lost unquote between mr singer and ms went in at the same as saying that there is what you just said personal animosity toward the female president first of all i think the female part probably drops that doesn't mean there was an issue below with regard to motivation being based on gender but i don't see that in the papers argue duffus what we believe to be the motivating factor for mr singer's exhibiting the ill will towards him towards quad valley and nancy went was began in a meeting where mrs went was the only female there and they were all these other men including mr singer and she embarrassed mr singer because she proved that he was wrong about something on water quality and he became say mr singer was upset when he was because you should have by someone else is probably irrelevant of page forty five states that quote squad valley has shown disparate or unique treatment unquote in relation to the discharge of happily deny however that this difference in treatment is related to mr singer's personal animosity instead arguing that the disparate treatment in swat valley is justified by its purported history of violations the narrow equal protection question in this case therefore boils down to a single issue for this court to decide actually there's a supreme court cases although back in the thirty's the talk about this but if you look at this court's decision in arm a terrorist this court held that the rational relation test will not countenance behavior that is arbitrary or irrational or malicious and so i don't think it's a large leap from maliciousness to personal animosity if a person if a regulator is regulating out of personal animosity out of hate or spite true after a spite or hatred quite an hatred suggest i guess a more malicious source makan have personal animosity toward somebody for perfectly legitimate reasons start using words like spike and hate at least the implication there is something more sinister s ship terms of spite or hatred comes from the at the episode that you cite or for whatever or for somebody's brother in law or in some kind of personal rational slash governmental factor i think that's where you have to get to and so the acknowledgment of personal animosity still leaves something short of establishing the element i think is necessary to make that whatever cases here just put it and you raise  point two responses to that the first is that in this case as you pointed out it becomes a factual question is it just personal animosity does you just dislike her or does it really rise to the level of hate or ill will we don't know that's a factual question for a jury to decide after listening to mr singer on the stand and after vigorous cross examination that's a factual issue but more importantly and getting right to the heart of your question if there was some evidence of environmental harm in this case then you might say well he's regulating out of a desire to protect the environment that even mr singer admitted under oath that he has no evidence this quote values ever harm the environment no evidence that any sediment is ever in it or the creek from any project is probably no evidence of any beneficial use has there been harm when you start looking at the fact that the man who is regulating this corporation into the ground  admits that he has no knowledge of any environmental harm being caused by that by that corporation that raises a red flag that maybe there's another motive here or it could suggest he's saying it's been tough but we've managed to keep him in line so they don't actually the other ski resorts still get to use the tree until you relative standard if their natural background triviality is ten they did a standard of thirteen we don't we have to comply now with a three standard even though the standard for drinking water is fi fork would be four point three you're expected to clean it up so it's according to their calculations it's five point one four in the south for persons four point three it's a very slight de minimus difference keep in mind though to get to that five requiring animist it just says that if there is differential treatment and it's not rationally related and that's enough now you know like you have a thirty three foot easement being required of the oldest and i think put easement being required of everyone else is there any i have to say with regard to peace with the equal protection have a much harder time case against mr goldberg's or anything else other than me if i understand it's factual that there are so many reasons why somebody may do what he's told to do particularly when when there is at least some basis for him to hear mr sanger and to believe that they've got a history so we have to be especially vigilant vigilant is there anything else that singles out mr  goldberg's belief or conduct with regard to equal protection claim you know just i think that you could make the case that he was just following orders you could also make the case that he knew that he was treating scott i differently there is i don't believe there's a factual issue that he harbored personal animosity or well we don't have facts of that here about halfway through your time right let me just spend a couple minutes on the step of the due process thank you let me just get to that  did not that we did not prove ourselves in due process claimed basically because the district court applied the smitty case and said that if false evidence was presented to law and it would overcome the presumption that the board exercised its independent judgment but the district court said that the obtain the referral to the attorney general incidentally something that lott has never done to any discharge or even p g any after discharge hexavalent chromium and cancer causing material into entire towns drinking supply they've never tried before occas attorney general formally and except this one anyway we've stepped forth in our reply brief that pages eighteen to twenty a variety of statements were made to the board that we believe were untrue but let's just like to quote one that is very direct quote by in deposition in this case the truth came out that for some of those deposition excerpts of pages eighteen through twenty as well but the truth is as i previously indicated they did they don't know the single beneficial use that's been harmed couldn't name a single one regional board should order its unfortunate priorities and its presented its view of how state laws and state water quality regulation should apply to it but the question presented is whether a reasonable trier of fact could find that there is sufficient evidence in the record briefing the w t r is that if you are for i think the resort spa creek and homely but the w d r s are not in the record before this court and the court cannot look at them and see whether or not they are similar in addition with an absolute standard of three point zero whereas others are permitted to comply with a relative standard is that true there is no evidence in the record of what i should back at the start that i know you have is not other people different regional board in establishing the w t r's is not a part of the record in this case so i i would be just to some extent speculating about how that was arrived that but there is a presumption that government action is regular there's been no contention we attempted to address many of the factual issues but in doing that it's sometimes made now ask the fact that what we have the bottom here is that it's a dispute between squad alley and the regional board at most the evidence shows that's quite valid disagrees with mr singer and mr goldberg interpretation and application of court issued waste just charge acquirements there was some discussion today about beneficial uses beneficial uses ar individual defendants but with the regional board and it's not appropriate in this but that kind of begs the question as to why it is the staff was motivated individual staff members were motivated to persuade the board take a given position if an individual hypothetical not this case if an individual is truly motivated by an improper motivation and because of that goes and persuades the board to take a given position which frankly staff members are frequently able to do because most boards approve staff recommendations put in front of them particularly if the board is not made up of full time who is on his board anyway and members of the community of the so i served on those boards i've seen the staff with the recommendations out there so the fact the voice is ok i'll go along with the staff is that insulate the staff member even we've acknowledged that he's got the illegal motivation certainly not in every instance but the problem in this case is there is no evidence of improper mr goldberg i'm not sure that i would use the term insulate but it certainly has been recognized in the case law from this court that when we're dealing with a recommendation there isn't anything improper about the  disagreements frustration hostility and squad values we was at a point of can survive summary judgment simply by presenting some evidence of just a disagreement between the regulator on the one hand and the regulated entity on the other similarly situated and there is differential treatment in this case in the fact that squad value has been the subject of increased scrutiny but squali has not identified other similarly situated discharges just charges with a but in any event the very same facts the fact that they are large that they have a history of noncompliance but they tend to dispute staff recommendations and decisions a rational basis for the decision to focus regulatory scrutiny on swat valley let me ask about the history of noncompliance of some place i've seen that now cannot find the testimony by mr singer that was referred to  earlier with regard to his knowledge of violations could you refresh my recollection or give us your understanding of what it was that mr sawyer testified to and what the implications of that are for the  believe the question was something to the effect of is it your position that that mr peacocke was missing violations on the mountain during and during that time period and mr seniors answer was i wasn't out there every day something to that effect that he did not decision and also the meaning that was discussed by mr robertson with missing or i mean excuse me with mr with ms lewinsky and that meeting with about a noncompliance issue mr seniors opinion was that they had failed to construct certain wetlands on time and that that was why the meeting was occurring and while i'm on the topic of that meeting we did know in our brief that that exchange was not raised below as the impetus for a campaign of vengeance b the butler v l case makes this clear in that case the plaintiff had filed certain complaints and was a very outspoken critic of the sheriff's department and the evidence showed that the sheriff openly disliked atlanta and yet the court would not infer from this that the sheriff's office authorization of an investigation of the plaintiff was motivated by his dislike there has to be evidence of cause a connection between the inserted improper motive and behavior and we do not have that in this case any other view of the law would create a civil rights claim every time a recalcitrant regulated entity succeeded in frustrating the regulator and this is not the function of the constitution or of section  we may have here is whether it's a claim that can be resolved in summary judgment whether we can take the record and eliminate those contested issues that they could permit  case versus even in indianapolis i think the seventh circuit and it cited in our brief in which the government actors actually made a mistake about their application of the zoning ordinance and the court found that that is not a constitutional violation it is not arbitrary these types of disputes do not arise to constitutional violations in the case but if i may sum up briefly the constitution does not guarantee squat value the right to decide which regulator first off the discovery house case does not apply this is not a mistake we're talking about we are alleging this is an intentional campaign the meeting that the police indicate was not argued below it was standard of the fact that letter was drafted by somebody else jerry peacock the senior water quality enforcement officer he has a master's degree from stanford in hydrology he knows the standards he drafted not only the standard for  skiers he testified that the standards to be applied to all the ski areas is supposed to be the same that used g e r twenty four sixty five he testified that two years after singer and goldberg change the standard valley they'd never told him all the other ski resorts that he's still regulating them under the relevant standard that may one thousand ninety five letter is signed by robert dodds put it at deposition i asked mr singer if you we haven't presented an apples to apples comparison i want to tell you a very ironic situation swat valley beginning in late one nine hundred ninety nine after jerry peacock was removed from squad alley he was assigned to a company called that company began construction in two thousand of a village in our parking lots called alice parking lot because mr goldberg was regulating swat valley if we had been building that village the absolute three n t standard would have been applied to us was regulating the construction of that village he was applying the relative standard rather than our own property same water going into the same creek the only difference is who owns the construction now that is not an apples to apples compar that is an apple to apple comparison that is the left half of the apple in the right half of the apple stand the state's position to be it depends upon the beauty are whatever of what is there anything in the record that tells us what the standard of like standard applies to all the ski areas or at least it's supposed to  is normally the only way to separate permissible motivations from those that merely mask unconstitutional conduct i suggest to your honor's that that's what's going on here there is a legitimate question of fact here primarily because they've admitted there's no harm to the environment and if there's no harm the environment why are they regulating us under a microscope and why do things suddenly change in one thousand nine hundred nine following the meeting with miss went where she and mr