counsel i would like to speak for ten minutes and then counsel for the individual defendants will speak for five minutes ideally and then from i'll take five minutes for about so what we've got here is twenty minutes preside so you would like to speak ten minutes now save five minutes for later and just go into his five minutes that's the agreement so let's put fifteen minutes on the clock which is your total time and try to save your five minutes of that ok we'll do you r honors the substantive due process theories on which both sets of plaintiffs the hardest these and the schneiders recovered a combined total of one hundred and five million dollars again sacramento county are legally untenable and i'd like to start with the hardest the pla who secured seventy five million dollars on the theory that sacramento county deprive them of their right to pursue a chosen profession to prevail on that claim the hardest he's had to show that the county completely prohibited them from engaging in their chosen profession of mining i know you're going to get into the meat of it and i think it's important the other side argues that that was waived because you didn't bring it up till after the trial that's not an insignificant point that they make i'd like to know whether that was waived this chosen profession claim your honor it wasn't waived true that specific argument wasn't raised until the rule fifty b motion so they're factually correct about that but there's no procedural obstacle to this court profession the broad and this you know we argue in the brief about the claim argument distinction the broad claim was made that the substantive you process claim was legally deficient but the specific argument the rule fifty b argument that they didn't show complete deprivation of the right to engage in the profession that wasn't made until rule fifty but so your argument seems to be in that this is where i'm struggling with it is that well we said legally it was deficient so therefore we preserved every we serve one hundred dollars potential arguments for why it was drive even if the court isn't willing to go that far there still is no procedural obstacle to reach the merits and i can explain why because there are several reasons st of all the claim presents a purely legal issue it doesn't go to the facts the hardest these are in here arguing that they would have tried the case differently if only they had been a private prised of the proper legal standard earlier to the contrary it goes to a legal the legal question which is is complete prohibition of the right to engage in a calling the required showing is the county urges or is a lesser showing of interference with a single business opportunity enough as as the hardesty plaintiffs argued that if you were right about that you should have brought it up it to beginning because that i mean now you go through a whole trial and that's a little bit of the unfairness that happens here is you go through a whole trial and then you come up with a decent legal argument that you know it's a chosen profession and it's like well what the heck why we have the trial well in that case though your honor and you're right that ideally it would have been brought up sooner but the unfairness the extent it was was so the county i mean the county stood trial unnecessarily was an argument that you couldn't remailed on earlier not only what is was it not brought up but you actually acted inconsistent with that particular defense and i'm thinking about the fact the hardest these had another operation going on at the same time as this operation that the big cut mine right and you stipulated with the other side not to introduce that evidence at all during the course of the trial mode you agreed to a motion in limine to exclude that evidence that evidence if you were pursuing your now theory of last profession would have been a perfect defense would have been a complete defense because in fact the hardest these were actually doing mining in another place at the same time right but that the silence in the record favors the county in other words it was the plaintiffs a burden to show total professional exclusion and they didn't show that and your honor if you let me address a couple more reasons why this court can actually reach the merits of the district court reached the merits of it in the in the order on post trial motions the district court found the rule fifty a waiver but nonetheless said that she would address it in the context of ruling on the rule fifty nine motion for a new trial so because this court has held that where a district court actually resolves a litigator controversy the normal waiver and forfeiture rules on pfizer this court should take the same course and at a bare minimum this court could take the well this court can the parties agree this court can review the issue for plain error which asks whether there is any evidence in the record supporting the chosen profession theory and application of that standard here doesn't make a difference there is no evidence they didn't even attempt to make the showing that they were foreclosed from all mining opportunities they didn't even show that they were as a matter of law for close to mining at the this property they were only for clothes from mining without a permit with respect to pursue the procession talking about the schneiders as far as i could tell the schneiders or landlords and their getting a dollar per ton right is that a business recession i don't think so your honor and that's not the claim that the schneiders pursued a trial where attacking the chosen profession claim was the hardest these claims and that's the claim that they failed to prove because they failed to show total professional excuse you're saying that the jury didn't rely upon that theory the same theory for the schneiders yeah precisely and i would point the court to the key jury instruction which is that page three hundred and eighty of the excerpts of record which says very clearly the hardesty plaintiffs claim that the defendants they have sued deprive them of their something to do process rights by depriving the hardesty plaintiffs of their right to pursue their chosen occupation etc through the operation of their mining business so that is a chosen profession claim and that was the only substantive due process theory that the continued mining so that that wasn't a chosen profession claim so and then just finally just to close the loop on the waiver issue this court could take the same path at a minimum and the plaintiffs don't seem to dispute this that it could be grounds f i can move on separate from the chosen profession issue the claims of both sets of plaintiffs the hardest these and the schneiders fail for an independent reason and that's that they failed to prove that the county's actions were under reasonable which they had to do in order to prevail under their substantive due process theory but that's where you start to get on weaker grounds it seems to me because there's evidence here that that the county targeted them and treated them differently and so it seems to me that your best argument is and you almost have to prove legally you can't have this claim but if legally this claim does exist then you now you've got to show there's absolutely no evidence that they acted on reasonably and it's given the emails given that the jury looked at this and found it that's a pretty high hurdle for you to meet your honor i think that the  key issue here is what the rule of law is which is the substantive due process doctrine on which both sets of plaintiffs proceeded and i read it but in reasonable is a really tough standard that's sort of i mean i guess i mean it's almost like a th amendment a jury finds a th amendment violation and then we come up and say well no reasonable juror could have found that and that's the struggle i have with this case i mean i think you have a pretty compelling argument one hundred and five million dollars is a little crazy and i wan about some of that some of those damages but as to whether any damages could be awarded or with whether there's any claim the unreasonable ness is a tough position for you to be arguing your honor the key case here shanks versus dress a which said that the irre minimum of a substantive due process claim challenging a land use decision is failure of the government's action to be reasonably related to a legitimate public purpose but the shanks court went further but why not sorry to cut you off but i know we've got why isn't it the vested right is a problem for me they clearly had a vested right the county recognized a vested right and then they wrote him a letter and said just couldn't you don't have a vested right not your you have a vested right but it's narrowly tailored here they just said you have no vested right why isn't that unreasonable or at least let me let me ask it differently why isn't that evidence that a juror could find that it's a it could be it could be evidence but the key is in what i wanted to finish about shanks was the court's if it's fairly debatable whether the government action is reasonably related to a legitimate public purpose no liability now that's a difficult standard but it's meant to be so in terms of the vested right so you know looking at whether we're not looking at whether there's any evidence that could support it we are taking into novo review as a legal matter that's your position that we've got to look at this and take it out of the jury this court is asking whether there was evidence permitting a jury to conclude that it wasn't fairly debateable that the government what the government was doing advanced a legitimate public purpose and here it was at a minimum fairly debatable there was the evidence was contested about the scope of the vested right the county took the position that the vested right covered only a couple parcels in a riposte trial ruling the district court thought that the vested right was larger than that at a minimum it's fairly debatable not every error of state law has constitutional magnitude and that that's a key point but and that's a question but an error that arguably are in fact did shut down their operation here is there is a suggestion that the schneiders are the hardest these shut this down you know unreasonably so that they could operated this or is it basically conceded that the regulations forced the shutdown it's not conceded at all the as a practical matter they were no the county never ordered them to shut down as far as i understand the county said you have to get a permit and they didn't do that and there's testimony that getting a permit would have been expensive and time consuming yeah that's right but if they didn't need a permit because there was a vested right then that seems to be a legally potentially illegally position and you you've in your brief have said that the vested right analysis is fact intensive that has jury written all over it but i think with respect your honor that the vested the fact intensiveness also shows why it was fairly debatable which means that the county wins at a bare minimum as as your honor pointed out the damages in this case are grossly excessive and we if we need to give you time i i'll be honest with you i am not inclined to just kick out the case and reverse the whole thing but i would like to find a way to limit the amount and i'm i'm struggling with how to do that so i'd be interested in hearing that i mean for example if we said there's knows a substantive due process but when there is a procedural due process would that cut the award well that would cut the award down radically because the plaintiffs only recovered a dollar on their sense of due process claim which is what they asked for they only cite nominal damages one percent thirty thousand dollars on the thirty thousand dollars on the st amendment that's right but the millions and millions are in substance of due process there is a seventy five million dollars went to the hardest these on the chosen profession three which as i explained fails as a matter of law from the get go because they didn't they didn't show complete legal exclusion complete prohibition from engaging in a calling so that that's out one hundred dollars how did they how did they get to one hundred years i mean i know that the reclamation plan class did for the potential of one hundred years but i mean let's face it there will be living in the hundreds of years of course and they go there you're using you're using dollar figures for one hundred years of lost profits when in fact nobody's going to be around in one hundred years and isn't that just per se  excessive not only is it per se excessive it's per se an impermissibly speculative which is a point that the county litigated below and raises again on appeal which is that a projection that any business particularly in a highly regulated industry like this with regulators breathing down its neck from multiple sides can can go forever one hundred years it doesn't it doesn't so but what do we do with that is seems to me that we almost if we said and i don't know where we're going to go with this but if we said well there is some liability here or at least there's evidence that would support jury liability or do we just have to send it back for a new trial on damages that well of course i mean i think the court should reverse what they're actually going to judgment on these claims but short of that a new trial is would appropriate and that could be the law favors complete new trials rather than limited to trial so that's what we would ask for at a minute we would we should send it back for a new trial or issue ritter correct so do you think that we would have the power to coterminous with the power of the district court in that respect so yeah but it has to be based on some evidence i don't think i don't think we can go back you can just pick a jury and say well we think they're entitled to you know and that's where we're in a we're in a difficult spot it seems to me i you put five minutes on the clock good morning michael collin to know appearing before for former county supervisor roger dickson retired county planning director rob sherry and retired senior planner jeff gannon i've never done a substantial evidence field before where i've come to a court and said there's no substantial evidence or what's a jury did but this is the case i wrote a brief and which i said here's all the evidence of actual conduct by my three guys that they did  that i mean look i don't know whether i would have reached the same conclusion if i was sitting as a juror but that's not the position that we're in here and there is evidence and i'm particularly troubled by the vested right issue because it seems like the county came in and took an entirely different position on the vested right that's a big deal here they didn't write to them and say hey you have a vested right go back to how you used to do it they said you're done we're taking away your vested right and i don't think they have the legal right to do thought on that one is i think the legal effect of the air paroled two thousand and nine letters is a question of law for this court you interpret writings and i think if you interpret that writing in light of your own precedent in the  fellowship case because what that letter said and if you read it it says we may take enforcement action against you if you do not concede to our view that you're acting outside your rights we may take future action in fact the county did take future action a year later a different agency of the county where none of my clients are employed issued a notice of violation and what does that say that said thou shalt stop or we will seek judicial remedies their due process substantive or otherwise was going to be in sacramento superior court we never got there we never got there because of they sued us before the process was completed but i have a less ambitious argument that's really the county's argument i ask you to focus on what my clients were proven to do and let me start with rob sherry because i think it's my best case what did they say he did wrong he served as a department head that can't do it you've got many precedents which say just being there as a supervisor is not sufficient he signed the april th letters on the advice of counsel maybe there was a legal error there but is this so shockingly beyond social standards that he should be personally held liable for his share of one hundred and five million dollars plus seven hundred and fifty thousand in personal puni e what's the rd thing he did he participated in meetings and delegated to gallop on that theory that two supervisors between gammel and the department head should be in the dock as well he met with tigard well tuckered had a concert all right to meet with the county and we could not have refused to meet with him those are the four x so what is the respondents brief say yes but that letter was testified to and it had all of these consequences even after mr sherry retired that's not that makes mr sherry the guarant mr gammell i'm really interested because you know you got the letter in april of two thousand and nine which basically they say suggests that they can't operate then i think in december and december th of the same year somehow mr gammell has communication with the plane is and says well go ahead you can continue to operate right which is really inconsistent with this theory that these  state agents are acting at the direction of teicher or are acting in a political way basically i think it was a really unclear from the record really but is it true that you know go ahead which is can continue to operate will resolve this in the future correct that that's correct and in fact in two thousand and twelve the record shows he sent a letter asking for additional financial assurances to ensure the reclamation of the site so the continuing relationship it is plain the county never ordered them to stop and certainly mr gammell never did and mr gambles for five levels down from the top of the department had much less the elected officials what authority does he have except  right reports and make recommendations and yet he's being held personally responsible for a one million bucks why because i think the jury was offended by california law allowing his position to be funded by the regulated industry i think the county was offended by the fact that he wasn't the warmest witness in the witness box and got clocked with some old e mails that he didn't remember but what he did was conduct an investigation had he acted on reasonably it's on a county not him this guy makes you know less than a one hundred grand a year and somehow he's on the hook for hundreds of millions of dollars so if we kick out the individual defendants what do we do with the award we got it we'd have to send it back because i mean there's no split between the compensatory damages that are or were do we just say we kick out the individual defendants but the satori damages would stay the same because the it's for the conduct this is really the county's case but i'll make an observation one of the telltale signs of excessive damage is the plaintiff got much more than they asked for so when i asked i agree with that so what what's evident in the record is what  for even that to my mind is a shocking judgment but it's about half the size of the one you're looking at what do we do i mean is your position well i'll say my question is if we kicked if we kick your clients out then you should be way i think my clients should be out and could punitive should be my colleagues on this side of the aisle can make is legal error by county staff and some of the conduct they're punishing mr dickinson for is absolutely privileged they're punishing him for the way he ran a hearing somebody is offended they didn't get his quite as much time as they'd like there's calendar management in them on board supervisors just as there isn't a superior court he's being punished for how he voted that's absolutely privileged he's being punished for meeting with a constituent that's absolutely privileged he's been punished for taking a campaign donation that's absolutely privileged you know the bottom of these chains of it for you know he's got seventeen on the other three ok yes or as the jury found after a long trial on evidence that the trial judge also heard appellants abused the regulatory powers entrusted to them by putting these two families out of their thirty year business enterprise all because a large competitor demanded it well wait a minute honey you mean it all because i understand that we've got a competitive relationship among the people and companies that are doing the mining but there was a fair number there was some other because that is to say there was a substantial expansion of the mining operation some of the mining operation was right next to the river there were federal concerns about compliance with federal law there was a threat to the county that if you don't start interfering in it with th operation and forcing we're going to take away your authority to do it all of that happened with respect to the tigers your honor that that was respect to tygart the tiger strategy matrix shows type hurts detailed strategy over a period of years you know what i'm saying is the behavior of the clients the property owners the schneiders and the operator of the mining operation the hardest to use that happened without respect your honor those the m b but i didn't make them do them that's correct your honor but those concerns those allegations were de bunked as pretextual by the evidence there were twenty two main pretextual does it really matter does it matter whether it came from tiger or whether the county just went off and did this on its own i mean that that's where i'm struck and i think i don't mean to cut you off because you're going to give some evidence and i think it's some evidence that some of this was done by tagore but i will have a more fundamental question which doesn't matter the county did with the county did your honor in the context of this case it matters and all oh i'll elaborate on why i think if the county were targeting us for pretextual rationales and did the same conduct whether teicher was involved or not perhaps it tighter its involvement wouldn't matter but here we have we have two sides two sides here two things we proved we proved that on the evidence that the motivation was teicher pressured the county to run us out of business and the county is ceded to that pressure on the other side we proved that the environmental rationales they put forth and the so called expansion rationale they put forth were pretextual the environmental rationale we had testimony from their own expert consultant the county's own guy who told them that this pit capture idea was not a risk their own testified he told them that during the course of the underlying conduct and he testified to that on the stand in addition there was the inspection of the office of mine regulation which basically suggested that it was not a real significant environmental concern but it could become that when water starts flowing in to these pits and it it  highlighted is maybe something that has to be watched in the future but it was not necessarily suggesting that the the walls of the steep walls were going to be collapsing right jette session and that's always something that has to be watched and it was watched there were at least annual inspection it's the most recent one was six months thereabouts before defendants in their brief and throughout their briefs by the way defendants rely a lot on their own versions of facts and explanations of facts and seem to forget that they need to talk about the facts as the jury home of the inspection in late two thousand and eight when everybody started all of the sudden bombarding  well your honor in late june two thousand and eight michael winner who was then the resource manager did an inspection he found no violations he noted that we had the vested right so we needed no permit and he has a notation that the operator is making significant steps toward reclamation then in part of the canal or a pit at that particular point there is that because they're not only was there a pit but also there seemed to be a change in the nature of the product there that the hardest these were engaged in retrieving that is when you start going down into a pit i guess you get riverbed your honor there was a pit there there were there were pits it pit mining the and let me let me touch a little bit too on the expansion pretext because that relates to this the there's nothing wrong with expanding mining production within the perimeter of the vested right and the evidence showed that the vested right covered the entire mine tract you know we had that the maps that were part of the reclamation plan the california calvert case says that the vested right determination determines the scope of the reclamation plan so can i ask about that because i think you're right you have evidence of that but is that a legal thing that we can take away from and should take away from the jury and decide to novo or is that one to what extent do we defer to the jury on its factual findings on whether the vested right covered exactly what was being done here are that's a fact question and defendants in their briefing they even say the vested ri determination is a fact well this is it's interesting because it's a fact question that's seems to be couched in an administrative review and the trouble i have with this case  potentially and i don't know if we can navigate that is i mean every time there's a lot of administrative facts that need to be found and every time that becomes a fact question and they the administrative agency or you know gets it wrong or you know are they for for damages of this kind and he your honor the fact question is not what is the vested right it's what did the county determine the vested right was and i don't understand the distinction the distinction your honor is in one thousand nine hundred and ninety four was the initial vested right determination there was the letter from the county mr schneider mr snyder who's sitting back here presented i think over over a long period of time presented evidence to the county of the historic mining there was this letter that says the gravel mining operation on your property is vested and they talk a lot in their briefs about the fact that the subject line referred to two parcel numbers the there was testimony from mr snyder that that was just the shorthand identifier for the counties file on the whole ranch so that letter applied to the whole ranch then in two thousand to after about a twenty two dollars or so two or three year process the reclamation plan was developed and the reclamation plan confer the ninety four dollars day determination that calvert case the california calvert case says that retroactively it's said that determination governs the ninety dollars determination it also says the vested right determination is the fulcrum on which everything turns and it determines the scope of the reclamation plan which was developed over a period of years back and forth with the county formal hearing before the board of supervisors with the colored maps that the counties planning director their mining regulator and their chairman of the board testified looked at these color maps and told the jury i don't know what this means this is very confusing with all the color overlay i think that if you start looking in the broader the broader picture here there is a regulation plan that has to be submitted whether or not it's a vested interest right and that describes what is reasonably anticipated in the future and of course the reclamation plan starts with oh it could be it could be the entire entire ranch but it really is going to it's a fairly small level of extraction and then you have a dollar amount which is attributed to the reclamation plan so that you really can expect if you are a state regulator that unless there's a very dramatic change in the quantity of mining that this is going to be really what's offered and all of a sudden they hear from all of these other  agencies and individuals that this is expanded enormously i appreciate that many be vested right would suggest that the use permit remains but still the regulators have an obligation to go them out and look and then the see this you know much larger operation and they anticipated and that they expected from the reclamation plan and the financial contributions that were make being made and this came as somewhat of a shock now maybe their response should have been you know go back to what you were doing before i know that you made that  th two thousand and eight and defendants claim in their briefing though that in early by early two thousand and nine or or or or december two thousand and eight jeff gammel claims to have been surprised by the mining that was going on but that was six months or less after the county inspected nothing and the evidence shows there testimony nothing was hidden from the county the county was kept a of this this was there were annual inspections at least so nothing was being hidden the reclamation plan it gives a best estimate of the projection but it says you know over time we expect these areas to be mined it does not limit the scope of production the intensity and it expressly says that the intensity of the mining may over time in accordance with market conditions it says you know we we excavate according to market conditions there is plenty of testimony that market conditions were very good for the gravel industry in sacramento county there was less than fifty percent of the less than ten percent of the fifty year need there was a critical shortage of housing boom so can i think there are valid points but is there any limit to the vested right i mean your position seems to be hey we told them we could get every last bit of gravel or mineral out of this land and it was your position that they could have done anything and there was nothing that could limit the vested right yonder the limit to the vested right is territorial it's with your that's your position within that that's our territory you could have done whenever you want to and within that territory you could you could mine gravel and you  haven't i have not read all of the cases you cited bunch of cases but your position is that those cases support that reading of the best of those cases the court that whether the hanssen case the hanssen case and the calvert case in particular so your argument is that the vested right extends to any mining on the property owned by the schneiders within the tract there's there's a little bit of the whole ranch that's not included within the mine tract but in the the maps attached to the reclamation plan show the perimeter of the tract and they show project projected mining you know granted the projection at the time of the reclamation plan was that would take a longer period of time than it did but they showed that eventually there was projected mining all over the tract is there no plausible legal argument that the grandfathering him someone who  already has in to conduct in mining prior to the passage of the statute is there no legal argument the vested right extends only so far as the nature of the mining that's already being conducted  argument your honor but nothing in the vested right determination reflects a limitation on that nothing in the reclamation plan reflects a limitation on that the reclamation plan does reflect and the underlying evidence of the ninety four dollars determination that mr snyder submitted to the county reflects and this was testified to and some of the documentary evidence is in the record that that over time in the past historically there had been different methods a mining used on the property and that the have a compounding the reclamation plan and the financial contributions that are supporting  recreation reclamation plan doesn't that suggest the reclamation plan and the amount of money that this is really an operation of a given moderate size and that all of a sudden if you exploded in size you got to explode it in regards to the concert to the financial contributions and also the reclamation plan has to be able to be tailored to that increase so that really  arising out of the reclamation plan and the financial contributions there's an expectation that everybody can basically follow that it's supposed to be this kind of operation and all of a sudden least according to m gallo's testimony he's shocked that the this is much bigger than the reclamation plan and the financial contributions would suggest and of course the jury was entitled to just believe mr gamble's testimony the reclamation the you know the fine angela surance mechanism is something that subject to review i think annually and there was expert testimony that the dramatic increases were unjustified that we were with there was expert testimony that we were within the scope of the reclamation plan one of one of the disputed issues here has been the county's claim that we weren't allowed to keep these pits and turn them into ponds the reclamation plan express calls for and uses like swimming fishing water fowl habitat and grazing there was expert testimony you know these and these are mining and recommend him i am six hundred missions you know go up and down so what happened was they increased that to a seven hundred thousand plus then all of a sudden then the county decided to reduce it it got reduced way down and then in two thousand and two when you have are two thousand and twelve and you had up and then they voluntarily reduce it again and so that's going back and forth as you work this process out is that correct well your honor i think we use the term cop task in our brief because i think that's a very good term that describes this whole process this was a multi year process of shifting pretax shifting rationales you know st they were talking about the pick capture and their consultant told them that's not a risk then they talk about the expansion and you're at the hearings and they're not talking the expressly saying we're not here about pick capture but it could and you're really talking about a conspiracy here involving state regulators for a purpose of shutting you down you would not expect a behavior like all of the sudden they the the financial contributions high and them must be based upon complaints reduce it way down again this is not a consistent theory it's consequence it's up and down well they change they change the goalposts on us while we were trying to keep going the vested right determination is is the more direct thing that shut down our operation they revoke the vested right by this letter of the calvert case says if you're going to read determine the vested right if you're going to determine it that needs a formal process that didn't happen at these hearings which they tried to present at various points in this case as post deprivation process for the vested right or not at the hearings they said we're not here about the vested right you have to go across the street to the courts where only here about do you need a permit but if you don't have the vested right of course you need a permit so that's a catch twenty two heads i win tails you lose all right i know you're over but can i ask a couple questions because with all due respect i cannot a vision you know supporting a viable you know twenty years from now thirty years from now i've never seen a case that is awarded damages based on a one hundred years to get it out so what do we do with it was that st what was that brought back to present value yes your honor one thing it's it's not actually one hundred years the damages amount i'll come back to that importantly the the evidence the primary evidence for the amounts the jury awarded is the testimony of d coleman our expert our damages expert and they have not challenge on appeal that underlying evidence you know at the margin they have some new arguments at the margins but they they don't challenge that that evidence so there's evidence and of course the trial judge looked at that and said this is not contrary to the weight of the evidence and that's an abuse of discretion review the now it's not quite one hundred years our expert tests testified about up to one hundred years but the the amounts that the jury awarded are actually more like he gave two figures he got one hundred year figure and a fifty year figure and the jury's verdict came out around the middle of that the sort i thought it was eighty one million dollars for the harvest this eighty one million dollars was the one hundred year figure and they got seventy equipment at a loss and things like that how much was that selling the equipment off the top of my head i don't remember but i think a few a few one million dollars but but very importantly the valu ation here this was a valuation this business enterprise it wasn't just these individuals could expect to live for another one hundred years and get this income what they shut down what they destroyed was a business enterprise hardesty standing gravel and there was a witch from which both families profit and there was testimony about you know there there are much money available and the only thing that the hardest use and the schneiders needed to do was to be in there saying couple one hundred million dollars couple of one million dollars for a permit and put up the money for the reclamation so it was really worth that much money why in the world they shut it down for one thing for one thing your honor the county in a break from tradition from its traditional practice declared that we would not be able to continue operating while a permit application was pending permit application you know these people weren't cash rich joe hardesty who is sitting back here in the green plaid shirt he testified about how you know that their business made a lot of money but they always poured it back into the business they lived in the same trailer house since one thousand nine hundred and seventy nine because that money went back into the business they had to go five million dollars into debt fighting this stuff so they didn't have they didn't have that cash available they weren't allowed to keep operating there was testimony to the effect that this permuting process can take up to ten years if you get it approved and it's costing you millions of dollars while you're going through this process there's testimony that granite corporation j schneider who's sitting back here worked with the granite corporation to try to them to take over the mining their expert jeffrey like to testified at trial assess the reserves and said it's not economically the permeating cost don't make it economically feasible so you had what what you have that sort of plays into judge fletcher's point which is the permitting because to make it economically feasible it's hard to see how a two million dollars investment i think a lot of people would take that money if they could get one hundred and five million dollars out of a two million dollars investment i it's not it was an economically feasible to pursue this as a permit it mine the business enterprise had been built up as a vested min and there was a thirty year track record with projections out that the business could keep going that it had substantial reserves you also you had these stockpiles which had been in existence already for decades and had an indefinite shelf life and that's part of keeping the business going you replenish the stock piles and then you sell them off and the stock piles remain there ok we've taken you well over time thank you your hon is not an enforcement cakes this is a case of shutting down a small operator out in the country and nd model county now going to that two thousand and two board of supervisors adoption of the reclamation plan they made express findings when they adopted the reclamation plan they found that the project the snyder historic mine reclamation plan was consistent with land use designations and consistent w germination by the board survivors they found that it mitigated for environmental effects they found no affect on the neighbors they found that it had been endorsed unanimously by the community planning board and they found that the mine was a vested mine under smar and avoids therefore exempt from local mining regulations as judge miller pointed out the board also pointed out that it was an appealable order i think the statute on that stuff is ninety days that was eighteen years ago it was never appealed it's final yes there were enforcement allegations prompted by political influence brought about by  me all these german names but the reality is we had a long history of zero violations at that mine and then all of a sudden take hurt acquired the pelican property next door and we're going to develop a min there and we have these tygart enforcement major cities that show up throughout the record we had over thirty agencies for two years descending on the ranch some of that investigative activity was pretty harsh we were required to respond to something virtually every day they drove me out of business we were putting together geotechnical reports and all sorts of stuff we only sued signers only sued the county and its agents because the rest of those agencies after two years of intensive investigation on everything you can imagine they were looking at building permits and op business licenses anything they could find no one agency could find one single justification for shutting down  only sacramento proceeded and what did sacramento do sacramento decided that they would suddenly just not recognize our land use and title means even though the board of supervisors had made a binding final decision that we were consistent was no ning and exempt from the local mining law because we had the state vesting they just said well you need to change the zoning in your part of the county and yeah you need to get a conditional use permit there was testimony a trial a conditional use permit for a surface mine in sacramento county can take ten years and fifteen million dollars and in the st time ever in the testimony they say the board of supervisors rob operating a service mine in california requires three things it's like a three legged stool you need to have a permit which is excused if you have a vested right you need to have a justification for the increase in the financial assurances that this was done in a sequential methods that we couldn't fight back we're talking about summing up ok two thousand and nine they revoked the permit two thousand  was me they do the revocation two thousand and eleven they say you don't have financial assurances or you need to review do your reclamation plan and then the rd year they said we didn't have financial assurances between the two we could have never gotten another honor subject to the court's questioning i want to address st why the county should get judgment on the side of the due process claims and then turn to why at a bare minimum a new trial is necessary i didn't hear any defense whatsoever of the chosen profession theory and i explained in my original remarks why there's no procedural obstacle to this court's reaching that and that defeats the seventy five million dollars hardesty claim as a matter of law that should be if there is to be a remained that should form no part of it at a minimum if there's a new trial that would need to be retried  district it's legally untenable with respect to the entire substantive due process verdict the the whole one hundred and five million dollars the theory that's being advanced by the plaintiffs here is really remarkable which is that if there is an arguable point of state law in other words what what was the scope of the reclamation plant what did the vested right entails that can get tossed to a federal jury who can then impose a whopping liability on on government officials that that's not how substantive due process works instead substantive due process is meant to to to root out only the truly conscient shocking and that's the language the cases use conscient shocking agree just government action where it's fairly debatable that the government it was acting reasonably as it was here there can be no liability now the court asked when my colleague was arguing what would the remedy be if the individual defendants were removed from the case and i think that while the county should get judgement for the reasons that i argued if the individual defendants were removed from the case a completely new trial on liability and damages would be necessary and here's why the theme of this case as illustrated by the punitive damages awards was demonizing the actions of these individuals and successfully so the jury was clearly inflamed it awarded more and compensatory damages than the plaintiffs asked for and then went so far as to award punitive damages against the individuals on a very slender evidence that they did anything culpable so the county no less than the individuals and no less than the plaintiffs is entitled to a dispassionate and fair decision maker on all theories liability as well as damages so if there is to be a new trial it should be a new trial on liability as well as damages but at a bare minimum the damages awards are patently excessive for all the reasons we've been discussing so at the very least there should be a new trial on damages or emitter by this court so unless the court has any further questions i'll submit ok thank you very much