evidence and we are damage and are being damaged as we go we have pictures of where they dug up the coal and how the coal how the yes so you have a plant that has the under me for rights to these minerals and the big issue in this case deals with i guess the district court judge sort of looked at surfaces this is only dealing with the surface and you have a let us put on our case show what the impacts of the pipeline would be have them bring in the owners who the mineral owners who would be impacted and have them postpone now my client summary judgment be overturned it wasn't right because the proper parties were there so the summary judgment motion granting the injunction was improper and the injunction itself was improper so the before circuit has a case and it's united states point twenty one point five four acres while i am and in nat case the government wanted to condemn to the hot water mark in a set well it's here but the property owner said no your hot water mark is going to take more mock property they had a trial below went to the four circuit before certain reversed and said no when there's a dispute about like this would also point out that ari her are the mountain valleys argue many as well so what sue is ok yes even if we get this wrong so there's a problem with that are we going to be able to jack their pipeline will the court say ok this forty two inch pipeline out of our property that's our legal right as the owner of the proper what is the effect of what you designate you took what in actually would not be a question that being litigated as well the ninth you're right because you will not be able to extract a pipeline but if that location are damaging and will damage the coal because they sad we're not taking the cause but they are taking the coal they're dating it up as we speak so we would ask that the injunction be dissolved so that that damage stops and so that the the a proper bond could be heard there digging it out now the were they digging it up when the district court heard your argument no because they did not have an injunction that is what we wanted to presume that if you give them an injunction and let them enter or early this is what they're going to do to our client a bond should be posted and that pay team should be reviewed but we were not permitted to present that have we were excluded pre hearing it is very clear i'm not going to hear evidence that wally is they get to define the take but but that's surface mining methods some of the coal is not very far and below the surface and they are digging right through it so what you're saying is that mineral rights could be surface rights to well actually there's there's a great deal logged out that and mineral rights and surface rights share and the colon are generally has the right to that's not the problem because that's not where the call was we are on a surface track over here that's what they can d m where they did not condemn where they damaging without or without any authority whatsoever is this property over here and we said judge when they lay that charest pass that is it bring an action well th problem with bringing an action in the chief judge just said it and if you look at twenty one point four acres of the land you'll see that the fourth circuit said consider it a similar problem but the problem is when i get to bring that action i will not have all that room and he says that the law provides this quite a court is simply not going to say all right pick up your pipeline and move it someplace else the court is later going to let them in first it condemn us so now what happened the entire process has been frustrated they didn't post up on they didn't pay what they needed to would have said and what was involved in the affidavit pre hearing what's correct here is where it is here are the pictures here's the cole here's their pipeline in it they owe us time determines what appropriate remedy so certainly that's true but as i've said my rights have been prejudiced my constitutional rights have been prevented there may be a remedy that the district court tell me the remedy that the district court will give you from a trespass action would not be sufficient because you can't give you enough money because they can't give me object jackman because the condemnation will be filed in response that will limit my peanut it damages and that restricts my legal rights not only was my constitutional right to have a bond posted before taking and it has a clear here to appropriate remedy for injunction in our view is to people to come to this court to ask for justice and which is what we've done ok thank you and yes your honor my plan is very much interested in money my name is nicole back now and i represent mountain valley pipeline in this case before getting to the merits of the argument i think it's important that we start by looking at exactly what is at issue in this case and what is not before the court cut to the important to understand what was that issue in the case that judge copen here was looking at and b p condemned three parcels and by western pocahontas one for an access road so no digging and two for a pipeline on the surface what mr patterson is talking about and what he had made it is sixty five other parcels that were not condemned in any way on those sixty five parcels and b p negotiated with the surface owners evidence as to those three parcels the evidence they wanted to present was as these sixty five other parcels that were not before the court and in that respect united states versus twenty one point fifty four acres for this court is directly on point it says that this court can only look at what b p has chosen to condemn now the point about the high watermark that was for a property that was condemned and it went to what damages were available for the three parcels that were condemned in this action w p p might have damage is claims that it will present at the trial and just compensation but we didn't hear just compensation and that is still left to be heard and they can raise those damages if they have evidence i don't know whether they do because obviously that wasn't before the district court but if that just compensation they have evidence th impacted will be compensated for that there is a remedy but for those sixty five other tracks that are not before this court and were not before the district court there remedy if they have if they need one these damages  on i believe that there will be a pipeline on the majority of those so there will be surface digging to about ten feet in general was the evidence well it's very cold those old digging we know i don't just you know it's not the actual thing but it's the thing that's happening this impacted by words worn or it really isn't in the context of a condemnation your honor condemnation actions are very limited there is a specific statement required in the complaint of exactly what is being taken we're not talking about other right on the same property we're talking about sixty five other properties they were in and out of identified in the complaint by owner by track number by judgment as to is that as to the three parcels that were condemned your honor and it was properly entered there's three factors for summary judgment in a condemnation the first is that n t p had a valid certificate the district court looked at that w p p did not have not claimed that it didn't it found that the for that there was a valid first search effort the next element is that the route of the pipeline is necessary again w offer wasn't sufficient because it didn't cover all these other claims damages but that is not the fact that is not the task and there is no requirement i think they put this in the context of the offer has to be in good faith there is no washington's not in this context you hear from them by them filing an action that the law is very clear on what this court could hear this court could hear what and the p defined as the taking and if in fact other damages are incurred they can raise that either just compensation or through a separate action either an inverse condemnation or a trespass but it seems to me using the even involved so why are they here correct your honor they're here for the three parcels were they on a surface interest for those other sixty five parcels they're not a party and neither is that property so they simply should not be heard on those parcels which is exactly what just judge copenhagen found it's also what judge acutely found in the northern district of west virginia and the exact same case which they're not appealing they didn't appeal summary judgment on the same factors for the one parcel in the northern district where they own a surface right where you brought up the twenty one  we took were here about the parcels that we didn't condemn on the parcel that was taken if there is some dispute they can present evidence or just compensation that we impacted their mineral sense i mean when you when you dig in the ground of that level of equipment and the extraction of coal it makes the ground shake and you have a pipeline and i'm sure we don't want any of that gas in ruptures right absolutely testimony actually at the hearing that deep mining could occur under the pipeline if now if necessary but i don't really but that is really a speculative damage at this point because  p does not have a permit to mine the core it doesn't have any any ongoing mining or any any impact that might come into conflict with the pipeline at the time that it does if there was some impact it's remedy would be to file suit for an inverse condemnation but that's not the case here they're not mining under this pipeline and in fact there are many examples in west virginia and throughout the country where deep mining has occurred under a pipeline with no impact on the pipeline pipelines routinely monitor the stress that occurs on it from underground mines mining and sometimes they have to make changes to the pipeline mr cooper talks of i to this sometimes they have to take make changes to the pipeline but sometimes they don't it depends on the depth of the coal it depends on the type of mining it to pay depends on how the pipeline is constructed but none of that is that issue here there is no mining under the proposed route of the so your honor that the your owners as to the evidence being excluded it simply wasn't relevant it wasn't part of the parcels that were before judge copenhagen or that finding was not arbitrary early rational it was based same argument there because they know this is only just dealing with the taking of this outside of this if they want to deal with that additional land you claim this actually below six twenty eight you can bring that in an inverse condemnation or is this property being affected with the memorized because of what you're doing here and i think the answer to that your honor is first we have to look at the difference between the parcel the property being actually condemned and not in twenty one acres the property without actually condemn so then you're limiting the analysis to the three parcels that were actually condemned in this case but the question still wasn't twenty one fift position more on what you want your position yes your honor i think the court was clear that the condom nor could define the taking and except except if there was some discrepancy to what was affected right so first the court looked at what was being take it and then they looked at what what the condom nor had to find was being taken and then they looked to see if there was a discrepancy and b p did not take court records there is no discrepancy as to that they took the surface right they did not in their complaint identify any coal rights they did not important distinction because the avenue is they wanted to present was to sixty five parcels that were before the court it wasn't the twenty one acres case where you looked at the parcel and there was a tarp there is a discrepancy as to the extent on that parcel and to find the parcels that were before the court we look to the complaint yes and the parcels that posing council are talking about they're not in the complaint not at all for the three parcels that are in the complaint one has a access road on it so there's you have a pipeline and the judge did allow evidence as to the parcels that as to the property in the complaint p p didn't submit any evidence they wanted to submit that and says that the parcels and the taking that were not in the complaint and that's the distinction between twenty one acres and if they want to talk about these other sixty five parcels they need to bring an end in verse condemnation action or or something some type of pleading or something to put for the three parcels that we've taken because that the scope of the taking but not as a property where the surface owners have agreed and it's not before the court and just as a running short of time but  last points on this i think that it's important to remember in terms of the injunction but also in terms of the evidence that all of the harm that claimed by w p p and i think judge when you made this point at the end of the u p piece argument it's not a reputable harm to w p p it's all damage to coal which is compensable if it occurs we still the speed that it will occur but if it occurs it's compensable by money damages and so the injunction was still proper and in fact in this appeal w p p does not dispute or does not raise the appeal the amount of the bond or the amount of the of the deposit that was made in into inverse you know condemnation he said i want to be addressed now that's his point you know you there is compensation there's compensation and there's compensation because what what different bands do you have you have ten bands and one then your other not in the four corners rule sixty five but the three possible he'd say that's impact it would call to service and question why is there not in the proper calculus as to posting ones for relief properties that we have condemned is that just compensation and they had an opportunity to present that evidence as to the sixty five parcels that are not part of the condemnation you're right the judge properly excluded that it was not h bin because it wasn't taken we don't have to post a bond for the things we don't take here on or if there are more damages than what's covered by the bond at just compensation the court or the jury will award those damages an m v p will be responsible for them obviously we disagree counsel disagrees very much on a great many factual issues that should have been heard and i believe the court is correct that what is being taken has to be in the calculus otherwise the court below what court i don't think we've made any decision yet you are jackley correct i was speaking with respect to the i don't understand stand why i just complaint and then they want to talk about everything that's not yet in the complaint or in your complaint because it should have been in the complaint because we raise that issue because what is shouted paul in parsed condemnation no it was a what an opposition to an injunction it was to come forward our evidence was relevant to whether or not this will come up in the just compensation base no they did not join those partial so it will not come up in just compensation you're not going to bring it out not in just compensation we're going to have to if we even if they did i didn't know that parcells you're in in that you're not going to bring it out but you bring it up here so i feel pretty sure you'll bring it up  if the question then becomes well yes yes to the injunction they should have heard it so what happens well the injunction shouldn't been service should be give you an opportunity to speak i think it clearly gives us an opportunity to participate you look at the purpose of the project what is the government doing what is it what is in the on line in the case with corps of engineers said well i'm going to take to the how watermark and they said well if i take to the hot water mark this is how much of your property i'm going to take you got that that was the purpose of the project right the difference between that sixteen and twenty eight they say you take it much more year rex crowd as it fit with excel it is the same thing here the purpose of this project is an interstate i pod that goes three hundred three months now and what is that pipeline going to take throughout its purpose we were not permitted to resent that evidence which comes on under twenty one  fifty four and therefore there is there is there are she admits there was absolutely no offer made for call well that that mission migrate a property that's occurring year because this water line is much more so it's going to take much more you so it's sort of like yours where if you say i'm only take in this business over here that that is exactly the case what is the purpose if there's a factual determination with respect to how much property is going to be impacted in taken then that should come before the jury and that is what happened the landowner said nothing you're taking more property then you say you are you're not bound by law just a description of a tape you need to look at in fact what damage is going to occur here they had to try out below that came to the fore circuit before circuit reversed trout poor and said you should not have just relied on their description you should have been let the owner present the evidence and you should have heard that evidence and it is a matter of the law as to what is being taken so while there are factual elements this court should review that issue do not because it is a matter of law and i would submit to you that twenty one point five