trial court where the trial court stated that schooner harbor cannot assert that no private development would be allowed i believe this is the wrong standard and i think the proper standard was promulgated  case which is located at five thirty three us six hundred six where the supreme court stated that it taking a claim is likely to have ripened once the permissible use of the property are known to a reasonable degree of certainty w think that the federal wildlife and fisheries service is issued a letter dated august third and the biological opinion and those are located at page thirty three of ninety of the joint appendix and i'll read  a few passages out of their brief passages and this gets to the point of where they issued this broad opinion regulated not only the navy but also schooner harbor where let's applaud regularly i mean private  neurosurgeon turned one no and we readily admit that we did not file an initial permit application but the reason for that being that any initial permit application would have been denied because just the federal wildlife and fishery services had already issued opinion an opinion that no development would be allowed without mitigate moved out of the farm well i don't think we can say that with absolute certainty but i don't think that's the standard here i think the standard is once the permissible uses of the property are known to a reasonable degree of certainty and i think anyone will tell you just that without mitigation so you really mean that certain types of property could be developed but you complaining only because we know they would require some sort of mitigation well i think that's the take that occurred here is they regulated the property and now the property is development restricted and anyone knows that a development restricted piece of property commands a lower price than an regulate piece of property and i think that's where the honor no that's not what i'm arguing i'm not saying that that the actual filing of a permit was the regulation i'm saying that when that the federal wildlife and fishery stirred services stepped in and said that if land remains in private ownership and the use of that written land would result in a take of the cranes that take would be prohibited they go on in the biological opinion to state what types of activities would result in a take and they say anything human activities such as norway's vibration associated with whatever that needs developed right so obviously you didn't you knew that the navy what the navy was allowed to do so why would you take away that there's no way we can do this for anything because there's absolutely no vibration except  because if you if you look at the documents as a whole which were given to school or arbor and relied upon school by school or harvard they were given from their own gun to federal wildlife and fishery services and i think taking a look at all these documents  together i even think i don't think there is any way that one can look at these documents and think that any type of development would be allowed whether it was the navy or private entity and i think in the previous appeal judge newman hit the nail on the head when she stated reading these documents she didn't have the impression that the federal wildlife and fishery services were state that if you're only building one hundred eighty eight units for the navy then mitigation property would be required whereas if you're only selling individual one acre lots then no well i don't think that an initial permit is always required and not a client is fatal to the claim and i bet there are just times when the opinions have been issued that i don't think an initial permit would would always be necessary i think that's the point but the futility doctrine is to avoid unnecessary repetition and that's kind of what we would have had your nobody looking at these documents would have said well maybe they were allowed me to develop when they've already you're you're going to be seeking i mean there's no plan here for how the property would have developed there's no we haven't identified the extent to which because you didn't ask for permanent the mitigation efforts would have encroached on whatever profitable enterprise or private property development would result so how could you are pursuing out of damages in this contest well i think that would get into the pen central analysis and on the issue of what their reasonable back investment expectations were and i guess at this point the only damages that were there is that scooter apartment was required to expand i think it was three to four hundred thousand dollars to purchase this mitigation property that the federal wildlife and fishery services had now recoup the three hundred thousand on the other door but i don't think it's through the other door i think the trial court just missed the issue they stated that the property interest that we were claiming was taken was that we're not allowed to sell this most there is a restriction which is and pulls on the property on your particular on why don't i just think that looking at the navy's plans and the letters i although they were directed just to the navy i think the federal wildlife and fishery services even though we didn't apply for a permit they had issued this language that that it specifically addresses private ownership and if the land remains in private ownership that it take would be prohibited  various supreme court decisions dealing with the futility doctrine in those cases seem to say that b two of the darkroom is a very narrow exception and really i think one of them states  t properly or cannot rely on the few to the exception to appear she makes it one at least one meaning for application you know i would agree with you that looking at what was in the record here what might reasonably conclude has been said about the futility doctrine i don't think that is enough as a matter wall to let the problem you're on or off the hook in terms of not having to apply you still have to go through the process otherwise  the whole statutory regulatory process might be frustrating well your honor up i think the gilbert case is consistent with the palace whole case when they stated that the filing of one meaningful application will ordinarily be necessary although not alone sufficient precondition for invoking the futility exception and i think it's consistent with pallas although with a reasonable degree of certainty standard because these courts are recognizing that there may be times that  a hardline rule that one permit application is always required is simply not reasonable there are there are too many possible situations we could think of going back and forward where a permit application would just be a waste of time and resources and that's what we had in his case and i think there is no better case for this court to define or further develop the futility doctrine and possibly if this is the will that one permit out location is always necessary any case out there is is factually similar to this case don't think i'll just be going through the motions here i don't think that language in the letters or the biological pinion goes nearly that far in the august third letter which is the primary whatever they want it says if the land remains in private ownership and use of that land would result lawful action such as a bell meant would be a section ten day one be a permit issue to the land owner so that right which is the whether they hold out is really most clearly supporting their case explains to them expressly that they need to apply just for a section temperament if they're concerned about restriction of private development and so i don't think the record here can support their claim that that that the fish and wildlife service or anyone else ever stated that all development was the biological opinion as is clear from its face focuses specifically on the needs a hundred eighty eight unit proposed development it does not a pint on what a private developer could do alternative developments the navy had a specific or one mind and the much at least environmentally the way that navy is going to go about doing their house and it's so that's their to their proposal for private property development could they not safely assume under that circumstance that they would get precisely the same answer that you received for your hundred family units i don't think they could make that assumption because they get a movie for under section nine and ten of the usa and not section seven the supreme court in about a case says that section seven and that's what applied to the navy imposes a broad affirmative duty to avoid how the first habit of habitat modifications to section nine does not replicate so right there is supreme court is explaining you can't simply equate  process could very well result in a different answer for a private developer or a different answer for the navy but isn't the same process you have in the sections of them there is a human baby crying to take in the sense of consultation and back and forth under section seven there's a process i describe intersection nine ten in the sense that there's the bush ation in discussion in both that's right the finish line is are not the same because the e s a sets forth a different standard or section seven a different case from the first circuit or two piece of the language that are i think critical there one is the course says you have to have at least one permanent location or you don't have any here the second pieces and pick quoting a sort of inevitability is required and the record is doesn't come anywhere close to showing a sort of inevitability with respect to what would happen with respect to private development plans finally about calculating damages and the amount of and and the amount of the taking that's the point  the supreme court has said you need to apply for a permit in these circumstances so that we have it clear it's can determine whether the regulation has or has not gone too far and it doing that tricky depends central multi factor multi factor analysis requires a record that can look at and say oh this goes too far this doesn't go too far but we just don't have that back and so the claim is not the claim is not right can and even if there were no time are here they can't  honors i think an important point to address is that with all these documents the federal wildlife and fishery services knew that schooner harbor was receiving these letters and documents and of course would be reliant upon it was coming from their own government i think every address his human activities i know of no difference between the navy schuman activities and scooter harbors human activities i think that you know we're all we're all human we all make noise vibration pollution visual disturbance i can't think of anything sitting here would could generate a lesser environmental intrusion if you will then military housing i mean i i don't know if that's the case or not but it could be it might it might be it might not be but doesn't that suggest a reason why going through the application process would be necessary well i think i think under normal circumstances had no one ever reviewed the property and looked at its uses or a proposed use is that i think yes that's the purpose of the permit application if i just walked off the street and no one had tried to develop the property and asked the wildlife and fisheries services for an opinion then i think they would ask me what what type of development are you doing and then they would tell me the possible effects but i think when the navy had already been there and had already negotiated with the federal wildlife and fishery services and they issued these opinion stating that all remaining ridge will be indirectly impacted and completely lost as suitable habitat for the crane no i understand that you you're correct please refer to the record but what i guess i'm trying to say is isn't it possible that a regulated once the parties all knew that there would be no development without mitigation properly and i think what the government's just trying to do is now say that because we issued these broad sweeping e and therefore if there's no more questions of the court i was told always to ask for the relief you seek and i would ask that the court apply the correct standard in this matter and reverse and remain for trial for the and central analysis thank you very much