i'm just joking me i want to start off by saying well the briefs are about highly technical issues to some extent the rules should be construed statutes interpreted and precedents distinguished and i will talk about some of that at day's end what this case is really about from the perspective of the appellant's is the ability of a private energy company private energy operators by means of financial incentives to the government in partnering with the government essentially do an end run around the state regulatory determination that there is no public need for the project very project that they want to do my clients believe that by challenging the condemnation of the property that's necessary for that essentially private purpose that they are giving this chord an opportunity to draw lines about the propriet of that kind of endeavor mr like you hasn't this issue really already been resolved there are parts of the federal power act that i'm reading here delegates the federal energy commission exclusive authority to regulate the transmission and sale  whole sale of electric energy and interstate commerce that's the transmission agency of northern california versus here a power and the supreme court said in jones versus raft packing i'm paraphrasing of state last compelled whether congress command is explicitly stated this statute slammers or implicitly contained in its structure and purpose so if congress has given the exclusive authority in this case how can the state regulatory scheme have any role in this first of all your honor i'm i'm not familiar with the citations you're you're alluding to there i'm not sure the government decided to them are those recent or those older the jones cases hundred seventy seven and the transmission agency cases night circa two thousand and two but i would in this case to announce that the authority cited by the government in its condemnation complaint i don't believe includes that authority and that if congress has in fact conditioned authorisation for this particular type of taking on a certain set of circumstances then there there would be a need to determine whether  particular set of circumstances those those conditions those factual predicates and have been made the language of exclusion of authority comes from the act itself i mean that's been there for some time the cases construe that  congress wants to give its respective agencies the ability to run electric power lines in this case or gone from the northwest all the way down through california and even farther you get all these different state regimens or regimes rather does that make any sense at all that congress would have by this language impliedly given each state the ability to stop the project in its tracks if the if each state  independent determination that it is like what was going on well going around i guess i wouldn't concede first of all that that power actors is relevant to this particular taking but in the abstract i think it is quite conceivable i think that we even subject to local and sauce different when it talks about water and atomic energy congress as a specific clee authorized states to be involved in that we have something here in california we got in the coastal act and oil law you can cite to me that shows that the state should have the ability to to interfere if you will in this federal mandate that congress has given well again going back to the problem that the i don't believe this particular statutory scheme was cited but let's say for instance that the energy secretary had been given exclusive authority when would still need to examine whether that is exclusive authority untrammeled whether that's exclusive authority to act under certain other statutory sections which set up certain factual predicates and conditions and i don't believe in the abstract that i mean and that's why i think these other statutory statutes are relevant even if they expressly say we want the government to respect state local authority in the abstract it's not inconceivable that congress wants that to happen i mean representatives bargain for that to happen and  would i would respectfully differ with the idea that it has to be expressed explicitly in a congressional enactment in order for that respect for state and local authority to take place i think the opposite is true there has to be an express preemption the statutes language or implicitly change contained in its structure and purpose that's pretty clear is it not when you're young i mean that disadvantage that was not cited by the government i don't believe i cited that and i would certainly be happy to do a supplemental brief on that particular case but not being familiar with that but let me be happy to have a twenty eight year later on that if you want to if you want you can move on to the other issues but i wanted to get your understanding at this preemption issue   which i believe there is a confusion in the term in the sense that he and necessary switch perhaps i think some some of the courts of have got have alluded to this although not quite  same terms that i'm going to but i don't believe it's been made it explicit enough and some of the decisions and that is that there is a distinction between a congressional act and act meant and an executive authorization so that if the congressional enactment of congressional legislation itself sets up that yes there is authority for this kind of a taking if it is necessary or for think your honor is used an important word there that i want to key in on if the language of the congressional legislation says if it's deemed necessary then i don't have a quarrel that the executive can say yes this is necessary and there's no just but essentially what i'm saying is that if those acts set up certain conditions certain factual predicates for authorization for taking then it is justiciable and it and those acts don't say well if the executive believes that it's construction as the secretary and quote deems it necessary and i think i said just a minute ago that if that's what the statute says that you don't have a justiciable issue on this particular portion of your case is that correct and which one are you citing again i'm  energy and water development appropriations act of one thousand nine hundred five it's sixteen u s c section eight thirty seven g one and i know there was at least one of these acts which says that yes if it was necessary but you have to look then at what that particular act this is is talking about him because this is such a thicket of different authorizations that's an appropriation act and there are other arguments in that in that particular case as to why that does not authorize an appropriation for this particular taking so yes i agree with your honor for as it goes that if that language is used in all of the authorizing statutes that are necessary then we don't then i think it's not just  that's the reason only one of them which i think it may be i mean you know one or two of them and if there's other problems with that particular authorization as there are with that appropriation what's your take let's take this for a moment  if one of these acts this not contained that express language the seventh circuit has referred to the concept of implied necessity in the case of city of davenport versus three fifths of an acre of land at two fifty two fed second three fifty four what's your take on that is their concept that we should be adopting here of implied necessity if you have a series of acts that provides for this  staff i guess i would take issue also with your honor's assertion that in this day and age of energy and deregulation that it can always be assume that power transmission and generation are going to be public necessity where the that is primarily designed for to meet a public need and i think that's precisely where we ran into i mean that's with the declaration of what can you cite any case that provides that where the government just will at the end of the day own in this case ten percent of the unit the power etc that that because there are private partners that that does not constitute public use no i think this is a groundbreaking case i mean i know you're you're asking us to make the law in that respect although i don't think you have to make new law if the co reluctant to do that because i think there are plenty of other reasons here to reverse and remand and put the defendants back in the same procedural posture that what's your take on the supreme court case why housing authority versus mi hundred eighty four case which at least by my reading indicates that the courts are not supposed to substitute their judgments for that of the legislature as to what should be condemned and the fact that it's taking my eminent domain is transferred to a private party doesn't mean it only has a private use i do agree with that reading in that case absolutely but i don't believe that cases this positive here and that is because i'm not asking a court to substitute its judgment for the legislature tested in any private or in the previous case is a different beast from you know some of these other u s supreme court cases whether you did but it but it happens all the time i would respectfully assert that it hasn't happened until recently and the courts have not really had a good opportunity to ruin them i do want to reserve some of my time but of reserve your time now and we'll hear from the government then you come back and ok very good will and hear from mr wright not only does the statute at sixteen u s c section eight thirty seven g dash one authorizes the secretary of energy to construct such facilities as he deems necessary to transmit power between the pacific northwest and california but to participate in the construction of such facilities so the the private partnership was contemplated by congress in the authorization itself this is an unusual condemnation case in one respect because not only do we have the secretary of energy is determination this line should be built but we have congress's concurrence in that conclusion in the supplemental appropriations act five congress funded the california oregon transmission project and required the secretary to adhered to a memorandum of understanding for the project which included plans to upgrade path fifteen and that job hadn't been done by two thousand and one and we had seen the blackouts here in california the house appropriations committee in considering the supplemental appropriations act of two thousand and one made a finding that the past fifteen was a bottleneck in the transmission of electricity and the conference committee reported that they were going to provide special funding quote for the path fifteen transmission line close quote is therefore in the electively clear that congress itself felt that this project should go forward the question now on appeal which is for this court to decide is whether the secretary of energy had authority to condemn an easement for a power line to transmit power between the pacific northwest and california and the statutes make that decision abundantly  the contention that a state law could somehow bar and otherwise authorized federal taking basically on its face  alleges a direct conflict between state law and federal law and under the supremacy clause the allegation itself has to fail as a matter of law either the state law blocks the taking or it doesn't if it doesn't it's not a defense to the taking the first place so all of this factual information about what the state law would require what mr lynch would testify to a trial is really immaterial it doesn't advance the decision on whether the taking is authorized and since it doesn't advance the ball it's really kind of irrelevant and immaterial you know of any exceptions to the to that rule except when the congress had x as expressly  authorized state law to be involved like in the case of atomic energy or water yes your honor in fact interesting lee enough in reviewing the appellant's reply brief they cited two california versus united states for the proposition that section eight of the reclamation act required compliance with all state laws when i pulled that case up to review there was a little yellow flag and i notice that this court had discussed that exact contention in the case and title pages six o five to six zero six that case involved a situation where the federal government had acquired rights of way across federal land under the federal land management and policy act probably got those backwards and those rights of way were required by philip mudd to contain a clause that said the right of way holder will comply with state standards the state of washington contended in that case that the requirement to comply with state standards was a requirement to get a state certificate through the state certification process this car this court made a distinction between section eight of the reclamation act which leaves no doubt that the federal government has to comply with state laws when acquiring water rights and looked  at which only required compliance with state standards and they said that this refers to substantive standards does not refer to the procedure the court held that to require the bonneville power administration to receive a state certificate would imply that the state could deny the application which would give them a veto power over the federal project this clearly cannot be the meaning that congress intended much stronger language would be needed for us to conclude that congress was delegating so much power from the federal government to the states congress would not delegate such an important function as the decision of whether and where to distribute electric power from federal facilities to total state control in such a brief statement well that's that's really saying not only does the if you will authorization for state law to be involved has to be expressed as to be really clear otherwise federal law pre amps any state law involving yes your honor and i might point out that the case of mon versus united states which is cited in both briefs really wasn't  condemnation case by the time it reached this court it was a land use case nobody was contending that the federal government could not own the easements they were simply fighting over how could those easements be used and that distinction is kind of important here because whatever beef the state of california has about how the ease with and start to be used they can carry those out through the federal energy regulatory commission and have it reviewed by the d c circuit and all that sort of thing the rule really in this case is that a federal taking for purposes authorized by congress cannot be blocked by state law absent a clear and unambiguous congressional statement to that effect meaning to the ownership by the federal government the district court decided these questions as a matter of law and having done so was then presented  actually the parties filed on july twenty ninth two thousand and five a pretrial stipulation stipulating to the value of the property in that pretrial statement the united states noted a couple of times this resolves the entire case because the law of the case is that the proper authority was exercised in the taking and the only remaining issue is determination of just compensation those two issues having been decided there is nothing further to resolve one of the cases cited by the appellants in their reply brief was portsmouth square inc vs shareholder protective committee it's an interesting case because they're the district court for mt summary judgment right after the pretrial conference and this court held there that if the pretrial conference and in this case we would say pretrial statement discloses that no material facts are in dispute and that the undisputed facts entitle one of the parties to judgment as a matter of law the summary disposition of the case is appropriate the court need not await a formal motion or proceed to trial under these circumstances the real question here is whether they had any notice and i gather the government's contention is that given the earlier dialogue the requests by the court for additional information regarding authority you to condemn it set for that they indeed had notice on the remaining issues well given that the law of the case what that was that there was authority and the stipulation as to just compensation the court invited is there anything else right and they were not able to establish that there was anything else and in fact basically we iterated the same issues that they'd already litigated as being has had a full and fair opportunity to ventilate the issues involved in the motion here that full and fair opportunity had come in the court's consideration of the answer which objected to the taking and the government's motion i might just clarify on that point that by filing an answer objecting to the taking the landowner put the burden on the government to show that the taking was authorized that the property was properly before the court and that the court had authority to proceed to fix just compensation united states file of motion they titled in a motion to strike or for judgment on the pleadings basically saying we are ready to establish that we have the authority we recognize it's our burden and we think we can establish it based on the statute cited in the pleadings themselves that's how the court proceed first of all that the idea that there was nothing left to be tried is just flatly and correct there was a denial presented by the answer here in addition to the affirmative defenses  that denial and never been adjudicated now if one would take the position that the exact issues that are going to be litigated in the context of that denial are the issues that were  whether it had been ruled on and not there's two different issues one is the yes we disagree with the district court's ruling but even if the district court's ruling on the judgment pleadings was correct summary judgment would be improper here because you've got to give the the defendants the opportunity to come in with all their facts which was never done here and let's take take the issue of the few you see a farmer a p c official if the if the court ruled that federal law preempts the state law what relevance would that have well first of all i don't believe there was that ruling i mean this whole concept of implied preemption troubles money talk and apply just it just it if the court the court i think very clearly but the district judge didn't give us due process to even ask that question there and that's where the question needs to be asked not here we're entitled to come in with all of our facts i'm asking you not what would you have tried extensively in my brief and pointed out that there were issues the fact as to whether the conditions of those appropriations acts and those authorizing acts were met that was part of those were some of the facts that would have had to be introduced at trial and i was and prepared to do that by calling an adverse witnesses because i believe that wapa department of energy would themselves have had to admit that not all those conditions those facts are predicates would have been met and that's the whole key in this case if i hope that the panel understands determination of law which is the province of the trial judge that this was essentially a fact inquiry and that the judge couldn't possibly have made the legal construction that he did without getting the fact that your position he was not in a position to say all those affirmative defenses were wrong let alone to say to the judge the denial had does even have to get to it doesn't even have to get to the us is it even relevant if the judge points at the statute and said well here's statute and it's very clear to me that as a matter of law the secretary has the authority to do this why would those other things even be relevant if in fact he makes that determination it might not be relevant but he didn't if you made that determination here it was incorrect determination because he did not do the analysis of what kinds of steps were necessary for the executive to satisfy in order to meet the legislative terms on authorization the terms were not were simply