three in montana which affected again farms in the state of montana to particular provisions that the plaintiffs challenge for the ban on the transfer ban on the transfer of a game farm license to a third party as well as the cost for the prohibition on a game farm operator charging a fee for the fee harvesting or plaintiffs in a different district filed a state court action later amending the absent constitutional claims understate lot of olives and takings claims and there are several other ending state court cases involving the takings issue based on state law throughout the state and handing you in those court actions gotten pretty clear trip protection of state law your honor the  can narrow construction or some different construction of the state statute the federal question might look different what is is about this state i one forty three that might change with the state court l prostitution a question to be narrowed or moved by a determination of the state course then the court should involve coleman and stay the matter and in this particular case we have and those three particular claims which will be dealt with by the law can act court system may obviate any need for federal court involvement in other words we believe under the law as it existed that is to say i did something today because it was legal today you change the law to morrow all of a sudden making it legal what i did yesterday in reliance on the old law this is a prospect a statute that is to say it for bits future prospected lee if the effect of the law and it's the effect that's the key impairs to or takes away those vested interests that were acquired under the existing laws or important three and the efforts in and what these plaintiffs went through in terms of licensing acquisition of property building the necessary fences all the things that go along with being of the extension argument i think the procedural classroom this case is quite important in understanding why judge had his decision not to extinguish particularly appropriate is an application of the equitable principles found in rule the caucus first went into court with respect to the constitutional issues that are in front of the court today in february of two thousand and one that filed a case in the united states district court for the district of montana entitled  second complaint contrary to what mr bloomquist told you a few minutes ago that second complaint filed in state court was not limited to causes of action arising interstate law in fact it pleaded in language virtually identical to the comp before the court in federal court with the constitutional challenges and in both state and federal law we moved to dismiss that complaining in october of two thousand and two the state district court actually i should clarify we moved to bench trial that was conducted in may of this year and we are still awaiting a decision from the district court on the taking federal and state lawyer a month later in the first week of november i'm sorry to interrupt and that was it was then taken to claim as applied not official take explained say the argument on the takings plane and that's a court case was should have this decision of the taking claim which is the only claim left in front of the state court in that case was without prejudice i see so others don't richard perspective taking and the other issues as a court points out having been decided that which brings us up to date with respect to the cock and the spoke legal proceedings are somewhat different i spoke with initiated their complaint in state court making challenges to the statutory interpretation there was adopted by the department shooting now this corps make clear that the station is an equitable doctrine and that it ought to be invoked only in those circumstances in which abstention will clearly further the policies the fomentation to foster harmonious relationship between the state and federal courts it's hard to imagine under the procedural pocker of this case how an order from this court remaining for purposes of abstention could possibly further those interests in harmonious function  invalidated it we asked for route fifty four we sort of cajun the plaintiffs opposed it because they didn't want the montana supreme court deciding a constitutional issue at that time the plaintiffs in the first copy case dismissed the case rather than getting a final on the the only uncertain point of state law which is the effect of article two section three of the montana constitution that's the fundamental right claim that they make with respect to the right of the montana constitution to own and protect property and to pursue the basic necessities of life the state court has ruled on that claim in the caucus state court litigation and rejected it it's also been rejected by the malloy in this preliminary injunction decision and again by judge had in the decision in the court below so it's hard to understand how there can be deemed to be an uncertain question of state law with respect to the law and that point appears to be quite well established none of the judges who consider that point montana judges learned in montana law seem to have any problem understanding that article two section three in the month in the constitution does not create a fundamental right operating gain for so so there is no we would submit on certain principle of state law that would foster reliance on the and of course the court has no discretion to abstain under foemen unless there is an answer in question of state law so that ought to be an end to it but even if there were some question of state law the way these patients proceeded through the courts system it seems to me makes it difficult for a remedy to pursue compensation in sinclair the panel subdivided further the the right this question by hardening out an exception for is based on the issue of whether the the regulations substantially advances legitimate spangles and they held a substantially advances claim is right regardless of whether it's been presented in state court while the other kinds of facial takings court has emphasized again and again that the taking record the takings clause of the fifth amendment doesn't prevent the state from taking in only prevents uncompensated takings and in williamson of course the supreme court said that in film and and they claim that that they can proceed on or taking claim against director hegner that argument i believe fails because of the nature of the only taking place which proceeding here of course is that is a facial challenge based on a failure in that of the initiative in their estimation to advance legitimacy nikolsk that's a that's a claim that arises from the enactment of the initiative and not permitting force within a particular case just hegner was not even in office in november of two thousand when th initiative was adopted you can hardly be held responsible in a personal capacity for the decision of the voters to adopt this legislation so they can state a claim for relief against geoff aigner in his individual capacity and we also argue that he's entitled to qualif hybridisation and also to protect the tradition of their cheese hunting and sort of the hunting hunting heritage of montana in general and i think it's important to look at what the complaint alleges there are no i absolutely concur with chris's decision tree seeing as he put it on i think i think you start with the eleventh amendment and then you go to you keep going down from there i don't think you do i don't think you do have to get to this but my concern is analysis and standard was completely wrong the total desperation standard is simply not taking so long and and we did that the as applied takings claim that we brought is barred by williams and that's one of the reasons we sought a stay of the federal court matters so that the state court we could we could exhaust our state remedies prior to bringing the claim the federal court another reason we we raised in our complaint and the allegations regarding the findings of the department of fish wildlife and parks that are contrary to the purported stain interest that the state and the interveners have have