students thank you your honor may have pleased the court this case is about protecting the most fundamental right of a landowner the right to access their land after all what good is owning land if you can't reach it to summary judgment in your you know your honor we believe that the district court erred in two ways we believe that the record demonstrates that the united states should not have been granted summary judgment and we believe if you look at the evidence or a record there when cars drive down the road vehicles are struck by over lapping brush that the road is filled with potholes that have not regularly been maintained or fixed by the government and so what that the government has produced and the only evidence and which the united states has relied and which the district court we believe the erroneous lee relied is a video that was produced by a forest ranger taken under very unique conditions it was a crystal clear day there hadn't been any rain in a while the vehicle that he drove i believe was a jeep patriot so it had high clearance and of course keep in mind that that video is not sworn testimony it's simply a video of a guy driving down a road under pre selected conditions there's been no one affidavits that the united states has offered from any witness including the forest ranger the erickson pluto the video that depict the conditions access road as we've heard to it into three different segments just to clarify for the court what we're talking about yes to the third statement which is the sacrement basically step back there's the north south segment of f r a twenty two a which then emerges and heads west yet with the run koski property access road so as to that last statement you have to keep in mind your honor at the time that the run koski submitted their application for recognition of the easement there was no f r a twenty two eight it's not clear but it certainly seems coincidental in terms of the timing that f r a twenty two a was established by the government at the time that mr rudd and his sister  of land in that what is it that south east corner yes and that's a good question your honor the reason why is because there is a significant difference between essentially permissive use which any time there is a federal seems to me and that's why i am wondering whether you know again the land of the south was owned by the rusko and lumber company and so at the time they asked the wrong color scheme the property would have been spun off there still would have been a need for an easement there still would have been a need for ac well i don't believe there's any evidence specifically as to the local the exact location of the road your honor but the law does indicate that easement payouts will move in accordance with the needs of the property so for example when rus of the entire johnson and all the surrounding parcels they could have put the road wherever they wanted but when the johnston parcel was transferred then the road would have moved to the south of the johnston parcel and continued along in a bloody rush go in keep property easements road particularly the second segment that is the segment that's really at issue the court really wouldn't even have to decide exactly where the road is or was because to get east also a continuing necessity and for the last ten years since our a twenty two a the forest road has been open to the public and it's a perfectly passable road  watch the video because it doesn't show any of the sort of conditions that the plaintiff is trying to make out here they're trying to make it seem like you're going through you know it was like a jungle inside the rocky mountains and it's simply not that way if you watch the video it's a nice level road it's standing grapple there's good drainage granite maybe puddles will last in the road for a day or so after rain and granted maybe there is a branch or two that that sticks out you know that can touch a vehicle on its way through but with very little maintenance or even no maintenance that road is perfectly passable and let's face it in the winter time let's say if snow is twelve or fifteen inches the road wouldn't be passable then is the government required to come in and plow it for the for the landowner i don't think so it's not a road that would normally be plowed at the same way when it rains well if  through the road becomes a little more difficult because there are some puddles in that it doesn't make any difference they can still get they can still get through the road as it's just a court said even if they have to have a vehicle with with high clearance an extremely low maintenance road that requires either very very little or no maintenance or else it's been maintained by someone granted there is no evidence that the government has spent any money maintaining it and so the logical some maintenance on the road over the years and if that's an indication of what has happened over the last ten years then i think it can reasonably assume that that the road would stay in decent condition in the future and even if the plaintiff has to or the plaintiffs have to perform some maintenance on the road i don't think that's any reason to say that well this is not sufficient access they well i think the burden to the reason is to not france and eastman over a portion of the national forests that's not open to the public for vehicular use it's because then you're probably going to have other landowners that have property in the national forest and of course there's more full national forests and just again national forests and there are a lot of landowners that own properties in these things and i don't think that government should be in the across national forest land that's not open for the hill or travel to the public and especially at let's say the road was built in two thousand and eight and if the government did build the road and i'm not sure we know put in place by the government then the government's already gone to considerable expense just providing that road and opening it up to the general public and now for them to say that well they don't want to use that they want to use the east road coming in across the alley property and let's face it the reason that they want the easement is that the plaintiffs or at least mr ryan kalki owns property to the east of this property he owns property on o lake which lies to the east and he wants to be able to come in across the rock housekeep property access road because it's a shorter distance for him that cuts two miles off of his drive if you were to use the route from all road coming up from the south on f r a twenty two a that's really what's at the at at the heart of this thing and for them to come in over that road is just a straight shot and it's just a matter of convenience but under wisconsin of how long it would take no not money how much is a cost well back in one thousand two thousand and seven he was offered the opportunity to apply and at that time the cost for a five year permit was only three hundred  seventy five dollars that's seventy five dollars a year and i don't know what the cost of it is that a part of the the record but i can't imagine that it's a whole lot higher that it's any sort of an extraordinary amount are some reason to see have cause to be concerned if the application would be denied the right in already on the wall that you can apply but it's going to be denied i don't think he has a legitimate reason to think that it would be denied i don't think that that the forest service would treat him any differently just because he's filed this lawsuit and i don't see where it would hurt them to grant the permit you know for a five year period in charge say if the per minute you know let's say there comes a time when the permit would be denied which i really don't foresee and so it's to me it's almost a waste of time even even talking about that because i really think that he would get the the permit and that it could be renewed in the future but if it was not the answer then the government would have to make sure that he has adequate access to his property and right now f r a twenty two and a is adequate access not just a reasonable necessity for an easement there has to be an absolute necessity for the easement and that's what is lacking here because there is the ability i mean even if he doesn't want to use f r a twenty two that's the court have any other questions well i think that both sides agree that there are not material issues of fact the earth i just want to make one more point with regard to the johnstone property which has been discussed all right property lies right on the section line when you leave the allen property going west you go into the portion not open that really the segment that's at issue here the the location of that segment is plaintiff's own survey which shows the road overlapping the section line there so in other words half of the road is on the north side of the section line half of the road is on the south side of the section case then they could not get an easement on a third party property life that you would have to be on property this other property this rough stone lumber company retains but here half of that segment of the road was on the event on the south half of the road which would be south of the section line and they are not entitled to an easement by necessity or by implication because part of the road was on land belonging to a third party that the john still and there's no way that they could have access without that portion of the road and what good would a half of the road do them anyway that would not the wide enough for them to have vehicular access just want to ask or i think i'm a little mixed up did she walk you below that some forty acre tract bordering the johnston roach shown on the mac but it wasn't labeled as you know the right casket property access road or anything like that and as i say the ask for the location of the road it seems to me like everyone would agree that the best evidence is plaintiff's own survey which shows a road overlapping the section line which means staff like that would have been on the johnstone property your honors with respect to this issue of the johnstone property exhibit fifty seven which is p t s seven of our supplemental appendix does depict the johnstone property and it shows the access road running to the so as i said earlier the clear intent is that the necessity be followed around the johnstone's property and continued on its way to the right koski property now what are your honour's questions about the special use permit i believe asked as the writing on the wall well notwithstanding council's representations if you look at the record the writing is on the wall what the government indicated at the end they are rep and their correspondence with m koski was that the it with this was going to be a discretionary decision and that it was going to be something that would also require an environmental review and this took eight years for them just to get  this from the forest service as to recognition of application of their easement and so if you take that long and add in an environmental review and then you look at the letter the letter also says they are not required to grant a special use permit so again notwithstanding what counsel is saying if you look at what's in the record there is no guarantee there is no wish or uncivil specially used permit being granted and that's why as i was saying earlier in answer to your honor's questions than necessity  easement is because a special use permits and simply relying on a road being open to the public can be changed it can be revoked at any time and you take away that access in the right koski is will no longer be able to reach their property the court was asking earlier about the issue of maintenance and you ask a judge wrote i believe you asked what if the government stops maintaining the north south statement of f r a twenty two a while in reality they've never two there is never a i can represent there is nothing that indicates that he happened to be there at a time when it was impassable because i mean a kind of makes sense why would you drive in a road and risk getting stuck if it's washed out you're not going to do that but he  does show potholes you don't show branch even if you look at the video again which is the only evidence in which the united states is relying on its show their vehicle driving even at a very slow speed having things brush along the side and perhaps extinguishment up the way it must appear the outlet by means of the new way is reasonably sufficient to the beneficial enjoyment of the dominant state clearly the law recognizes there isn't a component of reasonable ness it can't just be if it's remotely possible that's reasonable alternate access in this case north south f r a twenty two a does not provide that access so based on this record do you believe the right hauspie should be granted summary judgment and a revers