the resolution of this case in our view turns on a single legal issue and that is where the bureau of land management have the authority has the authority to grant to bassett new mexico and a county new mexico it's surrounded by federal lands about sixty six acres and it has no physical access at this time mr mercer yes well i don't i have a question about  their map that was provided in the materials so i understand there's cherry stand road that would lead from facets property through the wilderness study area through the federal land and then it would go to state land and then from there it ends and private land do i understand that correctly yes with one minor alteration your honor and that is that it actually did in this and that private property owned by mr hopkins but but it before it gets to that private property it goes through state lancaster state land as well that is correct ok so the problem with the cherry stamp road is  it doesn't get bassett to a public road so it's not an access to a public road it leaves the property still isolated still surrounded by the federal dealt with the fact that the government had in the course of a superfund cleanup process collected money waste and dumped it onto the best of property and the court of federal claims held that that was a th amendment over federal land by a reasonable route under the existing interpretation of the federal and policy management which was incorporated into the interim management policy so we have interim guidance is that right that's that's right the interim guidance which actually your honor i think it was the rd of the menials that bill him had promulgated but it actually dated back to premature and you st have to file a formal application and then give b l m an opportunity to consider the merits of that and really figure out all the facts underlying what a possible right of way would look like and what the possibility is from b l m side on the viability of cherry stem road or some version of juries down road and so if we take the government at its word that all its communications to you and your client so far are not definitive denials but only suggestions that it simply needs to see a true repetition from you before it can reach the merits then on that score why wouldn't it be correct for the claims court to deem this lawsuit to be premature because we still need to have all the facts lined done at the administrative level before we figure out to what extent if at all there has been some form of the taking of your property yes your honor i think that is the crux of the appeal and the issue then as as i indicated start comes down national monument allow the elim secondly to issue such an easement and our answer to both those questions is no we think that's an issue of law and why wouldn't bassett go through the process existing right is a an existing use of federal lands as of the adoption of that stature in effect it's a grandfather and well it's not just a grandfather a because the next exception uses it also deals with mining operations that were in effect at the time with certain grazing operations i believe so we always kind of now go it's not a valid existing right it's still nevertheless a been taken the property interest that has been taken your honor is to see ownership of sixty six acres when i think why i'm sorry for interrupting you had not i think that if you actually had applied for the right of access sometime during one thousand nine hundred and ninety five to two thousand and twelve that's when you would say yep you got that right of access and now you have a valid existing right i think the it's what i hear you to be saying so for where is this land exactly located but what makes it attractive for people to want to live all the way out there i just said it depends on your absurd idea to feel that if my understanding is that it's residences in the last bruce's area this was sort of outside of the the scope but the last christmas has expanded over the time and i believe that that although this is not in the record that that has created this of the cleanup had actually created a road on a reasonable access across this land but when they finished the cleanup the e p a erased that road they went back in and took it out to try to return the land to its golden of characteristic which is of course areas of more than five thousand dollars acres that are roadless so they took the road out so that this would revert to its character no i just want to ask you about there's a footnote nine and the former fast opinion by the court of federal claims and i just was curious about what it was and killer in so wanted to tell you what it maybe you can help me understand it so it refers to the i'm sorry it says plain deflations that it could have purchased an easement through property was landlocked had no access therefore had no value and the player passive was attempting to prove yes it did have value you made two arguments one was that b l m was required to grant access under the existing manual and number two that they could have acquired they could have gone to the adjacent property owners and tried to purchase access and could have gone to the state and attempted to get access from the state as indicated there was also evidence not leave the court's opinion says this that the state there actually brought a witness to testify that they would not have granted access  that over which bassett wants the road between his parcel and the highway is no longer wilderness study area it remains a national monument and some that that is and that doesn't make a difference right because they say the you know the at the time of the designation and the designation is the monument designation that's the relevant designation for determining whether or not there's a valid existing right sorry i just want to answer just uses question is that the so same rules for how to you'd be looking at two thousand and twelve we'd be looking at seventy four other respects you'd be looking at whether there is any kind of land use right and that's not a that's not a term that is limited to necessarily having a document that could include implied rights that's something that the b l m would have to decide during its  the burden on the plaintiff to to present the facts but it has to be a scenario that you could legally accept i mean the rights of the stock turn you know the futility seven is very very narrow but it it their theory there is no historical usage of the road they're going to have to build a new road or they're going to make you build a new well they'll build it seems like there's going to be a new road across the federal land whether it's through the monument or through the wilderness area  easement by necessity or there wasn't some type of easement by necessity given to you when you were given that parcel that you have a right to create a new road across a rd party's land i don't know the case that said that the cases that they so if that's the case they thought they may purchase a parcel with no factual historical right of way out before then i don't know of any cases that say that you can create a road across a rd party's way out now if they went about the two thousand and three quarter federal claims  it was had the asset applied under that policy then they would be able to get that road that it didn't apply in the over the decade that passed that policy is obsolete and that policy is particular to wilderness review its exceptions  determination and so little trouble because i don't really understand your position on whether there's a valid existing right for a right of way that never existed previously mean it seems to me like this some of your argument is you know we can't tell whether there are valid existing right until they apply and so they have to go through this burdensome process but that's to some extent that has to be a legal question doesn't it whether they have a valid existing right and if if dell of existing right consists of you know categories a b and c and they don't have any arguments about why they fall a b and c isn't it beautiful for them to go through that i don't think it is futile your honor i think that they if you're right that the question is true let me let me make a very very simple you have a policy you're only going to grant a right away if they have reasons a b or c they agree completely that they have only a b or c their reason is deep and your policy doesn't permit wouldn't it be futile then under that hypothetical yes i think that necessity and that there's a historical fact that would be need to be discovered there if there's a parcel that's granted and we've given them a road out and then subsequently there's additional sale of that severance of that parcel there might be a historical even by necessity to trying to piece through what we're supposed to think about it at this point in time they always had access through federal lands on terms to room for a long long time it's now been a road to a brick wall because private landowners on the back end of trees down the road have blocked any access to all the public highways so if the government were to say in response to an application but it's important to know for a takings analysis to know how much access the government is going to give them and i want to make sure one thing is clear because the opposing counsel said that there's physically they have basically no access and that's simply not true st of all these are public lands they are open to pedestrian access the property is two thirds of a mile away from the county road so they have to destiny and access to their property and the federal government has done nothing over the last twenty years to disturb their access to the property or to prevent them from coming and going  also have of course access on the cherry stem road pedestrian as well as the hitler so it's not that any action by the federal government has stopped them from entering or exiting the federal lands at this point in time is there a way a car from their property can get to the clear is that there isn't the physic well actually this is not a physical taking claim this is not a claim of them not being able to access their property at all it's a question of them wanting to get in and improved another type of route and that's why to your question about what good is cherries  is important to consider when we if we were to consider a regulatory taking place we would have to know the amount of access that the government would give and giving them a paved road because right now cherry semi's an unimproved road so giving them a right of way st of all over that road and paving that road would give them a better way out of federal land so it's not i understand it's not what they're asking for but that's the kind of thing that we would have to consider in a regulatory takings analysis we can't get to that without knowing what the b l m is going to actually who are blocking their road i mean it's quite possible that the roe the cherry stem and then the road that's going through the private properties was a some type of public road or they have some type of easement to use that road and it's actually not the government but the rd parties who are blocking their facts are necessary to know whether or not they have a property interest in this cherry stone road or any other type of access for ours you're suggesting that in their application to be a lamb they would reassess whether they could successfully get in the easement from the state or get some sort of access through the private land by doing it any more current time frame since the last time they tried to do so was twenty years ago i mean that might be something that you wouldn't conveyed what was the background that they look at attempts to gain access otherwise sampled through state line land or through private land i think they could i mean that's not a hard thing i'm just asking you when they do that is normal course you're saying they could do you have more specific fields under under the prior of the wilderness policy that we've been talking about under that policy they are reasonable access they do look at the facts on the ground and whether there is alternative means before they build a public road through the national monument they are going to look at alternative routes they would look at that as well when they do a need and now says to check the environmental impacts they would see whether there are alternate routes available so that is something that the b l m has the authority and would look at in terms of alternate alt eight so it's not that the basket purchased this property and have this right away and then suddenly they were blocked this is the historic context of this parcel that has been blocked before way beyond the statute of limitations here in the normal  declaration of a telephone conference that involved both counsel for the just department myself as well as the b l m employees in albuquerque who would be handling this application this permit would be issued to besuch new mexico so when you wonder well why is it that we haven't come up with all of these other ideas the response has always been that you can go through this you can spend all this money doing surveying and environmental impact statements and archaeological studies and paley into logical studies and all the rest but you're not going to be able to obtain a right  because the case isn't right because bassett has an applied for this permanent now whether these other org humans about but estrogen access you could walk two thirds of a mile up a hill to your house and have no access whether those would prevail in a taking case i think only arise once the court determines that in fact there is jurisdiction in this case as sweetly thank you and good thank you