if there's no other indication in the record that it would have been free to abandon it during that period of time it would have been free to but there was never current that it just so and indeed sometimes forever that's changed their mind and don't it could have and yes ok maybe we don't know anything more than that for that's right we don't we don't know if the railroad would have consummated at some point during the need to do in other words earlier we don't know if it would have done so at on the exact same day that it did do so we don't know if perhaps you know something else would have happened there are plenty of these cases where the  surveilled and then the railroad sought several extensions of time to consummate abandonment for it did ultimately do so in that case how could the need to have extended because the question that troubling me and perhaps my colleagues said the work to what extent that the presence of the need to cause any delay in what would absolutely incorrect what we don't know the bottom line is we just i mean there might be instances where we've got the railroad just suddenly everybody a letter and say hey i'm not really planning to do this unless i'm for with out this whole reals to trail's process decided on its own we sure would love it love this to be a trail it wouldn't of stopped the effect of  under iowa law of abandonment and return of the easement where what it wanted to do was wholly outside the purpose of the  repetition of the idea that the railroad invited that so it invited in the what in the absence of the rails to trails program would have been irrelevant under  we would like somebody else to have this even though we're completely done with the rail use that wouldn't change the return of the for property right under  is wrong because the the s t p i said under iowa right but there are our view is that several law has entirely preempted abandonment of these these this specific type of areas of life and i think what you're talking about is well maybe there was no harm because there were road wouldn't have and anyway my general sense tell me if if you have a different view is that in other areas of law like inevitable discovery or independent source and th amendment or the two hundred situation in tort law when the defendant that actually causes something in the sense of here prohibiting an abandonment for a while so there's no harm because it would have occurred anyway the defendant has the burden of showing that independent thing which would mean here the government would have the burden of getting evidence from the yes if we had evidence one way or the other it would arguably be just positive so you're right we don't know and i don't know that we've concluded specifically who as the bird but that's the question but there's a couple things one the working of the statute isn't it in effect a government action you can tie claim or cruel to and nd sense called where there isn't there are new regulations that now require the railroad and the caldwell and set claim a crawl for the trail conversion takings you can set that at the end of the trails agreement that will clear up we think the confusion that led to lad that somehow acquainted  sixteen years so long that's right there's something going on some some circumstance compelled the court to revisit this sure well for one thing and argument we're doing it now this is a constitutional issue the government should not be required to pay compensation for these phantom physical takings or nothing physical is actually happening i think it's important to get the legal framework right will recognize legal category of property right here in d c and is automatically were not automatically constituting taking compelled the very clear circumstances where there's been a physical government occupation of land and other than that you apply multi factor test and that's that's all really asking for here is that the court has been taken too far we don't think that actually said quite as much as the c s c has taken it to mean but the c d c has certainly taken it to mean that these are effectively all per se takings if the plaintiffs can salvage their property and churches and we're asking you they want this court to conclude that the need to alone does not trigger a physical taking so they readily admit that they want to overturn caldwell and y had but they in essence really need to would have left earlier and allowed that it's earlier than one hundred and eighty degree attempted eighty days after july th it just was no caused taking them just ask you about anybody asking the railroad that who should have the burden on and i don't believe i believe it is a clear cut bright line rule that nobody needs to ask the room really what they would have done and the fact of the matter is is that in this case and it is a classic example oh the government wants to st ensure that the real banking or the trail use agree it is actually comes to fruition before there's any consideration of what the impact of the new to this but that's that's backwards the supreme court has said for one hundred years it's not what the government gained it's what the landowner will last and i think this question that we're abandoning or something then not until then under iowa law would there have been the end of the easement in which case nothing the government did during that one hundred and eighty dollars days would have the taking is the statutory intrusion where the federal law preempts the state law of property right and that's and it and i would refer the court to justice o'connor's concurring opinion deals exactly with this question it says the federal government has the right to intervene but the intervention that prevents the state law reversionary right is the take and it doesn't matter whether it is  six months or a year or five years or ten years that's the taking is because it presumes there are state law originary right that were delayed but we don't know under the scenario we're under the hypothetical with the railroad to clear that it's not going to move aside it'll a certain date and where is the delay maybe that's the issue about what will be what is the de lay if it wouldn't have gone reverted back to the property owner in any of that would have reverted back to them but for him there's no telling how long it would have actually taken but that's not the point the point is that there is a bright line rule established by this bill are just that it would to triggers the taking that's number one under all of those cases number two all of those cases stand for the proposition that it does not matter what happens there after including the ultimate negotiation of the drill use agreement  and they all stand for the proposition that the only governmental act is that the two of them and the fact of the matter is all of those cases stand for the proposition that it is a physical  taking at the time the need to was issued whether it is alternately temporary or becomes permanent that's what all of those cases it is a bright line rule what what is taken the take it  you know you know under our circumstances there is no consummated real trail agreement and there is no evidence that the issuance of the need to cause any delay whatsoever in what would have otherwise occurred with the railroads advance what is is that the government is taking it blocked the landowners reversionary right it blocked it for a period of six months in this case for permission to abandon they had already said that we want to abandon this all the conditions for abandon it had already been met and so the federal statutory intrusion into that state like state law property right is exactly what caused the blockage of those reversionary rights to connect and i just returned to i think a question that discussed earlier  there might well be a proof that it would not have occurred anyway and this comes up in all kinds of causation situations i mentioned a couple of th amendment ones that are the two hunters all kinds of things but particularly if the defendant as here is responsible for preventing the action of the other cause or the defendant as far as i can tell nearly always has the burden of showing that which didn't happen here but i don't see how you get to be on that to say what i think you're saying that is even if the railroad said we would not abandon till whenever they  lay took something that they were quiet otherwise would have had when your client would not otherwise have had i think that i think you're right with respect to the examples you gave at the burden would be on the defendant in that instance in this situation what the government is really asking the court to the developer authorized is the whole concept of two different takings from the same governmental act there wanting the court to analyze this under a potential multi factor test after the need to is issued until the trail use agreement is reached which is exactly what judge little did in this particular case under directions from the court and called it a very atypical task the fact of the matter is they want that to be viewed as a temporary regulatory taking which then would require a multi factor test and then it mysteriously becomes a permanent categor taking when the trial use agreement is reached this court specifically in barclays call that result bizarre and said that can't happen and they cited the supreme court case of dallas as you can't have two takings from the same governmental let this court in last specifically said that we specifically reject the whole concept that this is merely a temporary regulatory hold and that would have to be reversed barkley would have to be reverse on the whole concept of two takings because you can't have multiple takings from the same governmental action and in fact in frisco to this court city the wrong way would have would definitively just assume not have starts when the need to is issued and the link for the ration of that taking could be based on a number of facts that we don't know and we will never know depending on the case here we don't know what the real road would have done or would not have done last and and then the fact of the matter is if you change that bright line rule you would have chaos and uncertainty and in fact this court in the barkly specifically said you can't change this bright line rule because then you would a categorical physical taking whether it's either temporary or permanent then you're right that at that point in time there wouldn't be any taking but that requires the reversal of all of these cases that this court has actually no  circumstance where the record is clear and uncontroverted that the real world would have retained all of its rights during the period of time we're speaking of then that would not constitute an end id you would the question your honor if if the railroad would come in and say this is not about the real road at all the railroad has already said that they have met all the conditions for abandonment and they want to abandon the railroad court of at it times yet well they said that when they file their notice of exemption with the s t b that's what they declare to the s t b and don't they have a year isn't that they have a year to consummate abandon and once the railroad actually issues the notice of interim tril if there if there was no need to in this case there would be no taking and that's what triggers it because that's the intervention that's the federal law the trails act intervening in the state law to preempt these landowners reversionary rights that's what this court has held all the court and rejected by five panels of this court where they try to say that the need to does not trigger a temporary or permanent categorical physical taking when it's issues and i do want to say i  time is up but i want to say one word about arkansas game because the whole premise of this is the only way this panel can disturb earlier precedent is to find that arkansas game somehow is intervening in law ok or i suppose centered on bombs and see if if on bond they want to reverse all of this precedent since nine hundred and ninety six but the fact of the matter is that what the government is wanting you to believe is that a multi factor test has to be applied any time the taking his is temporary in nature and that's just not the case there are a number of cases that we cite in our briefing the supreme court judge let us cited all of them he went through a detailed analysis of all the different categories of taking and his opinion is well reasoned and and followed the controlling president of this court and we're actually very fortunate that judge leno was the judge in arkansas game he was also the judge in this case and this road map that he's written is is a fantastic and cites a number of cases where there have been temporary categorical physical takings animoto i factor test has not been a plot and the reverse of that is that a multi factor test has never been applied to a temporary categorical physical take there is not one example in fact during the closing argument in this case judge leno asked the government's attorney three different times can you name one case where a categorical physical taking resulted in a the application of multifactor test and the government could not and i want to say one last word about it if there's any controlling president from the supreme court post lad it's actually the nick case that we've filed a supplemental of the already were justice roberts just recently said that the taking occurs when it is when the taking is  which you put together two little pieces of it campbell said said that once you have identified a piece of property and the government freezes its transfer freeze i think is the word that not intend to and during the need to keep harriet the railroad agreed to the need to need to would not have been issued but for that agreement on this record we then have the railroad indicating no intent to abandon any sooner than at least the end of the need to get this is getting off a little bit i just want to emphasize just how many different possible outcomes and the two can have we have now about ten cases where there was a need to that not the need to doing any of this it is the trail conversion upon the trail use agreement that triggers the statute we're not asking this court to touch her so we're not asking you to go back to one thousand nine hundred and six it's completely wrong as far back as show what would have happened in the absence of a complaint of government action on this record what would have happened is exactly the same as what did happen a railroad voluntarily exercise