thank you your honor good morning he may place the court my name is vivian hawarden i represent champions retreat in this appeal i would like to focus on two primary area errors that the court committed the st one being the court error in failing to conclude that this easement qualified as a relatively natural habitat for a rare endangered and threatened species and the court error in failing to conclude that this habitat did not qualify as open space for the scenic enjoyment of the general public that provides a significant public benefit and i'll concentrate on the habitat regulation st all the code requires is that a donation relatively natural habitat of fish wildlife or plants or similar ecosystems be donated to qualify for conservation purpose that definition in the code is basically what we learned in  grade earth science as to what an ecosystem is it's where suite of species co inhabit a particular habitat of the land while we believe the addition of the word significant in the regulations heightens the test for qualifying as a relatively natural habitat we have covered that extensively in the brief so what i want to focus on here is the court error and ignoring the abundance of evidence of threatened species that inhabit this habitat and that's not what the code names it means you have a rare species an endangered species or a threatened species and i'd like to point the court to ted fifty three page five hundred and eighty seven where dr nasir admits he restricted his report to only rare species now what dr knox was referring to was the nature serve species assessment database and that assessment database nature serve has come up with five different species rankings g one means there's five of them left on the planet that scientists know out g two means there's twenty of them left on the planet that scientists know about g three mains eighty or one hundred that are on the planet that scientists know about g force in g five's are listed because they are suffering some sort of external threat and they're declining across their range and so scientists are concerned about them dr not admitted that anything on the nature serve ranking system is something that conservationists are concerned about and so what the court did when it rolled that there were no rare threatened or endangered species on the property and relying on dr knox was they basically conflated it and required they are to and it has that between an s one and an s three species ranking but mr akhil who is the botanist involved testified that he believed that there were probably less than twenty occurrences on the property which would render the property which would bring to the species a g acre was a rare or threaten or endangered what that qualify under the statute under the statute in the regulations it should qualify the goal of the statute is to acquire land for conservation and there's nothing in the statute or the regulations that addresses the size whether it's small or whether it's a larger and that the six circuit in the glass opinion it was just the opposite argument  arguing that the area was too small to qualify and the th circuit said no that there's nothing in the code or the regulations that limits the amount of size that the species may be on but that's not the situation here because here we had threatened species that inhabited the entire property and all you have to do is look to dr nonces testimony and his expert report to find and in the past taxpayers have read the cases is saying well you just have to have a threatened species on the property like to point the court's attention to the case of butler in that case the tax court found that there was a threatened species on the property not a rare threatened or endangered species on the property i'd like to also life of this golf course any of the maintenance practices have harmed any species on the property and you can equate that to farm land farm land qualifies for conservation purpose the landscape has been altered to allow for plants plants have fertilizer and herbicides and those types of properties can still qualify there's nothing inconsistent with recreational use of this property and also it uses a conservation purpose i'd like to get back to the threatened species on the property because i think dr knox the government's own expert has now admitted that there is threatened species on the entire landscape of this property where a lot of the record can you d a g one or g two that it tab fifty three page five hundred and seventy five dr now certainly believes g three s are endangered he admitted on cross examination he's petitioning to have the venus fly trap the g three species that ed issue in declining across their range are threatened and we should do something to protect them that at tab fifty three page five hundred and sixty and also tab thirty three has expert report ninety nine dash are in page eighteen and twenty i'd like to to really talk about the fox school here fox school isn't like the schools we have in atlanta it's not like a grey rodent with a tail a fox squirrel can they can be all black they can be all white they be a combination of it they have fur more like a hampster they're much larger i've never seen one until i went to this golf course and i grew up in georgia so the fox squirrel is a threatened species dr nasr admitted in his expert report that they have no habitat in the piedmont region of georgia the payment region if you divide georgia into three parts horse on a part the piedmont is the center slice of georgia they have no habitat because of fire suppression and development and they have found refuge on golf courses science scientists for the government have studied fox squirrels and golf courses and scientists know that these fox squirrels are declining and their only habitat that they have is golf courses  squirrel it categories it categorizes it right now is a g five but all of the experts admitted that these assessment databases are not perfect and that dr not even admitted that we can find out a species is is in trouble and by the time we can get it on the threatened or endangered species list it could be extinct and who knows maybe one in the state of georgia big horn southern fox squirrel are generally wealthy landowners who like to they determine policy not biologist believes his petition to head the sherman fox school in florida placed on the threatened endangered species list resulted in it being removed from the game list all of the experts acknowledged during the testimony that just because a species has honey and does not mean it's not threatened if a species has no natural habitat in which to live we would consider that a threat what about i've got a question  on a different matter which is it seems that we've got a lot of discussion about what it means to be a significant habitat but very little about what it means to be relatively natural where where did the tax court go to figure out whether something is relatively natural habitat and where do we look at what standards have been established for that you say that farmland can qualify under the regulations for lincoln qualify sports a golf course would qualify if it was open to the general public under the open space standard so golf courses can qualify it's just the court didn't believe that this one met the significant relatively natural habitat per purpose and i'm running out of time golf courses can expect to let you go over to question that you say that you say that golf courses can qualify but how my question is how do we know if they qualify said it setting aside their arguments about threatened species how do we know if it's if it's relatively natural well mr wilson species that inhabit the area that need the hairy hairy area to live and i haven't even had time to get into all the bird list and what i would like to point out is then mr wilson's expert report he goes through the significant significance of the bird list the court erred in saying you had to be in the top list the top category of every one of these bird list to qualify but if you read the the explanation of what it means to qualify for that bird list you'll say that all of those birds the twenty seven that mr wilson noted on the habitat are all listed as having three threats they're declining because of threats to their habitat and in particular mr wilson discussed the edge species that live on the habitat there are certain types of birds the eastern whippoorwill which is on the u s fish and wildlife two thousand and eight  list as a potential threat and an endangered species that inhabits the easement it is an edge species that requires the golf course to survive the red headed woodpecker requires the golf course to survive the fox squirrel requires the golf course to survive they require the mosaic of the entire landscape because they draw certain elements of their existence from each part the red headed woodpeckers live in the bottom land forest but they forage on the open space in the greens because they can attack when there's a lot of woods around the court also ignored the bottomland forest there are three significant high priority habitat it's in this region the court didn't even address  those the the three habitats are high priority habitats because we're losing them to development in climate change and i would like to address open space if the court would indulge me because i don't want to lose the opportunity to do so in r thank you so much the court also aired here and holding that the easement failed to qualify for open space because the court erred in its finding of fact saying that the public couldn't get to the easement from the non riverside and that simply wasn't the case from the evidence the columbia county planning director at tab fifty one page three hundred and twenty five as well as mr eccles testified to the extensive path works through this golf course you can't drive your car on it but you can certainly walk on it through the extensive path areas we also believe the court erred as a matter of law in holding that the surely they don't walk on the golf course there they're sidewalks there they're walking paths around the golf course that you just the walking paths to the golf course that they where the public can view the easement that easement is on the savannah river and the the little river cuts off a part of the golf course so there's that festival every year called the bender dacre festival where people take their kayaks and the patter boards and you'll have thousands of people this is a huge recreational area didn't my understand from the record was that the golf course challenge the right of the festival to  water during a tournament they didn't challenge the right during the tournaments they knew that they were going to be thousands of people they are going down the little river and they could be injured by a golf ball being hit so the issue is safety so they wanted to make they they allowed the festival to go through no one's ever been prevented from going down the little river in fact it's you know i don't know that the clients could ever prevent someone going down the little river but it did prison a problem a logistics problem in a safety issue the day they had  tournaments and the bigger dacre festival at the same time but for open space for the general you know enjoyment of the general public this is a tourism area for augusta the golf course sits on  savannah river the little river runs through it and along the south is the uki create and the uki creek greenway and so there is over and if you look at mr eccles report there's over two thousand five hundred feet on the savannah river there's four thousand feet on either side of the little river and there's a one thousand feet contiguous to the right hearing in forest on the uki creek and paddle ist and there are many paddle in nuthin enthusiasm that use these areas because they are so beautiful the sumter national forest is on the other side and so if you want to go paddle without paddling by someone sitting on their day and being hit with a coca cola can on the top of your head this is where you go to paddle and it's very important to the people of this area it provides a significant benefit in terms of tourism to the people of this area and i would invite the court particularly to take a look at tab thirty three dollars exhibit ninety six  exhibit two is a video that shows a view of the easement area paddling north from the savannah river up to clarke hill reservoir exhibit three of exhibit ninety six dollars p is a view of the little river and you can see a kayaker going down the little river which bisects the golf course and then exhibit four were is what it looks like down river with all the houses along along the eas along the along the river so those videos will help you understand how important this area is open space for the people of this community thank you that's  and twenty five of that opinion a document sixty four the tech support focused on the following aspects of the evidence it noted that many species were listed only by the partners and flight organization now experts for both sides testify that that organization includes common birds on its lists so many of them are listed only by partners in flight including common birds and all of those species were ranked by partners in flight and the lowest and nd to lo categories out of five so that's one thing the court considered then the court look to another less to the atlantic coast joint venture last and noticed that the species listed there were primarily in the lowest category so looking at all of the species which we did and our brief thirteen species were listed by atlantic coast joint venture eleven of the thirteen are in the lowest category and the two that were not are in the lowest two categories for partners and flight which me read the opinion that they only analyzed birds that two people saw explain that to me you've got somebody they say is credible who goes out there and does a study and says this bird is on this property but the other guy doesn't see this bird and so the tax court says we're not going to even pay attention to that how's that ok it's your honor it's true that the tax court focused its analysis on the birds that were seen by two of the experts and at a sample of the species but it's true the court doesn't explain that but importantly champions retreat on appeal does not point to any way in which looking at the rest of the bird species shows that the court commit a clear error in concluding that none of the species are rare or threatened or endangered substantial evidence supports that conclusion with dr nyce testifying that none of the species are rare or threatened or endangered certainly a qualified ex the taxpayer if you had the same birds the same animals same habitat same environment and there was no golf course with there even be a problem well your honor the there could be a couple of problems if they approached in your hypothetical the case in the same way that occurred here by focusing on the rare or threatened or endangered species with respect to the animal species of course the tax court found that there were no such species and again that's supported by substantial evidence through the testimony of dr knox and by looking at where these birds are on these lists and almost all of them are ranked quite low the ones that are ranked higher are ranked low and at least so you know so i think there would still be an issue with rare threatened or endangered species the dance floor not weed is you know a separate but i think there would still be this issue with the animal species now there are other ways to qualify for this easement one in particular that we pointed out in our brief champions did not rely on susan the treasury regulation and subsection d three d to which gives some examples of a significant habitat yukos and i'll note as we do in our brief that this section comes word for word from the house and senate committee reports that accompany the legislation and act in these conservation purposes but there is the nd example listed there is natural areas that represent high quality examples of a terrestrial community or aquatic community such as islands did not and i think perhaps one could see why given the qualification of the example high quality examples of a terrestrial or quite a community such as islands that  a i think at the end of the day it's a factual question that would look at all of the facts and circumstances about a property you know that doesn't give us a bright line to drive but unfortunately i think it's necessary because there any number of kinds of properties that one could look at here and setting a bright line would be quite difficult we're talking about an undeveloped piece of property a golf course a  rule area agricultural land that might be you know developed into small housing elements i mean i'm not even necessarily going for a bright line i'm looking for any of mine well that the court in this case heard testimony from experts about what natural means and and where the line might be with relatively natural the kinds of things that would consider in determining that and so i think tony might come into play there but but the regulation does not put meat on the bones of that particular phrase you know it does provide examples of the significantly relatively relatively natural habitats and could be you know a place to get some guidance public who is that the state park across the river can the conservation area from across the river you know we don't know that your honor there's no testimony in the record or in talking about sumter national forest so there's no testimony in the record from anybody standing in sumter national forest and looking across the river champions retreat claims that there is but the cite for that claim claims and focuses nearly exclusively on their argument that the easement area can be seen from canoes and kayaks in a couple of these rivers that go around the golf course and the regulation provides that if only a small portion of the property is visible to the public the public benefit may be insufficient qualify for that and the tax court based on the evidence before it especially the fact that the river banks in the evidence and i could see even if a canoe or is looking at the side of a river bank and then some trees in the background isn't that more scenic than a bunch of houses and docks but you're on our position is that those videos were not in fact admitted in terms argues and it's brief that they were never excluded but evidence of course must be admitted to be in the record as evidence not in the record and factual evidence and but but even if the video and i didn't get it because judge grant had but even if the video is not in the record doesn't it strike you as a makeweight to say that there's a thre the record from anyone talking about being in a canoe or kayak going down this river and looking at champions rick the county planning director discussed that the area is scenic and pretty and that he enjoys canoeing in the area but there is absolutely nobody talking about what one can see from a canoe and getting back to the videos even if there wasn't this issue with whether or not it's actually evidence which again it's our one thing that i noticed is that there's a distinct change in elevation for the camera so there is one point where it's lower down and the camera pans see very little and then all of a sudden the camera goes up and you  question was better to see the trees than to see the condos that strikes me as correct what what would happen if there wasn't this conservation easement would there be condos or some other development this river well seeing it seeing trees instead of condos just to spend one moment on that wouldn't be sufficient to qualify this for the scenic enjoyment provision there's actually a number of factors in the record that the of valuation of the easement there's a a laundry list of issues that if this court reverses with conservation purpose the tax court need to address including relatively natural including a number of things but when parties talk about owners to maintain a golf course there me would look at a number of issues about what else could better i take it would be the difference in value of the property with and without the conservation easement at the time of the donation texas conclusion that that species the reg says that significant habitats and eco systems include but are not limited to those categories yesterday so it includes habitat on those to exist and we pointed out in our opening brief in a footnote that that was the case we said champions retreat relies on these two and put a footnote in said they have not claimed to meet that for any other reason they have we have that judge grant the standard that the tax court used was it had to be a g two species or less and the tax court relied on an earlier decision called concern and in that decision and we cited this quote in the brief a species endangered species list which is odd in our case he thought it was endangered but for the tax court it wasn't rare threatened or endangered in that case so that that's the standard that the court has made  an audit right nail on being asked will does your property have a g two species on it so the government's taking the position that unless we have a g two species on a piece of property it does not qualify under the habitat regulation so but that's not the issue you have to decide here because there are significant threatened species dr knox emitted again he only looked at rae or so the court has not looked at threatened species and in response to the bird conversation i'd like to point out that mr wilson believed that the atlantic coast joint venture was the appropriate database to use as a starting point for testing the threat level  species on the property on the property there was one species that was listed at the highest threat level it's the eastern ripper well it's requiring immediate attention including recovery there was one high spe ies the brown headed net hench which it's defined in that level as needing immediate attention because of external threats and there were eleven moderate species on the property listed under the atlantic venture venture and the moderate level is defined as species that are declining but subject to less serious threats they're subject to threat they are threatened they are a threatened species he also looked at the north american bird conservationist initiative they only have two levels so if we have to get on a level above the lowest level there's no level to go to because that was sort of have the court analyzed you have to have two people see an already rare species twenty or last and it has to be wide spread over the area that is not a standard that any piece of property is ever going to meet the yes we had three species on the property that were on the yellow list the definition of the yellow list when you get on the yellow list is a species that are range restricted or suffering widespread declines with high threat it's high threats the species are highly threatened dr nost didn't consider any of the birds because he said they were rare there was more than twenty of them on the planet so he didn't consider them the three yellow species listed are the eastern ripper will the proton a terry wobble or and the red headed woodpecker which d knox admits in his expert report he saw in abundance living on the edge there an edge species they need the golf course to survive they need the manicured portions of the golf course that mimic a pine savanna to survive we had two species on the property that are listed by the u s fish and wildlife commission's two thousand and eight list because they are likely to be placed on the threatened and stranger species so we can't just look at rare species i want to address the admission of the video mr lawrence's expert report was admitted into evidence in those videos were exhibits to his expert report so they were admitted into evidence as for ma director he testified about paddling along the u creek he was looking at some property along the yuki creek and he didn't realize he was looking at champions retreat in the distance there was that testimony mr eccles in his expert report discussed the extensive areas from which you can view the property he actually measured the distance along the savannah river uki creek and the little river and there's over a mile and a half a visual access from the rivers as for not being able to see over the top of the riverbank mr lawrence who was accepted as an expert engineer testified i had to do was kind of paddle towards the middle of that seven hundred dollars foot river and you're not going to have any problem sitting over exhibit is an excellent visual eastman area i don't believe the appendix has a color version but the tax court has sent a color version up to the court and yes judge hankel if this if the fact the government's own internal expert rendered an opinion that the highest and best use of this twenty seven dollars hole golf course would be to develop the nine holes on the bluff overlooking the river and he came up with a nice value for the property even for that time  but that it was important to these members of the augusta community to protect this area along the river and there was testimony in the record to that effect but that wasn't one of the issues on appeal so we haven't included that  court remands the case then it would go back to the tax court to make those decisions at trial they didn't use their internal apprise or they brought in a golf course or prize or who are in who said that it would