yes and i can understand that's how this court should read the opinion below but if the court were to look at the trial court were to look at the the complaint carefully the circle of counter claim is not just a circle economically there's actually three denominated just two counts but there's three and under the portion of the decoction the circle a counter claim it says arising under circle and arising under title twenty eight twenty two a one  well no tell me what it is don't tell me what you characterize as what he did what did he say he did it said that they said that the circle kind of claim goes away because you lose in your circle circle claim right that's correct and so in the real world that's not you winning on the circuit or claim that's the court saying since you last on your circle or main claim i don't even have to get to the circle counterclaim is not really what the district court did  well it's how we look at circle from up initiated by the private land owner as opposed to when it's initiated by the government they are different they are different because the remedies are completely different but they did this record district court didn't say my god you're right of the stuff in the circle a counter claim is is garbage or doesn't when you have defeated the district court said i don't have to get to it because it was a conditional counterclaim was get was a counter claim conditioned on you winning and on your circle a claim and you didn't win in your circle games and have to get to it i wish it had been that clear and i wish i could afford to take the gamble that you propose that during the preparation of the case the naming of twenty one witnesses against me mostly mostly environmental cases with eight attorneys from the department of justice environmental resources not just the tort section i could not afford to take the gamble the courts even as this is even if you couldn't afford to take the gamble during the course of the trial do you have to point to a judgment you received in order to get mandatory no and this goes back to the buchan case i mean that the detail with which this court and the supreme court goes into substantial justification of causes is phenomenal it's fantastic it wasn't done below  even if you had to do it even if you can't go through the pain of the neck of preparing to defend against the circle thing i don't see where you find a judgement that as your winning well i think that you're advancing substance we look at substantive we look to was their claim reasonably necessary and did it advance a substantive causal effect and that there to judgment as a result of this case and that the judgment is not first of all i would argue there is a judgment because rule forty one a one three says that the dismissal easement argument is is part of two arguments two sides of one point the first argument was that they had consent by contract and if you have  prescriptive easement different from can see i am if you have to you're going to plea consent by contract you cannot claim prescription in arizona they are mutually inconsistent yes we may plead on remedies in the alternative we may plead there isn't the alternative but that's a policy that they elected no i do not believe so i point out in the record sixteen times during opening during the trial where they asserted that the prescriptive rights again in the were how do you win there i'm not going to i mean i think implied consent is wrong but you're the court's going to give deference to the court's findings in that regard i do in be on implied consent because no one gives consent to the pollution the criminal pollution of of their site to a potential exposure to third party claims to potential farms to the cost of cleanup to a claim for attorney's fees and lien and a potential lien i return the court to twenty eight u s c twenty two a one which is in the complaint that was resolved by will forty one there is it can you can you direct me to where the district court  conclusions of law has the dismissal of the counterclaim for the first time that that's right but it to be it's based on it's based on the other side's dropping of it is it not had the other side you know i'm looking at the pretrial conference and the other side says your honor we're not pursuing the counter claim that was one of eight attorneys that made that comment your honor the others pursued it in full robustly much too much and tried  well the dock action was tried that we succeeded in i believe the standard is and i don't need a judgment specifically saying you've altered your position i have to see that they actually altered their position during the trial which they did i have to see that there there is post to understand i'm trying to figure out how how any of the circle a case was tried well at the end of the day there is risk judicata and at least collateral stoppel on the us government ever coming against my client i th not the question i was that's not the question i asked i'm asking tell me where the circle of case was tried all right well the united states came at us the very initial part of the case the united states came out of this that we're filing this counter claim in a way that will raised the prospect their witnesses said that they had an e p a they had a filed action for surplus site and when we drill down on that and that was a full day or two days of testimony where i hauled cinemax in the response and we learned during the trial that the form necessary there's a necessary form to institute the circlip claim has to have the signatures of the agency and the signature of the e p a that form had from  removed the signature block from the e p a it was it was a dishonest in my view a dishonest masking of the fact that there was no circle of counter claim that effort was tried and we want on that point the time is expired counsel i know you have lots and lots to say but i'm fortunately that is a common problem in or good morning may it please the court sarah williams for the united states of america this case arises from border patrol to use of an outdoor shooting range before and after the appellant purchased on developed industrial zone to desert land nearby the course pritchett ceded to trial on a single tort count which only torts attorneys like myself appeared for the united states and the district court held that the border patrol had reasonably believed that it had the neighbors consent to use the shooting range which operated in an open and obvious manner for decades before it received its first complaint now you've tried this here you pursued this case pretty hard didn't you know we vigorously defended the you did your vigorous defense amount to bad faith no your honor all of our efforts were toward defending the tort claim and as the district court found all of the arguments that were danced were substantially court's opinion on that is in the record of pages eight seventy seventy eight seventy nine it was a cost recovery claim and the district court determined that the appellant didn't have any costs to recover right now with respect to your counter successful when you're talking about the counter claim was contingent and that's at page nine fifty five of the record if the court would like to see it it self they can or claim was a contingent claim for a cost distribution so when the circle  cost recovery claim went away and it was clear there would be no costs to equitably distribute there could be no more start but counterclaim doesn't matter as you as your opponent says that some of your series for w portion of the government's what i'll call discovery efforts and requests pertaining to this for action it would be very difficult to do that your honor i can say that the vast understand is there was some discussion of it in the trial they object to it they claim that's why this is an on tort aspect but on the other hand they made the claim to get the property remediated on an administrative basis so my question is was that proceeding while the trial was ongoing so it could have been a reference to something other than what was part of this action yes to the the property was evalu completed before the trial the in value was to my knowledge yes but it wasn't part of at the time of the trial the property is just pending funding that could be pending for very  time we don't know when the property will be remediated the trial the not a fact that plaintiffs raise the number of circle issues that were ancillary to the case but none of them went to either none of them were at all material to the district court to property it was a tort claim and it's a clickable under the federal tort claims act limits which congress very carefully said twenty five percent with congress's judgment the twenty five percent would be reasonable and adequate in this case that meant that a pot was entitled to receive up to approximately one hundred thirty five thousand dollars and attorney's fees congress determined that that was enough now to pile up looks now to the equal access to justice act to extend and get past the federal tort claims act limits but because this was a tort case and it was only ever a tort case the equal access to justice act would only apply in cases of bad faith an egregious misconduct he would and could get saying there could be attorneys fees awarded in that circumstance but that's an exceptional circumstance and the district court found nothing like that here she said there was no bad faith in the underlying conduct that border patrol's operation of the range and she found no bad faith in the conduct of the counsel door and litigation but this was not a case by and  the record reflect any other if you will comparable actions by the government in similar situations that involve this level of discovery looking at it from the other frankly they just felt like they got overwhelmed with massive government resources asking for all kinds of things and they built taken advantage of ultimately it's all it's all tort so there's a limitation on this but in terms of bad faith you almost have to look at what the government's normal pattern is does the record indicate any other claims that were referred to to show that this one was different in some way than what the government normally does in its response to similar types of actions no your honor there's nothing to indicate that this claim was different this claim was however submitted as an eighty two million dollars ministry of claim and so the government was defending itself alternately put in this efforts appropriately without a problem or that the government's response was commensurate with what we thought at least based on the allegations in the complaint the risk was that for mr parsons  let me just quickly ask you about that there's an error three eight three hundred seventy dollars or whatever it is that's something that we can change or do we need to send that back to the district court to correct  it's in her discretion so i think generally it would go back to her to review the appropriateness of those costs although i'm not aware of any errors in her judgment here believe her it was within her discussion