reaching that standard you cannot do with the district court did in this case after trial by taking these very same documents of this court looked at prior and said the language in these documents is it's an issue that this district court ignore it again after trial keep in mind after trial we had seven days of testimony we had thousands and thousands of pages of historical documents that it could then look at more clearly the context of those original three letters and look in terms of where they fit in and was there equivocal language the court didn't do that it went back to the very same document that it looked at before it even said in the feather in the background part of his decision he acknowledged that there was equivocal language in those documents he was looking at but by putting on blinders and only narrowing in on one sentence out of this entire letter he's saying breaching party it is a shield it is meant as a part of public policy to protect to the government or contracting party who may have some point before performances do say i can't  reaching party decides at that point i've had it i'm going to court you know i'm not going to wait until down the road one when the party breaches it is meant to be a shield to the breaching party law that it has the chance to continuing obligation it's something that is triggered every year when it is required to account to the project and the irrigation districts white net revenues there are from power and other revenue streams it's not just from power and pm there seems to be some words are only sort of part of my statutory claim and a contract claim and it goes back and forth in both the government's briefing you are so in your view do you have an independent in the position that he can no longer perform under its obligations under the federal law which is which is not only the fact finders back to the one nine hundred twenty four but it's also a very specific piece of legislation enacted only for the think it's relevant but we're trying to sort o the way the court erred as a matter of law was even if for the sake of argument we agree with the court's findings and then the court's legal conclusion that those over seems to me that there's not a continuing violation theory under the contract however if your claim is not just under the contract but you have an ongoing statutory claim the answer might be different i don't know for sure if it is but it seems to me the answer might be different and that's why i'm trying to understand if you only have the contract claim then we analyze it under those cases but if i asked the government it's you you have a remaining statutory claim then we analyze that in terms of an annual statutory obligation i mean do you think there's a difference between i don't know if there's a difference whether you're speaking of the terms of it not to determine whether they were going to be in that revenues or not and i want to give back to the franconia king let you know we're familiar so if we have a contract if you have a contract and i say you know what i don't care what my allegations are yesterday today or each of the hundred years from now to whenever the next millennium i'm just not doing it's over done the contract is in your view would be  an ongoing that you would always have to reassess whether the later time party wanted to perform i respectfully disagree my my opinion again is based on money loans to build housing and in that if the time that this program was enacted by congress they wanted to turn those loans they wanted to encourage people to pay them came back this quickly as possible get that money back anymore they weren't applying for them and the government decided that this was a bad deal and they didn't want these loans to be repaid to the congress and they acted a statute which said affected the date of that statute which i believe was nine hundred seventy ation when the congress changed the law when that case came up two united states supreme court the united states supreme court disagree they've said that the change of the federal by congress may have been a breach but it was still up to the part of the grand reaching parties to determine whether at that point in time they wanted to file their lawsuit they probably could have or whether they were going to wait to performance they went to the government said i want to prepay and the government said no way we can't do that anymore the supreme court in franconia said that that's what triggered the statute of limitations is when those contracting parties prepayment under their contract and the government said no we're not going to do it it wasn't ten years before that when congress enacts of the legislation telling the government that you're not allowed to  letter let's take the nine hundred sixty six letter which says that the transfer of power marketing authority to b p precludes the possibility they had offered to buy out the districts their power privilege right by contract through the mandatory contract which they had to get they couldn't just change the rules they had to amend the contract to buy out th projects so the government could then take these facilities throw them into an integrated system and not have to account individually it would become an accounting nightmare for the government and this is in the congressional report the reason why they ask that th do this but it wasn't a matter that they couldn't do it and this came out subsequently nine hundred sixty six and some legislation with a grand coulee and it's in my brief it had to do with a writer it had to do with senators at that point in time questioning what the government was doing that the congress had never authorized this pooling of revenues and what happened was is that the government was taking all of the revenues in a book and they using him using those revenues to pay off projects that hadn't paid out regardless of whether that project generated a penny of money from power revenues then we don't even have had a power plant on that project so this was what was going on  on appeal i think if you read the course of pinion after the trial it's very clear that the court believed that the only issue that it was addressing was a preview contract issue that was the only issue going into trial judgment in this case dismissed you know the basis of the statute of limitations and it's very clear that that's the only order appeal from the order finding that the statute of limitations part of the contract action so it's it's our view that this is simply past that that that we had to take until trial as you know the court knows this case was around since ninety ninety one it was up here before on the statute of limitations issue in that case the court recognized that there were other issues involved in clients left there was a rich contract crying there was a takings claim and it was a purge of fiduciary duty claims and at that point both sides seem to agree that those were the only claims that were still an issue there was additional brand we pointed this out in our years which would be the same this would be for a contract action and the performance under the statute would have would have stopped at exactly the same time as performance under the contract that is nine hundred sixty two one hour marking this producer jerry duty the government had an obligation to to make profits for them under this contract and we are going on the future due to claim that profits stopped and and when that power transfer at this time that expenses were growing up and because of the expenses that there are going to be more privacy because of that that that alone would be an indication you're going to breach the contract or you're just not going to pay profits because there aren't any but anyway and so even if we had the transferred power market responsibilities to b p a there wouldn't be any profits but in addition to that we did transfer power market responsibilities to b p a and because of that there simply cannot be any profits in the future order in the one nine hundred ninety eight decision the court did say that that could be construed as advising m id that there would be no more profits because of the transfer and so this discourse actually found plausible a construction given to that effect there transitory because for example if they transferred it away from the p s a and it was under some other regime five years from now if there would be profits i mean who knows the sun and thinking distinction is number one is is that in franconia they were arguing that before time for performance came due that the government made for mr impossible in this case the government was already not performing with the contract they weren't getting profit had the secretarial order with which with which seem to make performance impossible and now nine hundred sixty six you have the real challenge them id look because we transfer power market responsibilities to b p a you can't be any profits in the future should review to know whether there is a limitations of the action here but my my thought previously was that we've got the district contract and then i thought that in the ninth circuit a minute ago a one opinion held in this i would have thought would be the law of the case but the question of whether a party has refuted that the current determination for clear air the irrigation district in that case did not do the first time the government didn't even probably ation it sued the third time and the government made took the position that well now when we breached we breached you know we we messed up at that time and the statute limitations run you're out of luck well the innocent carlos case the federal claims court ruled differently it said that the government could not it's a breach in saying that this was a one time obligation never had to get to the second step because it found that there was enough conflict in the evidence that there was an unequivocal repudiation therefore you go back to trial and you make that determination first the court never got to the second step in terms of forcefully cover legal terrain going back to the nineteenth and twentieth it's not of these new fees and i think both sides have done it here with great skill thank you thank both council for your arguments and the minute