief that we sit here and say look nobody has ever defined exactly what that right is or where it comes from that that i'm not sure of i mean we say in our previous lands for purposes of diverting the water by the construction of ditches and canals and then we say on the next page inside an owner of water rights has special privileges when applying for looks like what we're saying is you can dig a ditch from the water to the to the ranch but you can't graze the correct cattle on the federal you're correct your honor at that point that was decided but but the meaning of hunter was not at all settled at that point in part of our argument in front of the court was that in the hunter case the case was remanded back and hunter big to give hunter an opportunity to plead and access even at that time the hunter court said he has not played that maybe there is an easement back there and so they remanded it back and said you know to give him an opportunity to amend his complaint to allege an easement which was not done because at that point the hunters simply essentially threw up their hands is that we just can't take this anymore i'm not a parent really interested in the detail of the hundred case but i am interested in the holding of the hundred cases just right recited by judge kleinfeld and if we go back to the question of willfulness well hunters decided in one nine hundred sixty seven and it just as i read it establishes the right to get the water from the source but it also says you can't graze your cattle there without a permit which worries me back then to the question of well given hunter why was it not an obvious wrong for the hage is to bring their clients onto the land of claims itself however your honor and i'm sorry i don't mean to run over you but the court of claims itself specifically looked at hunter and concluded there was a difference between getting a grazing permit for the purposes of grazing and the in dental use of forage while you're using the water right and the government as i say in the claims court case and in front of the fed circuit argued that you could not access that water you know without some further permission of the government and the claims court and the fed circuit question that whole thing so the hague has rightly or wrongly at least in good faith looked at those cases looked at the decisions that had been rendered in their favor and the other research they did and essentially said you know based on what the fed circuit had to say and based on what the u s court of federal claims had to say we are we do have the right and  and the scope of hunter given that the court itself said well he never alleged a right of way and hunter was decided on the basis of the fact that no right of way was alleged so it couldn't possibly have reached the question as to what that right of way existed at all and what the legal and physical scope of that right away would be but even if there is a right of way this is a right of passage of cattle to and from the source of the water and so that and that's i think everything i can in favor of your client and mr here age that doesn't include the right simply to graze the cattle on the surrounding lands well this is where the trial court of course had decided that in fact as long as you were within x amount of distance of your water right based on the part of our below your honor it was that congress can be held to know all of the facts pertinent to its regulations and one of the things they know is that if you put livestock on water you could put one town hand out there for every head of cattle and you cannot keep that livestock from dipping its head down and biting on grass and so congress in our view had to have had that in mind and had wrecking that to me by analogy you're under a bill like say i'm going to give you an easement for a dirt road over my property but you need special permission to kick up dust when you're driving on that road it can't happen is just physically not possible and you right away to access the water in easement for the cattle to get there not really an easement to get the water out understood council understood the cattle on their way to the water when they're at the water and on their way back will eat grass i get that but what happened in this case was much more than that is that cattle were grazing in the area surrounding the the water this they were not simply using some easement to get to and from the water  eating along the way or around the water source because you can't take them to the water source without them eating around the water source the trial court based on the evidence and the normal natural behavior of livestock determined that that included boundaries within a half a mile if it was a linear source of water like a creek or stream it would be fifty miles either side of the banks the furthest extent of the water if it was something like a pond or a well then it would be a radius of you know half a mile around that water source and as long as they didn't stray outside of that then they were within the physical and legal bounds of the easement the court did find that there was trespass when that livestock it wandered away can get the parties to sit down with the able judge or a mediator to see if this can be resolved rather than litigated because it just seems to me that you're spending and godly amount of time and money and not sure it's advancing either side i've been on this case a long run and might well be a probate attorney well i hope not me too but yeah i understand your point is and i would agree with that i've done this before in penn chief judge and the panel said exactly that don't people shoot each other over water i would love to see this do that if the government is willing i certainly think it is worth the effort to sit down in try to talk with them twenty five twenty six years is a long time is there something to talk about the reason that i express inclination similar to judge holman's is it sounded to me as though the government has just refused to recognize the right to dig a ditch from the water to the ranch and it seems like that's exactly what hunter and the previous united states versus sage case held that they have a right to that is so that would be something to talk about i don't know if i'm reading it right now that is exactly right your honor the problem is it's got to be one way this court i think itself said if it's got to be one way or the other we think it has to be this way well then of course we're bound by that agency not the judges we are the agency doesn't get to just judge we get to do do that we each have our side and the problem your honor with the whole thing is that if we if they simply refused to do it then the ranch or you know the estate or whoever it is is back in court again saying now that you've denied us this right now we have another fifth amendment takings claim and there's no question as to his right this and so i would agree that it is certainly worthwhile for the parties to sit down and see if they can figure it out and if they can't figure it out well then people need to decide where they're going to go next you know why don't we hear from the government and we've taken you over time too but we'll make sure you have just respect i think i please the court elizabeth and peterson for the united states i'd like to address the issues that are actually in this case but first i think it might be useful to clarify the question about whether there has been a request for and whether there's a government to let them take a detour from their water rights to their ranch we're not aware that mr hague has ever applied you didn't answer my question what the government allow the hage interest to dig a ditch to get the water from the water rights that they own to the ranch that they own that's a far more complicated question that i think it's being even credit for  one thing i'm understanding that to me no we do not accept what hunter and the previous age decision held no that is not what i'm saying i shouldn't understand that may i may i just explain quickly the water right itself is a question of state law and that mining activity hundred sixty six granted rights to divert water that mere state law so if and only if the state law water right includes the right to use stock water on raising lands by diverting it to other lands he might be able to get permission from the state engineers it didn't use exactly that and entirely up to the federal government he would have to have permission from the state to change the place of use of that water there isn't and you're telling us that depend your answer depends in part on the stand or the nature of the state created water right correct your honor if the state created water right includes the right to divert the place of use from i don't know what would be close to the source of the water so if the state created right includes the right to transport it from the source of the water to their ranch and i do not know how far that is if that state concluded right includes that right with the government to post there again the government has to regulate the lands for multiple uses so whether he can go out with a shovel in to get it's to move water from one point to another in order to use a right he claims in the water isn't entirely the authorization to authority for the united states to allow that well don't you have to if you're not going to allow it but you have to condemn the water rights and pay the damages if he were to apply water and also for all the dead cows your honor there is nothing to do with dead cows here if they don't drink they're going to die that may be correct but the right to use the water depends on the right to use the land so i do not believe we would be liable for any dead cattle if mr hage were denied permission to  a ditch across the land and the reason i got the idea about the ditch is that i read a state of page where it says in hunter vs united states we held that pursuant to the mining act of eight hundred sixty six and another act an owner of water rights possessed a right of way over federal lands for the purpose of diverting water by the construction of ditches and canals so i understood that to mean that the hatreds have the right to divert the water by the construction of trying to we know it wasn't before the court at that time we know that it hasn't been adjudicated we've read the record and decisions and i think what we're exploring is is there any point to a mediation or is the government just going to say no or salto everybody including the cattle or dad or if you know them are going to work something out in accord with what we held they just have a right to the united states is always willing to talk if there are if there is the potential for a mediated outcome which would be vastly preferable here to the incessant but a geisha and so who needs to be at the table besides the government the estate and mr hague i heard you say there there might be some third party that like a state water rights authority or something that might need yes it would seem like the best outcome would at least require the hay just to have permission from the state engineer to move the place of  we don't understand that there is any deficiency in the water for using and the amount of water available to use the forage on their private land so it's not entirely clear that they could make beneficial use of additional water piped and from land on their private pastures and the state and would take that into account in determining whether a change of use could be granted so and that would be of course they have a property right to divert that water the the right in the eight hundred sixty six act mirrors their right under state law what i'm describing is what that underlying law right is and that underlying right is defined by nevada in the van to stop water and grit and forage are intimately connected and in this case the private pasture lands where the where the water would be taken are not deficient in water so what it would do would be to potentially destroy the value of the forage on the federal lands without benefiting the private past depending on the nature and extent of the state water rights the hage is may or may not be able to transport it from the source of the water to the ranch and i have no idea what the answer that question is but that question is an important question as to whether or not they would have the release i'm trying to circle back to the question who needs to be at the table if we're really going to go she sounds as though we need to have someone representing the state water engineer i don't know whether it's mr turn of sued or not anymore i think it's not mr at a minimum your honor there would need to be at least a clear statement from this great engineer if not his presence to determine what the scope is of any right to hey just might have to move water to their private past the flip my requirements to any application they would make to divert the water across the land and that would be a matter of how they exercised the right which is clearly within the united states authority to regulate i think one of the practical concerns i have i have to judge fighter acknowledge we have no idea what distances we're talking about here and it may not be feasible or economical for the hage is even if they had the right to construct a ditch to do so over the distances that may be involved here that is certainly a reasonable consideration i don't think the government lands here maybe ten percent smaller than the state of rhode island so it's a small state i don't know down and try and talk about these issues and see if there's a resolution with help from either a judge or a mediator well your honor we ordinarily are eager to try to work things out with parties that we regulate in others this is not a case that i think is likely to reach a satisfactory understanding among all the parties simply because it's extremely complicated and because the nature of the problem is that the operation that the hedges would like to conduct really requires the use of land that they need permission to use and their willingness to seek that permission which resulted in the withdrawal of permission has caused that operation to become viable there's no good reason to move the water when a responsible rancher could simply apply for a permit and use it the way it was intended and the way that would permit you know talking about a grazing permission agreement yeah well it's quite clear that the federal government does not need to give issue and i mean i'll just ask the question directly i mean are are the emotions here so raw on both sides after twenty six years of litigation that there is no way in this lifetime that below them in the forest grazing permits to mr age even if he applied for and now i can't answer that question i believe that if mr hage were to apply for permits and incidentally this court was told this morning that we had denied him a new grazing permit that's not correct he did not complete an application for a new i'm sorry i'm speaking too quickly i didn't understand what you said i apologize this morning mr hage stated that the that the agencies had denied him a permit would not issue him a grazing permit not on that's not what he said you're referring to something else yes but i'm not interested in the fact that they've denied a permit that's not what i'm interested in do you know anything about them his having requested an iran not a denial of a request to transport the water i do not you don't you just don't know what i even the existence of the water rights was never at issue here there is no judgment from any court that he even owns these rights other than some of them let me ask you something about the amount of the penalty which is at issue here we've done a lot of exploration of the possibility of mediation what i want to ask is is this he obviously grazed his cattle at the waterhole or ponder stream or whatever it is on federal land where he had water rights with any grace some without a permit the question is whether he gets the phase one penalty phase two penalties or face three penalties for just doing it or doing it willfully or doing it willfully and repeatedly and it really took he did it repeatedly it's just a question of whether it was willfully now on the willful way he obviously had a claim of ri t operated under a belief that he had a right in addition the first district court decision said he did indeed have a right to do what he did in those circumstances and it properly be held that his grazing without a permit but pursuant to our right that he believed in and the district judge had accepted can properly characterized as willful he willfully grazed his cattle there but that it will fully violate the law your honor the only as as you point out the district court it's first decision in this case held that he did have the right to put his cattle belief and he was confirmed to be right by the district court so why wasn't he during the period leading up to that judgement non willful and just willful after that he had a belief that was contrary to this court's law contrary to multiple orders and bills that were presented to him by the agencies that managed to land it was contrary to the judgment in his own case in the court of federal claims which did not hold that he was entitled to make incidental use of federal lands for grazing in conjunction with his water rights that was only ever the judgment of the district court in the now very thoroughly this case as far as the interpretations of go your position is that he should have known from prior ninth circuit law and hunter that he shouldn't have grazed his cattle and the court of claims decision made it clear he cattle are but he has a good faith belief that what he's doing is legal under the law is that willful you said yes you mean to say yes it might be it might be in this case it clearly was not you know it was but i'm not now i'm not asking about this case i'm asking about i pods as i just case which may or may not be this one in which case he knows exactly what the cattle are doing but he has a good faith and justified belief in the sense that he's not just sort of a good faith fantasyland but good faith based on think the facts are because you may be right but stay with the hypotheticals it is possible that that wilfulness would not have been applied here this is not you have you can tell me did you did you understand my question i could i mean i finish my explanation because well you don't answer the question because you keep i'm not sure you're answering my question because the question i think is pretty clear he knows what he's doing with the cattle he has a good faith belief based on something other than fantasy it may be wrong but it's a good faith belief that he's legally allowed to do so i understand that is lost welcome clue that it's wrong but it isn't isn't a willful violation that's the question i will answer in two part in this case the district court applied the administrative penalties as a good approximation of the value of the forage that was used illegally by mr hate so this in this court you know i ask you a question that can be answered yes or no do you have a yes or do you have a no from the agency's perspective which is not what is it issue here it doesn't matter what he believes if it's not inadvertent it's willful it was not inadvertent inadvertent with respect to what the what the law is or what he's doing with his cattle what he's doing with his cattle and kay and your honor we did not this this i mean we don't care i don't think that some government agency says you can't do that if somebody is holding up a sign on the sidewalk saying i protest this or that and the policeman tells him you can't do that all arrest you for holding up a sign conveying that message he's willfully holding up the sign but it's not willfully violating the law but in this is what i just said i do your honor but you know it's just all you have to do is tell us the court decision or that agency publish decision or something so that if we go your way we can cite it in this case there is no relevant agency decision to define the terms of their regulatory measures penalties for unlawful grazing  there may be administrative decisions which have not been cited here and i would be happy to provide that as supplemental authority but in this case what the district court did was to review the trial record and to determine that there was no legal and no reasonable reason why this was not repeated willful and unlawful yes so you're saying that and i've been fair enough you're saying ok my hypothetical or maybe judge kleinfeld hypothetical is i'm sort of sort of p back you know just isn't the facts of this case correct so my time has been up for some time and i would therefore that the court affirm the judgment in its entirety thank you thank you well we've taken everybody over time why don't we keep doing it why don't we put five minutes on the clock to be divided between the two of you as you posed the two of you choose to do thank you your honor on rebuttal the one first thing i'd like to touch on is hunter hunter had to do with california water law as distinguished from nevada water law court there had taken up that same question and had discussed hunter the question was after the earth leading up to the question with the creation of the u s forest service and then subsequently the be a lamb  later on that's when a person had to start getting a permit the question then was prior to that didn't about a law or recognize a pertinent right to the fords in other words was a forge a part of the water right itself in order to take up the water on land in the desert and make beneficial use of it then you would have to have cattle that had incidental grazing with it otherwise you couldn't sustain the cattle on that water right and for example a lot of our water rights are for one hundred fifty head or three hundred head at individual water sources and there's about one hundred thirty different water sources so of course argument at that time was that yes and it did in class in fact include a forge right in that context prior to the creation of the forest service and the b l m which that that and the court was exploring whether the forest service the b l m at that point in time could extinguish that or if that was a prior existing right which they had north already over i have to i can't cite it right now i'll have to make a supplemental on that but and that's were the court in fact i think judge jones in his in the previous trial court's decision the hundred and some odd page decision talks about a little bit on that case so and in light of the claims court litigation we were trying to protect our water rights and keep those water rights from being lost the government had always threaten well if you don't use those water rights for five years and they go away that's correct under statutory the statutory water rights the water rights were vested which most them are turns out that's not the case so we're trying to make an honest assertion of those rights so that we did not lose them and as executor of the estate i was in that place that i needed to make sure that the property rights of the estate were not lost and so it was an honest assertion of rights it was not a willful trespass going to second point i had asked the state i'd started the paperwork to ask them for a transfer of the use of the water rights from one location to another location that that process actually has started and just burbling of course is not the answer the united states engineer but yeah that is not a problem and as far as can physically feasible but is the water that valuable that you're willing to construct ninety miles of pipe yeah i believe it is i mean i'm not i'm not in position to judge that i'm just asking those very valuable  now and then in the case that the united states actually might grant a permit in the future the state engineer was suggesting that to make an alternative in other words you know two different points of  beneficial use one being in this in the spring source itself and case that water right was sold to somebody who wanted to go get a permit or whether that if the permit was not granted then the water could be transported through that the right of way and removed had put in all kinds of damages for the years that never even were in the first amended complaint it was post first many complaint the only evidence that was allowed in the court because it was such at a late time that opened up discovery for another two years the court allowed this discussion of that but for injunction purposes only because that's what the government was sinking and in other words the court was asking is there a problem here do we need to to get an injunction against hage for the united states for that purpose that discussion took place on that port that time period outside the first amended complaint and subsequently in the low and remount that ended up being five six of the end of that damage award against me however that was never never  amended the government never sought to amend that or when they did it was denied and we had no opportunity to come back and defend ourselves and this or prejudice against that and they  come out with astronomically high numbers and which doesn't even match the amount of cattle that were even in existence on the ranch at the time and that's one of the main problems with that judgment  connected to a much more larger and fairly complicated dispute i'm not speaking for the panel but obviously we're thinking about the possibility of mediation our court has mediators they work for free and they're pretty it in a sense it makes a water right holder of a stalk water right any any reaction that gets denied a permit now all the sudden has a right to take that water off the land but if the if the government's not going to allow it then we have massive takings going to them and so i mean it's unfortunately that's  the law that's been that that we're dealing with in the hand that we're all dealt it's not it's not an ideal situation for the government and it's not ideal situation for the water right holder and that's you know the greatest thing that