may please the court in three counties requesting to support claire's matter of law at the court of claims error in applying the incorrect legal test the united states motion to dismiss and the yankton county's claim was timely filed pursuant to the stabilization director and remand this case for trial on the merits court's mistake was to apply the inherently unknowable test of the cruel suspension rule when it should have said when it should have applied the stabilisation doctrine which allows a claimant in a fifth amendment a fuse case that arises where the taking arises out of a gradual physical process such as the road in to delay filing its claim until the situation stabilizes the situation stabilizes when it becomes clear that a gradual physical process for the motion by the government has affected the thinking this is something i think i understand your position on this and you know i do think that decision below put it more clearly articulated what test is doing a flight plan but i'm curious about what you think of the language on page eight twelve where it talks court does mention the stabilisation doctrine within the opinion or over the ultimate analysis the court that the court applies to the photographs the doubt and the reports are available is whether the that impact on the bridges invokes the inherently unknowable prong of the cruel suspension rule and that's the standard that the court held yankton county to throughout its opinion despite the discussion of the stabilisation i guess one argument would be that you were right there are so there's a little bit of confusion and almost melding together of the stabilization doctrine and the accrual suspension rule in her opinion on page eleven not just the it had stabilized by that point so it seems to me even though the law may have gotten melded together a little bit on the prior page this is a fact finding which under the corrector conflation of the law absolutely landing in the same place that you're in the documents were available for a claimant to make a conclusion that this teaching had occurred prior to the prior to the tolling of the statute of limitations but that's not the proper test that should be applied you feel ability to keep of problems because they did the riprap six or seven separate times starting in ninety four all the way through two thousand and four they kept going after that bridge trying to mitigate the damage trying to protect it whatever so we knew there were some serious problems with the bridge and then she finds that all of these reports data and photographs that show the permanence of the erosion for plaintiffs to understand the permit taking had occurred where all of vailable to be found so you have a plaintiff who knows he's got the energy is taking constant medically and you've got all this data vailable that she says should have told the objective person at that point in time that this of erosion was permanent damage and i disagree with your last statement your honor that the judge found that this should have showed they should have with the court of claims thomas that it could have it could have and that's a far different standard than should it have become clear to a reasonably prudent county commission and a permanent physical teaching had occurred this court has instructed in bowling that necessary to determine the permanent nature of the alleged taking of its property i wish this should have could have concept veil ability of the documents themselves all  information necessary is not what's required what's required of a finding of the court that it has become clear that the permanent physical piece you had occurred or that it could have become client because of that you claim to see hill to the standard of having actions he was documents under the under the accrual suspension rule that is correct your honor under the stabilization doctored that it's not correct the standard affected because of the the spillway off of the dam ok i'm going to try to break those apart a little bit and get to the argument that i want to present to this court which is once it's determined that the county was unaware that a permanent physical taking had occurred and we've alleged that it's in the record through an affidavit the test under the stabilization doctrine is when should it be should have it become situation here's yankton county its bridges being a road it if you look to the appendix page one eighty nine it's a portion of the report for dr reuben height from dr rubin tiny and it shows a correlation between severe flooding on the james river and the need to install regret every time there was a severe flood shortly thereafter there of you need to install rep route the county is looking at this problem and it's reasonable for the county to say ok once there's a flood the floodwaters are coming through there washing out the area that supports our highlands and washing off the banks what dr heiney also explains on page one eighty seven is that in periods of high flood on the james which flows into the missouri the corps operations manual instructed them to reduce flows on the missouri river increase flows on the james which increased which would increase that gradient from the james river into the missouri and cause even more water to rush through and to erode the banks and the bridge pilings it was reasonable for the county to believe that the problems of their bridges were facing were the result context of what effect that would have on a reasonably prudent county commissioner the fact that the missouri river was degrading because of the dam and that was migrating up to james through a process called channel in what effect with that may be clear all that science may be clear to a reasonably prudent geo morphology just or an engineer but not the yanks and county not to rural county who does not employ a full time engineer they're faced with a problem that they believe is the result of epic flooding on the james river and they think they can fix it and they try to do that for a number of years and they consult with engineers you know see you think this case is more like banks or delayed stabilization absolutely your honor but i believe that the intervene actions by the government are only one factor for the poor to consider in determining whether whether the counting was justifiable or not in not knowing that its claim had accrued and banks and applegate are good cases for that position however those do involve government action and you know if any others that involves action other than government action because the government obviously in this case the government's taken the position that this doctor  apply to you because it's not government action so i just want to be that in the cases in response to that position i don't or i think those cases make clear that it's that the nature of the corps of engineers act is one factor to be considered and it it shouldn't be viewed as the court of claims does as dispositive because we're not trying to determine whether the core is actually made it inherently knowable for the county to know that its claim existed right there not we're not arguing time all your rebuttal time and another minute and a half so let's hear from the government and i will respond little bit of your reasonably foreseeable haitians i think do have to know that it was the government is encroaching i don't think that's an element of encroachment but it would be an element of knowledge of your claim however when you know that you've got a problem with your hands to make sure i understand what you're saying you're saying that you know there's two different tasks across the spectrum stabilization and you're saying that knowledge that it's the government might not matter for stabilisation it doesn't know is not the definition of  that they knew or should have known standard is the same as the inherently unknowable standard that they're interchangeable but that inherently unknowable is more precise and knowable if you could have known it's not unknowable so even if that were is in here somewhere it's not the correct they entered but anyway what do you make of the argument here that the court below confuse the two doctrines and should have been applying the stabilisation doctor but actually  just discussing the crow suspension i have two responses to that the court was properly answering both arguments that were made by the plaintiffs as i read to you from their brief they made the april suspension early you think is the best are places where you think the court addresses stabilization not just in repeating the test but actually it's kind of throughout the court did realize more of is there's multiple formulations of that stabilization dufferin one has been when it's  about in this case the information was available to the plaintiffs it's you know i don't think it use the formulation when it is apparent that a permanent taking has had occurred that's one formulation doctrine the other one is the substantial encroachments the they're also both used in the same cases they're not alternatives in cases involving intermittent lighting the permanence is an issue the ability assuming for a minute they did just assuming for the day is it your position that that doesn't matter at all because it's only when the government takes action for mitigation it's only when the government takes action a party taking of just looking at stabilization white coat and other things other factors impact the timing of stabilization even if they had nothing those other things had nothing to do with the government's actions because it wouldn't have stopped but what they could have done and should have done after they knew the problems in one thousand nine hundred four and had to take more action in ninety five and had to take more action in ninety eight and two thousand and two and on and on the could have launched an inquiry they could have done exactly what they ultimately did do in two thousand and eleven just briefly the stabilisation doctrine and the rule suspension rule are two separate and distinct doctrines if you to the court below the county's brief clear that our primary argument was that the claimant not accrue pursuant to the stabilization doctrine we made a secondary argument that the accrual suspension roll by the key difference between the two doctrines is that under a cruel suspension the claim accrues if it's possible that the county new and under the stabilisation doctrine it has to have become clear so you can have a cruel under one but not the other and that's the case that the court of claims just decided in wealthy versus the united states where it had not the information was available but it had it had not become clear that a permanent taking out occurred that's the situation here  certainly there was enough information out there that if the county have launched that inquiry they could have determined that this claim existed but they didn't do that and i implore this court to find that it was reasonable for them not to do that given all the circumstances surrounding this case and at a minimum the court of claims should have considered those factors from bowling and and made a find was the county justifiably uncertain and if a review of the decision the court did not make that finding one thing on the isaac walton than it did create significant uncertainty appendix page two twenty five this is the twenty a leavened black and beach report so this is what the county received in november of two thousand and eleven an engineering firm the county hired wrote it is possible that their gradation of the missouri river is also affecting the james river however acting county on november seventeenth this dam currently provides some level of protection against my green degradation so as late as two thousand and eleven engineers professional engineers are telling the county well it's possible that it's a degradation on