with the claim from a party who is now deceased i believe that the court can do that it despite your honor and then and certainly have heard these claims are before the court and the issues are essentially to sa in and substitute in for the disease and we can't under our rules we cannot make rulings on behalf of a party who is no longer alive so we would have to dismiss separate separate procedure on her own we would request if the court believes that we need to have a substitution at this point the court should allow some reasonable time for that to occur but as to the earlier trail the router they have that that really is a much better trail was state has been using it and the real question here is why is the state then taking the kurds property and the answer is really way and around it the state has legitimate access to so i believe in that regard this case should be dismissed because it was premature for the state to engaging in eminent domain unless and until it's st established as weights against the federal instituted proceeding but it doesn't meet the requirements of last the law for balancing public interest and against the least private harm because there is there is really no showing of a public interest an argument but we clearly point it out in me made to contention that the the motivation of this litigation was for the state to try and get some leverage against the federal government by caning agrees property it  the district court the state said well we want to link these two areas and the most direct way is increase the distance that one would have to travel to get to the northern trails right it may be a longer distance shot it is a better trail and it's already there well they also talked about how they would have to do construction on part of that trail is that correct and there may be some construction and needs to be done on that your honor i don't so you question at the get go whether or not they even there's even a public necessity for taking these routes from the purdy from the birdies we believe there is a drought or because there are maintain their privacy and maintain everything else that they wanted to have is out it is out of their traditional cultural use of their property so there was some discussion in the district court about these pathways release trails consider well you can if we have these trails how is this these trails right now is it going to be developed by the state going to affect the remainder of the property use of the of the people who  ari's where their credibility in me make it a decision resulting in the factual disputes in questions about about credibility i'd like to address briefly are just compensation arguments your honor if you have the issues relating to alaska rule seventy two the just compensation problem here is the state submitted an appraisal from it's a crazy you praise among other t capitalization rate ten thousand dollars comes out to one hundred thousand dollars fair market value for the property now the appraiser himself discounted it but that doesn't mean that injury would say ok we're going to give you just rebellions i my name is jesse alloway and i represent the state of alaska departments of natural resources in the transportation of public facilities i'll start off by addressing some of the court's factual questions so we're we're talking about a pretty remote part of alaska shaken and located on the taylor highway it's about sixty miles in the taylor highway it is only open in the summer once you leave chicken you would travel north on what is called the chicken ridge over a trail to get to seventy seven is an old federal statute that was an open federal grants that allowed the public to accept rights of way over public lands could to be done in a couple of ways public use or official state action this land began to be used in the early th century at the start of the gold rush so prior to the previous entering their native allotments these lands were being used by miners to access their mining claims this started in eight hundred and eighty six at the start of the gold rush in and continued to present day problem with the states are asking for seventy seven claims isn't that it was trying to take the pretties land without compensation mr redford testified in his affidavit these are well established trails that have been used for a long period of time by the public and they are still used today as the previous discussed in their opening brief they call it trespass the do we allow the public to continue to use the route that they've always used in face possible trespass action by the parties or do we find a way to clarify the issue and provide lawful public access and that's why the state decided to go forward with its condemnation proceeding because there is the state has confirmed title to chicken ranch alternate fail as it enters the southern part of the  seven further north of the pretty allotment but whether or not the six the states exceeds in its claims against the federal government doesn't mean that there's not a public necessity for the trails that are existing on the miles to get to you can read or to the north of the pretty allotments is actually more order and then introducing you get your car and drive on the highway so this doesn't matter the other part of the a little trail that causes an issue is that it's not all controlled by the state the state did construct basically a pole out on the taylor highway to allow people to access the lives of the st part of a little he would trail is actually owned by the not united states the goes through a wild and those owned by the united states and managed by b l m so it doesn't serve the state public or interest of having a right of way that provides the public with access to these wells that are completely controlled by the state of alaska then run along stricken creek and the precinct just as you said cut across on one of those trails but that's the trail that would require construction and then are employed mr weber went out investigated that trail it would require construction the other problem is that it would go over of lofts which is dangerous and then the rd problem was that it actually brought the public directly to the really brave side so under both will seventy one of the federal roles in alaska rule seventy two the prince had an obligation in their answer to the complaint to raise any objection to the taking and the only objection that they raise was that these route that these trails would provide the greatest public benefit and that they wouldn't they connected already existing routes they didn't require any construction there was no additional cost to the state there's no additional environmental harm to the pre allotment and taking that would cause the least harm to the pretty they stayed away from the grave site and would cause any additional environmental harm to the parties so that was the basis of the state's decision and then the procedural fostering which we got there i think matters somewhat i don't think that there is a problem with what rules either party applied so when the court was in the district court was analyzing both the state's motion is determined necessity as well as the motion for just compensation judge priceline apply alaska something of law and follow the alaska rules of civil procedure i believe  absolutely correct and buying alaska substantive law we proceeded under section three hundred and fifty seven to contend the native allotments that requires that you buy the state law in which the land is located so no problem both parties on the same page as far as that's concerned there's no issue there but there was an issue they both parties should have proceeded under the federal rules of procedure where the procedure but neither party recognizes in the district it wasn't state proceeded under or the motion to determine authority had been assessed and which was alaska rule seventy two age to see it doesn't specify whether the land order is an issue that the court house the certifiers you know her considers her vying and the reason for that is if you look at rule seventy to eighty two which is the proceedings were quick takes that have the district court or an evidentiary hearing unless there's a reason to hold an evidentiary hearing or once there's genuine issues of material found and in all reality the parties to his case proceeded like the ruled as a matter of law that the state had shown that there was an assessor he in authority for the taking so no matter what the little wrinkle in what rules we should have applied i don't think there was any harm to it and i think  not accurate mr weber in his deposition or at the time his deposition is better laid out in his affidavit and use the d n r employee that investigated the trails and he went to the party allotment in two thousand and twelve he investigated the lily would travel the alternate northern trail which the preferred to in their briefing and then i don't think we named it but i'll call this the chicken creek trail and he determined that none of those trails would adds ten miles to the route and it goes through a wild unseen accord or which the state doesn't own and we can't condemn land and condemn the federal government plan there's no way for us to get that route clear and free the chicken  requires construction and points us directly to the pretty bare family burial site and then the northern trail wasn't the most direct and the safest route according to mr weber's as the moaning and the purtiest although they do suggest that they want to question mr right where on that they offer no competent admissible evidence to undermine the state employees of similar me or determination these contexts i think that condemnation proceedings the court would apply alaska substantive law which includes the burden of proof and the state have to make a i'm a face just knowing that the property was reasonably necessary to the public purpose i believe that mr weber has the money does that and then once the state makes that showing the property owner hasta provided by clear and convincing evidence that the state's fi court which would be the home or hello important case where the alaska supreme court said that the state terminations on a set city was arbitrary in that case there was  say there was evidence clear and convincing evidence that the state acted arbitrarily because the state employees that were responsible for designing that project admitted that they did not consider taking on it how the question deals with the just compensation issue and that is this one of the arguments is is that there wasn't enough consideration given by the appraiser the expert who testified as the value  of the facts of the taking on the remaining property as counsel leading to in his argument what in their record demonstrates that the expert did may take those but when we're talking about damages or the loss of income there is the burden of proof and the alaska supreme court could step burden on the property owner the property owner have to show damages to their property or the loss of income by but having said that circle back to your question you fraser didn't consider any what the state believes would be known damages to the pretty allotment so one of the one of the suggestions that the parties were making was if you condemn these route you're going to have a lot more a t v s on the pretty a lot of minutes going to cause dust and whatnot they had no evidence on how to value that but that was the suggestion and if you look at the appraisers phrasal report does consider it he says that he's not providing any value or he's not factoring that into the appraisal because that's a preexisting condition like we've already discussed a position is there are already valid are as true for seventy seven increased you sure i would agree with that but i also would say that the perjury is in the bullet engaged and had an obligation to develop that theory to the extent that they want to pursue it so to the extent that they believe that there was going to be damage to the remainder of their property they had to do more than just say hey state there's going to be damage to the remainder of our property to have to put on competent evidence how is it going to be about that and how do we value that and i think from just we had the discovery period we had depositions we had an exchange of discovery we were getting ready for trial the breeze asked for a trial he's faced with a motion for summary judgment and the only thing that he has before him is the state's appraisal report pretties offer and nothing on how to value their land in faced in that situation even though there's really no burden of proof in this particular situation and it's the that the burden of production is more clear one i'd like you clear up why all three of these trails are needed it looks like to a forks into two and three is a right to our rights no when we're talking if i like to think that my brain so the ticket ridge trail continues on and off and goes to the north and the myers work trail continues and gets absences used on the mining claims located along wires or and the reason that you need both of those but the mining lands that are live north of the party property and then the chicken ranch frail provides access to a separate trail of them known as the chicken ridge now would you and then travel well north of the pretty property taxes additional m in your intitled to that it's a point before you proceed to a jury trial had there been his masters hearing these issues could have been placed out in the horn formal format perhaps this case would have been resolved and just compensation question alaska law which the parties were proceeding under the master's hearing exists as a matter of right unless the parties agree to waive it in writing in the state knows that and i was surprised that the state had done that but the thing is everyone was proceeding under rule seventy two dollars so it that we're entitled to the benefits of will seventy two dollars or if not if the court says that was a mistake by everyone we need to go back and of alaska rule of civil procedure so it at that point the masters hearing was there you know i'd say maybe it would have been better to have brought that up then but that didn't mean we waited and we brought it up as they said when it appeared the court was going to receiver all right there are implied waivers or procedure right sometimes your honor but this is a very specific provision that does not allow for an implied waiver because it says that the waiver must be  because that's a a matter of alaska law that the state didn't really raise raising a waiver argument you're so we haven't really addressed that but the provision is very is very clear and straightforward day anyway ver well it may not be fatal to the process your honor but the problem here is it's fatal to the procedural due process as it's case in that in that regard because we were proceeding with that understanding in the state is proceeding under civil rules seventy two and so is the corner where entitle to the benefit of our understanding that civil rule seventy two applies and even if you can forego the masters hearing that doesn't affect our understanding that we were entitled to want it affected the due process the way matters stated in the trial court and that's why that's so important because we would have proceeded differently that we known there was no masters hearing two years after that that would be correct or rather but the masters hearing doesn't have to be requested it has to be weighed in with our understanding that we were going to get a so that's why we're saying whether we're entitled to it or not the parties in the courts mutual understanding about potentially mutual misunderstanding about the way we were going to proceed in total does go back  the way a master's candidate worked or out or is generally oftentimes a former judge or an appraiser is appointed is the master the state's or praise or goes to the master's hearing i ask you what evidence would you be able to prevent in satisfied with that resolution whether you get in a crazy or not then they're done but if they're not satisfied then they can start spending more money if they want to go forward you know more in a more comprehensive i want you already did that you spent the more money went to the district court so that's why i was asking the question what evidence would you prevent before master that you were unable to give them what the district court and i'm surmising that the answer is none because you have been told preferred we would have presented your honor further evidence we would have gotten an appraisal we would have taken the deposition of the state's appraiser we would have done more procedural things that would have occurred naturally in the context of the masters hearing had it been done so we would have done a lot more if we know that the only opportunity we had was the summary judgment motion and we were not going to have the opportunities that eminent domain is governed by the civil rules except as otherwise provided in this room does that if i were to study this rule completely does it preclude the use of summary judgment issues on summary judgment maybe those could be in the context of the masters hearing controlling party but you are required to jump forward under those rules to to basically pretend you're in the trial on the road that it's been a masters hearing there's been an appeal and now you're proceeding as with the masses he has wiped out in your proceeding forward now with whatever evidence you have your intitled to go