your honour's this case is about arbitrary and irrational actions taken by a government agency against a sand and gravel operator in retaliation against his exercise of free speech this is not a regulatory taking scase even if the county flood control district turned to this court today and said that it agrees that a b c has a valid floodplain use permit that admission would not render new moot or cure the constitutional violations that a b c has suffered at the hands of the flood control district since the district first began its campaign of harassment against a b c in two thousand and eleven while the government's actions may have taken place against the backdrop of a land use dispute the constitutional challenge to those actions does not depend upon its ultimate outcome hundred eighty three action is therefore right notwithstanding the ongoing administrative appeals where are we in the process january two thousand and fifteen you have the review board issue its opinion that as that's been appealed to the supreme court is that has been appealed to the spirit quite your honor your record is your decision you know we are in the midst of litigating that about why why do we get into the middle of all of this because that's totally different the issue of whether or not there's a valid floodplain use permit is it is indifferent to the unconstitutional acts that the government has taken we've alleged three three major constitutional deprivations an equal protection violation a procedural due process violation and a first amendment claim none of those the unfair treatment that the company has been forced to be subjected to over the course of these past four years is going to be changed whether or not we are and ultimately given a valid you know we read the complaint yesterday and you know has some very explosive allegations in there you know if you can prove all of this well you may well have a nice hundred three suit when i read the opinion by the arizona court of appeals and it seemed far less sympathetic to the claims that your client was making without resolving them but just sort of rhetorically it seem far less sympathetic why would we why would  really want to get into the middle of this until arizona has resolved this thing itself again your honor because this is because the ripeness rules do not require that we wait until a permit is decide is issued the the cases that judge make relied upon at the district court superior went through the superior court and went back up to the arizona court of appeals in the court of appeals came back and said the flood control just has been entirely responsible here this was of this was a good decision the statue has been under enforced a b c is way out of line and the flood control district can and can proceed and not only that but the fines are still good ok what if we came up with something like that you might you might think that was just awful and outrageous but we could only interfere with that permit during from two thousand and eleven to two thousand and fifteen that's a totally different question than the question before the district court which is are the government's actions are is a b c being treated unfairly are they being subjected to unconstitutional deprivation of constitutional rights a totally different situation i mean are they now or are they or were they during them period they were during that period and they continue to be my question is are you using the verb happens then what happens if we do not have a valid permit then we need to go forth and try to figure out how to get a valid permit with the flood control district or we cease operations that is a different question that at that time i believe the company would have to if you're going to court conclude that you don't have a valid permit sent that letter on february fourteenth two thousand and eleven at that stage they required us to pay twelve thousand eight hundred dollars or no permit fees that were not required of other sand and gravel operators they and you do have to pay that is that correct we did have to pay that they interfered with business relations they called some of these largest customers and tried to get them to stop doing business with the company they called the arizona state land department and tried to get the lease permit the lease from that land revoked from the property they called one of the largest forgive me but just to finish the thought of and so your allegation is these actions that you think were out of line and retaliatory would still be actionable even if it's determined that your client was not entitled to the permit is that your position that is my position thank you your you're asking sir well no i'm asking the question i'm asking what's the three palliation if the problem was probably  if the permit was properly denied the retaliation is still because the flood control district didn't like the fact that my client a b c sand and rock issued a rather scathing letter criticizing the new regulatory process and the six hundred forty percent increase in fees is it  idea that rather than just denying it so is the question we're positing is if your client was not entitle to the permit you think it's the they still have a cause of action is the idea that rather than just denying it they were forced to jump through a whole bunch of hoops due process problem is that it that's exactly right yes donna they were forced to jump through hoops they were forced they were subjected to a series of harassing inspections they were forced to suffer due process violations to the extent that there was an ex parte hearing held on the very permitting issue between the flood control district and the board of review while at the same time the flood control to strike pre occupied the principle of a b c sand and rock by holding an inspection and having him be away from the premises there are series if you go through the complaints  bad act and they are egregious and if we can prove them i think it is a very good nine hundred eighty three action we just need to be able to move past the rightness challenge and i think the fact that even if the flood control district turned to us and said yeah you're right you've been operating absolutely above board for the  five years you have had a permit we have still had to suffer a series of constitutional right deprivations and it is that deprivation that gives right to them not rise to the one thousand eighty three challenge irrespective of the resolution of the permit issue and if there's no further questions i'd like to reserve the remainder of my time for a bottle my name is and long ago and i represent the maricopa county defendants the central issue here is rightness and a b c does not shed much light on that issue you have to have a concrete particularized injury in fact in order to have an article three case or controversy a b c has not suffered any actual injury they have never been deprived of the use of their land they have continued to operate to this day without an article three case or controversy the district court had no subject matter jurisdiction and therefore no discretion to exercise supplemental jurisdiction over the state claims let's suppose let's suppose that the arizona courts affirm the orders that are now in place so everything's everything's completed very very quickly here and we're left with the decision by the review board to the plaintiff still have a case can they come back in and and make a case against the against the district at some point if in when their case becomes ripe they could bring a claim but that point is not now they can they can simply refile the suit correct but there is no concrete injury at this point and plaintiffs rely strongly on the case of  retaliation claim but you've got to look at the time frame of events the fees and the changes were in place or being talked about prior to the february fourteenth letter that was submitted by a c if you look at the excerpts of record even says they were attending meetings with the arizona rock and gravel or rock association discussing the changes in the regulations that the flood control district was going to put into place those things were already happening before a b c sent its letter so you don't have that causal connection between the alleged protected speech and the alleged retaliatory action so that's an important thing to look at these are regulations that were changed or needed to be changed based on changes from fema changes in state law various other changes and the flood control district is authorized to regulate landowners within the floodplain that is what they were doing with a b c as well as with the other property owners there that are mining or excavating or digging out rocks it's has to do with public health safety and welfare and they're entitled to do that the fact that they may have been more informal years before or required lower fees does not mean that they are a stopped from not a stopped from enforcing their regulations so maybe they were too lax before and in conditions change statutes requirements and they needed to to pay more attention to it and do that c has not shown that the causal connection between the letter from a b c to f c c and any type of retaliatory action and again it comes back to what they would be doing that the state court proceedings your honor we're already going through a second round of appeals in the state court proceedings there was the first board of hearings with the show entirely in the state court proceedings i mean i have a claim on television here which they haven't really been given they have been raising these allegations in the proceedings below your honor and till they become ripe and they can show some type of actual injury a case is not right this court should benefit from the decision of the state courts these proceedings need to be allowed to continue and go through till they finish so we can see exactly how the state courts interpret the state statutes the administrative rules to see how the whole thing plays out and whether or not there so says that the state court proceeding is going to decide in title meant to the permit are they going to decide anything else i i'm not involved in the state court proceedings your honor but the validity of a b c s permit is at issue at the state court level right is that all that's at issue at the state court level that is the main thing that is at issue at the state court level but other issues how is it then that yours in a response of judge because it's a question i'm just a little confused by your response that they are litigating the retaliation type claims there were all the same allegations that they've raised up here with the district court are being raised down below is why this sounds like a number just not in my question that's what i was trying to ask the clarifying question about is the issue that's going to the legal issues that will be decided simply the entitlement to the permit as opposed to understand allegations are being made but it doesn't sound to me like the discovery that judge kozinski is talking about is going on and that those issues are going to be resolved in a state court proceeding that i believe yes there are numerous factual issues that will be resolved in the state court proceedings and those factual issues need to play through before it comes up to this court for review so there are factual issues that need to need to be resolved some of the legal issues are one that has proceedings and saying is this record the claim is not right and maybe arrive clime which might be developed for the by state cocoa seedlings but to say it's not right with me retaliation is that not there your honor but all of the land owners are required to go through certain procedures to renew a permit or to apply for a yes or no it's true it's true but i think you also agree that harassing and so on and magically they have here on the property you know many times more often might you might have a retaliation claim even though the agency might be entitled to do  well your honor the mere fact that they have to have inspections done if that were the case that everyone who complained about having an inspection on their property had a claim then we would be having a lot of claims filed everyone not that's not opposing counsel's argument her argument is simply that they had to jump through you know to unfairly summarize but that they had to jump through a lot more hoops than other folks that's her argument well your honor that's just part of the process and the process applies to all of the land is ours out there and they may not be similarly print in place before that letter and it's not only a b c that needs to go through the proper application and submit additional information if requested by the flood control district its other property owners there it as well a b c has dug in its heels and simply says we want it back the old way it was when it was informal we want the fee to be lowered to one hundred dollars the way it was however many years ago we did it and we just want to send in a letter and say redo our permit and have it be done but that is not how it is now and if that's the way it was in the past the flood control district was within its rights to revise its regulations and to provide more oversight to the process your honor i'm sorry my time is one that is abstract or hypothetical and is judged as in ski said during his questioning what we have alleged are very much concrete particulars facts and it doesn't just inspections we have alleged possible connections in the complaint to show who had the actions  him of the permit going forward a series of harassing inspections not just those that complied with the letter of the regulation but additional regulate additional ones not given with reasonable notice issuances of cease and desist notice and allegations that he's been operating without a permit since two thousand and six contrary to their own records an interference with a large customers and landless source that i mentioned before and some of the arguments also suggest actual financial injury although i would note that the deprivation of constitutional rights is itself an injury