along the lines that that state state remedies no longer need be exhausted so this is a st post nick appeal of a municipal program or ordinance that acts to inversely condemn a person's private property for the public benefit and i don't think that that's any different than the majority of the case law that exists and is available to establish that this isn't anything other than that type of a run of the mill case i would st like to  start by discussing what i think of the district court st went to ry it's well settled in fairly bright line that when it comes to a taking space and in this case we haven't even established in the factual record for the court whether it is a physical invasion by the government or it is a regulatory taking and the reason that i actually have a question on that what what are you what's your argument you're not arguing that it's a per se taking that she's been completely deprived of all economically beneficial use of her property are you know that's correct we were what we are arguing is that there is a physical instrumentality that the city of albert really doesn't have a whole lot of control over once they've dumped them so it would be hard to say that that they that it is this per se taking but but that's not necessarily that something that has yet been established in that case we we do believe that the district court erred by jumping ahead and then basically engaging in a pen central balancing analysis before there had been a proper factual development of the record this was a ana motion to dismiss doesn't the complaint nonetheless still need to allege facts to establish a plausible claim seem to be arguing that well we need to take the scott very easy and flash all this have a physical invasion taking alleged here or a regulatory taking i think it is a regular i believe that this is a regulatory taking that a arrives from a a physical  invasion through an instrumentality of the government so the closest case that we can pick to is the arkansas game and fish commission case that we discussed extensively in our briefing essentially what you have is a policy in the government that they do not want to kill these cats and so instead of killing the cat they take or control of them they may perform vaccinations and spaying and neutering on the animal and then they take in they they they dump it they abandon it out into the open argument is that the dumping of the cat that is and the custody and control of the state of akin to the us supreme court decision and the arkansas game and fish case and we do believe that there has been a taking under that analysis from the united states supreme court they have essentially dumped that out there whether it fits cleanly into a regulatory taking that's just a deprivation of the value of the property sufficient to do a penn central balancing or it's an actual physical invasion those don't fit clearly into this type of a case it's more akin to the flooding case that we have in  arkansas the next major point that i will turn to is that is this idea that somehow because it's not captive never been used to effectuate the inverse condemnation before that that's not clearly established idea that flies in the face of pretty much all takings law cross the country that's never always quite exactly the same that the government is somehow decided through some sort of nuisance or trust us to do something that interferes with somebody's property they do it pursuant to their decision either as a government entity and of an up and a policy decision the idea that it has exactly the same to be clearly established at the district courts seem to fall guess what i was trying to say is that the district court in divided up and say that we didn't clearly establish that that these defendants took some sort of action we actually have quite a bit of that allegation very plausible allegations in the complaint that the individuals were engaged in some activity to take ownership of what has happened in this threaten her perhaps well as far as as as the mayor mayor keller and director of the bar as are concerned the district court said you failed to plead personal involvement have you waived that issue by not arguing that on appeal i'm not certain that we waive that argument on appeal your hon i do believe that we did reference bleeding in my opening brief we did reference that we cite to the complaint as discussing the phone calls between their teller and the plaintiffs and that her phone calls the direction of our so we did may be i may be an air quality and so forth i am but i do believe we did discuss that it was and i think it was more in terms of the pleading standards we argued that we couldn't really a stablish those facts without something on discovery and at this stage in the pleadings again we had not had the chance to get to that point we had alleged in the complaint so i think that what i was referencing is more found in the twelve b six discussion in our opening grief that we didn't have the opportunity because we didn't get to the proper place in this in the in the pleadings or in the in the briefing in this case for addressing that on a factual basis again getting to the point that the district court rule middle council judge lou cerro it seems to me that your claim here is really against the city or its program now is the program pursuant to an ordinance it is pursuant to direction from the mayor and the city wrote yes but they did they adopt an ordinance providing the parameters of the importunate of the policy i don't believe that is your honor so it's just purely a paulus right it's to a directed directed by the mayor now these employees don't have any discretion in the exercise of the policy do they the policy we're not sure your honor that's part of what we don't yet understand what we couldn't address with the district court without the opportunity to at least engage in some amount of discovery which we never got to do to ask in reality mr navarro's if he had been afford described as a policy but virtue of their own discretion are you know your honor we were alleging that these are individuals that are acting under the color of the policy or the color of the law all right so  did response to judge baptista's questions i didn't hear an answer to this question is a qualified immunity doesn't apply just the city itself doesn't know the qualified immunity applies to the individual thank you let me ask you this if if we viewed this as an exercise the police powers of the city and we also were to determine that's where the on the substantive law new mexico turns on that point and we did point that out to the district court it's really highlighted i think very clearly in our reply brief we discussed with the there's two state statutes that issues that place the city's actions beyond being lawful one is that they're engaged in and they've taken custody of these animals and then they are dumping them in violation of the six that's you that makes that a criminal penalty and then there's another one where it says that if a person that they animal under their custody or control and they allow that vicious and  legislature actually uses the example feral cat to be loose and potentially able to harm somebody that's also a violation of law so there's two ice in the law so it cannot be a lawful action by the city to gays in the faction and if if the we referenced the golden case and the illini case as an example we're not necessarily arguing that the animals per se are the a defending action and there is a distinction there you talk about wild horses that are not in the custody or control in the mountain states legal case versus feral cats that are actually held in possession in the hands of the city as at one point and there's a big distinction between those two and then the city takes an action to release that animal and that's that gets our discussion about these feral cats are not typically under the law are considered wild animals whereas wild horses and not safe legal foundation are very much considered a wild animal they are considered that by statute so there's a big distinction between those two cases purely on that the type of the the color of the horses that were in the situations but you would you agree that a loss here of the damage you're claiming is in sadam pole to the exercise of the police power they picked up these cats in a location they neutered on and backs anina and then dropped them off on the same location they didn't drop them off on your client's property and so to the extent some of those cats wander to these people's property if it's inevitable that these cats are going to go into the property and that that person's going to be bear the burden for them so it's it's not really incidental it is it's the same as if you open the floodgates on the somebodies property as they did in the arkansas game and fish case if you don't get water out it's going to go out and harm that person's property that's inevitable and if if the court doesn't have any immediate questions i reserve the minute and twenty i have left under some control of the city and if in fact you're having colonies of a one hundred as many as one hundred cats this is not some minor problem this is a major problem  the point that they had a policy in place that was in line with their statutorily charge duties to control the running of animals that large within the city limits that given that police power the reason that there's a responsibility that comes with it now they have said that and they're attempting to mitigate these the nuisance population of these cats by doing the vaccinations and they sterilizations but the problem is that the way that they used to handle this was euthanasia and that did handle the problem and it didn't lemonades the nuisance issue in a permanent fashion they didn't act as a policy that they were not we're no longer going to euthanize feral cats that are that come into the custody of the city of albuquerque that policy then turns around and place the burden of supporting these cats even after they've been vaccinated and sterilized on the communities in which these qualities of cats are dunked and therefore before they were picked out to be sterilized i don't think it does i think what's more important is the fact that the city takes custody control and then they take and they go out and they abandon these animals without providing everything necessary for the animal to survive and they place the burden on the community to howes and to feed these cats those otherwise people have to watch and that's that's a fairly inhumane way to handle an animal you just dump it out there and hope that it makes it subject some to being run over and subject them to deprivation of other protected species under the endangered species act they starve to death all kinds of horrible things happen to these animals and that's that's part of the problem here is that you're forcing the community to witness all these unpleasant things or come out of their pocket to build their own fences as was said  to keep the cities problem off of their property and it's pursuant to the city's policy that this happened and that's why it's a take