we will hear argument now in case fifty one fifty nine from two thousand and seven rows acre farm stretches united states protection public health and safety and where the costs associated with that exercise are simply those to address the harms being caused by the property that does not constitute taking and that's clear from the case law others associated in the ship of property and that when the government engages in activities to enforce that principle the fifth amendment does not require compensation are you talking about cases where newton has been found not just a nuisance things a general rule like i think or think that you're wanting me to believe that thank you to announce a general rule that whenever the government acting in presence of health and safety consideration there can be no taking i mean in fact he found went on i think you the holding the case that in that case under those circumstances there's no taking i don't see how you can say the holding is that because it was a seizure under police powers it could never be a taking under any circumstance i'm saying that when it's an exercise  circumstances are says health and safety manager is presented that yes keystone indicates that what he's done says is that the character of the matter is critical and so when faced with a circumstance involving health and safety it should receive very significant equation the way the analysis of the economic impact that also is just involving the imposition of costs related to addressing the harm is being caused by the use of the property here what we have these health and safety regulations i would say yes that is not to say so then so then like i do you are under your analysis if i make a product and an agency of the government  look the product can him please be confiscated or destroyed he'll have zero value and that can never be a taking because it was a help and safety rated related regularly well there involved the costs were simply those related to complying with what is now it was necessary to remedy the harm being caused to the public it's not online the analysis that this full court performed in branch evidence that if the paper way even though coming from contaminated henhouse were properly handled by the food prepare that the danger of infection was virtually zero well there was some evidence to that effect but that's that's a different issue that's a question of how what kind of regulation should pose to you not necessarily limited but that i don't think because you're saying we've got to weigh one thing against  thing we're weighing is it related to public health we all agree the other thing we're weighing is wept the cough and you said well it almost doesn't matter what the dollar number of the cost is because all of that co to great lengths toward the end of the i'm not saying anything about lingle i was just picking what you said which was that every dollar of all the costs all the law firms value but how every want to measure it would require the safety purpose and i'm just thinking what you said well wait a minute maybe maybe not well every dollar was what was necessary in order to comply with the regulations that was deemed necessary in order to interest in preventing the spread of disease but here because the cost was the magnitude of the possible it was viewed as being significant by the trial court that is really that interest on the part of the government it doesn't make any sense to conclude the government has an interest in preventing the spread of disease and less the cost is too high in which case the owner of the property does have a right to spread disease i mean no no no no will we all agree that nobody has a right to spread there is a property right requiring compensation that is that is owned by the owner of the property so the stats that stop it preventing it from spreading disease is expensive for us and all right i don't see how i think we've got your position but let's hear from mr slaughter and if i could just use my last twenty seconds we do have an alternative point that i want to get get through in your bring we got to break we're not going to throw it away no case cited by the government in any case that we have found that supports the proposition the government has identified the keystone case that the government spends a lot of time talking about was most of the police understand the posture that case that was a facial challenge impact of a government action on a specific piece of property requires the payment just compensation as your honor judge has pointed out that there would have been no need for revenge in light of the court's prior decision there's nothing new that was a deuced in connection with the trial that made it clear for the first time that these regulations were intended to protect public health if the government's view of the case were right that this public health exception trumps all remain would have been unnecessary there would have been no one no one let me let me ask you to quickly adjusted his position to say it thankfully that if the regulation is aimed at public health and if the costs suffered by the property owner were just the cost of providing compliance with the regulations that we have those factors you could never have to take so why don't you address with respect that's just not the case what that what the record shows was that the overwhelming majority even using the government's own numbers ninety at least ninety nine point nine hundred three percent of the restricted a were se free the overwhelming majority of the e property owner absolutely required to a key compliance with the regulatory action that valid but we don't challenge the government's right to do what it did and even if you accept that the notwithstanding legal if you accept that the character prong weighs in favor of the government that doesn't mean that there was not a taking here the government cites no case for the proposition that a taking in favor of sort of the point the character problem is resolved in favor of the are two problems with that approach one of them is no case supports that proposition and secondly on this on this factual record that the modest cost that the government suggest just isn't the case here and there is no case that the is recently as lingle the pencil case itself says something very different what what several had nothing to do with public health and the costs had nothing to do with complying with the public up regulation so the penn central back them  government and we found as a matter of law the case that an investment bank expectations are waiting favorite rosier reassess economic impact and then rebalance those three factors in light of the penn central balancing judge who did that on the grounds that the that it couldn't be a taking because the devaluation of the property was unavoidable in light of the legislative an act but it may not be critical that a technical newton had been found it's possible that if there is a serious health problem and it's addressed by a regulatory rule or this case there was not and only just a nuisance what what happened in this case remember part of the government's argument is that they defend these regulations against taking by suggesting we kept out of the stream of commerce some portion of x forty thousand or as many as four hundred thousand eggs that were presumably tainted what that ignores is that of the seven hundred million eggs that were restricted rep ninety nine point nine hundred three over ninety nine point one three percent of those eggs were se free  but we bite it in perfection but please don't misunderstand our we're not suggesting that the regulation was invalid that we accept for purposes of the takings claim that the u s d a had every right to do what it did the question is your honor pointed out is does that does what the u what is the hierarchy what is the priority among the pen central factors and lingle reasserts what earlier cases have said penn central itself which is the most important factor in the penn central analysis is the  legal does not foreclose the possibility that there might be a case in which character is so important that it trumps everything else when they're better with what the boy is saying the other factors are primary if not primary factor could pro then what meaning is it to say well protect the but the health of the hens from avian influenza so that the turkey times yeah that capture afterwards result in favor of the government but because of the other penn central factors both invested back expectations an hasn't cited in which the the alignment of the pen central factors as they are in this case supports the government's view that they will open but that argument must the hand implicitly  percent that becomes a much more difficult case for those acres if this court follows the definition of value approach but let me suggest that that's not the right measure in fact even the governments when it's in a question of law are packed how do we review that issue would me also point out if i may that that the when the case came back to the two judge food today on the question of whether diminution in value versus diminishing returns was the appropriate measure of economic impact there was really no  as to what the appropriate approach should be this court had suggested in its first decision the diminution in value if anything is a less appropriate measure for business like procedure which is it going business concerns the government's expert dr reef didn't dispute the idea of more than three and a half years which you know that made no sense to me so i had next point it didn't get to two hundred nineteen percent oh her the expected profitability that was destroyed over the two year period of that of the restriction was equivalent to what curry and not all the farm well that too is the law of this case we ros for the first time around but argued that it was simply the eggs were simply the restrictive houses the government said oh no it's not just restricted houses it's both the restricted houses question it is a case on a case of an announced as of the magnitude of the economic impact it's also the nature of the economic impact as the branch decision and sprinklers decision finally made clear in addressing the economic impact in those cases the court  focus on branched noted that now circumstance the magnitude was a one hundred percent wrong in value the s and l issue the institution issue was completely wiped out so far as its financial viability was concerned but the core focused upon it was wh that is producing a product for public consumption in this case food and who is best who does it make most sense to impose the cost of making that food safe from the public that they're looking to profit from the producer themselves to bear the cost the look to me like what's being regulated is will be eggs get sold not what's gone on the land but the hens still lay eggs and the people collect them and feed the chickens and everything goes on as it always did the only imposition on the going to be a taking because if you're going to have it lots of instances in which the end result was an economically through the air right i mean well yes you could to that but that was the concern that was or did as a back up point note a proper or more proper assessment of the economic impact should have been looking at the impact over the course of the life of the property that he didn't point that out the length of the property virtually permanent  can't be read well it should be for rosalee lengthy period of time but that's the nature of a farming operation that they tend to have a long life span that demonstrates well so little minimal nature of the effects of this regulation a