outlawed in the problem islands t x has been under urgent mission to create employment and job skills training to diversify the abilities of support for the largest alue community in the world to join right that's correct they want to side last fall nothing's been decided the case is in discovery motions for partial summary judgment as to measure of damages have been filed and submitted but nothing has been  five there are records personnel records in the exhibits before the district court relating to many of these individuals but the seasonal nature of the work fit perfectly because during certain seasons of the year at st paul it's not feasible to  this turned out to be a nightmare because the basic question here whether the arrangement using the shipyard with a partner in in hawaii is lawful turns on what the parties did in the documents and what the regulations provide and the district court in effect cut conducted a paper trial and resolve disputes that should not have been resolved on summary judgment let me ask you there was no place to put this document and finally the v c t d there is an issue of material that about some of these documents and some of the contracts are actually at least these five things let me start with the first one the form one twenty three the form one twenty three this is if your forty shows that the transfer to the state agency for surplus property this task occurred on march twenty second two thousand and one now the inference the court should have drawn from this is the documents executed before march twenty second were not intended to have present effect because this task had no no power to transfer before march twenty second march twenty second two thousand and one your honor i if you are forty secondly the signed distribution document the sas submitted the signed distribution document hawaii and it says that this rehabilitation assisted terri before the dry dock can be safely transported any long distances and then i looked back at the conditional transfer document when i look at the letter of intent it seems quite clear that they talking about validating it so that it can be transported in hawaii and then bring it to alaska as i don't see where the ambiguity is you're missing except as popularized by just say nor permanently removed for use outside the state without the prior written approval of g s a a key element of this case is whether there irrelevant i suppose you must be talking about the phrase without the prior approval of g s a where it says act can't be removed for use permanently outside the state you are correct your honor i'm sorry i misspoke the first time but before one await dash nine requires a detailed vessel utilization plan now these letters of intent are not written by lawyers and the people in the sas office were not lawyers and that and t d x i catch this letter to the agency for surplus property g s a stage and in alaska they say this letter was written long after the controversy arose and it became clear as the controversy arose and the government's excerpts include some of the letters from the competing shipyard which filed this creetown action and wrote to everybody in the government casting aspersions after the controversy arose it became clear that some people within g a not just agent agents here but people back east did not know what they had approved and thought that the dry dock was being moved to alaska that wasn't what the documents say out there is an explanation of how the document with think that that's what was being talked about i mean you read this letter from t d x n e r twenty eight it says st paul island our home community is reeling from collapsing crab stock and then it says what they're trying to do is development of employment opportunities for shareholders the dry dock will be used to enhance both business and employment opportunities for shareholders and it says allie shareholders and other alaskans will be provided the opportunity to develop skills in welding metal work ship building the fair and has got management and then it turns out it's going to be in hawaii that's where they would be training your honor as you know breaking into the shipyard business heavily unionized industry is not easy and finding a partner who would train al you people was not easy that was the place they would they would do the training and this is described in the declaration of mr kennedy one of the most important pieces of evidence the court just regarded in grant twenty three i'm sorry to thirty three and to thirty two to thirty two paragraph nine parts about the state of alaska was very impressive in our plans as we operate the dry dock in hawaii rather than ala obligation so morally turns on disputed facts that just report ignores the fact that an agreement was made before the dry dock went into operation which gave complete control native village corporation for its use in local alaskan economic development claims that for years by a third party in hawaii as part of its regular for profit business operations the answer to that question is no that's what the district court said in the district court should be affirmed as a matter of law this case turns your honour's on two separate but interrelated purely legal questions the first one is whether under the donation program an issue where a donation as here is made through the state of alaska to a don't meet in alaska for alaskan economic development it is permissible for the property nevertheless to the used permanently outside of the state of alaska and the answer to that is no in the statute the regulations and the transfer go without prior written approval and that's right and what is your response to the appellant argument that a document that says we have proof and the only relevant thing your honor on page two thirty three of the document that you're referring to is that by its terms the declarant there is contemplating that he knew before this transfer was made that ultimately for this property to be used in hawaii some kind of a waiver would of normal program requirements would be needed from the federal government and there are other documents in the records that show before it signed these transfer documents that if it wanted to use this property in this way in hawaii it would be essentially doing something that does not fit the normal the way this program would work and it would need some kind of  in that state it can't be used outside of that state there are a lot of reasons for that but let me give you two obvious ones number one the statute and the regulations specify that the space agency through which the donation is made is responsible from then on for overseeing and checking and supervising compliance with the program requirements that's how this donation program works so once a donation like this is made let's say through the state of alaska agency absolutely undisputed that as a matter of  agreement whereby the results not to be achieved here can be achieved and not surprisingly what it requires is an agreement between the two state agencies one in stay and one in spain so here for example there's an express regulatory provision that says that the relevant agency in hawaii and the relevant agency in alaska that have been asked to get together and gave their seal of approval with the federal government some kind of deal like this the record expres have it and it showing that under law that they couldn't do that it's not the same thing as showing that they didn't do that if the government actually signed off on such a deal even though it wasn't was attached to the water in the letter of intent with the mariska were repaired was attached to the conditional transfer agreement so the government had them or a school where the government knew the deal with mariska go in approved and look at the january nineteenth letter meaning to that document other than the scenario that there would be rehabilitation of the struggle to fix it up and clean it up for some temporary period in a life and then under the transfer document to the ex was required within twelve months it was a one year sort of grace period if you will for twelve months to put it into use pursuant to the transfer document itself so then what was contemplated is it would be transported at that point to alaska which we know from t v acc few moments ago it's not just the idea of using this property and why instead of alaska that is one legally dispositive point in another stuff but there's also the idea that when you are dhoni and when you receive donated property from the federal government it is for you were used you don't just get to lease it or rent or transfer it whatever word you want to use to someone else you know i d m or general motors or a big private company that could never have been allowed to get the property and get at the shipyard so i can't say no to your honor's question but it's almost you know a few people and full of people went down i don't think there's any other a few people executives to go down and negotiate the deal with  well be true but i believe there are a few i have properly characterized i think there's a handful of individuals who went down for part of the year temporarily and may have worked in the west coast shipyard operation i'm not actually aware of any evidence in the record that any of these people worked on the dry dock and were somewhere else in the shipyard operation welding or painting i think that's my understanding but in any event you know so what but the point is that they don't need here as they use the property and just take a slice of every piece of business that's not how the donation program works obviously that's not how it works and it can't be made better by saying oh and by the way we'll send six people down there to learn welding skills that just as a matter of  law that is not how this program works and here that legal reality the objective legal reality is in fact reflected in all of the transfer documents that were signed by both sides to effectuate this particular  not you know last well i don't know whether that's true or not and let me the most direct way i can answer your honor's question is that golly this was all a big mistake well just give the dried up back i couldn't figure out why they were headquarters and say we have this great idea give us the dry dock i mean everyone would have left that when it been taken seriously they don't qualify but what is happening here the facts on the ground in reality that's what happened they got the dry dock and they just paid for every ship court has any further questions i have nothing more you have a couple minutes for rebuttal i have a question for you waiver provision in a letter in the conditional transfer agreement says without written approval what you pointed to isn't written it's a declaration saying that there was oral approval from somebody named in alaska had he got something else in here that shows written approval i think in the red there are five writings involved the distribution document is completely missing the state provided one w this as involving a transfer to alaska mr browning from the sas and filed a declaration after we moved for summary judgment and he did not dispute any of mr kennedy's points concerning the understanding it's very important to realize that the only reported case on donation of vessels was difficult for a corporation as united states involves out of state use of a p t boat in conjunction with third parties and in nothing improper with joint use the question really is whether or not t d x has income burdett or bailed out or entered into a lease and if the court had construed the documents that really apply to the use of the gridlock in favor of the nonmoving party it would have found there's a tribal issue of fact there and this revive his argument about the statute proves too much because the regulations plainly allow out of state use of property property act is written in terms of the location of the don't even the don't know or it is not written in terms of the location of the property he says that there's a letter from the hawaii sassed saying t x isn't eligible in hawaii but that's not the way th interstate distribution works and the eligible dhoni here can receive property in another state and this is under section two of four and two or six of the r he had no objection to the dry dock operating you know why and the letter says you further indicated your expectation that g s a will ask you to check on compliance work on the x competent this is how compliance is a