i'm coming to the letter i want to do say that we are very much interested in in part because we have an obligation to be interested in the issue of this cour is what we have in mind twenty five pages double spaced government first and leads for two weeks for each so government's brief to two weeks from now your brief to two weeks there after the submissions so we try not to be cramped in what they consider relevant to the question of our own jurisdiction but focus on whether we have consequences of finding no jurisdiction should be addressed consequences on issues such as preclusion including perhaps the potentially relevant question of election of remedies also discussed in schlosser whether having chosen to go the board route there is no longer a option of going the court of federal claims correct route and then finally but not the last and significance can at least for now sue in the court of federal claims and get a ultimately article three accrues we are interested in all of those issues that are related to what the real world looks like if indeed we do not have jurisdiction here  i may and probably have left something out but let me reiterate how we do not want to get our brief that says you didn't ask quite this question even though you have it in our mind that it's relevant and you want to know this is a serious matter when a real claim doesn't seem at least according to the government's position to be within our jurisdiction and of itself real property but personal property rights so here's here's a potential problem with foreman and i've realized since we've just asked for briefs and please don't wait for an order from this court we mean i miss you and so the schedule that i set out terms in response to a regulation that will will park service said it was not covered by the so i cited aside from forming so we have a government government owned land that the government wants to put to the public's use i leasing it out to firms like yours to provide services to the public yes really how is that be saying your honor how under the terms of the lease this was the procurement of services and it was infact procurement of construction as well now i think going into it here may be premature since it is going to be covered in additional briefing but i have no question that this court has jurisdiction over this case he happened to know when buildings that you all feel under your contract were built and your even your lease comes to an end to do those not in the record but we will have to supplement that it does provide for continued maintenance and repair replacement of boat slips for certain darks so they also two different kinds of underlying facts please and we're both under the same mistaken assumption the other is you were but they weren't then they should have told you right and they couldn't they could have said that and you're making a they should they knew and should have told you yes so now by doing that it is your honor said little a reformation there are two branches it turns on the knowledge of the parties at the time of contracting where both parties are ignorant we have a bigger mistake if it's wrong i thought that the one important piece of your of the evidence on which you relied to assert that the government knew that the dam was in bad shape that some serious repair was going to be viewed with consequences for the level of the water was the two thousand and seven memory that's correct did you have that before you submitted your claim to the contracting officer i thought you did i believe that they may have yes sure so it seems to me at least as a general matter you would have had a better argument justification for not presenting a they knew something important and didn't tell us if you didn't discover the key evidence about what they knew and i think that's true you are but the claim letter is what the claimed letter is we believe that we put reformation squarely for the contracting officer it may have been indicative of reparation due to mutual mistake but you know ordered to do that the contract the officer had to look after the intent of the parties both of them at the time of the of the contract conflicts did they know and how much did each party know at the time an engine to the contract if it had done that the issue of as i said that the government's knowledge would have been forthcoming and the the true issue in this case would have been before this contracting officer just as much as it is before this court at this time something that is  you very much do because we have put the contracting officer clearly on notice that under the rug rubric of reformation the that's what we wanted we may have not looking back to the scott decision of this this court i think we have the same operative facts as in scott i think that they were claiming the same essential relief and i think what we have your is merely the assertion of different legal theories subsets of the reformation as your honor pointed  reformation what specifically should the reformed contract look like the contract should look like that the government does indeed have authority to draw down the level of the water for reasonable periods to conduct routine maintenance of the dam what it doesn't have is the right to draw down the level of the lake for several years to reconstruct the data that that's what we believe the reformation should jurisdiction to which the board for to simply its jurisdiction to dictate the meaning of a contract provision and we don't have to worry about in that in this case is accurate i would agree with your own that yes  thursday actually that came out in the july twenty third decision of the board several years ago one thing i would say the same thing to the parties is in the supplemental briefing please provide us with an documents in their entire entirety that are needed to determine this because one of the things that was a little bit frustrating was the fact that the portion of the july twenty three twenty four team which explains the reason the board felt it had jurisdiction was not included in the joint attendance and it was frustrating to me to go back and read that because all of a sudden at the thirteenth hour we said we needed those pages that we thought extol about how you expected that there would just be routine maintenance now what would have been the situation if in the year two thousand they signed the lease everything's going along fine then in the year two thousand and three there's an earthquake and the effect of the earthquake is to not make the dam thing all but create problems so the immediate restoration is required it's going t time and be expensive how would that be right and i think your honor what would happen there i think that we are not claiming that we are or that the government has no right to come in and repair the dam what  in that instance there would be an intervening factor clearly an intervening factor which would would obviate things and perhaps lease for would have would not have a compatible claim there what we're talking about your honor  is the regular running of the dam we had a dam that was substantially reconstructed in the in the late seventy's the corps did not tell us the dot tell anyone that the cut off the seepage cut off  which was intended to stop seepage through the dam was only partially constructed the government says all that it went as far as we want to what is your argument will see on page twenty three of our brief visit illustration there were seventeen hundred feet of the serious problems they didn't tell us anything didn't let us go ahead of them on our investment in the property and lo and behold come along there after and said oh the damage it must be shut down it may collapse in five hours we're going to shut you down for seven years to totally reconstruct the dam they say oh that's that's good faith we did we didn't have to tell you that's that's that's fair dealings we think not wrong i can reserve the assumed you would say that that kind of a situation falls under seventy one of two a four just covered by the c v a but you're saying the lease as which is what we have here even though there's that language refer to surplus sales of exactly the type that you are describing and it's generally speaking historically personal property has been used as a target in hard in concho contrast and as a moment that mr sullivan could get over this hurdle of the lease i assume the government would still be saying ok let's assume for the moment that the lease is an item of personal property but what we have least was personal property and there was disposal of personal property do you still be saying that there's a problem here because i'm talking about concession situation right right if it's unlikely that if if that either they've just mistakenly gone to the board where they should have gone to the court of federal claims and maybe or maybe not it's too late to go to the court of federal claims or that there are some claims that you  whether congress made a kind of eyes open judgment that or will have jurisdiction to hear contract claims but as to some of those claims there just wasn't going to be in the article three review the well certainly congress knows that there are some categories of contracts that go before the board pursuant to statutory provisions other than the c d s a and then are decided by the board and cannot be transportation contracts that are that are committed before the boards pursuant to a statutory nap that does not allow people to this quote i had one of those last year exactly your honor so it's certainly something that congress has contemplated and the statutory or otherwise authority to hear cases whether congress is aware that it exercises authority and that there is no right of appeal from it i don't know so just to follow one thing i think you that the statute of limitations begins running as soon as the contractor is aware of the injury and it has occurred to it which we would say that it started running in two thousand and seven when the corps announced that it would be lowering the reservoir level for an extended period of time that we recognize that the particular circumstances of this case and the possibility that in this case there may be no or view of the board's decision available from an article three court is disturbing all of that property that the fixtures belong to least forty itself and that it will each year invest in some modest new improvements such an additional such as an addition of both slits to its marina and i believe that's probably what  my friend was referring to the problem with that is that the services rendered in that case are not for the direct benefit or use of the government rather they're for the use of the public to patronize lease for the marina and to some extent lease for itself and all of the construction that engages and become so its own property turning to any of the construction that's required but put aside for whose benefit was it any of the construction that was required to the contract construction all to ration care or maintenance of real property was there any requirement  the problem again there is with the benefits of that not running to the governments but rather to the public could least afford it just on this and read of the property leases made for the purpose of commercial concession purposes and at least for its purpose and obtaining and maintaining the lease is to provide recreational services to the public so that we will consider that in violation did and there were there were requirements of constructing some things will characterize what they are those things should they go if they last till those what happens to those things they have to take them out everything situation because in addition to the july twenty three decision there were only horseshoes but i think the first the government's response the men who complained and some of the summary judgment papers were not in their entire will make sure to give the record a more fulsome treatment in submitting a supplemental material turns out that the of the various tribunals that we view the board is not one that we have ready a by product access to  the drawdown wasn't a fact and according to the corps audit least for its operations it was still drawing approximately four million dollars or more in revenues during the first four years after the business or its entire existence has been operating these facilities at lake cumberland it has five million dollars of assets at least that's the amount listed in its use and development plan on that land which it would have to significantly lease ford itself has never claimed in any of these proceedings that it wouldn't have entered into the lease if it had no during the negotiations of the two thousand lease that there would be a drawdown required for a few years in fact they are very carefully the klein to say that instead they have said such things as if it had if leave ford had known in two thousand and that there were there was a long term draw to quote would have attach great importance to that information and quote in determining whether that intervention into a twenty five year lease there's no and then they would have decided not to enter into it similarly if it perhaps  days we shall not have to pay in the red which is the problem with that your honor is that there is no evidence that such a provision could have been negotiated and lease ford has also not suggested that it would have asked for one there simply isn't any evidence in the record to suggest that anything would have been different about the entry into the lease in the provisions of the lease even if the alleged misrepresentation hadn't been made that's one of the central problems with lease for its claim along with the problem that the remedy it seeks reformation isn't available for the type of misrepresentation claim that it is making reformation is only available based upon a showing of misrepresentation if the misrepresentation located on page fifty three of the appendix which shows a rough drawing of some of the land around like cumberland with a crosshatch area presumably indicating lease for its rental property if that is a box in the upper left corner of that page that says twenty nine eight per above freeboard twenty four acres a low freeboard and one hundred thirty one hundred thirteen acres watering area pursuing a further soon we were ruled for the government on claim one that would still leave though claim three to be decided correct reach contract clearly if if th jurisdiction ok assuming we got over that then we get to the board decision and the board you know that there was no jury or that we have to decide whether the board had jurisdiction over claim or count one which was the superior knowledge slash misrepresentation and correct sue we'd read with the government that there was no jurisdiction here there would still remain would there not reviews conducted in two thousand and five based upon extensive study and analysis of project history previous remedial work instrumentation geotechnical exploration detail analyses consultation with experts and engineering judgment inter breeding the distress indicators other information and data and issues at the project that's from appendix seventy one all of which is to say it's not a determination you can reach just by looking at the damage requires quite a formal process and there's no evidence that that the court had engaged in that prior to two  a high enough probability of danger at a high enough level that seven years of lack of water to overstate things was a real possibility and that didn't they would they have liked to have known that their claim could be picked based on that allegation but it wouldn't be based on evidence because there still isn't evidence in the record as to what the core what risk of failure the court knew the dam was that in two thousand second in its attempts to ring from the record evidence signs that the court did know in two thousand and least fourteen gauges and some rather creative term they need equity year because something happened in two thousand and seven we put a lot of evidence on the table if you're running well said that there was enough information in two thousand that they knew there were serious problems with the dam they didn't tell anybody they kept it to themselves they let us go blindly forward make additional investment in the property only to take seven years away from the contract which evidence that you put forth that kind of risk level that you accuse the corps of knowing well i think that that would have changed things markedly the client would then have had to say look we're going to go forward they are going to be once again seriously reconstruct this day and it is going to greatly interrupt us how are we going to deal with them are we going to deal with that do we want to sit there for seven years with our business totally ruined records specifically in terms of  evidence i don't think it's there's a substantial amount of it but the fact is that they're the boats had great difficulty getting to our docks we did have to move a dock and was at a cost of about a million dollars to increase the the question of what evidence did you put in front of the board that you would or might have done something different and you know on the risk level that you say the court according to the to that they say they say if we don't deliver what we promised you in terms of acreage where large count to their lives they didn't  deliver there was also some discussion about a five million dollar investment as of two thousand that's incorrect the five million dollars is in the use and development plan and it is the total proposed development that lease ford had or whether or not they were fully depreciated at that time can i ask you this question this is several assumptions so i want to for this purpose take as an assumption we have jurisdiction also taken as an assumption less happy and something that the board did not have jurisdiction over your reformation claim so what you're left with is claim three breach and as i read your briefs you think that the scope atory clause needs to be read to contain an implied limitation that drawdown of water must thirty five the government says it does not have enough limited method for exculpating itself from that promise to provide those tracks to lease for at speak one hundred sixty watt riggers and the thirty i guess what i came in thinking well suppose you're right at the exculpatory clause and then implicit limitation that any drawdown of water had to be reasonable i don't remember seeing evidence that council and she said the services here that was required by the lease document weren't for the benefit of the government but there are c t a cases and unfortunately i can't cite them off my head but they provide that the services don't always have to flow to the government to be a c p a contract and i'm thinking of contracts such as you provide cable t v on military bases that is a c d a contract even though the service does not flow directly to the government and payment ultimately for that service comes from individuals and not the government we will cite that back to you thank you