days after the army filed its complaint in condemnation and with absolutely no notice to the district court regarding either the why and groups objections to the condemnation or their pending action challenging the entirety of the army's plan to convert the second brigade to a stryker brigade in hawaii of which the condemnation was but one part whether that should be set aside in order to give the hawaiian group their day the judge granted limited intervention for the purpose of bringing a rule fifty nine rule sixteen motion our motion was premised on the on the basis that because this stipulated judgment had been entered without an opportunity for us to present her objections in our case the stipulated judgment needed to be set aside so that the district court could reach the merits of our objections to the condemnation right the district judge refused to opportunity to present is whether the district court should exercise its clear authority under the declaration of taking act forty u s c section three one one four d one to condition the army's taking possession on its other action and if you win your other action you're going to want an injunction in connection with that and that was satisfy what you're looking for here well your honor i will address that that old i believe i case we have no further interest in this case thank you and that's why you know i mean that the case is very tightly bound up and the reason that we got involved in this case is because of concern that if we did not get involved in this reversed on the nepa issue and agree with us that the army violated knew that claim should still be heard in the context of this condemnation action regardless of what you feel about point nine five acres and whether it controls or doesn't control the issue of congressional authority so that claim the only way for us to preserve that claim was to raise it in the condemnation case and having the district court did not address condemnation action but let's talk about whether the statutory authority to use the money is available whether there has been determined point and five acres but if it is not a bars an affirmative  condemnation certainly was there is no question that point nine five acres includes some very broad dicta and discussion of the issue that if the court determines where very broad victory if well considered make a determination whether to convert the second brigade in hawaii and consequently whether it was necessary to condemn the south ranger in the first place and we would submit that when you're dealing with the power of condemnation the ability of the federal government to come in and in this case it was a friendly condemnation but the war that you establish here is the rule that applies generally to any situation that the power of the government to come in and forcibly take someone's property you really want to be sure that congress authorized that action and here as in tennessee valley authority versus hill we submit that the courts should follow and that when congress appropriates money and here there was no specific line item appropriation to buy the south range area it was here is over one hundred million dollars to do construction and acquisition that schofield barracks when congress appropriates that money it assumes that the army is going to follow the necessary procedures that  regulations underneath where they talk about land acquisitions and with respect to land acquisitions there is no distinction that logical distinction between the land acquisition by way of condemnation and any other type of land and the regulations specify that you cannot segment one army action from another in order to avoid the reach of need so when you look at their own regulations they didn't understand them in the way that point nine five acres would suggest they understood that in the correct circumstances the land acquisition when it is part and parcel of a larger action is something that needs to be subjected to need to and that's precisely what they did here they started out it into the environmental impact statement the army's failure to comply with the violates its own regulations by not doing an adequate analysis and as in u s b hard mac and as in th this court decided you would find that they were acting arbitrary and capricious lee therefore without congressional authorization when they failed to comply with the condition proceeded to exercise of the power of condemnation so for that reason your honor please the court michael very with the department of justice on behalf of the united states with me at counsel table is grammar for the campbells state the original land owners who would like two minutes of the after lease time of course our position is that point on five acres controls and i would just go straight to the question of withholding of possession under the declaration of taking exact point nine five acres itself reverse with me and reverse that order the second point i'd like to make is that the fifth circuit case says that withholding a position can be used as a tool to force compliance when no other tools are available here the clearly was another tool available and that's the second case today and the third point i'd like to make with regard to possession is that in fact possession has already passed the statute says the court can fix the terms upon which possession passes here possession has passed and compensation has been paid even kind you see i believe that the question would be moot at this point because the statute says that the court can fix the terms on which possession passes and possession has at this point already passed so the only issues that's correct and that's the next case what are you going to do if we can reverse the case what are we going to i suppose that will either sell it back or find some other use for it or i mean another thing is if you reversed in the next case it doesn't mean that we can't do the project it means that we go back and we have to study some more and so certainly they would we would you know have the land still for use in that project after going through the study if there are no other questions i will turn it over to mr gra condemnation was followed on wednesday i didn't get into the whole detail because i don't think it's material to the outcome although it does it is material that the issues of mistaken misrepresentation of that we were in the midst of negotiations with the army about a stipulated sensually which ultimately we secured a few days after they took the property with giving us depending on who you believe no notice or a day or two notice but in any event they went into court on a wednesday they didn't respectfully submit that we could do nothing more to preserve our rights under this case then to argue to this course that they should set aside the stipulated judgment for the purpose of allowing us to make our