has three distinct clauses with different requirements and the government's argument has essentially reassembled the different clauses to create a different violation the second clause which we maintaining simply by its existence i would agree if my clients had added more material to a structure and it was within the jurisdiction of the our rivers and harbors act would you agree that own land or their predecessors that they didn't above mean high water and the area between mean high water elevation and their structure has since eroded away and the question the critical question in this case moves then the property line of the up when the owner moves along with it but when somebody builds on their own property and effectively keeps the waterline from moving then the property cases that talk about these kinds of structures being fixtures too low and they become part of the layout and we believe that is supported by the common enemy doctrine an enemy doctrine which makes so just over and over of an altar that is true but again our position based on authorities like the common enemy doctrine that you have the right to build on your own property to defend it and i i cannot think of the case right now where that's the case all i can i can tell you is that whenever the court says you have the right to protect your property from the road in a way that means the tide landowner would have the right to have that repaired of serious consequence since i think for most waterfront property on the new orleans obviously and boston and many other places as well higher water that is the issue of law which essentially the government doesn't want to answer to here and wants to go back for trial and come back here again and answer as opposed to the high tide line that that's right the cor corps of engineers in the seattle district say that consistently over and over again that that's their line of jurisdiction so that's where we are on that summary judgment being wrong as a matter of law we was primarily that we didn't believe we needed a permit because we did everything that all of the mean higher high water we're talking about high tide trying to mean high or high water that was the focus of the trial of judge leighton found that we didn't before we go back or otherwise we'll be right back here again   address first the rivers and harbors acts violation which is where counsel for the landowner started the arguments as to the construction of section ten no instructions in waters of the united states without congressional permission clause to in clause three set forth specific structures and specific activities that can go on in waters of the united engineers determines exercising its ministry of discretion that the activity or the structure is not unreasonable and can stay in waters of the united states for as long as the united states deems the obstruction to indicating finding including in these facts are excluded that these structures are inevitable waters of the united states that they do not have a permit that they are structures and therefore they are subject to the permit requirement with this notion that structures placed in in water with mandatory boundary somehow arrest the any literary valerie line and as i think was exposed quite well by the court there is no case that sustains councils position that somehow a structure placed in the water somehow causes the bargain that the contract by which a person receive their property which is to say subject to an ambulatory valerie and subject to gains and losses depending on how the boundary emulates that somehow that that contract is set aside when someone puts a structure on their property to stop it  and in a sense as in this case is arguing that now we can appropriate law that would not sorry we could we can appropriate land that would not otherwise along to us under the understanding by which we got our property the properties notion that you move that water off your land someone can't sue for trespass even if somehow that doctrine could be converted to the circumstance and i would submit i don't know how that could occur the law of the state of washington which we which guid here which is adopted as federal common law because there is no other precise common law federal common law rule on this particular issue indicates that the common enemy doctrine doesn't apply to title water and that is as a result of filed by the landowners in the you know washington supreme court case in the washington supreme court found common enemy doctrines below the mean high water line and therefore not the violations he got here because it didn't go up to the high tide line judge rustiness basically said that the discharge occurred within the course jurisdiction as measured at a minimum by mean high water and being higher high water in other words she was saying that she was convinced that the evidence by the government established as a matter of uncontroversial fact that whether you're using mean high interpret the course policy and the course policy is that if the just are just going to be of love meaning fire high water which is still within still could be within the course jurisdiction nevertheless if it's above mean leading was of them was of a mind that the violation of the clean water act was as a result of migration of water not as a result of discharge into water and that's reading between the line a violation but you're absolutely correct which works or i have trouble understanding the decision myself because it was done on the premise that judge ross teams determine a determination of a violation stood and that the only reason we were before the court fact we were staying that they would have to move anyways outright yes i think the difference would be whether the entire structure would have to be removed which is the remedy that we would ask for under the clean water act u by structure but we're talking about the nicholson structure the nicholson structure as i recall the line of mean i water essentially we have a structure which has a wall of all that and then rip rap in front of that and as i penalty and a certain injunction we looked at that we went through our review process and we decided not to feel that and that's were only here before this court on the nicholson's appeal deal i don't i don't think so your honor because as the matter comes up before appeal it comes up without having an adjudication on the merits is the way it was posed to the just report we had a finding of liability and then a to go back to square one but no i don't think that we are bound by anything we're before the court having prevailed on a summary judgment motion which the nicholson's are asking to be done but if we firmed there would be no reason to remain because it had no evidence if that that statement sticking out of context your honor what we said is that we had no evidence of certain things we had other evidence but that was the reason that we decided not to go forward in that place because we had one and this is what the district judge determined we had one area of essentially everything that we it's the forwards doing the cape's we had this additional claim it was really a cost benefit analysis in terms of what more we had to gain in terms of what more boundaries of his property to the detriment of his neighbors and when mr stevens argues that we're only protecting our property one has to consider what is the property that is being protected and inherent feature of any of land around this property is that the but the boundary doesn't move so when you when you argue we have the right to spot that you're arguing that you have the right to alter part of your inherent property it's a reciprocal right with your neighbor the second principle also an exceptional is that no person has the right to use his neighbor's land without his neighbor's consent and that's what's going on here that if we look at the water the beach changes constantly it literally changes every time a wave strikes the b each sit on a beach you watch everett's well back and forth but over time not just with  high season and the low season but over any time period any beach is going to change its profile and because the boundary on a title property is the intersection of an elevation with the slope of the beach hundred eighty the the lessees had the absolute right absolute option under the lease to renew it they chose not to the attitude at that time was why should we pay for something we can get for free that's what generated this case you asked about what the status of the injunction in the properties is now we've settled with a couple of the property owners they agreed to pay a fee based on the value of their property that the parties informed of the the ninth circuit for mediation is not likely to be successful we have tried over the years and this is i want to emphasize that this is not a case where the tribe bears any footing doctrine and things like that that have not been raised today i want to make two quick points one is that our position on executive order is that this is not an executive order reservation it's a treaty reservation with boundaries defined under authority delegated to the treaty itself and approved by congress those those boundaries are defined by the executive order but it's under a delegation the congress approved that the second point is that there are several arguments indicating that somehow executive orders are don't create the same types of rights in price that a treaty or a statute would with regard to the united states that may be true in some instances but is definitely not true with regard to any third thank you i'd like to respond to the rivers and harbors act or argument first mr kim's argues that the purpose is to prevent obstructions to navigable waterways and the obstructions of certain that's built in the navigable waterways that's the distinction in the in the in right answer to the question about she says it's on the right to protect your own property i do rely on common enemy doctrine cases that i've also refer right that's correct that's correct it's actually in did not specifically refer to the notion that the government could that this case created an affirmative obligation to here not trying to come up with fair market value my clients are willing to pay fair market value we're here with over a barrel with the litigation power of the government on the other side