broken apart is depending on the availability of a sand cover over of the underlying cohesive layer and that what the ninety nine report establishes is that that protective sand layer was eroded over one hundred years from the jedi's such that there was and there was an inadequate layer of sand to protect a cohesive layer walk me through how you arrived at that sixty to seventy percent estimate of erosion mean caused by the core  we walked through that in two ways the first is that and refer me to somewhere like in your breaks because i don't have that you don't have that so it's clear in your breath  mandated that the statue of limitations had not been or had been that the lawsuits have been timely filed within the statutory period in the in the court's mandate it found that the permanent to what extent does that apply over to the liability issue we think it was a prick a predicate factual finding in order to and that the court evaluated facts outside of the complaint and fact was actually at issue by virtue of the government's opposition to it such that if certain facts and jurisdiction are challenge if those facts then become necessary in predicate as the  unscientific propositional truths and used that to contradict certain truths and certain truth is that if you have one hundred over one hundred years of blockage of sand and you have an inadequate by its own admission place in the wrong size that for certainty than there is a the evidence on contradicted that we've had down cutting the cohesive layers when exposed the mitigation is never address a historical loss of case issue does that what does that do to the the damages find does it up in that in its entirety or just part of it the only damage finding that we had was that one property was in a liability finding right and so it's a different liability finding a center than the court should have the opportunity to reassess damages based on that difference and i thought i would agree so the court found that there was no damages on all the lausanne or impairment and remained though what is the state of the record on remained all of the damages evidence comes in through there and his his testimony is that out because it's beyond because it's and your argument seems to be that you only need to establish it that it would have been sound economy to have made the expenditures to protect the property but where did you show that it that it would be sound economy for the homeowners to spend one hundred  mentioned that in order to to the to decide the issue of notice an accrual we have to first find out if there is decide whether there's been a physical taking them to permanent and they address that issue and that was remainder of the wind back down but i would quarrel with a little bit with with what how the court framed the issue that was in banks to and in banks for and as i said in banks to with the court was the court didn't need to in and of course there were there was no trial at that point in there were no findings on trolling composition or erosion in any of the properties and if the time the court did need to determine that the technical reports were actually correct as to the pla that was him thanks for right ok did you appeal that no i didn't say the court erred in framing the issue in banks for what i was weird i was trying to get out was judge rayna's description of the holding ba found and what the panel found was that it was clear air to reach backwards and the court found that there was no new evidence sufficient for the court to reopen the finding and the court determined that there was nothing that point on the other hand for purposes of flight realty you're saying the government is free to present evidence showing that those letters were entrapped even if they did provide notice you could for purposes of liability present  figure based on the blockage of literal draft on that it's not fifteen and he'd be gone through all the numbers and he had determined that the actual blockage of the percentage but for mitigation would be twenty five percent not not the thirty and  mean as a lawyer i used to cross examine an awful lot of prisoners but the it is appraisal method for reduction in value of the properties is flawed quote because it only used the front footage of the property rather than accounting for the decrease and and in effect i'm going to draw in the air but in effect it said if there's a peninsula sticking out into the into the water and people picnic on that and so on and then it's it and instead you have a bay running right up to the house and you no longer have that land it's ok because the front footage is the same well i don't is that correct because that's the way i read in the right that's not shoreline if it took away a particular feature that had value that would be represented in the market then that was considered what the basic understanding though of the appraisal was that the primary indicator of market value for shoreline properties is that is the width of the lot your view your ability to you know access the lake and then simply losing a few feet of erosion doesn't necessarily affect the market value but i would like to come back to a much more fundamental point is the united states did not need to put in any damage evidence whatsoever the burden was on the plaintiffs the valuation evidence that the plaintiffs put in is not even a valid method for determining  eighteen of the forty properties never looked at there was a wide difference in terms of the actual property loss and what the plaintiffs did in putting on dr moore is they didn't invent study of an event that the this announcement what impact did that have or on you know the temporary market value of the lot and they said there was a uniform they found that all of the parties actually appreciate that in from before an after but they found that the appreciation in the plaintiff's own was less than that in another place and therefore that you know they should they're entitled to millions of dollars as a result of this but they value the wrong event they didn't value with take the value just the impact of an announcement an announcement is in a taking it has no relationship to the physical loss of the property if if the government to come in for example in two thousand and in january two thousand and it hundred seventy and from the period from one nine hundred seventy through the through the point of appraisal based on the sand budget in the expert testimony that was presented the court said of claims found that once the corps of engineers changed its practices in didn't take the grapes material from the inner harbor to deep lake that actually put it on the on the shoreline south of the property so it was there to nurse the properties that there was no effect on the sand deficit from the j once they change the practice and they place the the mitigation as is it what happens if we if we reverse on on the court in its determination as to whether  question on another somewhat unfair but do you agree that the banks for re manned order of this court had a clear finding ash to a permanent taking and  or it's didn't have to be true at that point to show that that the claim wasn't time barred because what mattered to the time bar was whether there was constructive knowledge prior to one thousand nine hundred three there's a ton of evidence in the record or on it's from about shoreline two thousand and seven liability opinion it appears that the court challenge the thirty percent erosion liability in mission from the seventy three report in the court of federal claims actually found that fifty thousand  yard number you proposed was more accurate than one hundred thousand cubic yards underlying the thirty percent but the court of federal claims still assessed liability at thirty percent at the end of of that opinion that's correct and that's a number that you're citing and it's carried through illicit occur is it your understanding that the factual determination of fifty thousand cubic yards doesn't affect liability determination now it's not your understanding ok so what is your understand the the liability determination is based on saying and budget that was presented by dr nayar and as you sort out all the numbers from the chart that are all those you're has difficulty reading but if you it's the information that's presented on that can argue that chart you can't i mean unless you open that page and you read me what these numbers want you to open for that page as you are it's seven seven three two that it's one two three four five six seven eight columns over and some of them are subdivided below you see in addition to the to the two thousand and seven opinion and the page numbers i gave where the court applied an incorrect methodology to admit that evidence ok appendix three five three two to three five three three we identify ten thank you the issue is that the fifty thousand cubic yards that is relied upon by the underlying court to say there is no liability is a number that's made up out of percent confidence what moore's testimony is combined with dr metals testimony and dr meadows testimony was that he went property by property by property my property  much land had been lost above the ordinary high martin mark with a bluff calling him and then it came out with about one million eight hundred cubic yards when you did the sun poll so there's a correlation between the actual land lost in the the munition and value that's provided by dr moore is that the credibility of these witnesses is beyond dispute that the foundation for that damage is testimony is there as to the claim by the government that somehow the ordinary high watermark was pin further away such that from a aerial view you had a larger land mass notwithstanding the fact that you have lost volume of sand into the ocean dr nairn admitted that he pinned the ordinary high watermark there because people which are protection