be so of course we have here is a breach of contract action the court decided that our mitigation bank agreement was a contract a court decided that the government reached the contract but then went further and said the problem was though my client had two competitors they were going to undercut our prices and therefore we couldn't prove in our proved that in the non breach world we would have what one is the contract  the contract it seems to say that the government wouldn't give your client a certain number of credits you say that that was incorrectly computed just for the moment  it's promising other than to give you the credit you view the contract as incorporating the regulatory scheme here well it certainly is written a backdrop of the regulatory scheme but but the operative language of the contract of course the court determined it client can use several convey a these credits in commerce so so that's the awareness that me in accordance with the regulatory scheme it has to be because these credits  impact the environment ok so what we have here as i understand it the government has conceded that on the right military scheme if it had had the right number of credits one hundred twenty four credits that it would have required the railroad and whether if they didn't reach an agreement that the government would change the terms of the permit as it did with respect to the seventeen credits and i've read parts of this record and i guess what's missing it seems to me is any suggestion that the transaction would have gone through at the seventy nine thousand or eight or eighty nine thousand per credit level was your problem the problem is that finding by the court is contrary to the clear evidence what they did find what to say with the two competitors they want to undercut pioneer spices great land trust and sue connect think i don't think there's any question that you would have been the first choice for credits under the regulatory but that regulatory scheme doesn't mandate that the purchaser go with you know if a cat ate an agreeable price correct pass can the purchaser go back to the core and say we can't reach a mutually agreeable price modify the permit to let us go out or go with us what's a question in the context of this case in these facts in nine thousand the front correct it sure ok and is there any testimony that the railroad would have paid that much for the credits whereas you have to assume that point judge will not just not answer the question is there any thessa money that the railroad w allow the railroad to bought credits that dr gone said were not appropriate that they would be void and look at what nicole he's the one of the supervisors in the alaska there is no dispute that yours were the best credits they had the highest priority level and the core was going to try to force the railroad to buy your credits but the course still had options to modify that and that that's what it did in the post what does dr beyond say about that again their witness the judge is asking him ok what do you think about pioneers argument that if things had been done correctly no other words in a non rich world if things had been done correctly pioneer's says that the core would not have gotten down into lower tier forms of communication what do you think about that what the doctor gone say he says and i'm reading from page sixteen fifty one of the there's other factual evidence supporting the notion that would not have forced the railroad to purchase your credit at eighty nine thousand dollars because they were too expensive then doesn't that in the case you know it wasn't because post breach yes actually the corps allowed road block mitigation which their experts shared is inappropriate and what nicole hay use their supervisor says is inappropriate mitigation she says what we would require is is something that actually offsets impactors an example for me but at the here's the fears the disconnect that i said i don't see clearly because the breach you don't have enough overall credits to sell but you still had sixty and so if they were the best credit and that the court wanted those credits to be used why wouldn't they have forced you to force the railroad to buy those credits and at that price at the eighty eight thousand dollars reduced price and then because there were no other credits available move on to the lesser and in a non rich world they should have here's your example very briefly for example i think it's almost rationed i signed a contract used were inappropriate so here's a question in a non breach world is it more likely than not that is that yours that's your sole argument that the core couldn't appropriately allow these credits to be purchased from another so artemis that's one of the arguments is that in a non rich world it's more likely than not they would not have dropped down the hierarchy and allow an the permit t to buy credits that are experts said to be void even though the breach while they did  the government approved certain point there would have been a price that the corps would have forced the railroad to accept and so that there would have been actual damages but we're sure now apparently because the other side refused to put on a price that would have been appropriate damages and therefore they're not entitled to remediate all that seems really peculiar to me your honor that the issue is i mean there are steps in the process of proving damages of course and the problem is that there was never a willing buyer of willing seller i mean there's evidence in the record that they negotiated and as you referenced i neer came down to prison eighty thousand dollars approximately they weren't willing to go lower they went as low as seventy nine price the government would have forced high in the air would have forced the railroad to buy pioneers credits all hundred sixty two at twenty nine thousand dollars well there are two issues with  particular opportunity to sell those credits to the rio creature and the question is whether they prove that that opportunity would have come to fruition under in the sixty credits or roughly sixteen and then back up to roughly thirty or something i think it was not quite that simple in terms of plastering credits but yes but what is and that's i take it all under the contract with the government for setting up th that is or a process for challenging that reduction it within the agency or or is that just no longer an issue that everybody agrees whatever number you have and out west which is lower than one hundred sixty  fifty one our expert explains that what he's doing in developing his damages model this theory is assuming a breach to one hundred sixty point you credit full amount that the railroad needed for this investigation to all the allegations and all of here after the investigation and he then admitted that the court breached the contract of course the court made that separate  what i said well you realize the magnitude of what that meant to me the sale i lost and he said yes twelve point six billion which can be read as saying i recognize your view of what you lost not that in fact i agree that you then he says well you know what that meant to me you know what that taken with a cross meant to make the sale a lost and broccoli then set him yes he said yes you lost a tall coin six million dollar sale the judge minute that in evidence he says well i'm going to decide where there's a breach or not but the statement not the rocky which was not challenge not rebutted that that action by the corps taking away the credits cost caused i knew to cause you to lose a trial court six million dollars sale i think as a common reading the plain reading of what this language is here and if the defendant admits a breach the defendant admits it caused