can understand how things worked out of rufus and kim a little bit nothing to understand but a sort of figure that i didn't want to just on my own i thought you might give me a more definitive answer but it sounds like you just don't know i have an inclination i'm not going to ask you about your the nd contract because to be honest with the i'm just going focus on the st contract if you could and if you need to come back with numbers and you're a bundle this is fine probably not the entire city it is probably a minute a specific area for primary area and use in those cases the residents of the people from the always rd party beneficiaries on a contract and bring it to the exclusion of the them that can i can i ask you a question about those cases in the way you just described them because this is something that i'm trying to wrap my head around you just said these are cases where utilities are providing services to a specific set  residents and so you would think those residents maybe have a right to enforce the contract but this case is different because this isn't about the railroad companies services like in those cases it's the gas company fall short of the services it committed to provide and so i could understand why in those cases you might sort of construe rd party beneficiary status kind of generously but the equivalent here would be if like the suit was that the rail that ends you know for free and then stop doing that but this is this is not about the railroad services so it seems to me at hall's a little bit outside those cases you're talking about but i want to give you a chance to address that well i think that's a  allegations about direct and active dealings between the rd party beneficiaries and either party to the contract as it relates to this issue number one do you believe just because i'm fuzzy on the on the procedure and what's going on here it looks like to me something really wrong is going on but i'm wondering if it don't these plaintiffs would they not have other sovereign immunity i guess couldn't they force the city to do something if they failed to carry out a contract for their benefit and they say well you won't go and get people for the very benefit you got for us is that not something that can be done  that's the more defect way to deal with this but if they if it exists i mean in terms of saying a city fails to do something that it's contracted to do and won't do it that point you know we've got all kinds of other means by which one can do it even the state of north carolina might be able to get involved in it from the attorney general's office would a city feel secure out something supposed to do but i'll let you move to prevent ships from since i know you didn't come here to argue but i'll tell you right now he's begging me as to how it is that so i think that maybe i'm misunderstanding something about kind of the structure of your argument i can see how questions about how burdensome this would be would be relevant to an implied preemption analysis but are you saying that the state can express li regulate railroad operations and unless there is some burden that they can show that the railroad can show that's one hundred percent fine because that was not my understanding i thought that for express preemption all that matters is is the state affective thing that's as far as i i as i had read the law the only reasonable part of that is something we do when we're talking about implied preemption if there is no actual express direct non incidental regulation of the railroad then we go on to say ok fine this is just a general flood control measure but we'll ask whether there is an unreasonable burden or interference but if it's just the state saying look as a matter of state law you've got to shut down the railroad tracks twenty four hours before storm that sure sounds like just express regulation to me and i'm not sure the railroad has to show that it was burdened by that you know he's doing pretty much and  only a burden matters i don't think that he did that and the fact that the railroad sort of agrees to do it it seems to me i'll let this go in a minute but i really am confused as to kind of what box were an express or implied preemption is it your position so that the state could in fact pass a law saying from now on if there's a hurricane that's been forecast by noah forty eight hours before it's supposed to cross we're shutting down the railroads that would not be preempted in your view  and i and i would say ok why does the railroad doesn't agree and i think they don't agree because they're right in the box next to you all but if the railroad hasn't already agreed in contracts which is which is not because certainly close you know the road in other areas that but no it would need permission from the real road or from the surface transportation board to dictate when trains can run through motors which is tell me just i mean let's let's go to the fundamental question here that kind of bugs me why wouldn't is the railroad want to close that gap you know it's going to flood that community over there it it has it caused great here and work this thing out i mean this does not look like a good public relations situation at all i mean it looks horrible to me in terms of what's going on and and i'm i just don't know i'm i'm i'm wondering why a company would not want to take at least some measures to help the situation may not give them everything they want but at least give them some comfort that hey when that flood comes so it's not going to russia wouldn't flood you your property it is it is a no opportunity for that here solution now that's all i need to know that you off thinking about it other than just coming to the call and says we're not going to do it was you not preempted us there is something going on here that we could possibly get a notice from you in a day says hey we settle down and  we put a couple of belts in a room decided that we settled this happened here everybody's going to be good at it i'm not being facetious about it you know in the pews i mean i'm really concerned because of what this case it looks really b really relating to the operation of the railroads and i guess you know i understand that to some extent but we've talked about the city a lot and it's not a party but i mean it doesn't sound like you are disavowing the contract and the city as a party to the contract in theory could have salt to enforce its rights under that contract is it your position that i get the rd party city to build an earthen dike on the right way and if the city builds that site it would allow the city to send in units well where does it say if the i mean i know your argument and it sounds like that's that argument that you dike i didn't see a time period on that and i didn't see the if the bill if it does part of that contract and so if i missed that if it does conjure part of that contract yes that's what we keep and you keep calling it original condition i mean i suppose the plaintiffs are say and we were yeah we were affectively sandbagging up the other portion of the know or trying to do so at that time i'm still having trouble with the condition as you describe it i mean it looks to me like those are separate obligations rights and obligations under the contract oh you know you're not i disagree respectfully with that i think i read the contract as allowing for the consideration of a one dollar access on to railroad property  circumstances thank you rise to thirty standing but under north carolina law there is a strong presumption against rd party and force tracks and the contracts are strictly enforced against those not parties and here what we're looking at i because he would receive a benefit from its report or because he was injured by the reach there up every public contract by its nature has in mind members of the public who may benefit from performance of their contract it does not mentioned earlier i think except that general principle this type of this contract the up here it appears obvious that the been a fish year and that to the extent the public would benefit it would be the people immediately you know adjacent to the area so if you could respond to the distinction your colleague made earlier about say a road construction contract where the people who go over it would be maybe random or more random in this way or if it was to be built i get the deficiencies i'm not sure this ultimately matters because the i'm not sure if it's pled or not but it just say i wonder whether yeah this is a contract like this requires that level of specificity when it's obvious who would benefit from it would be protected by this contract and it appears by appellants position to be anyone in the south or western part mongers and at any time living there working there moving into that here again decades after the contract signed who with then apparently has standing to come in and worst and we look at north carolina law on rd party beneficiary status what we see is the court repeatedly finding notes for party beneficiary status in cases where there is a touch on the public utility argument st only with respect to the contract because i do think as as your arms went out as as judge harris pointed out there is a significant difference between a railroad running a freight operation and a public utility providing s appears to be generally consistent with the contract that's been the trop r d contract this been pled which i owned that relief alone if given that y there's you know at least now a geisha that you've agreed to that relief in contract can that be preempted it can that is that preemption if you've already agreed to it your yes yes with respect to the claim we don't we don't take the position that the contract claim is preempted and this court addressed that issue in the p c s ossie case with respect to private agreements but with respect to an tort claim that seeks to require serious sex to allow barricades to be put on transportation board despite what appellants say about these cases did not find that the claims were not presented what they were found is that it did not have enough information about the underlying last june and elected not to rule on that routinely dismiss claims like these on the pleadings where it's apparent from the things that the complaint they cannot receive there's no additional information to start bremer that development that's needed on these issues it's apparent from the pleadings in the documents incorporated in the y and i think the key thing in both of those decisions were the ones yes let's lost the st time and lost the nd time in both instances the board said the ultimate question finding would have to turn on the facts and circumstances of the  would be incidental and there hasn't been evidence in this record as to whether the building of a temporary berm was a single train in the event of a hurricane nor is there any evidence that the construction of a permit plug it could or could not be done without interfering  is very rarely done and the great majority of these decisions are made on a factual record not made in a vacuum so respectfully i see amount of time i want to ask this  reinstate all of the claims and let this case go forward i think you are i think both of you thank you for your arguments and as i said we'll i'm happy we cannot come down to personally greet you but you get a nice way for me