please the court i'm john r but for the united states i would like to reserve three minutes of my time about your honors a long ago the supreme court explained that under the just compensation clause an owner of property is quote entitled to receive the value of what he has been deprived of and no more toward him or would be unjust to the public our position in this case is that the three point eight million dollar just compensation award issued by the c of c in this case is contrary to that basic principle the court itself found that the sensor easement here put quote places no restriction on the functionality of the property unquote meaning that it doesn't have any effect on the plaintiffs ability to use the property and yet the court awarded three point eight million dollars as an award this this must be a result must be wrong on its face the word does not present isn't just compensation but really it's a windfall for the landow test the amount of damages in other words assuming this was a temporary taking do you challenge the fair rental value that the court arrived at yes your honor the the three point eight million dollar ward should be vacated and i think that the quickest way to get at that point might be to to focus on one of the issues we discussed in the briefs which is the c f c s drawing of an apt analogy between the sensory easement here and the short term parachuting leases that are used to arrive at the fair rental value rate of three point eight million dollars total including interest that that analogy is is not and therefore could not a sound basis for selecting the their rental value method you would say or are you saying a fair rental value their food would be inappropriate in the case of the temporary taking or are you saying that the of their rental value method was incorrectly applied in this particular case well your honor if we if we proceed on the assumption your assumption that this taking wasn't a temporary rather than permanent easement then under the the case law in  general fair rental value would have been the correct ok or at least one of the possibly proper methods to select however as we discussed in the briefs the court here  used a very specific analogy to come up with the three point eight million dollars it took it focused on two particular parachuting leases short term parachuting leases which the in the courts words it deemed to be the most comparable dodgy by looking at these particular what you call in their polices yes your honor and i can i can explain why that is if you if you'd like me to well you know that if i just wanted to yes understand i don't want to divert you from the rest of your argued about permanent versus temporary but i just wanted to make sure i understood where you were if one concluded it was chippers yes yes you can go ahead back to what you were doing before yes it do you mind if i keep you here because i am actually very interested in the line of questioning that asking i think that mr marshall is likely to stand up and say that this appears in the government's reply brief like the word parachute i don't think appears in your main three so i'm just a little curious from you know of fairness  proceedings standpoint how we are to interpret the government as having fairly contested on appeal the application of the methodology in terms of the fair rental value and to kill or the analogy what the the c of c thought but that that is incorrect as well because any any type of easement as it's capable of being abandoned pipelines can be abandoned perpetual pipelines can be abandoned   if ever the fourteen sensors will be removed from this property either one because the border patrol no longer needs the fourteen sensors anywhere on the eight hundred ninety seven acres or two because the owners  obtain a sufficient number of grading permits such that as a as a practical matter the border patrol can't use the fourteen sensors anywhere on the hundred ninety seven properties if the government were to take over my metal plant to make bullets during th time of war clearly they are taking it over for a period of time for as long as we're in war but of course we have no idea how long we'll be in war we all assume or will come to an end at some point is that a temporary or permanent taking will you run or there can be situations in which it is known prospectively and certainly retrospectively that that the easement at issue or the taking it issues is temporary  in the case of the taking on of property to make munitions during war time it would be clear to everyone that the war will come to an end at some point and by the time just compensation is awarded we will actually  know what the date was on which the government vacated the munitions parting would have to wait until the taking came to an end where they could bring suit and have a measure of damage and know that they could they could bring their suit so long as they were within the the proper statute of limitations but the point is that the case law seems to indicate that very routinely or in the typical case it is known at least by the time perhaps not when the cases filed but by the time of the trial court gets to the question of just compensate just compensation it's known when the temporary taking ended and that's that's in the case of wartime activities  rails to trails cases with those be instances of permanent takings or temporary takings you're probably familiar with them we've had a lot of litigation about them from the from the government and the respective parties but those are the ones where the government says i take your property to put a railroad in and first long as i need to run this rail line i'm going to have an easement on your property many of those railroads and ceased to be run but with that kind of easement be temporary or permanent for as long as i need to do this well your honor i have to admit that i'm nowhere near as familiar with the rails to trails act situations as as you are but i but in the government's brief we do address granted a perpetual right of way across across property and it turns out that decades later the railroad abandons its easement and in the context of approving a rail t trail use of the property a government agency has to prove the abandonment but our point is that even in that situation that those later circumstances don't mean that that the railroad didn't receive what its conveyance said back in the nineteenth century which is a perpetual right of way on this land so you're saying it could be permanent even though the easement was ex post abandoned it's one of the property rights reverted to the property what would that but that abandonment in other words wouldn't cause us to retrospectively say that a ha no the perpetual easement was really only temporary what would you know what would you if you're successful i'm a flip side judge sauls question if you're successful in persuading us that this is a permanent rather than a temporary taking what is the measure of damages the government's argued it's this before and after damages throughout is that what you would argue to the lower court is that what you've exclusively argued is the appropriate permanent easement and number two that the before and after test which is the conventional test for measuring damages in case of a going to say it sounds totally in inappropriate to me the before and after test almost as inappropriate as this or million dollar warrant to be honest with you but the stand case the vast bird versus united states fan case shows that there are instances like this where the before and after methodology though it's normally a political just simply wouldn't be pluggable and here's one of those cases because it's been out your before and after and their damage awards zero all right there that is entirely possible it's open the but it's not possible because you didn't use their property for a long period of time so it's not a that is the conventional test for measuring just compensation that in the case of the of a permanent taking partaking of a permanent easement so this this question would in our view be  open to further reconsideration by the trial court it may be it may well be that as the government's expert appraiser testified below that the the value of this property of the fee before the placement of the sensors was the same as the value of the property in feet after the placement of the sensor you know that's a remote host this easement contained a condition that allowed for the property right owner to effect temporary or permanent notion because you all think that clearly gives a very mechanized form of damages but it doesn't seem to me to squarely fit in the needs are your own or i suppose it's i mean our position is that permit taking would be appropriate don't be so leave the determination of damages in the first instance to the court of federal claims of remit rather than to dictate something that's usually what we do i would to to sort of if you will dictate or tell the court what particular methodology should be well that would be a preference your honor just because we believe that the can since ever since the supreme court's case in virginia electric back in the  there is discretion in the trial courts to select and procured methodology we don't we really don't see any any reason for that particular question to remain open on a remain on the government's position has always been before and afters the proper test the plaintiffs position has has been or is now at least on appeal that a rental value is the correct method i'm assuming just for a hypothetical purposes that the court rejects these the method suggested by the plaintiffs that would generally leave us with the conventional before and after method and i think that's what should be applied on remand to the extent that there is going to be an award of just compensation thank you your honor roger morr zulu with morse who a lot during on behalf of the landowners i think the case that the government presents to this court is a very very different one from the one that they presented to the tr that's one of the reasons they have such difficulty articulating the reason why the case would be reversed the case that the government presented at trial was that the taking consisted of fourteen one cu parcel of eight hundred ninety seven acres had a value of zero that is the case that the government says that the trial judge should have adopted he did not to their credit they have  abandoned this argument that the taking is only these fourteen cubic feet each one representing a single sensor but what that leaves them with is nothing on the basis of which this court or the trial court could determine damages on based on their appraised areas their so called before and after appraisal is before and after the taking of a fourteen effect that the trial court has very broad discretion corp in applying the proper method of determining just compensation why you know the law isn't there's a very strange case here you are arguing in favor of this being the in temporary government's arguing permanence and the reason i think it's so strange is because how in the world put a temporary easement in title a property rights holder to significantly more money than a square foot or a fourteen cubic foot eastment there is no evaluation of a the taking of a blanket easement you know before and after situation covering eight hundred ninety seven acres so it's a false print so even if the government were to prevail on the notion that this is a permanent decent your saying that a whole new evaluation would have to be done as to the pro damages and it wouldn't be this fourteen square foot theory that absolutely and and for that reason are what the government's really asking for is to do up they they rolled the dice at the trial and they said let's try to convince judge wheeler that this is only a fourteen square foot easement which everybody agrees is worth nothing they lost now they want this court to send the case back and say to judge wheeler let us go get a whole new appraisal the one we should have done before based on this before and after theory and let's have a whole new trial and that obviously is not the way cases ought to be tried but do you agree that if this is deemed a permanent easement that the before and after methodology is the appropriate or most common use methodology for permanent easement it's interesting your honor isn't it that you use the word appropriate counsel has used the word proper and yet that doesn't seem to be the standard that this court has applied in reviewing trial court determinations the standard deals with either abuse of discretion or clear error and what counsel i think has argued for here is what he what he told the court he wanted was for this court to remove that discretion from judge winner and tell him that there was only one quote proper way of valuing this property now the fact that it's a temporary easement i think is abundantly shown by the  for you go get on to a temporary versus permit i just want it so it's your position that if the court contrary to what your urges were to conclude that this was a permanent easement you're saying we should send it back and let of federal claims determine under those circumstances the correct measure of damages your honor i would propose that the court look at this from a slightly different perspective the question is whether the approach that judge wheeler took to valuing this property was either an abuse of discretion that really erroneous a stepping stone on the way to that determination was tracked and we hear what the government says about that they said generally that approach was correct but it was wrong to look at the parachute leases but why would it not be appropriate but why would it not be appropriate if we determine horse for getting an opportunity to retry this case going to syria it was never presented in the first instance but the other day it was did they say it was permanent taking but oh yes they said it was a permanent taking of fourteen that's the case the truck now they want you to see and when we are said no that's wrong it's eight hundred ninety seven acres and he came up with a figure now that want to go back and say ok now let us go out and get a new appraisal of eight hundred  ninety seven acres and present that to george wheeler and see if we can convince him once again as to the figure i guess my point is this was not a liability trial this was the damages trial that did it mean don't you all have the burden of proving the amount of damages and if there is some problem with your proof namely if the parachuting analogy is clearly erroneous for the reasons that the government's hands then doesn't this go back for both of you to get a new shot because your evidence is out the window and you've got the burden of proof on this issue well yes to some extent your honor let's remember that the bird to prove it damages case really is it is govern largely by the notion that the images can be speculative but once the liability is established the plate of burden of proof is not quite so burdensome if you will with respect to what those damages all are and here are the of the procedural unfairness and the fact that what the government is doing is sort of taking a step in the process that is the determination temporary versus permanent they might as easily have picked the fourteenth give it feet versus eight hundred ninety seven acres or the question of the extent of the u s mint what does it authorize what does it not how how detail this court going to get in reviewing damages determinations and saying to the court well i think this is one step in your analysis what's wrong suppose the court uses before and after is this court then going to say well you know i think comparable number sixteen parachute leases but if it's a number whatever it is you know i'm going to refute the comparables i'm going to say what you thought was comparable really isn't comparable therefore i'm going to send it back in our obligation to review the underlying facts to determine if any of them are clearly erroneous and if they are are we supposed to correct that or make appropriate holdings well in the damages determination the i think the question is whether those particular wit whether that fact is so outcome determinative if you will that based the entire determination of forty one feet forty one dollars per acre or an evaluation of two leases the two different parachute leases and there is no other basis you've rejected your expert on all of the other bases that he pined in favor of and so if i were to conclude that those two bases are not appropriately analogous then haven't tied just said there is no basis at all for the determination of damages that he arrived at and doesn't that necessitate a redo at a minimum when you want to redo as opposed to me saying up sorry most the only grandmother gave they rejected it but that i reject that part of it you're all up are it seems to me a pretty extraordinary however for this court to look at the sole relevant evidence because there's no other religion ever and say parachute looses leases are not analogous enough i can't  the border patrol is on their property twenty four hours a day seven days a week this property is right on the mexican border and there is no fence between mexico and the united states the court have recovered for is the boxes underground the fourteen boxes i think there are eleven or something that's three were removed because they did in fact file for permits right but anyway in any event so the ingress and egress the only that can give rise to your damage award would be the installation of the boxes and move all the boxes correct no you are the eastment defined by the government in paragraph seven of it stipulation includes as well the operation of the box are extensive discussion of the issue at the trial court and the way in which these boxes operate which is that they are trip every day multiple times a day and that they  agent to intercept agent to intercept illegal aliens is in fact part of what the damages are for so the question is what would  be the the price at which a willing buyer willing seller would have entered into a lease of eight hundred ninety seven acres to allow the installation of these kinds of interactive electronic equipment that distinction between permanent taking and temporary taking i think you'd agree with that yesterday and they set out one methodology of damages generally are they say if europe have a permanent taking you don't go down the road eight if you have a temporary taking you go down the road the i mean again why if the court would i just don't understand exactly why if the court were to conclude that this was a permanent taking we just should send it back for a determination of the appropriate damages and let both sides make whatever arguments they choose to make neither side being deemed to wade anything and go from  there i agree with you roger if the court were to make that determination that that would be that the thing to do you did mention the case and i would be remiss if i didn't draw the court's attention once again to pass enterprise's which was  permanent taking the government appealed and said oh no that wasn't permanent it was temporary because the congress has told e p a to determine whether or not it is environmentally sound to allow this there's no deadline for e p a to make a decision who knows when p p a will make a decision this court said the fact that need for a specific date a specific deadline let alone the fact that the the taking has terminated is not necessary and i think your honor you referred to the rails to trails cases which arise in the same way that we know the statute of limitations begins at the time the  that between the light realty trial in two thousand and eight when the stipulations file and the em just trial in two thousand and nine period when year three of the fourteen year sensors were in fact acreage on which sensors had been installed the government fairly admitted to that the government has never denied that there were sensors prior to the ones listed in these to kill ation and  said well i think i thought the testimony was vague with respect i think if the court reviews that testimony and the fact that the government itself brought apt in the damages case to preclude this evidence in which the government itself said there have been censors out there since the one nine hundred eighty s we told the plaintiffs and you shouldn't allow that evidence  government is not asking this court to enter a particular damages award one dollar one hundred dollars zero dollars we we think that that is an issue that is properly within the province of the trial the plaintiffs don't agree with mr lee's assessment we believe it was legitimate but that's a question probably among others that should be for the trial court to assess on remand in the first instance it's not usually not the province or not the task that's  could be and i think it probably is the case that without reopening the record for additional trial proceedings there's enough in this very extensive record for the sea to go back and make a new  award using using instructions from this court namely that what we have here is a permanent taking and possibly that what the judge should be applying on remand is the conventional before and after m have given them even more money based on what they conceived to call within the idea of operation of the box as mr marsalis said of the very end of his argument the only thing that they believe the trial court erred on was not in not expanding the scope of the sensor liability to other parcels beyond the five parcels and the time periods that are stated in the government's libel of the stipulation that doesn't have important distinction distinguishing feature of the bass case is that there there was a statutorily mandated deadline and process whereby the federal agency involved the e p a would have to make a decision one way or the other and whether it was going to have to condemn the plaintiffs reeses or not yes your question when you determine whether you have a permanent or temporary taking to what point in turn do you look at to make th determination do you look at the start of the easing of or taking or do you do in some other way your honor think the in this case the analysis is very fairly simple because the  only thing that the trial court looked at and the only thing that we're asking stimulation is the stipulation so it would be governed by how one interprets the language of the stipulation which as we point out is a question for plenary review on appeal  i could just go back to bass for a second there's no there's no analogous or equivalent statutorily mandated date or process by which the border patrol in this case will have to make a determination one way or the other as to whether it's going to remove all fourteen sensors from the prom this property and not ever redeploy them anywhere else on the property that's that's in fact that's one of the features of this case that supports our position that these me described in the stipulations as permanent because it's just no one knows when it any of those potentially terminating events are going to happen just as one never knows when pipeline company or real road may or may not decide to aband