this case is not only whether the now whether or not you've got a possible for the hard cost the direct cost of building alternate storage facilities which cost in the tens of millions of dollars and which the government is not to test on appeal but also whether the government is responsible for the cost seeking mitigation damages and in indiana michigan this court set forth requirements to recover mitigation damages causation foreseeability and reasonable certainty and it's the foreseeable foreseeability problem it's at issue here and that prong requires the trial court to consider whether the loss claimed as damages which foreseeable as at the time of contracting not just in the sense that it was conceivable but rather at it with that it was foreseeable as a probable result of the breach are you arguing that it was that some legislative permission might be require yes there are we certainly can test that for a number of reasons which we raised before the trial court the  glaring example of that comes at page eighteen seventy five of the joint appendix which is the brief that northern states submitted to the minnesota public utilities commission when it went ahead acting under the belief that it didn't even know to go to that it didn't even have to go to the legislature to get its approval and the very first point we see on the table of contents that n s p raised before the minnesota public utilities commission was quote legislative approval is not challenged that's not challenge and the reason we're not challenging them is precisely the reason that this court held that the tax consequences in citizens scattered were not were not recoverable and the reason for that is that that's a preexisting statutory scheme that the citizens federal was aware of and that contracting party would reasonably be chargeable with knowledge of as at the time of contracting that i think the parties are chargeable with knowledge were chargeable in eighty three with knowledge of having to go to the  certainly are honored if the manager came first then i think there would be a problem linking from a causation perspective the mandates to deal with bridge and i said i would also add that there would be a foreseeability problem in the sense that it's not reasonably predictable foreseeable to deal we as a time of contracting that the point here would incur mandates that were unconstitutional were beyond the scope of what a state could reasonably early what is stated reason we accomplished through the legislature i would also know that it would be unforeseeable as it was a hercules for the plaintiff to go ahead and pay those mandates when there is no constitutional obligation for them to do so that they would have had a valid constitutional defense and in that case we have to reach the preemption question the court does it or it is one of several reasons that sets the reasons for which as a matter of law these mandates were not one of them is the preemption question the other is the numerous intervening of bags between deal with breach and the payment of these mandates and in that case in that sense it's exactly like the court's ruling in old stone there were numerous intervening causes there was the change in the law northern states itself believe that legislative approval was not required as at the time because of the time to actually apply certainly deal we had no reason as of one thousand nine hundred three a standard contract was executed to believe that a likely consequence of this bridge would be that northern states would have to get legislative approval when the northern states itself didn't think so there was also what northern states chief executive described a process described during the trial of cross examination as the hijacking of the state legislature by to nuclear power that's another third party stepping in just like an old stone just like the case of old stone sites including the least at the lewis george case where it's talking about how it's not foreseeable when third parties step in and cause damages to the breaching and cause damages it did not even states have any other choice than to confront klute legislative question and to get into it here to the that it would be not reasonable for them to do so even after they obtained permission they could have said before writing more checks we don't think that we should have to eighty's because the opposite these mandates is unconstitutional but is the reasonable this of their actions but the question of whether this entire course was foreseeable in the first place that's right and the critical inquiry here is what set forth that section three fifty one of the restated and when it's talking about loss that are caused by a confluence  different circumstances and northern states here suggest that the only circumstance here that's relevant is the always bridge but i was made out of that there are several other circumstances that i've talked about here the hijacking of the legislature the change in law the two thousand and three amendments to  the minnesota mandates that not only require you to pay eight point five million dollars every year but there is an increase in price up to sixteen million dollars here there's no logical stopping point to the consequences of the br it's certainly a background factor on this ng it's a different situation than the what you had heard yes right but i think it's important to recognize here that congress has specifically designated nuclear regulatory commission as the arbiter of what is safe with respect  nuclear power and what is not and what states had the opportunity to contest a i'm sorry state of minnesota had the opportunity to contest northern states powers application for a license n r c it has still in the face of that said it's ok to store nuclear waste on site deal we just promised that it's coming we're not going to permit states to to legislate a hodgepodge of restrictions on that and we have faith that the it will be coming undeniably components of this legislative scheme that arc right now will house of the our state the legislative mandates incorporate the public utilities commissions order that order dictates the amount of radiation that can be emitted from the granted n s p the only qualified right to work forty eight casks to its dry storage facility and the state of minnesota said well not so fast we're only going to let you or we're going to point to let you load seventeen of them and when you do we're going to require you to pay what now now is to hundreds of millions of dollars and i'm going to restore your report of time with it please take the minute and a half you have on the clock to address the other issue the private storage investment question certainly concern about the website and i think that's exactly right the only justification that the trial court set forth for their participation in p f s their continued participation in the face of the fs was that they were forced to do so but if that's not a gas and electric case that a california statute the war in all courts act which is substantially similar to the piece of legislation that is at issue here was not preempted so to win this case  need cost and reliability of electricity and that is exactly what the supreme court said was not preempted in the california statute california statute is worse than the minnesota statute in california you cannot build a new nuclear plant  because of the state legislation which ties the construction of a new plant in california to a determination that the government the u s government has a satisfactory solution to spent nuclear fuel this is a much more limited respects first of all that was an issue of fact before judge weeks we absolutely agreed with counsel for the government that the indiana michigan standard was causation foreseeability and reasonable certainty there is no issue with respect to reasonable certainty the costs as government conceded in response to judge sauls question and there's no issue with respect to causation so the only issue is foreseeable foreseeability which is clearly a factor terminations now for several different reasons judge we got that part of his  decision absolutely correct number one the nuclear waste policy act which predated the contracts in question actually has a provision in it which talks about the need for dry fuel storage and indeed it gives dry fuel storage legislation so it was at least foreseeable that the congress went in an act of the statute and a significant fact which counsel for the government consistently ignores is that the first acting head of the ways program robert morgan admitted to the trial that he was concerned in in the imposition them in dates or really related to to the storage of spent nuclear fuel these days with all due respect your honor these mandates are directly tied to the storage of spent nuclear fuel on the planet and the reason blackmail well i don't know that it was blackmail your honor i think the legislature viewed that it had the authority to impose economic restrictions if you will on the operation of the drive to a storage facility and norman states  own i'm reaching pardon they had no choice they were looking at a possible shutdown of the plant which would have been a billion dollars in damages versus trying to get the plant operated that's a different issue the question is why would anyone or see that the states would cost and reliability of electricity that's what the supreme court said in the p g and e case which was coincidentally decided before these various contracts were executed and i would respectfully submit that when the first director of the program admi action in the form of mandates was not only foreseeable it was foreseen that also that cost also would be recovered well i submit that the law in this circuit is that if the if the mandates are foreseeable the particular the answer is yes is that a foreseeable i think if the if the if the underlying action taken by the state is foreseeable then the individual components that whatever but what's the answer the question in that hypothetical would that be for on what's a reasonable foreseeable things so to speak i mean i think the government in its brief had the example of the if they had to require to put a office tower in downtown minneapolis or st paul  there has to be a limit on what's foreseeable and i think quite properly i think the example hypothetical would judge dyke positive sort of the across the line isn't it isn't it better for you to concede that there may be some outliers in terms of what a state would impose that would not be foreseeable because they would to the normal objective mind be so one reasonable and unrelated to the issue at hand well with must try to make your argument for you but i think his hypothetical really highlights well the question i have my mind where it is foreseeability come up bump up against reasonable listen cross the line well let me just say in response that you the point isn't there a one somewhere in the discourse where one has to say because it's so if you will help landis that it's not a for livid that it's not foreseeable well it may be that there is such a line but this court hasn't articulated one in the two cases that i think directly addressed this circumstance that judge dyke raised is the citizens federal case in the anchor savings bank case and in both of those cases this court held that the exact nature of the particular is there any difference between my hypothetical and what happened here and if so what is it i think there is a significant difference your honor because the legislature here and indeed it's reflected in the actual statute is in which the mandates were placed into force in effect where is that provision in particular those in the in the j this particular payment of money deals with the type of energy northern states acquires and then sells to its customer it's as economic is any activity that you gauge and with all due respect it's certainly not safety issue  the sources from which northern states can acquire energy we had to acquire biomass as a result of the mandates that's an economic issue the legislature expresses a concern as did as did the state of california the war and all course that with respect to and i'm reading now from the joint appendix at thirty thirty three this legislature the legislature finds there it that there is great uncertainty over the means and costs of disposing of radioactive waste generated at nuclear powered electric generating plants i would note that the word costs around or appears i think i counted this morning five different times in that section so the state is concerned about the costs and whether the rate payers are going to be forced to deal with the cost  of additional on site storage as a result and has been does the best it can do and this in the suggestion that we somehow did find out about this is also not correct we indeed after the minnesota court of appeals concluded that we had to go back to the legislature northern states power sought review by the minnesota supreme and to go or i'm sorry you did not go to court shall we when we sat search your area before the minnesota with all due respect in light of the supreme court's decision and paul i'm sorry the the the heels involved the preemption question the state appeals did not to the best of my recollection involve preemption issues but we did take action at least within the state of minnesota and then during states has a very short window of time because if we had filed assume that we had gone to federal court i think we would've been looking to shut down we had a very short window of time on your honor that the company made the decision at the time that prevention was not a gentleman option for them beyond pursuing what they did in the minnesota supreme court and they did the best they could with respect to the legislature and government didn't raise preemption before the trial court mr howard was there he was cross examined extensively there's nothing in the record with respect to the government ever asking the chairman and c e o about that issue you know nor is there any discussion  was tied to the same concern that led to the then chairman and c e o to do the best he could with the legislature and that was whether or not the plant was going to be have to have to shut down it's also really concerned about what the mandates while they were concern in part of about the ongoing legislative mandates the first set of mandates were enacted in one nine hundred ninety four and a second amendment if you will to the mandates was an act in two thousand and three so we have the same concern here shut down and there was also an ongoing concern that the government was not going to perform and n s p which was paying literally millions of dollars to the government needed to come up with some alternative solution this is not a sort of fly by the seat of its pants operation northern states is a very conservative utility it does not go about spending money willy nilly it doesn't have that flexibility this was what the what viewed as a legitimate surrogate performance given that the government was not coming we were trying to get another facility available faced with the government's complete failure to perform so what's the facility it does have a license your honor which was believe awarded in two thousand and six but it has not yet been built local so that all so the money that we're talking about that's in the i think the twenty four million seven hundred twenty thousand is for the licensing approval process correct yes and i would note that with respect to p f s this is also a foreseeability  linked it was really essence of mitigation they were attempting to find an offsite solution to the government's failed performance and given that it seems to us that it was eminently foreseeable and indeed we would know to judge we  i would respectfully submit that no your honor there were a host of concerns that caused an s p to pursue p f s but the one that the court of claims relied on was the concern about the legislat don't know that that is the quite fair to judge least i think judge least determined that we were looking for an alternative form of performance to the government's failure to perform because of the concern about legislative munich right it if i'm wrong about that show if i'd like to say well i will i will look at judge leases decision but i think judge we says decision but was based upon several findings including but not limited to this was an alternative to northern states for governments fail performance and well i think i think we're pretty much done with questions if you could just take the minutes to take a glance see if you could find that sponsor right now  would be appreciated sixteen discusses the mandates and then starting a joint appendix eighteen he discusses separately private offsite spent fuel storage facility which is p f s right and he targets th t with all due respect to our joint appendix eighteen plaintiff saw in the lower right hand corner plaintiff saw the product fuel storage initiative as its only means of addressing its very real concern that deal weeks continuing nonperformance would eventually force upon it the need for spent fuel storage capacity that a dot divided legislature either would be unable or unwilling to satisfy so he refers both to the legislation as well as the nonperformance and we would submit your honor that east nonperformance was driving private fuel storage as an alternative it's exactly what the government was supposed to provide under the contract for the opinion do you challenge those findings were do you because i don't see any where we're i mean do you challenge those factual findings is clearly erroneous or are you saying that he was failure to engage in the foreseeability analysis that's required by indiana michigan truck court found that the foreseeability wrong was satisfied merely by showing that the plaintiff acted in good faith and commercially reasonable commercially reasonable and then didn't you think were them states she would come forward with on the foreseeable issue i think the only way to answer that question is to establish that or to say that the testimony that they provided with regard to their direct dry stor costs was sufficient to establish that those costs were for say it they came in and said left deal we didn't perform it was they knew that we would have had to do something and then i understand you have government very fairly doesn't doesn't challenge the senate energy committee on state of minnesota and mr novak was asked specifically when you were chair of the energy committee in the early one nine hundred ninety s it never as you mentioned it never occurred to you did it that the legislature would eventually become involved nagin with regard to whether perry island could expand its storage capabilities isn't that correct answer that's probably correct the gentleman in the world who was most knowledgeable about what was likely to come before the minnesota legislature concerning spent fuel storage been constructively aware or was aware of the fact that this would come before a problem before the state or become quite a couple of points that i just want to get you quickly first council repeatedly re the portion of the statute that addressed economic considerations not trying to compare that to what happened in the pacific gas case please bring court judge right you were correct in your analysis in this set forth on page twenty six of our facility clear wait no state wanted importation of other states nuclear waste and that certainly was foreseeable but it's an entirely different different subject altogether to suggest that mr morgan's testimony that he was