at the place we we are we are placed where this case is before magid and i would submit to the court that the question in this case is justice if the state creates an application process for this program which is so onerous and so ill  but our position in this case is that the exception which apply in this case which allows us to have stated the cause of action is the futility exception which we that was the finale requirement is not mechanically applied a property owner will be excused from obtaining final decision if pursuing this with his they had the same thing happen so that the rules he had to submit their rd application and their rd thirteen thousand five hundred dollars then there were so call public comments now if you look at what the am going to raves say the public problems are to be submitted by those who will be affected by the issuance of the permit  simply would ask you to look at the public comments the d n r accepted and posed on what was the most notable which was from so environmental groups with offices in new york and chicago and san again so they started over and it appears to me from what i've been able to determine from the d n r orders that each of the applications require a separate thing that's the way they eighty six conditions we've attached to the permit now at that point mr woolsey good these hands and quit they attached the court may take traditional roles which is the whole of the application process a status of the economic futility of the application in this case and i submit to you that going through all these steps and this is you have to conclude that at a minimum there is a question of fact as to whether the application back next energy would have been futile and opponent meet an argument that this other company had to pay up to fifty four thousand dollars in order to get a permit because it had to make resubmission materials at the department's request because nothing i'm saying that he did not there's nothing i mean there's no reason to conclude that he paid beyond that because the basis for concluding that he may be on that is the regulation but the regulation says that permit modifications not  and that is correct because that at that stage the allegation was that this was not a physical invasion of the property and it's there isn't enough to feed a regulatory chickens and in general there might be enough to create a regulatory take pplicable here what next emerges relying on ours is the fear and repetitive process of futility exception and that exception cannot be applied here because next from ever getting a final decision made futile to continue with that process but you're asking whether it would have been futile for less energy to continue with the process because it never attempted the process all it had to do i claim that the statute or regulation are reasonable this is a claim that the department and the one way trip the leases that us energy purchased its energy purchased five year leases which is a very short time to be able to engage  energy should have applied to department is the contours of a regulatory takings claim are defined by the department's decision on a permit application here we don't have a permit application we don't know the extent of any potential restrictions on a perm other reason this is just simply taking scheme and that a party has to be able to show that they had some some property for some of these with some balance and that a decision on how they can use that property a permit is not evidence of futility that proposition has been refuted by several courts of appeals and it's been adopted by now because the cost is a different question futil thousand five hundred dollars also goes to fund the cost of reviewing example cations and monitoring and inspecting and all these other processes the department goes through this this process of person it's a cure because it can be dangerous if not futility of the application process then i would be shocked because the issue in the case where we are at is is there an issue of that's what we'll deal with with walls that's what renders at least in part the application process field the point is this is you know and i guess out of step with the united states supre