have waterways where the water would have to run uphill for them to properly function so it would be less down than whether or not we have applicable federal regulations that will provide a cause of action now i'm going to explain today that there are said under the little tucker act is there was no contract i'm going to cover there in fact was a contract and an agreement is between the parties in the federal government so as we go down through the facts of things there was in fact a contract then the second thing that they argue in the lower tucker act maybe i should ask the question where's the waiver of sovereign immunity i'm to that claim is that on the regulation it is based upon the fact that there was in fact an agreement and there is in fact a direct cause of action under the federal rights so ok so let's just start with the waiver of sovereign immunity where is that waiver or sovereign immunity comes by virtue of the fact that there is a direct cause of action and there wasn't fact an agreement that exists these are technical service providers is that the point you're now making or the technical service provider flows into out of the argument and let's cover the big picture because that's exactly where we're headed actually i'm not interest in the big picture i'd like an answer to where's the waiver of sovereign immunity for little tucker back purposes the waiver of sovereign immunity comes through the sections of the code in the agreement that was entered into as between these parties we're talking about let's look at the parties are involved you have federal government in this case the r c s you have the state and only the count entity which is the pickwick county soil water and then you have an theory a technical service provider and i think to be able to get to the point that you're trying to get at you have to to work at the perspective of saying that all of those are effectively federal government employees or agents because under the the regulations that are involved all of them are responsible and that's a key component as to the issue with the district court the regs allow suits against text technical service providers but that doesn't the stablish a waiver of immunity for suits against the federal government so that's what i may be wrong and i'm giving you a chance to tell me why i'm wrong and let me explain to you why because you have to work your way down through the system if you start with thorough two of of the regulations for the r c s it sets up a very specific set of parameters for what must be done to be able to do a water way and then put it out you can't do a waterway without having the federal government review and approval and they must do the engineering so this isn't like you go get a separate engineering company and submit it for review and approval you must work through them they do the engineering  now i go frustrating that you can't sue the federal government i'm not even saying huge should be able to but that unfortunately we're not allowed to let that happen without identifying the waiver let me go specifically then to you're really talking about whether or not there is an expression or implied authority to sue and this is where comes if you look at you store under section four twelve and section four twelve provides that the government will in fact do certain things and if you want to someone up in very simple terms with these waterways resigned they'll be designed so that the water flows into them and the water flows out of them at a rate th does not cause damage to you the ideas you can imply the waiver from these various things and the role of the government has in the role of technical service providers is that the basic theory i don't think we should have to employ i think it is implied but i think it goes more than just implication and if i can move forward and then let's just say you're right if you're right doesn't that mean we have to transfer this case to the federal circuit this is the federal circuit have exclusive cases based in whole or in part on the tucker i agree with that so if you're right we have to transfer the case all right let me move forward when you look  an r c s regulation five o five it says very specifically that the n r c s is technically responsible for everything being complied with so all the regulations and the  must be complied with and then it says and you can you can use a technical service provider it doesn't say thermal you can go get a technical service provider it says and or say yes you can use a technical service provider that you must supervise you must qualify and you must make sure that they follow these steps now that's the important link in terms of getting past that sort of an immunity argument that you here rb cost and you obviously were referring specific to the language that says the technical service providers are responsible for the technical services they provide including any cost damages claims or abilities and judgments are right now when they are an agent of the federal government under these statutes no question about it then doesn't that suggest that there must be liability in respect s to be able to comply with the statutes why else would you put a provision that says the t s p is responsible because if they are an agent of the federal government and there is no responsibility at all now understand the process very quickly and this is important because this sets forth the basis of the litigation and why it's nice steak point everybody saying well these are just a cause of action they're not here's why under this requirement the first step is that the farmer must meet with the n r c s to determine whether or not the project is effectively feasible to the extent that they determine it is there is a conservation plan established which is an agreement that is signed that says on this basis we're going to move through what's the next step require bisection code for twelve you must go out not uniform or you the government must go out into the field work to determine whether or not this work can be done so that water flows down hill which which government does the field work the field work is commonly delegated to the pickaway county soil water district or the or the county but in fact it is under the auspices of the i r s but in this particular case that wake county was supposed to do the field work they did the allegation in the complaint is in never happened right now let's move you mentioned earlier in the discussion a contract who signed the contract did the federal agency signed the contracts there are two there are two aspects of the agreement the first one was the agreement and this came directly from pick way kelty in mr causey in saying you're having water problems come to us and we'll help you fix them where is the contract that the government that the federal government's attached to the complaint the amended complaint and it's called a conservation p once you have these rawlings field work done they're supposed to be a set of engineering drawings done required by the federal regulations yes what didn't happen it's alleged that there and then it is supposed to in required under the federal code that that be approved by the federal government in this case the n r c s supervising the pickwick county once again it is legs at that never happened well what's more important here as we look at the situation in terms that occur tory in the in the mandamus action is these are federal actions they have nothing to do with the state these are w must happen for these waterways to occur there is no krone to and so this is not a state court action in terms of saying shouldn't the n r c s and shouldn't the state through its county and shouldn't t s p be in a position where they in fact have to comply with these regulations the court of regulations in the walls say yes you should have to apply and then process is responsible but at the minimum we're talking about seeking relief to say comply with the federal laws and it's not something that we can get relief anyplace else because the whole process is regulated through the federal system it is governed by the n r c yes it is implemented by the pickwick county soil water in this particular situation and or their agent t see that i am running out of time and i would just suggest to you this is not a state court case this is not a case where there is no contract this is not a case that involves a statute of limitations this is a case that involves specific federal regulations that say you shall do and this point of wants them to do them once damages against three different defendants if they did it one of those minutes in this case for a claim to arise under federal law a cause of action has to be created by federal law or the state law has to implicate significant federal issue appellant relies on seven c f sixty two point four d as their only citation to try to place liability responsibility or to allow for a federal cause of action against watershed and i don't believe the that is the purpose of this regulation as the apple it indicated all of this  done through the governmental agencies they have to be approved by governmental agencies and a white what this regulation is simply doing is saying that t s p's remain responsible for the work that they perform it's not creating a separate cause of action under the under this regulation and what's important to note is there is nothing in this regulation or anywhere else in the federal laws that are referred to by the appellant that state that a participating land owner has a private right of action that say i think you're right about this what about this allowed to say it's not much of a claim and therefore we don't have to send it on we only send on what was a bill claims or what happens well i would think that if you say that if it doesn't arise under federal law i think it can be dealt with here well i mean they are alleging a federal regulation suffices to give you the will talk or act waiver or immunity well again and i'll be honest with you i've not looked at that issue and the little tucker i don't think applies to my folks in this particular situation i think it only applies to the government agencies correct maybe they can answer the question great you're representing agent no but you are saying a regulation in seven c f r which you said said that t s p is are responsible for the work that they perform correct so if there's a federal regulation that so provides why wouldn't someone be able to sue the t s b for failing to provide proper work they can't sue they can't sue in state owner of this form at the time to the work that entered into the contract with watershed and was the owner of the farm when the work was performed on the property stu farms didn't buy the property until over two years after the work was performed a lawsuit in state court was filed by watershed to try to recover money owed to them for the installation of this waterway and mr neff counter claim for breach of contract and negligence for the installation of this waterway is that suit still pending in state court it is pending it is pending in the court of appeals this was a as i understand it this was a case that was determined on summary judgment went up to the court of appeals the state court of appeals affirmed in part and reversed in part senate back down but what they did prove any damages as result and so that was that it went down and there was a trial held on the on watersheds claim against mr neff for recovery the jury found  that watershed couldn't prove their claim and that's what's up on appeal in that situation and with regard to this regulation also i think it is very important this regulation focuses on the responsibility of a ts pete it's under a section in title technical service standards it doesn't it doesn't talk anywhere in it and it's not in title rights of participant landowners and in the case that i cited alexander versus a and of all it's states that statutes that focus on the person regulated look at which is the t s p rather than the individuals protected the landowners create no implication of an intent to confer rights on a particular class of person again i believe this regulation what it does is it the draft wanted to make sure that everyone understood that ts p s who were private contractors who were granted ts peace status we're not entitle to any type of governmental immunity that they remain responsible for for the you please the court in glasgow here on behalf of the quake county soil and water district i'm here mostly to answer questions i have for minutes so if you have questions that you would like to ask me specifically a certainly like to answer those first but barring that i want to pick up on something mr williams said this is an issue where the planet could not have sued pickaway county they could have sued state claims in state court but our point is and the district court correctly found that they can't bring these sort of amorphous federal claims in and had they brought these claims legitimately of state law claims in federal and state court they would have run into a lot of roadblocks in terms of immunity and other issues claims filed in this case in federal court i know well there's contract claims and we brief that that we don't believe there's any contract claims but there's no state tort claims expressly there's no expressed a court claims our contention is that because what they've alleged and i can't remember how they term it this sort of amorphous federal claim directly applying these these laws  we've construed as a state law claims using federal law to supply some form of a duty but basically it's a state law and a legend claim or or recklessness as a state tort claim against against pickaway county which the district court granted our motion which was on the issue of statute of limitations and an appellate basically provides no no basis on which the statue of patients wouldn't apply the basis for the factual basis and it's borne out of the complaint and in the pleadings from the state case on which the district court took judicial notice was that the stew farm which was the buyer actually that what it's obvious based on the information it's known that there is even if they don't know specific facts about the wrongdoing of a party where the damage is known and the fact that the party was involved in a case that's sufficient to trigger the good morning your honor is john starr comey after the natural resources conservation service it's important to step back in this case there are many boilerplate allegations in the complaint and i want to state something at the outset there is a waiver of sovereign immunity that makes the united states liable like a private person under state law with exceptions to that way or it's called the federal tort claims act and the plaintiff here is specifically disclaimed the federal tort claims act claims is not bringing a claim under the federal tort claims act so that is a backwards looking state law damages claim if there's any claim that would fit in this case and i'm not saying that the federal court claims that would actually be a successful avenue for the plaintiff but i am saying that's the waiver of sovereign immunity that waived the united states liability under state tort law these other waivers that the plaintiff is relying on we do or how are we supposed to do that well your honor the district court decided that it did not have jurisdiction under the little tucker act this court certainly can decide that the district court was correct in that determination if the court decides that the disc right is that how it works i mean with the court of appeals even though there's exclusive jurisdiction of federal circuit even as to that we under smith versus or your honor that is my understanding ok yes so the other problem with the little tucker act is the pla does not allege that the united states breached the contract with stu farm plant doesn't even attach the contract with steve farm to its complaint is a contract with john f and that's a conservation  service agency decides to fund the contract in the c c c is actually the party the contract commodity credit corporation in the government to fund the contract the other very puzzling thing about this case is the relief that the plaintiff is requesting i really saying my projects out of compliance well what the federal government does is say then we're not going to fund the plaintiff can build a grass waterway on its on its private lands this is a voluntary program the conservation reserve program is voluntary what the government says is we're going to decide whether to fund it so it's not a warranty program for a plaintiff or anything of that nature so could a plaintiff sue your client in federal court to say you should provide funding your honor the the other aspect of this case it's not been discussed yes and certain scenarios and part of the problem with this case is the plaintiff never exhausted administrative appeal procedures and received a final agency decision from the u s d a s national appeals division under  provisions for exhaustion under appeal procedures and seven c f r six fourteen point three b it specifically says with respect to matters identified in paragraph of this section participants made to feel adverse decisions concerning issuance of payments or other program benefits to a participant a program so if the united states denied payment to stu farm let's say that was a ladder which is not even alleged in the complaint but if it were then there would be an appeal process for that now some matters i would take the position some matters would be subject to the discretion of the united states complaint that money was actually assigned to stew farm so again a real oddity of this case is still farms arguing that it shouldn't been able to receive money under federal law that would be what the federal agency would do if it determined that the landowner was out of compliance with the united states this would fund the project and then that would have to be the incentive to make the landowner bring the project into compliance with that and r c s seek reimbursement from a landowner from whom to whom it had made payments saying that the landowner didn't properly contract with the t s p or something else like along those lines absolutely your honor if the if the if the natural resources conservation service determine that a project was out of compliance or became out of compliance it could recommend to the farm service agency in the commodity credit corporation that the contract should be terminated that fund should be returned to the federal government so again we have a very odd circular case here where steve farms actually arguing that it shouldn't be receiving money under the conservation reserve program because that's the duties of that is the duty of the secretary to fund the project that it determines is in the public interest he a federal agent no iran no and and there's been a lot of talk about t s p in this case i want to make clear even under the allegations of the complaint watershed management was mr nafs contractor under an oral contract watershed management did the construction work that's not a t s p a t s p is a technical service provider and i explain it in more detail in the brief but that's a significant red herring in this case that is really completely out of whack with the regulatory structure and i cite a handbook is there a ts in this case the technical service providers in this case were the natural resources conservation service in the pic wake county soil and water conservation i hesitate to call them t s per se because t s p's were established by the united states to allow other parties to do the work that in r c s doesn't soil and water conservation districts ordinarily do because of basically a lack of human resources in getting the job done if watershed management was a t s p then it it would do the plans it would do all of these things that pick wa county soil and water conservation district did it in the in our c s did and i want to point out i've heard the plaintiff in the world argument and then the reply mentions that there were no no plans or anything and i find that puzzling plaintiff's exhibit soil and water so there was a determination is made that the project was appropriate to the signatures from an r c s or in august of two thousand and six mr neff signatures october two thousand and six there's an alternative waterway design sheet exhibit j your honour's are there any are there any cases where in our c s has been sued and there is there has been a finding that there is an implied private right of action or a finding that there is not to imply private writer directors this is a really unique case this your honor is an unusual case i'm not aware of any private right of action cases under the conservation reserve program statutes again i come back to the federal tort claims act that's the statute that waves the sovereign immunity the united states and makes it liable like a private person with certain exceptions and that's how appointed brings a backward looking damages a store by very quickly saying you must delineate between the federal regulations and clay and the state court litigation that involved a contractual relationship between the former owner and watershed management well there are facts that we know as a result of that trial but nonetheless it is completely different than the lawsuit we're dealing with now as to whether or not these defendants must comply with specific federal regulations that have been cited i also want to go next to the issues that were cited by the county and there's an important one here in the terms of the statute of limitations that was not addressed again the state court action related to whether or not there was a of contract between the former owner mr knapp and watershed management during the discovery in that case another employee of the federal government the acknowledged under oath and only testified at trial that the government didn't fall which procedures the government regularly did not get engineering plans done in advance the government regularly did not supervise and it was regularly with this watershed management contractor that effectively they went and did the work without having any of that work done that's not in compliance with the federal regulations there's been a discussion about whether or not a t s p is an agent i disagree with the arguments of opposing counsel the reality is they are some weight responsible to the federal government they are not responsible in the context of a contract to the land on this issue of whether or not they were a t s p in this particular case it's asserted the watershed management of play two roles they were the contractor and they were the t s p raises a little bit of a conflict of interest and in fact that is a problem in this particular case the federal government also indicated that when we look at the n r c s duties that the n r c has duties are to fund well that's not true the statute says you shall do these things and they must do those things they didn't do those things they also referenced the fact that you must exhaust appeals how do you exhaust an appeal when the allegation is you didn't issue reality is they didn't go out and create engineering studies they didn't go out and investigate so there isn't any decision that you can exhaust your remedies all of your only recourse is to effectively bring suit in federal court to say amount of damages is only up to ten thousand i would agree with you but that's not the primary purpose of this litigation the primary purpose as litigation in respect of the federal government is you are the gatekeepers of this entire section and you need to comply with your own regulations and your regulations are specifically that you would do this this this and this you didn't do any of that you should be instructed to in fact comply with those obligations and your red lights been on for a long time so thank you thank you all for your argument the case will be submitted and with the kirk adjourned court